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HomeMy WebLinkAbout1989-0649.Parry.90-03-14 ONTARIO EMPLOY~-S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEYANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8-SUITE2100 TELEPNONE/T~-L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8-BUREAU2100 (415)598-0688 649/89 IN THE ~ATTER OF AN ARbiTRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVA/~CE'SETTLEMENT BOARD BETWEEN: OPSEU (Parryi Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: E. Ratushny Vice-Chairperson P. Klym Member A. Merritt Member FOR THE K. Whitaker GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE J. Benedict EMPLOYER: Manager Staff Relations and Compensation Ministry of Correctional Services REARING: November 30, 1989 DECISION Prior to May B, 1989, the Grievor held the position of Correctional Officer 3 with the Ministry of Correctional Services at the Thunder Bay Jail. On that date, his position was abolished and he was reassigned to the position of Correctional Officer 2. His grievance is as follows: I grieve the abolishment of CO3 position and job re-classification at the Thunder Bay jail. Article 5.4.1 of the Collective Agreement provides salary protection: Where, because of the abolition of a position, an employee is assigned: (a) from one position in a ministry to another position in the same ministry... The Grievor did receive the salary protection established by this provision. The abolition of the Grievor's position occurred as the result of a re-organization. The Crown Employees Collective Bargaining Act and the Collective Agreement itself clearly recognized the authority of the employer to re-organize and to abolish positions as a result. (eg. Section 18 of the Act and Article 5.4.1., su_~). Therefore, the Board has no jurisdiction to deal with this matter unless the Employer has acted in bad faith. Prior to the re-organization, the Grievor worked in the Admitting and Discharge Unit of the Jail. His position title was "Senior Admission and Discharge Officer" although he was informally described as the Admitting and Discharge Supervisor. There was only one other C0-3 at the Thunder Bay Jail, Mr. Giertuga, and he also worked in the Admission and Discharge Unit. Essentially, the Grievor and Mr. Giertuga did the same work but on different shifts although there was some evidence that the Grievor was perceived by others as having greater supervisory responsibility for the Unit. By letter dated February 27, 1989, the Grievor was informed by the Employer that: ... the Ministry has been undertaking a comprehensive review of the correctional management structure of its institutions... This review has determined that certain changes to this structure are necessary, both to resolve salary compression issues and to ensure a more effective deployment of our existing human resources. The salary compression problem had been described in an earlier internal Ministry memorandum: ... the last ten years have seen a steady decline in the salary differential between bargaining unit correctional officers and first line managers... repeated disparity in salary awards has eroded the wage differential between certain categories of management and bargaining unit staff resulting in serious salary compression which has actually been salary inversion at some times. The current Superintendent of the Thunder Bay Jail testified byway of illustration that when he had been promoted from the level of CO-2 to the management level of OM-14, it took some thirty months to surpass the salary levels of CO-3s whom he was supervising. The re-organization plan included a major revision to management/supervisory levels in institutions and a change in classification of many positions. Essentially, the CO-3 positions were abolished. Some of these were re-classified as management positions at the OM-14 level. Some existing OM-14 and other management level positions were re-classified upwards. The CO-3 staff were to be able to apply for OM-14 competitions. Those who did not or who were unsuccessful would be returned to CO-2 positions with the salary protection referred to earlier. At the Thunder Day Jail both CO-3 positions were abolished and the new position of "Supervisor of the A & D Unit" was established at the OM-14 level. Both the Grievor and Mr. Giertuga applied for the position and Mr. Giertuga was successful in the competition. As a result, the Grievor was re-assigned to the position of Correctional Officer 2. The fairness of the job competition or the selection of Mr. Giertuga over the Grievor does not form a part of the grievance before us. One can sympathize with the Grievor's perception of this entire turn of events. A~ter the re-organization, he carried on doing essentially the same work and Mr. Giertuga appeared to be doing the same but now Mr. Giertuga was "management" and the Grievor was "red-circled". Counsel for the Grievor argued that the only purpose of the re-organization was to defeat salary gains which had been obtained over a period of time under the Collective Agreement. Moreover, he argued, this view was supported by the absence of any material change, in the organization. The evidence before us does not establish that the re- organization which resulted in the abolition of the Grievor's position occurred for an improper purpose or in bad faith. The maintenance of appropriate salary differentials is a legitimate management objective and the evidence indicated that a significant problem did exist. The evidence also indicated that the effect of the re-organization at the Thunder Bay Jail was "revenue-neutral". The evidence also supports the conclusion that there was a significant augmentation of the responsibilities associated with the newly-created management position. The incumbent now participates in monthly management meetings with others classified at the OM-15 level. He also must provide written assessments of employees assigned to the Unit which are used for performance appraisals. He also has specific responsibility for monitoring the job performance of employees assigned to the Unit and for correcting any inadequacies. Other responsibilities of the new position include carrying out disciplinary action, recommending merit increases, approving overtime and responding to grievances at the first stage. None of these responsibilities were assigned to the position which the ~rievor occupied prior to the re- organization. The grievance is dismissed. DATED at Ottawa the ].4t.~ day of ~Marchr_ Ed Ratushn¥, V~'ce-Ch~i:~persou. · ~ (Addendum attached) P%ter ~' Allen Merritt, ADDENDUM 649/89 OPSEU (Parry)and the Crown in Right of Ontario (Miaistry of Cor£ectional Services) The issue before the Panel was whether the employer had acted in bad faith in the re-organization of these jobs or whether the employer's action was for a legitimate business purpose and not simply to defeat the gains made by the workers through collective bargaining. I agree with the chairperson that a finding of bad faith on t.he part of the employer is not appropriate in this case. The evidence before us indicated that the employer was trying to genuinely correct a situation that the employer perceived as a serious problem. I may have reservation about.the appropriatness of the action taken and the adequacy of any consultation with the bargaining agent but I do not believe bad faith was involved and I join the chairperson in this conclusion. However, there is one aspect of this case which causes some concern. The chairperson points out in the decision that, after the re-organization, the grievor carried on doing essentially the same work as before. In reviewing the evidence before us regarding the duties that he or the other C03 were performing in this classification before the organization and those the grievor is performing after the re-organization, it is difficult to see any substantial difference. This is a concern since the evidence before us in Exhibit 5 was not that the C03 classification was cancelled or withdrawn but that the Ministry had decided, over a period of time, to cease to utilize the C03 category. Although the issue of proper classification was not before us and not considered or ruled upon by the Panel, from this perspective one can readily understand the concerns by the grievor and the Union regarding the appropriatness of the employer's actions. P. KLYM, M~MB~.R