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HomeMy WebLinkAbout1989-0746.Lonsdale.92-03-31 ONTARIO EMPLO¥~'S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTA RIO GRIEYANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET' WEST, SUITE 2100, TORONTO, ONTAJ~t~.~. MSG IZ8 TELEPHONE~TEL~P~CNE. ~80, ~UE OUNDAS OUEST. BUREAU 2~00, TORONTO (ONTarIO]. MSG ~Z~ ~ACSiM~LE/TEL~cOP~E 746/89 IN ~E ~TTER OF ~ ~IT~TION Under T~ CRO~ ~P~ES COL~CTI~ B~AINING ~CT Before THE GRImaCE SETT~~ BO~ BE~EN OPS~U (~nsdale) Grievor The Cro~ in Right of Ontario (Minist~ of Correctional Se~ices) Employer BEFO~: B. Fisher V[ce-Chai~erson N. Cartiere Me. er A. ~Merritt Me.er FOR THE G. Richards GRI~VOR Grievance Officer Ontario Public Service Employees Union FOR TM M. McKeown EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING December 12, 1989 September 7, 1990 June 26, 1991 October 2, 1991 December 13, 1991 FACTS This case arises out of an earlier award dated December 28, 1990, wherein the same panel allowed the grievance and issued the following order: I. The Employer l~reached Article 4 when they fa/ted to post the position of A & D Officer on or about May 31, 1989. 2. On the assumption that the Employer is still utilizing the same arrangement today as existed at the time of the grievance, the Employer is to post the A & D position within 30 days of the date of Ibis award, in accordance with Article 4. 3. The Board wilt remain seized o! any matters arising from the implementation and/or interpretation ot this award. The Employer then posted the position, however the posting indicated that the job was only for a one year temporary assignment. The Griever applied to the competition and won. He now grieves that the position should be a permanent one. The issue Is whether or not the Employer was entitled to post this position on the basis of a.one year temporary position. The only witness for the Union was the grievor. He testified that in his opinion the Admissions and Discharge function (A & O) is an ongoing need and that there is an advantage in having one person perform the job so as to ensure consistency. He understood this Board's previous decision as requiring the posting of a permanent position and was therefore surprised.to see the temporary restriction on the poSting. 2 On croSs-examination, he admitted that when he worked at Toronto East Detention Centre, he was aware that all the A & D offices were rotated except for two persons in charge of inmate property. The sole witness, for the Ministry was Mr. Bill Cooney, the Superintendent at Bluewater Youth Centre since June 1990. He was not the Superintendent at the time wllen the grievance giving rise to the first arbitration award' arose. Prior to the release of the Board's first decision in this case, Mr. Cooney spoke to Rick Clok, Local Union President, about the term of the A & D assignment, which at that time was 4 months. Mr. Clok recommended that the assignment be at least one year long. Once the decision was received, Mr. Cooney and Mr. Close discussed this matter further. Mr. Cooney and Mr. Close had similar thoughts about the fact that the A & D assignment should be made into a temporary assignment so that the 'plum" could be shared. The "plum" of the A & D position is that the hours are Monday to Friday, days only. This is the only non-shift C.O. position at Bluewater Youth Centre. Mr. Cooney also testified that from June to December, 1990, the resident count dropped significantly from 118 to 86. One living unit was closed. Some C.O. II's were redeployed, overtime was cut and some unclassified C.O.'s were released. 3 Mr. Cooney explained that this dropping of the resident count means that over the next '~2 months there will likely be a lot of organizational change and at the present time there is no accurate way of predicting what manpower demands would be needed ~n 12 months. In so far as the A & D function can be performed in a number of different ways, Mr, Cooney wanted to keep his options open and that is why in part he made the A & D assignment a 12 month temporary assignmeqt. His other motivation in wanting to make the A & D assignment only a temporary 12 month one was so thai he could allow other C.O.'s to share the "plum" of regular hours. He felt this was fairer to the other members of the staff. DECISION The relevant articles of the collective agreement are as follows: 4.1 When a vacancy occurs tn 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 utablished closing date when adverti~ld within a ministry, or it shall be edverlised for at least fifteen (15) working days prior to the estabflshed closing date when advertised service-wide. Ail applications wil$ be actmowledged. Where practicable, notice of vacancies shall he posted on lhe bulletin boards. 4.2 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. 4.3 In filling a vacancy, Ihe Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length o! continuous service shall be a consideration. 6.6.1 Where an employee is assigned temporarily to a position, Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply except where: 4 ii) the lerm of a temporary assignment is greater than six (6) months' duration, and (ii) the specific dates of Ihe term are established at least two (2) montlls in advance o! the commencement o! the temporary assignment, The first position of the Union was that Art(cie 4 mandated that all posting be of a permanent nature. Mr. Richards rationale for this proposition requires us to in effect insed ~e word "permanent" before the word "vacancy" in A~ticle 4.1. However Article 6.6.1 (1) clearly contemplates that there could be such a thing as a posting under Article 4 of a temporary assignment where that temporary assignment was greater than 6 months. In fact Article 6.6.1 cawes out an exception to when certain temporary assignments (that is less than 6 months wilh defined dates) need not be posted under Article 4. The obvious inference is that temporary assignments that do not fit their criteria (that is are longer than 6 months or do not have spe'cilic dates) must be posted under Article 4. Inasmuch as Article 4 does not specifically require all vacancies to be for permanent positions and since Article 6.6.1 (1) implies that some temporary positions must be posted under Article 4, it follows that the Ministry is Within its rights under Section 18 (1)ia) of CECBA to determine that 'a Position be of a temporary nature of more than 6 months. HoWever in exercising these management rights, the Ministry must do so in good faith and in pursuance of a legitimate governmental purPose. It cannot use its management's rights to deliberately defeat an employee's collective agreement right. {Bousquet 541/90 Gorsky) The Ministry admitted that it was bound by the Bousquet principle and relied on the good faith and the legitimate governmental purpose behind Mr. Cooney's decision. We will therefore examine those reasons to see if they show good faith and a legitimate governmental purpose. The first reason given by Mr. Cooney in making the assignment a temporary one was that he was unsure if he would require such a position in 12 months t(me due to the decreasing resident count. He wanted to maintain the flexibility of being able to conved to another A & D processing method, likely along the lines that were previously employed at Bluewater which was to assign A & D duties on an as required basis to all C.O.'s on shift at that padicular time. The legitimacy of the Employer considering .future staffing needs in determining how to fill a position has been recognized in a decision of Vice Chairperson Watters, entitled Unio~n Grievance (3017/90). In that case the Ministry was faced with the decision as to how to fill a vacancy arising from an employee leaving the Ministry. The Employer had to choose between an Article 4 posting or a temporary assignment under Article 6. The Employer's reasons are set out on pages 3 and 4 of the decision. · Mr. Shah testified as lo why the Employer elected to fill the position through a temporary assignmenL The reasons were essentially two.fold. Firstly, tile Ontario Government had announced afl intention to make 'drastic changes' to the ezfsting legislation. Bill 4 lemporarily served to limit a landlord's grounds for justifying a rent increase. It was expected, however that permanent 6 legislation would be ir~lroduced in mid lo late June, 1991. Al the lime of the present positing, Ihe regulations necessary to give full effect lo Bill 4 had not been promulgated. It was Mr. Shah's evidence that Ibis situation created a dilemma for managemenL ~ore particularly, the Employer could not predict what the future workload would be for the position. Indeed, there was a possibility that Financial Consultilnts might not be needed on a permanent basis in the future. Secondly, the posting was designed to offer a developmental opportunity within the organization, it was hoped that staff morale would be promoted through this initiative. We were advised that employees have had the perception1 that similar assignments have Tione to external candidates Tnt he past. Mr. Shah, as decided to run a competition instead of simply assigning a particular person to the lob. This w~ld permit a number of people in the field to apply for the position. The Board was told that, if the had been offered on a full-time basis, it would have had to be posted province wide due to the Ministry's policy on employment equity.' The Board said at page 8 of'the award: "The Board is satisfied that the Employer's decision was founded on proper considerations. We accept, from the evidence Qf Mr. Shah, that the temporary appointment was uTitized as a consequence of the Efllployer's uncertainty as to its future staffing needs." Although this was a case involving Article 6 and not Article 4, insofar as we have heJd a temporary assignment is possible under Article 4, there is no logical reason to restrict future staffhlg needs as a legitimate concern under Article 4. The Union raised a valid point in that even where a "permanent position" exists, the Employer Ps free to eliminate that position pursuant to Article 24 - Job Security. It follows, says 7 the Union, that the Employer does not need the extra flexibility of limiting the duration of jobs under Article 4 as Article 24 gives them all the flexibility they need. This approach however ignores the fact that the implementation of Article 24 has both an operational and financial cost to the Employer. It is therefore not unreasonable for the Employer to desire additional flexibility where it has a real and substantial concern as to its staffing needs in the near future. In this particular case, Mr. Cooney presented uncofltradicted evidence of a recent significant drop in residents (in the order of 27%). Furthermore some dramatic changes to the staffing levels had already occurred and therefore it could be reasonably anticipated that future changes might be required in the near future. Given these facts, we are satisfied that the Employer's motivation in limiting the duration of the posting because .of the likelihood of change in the near future was both in good faith and for a legitimate governmental purpose which was not designed to defeat the Griever's contractual rights. The second purpose was the Ministry'S desire to allow more employees to "share 'the plums" of regular hours; There is no doubt in our mind that on an individual basis, an employee's choice as to whether or not the plum job should be shared would be directly related to his or her own assessment as to whether or not she had a choice of winning a competition for the job. The less chance the individual worker had to get the job through the competition process, the more she would be iff favour of sharing it. It Is human nature to want the other person to 8 share with you what he already has. However, the Union, as the exclusive bargaining agent for the employees, is required to take all these individualistic motivations and mould them into a collective voice. In the course of this moulding, the Union makes internal trade offs between its members. However it is the Union which democratically decides what final position it will take as a group, and it is not oT~en to the EmT~lo~er to second guess the Union in determining what Its members really want. in this situation the Union has decided, and the Employer has agreed, that the criteria to be used in tiffing a vacancy are those listed in Article 4J3, namely, the qualifications and ability to perform the required duties. Only when those issues are relatively equal can. other considerations, including seniority, be considered. if one of the criteria In determining the po'.stlng is the desire to share the plums, then presumably when this job is rerun at the end of the first period, the.fact that the Griever had previously held the position would be a negative factor. One Wonders whether the Ministry will then take the position that the fact that the Griever previously held the job is "a consideration" that they are entitled to consider, along with seniority, in Article 4. It Is difficult to believe that a panel of the GSB would ever find that the Employer had properly exercised its rights under Article 4.3 where it considered that the Grievor's previous experience in the posted job was a negative factor. If this factor of sharing the plums were to be an invalid consideration in selecting a candidate in a subsequent competition, it jlaturaJly follows 9 that it cannot be a proper consideration in determining the length of the initial assignment. Furthermore, to allow the Employer to cut up a permanent job into a series of temporary assignments would allow the Employer to do an end run around the appraisal review and the discipline system. No longer would an Employer have to give the Employee a bad performance review (and risk a grievance). Instead the Employer would simply wait until the job term ran out, re-post the job, and hope someone better and/or with more seniority.applied. Presto, no need to appraise performance or discipline employees, Just replace them! This sounds very much Pike a non-union work environment. There may be the exceptional circumstance where the Employer could legitimately justify job-sharing on a temporal basis (i.e. to allow cross-training, or to fulfil an employment equity requirement) however, in this case a simple desire:to 'share the plum" of regular hours is not a legitimate governmental purpose as it is a serious undermining of an Employee's job security rights. In conclusion we find that - (a) It is open .for the Employer to use Article 4 for postings of a time limited nature when the reasons for so doing are done in good faith and for a legitimate governmental purpose. (b) As sufficient evidence was presented to show a reasonable concern about staffing needs for the A & D position in the near future, the Ministry's actions were properly 10 within their management rights. (c) Even though the Ministry's actions were proper due to uncertainty of future staffing issue, it was not a proper purpose to institute the temporary posting on the grounds that in the future they wished to share this among other Employees so that the benefit of regular hours would be exi~erlenced by others. As the Ministry is only required to prove that it has a legitimate and proper motive in exercising their managerial rights (not that all of their reasons were so blessed), it follows that the grievance muSt be dismissed. Dated at Toronto, Ontario, this 31sc day of [~larch ,1992. ~/ "I Dissent" (dissen~ aCcached) N. Cartiere A. Merritt He: 746/89 OPSEU (Lonsdale) and the Crown in Right of Ontario Ministry of Correctional Services'- Dissent I have reviewed the draft decision on the above matter and must dissent for the following reasons. On May 31, 1969 this same panel issued the following order: 1. The Employer breached Article 4 when they failed to post the position of A & D Officer on or about May 31, 1989. 2. On the assumption that the Employer is still utilizing the same arrangement today as existed at the time of the grievance the Employer is to post the A & D position within 30 days of the date of this award, in accordance with Article 4. 3. The Board will remain seized of any matter arising from the implementation and/or interpretation of this award. The evidence is that the employer was in fact utilizing the exact same arrangement at the time the award was issued and it is my submission that in order to comply, the employer's only option was to post the vacancy'under Article 4. I also disagree with the interpretation given to Section 6.6:1 that temporary assignments (that is less than 8 months with defined dates) need not be posted under Article 4 and that assignments (that is longer than 6 months or do not have specific dates) must be posted. It is my submission that under Section 6.6.1 any assignments of less than 6 months regardless of whether there are defined dates need not be posted and that only temporary assignments whose term is greater than S months' duration {8.8.1(i)} and the specific dates of the terms are established two months in advance {6.6.1 (ii)}. Because the word "and" is used both conditions must be met and not as inferred in the decision that conditions under 8.6.1(i) or 6.8.1(ii) would require posting under Article 4. The evidence of Mr. Coone¥ in making the assignment was that he was unsure of the duration of the position because of the decreasing resident count and therefore did not meet the requirement under 6.6.1 (ii). I also don't recall any evidence that the Bluewater Youth Centre was being closed and that the resident count would continue to decrease. I would think that periodic decrease is not unusual and unless there was a clear decision to close the Centre, the excuse of reduced residence is not a legitimate and proper motive not to comply with our earlier award. For all of the above reasons, I would allow the grievance. Respectfully submitted Norm Cartiere District Representative