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HomeMy WebLinkAbout1990-0663.Fox.90-12-17BETWEEN BEFORE: FOR THl$ GRIEVOR FOR THE EUPLOYER HEARING: October 4, 1990 663/90 IN THE NATTRR OF AN ARBITRATION Under THE CROWN BMPLOYEES COLLECTIVR BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD OPSEU (Fox) - and - Grievor The Crown in Right of Ontario ' (Ministry of Correctional SeJXiCeS) Employer M. Wright J. C. Laniel D. Montrose Vice-Chairperson Member Member M. Bevan Grievance Officer Ontario Public Service Employees Union J. Ravenscroft Negotiation Officer Human Resources Management Ministry of Correctional Services DECISION, The Ministry of Correctional Services made 2 assignments involving 2 Correctional Officers in connection with an experimental pyogram called the Electronic Monitoring Program at Mimic0 Correct- ional Centre. The Union contends that the assignments should have been posted pursuant to Article 4.1 of the Collective Agreement and that by failing to do so the Employer is in breach of the Collective Agreement. It is the Ministry's contention that posting under Article 4.1 is not called for by the Collective Agreement by reason of the provisions of Article 6.6.1 and 6.6.2 of the Collective Agreement. Article 4.1 reads as follows: 4.1 WhenavacancyoccursintheClaasifiedServicefor a bargaining unit position or a new classified posi- tion is created in the bargaining unit, it shall be advertised foratleaatten(lO)workingdayspriorto theestablishedclosingdatewhenadvertisedwithin aministry,or it shallbeadvertisedforatleaatfifteen (15) working days prior to the established closing datewhenadvertisedservice-wide.Allapplications willbeacknowledged.Where practicable,noticeof vacancies shall be posted on bulletin boards. The Union did not lead any evidence in support of its contention. The Grievor, Fox, did not testify and we were not told .in what way she was adversely affected by the Employer's conduct. We are proceeding, however, on the assumption that Fox is employed at the Mimic0 Correctional Centre and that she claims that she J - 2 - should bye considered as a potential candidate to fill one of the 2 assignments hereinbefore referred to. The facts as they came out of the evidence called by the Employer are interesting; / The Ministry called Mr. Ian Hadden to testify. Mr. Hadden is the Deputy Superintendent at the Mimic0 Correctional Centre. That Centre is a medium security institution which is located in an industrial area of Etobicoke. It is the only one of its kind within Metro To,ronto and serves the Metro region in the administration of the Ministry's Temporary Absence Program (T.A.P.) T.A.P. plays an important role where inmates are given "intermittent sentences" which means that they may serve their ,sentences on a partial week basis, mainly on weekends. The Ministry decided to test a novel electronic monitoring project. The idea behind the electronic monitoring project is that it serves as an alternative to incarceration. The Ministry decided late in 1988 to experiment with the program to see if it warrants consideration as a permanent part of the T.A.P. program. Offenders are asked to volunteer for participation in an electronicmonitoring program. The. electronic monitoring equipment consists of a tamper-proof bracelet or anklet to be worn 24 hours a day by the offender. The equipment is "locked into" the telephone system in the offender's home. A computer makes random calls to the offender's home and the offender is then required to talk to the - 3 - computer on the telephone. The object is to make sure firstly, that the offender is at home at certain times and, secondly, to check whether his speech is slurred -- possibly indicating use of alcohol or drugs. We were told that the equipment is operative within a radius of 150 feet of the offender's home so that he may receive the signal of the incoming telephone call while in his backyard and still be able to respond to it. Before undertaking experimentation the Ministry held meetings with various law enforcement agencies. The idea of the project had been mooted in general discussions for some 3 or 4 years, between 1986 and 1989.. In 1997 British Columbia instituted a pilot project of this kind and it has also become operative in several jurisdictions in the United States. The thinking behind the program is that it would serve as an alternative to incarceration which, if the program should be successful, would make it attractive from the point of view of the inmate as well as of the Ministry. In September of 1988 Cabinet approved the undertaking of a pilot. project and Mimic0 Correctional Centre was chosen for this purpose. In October of 1988 tenders went out regarding the equipment. Policies and procedures were established and by March of 1989 a supplier of equipment was given a contract to manufacture the materials needed for the experiment. On November 24, 1988 Mr. R. P. Barrett, Superintendent of .the Mimic0 Correctional Centre sent a memorandum to "All Staff" of - 4 - the Centre in which lie explained the project as follows,: MEMORANDUM TO; AI1 Staff FROM: 1 Hr. R. P. Barrett, Superintendent Mimic0 Corr.ctfonal centre sDsJEcTr sIacmow1c nolmrmIwc PmJScT on Is0vemb.r 1, 1988, the Ninistry of Correctional Services aMOUnCed that a pilot project is to be undertaken to test the use of electronic monitoring equipment. Since the pilot project is to be.1ooat.d at our institution, I van$ to share some of the prel%minary facts with you. The target population for the 12-18 month project will involve 20-100 nimtco inmate8 from low risk offender groupe who could benefit from being allowed to remain in the couasmity. The electronic monitoring equipment will consist of a tamperproof electronic bracelet or anklet to be worn . 24 hours a.day, by the offender.-..Participation in,the program will be strictly voluntary for offenders meeting the criteria aed they will be released unde: the authority of the mqorary Absence Program. mibers of the nimlco senior mmaqiment team era currently involved with Regional and Main office atimdqers in d.v.l&& end ~finalfzfng operational policies and procedures. exe several type. of equimt aveilable end selection will be med. by the end of December , baaed on an imminent prapoeal cell. ‘The Co-ordinetor of the project is MS. Miriam Pinch+ B foxmer probation and parole officer with the ParlLame*t/bV*t and Toronto Court. are. office¶. Miriam will be eetebliehing efi office here at nlmico shortly, and it is .n+iciP.ted that the poject will commence in early February, 1989. Ae mor/&cifics become available, I will share them with supkrintendent In March of 1989 the Ministry posted an Opportunity Bulletin inviting applications from interested and qualified applicants for a temporary assignment to the position of "Community Liaison Officer -- Electronic Monitoring Project". Two positions were involved.' The Opportunity Bulletin stated that "The duration of this temporary i - 5 - assignment will be from April 3, 1989 to October 3, 1989 (approxi- mately). For pay purposes, this temporary assignment will be treated as an Acting Appointment". It will be noted that the temporary assignment was for a period of exactly 6 months; the significance of the duration of the assignment becomes important in the light of the language of Articles 6.6.1 and 6.6.2 of the Collective Agreement which read as follows:- 6.6.1 6.6.2 Where an employee is assigned temporarily to.a position.Article 4 (Posting and Filling of Vacancies or New PositionQshall not apply except where: (0 the term of a temporary assignment is greater than six (6) Fonths’ duration, and (ii) the specific dates of the term are established at least two (21 months in advance of the com- mencementofthetemporaryaseignment Except as provided in 6.6.1.in no case shall any provision oftheCollective Agreementwith respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments. A competition was held and 2 of the Correctional Officers at the Mimic0 Correctional Centre were selected. They were Mr. Hogue and Mr. O'Connell. In addition, 4 other Correctional Officers were chosen to serve as a backup. All 6 Correctional Officers were trained in the use of the equipment. In April 1989 a 3 day training program was held. The supplier of the equipment came from Florida to participate in the meeting and made a presentation to the meeti,ng. Messrs. Hogue and O'Connell as well as the 4 backup Correctional Officers attended the 3 day meeting. Mr. Hadden - 6 - testified that the backup Correctional Officers are used primarily when Mr. Hogue or Mr. O'Connell are on vacation. The program was implemented on April 14, 1989. The Correctional Centre did not take on any new staff. The duties normally .performed by Hogue and O'Connell are performed by the other Correctional Officers or, if necessary, by an unclassified C.O. or C.O.'s. At the end of the temporary assignment, Messrs. Hogue and O'Connell will return to their old positions. It was explained to us that the number of offenders in the program in the first 6 to 8 months was approxi- mately 10 and that they participated on a daily basis. In January 1990 there were approximately 25 offenders per day who participated in the program. A comprehensive report was prepared last sunnier and was sent to the Deputy Minister for presentation to the Cabinet. That presentation was made last summer. When we heard the evidence in this case (October 4, 1990) we were told that the item is on the Cabinet!s agenda for October of this year. In the meantime, Mr. Hadden~ testified that there is no guarantee that the program will be approved. .If'Cabinet should not approve of the project that will be the end of it. Mr. Hadden explained that the original Opportunity Bulletin which was posted in March 1989 and which provided for a temporary assignment of exactly 6 months should have provided for the -7- possibility of an extension or renewal. This was not done because of the uncertainty surrounding the program at that time and he allowed that‘ it may also have been as a result of administrative oversight. At any rate, a second Opportunity Bulletin was posted by the Ministry on August 21, 1989. This time the Opportunity Bulletin contained the following language: "NOTE: The duration of this temporary assignment will be from October 5, 1989 to March 30, 1989 (approximately) and may be subject to renewal based on project status and satisfactory perform- ance. The successful candidate(s) will return to his/her former position at the end of the temporary assjgnment." In cross-examination Mr. Bevan, acting for the Grievor, attempted to elicit admissions from Mr. 'Hadden that the positions were in fact full-time positions. Mr. Bevan contended that the recent change in government will likely delay the Cabinet in dealing with the subject. (At the time of writing this decision, we have no knowledge what disposition the Cabinet has made of the presentation which was made to it or even whether Cabinet considered the matter at all.) Mr. Bevan's position was that pending all delays, the temporary assignments become prolonged in time to the point where the incumbents are performing what are, for all purposes, the duties of permanent positions. Mr. Hadden disagreed. He saw the project as being experimental in nature, It was. not the fault of Ministry officials that there had been a change in government and he had no - 8 - idea whether that fact would involve delays. He simply rested his case on the explanation which he gave to us as to the reasons which caused the experiment to be undertaken and the method of carrying out the experiment. He is in the position where he does not know whether there will be an electronic monitoring project in the future or not; this will depend upon the Cabinet's decision. The foregoing is the factual background against which we must decide this case. We considered that this was a proper case to ask counsel to submit written argument. As a result, we have the benefit of having before us the carefully prepared positions on both sides. The Union has posed the question before us in the following language: "The question for the Board to answer is simply this: Is this a temporary position? If the Board finds in the affirmative (and assuming it finds no violation of Article 6) then the issue ends here. If, however, the Board finds, as we submit, that the position is indeed a new position, then it must be posted, and a com- petition held in accordance with Article 4." Mr. Bevan argues that the word "temporary" involves, in the context of-the Collective Agreement, a period not exceeding 6 months. He argues that the Employer is dealing with the position as if it were an open-ended one. He points out that the position in question was identified, posted and filled. Messrs. Hogue and O'Connell .have been working full-time in the so-called temporary position for a period of approximately l$ years and it is still not known, either by the Ministry or by the Union, when their -g- . assignments will terminate. In Mr. Bevan's submission, the Employer should have posted the position and fill:ed it for as long as the experiment would last. If the project did not receive the ultimate approval of the Cabinet, then the positions would be terminated and Messrs. Hogue and O'Connell would go back to their original positions in the Correctional Centre. In the meantime, Mr. Bevan argues, the 2 incumbents are working in "a full-time functional position" for a period well in excess of 6 months contrary to the provisions of Article 6.6.1 of the Collective Agreement. He argues that the Employer's actions lead to abuse since the Employer could simply fill the position on the basis of one temporary assignment after another and by calling it a "temporary position" circumventing Article 4 of the Collective Agreement. As was to be expected, Counsel for the Employer, Ms. Ravenscroft, disagrees. She states that the original posting was for a period of exactly 6 months because it was contemplated at that time that the project could be tested within that time frame. She recognizes that it probably would have been better to make some provision for an extension or renewal. Since this was not done, the second posting provided for the contingency of an extension or renewal. The essence of Ms. Ravenscroft's submission is that at all relevant times, there has not been a "vacancy". Article 4 calls for posting and filiing of a "vacancy" when one occurs. Article 6.6.1 of the Collective Agreement clearly provides, she argues, for making of temporary assignments by the Ministry without the necessity of - 10 '- posting and filling positions as provided for in Article 4 and she argues that the facts of this case indicate clearly that the entire undertaking of the electronic monitoring project was experimental in nature and that no one knew, at its inception, how successful the project would be. As matters now stand, she argues, it is still not known whether the project will be regarded favourably by the Cabinet and that the future of the project is still uncertain. She contends that it would~ be unreasonable to require the Ministry to treat the position as "vacant" when management does not know whether there will be sufficient work for an employee, or any work, on a full-time, permanent basis. Counsel for the Ministry has referred us to the case of E National Association of Broadcast Employees and Technicians, Local 79 and Niagara Television Limited (1964) 15 L.A.C. ~51. In that case, the question arose as to whether or not a vacancy had been created requiring the employer to post the vacancy. The arbitration board in that case dealt with the question as to what is involved in a "vacancy" by saying the following at page 60:- "In as much, as the company has the right under Article 5, (the management rights clause) to determine the number of employees that it requir- ed from time to time, the term 'vacancy' must be construed not merely as an emptiness or vacant position in the dictionary sense of the term, but a vacant position for which there is adequate work in the opinion of the company to justify the filling on a full-time basis of that position." "We are dealing with the situation of the grievor being offered an assignment, on a temporary basis, which would involve an assignment, on a temporary basis, which would involve some, but not all, of his responsibilities as a Correction- al Officer II. In order for Article 4 to come into play, the job offered to the grievor would have to be considered as a "vacancy". However, the term "vacancy" has been accepted as implying "a vacant position for which there is adequate work in the opinion of the company to justify the filling of that position." (See Tidewater Oil Co. Canada Ltd., (19631 14 L.A.C. 233 (Revillel. No vacancies have been deemed to exist in situations where employees are temporarily assigned or there was not sufficient work for one individual to do or where the assignment was understood to be temporary. (See Niagara Tele- vision Ltd., (1964) 15 L.A.C. 51 (ReviIleF; Loblaw Groceteria Co. Ltd., (1967 18 L.A.C. 420 TWeatherilll P.lkington Brothers Canada Ltd., (1976) 13 'L.Ai.C. (2d) 298 (Burkettl; and Reliance Electric & Engineering (Canada) Ltd., 11961) 11 L A C 345 (0 1 1 I In the case at hand, we are 'dealing w?the: 'limited assignment that was understood by all to have been temporary in nature." - 11 - The arbitration board in that case considered, at page 61, that compelling management to post and fill vacancies for which there is not sufficient work I, . . ..would make a mockery of the company's undoubted right under its management rights clause quoted above to exercise its managerial functions, one of which is the right of the company to determine the complement and extent of its working forces in the light of the work available from time to time." The foregoing decision was considered by a panel of the Grievance Settlement Board in RE Stacey, G.S.8. File 818/84 (Knopf). At page 16 of the decision the Board held as follows:- .* - 12 - We do not think it is necessary to enter into a lengthy philcsophical discussion as to when a "vacancy" is considered to exist. A Collective Agreement is a working charter which seeks to regulate the practical relations between the employer and the employees at the work-place. Article 4 of the Collective Agreement requires positions to be filled in a prescribed manner (posting and filling by competition etc.) when a "vacancy" occurs. We need only to look at the facts of this case to consider whether or not, in any objective sense, a vacancy exists at the Mimic0 Correctional Centre. It is very clear that the project which was undertaken is experimental in nature: When the project was originally undertaken there was no way of knowing exactly how long.the experiment would take. One must assume that the original expectation was that it would take not more than 6 months since the original Opportunity Bulletin called for that period of time. The fact that the first Opportunity Bulletin did not provide for an extension or renewal does not in any way alter the character of the job. The second Opportunity Bulletin calls for a term of something just less than 6 months indicating presumably that the Employer considered that the project would be completed within that timeframe. One cannot attribute blame, in the circumstances of this case, to the Ministry for failing to meet the time allotted for the experiment. The recent development whereby the Government of Ontario was changed by the electorate must be seen as something that was unforeseen by the - 13 - Ministry and ought not to enter into the question at this stage. The matter is before. the Cabinet and even as we write this Decision we do not know whether the project will be approved. We consider that the assignments which are being filled by Messrs. Hogue and O'Connell are temporary in nature only and any other characteri- zation would, in our opinion, be quite unreasonable. It would in the circumstances, therefore, be unreasonable to expect the Ministry to go through the procedure of posting and holding a competition for a position which is experimental only and which exists temporarily as part of an experiment. In other words, we hold that the position is temporary in nature.and that pending completion of the experiment no "vacancy" exists requiring posting under Article 4 of the Collective Agreement. For the foregoing reasons the Grievance is dismissed. Dated at Ottawa the 17thday of December, 1990. MeRmer Member .,