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HomeMy WebLinkAbout1991-0803.Union.94-12-19'~r ~ · ONTARIO EMPL OY~.S DE LA COURONNE ' CROWNEMPLOYEE$ DE L'ONTARtO 'GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;$0 0UN~AS STREET WEST, SUITE 2100, TO~ONTO. ONT~W, RIO. ~SG fZ9 TELEPHONE/T~-LEPHO/VE: (4t61 326-t388 180, RUE J~UNDAS OUEST~ ~UREALI 2;00, TORONTO (ONTARIO], MSG 1Z8 FACStMILE/T~'LECOP/E : {4 16) 326-;~396 803/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and- The Crown in Right of Ontario (Ministry of Correctional Services) ~mployer BEFORE: N. Dissanayake Vice-Chairperson T. Browes-Bugden Member D. Montrose Member FOR THE A. Ryder UNION Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE J. Benedict ~MPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HE]tRING Septelnber 17, 1993 January 24, 1994 2 DECISION Thi~ is a policy grievance wherein the union alleges that the employer has contravened article 3.15.1 of the collective agreement by failing to convert unclassified positions to classified positions at the Whitby Jail. The relevant provisions are as follows: 3.15.1 Effective April t, 1991, where the same work has been performed by an employee in the Unclassified Service for a period of least two (2) consecutive years, and where the ministry has determined that there is a continuing need for that work - to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions}. 3.15.2 For the purpose of this section, "full- time" shall mean a minimum of one thousand seven hundred and thirty-two and three quarter (1,732.75) straight-time hours or one thousand nine hundred and twelve (1,912) straight-time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by an unclassified employee while he is replacing a classified employee who is on an authorized leave of absence shall not be included in computing the annual hours worked by the unclassified employee. The union led evidence relating to the work performed by unclassified correctional officers at the Whitby Jail. The Whitby Jail employs approximately 50 classified correctional officers and 25 unclassified officers. Of the 25 unclassified employees approximately 20 are used on~a daily basis. It is '~ 's position that the manner in which these the union unclassified officers are used satisfies all of the criteria in article 3.15.1 to warrant conversion of the unclassified positions into classified positions. The union's claim was based on the unclassified employees' involvement in four aspects of correctional officer duties. These were: (1) The replacement of a classified correctional officers assigned as "medical runner".. (2) The daily assignment of unclassified officers to replace two classified officers assigned to utility functions. (3) The Assignment of unclassified officers to fill in for classified -officers assigned to acting management positions. (4) The assignment of unclassified officers (a) to replace classified officers who are assigned to barber parade, visitation, security post and outside iescort duties, and (b) to perform those duties themselves. During the cross-examination of Mr. Orville Kerlew, Superintendent of the Whitby Jail, after he had disclosed that the utility duties were no longer being backfilled by unclassified officers and that two ~additional classified positions had been created to perform those duties, union 4 counsel advised the Board that the union was abandoning the claim b~sed on utility duties. There was no dispute between the parties that unclassified employees performed the various duties as claimed by the union. There was also no dispute that such performance was on-going at the time of the grievance, although Mr. Kerlew suggested that this may change in the future as a result of an audit that was underway at the time. There was also agreement that there was no difference between these duties performed by unclassified officers and that performed by classified officers. The crux of the dispute between the parties is whether the manner in which unclassified officers are used~at this workplace triggers article 3.15.1 so as to require conversion to classified positions. This dispute stems from very different interpretations of that article relied upon by the parties4 For article 3.15.1 to have application, the following conditions must be met: (a) The same work must have been performed. (b) That work must have been performed by "an employee in the unclassified service" for a period of at least two consecutive years. 5 (c) The ministry must have determined that there is a continuing need for. that work to be performed on a full time basis. The employer concedes that the "Same work" requirement. (a) above has been satisfied. However, counsel submits that at the Whitby Jail "an employee in the unclassified service" has not performed that work for at least two years. According to the employer's interpretation of that phrase, "an employee" means "the same employee", tn other words, a particular ~ unclassified employee must have performed the work in question for at least two consecutive years before article 3.15.1 applies. Counsel pointed out to the evidence that the work relied upon by the union was performed, not by the same unclassified employee, but by different unclassified employees assigned by management. Thus, counsel 'submits that no single employee met the condition set out in (b) above. Similarly, counsel points out that for article 3.15.1 to apply, there must be evidence that the ministry has determined that there was a continuing need for the work to be perfgrmed on a full-time basis. He submits that such evidence is lacking, and that the evidence is that management in fact decided to the contrary by determining that there was no need to post classified positions under article 3.15.1. He cautions that "complement" is an exclusive management function 6 pursuant to section 18~1) of the Crown Employees Collective Barga, in~-ng Ac% and that the Board should not make dacisions as to what positions must be classified and what positions should be unclassified. Finally, employer counsel took the position that, in any event, the evidence does not establish a continuing need for the work in question to be performed on "a full time basis" as envisaged by article 3.15.1. In support of this position, counsel relies on the definition of "full-time" in article 3.15.2. He points out that the definition requires a specified number of straight time hours in each year, and that in computing those hours "all hours worked by an unclassified employee while he is replacing a classified employee who is on an authorized leave of absence" are not to be included. It is the employer's view that the bulk of the work relied upon by the union is not to included in the computation, because when performing that work, unclassified employees were replacing classified officers. The union takes a completely different interpretation of each of the phrases relied upon by the employer. We will deal with each of these. "An employee in the unclassified service" If the employer's interpretation is correct that "an employee" means "the same" or "a particular" employee, then 7 the evidence does not establish that any one employee meets the conditions of article 3.15.1. However, after very careful consideration, we prefer the union's interpretation that "an employee" in article 3.15.1 means, not "the same employee" but "any employee". It must be remembered that the provision is about conversion of "positions" and not about converting the status of individuals from unclassified to classified. Even if one employee performed all of the Work relied upon by the union, it is clear that article 3.15.1 does not envisage that that particular employee's status Would be changed from unclassified to classified. Instead, a position in the classified service is to be posted, and filled according to the provisions of the collective agreement. Article 3.15.1 does not confer any individual rights, but envisages the addition of classified positions to the bargaining unit. Adopting a purposive approach to interpretation, it is difficult to see any rationale or logic as to why the parties would have required that a particular employee must have performed all of the work to warrant the conversion. In our view, article 3.15.1 is an attempt by the parties to stipulate some guidelines to limit the employer's right to use unclassified employees to perform Work for which there is a regular and continuing need. The absence of a requirement that the same employee must perform the work in question is recognized by the language the Board chose in Re Justus, 879/91 (Knopf) at p. 20, to put Article 3.15.1 into context vis-a-vis the distinction that had previously been recognized between classified and unclassified positions: This interpretation preserves the distinction between the status of classified and unclassified staff that is apparent in the nature of the bargain between OPSEU and the government throughout their collective.agreement and that was so ably pointed out by Mr. Ryder in his argument. It recognizes the permanent ongoing nature of appointments to the classified or civil service as distinct from the limited appointments and employment claims of the unclassified staff. This interpretation also seems logical in light of the 'newly negotiated Article 3.15.1 that allows, effective April 1, 1991, that if the same work is being done in the job for two years and there remains a continuing need for that work to be done on a full-time ~asis, the position will have to be recognized as within the classified service and duly posted and filled as a 3acancy within the classified work force. This is a sensible balancing by the parties of the right of the Employer to make contractually limited, yet long-term unclassified appointments, but checking it with the requirement to acknowledge a situation where a full-time permanent position exists if the need for he works continues beyond two years. While the above statement was made by way of obiter, it is clear that the Board in Re Justus di~ not see article 3.15.1 as introducing a requirement that the same employee must be performing the work in question. Like we do, the Board there recognizes that article 3.15.1 is intended to regulate or limit the use of unclassified appointments generally, to perform work which the employer has determined needs to be performed on a continuing basis. 9 Has the Ministry determined that there' is a continuing need? The union took no issue with the employer's assertion that it is an exclusive function of the employer to determine what work is required to be performed.~ The issue is whether the employer has made a determination that there is a continuing need for the work in question to be performed. We cannot agree with employer counsel that the fact that the employer decided that it will not post classified positions under article 3.15.1 is determinative 6f this issue, indeed, in our view that decision is irrelevant because it amounts ,to nothing more than an assertion that the.employer believes that it was not required to apply article 3.15.1 in the circumstances. That conclusion, albeit arrived at in good faith, cannot be binding on anyone. This Board must decide, based on objective facts, whether the Ministry has in fact made a determination that there was a continuing need for the work to be performed. In reviewing the evidence, the Board can come to no other conclusion, but that the Ministry has indeed decided that there was a continuing need for the work to be performed. The undisputed evidence was that the work in question, i.e. those listed in items 1, 3 and 4 (supra) at p.3) continued to be performed as of the date of the' grievance and the date of hearing. The only reason that the employer has that work performed must be because it has determined that there was a continuing need. In our view, the fact that the work in question in fact continues to be performed, is conclusive proof that the employer has made a determination that there was a continuing need. It is the employer that decides what work is to be performed. The uncontradicted evidence is that work in question continues to be performed. Having decided to have that work performed on a continuing basis, it is not open to the employer to deny that it had determined that there was a continuing need for that work. Is the work beinq performed on a "full-time" basis Article 3.15.1 requires that the employer must have determined that there was a continuing need for the work to be performed on a "full time" basis. We have already decided that the employer's determination isconclusively evidenced by what work is actually being performed. Therefore, the issue is whether at the Whitby Jail, the work is being performed on a "full-time" basis within the definition of article 3.15.2. Under article 3.15.2 in computing the stipulated straight time hours, "hours worked by an unclassified employee while he is replacing a classified employee who is on an authorized leave of absence" are not to be included. The evidence indicates that a significant portion of the hours relied upon by the union were "replacement hours" in the sense that the unclassified officer was replacing a classified officer. However, article 3.15.2 does not exclude all replacement hours from the computation. The hours are excluded only if the classified officer being replaced was on "an authorizad leave of absence". The evidence indicates that the unclassified employees here were replacing classified officers in different situations. They replaced a classified officer, who had been (a) reassigned as medical runner, (b) reassigned to an acting management position, (c) reassigned to barber parade, visitation, security post and escort duties. If the employer's position is to be upheld, the Board must find that when a classified officer is reassigned to any of the foregoing duties, he or she is "on an authorized leave of absence". However, we do not find that to be a reasonable interpretation. If the parties intended to exclude all replacement hours from the computation they could have simply have said "while he is replacing a classified employee". They must have added the words "who is on ,an authorized leave of absence" deliberately because they did not intend to cover all replacement hours. A "leave of absence" must necessarily involve an "absence". A leave of absence is generally understood to be a period where the employee is away from work. An employee, who is absent from work due to vacations or sickness, for example, would be on "an authorized leave of absence". However, where an employee is reassigned to perform duties other than his normal or regular duties, he is not on a leave of absence at all. He cannot be on a "leave of absence" simply because he is not absent - he is at work, although performing some special or different duties. Therefore, where an unclassified employee replaces a classified _employee who is at work in some capacity, those replacement hours are not excluded from the computation for purposes of article 3.15.2. To summarize our interpretation then of the disputed phrases, we find as follows: (a) Article 3.15.1 does not require that the work be performed by the same or a particular employee. "An employee in the unclassified service", in article 3.15.1 means "any employee" in the unclassified service. (b) We find that the evidence that the work in question in fact continued to be performed, in the absence of any evidence to the contrary, is conclusive proof that the employer had determined that there was a continuing need for that work to be performed. If the employer had not so determined the work would not have zontinued to be performed. (c) The only replacement hours excluded from the computation of hours for purposes of the definition of "full- time" basis in article 3.15.2, are hours where an unclassified employe~is replacing a classified employee who is absent from work with the employer's ~uthorization. On an application of the foregoing interpretations to the evidence before us, we make the following findings: (a) The hours performed by any unclassified officer in carrying out the duties relied on by the union in terms t, 3 and 4 (supr~ p. 3) are to be included in the computation of the hours ·for purposes of article 3.15.2. (b) We find that by continuing to assign unclassified employees· to perform the work in question, the employer has determined that there is a continuing need, as of the time of the grievance, for the performance of that work. Therefore, that requirement of article 3.15.1 has'been met. (c) The hours of work performed by unclassified officers, while replacing classified officers who were at work in any capacity are to be included in the computation for purposes of article 3.15.2. Those hours are not excluded because the classified officers are not "on an authorized leave of absence" within the meaning of article 3.15.2. Taking into consideration the Board's interpretations and findings set out above, the parties are directed to endeavour to agree upon the number of hours of work (items 1, 3 and 4 at p. 3 supra) and consequently the number of positions, if any, that are required to be converted pursuant to article 3. ]5.1. The Board remains seized in the event the parties are unable to 'reach' agreement on those issues. Dated this 19th day of December, 1994 at Hamilton, Ontario. Vi ce- Cha i rper s on T. ~rowes-Bugden U Member I Dissent 'Dissent Attached' D. ~,~ontr ese Member EMPLOYER DISSENT' t 803/91 UNION GRIEVANCE MINISTRY OF CORRECTIONAL SERVICES With respect I feel obligated to dissent from the majority, for the following reasons: 1. In my estimation, the majority'in this award has exceeded its jurisdiction pursuant to Section 18{1} of the Crown Employees Collective Bargain£ng Act by determining: "The uneontradicted evidence is that work' in question continues to be performed. Having decided to have that work performed on a continuing basis, it is not open to the employer to deny that it had determi'~ed that there was a continuing need for that work." The employer not the Grievance Settlement Board, can only determine if the work performed constitutes a "continuing need" on a "full time basis. Both conditions must be met, one does not determine the other. The exclusive management function to determine "compliment." rests solely with the employer. This right cannot be used in an arbitrary manner and has not, as indicated in the award, two additional classified positions have been created to perform utility functions. 2. The majority in my estimation has determined a very narrow interpretation of the use of leave of absence, in the calculation of qualifying hours for the purpose of Article 3.15.2 by determining: "therefore, where an unclassified employee in article 3.t5.2 replaces a classified employee who is at work in some capacity, these replacement hours ar'e not. excluded from the computation for the purposes Of 'article 3.15.2". In part, I agree with the majority, "an employee" in Article 3.t5.1 means "any employee". Thus in the application of "authorized leave of absence", in Article 3.15.2 the majority should be consistent. The majority has not excluded replacement hours where an unelass£fied employee replaces a classified employee who is at work in some capacity. (emphasis added) This assumption fails to recognize the classified employee at work may be replacing another classified employee who is on an authorized leave of absence. In correctional institutions, the manning of posts by correctional officers is critical, and constantly necessitates reassignment of personnel to meet the required shift complement. (The '?ed line) Thus simply assigning hours to unclassified employees to meet requirements in Article 3.15.2, for all replacement hours, where the replaced classified employee is actually at work, is in my opinion an error, and covers 'the majority of work relied upon by the union. As a post comment, article 3.15.1 and 3.15.2 appear to be drafted to cover conditions found in the average office day and not continuous operation found in a correctional institution, where absenteeism is relatively high, requiring reassignments to maintain the staffing of all posts. D.C. Montrose