Loading...
HomeMy WebLinkAbout1992-0330.Whiteside&Stewart.93-06-01 ONTARIO ([,' EMPLOYES DE LACOURONNE C CROWN EMPLlJtES DEL 'ONTARIO 10 1111I GRIEVANCE COMMISSION DE . . SETTLEMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE /TEutCOPIE (416) 326-1396 r \ 330/92, 332/92, 1121/92, 1122/92 IN THE MATT~R' OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE: SETTLEMENT BOARD BETWEEN OPSEU (Whi tesiide/Stewflrt et al) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE W Kaplan Vice-Chairperson - P. Klym Member D. .Clark Member FOR THE G _Leeb UNION Grievance Officer ontario Public Service Employees union FOR THE/ p.Thorup EMPLOYER Counsel winkler, Filion & Wakely i Barristers & Solicitors HEARING March 11, 1993 ~ I T 6' 2 Introduction Our first decision released on December 16, 1992 dlspo'sed of two preliminary objections raised by the employer at the commencement of these proceedings In our award, we found that the -Whiteside and Stewart gnevances, filed on December 6, 1991, were timely and arbitrable We were advised on the first day of hearing that there wer~ a number of other 1 grievances similar to Ms Whiteside's and Ms Stewart's I arising out of the same set of facts. Between the first day of hearing and the second, five additional grievances were consolidated with the Whiteside and Stewart grievances, and they are the grievances of Luizinha Fernandes, Norma Yarde, Adelaida Cultura, Jane Binnie and Ceceila Bascom . I The Fernandes, Cultura and Bascom grievances were filed on April 30, 1992 The Binnie and Yarde grievances were filed on May 4, 1-992 The employer qid not raise any objections with respect to the timeliness or arbitrability of the five additional grievances. It s,hould also be noted that the Board was advised that all inter~sted parties, as described in our preliminary decision, had been notified of these proceedings and their right to participate All seven grievances proceeded to a hearing on the merits In Toronto An agreed statement of fact was introduced into eVidence, and this statement , was supplemented with some additional exhibits introduced on consent. The cas~ then proceeded to argument. Before turning to the facts, it is useful to set out Article 24 1 of the Collective Agreement as its interpretation figures prominently in this case While the Whiteside and Stewart grievances were filedi under the Collective Agreement which expired on December 31, 1991, and the other grievances were filed under the successor agreement, the terms of Article 24 1 T (1 3 remained the same Jt provides that: , Where a lay-off may occur by reason of shortage of work ~~ or funds or the abolition of a position or other material change in the organization, the identification of a surplus ~mployee in an administrative district or unit, institution or other such work area and the subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions Set out in this Article The article then continues with a long and detailed procedure designed to relocate surplused employees within the Ontario Public Service The Facts 1 The Ministry of Health (lithe Ministry") employs approximately 10,000 workers across Ontario The Ministry is qivided, into various programs, including. Corporate Administration, Health Insurance Branch, Registration Program Branch, Insurance System Division, Community Health Branch, Institutional Health Branch, Mental Health Facilities Branch, and Claims Payment Division 2 The Claims Payment Division is responsible for the registration of health care benefits for both healtlh care providers \ and the general public This Division also handles the payment process arid fee-for-servlce claims Generally, the Claims Payment Division is responsible for the " administration of what is still popularly referred to as the OHIP System. 3 Customer Service Clerks are employed in the Claims Payment Division in order to deal with the public's inquiries and problems with \1 4 rr respect to the OHIP progr,am In 1989., due to major reviSions to the OHIP , program, such as the elimination of individual premiums in favour of the ) Employers' Health Tax scheduled for January 1990, management determined that the need for Customer Service Clerks would be drastically reduced This affected Customer Service Clenks across Ontario o;n July 7th, 1989, there were a significant number of existing clerks declared surplus under Article 24 of the Collective Agreement. Over 300 employees in total were surplused in all categories 4 These individuals were subsequently reassigned Jto other positions within either the Claims Payment Division, other branches in the Min!istry of Health, or other Ministries These surplus employees included the grievors Norma Yarde, Jane Binnie, Luizinha Fernandes, CeclhaBascom, Adelaida Cultura, Mary Stewart, and Rose Whiteside Prior to the surplus declaration, each of the grievors worked as Customer service Clerks at the Toronto District Offices at 2195 YOlilge Street [hereafter the "Toronto District Office "] 5 On September 25th, 1989, Norma Yarde was reassigned according to the Collective Agreement surplus procedures to the position of Trust Management Clerk, OAG 8, at the Ministry of the Attorney General, Office of the Public Trustee She is currently working in this position and was \ red-circled at OAG 9 [The explanaltion for the red-circling of the grievors at a higher level is explained later in this award] 6 On September 29.th, 1989, Jane Binnie was reassigned according to the Collective Agreement surplus procedures to the position of Trust . Management Clerk, OAG 8, at the Ministry of the Attorney General, Office of ~-- 1'. \1 5 i the Public Trustee She is currently working in this position and was red~circled at OAG 9 , 7 On September 29th, 1989, Luizinha Fernandes was reassigned " according to the Collective Agreement surplus procedures to the position of t Claims Assessment Clerk, OAG 8, at the Ministry of Health, Assistive Devices Branch She is currently working in this position and was red-circled at QAG 9 f , 8. On October 29th, 1989, Cecilia Bascom was reassigned according to the Collective Agreement surplus procedures to the position of Claims Assessment Clerk, OAG 8, at the Ministry of Health, Assistive Devices Branch She is currently working in this position and was red-Circled at - / OAG 9 9\ On January 2nd, 1990, Adelaida Cultura was reassigned according to the Collective Agreement surplus procedures to the position of Claims Assessment Clerk, OAG 8, at the Ministry of Health, A~sistive Devices Branch She is currently working in this position and was red-circled at OAG9 10 On January 2nd, 1'990, Mary Stewart was reassigned according to the Collect,ive Agreement surplus procec1iures to the position of CPU Operator, DPT 3, Ministry of Health at the Toronto District Office! and her salary was red-circled at OAG 8 She is currently working in this position and was red-circled at OAG 9 11 On April 4th, 1990, .Rose Whiteside was reassigned according to the ----------- 5' ~' 6 Collective Agreement surplus procedures to the position of Customer Service Clerkin the Mississauga District Office, and by' subsequent agreement, she exchanged positions with Cynthia Jones, who had been previously assigned to the CPU Operator's position in Toronto from Mississauga Because of this agreement, Rose Whiteside received the position of CPU Operator, DPT 3, Ministry of Health at the Toronto District ,Office, and her salary was red-circled at OAG 8 She is currently working in this position 'and was red-circled at OAG 9 12 The complicating factor in this situation was that problems with the introduction of the new Health Numbers in April 1990, created an unanticipated need for Customer Service Clerks This Re-Registration Plan caused various unforeseen problems For example, the Ministry expected an approximately 80% return rate from its original mailing, yet only received 1 an approximately 20% return rate This vast discrepancy resulted in an I entirely unforeseen need for Customer Service Clerks to deal with this much larger than expected number of Ontarians who were required to I register personally Additionally, while the Ministry ant,icipated a 10% to I 12% error rate in the filling out of the Re-Registratiori Information Forms, in actual fact the error rate exceeded 30%. This too caused a large amount , of unanticipated extra work throughout the Claims Payment Division and for the Customer Service Clerks themselv~s Therefore, temporary staff were employed to fill this need As well, employees from other sections of the 1 Claims Payment Division were temporarily assigned to serve as Customer Service Clerks 13 These additional Customer Service Clerks at 2195 Yonge Street came from four primary sources. . -- . - ~ 'J 7 \ - . (i) Approximately seven contract employees were utilized prior to the surplus declaration and remained employed until the spring of 1991 ; Three other retired employees were rehired on a temporary basis in 1990, \ for up to three months each (ii) The Communications Branch of the Ministry 'of Health had also set up an independent 1-800 hotline operated by multilingual staff for the \. purpose of handling the overflow of customer concerns LEight of these hotline workers eventually became temporary Customer Service Clerks on or about October 29th, 1990 They were Ricardo Rezende, Adnanna C~rdenas, Christina Degano, Milenko Kerezevic, Gregory Ladyka, Patty Mavromihelakis, Julia Sandusky-Smythe, and Anita Huang These particular temporary assignments ceased on or about March 31 st, 1 991 ;' (iii) Since February 1 991, with the concurrence of the Union, the Ministry h~s been engaged in a Skills Development Program which involves the rotation 0'( Ministry employees through different areas of work This program allows Ministry employees to enhance their skills and Broaden the base of their knowledge in order to be able to/ react or cope with almost certain technological advances ,This program's purpose is twofold, firstly, it fosters employee skills, and secondly, it provides the Mimstry with manpower in areas in which it may be needed While the number of employees receiving developmental opportunities in the Customer Service Clerk position is not a conStant, by way of example, ten developmental assignment positions of this type were offered in April 1992, and six more were offered in November 1992 These assignments do not exceed six months. Often, for the- first two or three months, the employee is learning --. . '~ 8 ( the position and basic skills. There have not been any developmental assignment postings since November 1992 - ( (iv) Lastly, at least five Ministry employees, including the grievors, Mary Stewart and Rose Whiteside, were also utilized as. Customer Service Clerks on six-month temporary assignments. Mary Stewart served as a temporary Customer' Service Clerk for three six-month periods, dating from May 14th, 1990 to December 9th, 1991 Rose Whiteside 'served as a temporary Customer Service Clerk for two six-month periods, dating from November 19th, 1990 to May 20th, 1991, and from June n 1 th, 1991 to December 9th, ; 991 Persons acting in these temporary assIgnments were performing the .duties and functions of the Customer Service Clerk position for the time period that they were assigned to this position However, it should .be noted that the duties and functions of the Customer Service Clerk I position changed in large part after the elimination of mdlvidual premiums in favour of the Employers' Health Tax in January 1990 These functions changed again following the irpplementationof the Re-Registration Program in April 1990 While the functions and duties of the Customer Service Clerk position prior to 1 990 and after 1 990 overlap somewhat, it is evident that these .major revisions to the OHIP program had a substantial affect on the duties of the position However, the general purpose of ,the pOSition remains basically the same 14 To complicate matters further, the position of Customer Service I Clerk was upgraded from OAG 8 to OAG 9 on November 28th, 1991, retroactive to January 1986, as a result of an arbitration award (the Teplitsky Award) As a result, the Union and the Government agreed to create a Secondary Surplus List to provide opportunities to employees -.----.---- '\. 9 declared surplus whose original positions Were later reclassified retroactively This was designed to compensate for the fact that they had been reassigned based on a classification of OAG 8 rather than OAG 9 In practice, this meant that after employees on the Pnmary Surplus List had been considered for these OAG 9 vacancies, the employees on the Secondary Surplus List could be considered before the positions w~re posted This plan was put in the form of a Memorandum of Settlement between the parties dated December 3rd, 1991 There is no issue concerning an alleged violation of this Memorandum. 15 On December 6th, 1991, Rose Whiteside and Mary Stewart filed grievances alleging a violation of Ar.ticle 24 of the ColI.ective Agreement. These grievances indicated the following deSired settlement. "That I be re-appointed and assigned to the position of Customer Service Representative (OAG 9) permanently without loss of pay, benefits or seniority" These grievances were followed by similarly worded grievances \ from. Cecilia Bascom (dated April 30th, 1992), Adelaida Cultura (dated April 30th, 1992), Luizinha Fernandes (dated April 30th, 1994), Norma Yarde (dated May 4th, 1992), and Jane Binnie (dated May 4th, .1992) 16 Of the origin~1 employees surplused in 1989, the grievors are as per the attached list. [The list is not auached to this award but was attached to the agreed statement of fact.] 17 Currently at Toronto, apart from previous and any possible future developmental assignments, there are 23 Customer Service Clerk positions and the Employer anticipates that the complement will remain around that number barring unforeseen matters or other organizational changes for the " '~ 10 foreseeable future 18 All of the present Customer Service Clerks are more senior than each of the Qrievors, with the exception of Martha Neblett and Stephanie Samuels. I 19 Until late 1992, Ms. Neblett's position in the Mif1istry was as an Out-of..,Country Clerk, Classification OAG 9 Due to shortage of work in this position, Ms Neblett was declared surplus according to the procedures outlined in Article 2.4, and according to Article 24 6 1 was reassigned to a vacancy in the Customer Service Clerk position at the Toronto District Office on or about October 5th, 1992 The fundmg for this vacancy was created by the abolition of Ms. Neblett's position as an Out-of-Country Clerk Accordmg<ly, it is the Ministry's position that Ms Neblett's assignment was done in accordance with the requirements of the Collective Agreement. 20 Stephanie Samuels received her declaration of'surplus on July 7th, 1989 along with each of the grievors. In late 1989, Stephanie Samuels was reassigned according to the Collective Agreement surplus procedures to the position of Customer Service Clerk at the Toronto District Office at 2195 Yonge Street. Ms. Samuels, in fact, despite being surplused, never left the Customer ServIce Clerk position, because there was a vacancy which was caused by the retirement of a Customer Service Clerk, and at the time the vacancy arose Ms. Samuels was at the top of the seniority list. She was therefore assigned to this position according to Article 24 6 1 21 ,There are three other perSons currently working at 2195 Yonge -~ -. ~ -. -- -- -- ) Ii . .! I Street as Customer Service Clerks whose history IS peripherally relevant to the instant grievances They are Jeanette Hinves, Jeanette McLellan and Babsie Mahabir 22 Until late 1992, Ms Hinves' position in the Ministry was as a Data Entry Supervisor, Classification OAG 9 Due to shortage of work In this position, Ms Hinves was declared surplus according to the procedures outlined in Article 24, and according to Article 24 6 1 she was reassigned to a vacancy in the Customer Service Clerk position at the Toronto District Office on or about October 5th, 1992 The funding for this vacancy was created oy the abolition of Ms. Hlnves' position as a Data Entry Supervisor Ms. Hinves is more senior than each of the grievors. Accordingly, it is the Ministry's position that Ms Hinves' assignment was done in accordance with the requirements of the Collective Agreement. 23 Until Apnl 2nd, 1990, Jeanette McLellan was employed as a Customer Service Clerk at the General Manager's Liaison Office at 7 Overlea Boulevard On or about April 2nd, 1990, Ms McLellan's position and dollars were geographically relocated to the Toronto District Offices at 2195 Yonge Street. It is the position of the Ministry that this relocation was done In accordance with tfle provisions of the Collective Agr~ement 24. B~bsie Mahabir is a Customer Service Clerk on the payroll of the Mississauga District Office Until Jariluary of 1991, Ms Mahabir performed her Customer Service Clerk functions at the Mississauga Office However, in January.of 1991 Ms Mahabir relocated to the Toronto District Offices and sinCe that date has been working out of 2195 Yonge Street. However, Ms. Mahabir is still on the payroll and considered to be a part of the 12 <.. Mississauga District Office As such, she is not included amohg the complement of 23 persons presently working as Customer Service Clerks at \ the Toronto District Office I Union Argument Union counsel began his submissions with the observation that the thrust of ~ the union's case was that ttle work of the grievors continued to be performed after the surplus notices were issued, and in fact, that it continues to be performed to this day In support of this assertion, the union relied in part on the agreed statement of fact, and union counsel spent some time reviewing the salient parts of that agreed statement with the i Board \ Counsel noted that thegrievors received their surplus declaration on July 7, 1989 At the time the grievors were declared surplus there were seven contract employees working as Customer Service Clerks at the Toronto District Office These contract employees continued to work until the Spri"ll9 of 1991, and they were joined by three retired employees who worked on a temporary basis for up to three months in 1990 The fact that these contract employees continued to work aftet the ~urplus declaration and after the grievors had been reassigned to other positions was the union's first "smoking gun" and indicated, in union counsel's submiSSion, the continued existence of the surplused Rositions Another fact also indicating the continued existence of these positions was the additional staff hired to work on the 1-800 hotline established for the purpose of handling the overflow of customer concerns Eight of these employees became customer service clerks on or about October 29, 1990 ---- 1,J 1! ~ These temporary assignments concluded at the end of March 1991, and, according to union counsel, further demonstrated the existence of customer service clerk positions after the grievors had been reassigned A third factor suggesting the continued existence of cUstomer service clerk positions was the number of employees given customer service positions on an acting basis or on developmental assignments The developmental assignments began in October 1990, and counsel pointed out that the first posting for an acting appointment was on October 25, 1990 Four customer service clerks were sought in this posting for a period not to exceed six months The qualifications sought included the ability to cope effectively with conflict situations using tact and diplomacy, and a positive and pleasant attitude in dealing with the public In person and on the telephone The second posting for five customer service clerks on temporary assignment not to exceed six months was on May 31, 1991 It sought the same qualifications as the first posting as well as "de'monstrated knowledge of Registration ProcedUFies and Policy" This posting also indicated, among other things, that previous experience in customer- service was required A third posting- .for 30 customer service clerks in the Toronto Office was posted on July 12, 1991 This posting also indicated that the length of the assignment was not to exceed SIX months. A fourth posting \ for ten positions not to exceed SIX months went up on April 9, 1992 This IS the first posting to indicate that it was both a developmental "and/or" an acting opportunity Among the ql!Jalifications required was "willingness to learn registration policies and procedures" Another posting, dated November 5, 1992, called for six customer service clerks on a developmental assignment for a period not to exceed six months. Whil~ this opportunity was posted, it has not been filled It is worth noting that at f ----.----- 't'. 14 \ the bottom of this posting a signature appears indicating that thi$ posting has received "union approval" I I In counsel's submission, the different postings indicate that the employer, I I beginning in October 1990 and through 1992, has sought a considerable number of customer service clerks, and these positions were filled after the grievors were reassigned. Counsel pointed out that at least seven contract employees, eight hotline employees and all of the employees hired by way of posting, either on an acting or developmental assignment, proved the continued existence of the positions in question Further eVidence of the continued existence of the positions was found in the fact that six employees have beefl permanently hired as customer service clerks at the Toronto District Office since the surplus declaration Counsel reviewed with the Board the details of these six appointments I Turning first to Ms. Mahablr, counsel argued that Ms Mahabir has. been - I working at the TorontQ District Office since January 19~ 1, and the fact I I that she is on the Mississauga office's payroll was not determinative of I anything The fact was that she was doing Ministry work in the Toronto District Office, and must be -considered part of the Toronto office complement. Turning next to Gloria Farranto (whose name does not appear in the agreed statement of fact, but who is referred to in one of the exhibits as one of six employees hired as a customer s~rvice clerk after the surplus declaration), counsel advised the Board that although Ms. Farranto is now retired, she worked as a customer service clerk between April 1 5, 1991 and September 1992 Ms Farranto was previously a supervisor who had been declared surplus. eounsel argued that the fact that Ms Farranto \ worked in Cl customer service position for eighteen months after the \ ( 15 " grievors had been declared surplus' proved the contlnLJing existence of another customer service position. With respect to Stephanie Samuels, counsel pointed out that she was a customer service Clerk who received her surplus notice dn July 7, 1989 On October 26, 1989, Ms. Samuels was reassigned to her customer service clerk position as a result of a retirement. In the meantime; otner customer J service clerks with greater seniority than Ms Samuels had been assigned to other positions by virtue of Article 24 Counsel pointed out that the very day that Ms Samuels was given a permanent customer service clerk position, she had less seniority than at least one other customer service clerk, Cecilia Bascom, who had also been declared surpllJs on July 7, 1989 and who had been subsequently reassigned, but who was not scheduled to begin her new position until October 29, 1989 Counsel. pointed out that Ms Bascom had received notice of her new position prior to Ms Samuels receiving the customer service 'C1erk position on October 26, 1989 and argued that Ms Bascom should have received the customer service clerk position, not Ms. Samuels, 'because she had not yet begun work in her new job, and was, on October 26, \1989" the most senior customer service clerk working at the Toronto District OHice With respect to J M McLellan, counsel poihted out that Ms McLellan worked I at the employer's Overlea Office until April 2, 1990 On that date, her customer service clerk position, and the budget allocated to it, were moved to the Toronto District Office It was important, counsel argued, to consider this transfer of a job in context. Two days after Ms MqLellan was moved to the Toronto District Office, Ms Whiteside was reassigned according to Article 24 to Mississauga As already noted, Ms Whiteside ( 16 was later able to arrange a switch with another employee which returned her to the Toronto District Office In counsel's submission, the important point in all of this is that Ms. McLellan remains in the customer service clerk position, and that position rightfully belongs to one of the grievors In counsel's words, either there is a customer service clerk position or "- there is not. And counsel argued that the arrival of Ms McLellan, and her r continued presence working as a cwstomer service clerk at the Toronto District Office, indicates that there was no abolition in at least one position With respect to Martha Neblett, cOliJnsel advised the Board that the union did not contest the employer's decision to abolish the Out-of-Country Clerk position What it did question, however, is the reassignment of Ms Neblett to a customer service clerk position at the Toronto District Office Again the question to be asked, and counsel asked it, was wh~ther there was a customer service clerk position at the Toronto District: Office, and if there was, counsel argued that it should have been given to someone more senior than Ms Neblett, whose seniority only dates to 1 988 --... With respect to Jeanette Hinves, counsel agreed that this former supervisor was a long-service employee Nevertheless, he argued that her assignment to a customer service clerk position at the Toronto District Office on October 5, 1992 was further proof of the continued existence of customer - service clerk positions at that location Very simply, in counsel's argument, the fact that six employees were given customer service clerk positions, ailong with the other evidence referred to earlier, demonstrates that at least some customer clerk pOSitions , I 0 ) 1,7 \ continued after the grievors were surpluseq, and therefore proves a violation of Article 24 Counsel made it clear in his submissions that he was not accusing the Ministry of acting in bad faith, and he agreed that the situation was not static at the Toronto District Office But for whatever reason, counsel" argued that some customer service clerk positions were not abolished and that the customer service work of surplused employees continued to be ,performed Counsel also did not dispute the fact that the employer had the right to determine employee complement. This was not, however, the issue in the instant case The issue before the Board, in counsel's submission, was whether the evidence, including the presence of contract employees, the use of the hotline clerks, the numerous. acting and developr[l1ental assignments and the employment of six other employees as customer service clerks following the surplus declaration, established the existence of continuing customer service clerk positions, and counsel argued that it did It was noteworthy, counsel argued, that the postings did not mention the word "developmental assignment" until April 1992 Counsel agreed that there f was a training aspect to the positions, but suggested t~at along with the six appointments referred to above, the postings for temporary and developmental assignments indicated that the main employer objective was the performance of customer serviee work At the very least, counsel argued, at least seven customer service clerk positions remained at 2195 Yonge Street after the grievors were declared surplus and reassigned. In counsel's submission, the proper remedy in these circumstances was for the Board to declare the grievors' surplus declarations to be-void. - - - -- - -- - - . -. - -- - -- -- - - - . -- - - ". -- - - ,. 18 In 'support of this proposition counsel referred to Babb et al 1173/88 (Wilson) That case concerned a surplus declaration in on~ ministry, ( \ followed by the transfer of some of the surplused work to -another ministry The union argued, among other things, that the transferred work continued to be performed and that the Jobs were not abolished On the evidence before it, the Board determined that the conditions setout in Article 24 had not been met, and accordingly declared the surplus declaration void Counsel requested that the Board d0 the same thing in. the, instant case 111 that the grievors should never have been- surplused because their work continued to eXist. - In the alternative, counsel argued that it was open to the Board to find that the grievors were properly surplused but that the date of the surplus was later than that put into place as sh0wn by the evidence of continuing positions. Counsel suggested that the Board could make such a declaration without pinpointing the actual date, but the Board indicated that it wouid be extremely reluctant to do so for a declaration of that kind would likely not bring any finality to these proceedings AccordmglY, counsel suggested that four dates could be established with certainty and they were the dates that Ms Mahabir, Ms. McLellan, Ms. Neblett and Ms. Hinves began work as customer service clerks at 2195 Yonge Street. In counsel's alternative submission, the, grievors with greater seniority than these incumbents should have been offered these positions Moreover, other dates could also be established by the Board by turning to the various postings for significant numbers of customer service clerks For example, on July 12, 1991 the employer posted for 30 temporary + 1 19 customer service clerk positions in Toronto, and some of these positions continued to be- performed well mto 1992 So even leaving the developmental assignments aside, which were first posted in April 1992, counsel argued that there was evidence for the Board to establish that the jobs continued until sometime in 1992, and union and employer counsel undertook to provide the Board with a joint statement Indicating how many temporary customer service clerks worked into 1992, and until exactly , what point. This information, courilsel suggested, would further assist the Board in determining at what point the grievors should have been allowed to continue to work Some information was later provided: to the- Board, but as it turns out, given our reasons for dismissing this grievance, this information did not prove useful to us \ Counsel concluded his submissions by pointing out that while this case was, in part, about money, it was also about the position in question, and he stated that the customer service clerk position was a preferred position In counsel's view, there was an extremely strong case to be made that at least four of these positions remained and that those four positions should be given to the grievors in accordance with their seniority Counsel asked the Board, should any of the grievances succeed, to remain seized, With respect to the implementation of the award -Employer Argument Employer counsel began, his submissions by reviewing ~ome of the factual background to this case Counsel noted that under the old OHIP premium system a large number of customer service clerks were required When the government decidecJ to eliminate the premium and replace it with the Employer Health Tax, the number of customer service clerks required was 20 reduced and over 300 customer service clerks in Ontario received surplus notices When this decision was made the employer was, according to counsel, required to apply the provisions of Article. 24 of the Collective Agreement, and counsel noted that this provision clearly imposed this obligation on the employer any time a layoff "may" occur As the employer expected, as a result of its decision to eliminate premiums that a layoff "may" occur, it had no choice in the summer of 1989 but to issue the surplus declaration to a.ffected employees, And this, counsel suggested, is exactly what It did Counsel pointed out that the surplus provision was extremely complex, and also depended to a large extent on timing In counsel's view, Article 24 operates so as to place the most senior employees who have been declared surplus first. Once a surplused employee is offered a placement, he or she has two choices: either accept it or take layoff with severance On the one hand, this system operates to the benefit of senior employees as they are offered positions first. On the other hand, this system 'may result in the appearance of unfairness to them, in counsel's view, If a better position appears after more senior employees have taken other placements. And \ / counsel also pointed out that the operation of the system will, in some cases, require the assignment of surplused employees to positions with that assignment becoming effective: at some later date.! I In the instant case, all of the grievors were, in counsel's view, offered available jobs according to seniority Accordingly, in his view, there was nO_J violation of the Collective Agreement. Counsel also pointed out that at the time oJ the surplus declaration, and in the assignment period -.. - - - - - - , ~-- ....... 21 immediately thereafter, all of the ,grievors thought that the customer service clerk position was an OAG 8 position, and that the assignments went without incident. Counsel noted that it was in the employees' interest to receive an early surplus declaration because that would provide them - with more time to take advantage of the Collective Agreement's surplu$ provision Counsel argued that the problem arrose because of the difficulties in issuing Health cards to residents of Ontario ( These difficulties. resulted in an ........ urgent but short-term demand for additional customer service clerks This additional demand resulted in the employer keepmg the seven temporary customer clerks on duty for an additional period. Counsel argued that the employer did not create new jo~s, but temporarily continued jobs that already existed when the grievors were declared surplus In counsel's submission, the employer did not know at the time of these events how long it would take to deal with the unaniticipated problems that arose, and he suggested that many of the facts that may appear to favour the union only do so because of the benefit of hindsight. At the time, there was no way of knowing when the demand for customer service clerks would slack off In counsel's view, it would have been extremely irresponsible for the employer to cancel the surplus noti'ces in April 1990 when the unexpected \ One result of doing so would have need for customer service clerks arose "- been to reduce the opportunities available to these employees by reducing their time on the surplus list. Instead of choosing this course of action, counsel submitted that the employer chose to meet its temporary need by raiding 'he hotline employees and by offering a number of temporary customer service clerk opportunities - opportunities that met its needs but 22 ~ that also provided training to Ontario public servants Counsel pointed out that the union and the employer were both committed to providing employees with developmental assignments, and that the employer was - entitled to offer these assignments even when some employees who previously occupied the assignment in question had been, or soon wOLJld be, surplused In all of this, counsel emphasized, there was not even the slightest element of bad faith or any hint of untoward employer manipulation. Counsel noted that by the end of 1991 most of the hotJine workers were gone as were the contract employees. Then a special panel of this Board , chaired by Mr Teplitsky issued an order raising the cI~ssification of the \ customer service position to OAG 9 The result of this award was the filing of the Whiteside and Stewart grievances in late 1991, and the other grievances the following s'pring Counsel made some observations about the additional ~ix employees ~hose positions the union suggested evidenced continuing customer service clerk work. With respect to Ms.. Mahabir,. counsel advised the Board that the employer was simply accommodatililQ her request to work in the Toronto I office rather than the Mississauga Office Counsel conceded that she was performing Ministry work in Toronto, but maintained that she was only working there at her own request; and he advised the Board .that she could easily be transferred back to Mississauga The parties earlier agreed that she was on the Mississauga payroll) and was considered to be part of the Mississauga District. Counsel indicated that if she was returned to the Mississauga Office no one would replace her \ --- ~ 23 Likewise, with respect to Ms. McLellan, counsel argued that her assignment to the Toronto District Office in April 1992 was not evidence of a new or continuing position at that location Ms. McLellan was a customer service clerk before she was assigned to the Toronto District Office and she remained one after she received this geographical assignment. In both cases she was doing Ministry customer service work, and it could hardly be said, counsel suggested, that Just because she was moved from one Ministry office to another, a new job had been created or that the movement illustrated the continuing nature of another employee's position Counsel ne,xt observed that with the exception of Ms Neblett and Ms Samuels, the other "new" customer service clerks all had greater seniority than the grievors With respect to Ms Neblett, counsel argued that in placing her in a customer service position the employer did not violate any provision of the Collective Agreement Counsel noted that Ms Neblett's position was declared surplus because of a lack of work, and all that the employer did is transfer the funding from the Out-of-Country clerk position to customer service At the time, tfuat it did so Ms. Neblett was senior on the surplus list and so was appointed to a customer service clerk position This was, in counsel's view, completely in accordance with Article 24 Counsel noted that Ms. Neblett received this job years after the grievors were declared surplus and reassigned elsewhere in the public service With respect to Ms. Samuels, counsel agreed that she received a surplus notice at the exact time as all of the other customer service clerks However, a number of these other clerks had greater seniority than she had and so they received their surplus assignments ahead of her When Ms. Samuels was assigned to a customer service clerk position on October 2'6, i 24 1989 she was at the top of the surplus list, and this assignment revealed, in counsel's submission, how a perception of unfairness, could sometimes I arise out of the proper operation of the surplus provision The unfairness, of course, is that junior employees may end up with better opportunities than more senior ones r \ One of the members of the Board questioned employer counsel about why. Ms. Samuels was allowed to be surplusecl into her own position when Ms. "- Bascom was still working as a customer service clerk. It will be recalled that Ms. Bascom had greater seniority than Ms Samuels Both employees "- had been declared surplus at the same time Ms. Bascom had, pursuant to Article 24, been reassigned to another position, but that reassignment had not yet taken effect. Before it took effect, Ms. Samuels moved to the top of the surplus list. A non~surplused customer service clerk retired and Ms. Samuels was surplused into her own job Counsel was asked whether these facts indicated a v,iolation of the surplus provision given the importance of I seniority COl,lnsel responded that this is the way that the surplus system works, and that employees are- giv~nI the opportunity to be reassigned according to seniority, and whether or not that reassignment has taken place at the time another job arises was ultimately, in counsel's submission, immaterial Counsel con'ceded that there was an element of /' arbitrariness in this, but submitted that this is the only way the system could operate If employees who received a surplus declaration had the right, up until the very last minute before they began work in their new position, to change their mind in response to the occurrence of a better vacancy the entire system, counsel argued, would quickly grind to a halt. Very simply, in counsel's view, the operation of the system involved a ~' significant measure of .luck, in terms of what jobs were available to a r~' 25 surplused employee when he or she moved to the head of the seniority list. It was very possible that a senior employee would end up with a "worse" or "less desirable" position than a more junior employee it should, however, be noted that at the time that Ms. Samuels received her surplus assignment 1 as a customer service clerk, that position had not yet b~en ordered \ reclassified at a higher level in the OAG series. In support of his submissions, counsel referred to a number of cases including Union Grievance 2507/86 (Samuels) In that case, the Board I considered the meaning of the words "may occur" found in Article 24 The Board found that "given the comprehensive machinery provided in Article 24, the parties could not have intended to start up the machinery if there was only a vague possibility that an employee may be laid off" The Board went on to say "In our view, there has to be a clear likelihood that the lay-off will occur before an affected employee can take advantage of Article 24" (at 8) Counsel suggested that there was more than a clear likelihood in the instant case, and tlilat it was only because of the unforeseen problems arising out of the introduction of the health cards that additional temporary customer service clerks positions were required '\ Counsel cited Babb et al and suggested that it could be distinguished from the instant case because it involved the transfer of work from one ministry to another while the instant case involved the elimination of a large number of positions. Counsel also referred to Palangio 227/83 (Verity) for the proposition that the application of the surplus provision is necessarily regimented to a certain extent: The only choice given to a surplus employee under Article / 24 is to accept an assignment or to face lay-off The " 26 assignment provisions of surplus employees under that Article is not designed to provide an employee with a preferred job, 'Or a choice among jobs, or even the same job It is designed -however, to provide a job with an element of salary protection through the device of the assignment and the' red circling provisions The process of assignmernt of surplus employees must have a degree or order and sequence in view of the numbers of employees involved in a major reorganization (at 9) Similarly, counsel argued in the instant case that all that happened was that surplused employees were given new assignments in the order of seniority as those new assignments became available The Board in Palangio also observed that the surplus provision involved "'an aspect of the 'luck of the draw'" (at 9) Counsel also referred to Read et al 1548/89 (Gorsky), and argued that it stood for the proposition that employees do not have extensive choices following a surplus declaration, they can either take aR offered reassignment or accept layoff Counsel cited a number of other authorities including Lenehan et al 71/80 (Gorsky), Lonsdale 746/a9 (Fisher) and Couture/Goddard 2093/87 (Dissanayake), and pointed out that there was no evidence of any employer impropriety, and suggested that the evidence established that the employer had acted in good faith and in complete compliance with Article 24 Counsel also argued that management has the ( right, under section 18 of the Crown Employees Collective Bargaining Act, f to determine employee complement at the Toronto District Office, and there was no evidence of it having done so in violation of any provision of the Collective Agreef11ent. Counsel submitted that if the employer had known in advance of the problems that eventually occurred with respect to iSSUing - -- - " '~ 27 1 h~alth cards, it may not have issued the surplus notices. exactly when it did. The employer did not know, nor could it have known, and in these circumstances, counsel argued, the employer acted properly and fairly In conclusion, counsel asked the Board to dismiss the grievances Union Reply In reply, union counsel noted that while Article 24 did impose an obligation on the employer to notify employees where a layoff may occur, it also provided that the subsequent assignment, displacement or layoff shall be in accordance with seniority Counsel argued that not only did the employer vastly under-estimate the number of customer service clerks required at the Toronto District Office, it also failed to implement Article 24 in accordance with seniority Counsel argued that the evidence made it crystal clear that the customer service clerk positions held by the grievors continued until at least the end of 1991, and arguably well into 1992 Counsel agreed that there was some advantage in receiving a surplus declaration earlier rather than later, but suggested that the surplus declaration still had to be reasonable The fact ( that the jobs continued for years af:ter the declaration suggested to union counsel that it was not. In counsel's view, not only was the surplus declaration unreasonable, but Article .24 had not, on the evidence, been properly applied And the Samuels-Bascom case illustrated this point. In counsel's view, Ms Bascom, as the senior employee at the Toronto District Office, should have been given the opportunity to bump into her own job on October 26 when a customer service clerk position became vacant as a result of a retirement. - . ~~.. -. ----- ------ - -- - I -. 28 / The fact that she was not given this opportunity proved, counsel argued, a violation of the seniority requirements of Article 24 .<" In counsel's view, the correct application of the provision required that the most senior employee on the job be offered the new position, whether or not he or she .had been reassigned to _another job. Moreover, counsel argued thiilt the existence of new positions was established by the employer transferring Ms Mahabir and assigning J M McLellan and Martha Neblett to the Toronto District Office Ms. Neblett and Ms Samuels have less seniority than the .grievors. Counsel was not requesting that Ms Mahabir be transferred back to Mississauga, and he made this clear in his submissions. What he was pointing out, however, was that these employees were doing continuing. cu/stoiner service work in the Toronto District Office, and that suggested a viola~ion of Article 24 Decision Having carefully considered the evidence and argument~ of the parties, we have come to the conclusion that the Bascom and Whiteside grievances should be upheld and the other grievances dismissed Article 24 1 of the Collective Agreement clearly provides that the 9 assignment, lay-off or displacement of employees by reason of shortage of work or funds, or the abolition of a, position or some other material change in the organization, shall be in accordance with seniority The remainder of Article 24 sets out a detailed and lengthy procedure for the placement of \ surplused employees in the Ontario Public Service i In some cases where an employee receives a surplus notice, his or her ; placement will be relatively straightforward and will occur without I I t I,~ incident. In other cases, such as the instant one where more than 300 ! l 11 " , l \. 'j 29 customer service d~rks received surplus notices at exa.ctly the same time, difficulties are sure to arise, particularly where the employer, for reasons beyond its control, turns out to have been premature in the issuance of some surplus notices. .In the instant case, we find that the employer made. a decision to surplus thegrievors and other customer service clerks based on the information it had available, and the conclusions it reached about necessary employee complement. Once it determined tlitat a reduction in customer service clerk positions was impending, it was required to issue the surplus notices The grievors in this case were then surplused However, we find that the surplus ofJMs Bascom and Ms Whiteside was not in compliance with Article 24 Before elaborating on that. finding we would like to state that there is absolutely no evidence in this case of any employer bad faith in the administration of Article 24 The evidence in this case indicates that the surplus procedure was effectively completed by the beginning of April 1 990 All of the grievors "-- had been reassigned by that point. However, for reasons set out earlier in this award, a new and totally unexpected need for customer service clerk positions arose in April, and the employer responded to this need by drawing on personnel from a variety of sources including the temporary assignment of the 1-800 hotline employees, extending the terms of existing contract employees and engaging staff through a large number of acting and later developmental assignments. We find, as a matter of fact, that the \ events that took place after the beginning of April are not material to a determination of. whether Article 24 was violated, as these events are all subsequent to the completion of the surplus assignments and placements of , ~.; 30 Ms. Yarde, Ms. Binnie, Ms. Fernandes, Ms Cultura, and Ms. Stewart. Accordingly, we do not find that the accommodation of Ms Mahabir, the employment of Ms. Hinves, the reassignment of Ms. Neblett and the temporary assignment of Ms Farranto are determinative of any of the issues in this case As a general matter, we are of the view that events that take place after a surplus declaration has been made, and after the surplused employees have been assigned and then placed, Will Iflot be germane to any assessment of an allegation of the violation of Article 24 In reaching this general conclusion, however, we do so in the context of this particular case, where the surplus declaration was followed by a truly unantidpated event requiring additional employees. It is worth repeating that there is no evidence in this case of any employer bad faith Indeed, all of the evidence is to the opposite effect, and indicates that the employer sought, in a 1 manner it considered to be in conformity with the Collective Agreement, to meet its unanticipated staffin9 requirements We are in agreement with other panels 9f this Board that there is a necessary element of chance in the surplus procedure Senior employees are surplused first, ~nd the provision operates to provide them, in recognition of their seniority, with first crack at available jobs The operation of this procedure may, although this is somewhat unlikely, occasionally result in junior employees obtaining "better" or -umore preferable" jobs than senior employees where, for example, the senior employees are reassigned and a junior employee moves to the head of a seniority list and. a new and "better" vacancy arises In the instant case, we note in passing that the customer service clerk position appears to have -- - - -" - . --- - --- -- - -~------ - - "- "' 31 become a particularly preferable assignment following the l:eplitsky Award Accordingly, we find that the surplus assignments of Ms. Yarde, Ms. Binnie, Ms. Fernandes, Ms. Cultura, and Ms. Stewart do not violate the Collective Agreement because th~se assignments were made, and took effect, prior to the arrival of the post-April 1 990 work bubble And, as already Indicated, we do not find that the events that took place after April 1990 are material J to this case because they rare not related to the imtial surplus declaration and its implementation It is worth recalling that the surplus declaration was predicated on the elmination of OHIP premiums, bu~ the"work bubble" was caused by unexpected difficulties arising followingi the introduction of OHIP Health Numbers. Having made these findings and having reached these conclusions, we have no choice but to conclude that all of the grievors except Ms Bascom and Ms Whiteside were properly surplused under Article 24 in that they were properly declared surplus, properly received surplus assignments and were, in fact, prof>erly surplused into new positions With respect to Ms Bascom, we simply cannot accept, however, given the importance of seniority, that just because an employee has received a surplus assignment, that employee loses the benefits of his or her seniority from the moment he or she accepts the surplus assignment. Ms Bascom accepted a surplus assignment, and that assignment was scheduled to take effect, and did take effect, on October 29, 1989 Meanwhile, after Ms. Bascom received her surplus assignment, but before it took effect, a customer service clerk vacancy arose and, on October 26, 1989, it was ~iven to Ms. Samuels, who had moved to the top of the seniority list in the Toronto District Office We do not find that Ms. Samuels was surplused into , \ -- - ,- t ~ 32 her own position, rather, we find that ,her surplus declaration was effectively canceled In the result, she remained in her own position. In these circumstances, -we find that the employer should have cancelled Ms. Bascom's surplus assignment given that the vacancy arose prior to that assignment taking effect. In our vi~w, Article 24 grants employees certain 1 benefits based on seniority, and those benefits must, in recognition of that vital interest and the arbitral juris(Drudence considered generaliy, be strictly construed The whole point of the provision is to ensure that senior employees have first crack at the better jobs, and in almost every case, a surplused employee will not be moving to a better job, but to a ~ess desirable position If the employee's own job, which will almost always be \ the better job, becomes available before the surplus assignment takes effect, that assi~nment should generally be rescinded, although there may, of course, be circumstances not before us in this case that would dictate a different result. c- Obviously management has its own legitimate interests, including the interest of the orderly planning of surplus assignments. As was noted in Read et ai, 'IINot only employees have, a genuine concern,over the subject of job security when there is a material change in organization or the abolition of a position. The Employer is concerned With carrying out a reorganization in an orderly fashion" (at 20) We find, however, that in I balancing employee and employer interests, it would not -impose a 1 '- , i significant blJrden on management to require it to give ,effect to an I I employee's seniority interests in his or her position up to the point that a J : ! J surplus assignment actually takes effect. As already noted, once that j I assignment takes effect, the employees lose whatever seniority interests , 11 ~ ~. I c , ( ,~."""""~' ..... .- .~J. 33 they may have had in their previous position Accordingly, in this case, we j find that the employer breached Article 24 of the Collective Agreement when it proceeded with Ms Bascom's reassignment notwithstanding the - fact that there was a customer service clerk vacancy in the time period immediately preceding that reassigmment taking effect. With respect to Ms Whiteside, we also find a breach of Article 24, although in this case we make this finding for other reasons Ms. Whiteside is the last of the grievors to have a surplus assignment take effect, and hers took effect on April 4, 1990 Meanwhile, on April 2, 1990, Ms McLellan's position, and the funding ,for it, werie reallocated from the Overlea Office to the Toronto District Office The employer may, of course, arrange its work any way it wishes, provided that it does so in compliance with the r Collective Agreement. We find that this reallocation led to a violation of Article 24 because it clearly indicates that there was a customer service clerk position at the Toronto Drstrict Office at exactly the same time as - Ms Whiteside was surplused out of her customer service clerk position ! There was a- seniority list for the Toronto District Office, and Ms McLellan was not on it. Ms. Whiteside, however, was on that list, and she should have had her surplus assignment cancelled if a vacancy occurred in the Toronto District Office ) Considering the importance of seniority, and the recognition given to it in the Collective Agreement, the employer cannot justify its actions in this case by stating that Ms. McLellan was performing Ministry work in the Overlea Office as well as in the Toronto District Office The fact of the matter is that the Toronto District Office had a separate seniority list, and employees on that list were entitled to positions in that office according to , - .- ,~ ~} ~') 34 I seniority When the employer moved Ms. McLellan tb that office it demonstrated the continuing existenc~ of a job, and that job should have been given to an employee on the Toronto District OffiCe seniority list. Before turning to remedy, a few additional observations are appropriate We can well understand why the grievors feel aggneved in this particular I case The post-April 1 990 staffing requirements would suggest to surplused employees that their jobs had not really been surplused in that their work continued The temporariy assignment of Ms. Whiteside and Ms Stewart to these positions might f~rther colour the grievors' view of this case Nevertheless, we find that these temporary and other assignments, coming as they did to meet the unanticipated work bubble, are not material to the allegation of the violation of Article 24 Remedy Having found a violation of Article 24, we must now turn to the question of \ remedy in the Bascom and Whiteside grievances. Although we are of the view that we possess the jurisdiction to order the employer tq undo Ms Bascom's and Ms Whiteside's surplus assignments, we are of the view that this is not an appropriate case for us to do so, and that the proper remedy is a declaration of violation In this case, we found in our preliminary award that the Whiteside grievance was timely based on the application of the principle in, among other cases, Pierre 0492/86 (Verity) There was no factual dispute, , however, that there was a long delay between the time Ms. Whiteside was 1 surplused and the time when she filed a grievance The same is true witt) respect to Ms. Bascom, although the employer did not raise any timeliness J ,~~ I , ~ _. .t, ;\- ~., 35 objection with respect to her grievance While we were satisfied, on the - evidence, that Ms Whiteside did not know of her Collective Agreement rights until long after her reassignment, and presumably the same can be said with respect to Ms Bascom, we cannot help but conclude that the very long delay in filing a grievance must be considered in fashioning a remedy in this par,ticular case \ We are of the view that in the same way that seniority rights must be 1 strictly construed, they must also be carefully monitored and any allegations of violation must be quickly broug,ht to the employer's attention. This imposes an obl.igation on both employees and their union Employees may end up having the right to grieve if they only find but about the possible violation of the surplus provision of the Collective Agreement long after that violation has taken place, but that right may, in recognition of the delay and the inevitable prejudice to the employer and' to all subsequently surplused employees, considering how the surplus procedure operates, result in a limitation of any remedy should the grievance --. ultimately succeed In this case, the employer was advIsed long after the date We found the surplus declarations to have taken effect that the grievors and their union were taking issue with the surplus assignments. Had the grievances been quickly filed and processed we would likely have been ready to undo Ms I Whiteside's and Ms Bascom's surpll!ls assignments Given the delay in filing the Whiteside and Bascom gri~vances, it would not be appropriate to do so at this stage We also take note irn this case of its peculiar circumstances, including the iss.ue of the Teplitsky Award Moreover, the circumstances in which an employee receives a surplus declaration followed by a surplus 1 I I ., r ---- - .4 ~ (~; :1? 'r 36 assignment followed by his or her own job becoming va~ant before the - surplus assignment takes effect will not, in our view, be everyday events. In conclusion, we find that the employer violated Article 24 insofar as it improperly surplused Ms. Whiteside and Ms Bascom. We issue a declaration to that effect. The other grievances are dismissed DATED at T oronto- this 1st day of June~ 1993 _~1~j~___~ William Kaplan "- Vice-Chairperson t) ~ P Klym /' Member J A_~ _~~~' D Clark Member I \. -- -