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HomeMy WebLinkAbout1986-0660.Cripps.88-02-08TELEP”ONEl rt6,soe-osee 660186 Between: IN THE NATTEB OF. AN ARBITRATION Under THE CROWN EHPLO~EES COLLECTIVE BARGAINING ACT Before TiiE GRIEVANCE SSTTLEMENT BOARD OPSEU (L. Cripps) Grievor Before: For the Grievor: For the Emo~Ioyrr: The Crowrin Right of Ontario (Ministry OE Correctional Services) R.L. Verity, Q.G. ..' Vice-President I.J. Thomson Member A.G. Stapleton Member Bram Herlich Counse I Cavalluzzo, Hayes & Lennon Barristers & Solicitors MS. Leslie X. XcIntosh Counsel Crown Law Office Civil titinistry of the Attorney General Employer 2.. -2 - DECISION In a grievance dated June 25, 1986, the grievor alleges that the Employer violated the provisions of Article 4 of the Collective Agreement and discriminated against him by deeming him ineligible to apply for the posted position of General Duty Officer at the Lindsay Jail. The position carried with it the classification described as "Correctional Officer ~1 (Correctional Officer 2 Underfill)". The remedy requested'was immediate transfer to the Lindsay Jail to the position of Correctional Officer 2. The grievor'also requested a cease and desist order to stop the perceived discriminatory practice., Then hearing proceeded in the absence of the successful applicant Wayne Crosmaz. On the representations of Counsel, the Board was satisfied that the third party received notice of the hearing. The matter proceeded primarily by way of an Agreed Statement of Facts followed by concise oral and written submissions. The Agreed Statement of Facts read as follows: 1. In or about June of 1986, the Employer posted an Opportunity Bulletin notifying of a vacancy and a competition for the position of Correctional Officer at the Lindsay Jail. -3- 2. The Opportunity Bulletin contained the following provision: "Area of Search: This Competition is restricted to individuals currently employed within the Lindsay Jail." 3. The Grievor was and is employed as a Correctional Officer 2 at the Millbrook Correctional Centre in Millbrook. 4. The Grievor currently lives in Lindsay, and did so at all times material to the grievance. 5. The Grievor applied for the position in question. 6. Mr. Campbell, the Superintendent of the Lindsay Jail, acknowledged the Grievor's application in a letter dated June 13, 1986 and advised the Grievor that the competition was restricted ~to individuals currently employed within the Lindsay Jail and that his application would not be given further consideration because he was not within the defined area of search. .7. The Grievor .was not given an interview for the position. 6. At the time of the competition, there were 8 Correctional Officers working'as members of the unclassified staff at the Lindsay Jail, most of whom worked on a casual basis and none of whom was as experienced as the Grievor. There were 4 applications for the positions from these and other individuals employed as members of the unclassified staff at the Lindsay Jail. Not all of these applicants were employed as Correctional Officers. However, all of these applicants were interviewed~. 3. A member of the unclassified staff at the Lindsay Jail was the successful candidate;.namely, Mr. Wayne Crosmaz. 10. The Grievor filed a Grievance Form dated June 25, 1986, stating that "this competition violates Article 4 of the Collective Agreement". 11. Article 4 of the Collective Agreement states as follows: / ) 4.1 4.2 4.3 4.4 4.5 -4 - When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service-wide, All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7 (Hours of Work); and the area in which the position exists. In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. An applicant who is 'invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. Relocation expenses shall be paid in accordance with the provisions of the Employer's policy. 12. The policy of the Ministry of Correctional Services is attached as Schedule "A". 13. The policy of Management Board of Cabinet is attached as Sched~ule "B". 14. The Ministry had conducted previous competitions which were restricted to employees employed within the'Lindsay Jail in 1984 and 2 i - 5 - 1985. There were more than 3 applicants in each of those competitions. 15. The Grievor commenced his employment in the classified service in or about May, 1979 as a Correctional Officer 1 at the Millbrook Correctional Centre. 16. Prior to that time, the Grievor had approximately 21 months service.as an unclassified Correctional Officer 1 at the Lindsay Jail. 17. In or about May of 1.980, the Grievor completed his~probationary period and became a Correctional Officer 2 at the Millbrook Correctional Centre. The Grievor has remained in the position at that location. 1%. During the period covering 1980-1985, the Grievor regularly (approximately every 6 months) applied for a lateral transfer to a position at the Lindsay Jail. Such applications.were directed to the Superintendent of the Lindsay Jail with copies to the Superintendent of the Millbrook Correctional Centre. 19. The distance between Millbrook Correctional Centre and the Lindsay Jail is approximately 45 kilometers. Peter Buck, a Senior Ministry Personnel Administrator, was the sole witness called upon to testify. His evidence was of a general nature regarding the corporate and Ministry policies on staffing and areas of search. He testified that during the fiscal periods 1985-86 and 1986-8'7, approximately 20% of all Ministry competitions were subject to geographic restrictions. The Employer. raised a preliminary objection that the Board was without jurisdiction to review what was characterized as management's right to determine the area of search in job ‘1. -6 - competitions. The thrust of the Employer's argument was to the effect that there was nothing in Article 4 of the Collective Agreement which restricts management's right to limit geographically the area of search. The Board reserved on 'the preliminary objection and proceeded to hear the merits of the grievance. In addition, the Employer filed as Exhibits the Parties' submissions during both the 1982 and 1984 collective negotiations. Evidence of negotiating history would. become relevant if the Board was persuaded that Article 4 was ambiguous in any respect or alternatively to found an estoppel. Ms. McIntosh submitted that there was no discusgion during the 1984 negotiations of the inclusion of Article 4.5 upon the determination-of area of search. The Employer relies upon the statutory management rights provision contained in s. 18 of the Crown Employees Collective Bargaining Act. That section merits repetition: 18.-(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of. the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work'methods and procedures, kinds and locations of 2 equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are x -7 - subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. . On the'merits of the grievance itself, the Board makes no attempt to restate the able arguments presented except in summary form. Essentially, the Union's argument was three-fold: 1. The Employer's policy and practice in placing geographical limitations on the area of search for competitions .is contrary to Article 4. Alternatively, it is unreasonable .and inconsistent with a proper administration of thatArticle. 2. Alternatively, assuming that geographical limitations on the area of search are reasonable and not contrary to the Collective Agreement, the grievor in the instant matter fell within the area of search contemplated. j. In the further alternative, assuming that the Union was unsuccessful in the first and second argument, the application of the Employer's policy and practice to the grievor's circumstances was unreasonable or alternatively, arbitrary, discriminatory and taken in bad faith. As indicated previously, the thrust of the Employer's submission was that there was nothing in Article 4 of the Collective Agreement to restrict management's right to limit geographically the area of search. Ms. McIntosh argued that it was the exercise of a "pure" management right under s. 18(l)(a) of the Crown Employees Collective Bargaining Act under which the Board was without jurisdiction to review. The argument was developed under four headings: -8 - 1. The language of Article 4 clearly contemplates the Employer's right to limit the area of search. 2. Alternatively, if Article 4 is ambiguous, its meaning can be resolved by reference to negotiating history. 3. In the further alternative, if the Union's construction of Article 4 is correct, it is estopped from relying upon that construction. 4. In the event the Employer's position is correct, then the right to limit the area of search is a "pure" exercise of,a management right which is not reviewable by the Grievance Settlement Board. Alternatively, to the extent the right is reviewable, the Employer has exercised such right in conformity with the appropriate standard of.review. , Despite the Union's very able submission, this Board is unable to accept the merits of any submissions advanced. The central issue of management's entitlement to restrict the area of search has been considered by a previous panel of this Board. In OPSEU (Yvon Lavigne) and Ministry of Transportation and Communications 561/81, Vice-Chairman Delisle affirmed that right, in the absence of any provision in the Collective Agreement to the contrary. The rationale of that Decision is stated, at least in part, at p. 6 as follows: "We are satisfied here that the employer, given the task of managing public funds, promotes business efficiency by limiting the area of search and we see nothing in the Collective Agreement that in any way limits that.right. Counsel for the grievor suggested that the ability in the employer to limit the search held the seeds for possibility of abuse in that the employer might, prior to posting, regard those who are eligible and then limit the .area of search to ensure awarding the job to is preselected candidate. The -9 - short answer to that possibility resides in the thought that then the employer would be subject then to attack on the grounds of bad faith: in this case no allegation of bad faith was made nor evidence of the same led. We are confirmed in our view of the unrestricted right in management to select the area of seach in the absence of provisions in the collective agreement to the contrary by the presence in the collective agreement in article 24 - Job Security, limitations on the assignation of employees designated as surplus to vacancies within a set geographical area.. .” On application of the Union, the Lavigne decision proceeded to judicial review. In dismissing the Union’s application, Mr. Justice Reid issued then following brief Judgment on March 22, 1983: .“We interpret the Board’s decision to mean that the’ Employer’s right reasonably to limit the area of search rested on s, 18 of the Act (Management Rights) and not on Art. 4.3 of theollective Agreement. We do not read the decision to mean that the Board cons’idered ‘gualifications’ should be interpreted to include’ an applicant’s place of residence. On that basis the Board’s decision did not involve’ an unreasonable interpretation, of the agreement. ’ In the grievance before us, we are satisfied that the right to limit the area of search geographically arises from the statutory management rights provision contained In s. 18(l) of the Crown Employees Collective Bargaining Act. There is simply no provision in Article 4 which in any way limits the right of management to determine the area of search. Moreover, we do not agree with the Union’s contention that following collective negotiations in 1984, the inclusion of Article 4.5 changes the result. Clearly, 4.5 -does not . . i -..; i -lo-. expressly limit the Employer's right to restrict the area of search. In our opinion, the effect of Article 4.5 is to authorize the payment of relocation expenses, if applicable, to a successful applicant. Simply stated, we are not persuaded that the Lavigne decision is manifestly wrong. Inour opinion, that decision, upheld as it was in judicial'review, is an insurmountable barrier to the Union's success. In our opinion, the Employer has an obligation to operate in a reasonably efficient manner. Restricting the area of search accommodates that objective. Similarly, the Board cannot and practice in placing ge~ographical 1 is unreasonable or inconsistent with.t Article 4. agree that the Employer's policy imitations on the area of search he proper administration of This particular competition was restricted "to individuals currently employed within the Lindsay Jail". The grievor was not within the defined area of search. In these particular circumstances, the Employer was j’ ustified in declining to process the grievor's applica'tion. The novel issue said to arise in this case is the standard or scope of review of a management right conferred by statute. Restricting the area of search geographically in a competition is the type of management activity which the Ontario Divisional Court appears - 11 - to agree is within the exclusive function of the Employer as provided in s. 18(l) of the Crown Employees Collective Bargaining Act. S. 18 of the Act makes it clear that those matters within the exclusive function of the Employer shall not be the subject of Collective Bargaining and in particular, "nor come within the jurisdiction of a board". Accordingly, it would be unreasonable and indeed improper, we think, for a Board to hinder or in any way interfere with management rights in those areas of exclusive jurisdiction. For the above reasons, this grievance must be dismissed. DATED at Brantford, Ontario, this ftii day of February,l988. 1 Y -r/-m 1‘ 51 f< - - ._ R. L. VERITY, 'Q.C. -'VICE-CHAIRMAN "I Dissent" (Dissent. attached) I. J. THOMSON-MEMBER A. G. STAPLETON-MEMBER 1 I ‘., AGREED STATEMENT OF,FACTS -; ."",! NW-.. S.ClNJ" *.,. PE-03-01 I PERSONNEL POLICY k PROCEDURES MANUAL’ I o;;‘ovember, ,985 STAFFING AREA OF SEARCH REFERENCE . Manual of Administration, Volume 2, Section 5 PURPOSE . To attract sufficient numbers of eligible and ‘qualified candidates for a vacancy. POLICY/ The Area of Search for Bargaining Unit and Manaeement PROCEDURE ’ 2ecriutmenr up to and mcluding AM-16 The manager, in consultation with the regional personnel administrator, will decide on the area of search based on his/her knowledge of available resources and the guidelines contained in section 5, Ontario Manual of Administration, Volume II. Provided that due consideration is given to these guidelines and to the requirements to kdentify at least three candidates, a manager can select from the following geographical areas of search: - local .- restricted tb employees working in a specifii institution or office - employees residing’within 40 km of work location - regional or ministry-wide - OPS-wide In addition to defining the geographical area of search, a competition may be designated as falling within one of the following three categories - ‘Open’ - such a compedtion is ‘open’ to’all’members of tati general public. As such, all applications should be entertained. However, postings of the competition notice may be restricted. - Restricted to classified employees. - Restricted to unclassified and classi!ied employees of the Ministry of Correctional Services. . The ,4rea of Search far Posirions at :ne AM-17 !PVPI and aoove The area of search for staff at the AM-17 level and above is to be ministry-wide unless otherwlse a,pproved by the .!luman Resources Planning committee. PERSONNEL POLICY & PROCEDURES MANUAL I \ D;;ovember L985 I L. J STAFFING AREA OF SEARCH kontinued) . Applications for Competitions - Staff in Acting Positions. on Secondment or on Temporary .Assignment Staff who are in acting positions, on secondmen: or temporary assignments are eligible to apply for competitions where the area of search includes either their home or assignment location. . .Lateral Transfers --All Classified Staff A11 employees desiring lateral transfers must meet the area of search criteria and enter the competition in .the normal manner. No separate or special interviews are to be considered for staff requesting lateral transfers, except for normal counselling. An employee who is the successful candidate in a competition is l ntiUed to relocation expenses if the normal conditions for such expenses’ are otherwise met. THE S’MFFLNC PROCESS (cent inued) AREA OF SEARCH Definitions: “Area of Search” “Restricted Competfcion’ “Cpen Compctltion’ ) Conoideratfons in Determining Area: Applicants and hrea of Search: The area deemed necessary by management to attract eligible and qualified candidates for a vacancy. A compicfcfon that is limfced to: . civil servants; . employees of those agencies which have a .rcciprocal staffing agreement; and , released employees to whom Ar:lcle i4 of the Working Conditions Agreement and page 5-57-3 of this volume apply - A competition to vhich civil servants, unclassified staff, Crown employees and the public may apply. NOTE: Application of these definitions may change’ due to extenuating circumstances in which case ministries wiLL be so advised by the Civil Service Commission. The follovlng shail .be considered in determining a reason- able area of search; . all relevant Acts, policies, procedures and programs relating to staffing actions; . the size of the candidate population required to identify not less than three qualified candidates; . the need to provide career opportunities for civil servants; . the need, when recruirlng outside :he civil service, to ensure that civil sirvants are given opportunities to apply and to be considered; . the urgency and cost in satisfying the staffing needs of the ministry program. Only applicants from vlthin the designared area of search shall be considered. . 1 5-26-10 3! Aup RL Adn,inistratiOn 60. Employee’s Expense, lb. Relocation Expenses b RELOCATION EXPENSES PURPOSE APPLICATION DEPINITIONS appointee civil servant dependent deputy head employ~ee emplcyee- requested relocation household effects mi:.istry To aaaure a consistent and rational basis for the reimburse- ment of reasonable expenses &ich have been incurred by employees, appointees and, where applicable, their dependents aa the result of changing work location. This policy applies to all ministries, and to all Schedule I agencies and ad hoc bodies unless othervise specified in a Hemorandum of Understanding. (Ref. Hanual ~of Administration, Vol. I, 25-Z) - an individual other than an Ontario civil servant who accepts an offer of appointment to the Public Service. e. an individual appointed to the classified service as a member of the either probationary or regular staff. - any person vho liver vich. an employee, appointee or secoodee and who is either the spouse of the employee, appointee or secondee, a person for whom a personal exemption under The Xncmc Tax Act may be claimed, or an unmarried child, s:ep-child or legal vard vho ia in fuli-time atrendanct at (L school or university, or - any other person designated by the deputy head as a dependent for purposes of this policy. - :he deputy minister of a &nisi:?, or s serior cificia! vho has :he rank and s:arus of e depu:y m:n1s:er, 01 ihe senior adminis:ra:ive officer of a Schedule I age-c: which provides i-5 own adoinisrracive support services. - a civil servant employed by a miairtry or an individual who has pexaoen: eslpieyee sta:ua vith any agency or ad ho; body tom which this policy applies. - a relodatioc resulting from a formal req;rest f~or a transfer made by an employee and no: cJnnec:ed’ti:h ao eap1oymer.c competiiiion. - furni:ure, household equipment and the personal belongings of an eloployee, secondee, or appointee and his/her leoendents.. This does not inciude heavy Or massive hobby or recr~eational items; furniture, supPlies, and household equipment from a rccrea:ional proper?; boats; ~~LDLS; cars: and anv ::ezs used i2 associaci37. virh a second so’(r‘ca of fani!y izlcoue. 63-L-l ! June $3 60. Emalovee’s Ex~ewer L.. Relocation Expenses ministry- a relocar ion, other than a” employee-requested reloca- requested tion, and including a relocation resulting from an relocation employment competition. relocation the transfer of an employee from one place of employent ro another. . secondee a person who is on loan from another public jurisdiction or P private sector employer to provide services to a ministry. POLICY STATYH-ENT PART I - REIMBURSEHENT POLICY 1. General An employee vho is transferred from one place of employment to another at the request of a ministry shall be reimbursed by chat ministry for the relocation expenses incurred in accordance vith’Parc II of this policy. An employee vho is transferred at his/her ovn request, may, at the discretion of the deputy head, receive partial reimbursement for his/her relocation expenses, in accordance with Part 111 of this policy. The relocation expenses incurred by appointees and.secoodees shall be reimbursed in accordance vith Part SV of chls policy. In all cases, the aim shall be to effec: the relocation at the least cost co the government consis:ent vith the objective of fairly compensating the individuals involved for the relocation expenses +.ich they incur. . Elizibiliiv 1~ order for =r~ employee to be eiigibie for :he .reinbursetint critera of relocation expenses all of rhe following conditions shall have been met: (a) the road dis:ance between the old and new place of employment shall be at least forty kilometres; and (b) the road distance betweep the m?loyee’s new residence and the new place of emplo~ent shall be e: least fcr-.y kilometres less.chan the road distance be:veen :he e=ployee’s previous residence and :he new place of emplo~ent ; and (c) the expenses related to the re!ccz:ion :ransac:ion s’ha!l ’ have been incurred within oae yea? of :he iare Oi :rans:er’. NGlE : when the spouse of a rransferred employee is’ aiso a gwernmenc enpioyee, nir.istries sho~:d ensure thr: :he sane expenses are nor reimburse< LO ‘both ez.plsyees. 60-L-2 1 Juze E3 -i, .Z-RZ Unlarto ?I\ Manual 01 - Administration c 60. Employee’s Expenses 4. Relocation Expenses 3. Delegation of Authoritv L. Submission of Claims Unless specifically noted to the contrary,’ any approval or discretionary authority vested in the deputy head under this policy may be delegated, provided that such delegation shall be properly documented. Except for mover’s Charges .tiich normally should be paid directly by the ministry, claims for allowable relocation expenses shall be submitted on,a Srarement of Travelling Expense form prepared and approved in accordance with the policy on Travel, tfeal and Hospitality Expenses (Ref. manual of Adminiscrotion, Vol. I, 60-Z). Appropriate invoices and receipts shall be arcached. Uiniscries shall, make every ef for: to complete and close an employee’s relocation claim file as sooo as possible after the move has taken place. PART II - MINISTRY-REQUESTED RELOCATIONS 5. General Within the limits outlined in this part of the policy, employees transferred at the request of a ministry shall be eligible for the reimbursement of the relocation expenses which are incurred. 6. Trips to An employee and his/her spouse may, at the discretion’ of the Locate deputy head, be reimbursed for travelling expenses incur:ed Accormrroda:ion on a trip made in the uost economical and practical manner for the purpose of locsring suitable living accommodation near the new place of empioyment. Normally, only ooe such trip, not exceeding seven days in duration, shall be alloved per transfer. Roveve:, the deputy head nay duchorite opre than one trip if this is considered co be more ecoaomi:al (e.g. tiea overaighc accmadacion is sot required 1, or when circuns:rnces make this necessary say ether reason. 7. Shiraoe?: cf ‘ieimbursement of the folloving ex?nses is pedssible i :iousehoid :onnection tith the relocation: Efiec:s (a) ?lovin$ - the cos: of c,rating, pecking, uoving and unpacking ollovable household effects and reasonable insurance coverage against loss or damage in tram::. Note: The services of a sxwing firs shall be obtained in accordance ;ri:h :he policy on Compe:irive Turchasing (Ref. Vanutl of Adrinisrration, Vol. 1, 35-L); (b) Storage - cb&ges for the s:orage of household effec:s ior cp :o thirty de!.s. Sore: Addiriona: 5:orag.e chzr6es my ‘02 reidursed on:! vlth :he prior vritren apprsva: of ihe ie?uzy hesd; 60-b-3 1 June 63 =. --.,. DISSENT ;..+ RE: 660/86 OPSEU (L. Cripps) and the Crown in Right of Ontario <I* (Ministry of Correctional Services) L regret L cannot agree with the majoricy decision in this matter. While cha Employer may have the ri&ht to limit the area of search suck rule or limitation should not: be made in an arbitrary or unreasonable lMll”et. How can anyone say.tha; the decision made by Yanagement in this insrance is not unfair. . . The grievor made an application to the Superintendent of the Jail advising him that he is inceresred in a position at the Lindsay jai!, if en opening occurs. he re&+ this application every six months during the period 1980-85. : An opening occurs and is Limited co:employees working ac the Jail, at the present time. Tke onIy people eligible to, apply under these rescrlcrions are-in tbe unclassified service. The grievor has been in the classified service since 1979, and is required to travel 90 kilometres a day. How can this be considered reasonable? It seems to me that they acted in a most discriminatory manner towards the grievor. No additional reIocating expense would have been involved, since the grievor is already living in the Town where cbe job was located. It has b&en established many times that Hanagemenc muit exercise their rights in a fair and equitable manner. It certainly has not done so in rhis instance, land the grievor should be awarded the job,. since he was the only one qualified under Article 4.3 of cha CoLLecciGe Agreement.