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HomeMy WebLinkAbout1994-2311UNION95_07_11 ONTARIO EMPLOYES DE LA COURONNE :,~ ) CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ l',r,{,^, hD1' ~ \, v rC' SETTLEMENT REGLEMENT '1lc !"Q\c (}t' ,~, l<- BOARD DES GRIEFS 1)" vI.( ~ 180 DUNDAS STREET WEST, SUITE 2100. TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPJE (416) 326-1396 GSB # 2311/94 . .. - ...l::;.,~!;0t9iol.'t."'~"~_':"-'~"'~~:::';':.~; OPSEU # 94Ul18 RE(~e"'V='!r) t C I, ," ',.0' '~ , "",'" ",,':Jr" ~~...., ~" S . ',j , ,". " ~ JUL 1 2 1995 1; ~ THE MATTER OF AN ARBITRATION C ("Ei!~\'''Ir.l~1? . Under PUBU J .\:)' ,bW"H ~ ! l APPEAL ec~~o~ EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Culture, Tourism & Recreation) Employer BEFORE H Finley Vice-Chairperson FOR THE C Walker GRIEVOR Job Security Officer ontario Public Service Employees Union FOR THE B. Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 16, 1995 GSB 2311/94 DECISION Trus gnevance questIOns the appropnateness of the apphcatIon of ArtIcle 24 as opposed to ArtIcle 26 10 respect to the surplussmg procedure wruch took place at the Ontano SCIence Centre (OSC) dunng the latter part of 1994 and the first half of 1995 The Employer takes the pOSItIon that there was no 'reorgarnzatIOn' and that tlus was a layoff due to a shortage of funds and that the process that was followed and wruch IS set out in ArtIcle 24 IS the correct one The Umon's pOSItIon IS that trus was a 'reorgarnzatIon' and that the process set out under ArtIcle 26 should have been followed. The partIes agree that "closure, dIvestment, relocatIon and contractmg out" do not enter mto trus gnevance. At the heanng the partIes'subrmtted a detailed and thorough "Agreed Statement of Facts" wruch has been helpful. I mtend to quote from It throughout the decisIon rather than quote It 10 ItS entirety The partIes stressed that they have approached trus reductIon in staffing 10 a cooperatIve manner and it was clear that this cooperatIon was satIsfY10g and rughly valued by both partIes. They agreed that It was unportant that the programmes of the Ontano SCIence Centre and its servIce to the publIc not be curtailed and that the deCISIons made ensured that programmes were not lost. FACTS The Ontano SCIence Centre orgarnzatIon IS made up of seven Branches, each headed by a Dlfector who reports to the DIrector General The DIrector General heads and IS supported by a Secretanat. Certam of the branches have departments wruch report to them. The follow1Og IS a more detaIled descnptIOn of that structure 1 Director General Secretariat Finance Branch Human Resources Branch Community & Educational Programs Branch Commumty Programs Exhibits Branch Exhibits OperatIons - Exhibit OperatIons & FabncatIon - Electromc MedIa Design Research & Exhibit Planmng External Relations Visitor Admissions Marketmg Development and InternatIOnal Marketmg Visitor & Facility Care Branch VisItor & EnVIronmental ProtectIon Facility SefYlces The surplussmg wluch is the focus of the grievance took place as the result of a directIve from Management Board of Cabmet to all MinIstnes mcludmg the Mimstry of Culture, Tourism & RecreatIon [MCTR] The Mimster, (Culture, Tounsm & Recreation) m November 1994 drrected that the OSC must reduce itS FTE [full-tIme equIvalent] number from Its preVIously reduced number of260 to a further reduced number of248 FTEs. The OSC as a result of the Imposed reductIons was faced With the challenge of contmumg to fulfil ItS mandate and VISIon WIth the deletion of some of the "umquely qualtfied staff at the Centre" (ExhibIt C) To meet itS imposed target, the OSC Steenng Comrruttee detemnned how to reduce the functions and pOSItIons of the OSC m accordance with overall corporate pnonties. The process of reductIon mvolved the surplussmg of the followmg pOSItIOnS AssIstant Bookings Clerk (UC Contract) 1 ASSIstant ReservatIOns Officer/RPT 9 Memberslup AsSistant 9 ProtectIve Services Officer 1 Assets & Records Management Officer 1 AdmmistratIve AsSistant - Bihngual 1 AsSIstant Coordmator Extended EducatIon 1 Library TechniCian 1 Exhibit Mamtenance Mechamc 8 2 Coordmator of Volunteers 1 MembershIp Coordmator 1 SCIences CommUnicator (Management) 1 ArtIfacts Officer 1 Prototype DesIgner 4 SCIence translator 1 SupervIsor AudIt, Systems, & Purchasmg 1 Total: 258 There were, as well, two retIrements whIch brought the total to the 27 8 considered essentIal to achIeve the jomt goals of reductIon and programme maintenance. One of the unusual aspects of thIs surplussmg relates to the umque nature of thIs facihty and Its staff and the necessIty of mamtaImng certain skills and knowledge in order to be able to continue to offer the variety of programmes. The OSC Steenng COmmIttee had determined that, m order to meet the Imposed reductIon target and to mamtain programmmg, that In additIon to the reductIOn of 12 FTEs, [the OSC identIfied] 15 8 cntIcal vacanCIes that requIred recruitmg. Consequently, the total number of pOSItIons that were necessary to reduce was 278 FTEs ThIs explains the total number of pOSItIons declared surplus. The target date for the reductIons was March 31, 1995 and the process proceeded as follows. Nov 28 94 Director General met With managers and local OPSEU representatIves to appnse them of the surplussmg; Nov 29 94 19 of 22 bargammg urnt employees surplussed, receIved theIr notIces of surplus and the process under ArtIcle 24 began for them, Dec 08 94 Gary Renaud receIved hIs notIce of surplus and the process under ArtIcle 24 began for lum Dec 1294 Jessy Johns receIved her notice of surplus and the process under Article 24 began for her; Feb 1595 Lmda HeImlIch received her notIce of surplus and the process under ArtIcle 24 began for her; Jun 1495 Bruce Crabe and Marylou Jenkms have yet to be reassIgned, Jun 1695 Heanng 3 ; Dunng tills process one of the local bargaImng umt committees, which had been set up as part of the SOCIal Contract process, assumed the role of the local BargaInmg Urnt Redeployment Comnuttee and as a result of the cooperatIon and support of the OSC was able to fulfill the role contemplated by ArtIcles 26 1 and 26 2 The partIes agree that the cooperatIon and support proVIded this cormmttee does not prejUdICe the Employer's pOSItIon that there was not a reqUIrement for it to create such a cormmttee The partIes agree that With the exceptIon of IdentIfymg the positIons to be elImmated, the reductIOn dId not result m any matenal change to the orgamzation chart of the OSC With the exceptIon of the addItIOn of the 2- incumbent ExhibIt Cleaner positIon. However, the following other changes also occurred as a result of the surplussing: . Various skilled tradespeople at the OSC assumed the more complex dutIes of reparr and mamtenance responsibilitIes of the Maintenance Mechamc 3 pOSItIon, . The developmental component of the four prototype deSIgner pOSItIons which were surplus sed has been largely assumed by the three-D deSIgn people, . .some fabncatIon responsibilIties of the four prototype deSIgner pOSItIOns surplus sed have been reassIgned to tradespeople at the OSC, . AcqUIsitIons of artIfacts and conservatIon of them will contmue follOWIng the retIrement of the Artifacts Officer, on December 31, 1995, . The dutIes of the surplussed Coordmator of Volunteers have been assumed by each department~ . The library contmues to functIon follOWing the surplussmg of one library techrucIan ( The dutIes of a contract employee under a federal programme do not relate to the dutIes of the surplussed techrucIan) . Internal adffilrnstratlon, self-marketmg, educatIOnal program promotIon and prOVISIon all contmue to be carned out witilln the constramts, 4 RELEVANT ARTICLES OF THE COLLECTIVE AGREEMENT The followmg sectIOns of the two artIcles are relevant ARTICLE 24 - JOB SECURITY 24 1 Where a layoff may occur by reason of shortage of work or funds or the abolItIon of a pOSition or other material change 10 orgamzatton, the Identification of a surplus employee 10 an admmistratIVe distnct or unit, InStItutIon or other such work area and the subsequent aSSIgnment, displacement or lay-off shall be m accordance With senionty subject to the condItions set out in this ArtIcle NOTICE 2621 An employee shall receIve SIX (6) months' notice of lay-off or pay in lieu thereof 2622 The notice penod will begin when the employee receives official wntten notIce. Copies of all such notIces shall be provided to the Management Board Secretanat and to the Urnon. JOB OFFER GUARANTEE - CONTRACTING OUT, DIVESTMENT, RELOCATION 24 17 1 EffectIve January 1, 1992, employees whose Jobs become surplus as a result of contractmg out; divestment or comparable transfer of work from the Ontano PublIc SefV1ce to a Crown agency, broader pubhc sector, non-profit organization, or the pnvate sector; or relocatIOn of an operation will be guaranteed a Job offer 10 accordance With thIs ArtIcle. ARTICLE 26 - CLOSUREIDIVESTMENT/RELOCA nON 261 Where a reorgarnzation, or the closure of a facihty, or the divestment, relocatIon or conttactmg-out of an operatIon 10 whole or 111 part will 5 result m twenty (20) or more surplus employees 111 a locatIon, (a) affected employees shall receive as much notice as possible, but m any case shall be notified of the Immment reorgamzatIon, closure, relocatIOn or contractmg-out not later than nine (9) months 111 advance of the proposed reorgamzatIOn, closure, dIvestment, relocation or contractmg-out, and (b) the PreSident of the Umon shall be notified of the reorganizatIOn, closure, divestment, relocation or contractmg-out at least sixty (60) days pnor to notification to affected employees, and (c) a committee shall be formed by the partIes at the affected location to proVIde for consultation and co- operation m order to mmirmze the adverse effects upon employees who have been IdentIfied as surplus to requirements. 262 The Union may be represented on the comrmttee by a Umon Staff representatIve and up to three (3) employees at the locatIOn mvolved and the rmrnstIy agrees to grant leave WIth no loss of pay and WIth no loss of credits to attend comrmttee meetmgs 263 With mutual agreement, the Umon and the Employer (as represented by Management Board of Cab met) shall meet to diSCUSS system-WIde matters concermng closures, divestments, relocations or contractmg out. ARGUMENT Cameron Walker for the Urnon, explained that at the tIme the gnevance was filed m December 1994, the Umon was contemplatmg maSSIve, proVInce-wide layoffs and had grave concerns about those members of the bargammg urnt who were cormng to the end of theIr sIx-month penod under ArtIcle 24 The Umon knew that there were a number of surplus sed employees gomg mto the corporate pool for reassignment at the end of November, rather than 60 days later, and was concerned that, WIth the OSC surplus employees, there would be mdlVIduals laid off m December 1994 and January 1995 That did not, he explained, occur, and noted that, for the purposes oftrus gnevance, no one employed outSide of the OSC was laid off as a result of the OSC surplussed 6 ...- employees commg mto the pool. He stressed the CruCIal aspect of tImIng In the determInatIon of who gets WhICh Job In a provInce-WIde operation. Mr Walker made It clear that the Umon was not seekIng dIsplacement or unravellIng of the steps that have been taken, but was seekIng remedy for four mdIvIduals only' . Bruce Crabe Prototype DesIgner . Marylou Jenktns MembershIp AssIstant . Steve Osgoode ExhibIt MaIntenance Mechamc . Gary Renaud Prototype DesIgner Mr Walker stressed the Importance to the Umon at tlus orne of the recogmtlOn of ArtIcle 26 and emphasIzed the benefit of workIng WIth the Employer In a proactIve way He explaIned that In thIS Instance, the Umon had the benefit of haVIng a local comnnttee In place wluch could functIon readily as a part of a redeployment comnnttee and the Employer arranged for a team and gave it the necessary time and resources to carry out the posItive steps wluch are called for In ArtIcle 26 with, In lus opimon, positIve results The Umon IS not relYIng on the fact that the Employer handled the matter In this way to allege that the Employer has prejudIced ItS posItion by haVIng done so and, further, It recogruzes that It was under no oblIgatIon to do so Also, the Umon recogmzes that a mechamsm does eXist outsIde of Article 26, but Mr Walker subrmtted, the Umon is seeiong a declaratIon from the Board which would gIve It jurisprudence to rely on With respect to Article 26, follOWIng March 31, 1996, the pomt In tIme at which the SOCIal Contract ends. In addressmg the deterrnmatIon of whether or not one was dealing With a reorgaruzatIon, as contemplated m ArtIcle 26, Mr Walker submttted that one should begin by considering the meamng of the word itself and he proposed that 'to reorganize' means, In effect, 'to orgamze In a new way' As a second step In this determInatIOn Mr Walker proposes a contInuum on which the changes and the extent of the changes could be placed to evaluate whether or not a reorgaruzation had taken place In the case at hand, he subtnltted, the reductIon of the 27 8 surplussed FTEs which IS In excess of 10% of the OSC staff of 260, constitutes, not Just a reassIgnment or realignment of dutIes, but a reorgamzatlon. 7 He pomted as well to a number of changes such as the deletIon of actual pOSItIOns, (e g., Library Techruclan and Volunteer Coordmator), from the orgarnzatlOnal chart, and the reassIgnment of dutIes (e.g., mamtenance and volunteer coordinatIOn duties) Mr Walker submItted that If one considers the number of staff members affected by the changes and he estImates that number to be approxunately 10% that, when combmed With the 15 8 new positIOns that the change IS m excess of 20% and that when 20% of the staff m a facihty the SIZe of the OSC is affected, then the exerCIse must be conSIdered a 'reorgarnzation' and Article 26 should apply He subrmtted that the reference to the "re-engmeenng of functIon," the "down-scahng of functIOn," the "new reqUIrement" and the "up scahng of functIOn," along WIth replacement and recnlltment constItute changes of sufficIent magmtude that the surplussmg should be considered well along the spectrum and be deemed a reorgarnzatlon. In hIs opIrnon, the two tnggers, a reorgamzatlon and 20 plus employees have been met. In conclusIOn, Mr Walker noted that the partIes will, m future, contmue to need guIdance from the Board m cases where the situatIOn is clearly not one of relocation or contractmg out and that, m thIs Instance, It was seekmg guidance to determine in future, whether or not realIgnment of work or changes to organizational charts would be covered by the term "reorgaruzatIon" m ArtIcle 26 Bruce Loewen for the Employer subrmtted that the Employer Viewed the process dIfferently He noted that there were two separate directives. 1) All ofOSC's vacant positions and their funding are removed, Ie, 1994-95 FTEs are ImtIally reduced to 260 WIth related $498,000 salary budget reductIOn. 2) 1994-95 FTEs are to be further reduced by 12 FTEs to 248 He stated that the Employer took the pOSItIon that there were three cntena to be met to activate ArtIcle 26 They are (1) a reorgarnzatIOn, (2) 20 plus layoffs 8 ,,-- (3) the 20 plus layoffs must be caused by a reorgamzatlOn. That IS not the case here, he argued. The layoffs, In thIs Instance were not caused by a reorgamzation but were smctly the result of a reduction In salary dollars whIch does not equate to the type of event contemplated In ArtIcle 26 It is not sufficIent that there are more than twenty layoffs The partIes agree, Mr Loewen pOInted out, that, the reduction caused the ose to meet a challenge whIch has caused them to reassIgn some dutIes and to cease others. That is not, however, a reorgamzatlOn. From the Employer's perspective, the reorganIZation intended under ArtIcle 26 is an "mtentIOnal reengineenng of the operation of the facility" Where that results In twenty plus employees beIng surplussed, then, there has been a reorgamzation. The ose gave surplus notIces and reorgamzed duties. It did not reorgamze the facihty There was no matenal change m orgamzatIOn, no transfer ofOSe staff, and no reengmeenng. Instead, Mr Loewen submitted, the ose contInued to do what it did before, earned out the same functions, although wIth fewer bodIes, and ellImnated some dutIes, and reassIgned others. This did not result in any changes to job descriptIOns nor did It cause the layoff. Rather, it came about as a result of the layoffs Mr Loewen submitted that ArtIcle 26 contemplates a decIsion of the Employer to reorgamze whIch results In a layoff, not a layoff wluch results m a reorgamzatIon. While he acknowledged that there are gaps In the orgamzatIOnal charts he maIntains that this does not constItute reorgamzatIOn. Mr Loewen argued In the alternatIve that ArtIcle 26 contemplates 20 plus employees beIng surplussed and he acknowledges that 20 plus were surplussed but maIntams that the SItuatIon wmch ArtIcle 26 contemplates takes in all circumstances being encompassed by the reorgamzatIon, in other words, an Employer could not decIde to layoff 19 employees now and 19 later, and then argue that ArtIcle 26 was not tnggered. If one accepts that the event was a reorgamzatIon [the Employer does not] the SItuatIon then IS that there was a reductIOn of 12 FTEs whIch clearly stemmed from a shortage of funds, and then a reductIon of the other 18 pOSItions by whIch the Employer would have to reduce to acmeve 15 8 So, arguably the 15 8 could be conSidered a reorgamzatlon but that number IS below the threshold set out in Article 26 9 In reply, Mr Walker commented that had the OSC closed a program, then the Umon could have mvoked Article 24 17, however, the parties agree all programmes contInued, and the Umon did not oppose that solutIOn. There was, however, a scahng do\\'tl of functIOns In some of the areas. He submttted that the full 22 pOSitions should be considered because there was a conscIous deCISIon on the part of the Employer to surplus more than the target of 12 set by Management Board of Cab met and the Mimster of Culture, Tounsm and RecreatIOn. Mr Walker noted that wlule the OSC was more than cooperative With regard to the placement of surplus employees, as contemplated In Article 26, as suggested by Mr Loewen, the Union did not have the opporturuty of dIscussmg the rrurumtzmg of the Impact on semor employees as the deCISion WIth respect to them had been made earher Mr Loewen addressed the Issue of remedy as follows. He sees tlus as mcreasmg the notice penod from SIX to nine months. He noted that WIth the application of the SIX months of ArtIcle 24 all but two employees have been taken care of The parties ask that I reserve on remedy as they hope to have the indiVIdual situations all dealt WIth satisfactorily pnor to the end of SIX months Mr Walker gave notice that, should It be necessary for the parties to return to the Board for a remedy, that he would not be askIng for rune months as opposed to SIX but would be subrruttmg that the 9- month penod would not begm until 60 days after the present receipt of notice which was, for most on November 29, 1994 Tlus notice would have expired May 3 1, 1995 had extensIOns not been given and If It IS necessary for the partIes to come back he would be seekmg 60 days m additIOn to three months. Decision In amving at their separate determmatIOns of whether or not a reorgamzatIon has taken place, both parties have focussed on ArtIcle 26 and the meanmg of"reorgamzatIon" under that artIcle Mr Walker proposes that the word means a "to orgamze m a new way" and subrruts that one can amve at a detenmnatlOn of whether or not a reorgaruzatlon has taken place by assessIng the changes to the orgamzatIon and the extent of those changes Mr Loewen Interprets 10 - "reorgaruzatlOn" under Arttcle 26 to mean "the mtentIonal reengmeenng of the operatIOn of the facilIty," that IS a "reorgaruzatIOn" brought about by a decIsion of the Employer to reorgarnze the facilIty which results m 20 or more surplussed employees at a location. In consldenng the mterpretatIOn of the word "reorgamzatlOn" m Article 26 1, I have found It helpful to analyse and compare the language of Articles 24 1, 24 17, and 26 begmrung WIth the headmgs The three arttcles are titled as follows Article 24 JOB SECURITY Article 24 17 JOB OFFER GUARANTEE - CONTRACTING OUT, DIVESTMENT, RELOCATION Article 26 CLOSURE/DIVESTMENT/RELOCA TION Article 26 does not mentIOn "reorganization" m ItS heading, however, the artIcle also deals With "contractmg-out" and does not list that process m the headmg. I do not attach any slgruficance to these ormSSIOns. In consldenng the headmgs of Article 24 17 and Article 26, however, the common feature of the Items mentIOned IS that each mvolves a definable major change to the orgamzatIOn, resultmg from a consctous deCISIon by the Employer to effect a major change to that orgarnzatIon. The reasons behmd that change do not form part of these Articles. "ReorgarnzatIon" m Article 26 1 IS grouped With these sItuations mvolvmg major change resultmg from the deCISIon of the Employer They are recogruzed by the parties as requtnng a SpecIal response ArtIcle 24, on the other hand, does not present a SImilarly consistent grouping. The reasons It lIsts can apply to a smgle situatIOn or a number of situatIons occumng at the same tIme and locatIOn. The focus of the article IS the mdlVIdual employee and the process to whtch that employee IS subject and entItled under certam speCified circumstances or reasons set out m Article 24 1 They are . shortage of work or . [shortage of] funds or . the abolition of a pOSItion or . other matenal change m orgamzatlon. 11 ArtIcle 26 sets out the following circumstances for Its applIcatIon and hnks them to the resulting number of 20 or more surplus employees In a locatIOn. . a reorgaruzatIon [of a facilIty], * or . the closure of a facihty or . the divestment, [of an operation In whole or In part] . the relocatIOn [of an operatIOn In whole or In part] or . the contracting-out of an operatIon m whole or m part. *If one Interprets this comma as separating the word "reorgaruzatIOn" from 'of a facihty' one IS left askIng to what the reorgaruzatIOn apphes On the other hand If one VIews thls punctuatIon as settmg off the word "reorgamzatIOn" as the first m a senes of two, the second bemg "closure," the questIOn IS answered and the phrase means 'a reorgamzatlon of a faciltty', a lOgical interpretatIon. The partIes refer to "change in orgaruzatlOn" In ArtIcle 24 1 and to "reorgamzatIOn" m ArtIcle 26 1 There IS, In my opimon, a dIfference whlch IS made clear, m part, by the context of each. In Article 24 1 even the "abolttIOn of a [smgle] pOSItion" IS considered a "matenal change m orgarnzatlon." The lInk IS proVIded by the word "other" Further, the mclusIOn of the word "matenal" IS sIgnIficant. The ConcIse Oxford DictIonary defines It as "Important." Webster's New CollegIate DIctIOnary defines It as "haVIng real Importance or great consequences" In other words, It IS possible to have a "change in orgarnzatIon" whlch IS Important or of great consequence, WIthout haVIng a "reorgamzatIon." The difference between the "matenal change In orgarnzatlOn" of Article 24 1 and the "reorgamzatIOn" of ArtIcle 26 IS that the former conSists of changes to the orgarnzatIOnal structure which do not disrupt the baSIC orgamzatlOnal structure, whereas "reorgamzatIOn" of the facilIty refers to employer-lmtIated systemIc changes to the facility's structural orgarnzatIon. Examples of such changes would be the abolitIon of a branch or branches, or of a department or departments, the mergmg of branches or departments or a Sizeable reductIOn m the size of branches or departments That IS not to say that each and every 12 or part of the orgamzatIonal structure would need to be subject to change for a "reorgamzatlOn" to occur In the case of the changes at the Ontano SCIence Centre, the surplussed posItions were spread throughout the orgaruzatlon and the ImplementatlOn of the sUrplUSSlllg dId not result III a change to the basIc orgamzatIOnal structure of the facihty The fact that some duties were abolIshed or reassIgned or some pOSItions ehmmated or created IS not determmatlve of whether the changes constitute a "matenal change" or a "reorgamzatlOn. of a facihty" The essence of the "reorgamzatlOn" needed to lllvoke ArtIcle 26, aSIde from the numencal tngger, IS that the changes directly affect the basIc orgaruzatIOnal structure of the facihty and that, the Board has concluded, has not occurred at the Ontano SCience Centre. Therefore, the Board finds that the Employer's apphcatlOn of ArtIcle 24, III the surplussing whIch took place llllate 1994 and the first part of 1995 was proper and that there IS no vlOlatlOn of the CollectIve Agreement. The Board Will remalll seIzed of thIs matter in the event that the partIes reqUire ItS assIstance With respect to ItS applIcation. ) (' - I ~" , lU /7 Dated at . C/'CC..c. (..-t;. /- . . / L-1 . <- ItS Finley J Vice-ChaIr ThIS _ day of July 1995 13