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HomeMy WebLinkAbout1987-2315.Smith.88-09-21IN THE HATTER OF AN ARBITRATION Under THE CROUN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SktiL;EKENT BOARD Between: Before: For the,Grievor: 4 For the Employer: Hearing: OPSEU (Orville D. Smith) and The. Crown in Right of Ontario (Ministry of Transporcacion) N.V. Dissanayake : Vice-Chairperson 5. McManus Member D. Andersen Member N.A. Luczay Grievance OEficer on~tario Public Service Employees Union M.A. Smeaton Staff Relations Advisor Human Resources Branch Ministry of Transportation May 11, 1988 2315187 Grievor Emplo,y$r .~.. -i- DECISION This grievance relates to the rights of the ariev~or to be recalled to seasonal employment pursuant to article 3.20.1 of. the collective agreement. That .- article reads as follows,: Seasonal employees who have completed their probationary period shall' be offered employment in their f outer positions in the following season on the basis of senicrity. The facts relevant to. this Grievance a:e nc,: in dispute in any material respects. Dui-ing the winter seasons November 1985 to April 1986 and November lcS6 tc April 1987, the grievor was employed by the Ministry as a seasonal employee in the classification of Fiieavy Equipment Opera?or 2. The grievor's job involved th.e. operation of a snow plough within the Kinistry's Patrol 9 drea in k'awa Ontario. The parties agree that by virtue of this employment the grievor had completed his probationary period within the meaning of article 3.18 ->., of the coilective agreement. ,, :+he seasonai employments in qurstion.runs usually / from November to April. In 1987, sometime prior to' November the hinistry decided to contract out the snow plowing functions. Sometime in late October i?S7, the ?lir.is.try' 5 >..re= .Pstrol supervisor mc't the grie;or and i -j- replace an employee who was gcing on maternity leave and inquired if the grievor was interested. This employee was E. Christiansen, who uniike the grievor, was a permanent employee. Her job was mainly office type work. although she also performed some labour duties ,.i and occasionally was required to drive a truck. Her position was classified as "Manual Worker Premium". I? is agreed that the grievor had no recali rights tc Ms. C,hristiansen's job and that the offer made by the. Ministry was purely gratuitous. BY this rime rrhe grievor had heard (not officially) about the decision to coniraci out the snow ploughs and was not expecting to be offered the job he had done the two previous winter seas0r.s. Nevertheless, he declined the offer of Ms. Christiansed's job, mainly because he did not like the paper wor~k involved in that job. Subsequently on October 19, 1987, another seasonal emplcyee, Peter Russ, who had less seniority than the griever, was appointed to Ms. Christiansen's job. In the normal course, Ms. Christiansen's replacement would have been appointed to a classification of Heavy Equipment Operator 1, which was. tte seasonai employee equiva1er.c c f h 5: L' cisssifica:icn. However, thz Area Patrol Supervisor anticipated tha: . . despite the ava ilabi lity of the contract ploughs, there would be a need for a spare plough: The managemer.: decided to use Ms. Christiansen's replacement as the spare plough operator asand when needed. Since Peter Russ was qualified to operate a plough., in order to give itself the flexibility of using him on the spare plough, then Ministry appointed him to a position classified as Heavy Equipment Operator 2. instead of i. OXI Novemixr 16, 198Si. the grievor wrote to management inquiring whether he. can expect- to be recalled to the job he had done the past two seasons. The Ministry rePlied on November 26th that "other than the temporary job replacing E. Christiansen~ who is away Or: maternity leave we will not be hiring anyone this winter". The gri evor filed the present grievance dated piovember 24, 1987 that "I have. not been recalled in acccrdance with the collective agreement". Shortly after the grievance Was filed, namely on November 30, 1987, Peter Russ was reclassified down to a 2 Heavy Equipment Operator I and performed strictly Ms. Christiansen's duties until April 30, 1588. The union SUJgES;;' . t>a: t;-.is reclassificarion xas a resul: ci ?:L fiiing of the grievance. However. the Ministry's hrea .~ Patrol Supervisor testified that Russ was reclassified for other reasons. Although the Ministry bad anticipated a need for a spare plough in October and early November there was very little snow. blso the' ~spare plough was being used by other patrols as well. The Ministry found that the arrangement was not working out because when there was snow the spar? plcugh~was not available and when it was availabie at Pat.roi 9 there was no snow. According t0 tklr Ministry it was this situation that caused it' ti CT.2 ____.. __1 *L O".aZ "*LA. ttz z;;rc plough, which in turn made it unnecessary to have Russ ciassifird as a Heavy Eq-ipment Operatcr 2. The union's contention is that the Ministry had a need to empioy a Heavy Equipment Operator 2 for at least part of the winter season 1987/88 and that since the grievor had worked as a Heavy Equipment Oparatcr 2 the twc previous KiiiterS, under article 3.20.: the Kinlstry ras obligated to offer that position to the grievor who was more senior than Mr.-Russ. The ministry contends that the position to which Russ was appointed was ~primarily~~ Ms; Christiansen's Ministry submits that the grievor's former position, disappeared as a result cf the contracting out and tha~z therefore the grievor had no "former position" to claim. under article 3.20.1. In reply the union contends thar the positio?. Russ occupied was not Ms. Christiansen's position but a separate Heavy Equipment Operator 2 pcsition the Ministry created in the patrol area. Since it was a position with the same classification as the grievor's former position, the union claims that the grievor had rrcaii rights i0 that pssitix.. I;, --).'*- ..*r .*,.* that claim the union submits that it was "equating ‘classification' with ‘position'". The union relies on the decision of this Boar5 in W; Fxniss and MNR, 602/86. In that case the Board was Cal-led upon to decide what the word "position" in articles 3.18 and 3.20.1 (the .article we are concerned xit:. he:e) means for the purpose of determinizz whether the grievor there had completed the probationary period. The employer's position was summarized by the Board in the following passage. . The interpretation .urged upon tis by the employer'is a narrow one. We are urged to hold that in the case of the Grievor, he worked in a.~ different position in ,each cf t'.;:--. 1983, 1984. i9Y5. it is sl:oqzs:ed that to '-0 a Park Waraen In Aigonquln Park is nor. cn= same position as,to be a Park Warden ir. eith-ez of Sibbald Point Provincial Park 01' Eakabei:; . Falls Provincial Park. Indeed, it was submitted to us that it is a differsni pcsition to be a Park Warden at the East Gate Of Algonquin Park than it is to beg: Park Warden at the Western Gate of Algonquin Park. In other words, we are urged to find that a position in this context refers to a specific location within a specific organizaticnal branch, where duties are performed that may be simiiar to duties performed in other "positi~ons". It was submitted to us that this interpretation is consistent with the traditional usage of the word "position". The Board concluded as follows: Our decision on this issue will have considerable impact upon the level of job s*c'&.r;ty ta SC er.jq.el I>;' rcz--r.zl o--7 -,.a0c -... r--~ ---. If the employer is correct, then an employee would never pass the probationary period of two years if he worked as a Park Warden in successive years in every park ins the Province. It would also be ape= to the employer to hold back seasonal empicyees from obtaining any seniority, by refusing tc assign them to precisely .the same jot2 position in the same location in .any th.0 consecutive years. This does not make a lot of sense from either the employee's or the employer's point of view. Since the purpose of a probationary period is to have a long enough oppcrtunity to observe the perf crmsnce 01 2 car.ei~.ate, ir dces not necessarily follorr that the employee must' be performing throughout thar period of time in the same location. .It.vould give the employer a 'sufficient opportunity ., .,. to assess the suitability of a ..candidate so long as he is performing essentially the same job, and so long- as the appraisals of the employee’s performance were conducted.,...by SOnlronr in a good position to observe' that performance. We agree with the Furniss decision that for article 3.20.1 to apply, the grievcr's. former pcsition need not havi 'bee., 11; it** exact ~shni~ ibia:~u;i. . However, we do not agree with the union that t?.; word "position" in article 3.iC.i means the sams as "classification". A Classification includes a bundle of duties and responsibilities, usually requiring similar qualifications, skills and abilities. A classification is.broader thank a position. A single classification may encompass a number of positions. Each position may include some combination of the d-ties from witbi~n ~k2 ,-,. ;:~ / bundle of duties in that ciassification. Thus two employees may be identically classified dlJt may be . performing completely different duties. in~articla 3.2C.l the emnioyee's right to retail is tc his "former position". Tile wart "ciassificatio-" . . is oni weii knowr. to parties and it has been used in numerous other places in the collective agreement. Ir: the parties, intended to extend a right of recall to ar.y position in ~cha ., classification in which ~the 2E!g:0yi2 ha:. previously worked different language wouid have been cse,d. The f: I_~. article as it is presentiy worded .cannot reascnably be interpreted in. that manner: 4 While we agree with the Furniss decisior. that the position need not'be in the same location, we would add that it is also.not necessary r%?.: for nrr:c:e 3.25.: '.I ~'~ ~" ap>ly the dxcits ami respCnSibi1~i:ic.S i!l E,".r pCSitiPfi5 _- need net be identical. There may be numerous business and practical reasons why the duties and responsibilities in a position may change somewhat from year to year. If the Board ads.ots a test requiring identical duties, seasonal employees may be denied their seniority and recall rights unreasonably simply because some minor changes in duties in the position. The reasoning of th? Board in Furniss, is rejecting ihe "same locaticn" requiremen: is ec-ualiy applicable nere. However. we are of the.) view that the phrase ';for,mer position" ins article 3.20.1 car.30 t. reasonably be interpreted so broadly as to giva an employee a rocal rig!:'; to "any .nosirion within his fcrxcr classification" as the union urges the Board to do. On the contrary we are of the view that the words "their former positions" refers to the position that the empioyec performed in the previous sea'son. .- In determining whether a position-is the grievor ' s former position some latitude must be allowed for minor A differznccs. In c'lr view rk,e tesr is whether or not the substance of the duties and ~ , responsibilities are sufficiently similar. This of hpply,ing that test TC t.f,< f2.z:~ b-f-r2 "3, --,_ grievor *s fcrmer position invclved 2:' net _ _ ~~oCs~;y, at least mostly, the operation of a snow-gioug?.. That -&as the primary function of his position. On the ccr.-.rary, the position that fuss occupied'vas primariiy concerned with the duties previously performed by Es. Christiansen. It consisted of a substantiai amount of office type work, some lab,our work and the occasional operation of the ‘spare *ncy alor: 02 a:, "es nrsiei." basis. The evidence was that the Ministry anticipated a need for the use of a spare snow plough about once or twice in a two week period. Thus ic formed an insignificant propcrtion of I: k i rota: i72t‘_es cf CT-E .position. The evidsxcs establishes :l-.ar the primary purpose of hiring Russ was tc replace X5. Ctristiacsen who UES cz materzit;' ie:a*Ji. j;hilC th: x:ifiisrr;- filz the need fcr a spzre plo,Jgh, the grievor's fsrmir, job which was concerned solely with ti-.d on;raticn cf a snow ploug,. h&d become unnecessary as 2 - -i. rssLl.s Of iiii contracting out. Ghile the union suggested that the contract out in question was .-. ~~~eqk.; ad .ii,a: "A- contract out cannot take away the seni~ority rights off employees" that is not a maccer tr.ac the Board can address in this grievance. :: position' within chi meaning of articie 3.ZC.l. a! th$ czztrary te was occ.JpyinS Ms. C~.~is~iar4st~'s pcsicioa k'i?ii!-. ha< bear, reclassified upr;ard to allow the added fxzziofi ci cperazing a Spars‘ ;ix;'.-. ai a,: -y*';> e ;. r-;;.;;re.+. Ecr aii of x:le foregcinO rtasors, this .grievar.ce 5s he:tby 5isxissel. Dated this 2lst day of September, 1988 at ?6ronto, Ontario. 1.-G-,>, y. -’ _._...-d “issa~~ay=%o Vice-Chairperson "I dissent" (Oissent attached) Coilfi l.:ci\iaLUS Mezber -",' Debbie hndersen. Member DISSENT I have read the majority award, but find that I must, with respecf~, dissent for reasons that follow: The facts of the case are straightforward -- that on the date of October 19, 1987 a Mr. Peter Russ was hired by rhe Ministry; his position was that of H.E.0.2. During this time a Mr. Orville D. Smith, a seasonal employee, wi.th the classification of H.E.0.2 was awaiting recall, the provision of the coilective agreement is quite simp~le, and unambiguous. Article 3.20.1 Job Security. Seasonal employees who have compleked their probationary period shal1 be offered employment in their former positions in the following season~on the basis of seniority. The facts.,.are not in dispute, (a) That Mr. Smith had completed his probationary period. (b) .Mr.,Smith had.more seniority than Mr. Russ. (c) A position of~an H.E.0.2. was in fact activated. This is on record. The testimony of Mrs. Tomie, an,,employee of the Ministry in the Accounting Department at the office at Sault Ste. Marie, confirms that the rates and the conditions described in the collective agreement for the position of H.E.0.2 were paid to Mr. Russ scarring on;October 19, 1987. (d) The word SHALL ins article 3.20.1. upon the plain reading of the language should be as mandatory. ._ . ..I2 - 2 - Taking all of the above into consideration, one can only assume that management has erred in not offering the position to Mr. Smith, regardless of the circumstances surrounding the hiring. The facts are: that management did on October 19, 1987 choose to fill a position of an H.E.0.2:with an employee other than Mr. Smith, and by so doing, have undermined a most important section of the coliective agreement -- Job Security provision of the Seasonal Employee. The grievor should have been recalled, and if at a later date there was to be a demotion co the position of H.E.O.l. he would have had to make his own choice -- to stay on or leave the employmenr of the Ministry -- but that was his decision, and his alone to make. He was denied the opportunity to work from October 19;1987 thru to April 30, 1488 and should be compensated for that period of time at the applicabie rate and any benefits involved, and I would have so ordered and upheld the grievance. .‘;: J6hn D. McManus J Board Member