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HomeMy WebLinkAbout1994-0661TRYBUS97_06_26 --------- ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (41tJ) 32tJ-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (41tJ) 32tJ-1396 GSB # 661/94, 662/94, 667/94 OPSEU # 94A940, 94A93S-9, 94A937 IN THE HATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Trybus et al) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE F D. Briggs Vice-Chair T Browes-Bugden Member M. Milich Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE C Nikolich EMPLOYER Counsel Legal Services Branch Management Board Secretarait HEARING July 10, 11, 1996 - ~ -------- - There are three gnevors WIth surular gnevances consohdated before thIS Board. On October of 1995, the Board Issued an mtenm rulmg dISlll1Ssmg the Employer's prehmmary motIon regardmg tlmelmess Subsequent to that rulmg, there was a heanng regardmg the ments of the gnevances. It would be useful at tlus pomt to outlme some of the relevant lustory wluch was not m dIspute Pnor to lll1d 1991, a pohcy gnevance was filed on behalf of seasonal employees allegmg they were 11llproperly classIfied. In the summer of 1991, the partIes SIgned a Memorandum of Settlement regardmg the employment status of seasonal employees. That agreement was made an order of the Board. It was dated July 17, 1991, and stated. In full and fmal settlement of the above-captIOned gnevance, the parties agree as follows. 1 The Ministry shall IdentIfy to the Urnon all Group 3 posItIons of at least 43 week duration and shall also identIfy any and all current mcumbents. 2. The Mirnstry shall appomt all of the current mcumbents of pOSitIons of 43 weeks or longer duration, provided they have completed at least two seasons of employment as a seasonal unclaSSIfied employee, or have been mcumbent m the pOSItion for the last 52 weeks of actIve employment, to the classIfied CIvil servIce effectIve the date of tIns settlement. 3 The Mirnstry shall calculate ,each mcumbent's length of contmuous servIce as a clasSIfied CIvil servant by credItmg each mcumbent WIth sernonty accumulated under artIcle 3 20 1 of the collectIve agreement, to be pro-rated as a calendar rather than hourly servIce, thus provI<ling a calendar date of contmuous servIce, based upon hours per day on the appropnate schedule. 4 The MimstIy shall, upon havmg unplemented paragraphs 2 and 3 above, apply artIcle 24 of the collective agreement to all mcumbents Identified under paragraph 2 and the mcumbents shall also have the benefit of the Job secunty guarantees proVIded by the MllllStry pursuant to the Deputy MinIster's bulletm dated May 21, 1991 5 The MimstIy agrees that pOSitIons Identified as 43 weeks or longer but whIch have no mcumbent who shall be appomted to the CiVil servIce pursuant to paragraph 2, shall be posted m accordance WIth artIcle 4 of the collective agreement or staffed m accordance WIth other procedures agreed to b) the parties or deleted. Posted pOSItIons wIll contam an area of search allowmg apphcatlOns only from current claSSified and unclaSSified staff wIthm the MimstI) 1 -" ..-- ~ ~ 2 6 The Mmlstry and the Umon agree to appomt an equal number of representatives to a Jomt conumttee to resolve anomahes flowmg from tlus settlement where the duration of the posltlon or tenure of the mcumbent IS unclear or m dispute. The parties further agree that there shall be full disclosure of all relevant mformatlon to facihtate tlus comlmttee's operation. 7 Any dtspute that IS not resolved by the Jomt conumttee under paragraph 6, above, may be advanced by the Umon drrectly to step 3 of the gnevance procedure as a means of speedmg resolutIOn. 8 The Mwstry agrees that seasonal unclassified POSItiOns shall not be of 43 weeks or more duratlon followed by rune or less weeks mactlve employment m any twelve-month penod. The Umon agrees that the posItions below 43 weeks per year are properly charactenzed as seasonal m nature. 9 In the event that the Mimstry does not adhere to paragraph 8 above, the provlSlons of thiS settlement shall apply However the parties may agree mutually to alternative remedies. 10 The Mimstry and the Umon agree that tlus settlement shall be commumcated to Mimstry staff by way of sunultaneous commumcatlOns. 11 ThiS settlement shall be made an order of the Gnevance Settlement Board after the Issuance of the commumcations m paragraph 10 above. 12. The gnevance IS Withdrawn. It was apparent dunng the nnplementatlon of thIs agreement that, as occasIOnally happens, the partIes held dIffenng VIews as to the meamng of the settlement. Hence, the partIes agreed to have the Gnevance Settlement Board hear and determme partIculars matters m dIspute In Re The Crown in Right of Ontario (Ministry of Natural Resources) and OPSEU (Union Grievance) (March 27, 1993), unreported (Barrett), the Board conSIdered questIOns regardmg posItlons appropnate for converSIon. It was determmed that m order for a posItIOn to be converted It had to be held by the same mcumbent for 43 of the 52 week penod. Those weeks dId not have to be consecutlve Further, a person had to hold Just one posItlon, that IS there could not be movement between posItions -~ ~ -~ 3 In Re The Crown in Right (Ministry of Natural Resources) and OPSEU (Union Grievance) (August 9, 1993), the Board found that m the conslderallon ofwmch mcumbents were to be "rolled-over" to full tune posluons, the appropnate ume penod to consIder was the 52 weeks nnmemateIy pnor to the Memorandum of Settlement bemg sIgned. Further, the second proballonary penod of mcumbents had to be completed as of the date of the Memorandum of Settlement. Finally, the Board determmed that m order to be "rolled-over", any tune consIdered had to be m the same Job, that IS, not m a vanety of poslllons The essence of the mstant msputes are captured m the wordmg of the gnevance filed by Tara Jones wmch IS dated May 6, 1994, and stated. RE. IMPLEMENTATION OF MEMORANDUM OF SETTLEMENT UNION GRIEVANCE GSB #2181/90 (ROLLOVER SETTLEMENT) Paragraph 2 oftlns Settlement was not adhered to by the Mirustry Two co-workers (John Connor & Kevin Levesque) were rolled over when they had not passed probatIon and had not worked for 43 weeks as Group 3's m the same Group 3 posItions. Both had worked on a combmatIOn of Gr 1 and Br 3 contracts, Mr Connor m the same pOSItIOn, Mr Levesque m two different posItIons. Contrary to Article A, SectIOn 1 of the CollectIve Agreement, these two co-workers were glVen Supenor Benefits and I was dlscnmmated agamst. Mr Connor worked 40 weeks as a Gr 3 (not 43 as the Settlement reqwred) and 11 weeks as a Group 1 I worked 21 weeks as a Gr 1 and 28 weeks as a Gr 3 m the same position' sunilar to Mr Connor Mr Connor was rolled over usmg lus Gr 1 tIme and I was not. The terms of tlns Settlement were Violated when these people who dtd not meet the cntena were rolled over m the Gnevance Settlement Boards' first declSlon on tlns matter, dated February 25, 1993, (GSB#2181/90), they state on page 7, paragraph 2. Thus we conclude that at a farr and reasonable mterpretatIOn of the Memorandum m accordance With It'S purpose and mtent, IS to proVide that1ill mcumbents of a 43 out of 52 week pOSitIOn, who alone have held the position dunng the year precedmg or encompassmg the settlement, should have the benefit of paragraph 2 of the Memorandum. I alone held my posItIon for the year precedmg the settlement, and therefore accordmg to thiS statement by the GSB should have been given the benefit of paragraph 2 of the Memorandum. ThiS appears to be the kmd of cntena which was used to roll over Mr Connor by the Jomt Labour Management Committee I feel that I should be gIVen the same benefits as my co-workers and be remstated to my pOSition m Terrace Ba) retroactive to June 19, 1991, the same as my co-workers, my co-workers dtd not have to compete for therr pOSitIOns m the claSSified service and I should not have to either All I ask IS to be treated m a manner which IS equal to my co-workers. ~ 4 Ms Jones and Ms Bher gave eVidence at the heanng held on the ments The partles were satIsfied that there was sufficIent uncontested documentary eVidence regardmg Ms. Trybus to allow the Board to consIder all three gnevances. Mr Ron ShelWm, the RegIOnal Human Resources Co-Ordmator for the North-West RegIOn also testIfied. V Irtually none of the eVidence was m dIspute In accordance WIth paragraph 6 of the Memorandum of Settlement, the partles establtshed a Jomt comrmttee to resolve dtsputes at the local and regIOnal level. The Jomt comrmttee sought and receIved mformatIon from hundreds of mdIVIduals and reViewed all requests regardmg converSIOn of pOSItIons and mcumbents. It IS suffiCIent to say that the gnevors made attempts but were not successful at obtammg converSIOn through that process. Ms Jones was workmg as a FIsh and WildlIfe TechnIcIan. Her pOSItIon was converted m accordance WIth the Memorandum of Settlement. She was the mcumbent as of June 13, 1991, but was not "rolled-over" mto classIfied full tune status because, accordmg to the Employer, as the mcumbent she dId n,ot meet the cntena. SpecIfically, she had not worked I two seasons nor had she worked 52 weeks m the pOSItIon. Her contracts WIth the MinIstry were as follows June 6, 1990 - October 30, 1990 - 21 weeks October 31, 1990 - March 31, 1992 - 21 5/7 weeks May 1, 1991 - June 12, 1991 - 6 1/7 weeks Total 48 6 7 weeks Betty Ann BlIer was workmg as a Fish & WildlIfe Clerk m the Terrace Bay Area Office and her pOSItIon was converted. The Employer determmed Ms Bher to have faIled to meet the cntena for converSIOn to classIfied status because she had not completed two seasons as a .~ 5 seasonal employee and had not been m the posItIon for at least 52 weeks pnor to June 13, 1991 Her contracts were May 28, 1990 - July 28, 1990 - 7 5/7 weeks August 20, 1990 - June 12, 1991 - 42 3/7 weeks Total 50 1/7 weeks Ms Trybus held the posItIon of Forest Techmclan m the Terrace Bay Area Office Her posItIon was not converted because, accordmg to the Employer, It did not meet the forty- three week annually recumng cntena. Had her posItIon been converted, she would have qualIfied for conversIOn. Her contract penods were June 13, 1990 - February 28, 1991 - 37 2/7 weeks May 6, 1991 - June 12, 1991 - 425/7 weeks Total 425/7 weeks Mr ShelWm reVIewed the case of another employee at Terrace Bay m lus eVIdence It was revealed that a co-worker of the gnevors, Mr Levesque, was converted even though he did , not meet the cntena of the Memorandum of Settlement. He had actually held two different pOSitIOns m the salIent tune penod wluch should have dlsenntled lum to conversIOn accordmg to the arbltranon of award of Vice Charr Barrett. It was Mr ShelWm's uncontramcted eVIdence that Mr Levesque's case went to the J omt Cotnmlttee where It was deCided to convert lus posItIon. Mr ShelWID also testIfied about the Mnustry pracnce regardmg the lengths of contI"acts He stated that Employer's always conSidered contracts m blocks of weeks That IS to say the Employer conSiders the week to consist of seven days so that 1f the week began on a Monday It would end on the followmg Sunday That IS, m part, because there are many employees -. 6 who work slufts that fall on weekends and so have theIr days off dunng the "normal" work week. The specIfic Issues for tlus Board to address are 1 Should the posloon held by Ms Trybus have been converted accordmg to the memorandum of settlement? 2. Should Ms Jones & Ms. Bher have been rolled over mto the converted posloons were as of date of memorandum of settlement? 3 Should the sltuatlOn of the gnevors' co-worker Levesque have any rmpact on our declslOn and, If so, how? The Dmon argued that a reView of the two Barrett decIsIons and the facts m these cases must lead tlus Board to fmd for the Dmon. The gnevors ought not be refused converSlOn for by bemg, m one mstance, two calendar days short of the specIfied tune Further, m the case of Ms Trybus, m two of the three years she worked as a seasonal employee, she worked m excess of forty three weeks The Dmon suggested that to fmd for the Employer m these matters flIes m the face of the stated purpose of the Memorandum of Settlement. Further, the convertmg of Mr Levesque must be seen as dlscnmmaoon and should lead tlus Board to fmd for the gnevors The Employer also reViewed the Barrett declslOns It was suggested that the answer to the mstant matter can be found therem. In the case of Ms Trybus, her posloon dId not convert because It was less than 43 weeks Wlule It IS true that It was only two days short of the number agreed upon by the partIes, It was the undIsputed eVIdence that seven day weeks were always used by the Mmlstry m ca1culatmg Its contracts and was consIstently used m the converSlOn process If tlus Board were to stray from that agreement and fmd for the gnevors by decHlmg that a week IS five days and not seven calendar days then many others could come forward and ask for a re-ca1culatlOn ~ 7 The Employer conceded that the gnevors were close to quahfymg. However, they dId not and whde tlus Board lIDght want to do somethmg for the gnevors, there are dates whIch much be respected. The eVidence IS clear that these gnevors fell short of the dates agreed I upon by the partIes The Employer urged that the posltlon held by Ms Jones dId convert m accordance wIth the terms of the Memorandum of Settlement. However, she dId not have two seasons By her own adnusslon, she worked only 49 weeks, not the necessary 52 She also dId not meet the Illcumbent requrrements She had worked neIther the two requrred seasons nor had she worked 52 weeks as of June 13, 1991 whIch was the cut-off date proVided III the Memorandum of Settlement. The Employer conceded that Mr Levesque was converted when he was not so entltled. However, that converSIOn was agreed by the partles and there was no eVidence that It was done for any other reason than for vahd busmess reasons. Wh11e hIs converSIOn lIDght have been an error, the fact of that error do~s not constltute dlscnmmatlon whIch should lead tlus Board to fmd for the gnevors After consldenng the eVidence and sublIDssIOns of the partles, the Board IS of the View that the gnevances must fad. The Memorandum of Settlement consIders certam tune frames set out m terms of weeks. In the absence of any further quahficatlon, we must consIder a week to be Just that. That IS, seven days The uncontradIcted eVidence of the Employer that It IS consIstently consIdered a week as seven days buttresses our View Indeed, m undertakmg an exerCIse such as thIS converSIOn process, It IS logIcal that the partles would deal WIth a calendar week, that IS seven days and not the work week of mdlVIduals If, as the Druon asked us to find, a week was completed at the end of Fnday after begmnmg on a Monday, the Memorandum would have to have saId a "normal work week" or somethmg snrular ~ ~ - 8 thereto It dId not. That leaves us WIth the plam meamng of a week and that IS, unquestlOnably, seven days In each of the three cases, Ms. Trybus and Mr Bher partlcularly, the tune dIfference between then time worked and the tune needed IS very small. However, m each case, It does fall short of the clearly stated requlTements for converSlOn. In the Memorandum of Settlement clear and preCIse tune frames were drawn by the partles m detenmnmg the formula for converSlOn. In some cases, such as m these matters, some people will fall Just shy of the necessary tune needed while some people will have worked only one of two days more than the needed tune WhIle that may seem harsh and perhaps unreasonable to those who fall short, the agreement of the partles must be the detenmnmg factor Tlus Board heard and apprecIated the gnevor's frustration. We understand why they were vIgilant m thelT efforts to have therr gnevances heard and determmed. It must have been msappomtmg to have been close to quahfymg for converSlOn and yet been found wantmg. Havmg sald that, we have no heSItation m fmdmg that the gnevances must be dlstnlssed. Each of the gnevors failed to meet the cntena f01 the converSlOn of thelT posloon or for the converSlOn of themselves as mcumbents The Umon asked the Board to find that the gnevors had been dlscnmmated agamst based on theIr gender because a male co-worker WIth a srmllar short-fall was converted. We cannot qgree The Employer's eVIdence, wluch was not dIsputed, was that although Mr Levesque dId not meet the cntena was converted as a result of a declslOn made by agreement of the partles through the Jomt COlmmttee for vahd busmess reasons We accept that eVIdence In order for thIS Board to find dlscnmmatlOn on any prohibIted grounds reqmres clear and cogent eVIdence, not merely a vague notion of a wrongdomg. ~ -- 9 For those reasons, the gnevances are dlsffilssed. Dated m Toronto, tht~ Z6thdayof June 1997 FelIcIty D Bnggs, V' e ChaIr Addendum attached. Tammy Browes-Budgen, Member /./J~LtY Mike MilIch, Member ~ - G~B 77066 i 94 0661/94 and 0667/94 orSEr (TI1'bus/.Jone~/ Blier) and fbe Cro'\lfB Ri~ht ofOlltario (Mmistl)' of1\atural Resources) l\..DDENDUM "--- Consldermg the UIllUU~ fal:ts oftim; case. I agn;:e wIth the reasomn~ as set out III the -.. ' ... - award. Th~se grl~\Or; have sno\\n tremendous. fornrude in pursumg the ments of their gnevances to arbltratlOn. Clearly all three grievors were so vel) close to the threshold... Hi the method of calculatlOn, how,;:\>ef Lhey ull rd} shghUv short of lhe prr:scrib;d mImmum calculatIon. in conciuslOn. th19 appears to be the last of the gnevances to be dealt \\lIth Wldt:r Lhe narrQi.\ Issues that gave nse to L~e tnteipretatlon and implementation ofthe dispute