HomeMy WebLinkAbout1986-0694.Union.87-05-28BETWEEN:
IN TBB MATTER OF AN ARBITRATION
UNDER
TRE CROUN EMPLOYEES COLLRCTIVR BARGAINING ACT
BEFORE
TRE GRIEVANCE SETTLRHENT BOARD
OPSEU (UNION GRIEVANCE)
0694166
Grievor
TRE CROWN IN BIGBT OF ONTARIO
(MINISTRY OF TRANSPORTATION ANU COWURICATIONS) Bmployer
BEFORE: R. 1. Verity. Q. C. Vice-Chairman
I. Freedman Member
L. 8. Turtle Member
FOR TIE UNION: .I. Masher
Counsel
Corling and Benderson
FOR TBB EMPLOYER: R. B. Cribbie
Staff Relations Advisor
Ministry of Transportation and Communications
BEARING: April 6, 1987
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DECISION
A broadly worded Union Grievance dated June 18, 1986
alleged that the Ministry violated several provisions of the
Collective Agreement by its "failure to notify the Union of surplus
situations such as, but not limited, to the circumstances
surrounding the surplus declaration and subsequent assignment of
Ms. Diane Biernaskie:..".
No oral testimony was presented. The hearing proceeded
by way of an Agreed Statement of Facts and oral submissions.
The Agreed Statement of Facts read as follows:
1. At all times material to this matter, Diane
Biernaskie was a member of Local 443 of the Union and was employed by the Employer.
2. At all times material to this matter, Eladio Nery was a member of Local ,542 of the
Union and was employed by the Employer.
3. By letter dated May 12, 1986, the employer
gave to Diane Biernaskie notice of her status as a surplus employee and of her reassignment
to a Senior Accounts clerk position in the Bancroft District Office. This.letter will be
made an exhibit in this hearing.
4. A copy of the'letter referred to in
paragraph 3 above was not copied to the Union.
5. By letter dated May 28, 1986, the Employer gave to Eladio Nery notice of his status as a surplus employee and of his reassignment to the
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position of Downsview Supply Clerk, effective
June 2, 1986. This letter will be made an exhibit in this hearing.
6. A copy of the letter referred to in paragraph 5 above was not copied to the Union.
The letters referred to above merit repetition:
"D. Biernaskie Driver Examination Centre Bancroft May 12, 1986
'From: Executive Office
Eastern Region, Kingston
This memorandum is to confirm your discussion with R. A. Brannen regarding the abolition of
your position and your status as a surplus employee under Article 24 of our Collective Agreement.
In accordance with Article 24, Section 2.1, we are taking action to assign you to a vacant Senior Accounts Clerk position (Clerk 3, General) in the Bancroft District Office, effective May 20, 1986. Please note that
Article 24, Section 4, is activated if you do not accept this assignment and your date of layoff will be June 13, 1986. Article 24, Section 14.1, will then come into play.
Although we regret that constraints necessitate
taking this action, we are relieved that there is an opportunity to place you at your current level.
Please indicate your acceptance or refusal of
this assignment on the attached copy and return.
J. L. Forster Regional Director
I accept/refuse this assignment.
'D. Biernaskie' ‘May 14/86’ D. Biernaskie Date”
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TO: Mr. Eladio Nery Date: May 28, 1986 c/o Central Stores, Room 101,
West Building
From: Tim Schentag Human Resources Officer Human Resources Branch
Re: Position 06-6226-64
Downsview Supply Clerk Clerk 2 Supply
As a result of an operational review conducted as part of the Supply and Services Branch re-organisation, Branch Management has
identified that your position as New Licence Plate Clerk (Position 06-6226-68) be abolished. This decision has been made in
order to better utilize resources and improve operations and services to user areas. Thus, it has been necessary to declare you as a
surplus employee.
I am pleased, however, to inform you that you are being appointed to the position of
Downsview Supply Clerk in the Purchasing and Supply Office, effective June 2, 1986. This appointment is being made in accordance with Article 24.2.1 of the Collective Agreement (a surplus employee assigned on the basis of
seniority). Your new classification will be
Clerk 2, Supply. However, in accordance with Article 5.5.1 of the Collective Agreement, you
are entitled to salary protection at your present rate of $11.34~per hour until such time as the maximum salary of the Clerk 2 Supply classification meets or exceeds this pay level. YOU should note that if you decide to reject this appointment, itwill be necessary to release you from employment persuant to Article 24.4 of the Collective Agreement.
Yours sincerely,
Tim Schentag
Human Resources Officer Human Resources Branch
Please indicate your acceptance/rejection of this offer and re'turn one copy to Tim Schentag.
I accept this assignment Eladio Nery Without prejudice to my rights. EN
I refuse this assignment "
Both Ms. Biernaskie and Mr. Nery accepted the
reassignments offered by the Employer under Article 24.2.1 of the
Collective Agreement.
The Article in dispute, namely Article 24.10 reads in its
entirety:
24.10 An employee shall receive a notice of lay-off or pay in lieu thereof as follows:
(a) two (2) weeks' notice if his period of
employment is less than five (5) years;
(b) four (41 weeks' notice if his period of employment is five (5) years or more but less than ten (10) years: and
(c) eight (8) weeks' notice if his period of
employment is ten (10) years of more;
with copies of such notice to the Human Resources Secretariat and the Union.
The issue is whether the Employer violated the provisions
of Article 24.10 by its failure to send copies to the Union of the
Biernaski and Nery letters. In other words, did the letters
constitute notices of lay-off as contemplated by Article 24.10?
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The Union's argument was two-fold: First, both letters
constituted notices of lay-off. Secondly, in the event the letters
could not be so characterixed, the Union as the exclusive
bargaining agent should have been notified of the surplus
I declarations and reassignments. The Employer contended that the
Union had no entitlement to notification until such time as a de
facto lay-off had occurred.
To understand the issue, it is helpful to set out certain
relevant provisions of the Collective Agreement.
"ARTICLE 24 - JOB SECURITY
24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organisation, the identification of a surplus employee in an administrative district or unit,
institution or other such work area and the subsequent assignment, displacement
or lay-off shall be. in accordance with seniority subject to the conditions set out in this Article.
24.2.1 Where an employee is identified as surplus he shall be assigned on the
basis of his seniority to a vacancy in his ministry within a forty (40) kilometer radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his * . classificatron, as follows:
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- a vacancy which is in the same class
or position as the employee's class or position; - a vacancy in a class or position in
which the employee has served during his current term of continuous service; or
- another vacancy.
24.2.2 With mutual consent, a surplus employee shall be assigned to a vacancy in his ministry beyond a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not
greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification.
Relocation expenses shall be paid in accordance with the provisions of the Employer's policy.
24.2.3 Where an employee has not been assigned in accordance with subsections 24.2.1 or 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification, as follows:
- a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous
service; or - another vacancy.
24.4 An employee who does not attend a
placement interview when requested by the Employer or who does not acceptan assignment in accordance with sub-sections 24.2.1 or 24.2.3 shall be laid off and the provisions of Sections 24.5 and 24.6 shall not apply.
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24.5
Where an employee has not been assigned
to a vacancy in accordance with sub-sections 24.2.1, 24.2.2 or 24.2.3, he shall be subject to lay-off in accordance with the following applicable
sections.
24.6.1 An employee who has completed his probationary period and who is subject to lay-off as a surplus employee, shall have the right to displace an employee who shall be identified by the Employer in the following manner and sequence:
(a) The Employer will identify the employee with the least seniority in the same class in which the surplus employee is presently working and if
such employee has less seniority than
the surplus employee, he shall be displaced by the surplus employee provided that such employee is in the
same ministry and within a forty (40) kilometre radius of the headquarters
of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee:
(b) If no employee in the same class has
less seniority than the surplus employee, the Employer will identify the employee in the class in the same class series immediately below the class in which the surplus employee is presently working who has the least seniority and if he has less seniority than the surplus employee,
he will be displaced by the surplus employee provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee:
(c) Failing displacement under (a) or (b) the Employer will review the classes in the same class series in descending order until a class is found in which the employee with the least seniority in the class has less seniority than the surplus employee.
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In that event such employee will be displaced by the surplus employee
provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such
employee:
(d) Notwithstanding the above, in the event that there are one or more employees in one or more classes in another class series in which the surplus employee has served during his current length of continuous service who have less seniority than
the surplus employee, the surplus employee will displace the employee with the least seniority in the class with the highest salary maximum (no greater than the current salary maximum of the surplus employee's
class) and provided that the surplus employee has greater seniority .than the displaced employee hereunder, provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee.
24.6.2 Any displacement shall be limited to a class which has a salary maximum no greater than the maximum of the surplus
employee’s current class and section 5.5
of Article 5 (Pay Administration) shall not apply.
24.7 Where no displacement is possible under section 24.6 or where the employee chooses not to exercise those rights, he shall be laid off.
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24.8 The employee must indicate in writing to the Director of Personnel his intention to displace another employee as far in advance as possible but not later than two (2) weeks in advance of his date of lay-off. If he does not indicate his intent to displace another employee within this period, he shall be deemed to
have opted to be laid off.
24.9 An employee who is displaced by an employee who exercises his right under Section 24.6 shall be declared surplus and the provisions of Article 24 shall
apply.
24.10 An employee'shall receive a notice of lay-off or pay in lieu thereof as
follows:
(a) two (2) weeks' notice if his period
of employment is less than five (5) years:
(b) four (4) weeks' notice if his period of employment is five (5) years or more but less than ten (10) years: and.
(c) eight (8) weeks' notice if his period
of employment is ten (10) years of more;
with copies of such notice to the Human
Resources Secretariat and the Union.
24.11 When notice is given pursuant to Section 24.10, the Director of the Staff Relations Branch, the Director of Personnel of the Employees' Ministry and a representative of the Union, or a delegate of any of them, shall meet within one (1) week of receipt of the notice or within such longer period as is agreed among them, to review the matter
in relation to the possible re-allocation
and re-training of the employee as an alternative to lay-off. In no case will the Employer train a new employee for a vacancy or a new position where there is a surplus employee who has not been assigned under any other provision of this article or any person who has
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rights under Article 24.15.1 who could -qualify for the vacancy through the same training program, and where that surplus employee or other person agrees to accept the re-training in lieu of all other rights set out in this Article.
'24.14
It is understood that when it is necessary to assign surplus employees in accordance with this Article, the provisions of Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply.
24.17 For purposes of Article 24 lay-off means the same as release as per Section 22(4) of The Public Service Act, Revised Statutes of Ontario, 1980, Chapter 418."
"ARTICLE 27 - GRIEVANCE PROCEDURE
27.15 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement."
Article 24 governs the rights of employees identified as
surplus employees. Both Diane Biernaskie and Eladio Nery were
declared surplus employees in accordance with Article 24 by reason
of the abolition of their positions. Both employees were offered
re-assignments in lieu of lay-off. Both accepted the subsequent
re-assignments.
Article 24 provides employees identified as surplus
employees with certain rights of subsequent assignments to vacant
positions on the basis of seniority. This Articles requires the
employer to assign a surplus employee to a vacancy provided the
employee is qualified to perform the work and the salary of the
vacant position "is not greater than three percent (3%) above nor
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twenty percent (20%) below the maximum salary of his
class ification":
i) in the same Ministry, within a forty (40) kilometre radius of his headquarters (Article 24.2.1), or
ii) with mutual consent, in the same Ministry, beyond a forty (40) kilometre radius of his headquarters (Article 24.2.2), or
iii) where no assignment has taken place, in another Ministry, within a forty (40) kilometre radius of his headquarters (Article 24.2.3).
Article 24.4 makes it clear that an employee who refuses
an assignment under 24.2.1 or 24.2.3 "shall be laid off".
Alternatively, an employee identified as a surplus
employee, has certain displacement rights as specified under ,
Article 24.6.1. An employee who is either unwilling or unable to
exercise displacement rights under Article 24.6.1 is laid off under
Article 24.7 or 24.8. The issue of displacement rights does not
arise in the circumstances of this Grievance.
The Union relied upon the rationale of Vice-Chairman
Samuels in OPSEU (P. Mitchell and Union Grievance) and Ministry of
Government Services, 1614/85 and 1615/85. At p. 7 of the Decision
the following comments were made:
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11 . ..Article 24.10 require the employer to send a copy of the notice of impending lay-off to the Union. The evidence at our hearing showed clearly that the Ministry failed to give the
Union a copy of the lay-off notice to Pamela Mitchell and it was agreed that the Union did not
get a copy of the notice to Ronald ,High. This is of serious concern to the Union because the Union
offers help to surplus employees, and this assistance is triggered by the notice of impending lay-off. Without a copy of the notice, and unless the employee goes to the Union, the Union will not have the opportunity to offer its help. The Ministry.violated Article 24.10 of the collective agreement. We hope that hereinafter the Ministry will take care to give the Union notice of impending'lay-off of surplus employees, so that the Union can provide its services effectively to bargaining-unit members."
In our opinion, the Samuels Decision can be distinguished
on the facts. In that case, no assignment was made after the
designation of surplus employee status.
On the facts of the instant Grievance, it cannot be said
that either Diane Biernaskie or Eladio Nery has received a notice
of lay-off. The letters identified the surplus employee status and
advised of appointments to subsequent assignments. Both letters
refer to lay-off simply to point out the consequence of failure to
accept the assignments offered under Article 24.2.1. Accordingly,
neither letter can be characterised as a notice of lay-off in order
to trigger the provisions of Article 24.10. However, that Article
would indeed be triggered had either employee rejected the offer of
subsequent assignment. In our opinion, the notice provisions of
Article 24.10 have no application until the provisions of either
Article 24.4, 24.7 or 24.0 have been activated.
While it might make good sense from a labour relations
standpoint to provide the Union with copies of each letter of
surplus employee status
under any existing prov
course, be addressed in
I there is simply no requirement to do so
ision of Article 24. This matter can, of
subsequent collective negotiations. For
all of the above reasons, this Grievance must be dismissed.
DATED>at Brantford;Ontario, this 28th day of ~~~
A.D., 1987.
R. L. Verity, Q.C. - Vice-Chairman
I. Freedman - Member