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HomeMy WebLinkAbout1991-1159.Clue.95-02-23" ' SETTLEMENTGRiEVANCE COMMISSION DE R~GLEMENT BOARD, DES GRIEFS- 180 DUNDAS ST~EETWE$7:, SUITE 2100, TORONTO ON MSG 7Z8 ' , TELEPHONE/'7'~-I..~PHONE : (416) 326-1388 · 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILEIT~I..~-COPiE: (416) 326-1396 -~' ..-~ GSB# 1159/91 OPSEU# 91D433 ~ IN THE HATTEI[ OF AN P~RB'rTRAT'rON Unde~ THE CROWN 'EMPLOYEES COLLECTIV~ B~%RGA~N'rNG Before THE (~R'rEVANCE SETTLEMENT BOARD ' BETWE~:N ' .. .. OPSEU (Clue) - 'Grievor The Crown in Right of Ontario "(M~nistry of Transportation) ,- Employer BEFORE N. Dissanayake Vice-cha~erSon E. Seymour Member M. O'Toole; Member FOR THE 'M. McFadden GRIEVOR CoUnsel Koskie & Min'sky . Barristers & Solicitors '. FOR THE B. Christen EMPLOYER Counsel Fition, Wakely &' Thorup Barristers & Solicitors HEARING March 15, 1994' DECIS~IO~ This is a grievance dated May 29, 1991, wherein the grievor Mr. Charles Clue, grieves the abolition of his position of Supervisor of the Mail Distribution Centre in the Ministry's Support Service Office in Kingston, Ontario. At the he&ring on March ~5, 1994, the Board received evidence and submissions from the parties and orally rendered a unanimous ruling dismissing the grievance. This decision sets' out the reasons for that ruling. From February 1984 to June 1991, the grievor held the aforementione~ position, which was a bargaining unit position classified at OAG 8. On April 15, 1991 the grievor had discussions with his section head, Mr. Oliver Fiorini about a · temporary assignment (secondment) to the position of Senior Data Entry Operator. Having obtained the information, the grievor met with the Manager, Mr. Bill Wiley on April 17, 1991. At this meeting he raised his concerns about a rumourhe had heard that he would be removed from his position and piaced in another area. Mr. Wiley informed him that he was unaware of such a decision. The grievor informed Mr. Wiley' that he was considering taking a 3 month secondment to a lower rated position and that he would take that opportunity to learn new skills only if he would be returning to his own position at the.end of the secondment. According to the grievor, Mr. Wiley responded by stating "Oh yes". A temporary assignment agreement was prepared and presented. The grievor insisted oh two amendments before he signed. The 'duration 7. · of the secondment was 'described as "approximately .3 months'~. The grievor wanted the Word "approximately" delete~. 'Secondi~ he f~anted a provision inserted to the effect that "at the ,~6n~iusion of the assignment the employee will return to~ ~is/her 'Current position and salary". With these .amendments in place, the sec°nd~ent agreement was signed around 11:00 a.m.-6n 'May 3,' 1991 ' .The same· day (May 3, 1991), at about 3=00 p.m.', Mr. Wiley · informed the grie~°r that due to Changes in the organizatiOnal ~'. structure, the- grievor,s, position, of Supervisor,"'Mail ..- Distribution Centre would be'. abolished' and that he Would' be declared surplus. Mr. Wiley offered the grievor a choice of' four _other OAG 8 positions. He was informed that if he did not accept one of the positions offered~ he would have to be · laid off pursuant to article 24.4. This verbal discussion was later confirmed by a memorandum dated June '4, 1991.' The grievor selected one of the positions offered,'Record Analyst Clerk in the' collisions Unit. He assumed this position after the completion of the 3 month'temporary assignment. Since the new position'was also classified as OAG 8, the grievor did not suffer any momentary~loss. 4 The union points to the grievor's testimony that if he had known that his position would be abolished, he would not have accepted the secondment. The union admits that the employer carried out the reorganization for legitimate business reasons, namely, to correct anomalies resulting from the implementation of pay equity. Nor does the union dispute that abolition of positions is a matter which is within the employer's exclusive management functions. HOwever, it is the union's, position that the employer exercised its management rights in bad faith in relation to the grievor. It is pointed out that when the grievor specifically sought an assurance that he would be returning to his position at the end of his secondment, Mr. Wiley responde4 With "Oh yes". Union counsel submits thatthis was a misrepresentation because the evidence indicates that at the time Mr. Wiley was aware that the grievor's position would be abolished. He submits that where the employer exercises its management rights in bad faith, the Board has jurisdiction to intervene. Alternatively, counsel for the union submits that having given assurances that the grievor would be returning to his position at the end of the secondment, the employer should be estopped from exeroising its management rights to abolish the grievor's position. $ Employer counsel cha~legges the Board's jurisdiction to re~iew ~he employer's exercise, of its exclusive .management functions Under section 18(1). of the Crown Employees · ' L ~ ' ~ Collective Bargaining Ack, on the basis of either b~d faith or estoppel. In any.event, counsel takes the position 'that the evidence does not support the finding'of bad faith' or estoppel. " Assuming, without finding,, that ~he Boa~d has · jurisdiction as the union claims, we ·find that neither bad faith nor estOppel.is established by .the evidence. The evidence indicates 'that Mr. wiley was privy to discussions relating to restructuring, which had been ongoing since September 1990. He was. aware that a proposal for .changes in the. 9~ganization. structure was submitted on March 12, 1991 to the Executive Director of the TransDortation Regulation Operations Division and that it included a proposal that the griever's position be abolished and replaced by a management position. · However, Mr. Wiley testified that while he Was aware of this proposal, he did not 'find out that a decision had-been made to abolish the griever's'position, Until 2:00 p~m. on May 3, 1991. Within one hour he verbally communicated this information to the griever. § The evidence is that the ultimate decision to abolish positions lies at the Deputy MiniSter level. Mr. Wiley has no control over that decision. The decision made was to abolish the grievor's OAG 8 bargaining unit position and to replace it with a 'new excluded management Position, which combined the bulk of the grievor's former' duties with significant additional management duties and responsibilities which the grievor did not have as a bargaining unit employee. We agree that when the grievor directly inquired whether he would be returning to his ~osition 'at the end of the seoondment, rather than simply saying "Oh yes", it would have been more forthright for Mr'. Wiley to have qualified his response by saying something like "Yes, subject to what may happen in the reorganization". HOwever, we find that, beyond a reluctance to disclose ongoing management discussions· about .! proposed changes in the organizational structure to an employee, Mr. Wiley did not act out of some sinister or ulterior motive. At the time, Mr. Wiley did not know whether or not the proposal to abolish the position would be approved. The decision was out of his own hands. More importantly, the decision to abolish was not dependent upon getting the grievor to vacate his position by taking a secondment elsewhere. The evidence is clear that the position would have ben abolished regardless of his decision relating to the secondment. Even if the grievor remained in his position, that would not have 7 prevented the abolition of his position. Therefor9 Mr. Wiley had nothing to gain, as far as the abolition of the position was concerned,.by inducing th9 grievor to take the.secondment Dy making misrepresentations.~ Even if we had jurisdiction to do so, we would not "-·intervene in these circumstances becaus~ M~.., Wiley's response, however it is'characterized, did.ngt result in or cause .the abolition of the grie~or's position. That would have.happened '. regardless of the grievor's decision relating to' the. I.:~:.-: · secondment. In the ~ircumstances,. while .Mr. Wiley. was being ~ cautious in not divulging ongoing .'management discussions. relating to proposed changes, we cannot conclude that he acted .. out of an.ulterior or'sinister motive'which may be considered to.be bad faith. .The evidence is even weaker with-regard tO:the union's estoppel argument.' ·There'is no'evidence that Mr. Wiley ever gave .the grievor'an assurance that his position Will not be abolished under the reorganization. The grievor was concerned that. his secondment will not exceed 3 months and that he would' be returning to his position at the end. of that period.. Mr. Wiley in giving that assurance cannot be said to have given a guarantee to the grievor that upon his return, his position would still exist. Besides, as pointed out earlier,, by relying on Mr. Wiley's response and taking the secondment, the grievor suffered no detriment. 'This is because, his position would have been abolished whether or not he took the secondment. ~is remaining in. the position would not have prevented the implementation of the decision to abolish his position. It was for all of the foregoing reasons that the Board orally dismissed the grievance. That ruling is hereby~ confirmed. Dated this 23 day of February, i995. N. DissanaYake Vice-chairperson E. Seymour Member -- M. O' Toole Member