Loading...
HomeMy WebLinkAbout1996-2776.Kerhanovich, Behrsin.00-05-18 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 2776/96 OPSEU # 97B282 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (KerhanovIch, Behrsm) Grievor - and - The Crown m Right of Ontano (Mimstn of Transportation) Employer BEFORE Owen V Gra, Vice ChaIr FOR THE Enc O.Bnen, Janet Black. GRIEVOR Counsel ElIot Sffilth Bamsters & SolIcItors FOR THE Kelh Burke EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING Janu~ 19 20 2000 April 17 2000 2 DECISION [1] George KerhanovIch and Harold Behrsm worked for the MmIstry of Trans- portatIOn m Sault Ste Mane ("the Sault) for a number of years as purchasmg agents On or about November 26 1996 they each receIVed formal notIce that As a result of workforce reductIOns m the MmIstry of TransportatIOn, your posItIon of Purchasmg Agent wIll be declared surplus effectIve December '3 1996 ThIs letter prOVIdes you wIth notIce of lay-off as reqUIred by ArtIcle 24.2 1. On December 16 and 30 1996 respectIvely Messrs Behrsm and KerhanovIch filed gnevances allegmg that "I have been Improperly surplussed m VIOlatIOn of the redeployment artIcles and ArtIcle A of the CollectIve Agreement [2] The umon alleges that the deCISIOn to surplus the gnevors pOSItIOns (and not those of other more Jumor purchasmg agents m Thunder Bay) was a breach of eIther ArtIcle 20 1 2 or AppendIX 13 of the collectIve agreement, and also VIO lated ArtIcle 3 (formerly ArtIcle A) because It was motIvated by the gnevors un IOn actIVItIes Mr KerhanovIch has been the local umon preSIdent m Sault Ste Mane smce 1970 and was umon staff representatIve for a year m the early 1990s UntIl hIS retIrement m early 1997 Mr Behrsm assIsted Mr KerhanovIch m carrymg out hIS umon actIVItIes They had both filed and won personal class 1 ficatIOn gnevances durmg the course of theIr employment WIth the mmIstry [3] The mmIstry IS orgamzed mto five RegIOns Sault Ste Mane IS m the Northwest RegIOn The regIOnal headquarters for the Northwest RegIOn IS b cated m Thunder Bay The RegIOn IS dIVIded mto two DIstncts Sault Ste Mane and Thunder Bay Pnor to 1996 the mmIstry mamtamed a garage and ware house at each of three locatIOns m the RegIOn Sault Ste Mane Thunder Bay and Kenora The garages servIced mmIstry-owned vehIcles The warehouses re ceIved stored and dIstributed goods used m or by mmIstry operatIOns ASSOCI ated WIth each warehouse was a purchasmg functIOn performed by purchasmg 3 agents and clerks The garage and warehouse and assocIated purchasmg func tIon m Sault Ste Mane servIced the needs of the mmIstry m the Sault Ste Mane DIstnct [4] The most recent PosItIOn SpecIficatIOn for the gnevors Purchasmg Agent posItIOn was dated January 10 1990 It stated that the posItIOn s "Branch and SectIOn was "DISt 18 - Sault Ste Mane The general purpose of the posItIOn was" [t]o provIde serVIces relatIve to the procurement of a wIde vanety of mate nals, supphes and serVIces, consIstent WIth the DIstnct s operatmg needs and Work Programs The dutIes of the posItIOn consIsted largely of receIVmg Ie quests for matenals, supphes or serVIces, vettmg the requests for completeness, determmmg the most appropnate process to satIsfy each request (whether from mventory or through requests for oral or wntten quotes or a formal tender proc ess) and carrymg out or arrangmg the carrymg out of that procurement process ExpedItIng dehvery of goods and serVIces purchased was also a sIgmficant func tIon of the posItIOn. [5] The PosItIOn SpecIficatIOn for the Purchasmg Agent posItIOn SaId that the dutIes of the posItIOn were to be performed "under the general superVISIOn of the DIstnct Purchasmg & Supply SupervIsor That was true untIl late 1994 when the gnevors receIved the followmg memo dated December 14 1994 from R. S MIller m Thunder Bay' TO' All Purchasmg & Warehouse Staff DATE December 14, 1994 Sault Ste Mane Attn. H. Behrsm Purchasmg ()fficer EffectIve Immechately the Sault Ste Mane Purchasmg and Supply operatIOn WIll become a self-chrected work team reportmg chrectly to myself m Thunder Bay Harold Behrsm, Purchasmg ()fficer WIll be the self-chrected team leader as per our chSCUSSIOns of Dec 12/94, and WIll dIrect all mformatIOn and corre- spondence to me He has agreed to be the lIaIson between the Sault Ste Mane team and the team m Thunder Bay Please note that thIS does not preclude other team members contactmg the Thunder Bay operatIOn for mformatIOn and aSSIstance I look forward to workmg WIth you to make thIS operatIOn a success. Thank you. 4 R.S Mlller Coordmator MaterIals Management/Accounts Payable Northwestern RegIOn The self-dIrected team of whIch Mr Behrsm became team leader consIsted of hImself, Mr KerhanovIch and the five employees m the warehouse at Sault Ste Mane a warehousmg superVIsor 3 clerks and a dnver Members of the team dealt wIth Mr MIller m Thunder Bay (eIther dIrectly or through Mr Behrsm) m matters relatmg to theIr matenal handlmg and purchasmg dutIes They contm ued to deal wIth the DIstnct Engmeer m Sault Ste Mane concermng the local aspects of theIr employment, such as the condItIon of the workplace aVaIlabIlIty of eqUIpment, health and safety and local trammg [6] Durmg 1996 the mmIstry mItIated a number of changes m what It does and how It does It HIghway mamtenance work prevIOusly performed by mmIstry employees was to be contracted out to a greater extent that It had prevIOusly been. RegIOns were to "consolIdate dIstnct fleet management and eqUIpment repaIr operatIOns at regIOnal headquarters mcludmg Thunder Bay - DIstnct garages, mcludmg the ones m Sault Ste Mane and Kenora, were to close Con current wIth the regIOnal consolIdatIOn of eqUIpment repaIr operatIOns, ware house serVIces were to be "consolIdated mto four regIOnal locatIOns, mcludmg Thunder Bay MmIstry employees were gIVen purchasmg cards wIth whIch to acqUIre needed goods locally thus reducmg the amount of purchasmg and ware housmg that had to be performed as a separate functIOn. The remammg regIOnal warehouses were to focus on the supply to employees and operatIOns m the re gIOn of products not aVaIlable m the local marketplace For the Northwest Re gIOn, thIS meant the warehouses m Sault Ste Mane and Kenora would also be closed [7] These mItIatIves reduced but dId not elImmate eIther the mmIstry s cp eratIOns m the Sault Ste Mane DIstnct or the need for purchasmg m relatIOn to those operatIOns as a dIstmct functIOn The gnevors testIfied that, apart from the garage and hIghway mamtenance operatIOns there were several other mmIstry departments wIth purchasmg needs that remamed m the DIstnct after effect 5 was gIven to the changes announced m 1996 Indeed, the contractmg out of hIghway mamtenance whIch had been a Dlstnct purchasmg functIOn, was to m crease as a result of the changes [8] Larry Lambert was the RegIOnal DIrector for the Northwest RegIOn m 1996 and stIll IS He testIfied about the mltIatIves to whIch I have already re ferred The closmg of garages and warehouses was announced m mId year and related surplusmg took place m July When the July surplusmg was planned management dId not know how many affected employees would leave theIr em ployment ImmedIately and how many would work out theIr notIce penods so they dId not know how qUIckly the purchasmg functIOn would be Impacted The gnevor's posItIOns were addressed m a second round of surplusmg on November 26 1996 Mr Lambert testIfied that when makmg that surplusmg decIsIOn, management estImated that the closures and mtroductIOn of the purchasmg card would reduce the work of purchasmg agents m the Northwest RegIOn by about 50 percent He saId that estImate had been used to determme the number of purchasmg posItIOns m the RegIOn that would be declared surplus [9] At that pomt the RegIOn had 6 purchasmg agents - 3 m Thunder Bay two m Sault Ste Mane and one m Kenora - and 2 clerks - one m Thunder Bay and one m Kenora Mr Lambert recommended to the executIve commIttee that they surplus the purchasmg agent and clerk posItIOns m Sault Ste Mane and Kenora m order to achIeve a 50 percent reductIOn m purchasmg posItIOns He testIfied that hIS recommendatIOn was m no way motIvated by the gnevors un IOn actIvIty [10] Mr Lambert testIfied that after the surplusmg of purchasmg posItIOns m Sault Ste Mane and Kenora took place all purchasmg for the Northwest RegIOn (that IS purchasmg as a dlstmct functIOn, as opposed to local purchasmg usmg purchasmg cards) was done from Thunder Bay He saId that the purchasmg thereafter was handled "m part by the complement of three purchasmg agents and one clerk that eXIsted m Thunder Bay at the tIme the gnevors were sur plused He explamed that on some occaSIOns smce 1996 the volume and com 6 plexIty of the purchasmg work had been too great for that complement, and that unspecIfied addItIonal help had been provIded At the tIme of the hearmg, he saId, that complement of three purchasmg agents and one clerk was able to han dIe the current purchasmg work for the RegIOn. In that connectIOn, he observed that there had been further reductIOns and more shared serVIces mtroduced smce 1996 [11] After theIr posItIOns had been declared surplus the grIevors were told that Steve MacGregor a purchasmg agent m Thunder Bay would thenceforth be handhng purchasmg for the Sault Ste MarIe area They were mstructed to refer all purchasmg mqUIrIeS to hIm Durmg hIS notIce perIod, Mr Behrsm was ID structed to and dId pack up theIr purchasmg records and hsts of local supphers and ShIP them to Thunder Bay All of the records and mformatIOn wIth whIch he had been workmg were shIpped to Thunder Bay The only tools of hIS former work that were not transferred to Thunder Bay durmg that tIme were some blank forms and a desktop computer At one pomt durmg Mr Behrsm s notIce perIod, Mr MacGregor travelled to Sault Ste MarIe for famIharIzatIOn. Durmg that trIp he met wIth Mr Behrsm, who mtroduced hIm to local supphers and provIded hIm wIth paperwork and other mformatIOn. [12] Mr Behrsm estImated that over the course of 1996 prIor to the date he receIVed the formal surplus notIce there was a reductIOn m the volume of hIS work of about 10 percent The closmg of the garage had httle effect on hIS work load he saId because very httle of hIS purchasmg work was related to the ga rage - he noted that Mr KerhanovIch had been domg the eqUIpment purchas mg Mr Behrsm was not performmg purchasmg work for very long after he re ceIved hIS surplus notIce He testIfied that the mtroductIOn of the purchasmg card (saId by Mr Lambert to have begun m July 1996) dId not seem to have sub- stantIally affected hIS workload before the purchasmg work was taken away from hIm [13] Mr KerhanovIch testIfied that m early 1996 about 30 percent of hIS work related to the DIStrICt garage and warehouse Other actIvItIes ehmmated m the 7 reorgamzatIOn - mamtenance patrols and constructIOn - accounted for 10 to 15 percent of hIS work, he saId In exammatIOn m chIef he dId not describe m per centage terms the portIOn of hIS work that was for DIstnct operatIOns unaffected by the reorgamzatIOn. He merely IdentIfied, as Mr Behrsm had the mmIstry operatIOns that remamed m the Sault Ste Mane DIstnct after the reorgamza tIon. He faIled to answer dIrect questIOns about thIS m cross exammatIOn The only other estImate he provIded durmg cross exammatIOn was that 15 to 20 per cent of hIS tIme had been spent on "general purchasmg dutIes by whIch he meant mamtammg a library and keepmg a purchasmg hIstory - all of whIch, he acknowledged, would have reduced m volume as hIS other work reduced [14] Each of the gnevors testIfied that he would have been wIllmg to relocate to Thunder Bay The posItIOn both gnevors take m thIS matter IS that they ought to have been transferred to Thunder Bay not surplused When they were sur plused, they had the optIOn to bump beyond 40 kIlometres from theIr headquar ters They testIfied that the exerCIse of that optIOn would not have taken them to a Job m Thunder Bay The scheme of ArtIcle 20 of the collectIve agreement was that the most semor dIsplaced employee could bump the most Jumor employee m the same classIficatIOn and the same mmIstry Mr KerhanovIch was the most semor purchasmg agent m the provmce He gave unchallenged testImony that exercIsmg hIS nght to bump would have taken hIm to Kmgston. LIkewIse Mr Behrsm gave unchallenged testImony that when he learned he would be sur plused (pnor to receIVmg the formal notIce) and asked management about the prospect of gettmg to Thunder Bay by bumpmg, he was told that a bump would most lIkely take hIm elsewhere [15] Shortly after receIVmg hIS surplus notIce Mr KerhanovIch elected to re open hIS Factor 80 and retIre as of December 31 1996 Mr Behrsm elected to re tIre effectIve May 14 1997 wIth an unreduced Factor 80 penSIOn. Both say they would have contmued to work If relocated to Thunder Bay and would have re tIred later than they had They claIm compensatIOn for lost earnmgs as well as the reductIOn m the value of theIr pensIOn that flows from theIr havmg retIred earlIer than they would have chosen. They understand, or were made to under 8 stand durmg the course of the hearmg, that theIr claIm IS subJect to offset by the amount that they earned or could have earned from employment through efforts to mItIgate theIr earnmgs loss, and IS also subJect to offset by the value of the penSIOn benefits receIVed durmg the penod m whIch they say theIr employment wIth the mmlstry should have contmued By agreement of the partIes, resolutIOn of Issues relatmg only to the calculatIOn of the net compensatIOn (If any) for whIch the employer may be lIable If found to have breached the collectIve agree ment has been deferred untIl after the Board determmes whether there was such a breach. The Alleged Breach of Article 3 [16] ArtIcle 3 2 of the relevant collectIve agreement prohIbIts dlscnmmatIOn by the employer on the basIs of an employee s umon actIvIty [17] The claIm that the gnevors were dlscnmmated agamst by reason of theIr past umon actIvIty IS based on the fact the gnevors had engaged m such actIvIty pnor to the decIsIOn to surplus theIr posItIOns Mr Kerhanovlch was asked by umon counsel whether there had been any adverse reactIOn by management to hIS umon actIvIty durmg hIS employment He saId that hIS supervIsor had once saId "maybe you should cut back on your umon actIvItIes, to whIch he had re plIed "why don t you go tell the government that The context m whIch these remarks were made IS not entIrely clear Asked If he could gIve other mstances of the employer's havmg reacted negatIvely to hIS umon actIvIty Mr Kerhanovlch SaId he "would rather not That IS the sum total of the eVIdence of the Em ployer's reactIOn to the gnevors umon actIvIty pnor to November 1996 Mr Behrsm havmg offered none [18] Mr Lambert testIfied that he recommended the actIOn ultImately taken wIth respect to the surplusmg of the gnevors purchasmg agent posItIOns m the Northwest regIOn. As I have already noted, he saId hIS recommendatIOn was m no way motIvated by the gnevors umon actIvIty He was not cross-exammed on that or any other aspect of hIS testImony 9 [19] DISCrImmatIOn on the basIs of umon actIvIty WIll not necessarIly be sus ceptible of dIrect proof Someone who has acted on that basIs may be unwIllmg to admIt It It may be necessary to draw mferences from surroundmg facts One may have to consIder for example whether the explanatIOn gIven for the lffi pugned conduct makes sense m the absence of Improper motIvatIOn. Here man agement was actmg m response to the same condItIons and dIrectIves mother regIOns of the provmce There IS no suggestIOn that sImIlar cIrcumstances were dealt wIth many sIgmficantly dIfferent way m those other regIOns The decIsIOn taken for the Northwest RegIOn gave effect to a recommendatIOn made by Mr Lambert He descrIbed hIS reasons for that recommendatIOn m hIS testImony There was no challenge to Mr Lambert s assertIOn that the grIevors umon ac tIVIty played no part m the formulatIOn of hIS recommendatIOn, nor more Impor tantly to the plausIbIhty of the claIm that the reasons he gave for the recom mendatIOn were hIS, and the employer's real reasons The fact that Improper motIvatIOn mIght not be admItted does not reheve the party allegmg such motI vatIOn of the obhgatIOn to challenge m cross-exammatIOn a wItness who plausI bly demes the allegatIOn m exammatIOn m-chIef. [20] I find there IS no merIt whatsoever to the claIm that the employer dIs CrImmated agamst the grIevors by reason of theIr umon actIvIty In that respect, these grIevances are dIsmIssed The Alleged Breach of Article 20 1 2 [21] ArtIcle 20 1 2 provIdes that ~There a lav-off mav occur for anv reason, the lClentIficatIOn of a surplus em plovee In an admInIstratIve chstnct or umt, InstItutIOn or other such work area and the subsequent chsplacement, redeplovment, lav-off or recall shall be In accordance wIth semontv subject to the conchtIOns set out In thIS artIcle The umon takes the posItIOn that the relevant "admmIstratIve dIstrIct or umt, mstItutIOn or other such work area for purposes of determmmg whIch purchas mg agents to layoff m the Northwest RegIOn m 1996 was the entIre Northwest 10 RegIOn, because all SIX of the purchasmg agents m the regIOn were then super vIsed by the same superVIsor [22] In support of ItS posItIOn the umon cIted the Board s decIsIOn m Paray anlwzluy[l 2385/95 (October 28 1997 Venty) The gnevor there was one of 8 bUIldmg contract admmIstrators workmg for the Ontano Realty CorporatIOn m ItS Kmgston office In 1995 the employer decIded to reduce the number of bUIld mg contract admmIstrators m ItS Kmgston office to five and to reduce the num ber of bUIldmg contract admmIstrators m ItS KemptvIlle office from SIX to five It laId off the three most Jumor bUIldmg contract admmIstrators m ItS Kmgston office mcludmg the gnevor and the most Jumor bUIldmg contract admmIstrator m ItS KemptvIlle office The gnevor had more semonty than two of the remam mg bUIldmg contract admmIstrators m the KemptvIlle office It appears that the two offices operated separately and served dIstmct geographIcal areas, but the bUIldmg contract admmIstrators m both offices had the same superVIsor The umon took the posItIOn that the Kmgston and KemptvIlle offices should have been consIdered a smgle "admmIstratIve dIstnct or umt, mstItutIOn or other such work area for purposes of ArtIcle 24 1 of the collectIve agreement then m effect, whIch had the same wordmg as ArtIcle 20 1 2 here [23] After notmg that the partIes had advIsed hIm that there had been no other decIsIOns mterpretmg the language m questIOn, the VIce ChaIr m Paray anlwzh[y[l made these observatIOns at pages 7 8 and 9 of hIS decIsIOn. In my VIew the language chosen by the partIes IS sufficIently broad to en compass a wIde vanatIOn of orgamzatIOnal structure. In thIS case the Prop- erty Support SerVIces Branch has chosen to dIvIde the Provmce of (lntarIO for purposes of admmIstratIOn mto vanous regIOns. I read ArtIcle 24.1 m the 00 lIef that the employer adopted the regIOnal admmIstratIve chstnct as the work area for purposes of IdentIficatIOn of a surplus employee. To my mmd, the use of the words admInIstratIve chstnct or unIt strongly suggests that the partIes hadm mmd an area whIch was part of the Provmce of OntarIO but larger than an office I am persuaded by the umon s contentIOn that an mchvlClual office 1.e the Kmgston office IS too small an area to support any form of meanmgful recog mtIOn of the prmcIple of semonty for purposes of lay-off. My conclusIOn IS supported by the CIrcumstances of Larry Cryderman who IS the only bUIldmg contract admmIstrator m the Lmdsay office whIle at the same tIme bemg the 11 second most senIor employee m the central regIOn of the Property Support ServIces Branch I find support for my mterpretatIOn m the definItIOn of ehstnct as a lB- gIOnal admmIstratIve UnIt contamedm the DIctIOnary of CanadIan Law 2nd eel. Dukelow In the result, It IS appropnate to tIe the lClentIficatIOn of a sur plus employee to the admmIstratIve ehstnct or admmIstratIve UnIt m whIch he IS employed m thIS case the eastern regIOn whIch encompasses both the Kmgston and KemptvIlle offices Kmgston and KemptvIlle are about 140 kIlometres apart by road Sault Ste Mane and Thunder Bay are nearly 700 kIlometres apart The umon argues that the same analysIs should apply here despIte the greater dIstance partIcularly smce purchasmg agents m the two locatIOns had the same superVIsor [24] It appears that ParayanJwzh[y[l supra IS not the only decIsIOn to have consIdered the meamng of the words of ArtIcle 20 1 2 prevIOusly ArtIcle 24 1 [25] In Launn/ Joly 1759/90 (October 30 1991 Venty) the gnevors were travel consultants employed by the MmIstry of Tounsm and RecreatIOn at an Ontano Travel InformatIOn Centre near Hawkesbury There were sImIlar cen tres at Lancaster and Cornwall, wIth two travel consultants lIkewIse employed at each of those locatIOns The travel consultants at all three centres were super vIsed by the same superVIsor After the Hawkesbury centre was destroyed by fire Mr Laurm was sent to work at the Cornwall centre and Ms Joly was sent to work at the Lancaster centre both on the baSIS that they would be reImbursed theIr costs of travel. After five or SIX weeks, the gnevors were mformed that the Hawkesbury Centre would not be replaced, and that they were to be laId off ac cordmgly The award focused on Ms Joly s claIm that thIS was Improper when more Jumor travel consultants contmued to work at the Lancaster centre Lan caster IS about 60 kIlometres by road from Hawkesbury [26] The umon took the posItIOn that the gnevors were m the same "admmIs tratIve dIstnct or umt, mstItutIOn or other such work area as the more Jumor employees at Lancaster as the decIsIOn notes at page 13 The UnIon contends that there IS a short answer to the first Issue m that the gnevors should never have been declared surplus and subject to lay-off under ArtIcle 24.1 because they were not the most JUnIor employees m an admmIs- 12 tratIve chstnct or umt, mstItutIOn or other such work area. The U mon a; knowledged that the MmIstrv properly applIed ArtIcle 24.1 m these CIrcum stances but chose the wrong employees to be IdentIfied as surplus employees. The umon argued m the alternatIve that once laId off, Ms Joly was entItled to bump a more Jumor employee at Lancaster because at that tIme Lancaster was her "headquarters for purposes of the "wIthm a forty kIlometre radIUS of the headquarters of the surplus employee test m what was then ArtIcle 24 6 l(a) [27] DespIte the small numbers of employees, the common superVISIOn and the relatIvely short dIstances the Board dIsmIssed the umon s argument that em ployees of the three travel centres were m the same "admmIstratIve dIstnct or umt, mstItutIOn or other such work area, assertmg at pages 14 and 15 that ~r e are not persuaded as to the ments of the U mon S short answer to the m terpretatIOn of ArtIcle 24.1 In our VIew a matenal change m orgamzatIOn wIthm the meanmg of 24.1 anses m thIS case not m the context of an admm IstratIve chstnct or umt but rather as a smgle or mchvIdual office. The Board found, however that Lancaster was gnevor J oly s "headquarters at the tIme of lay-off because It was where she then worked so she should have been allowed to bump one of the Lancaster employees [28] In Paul 2295/92 (October 6 1995 Stewart) the Board mterpreted the language of what was then ArtIcle 522 under whIch an employee whose pOSI tIon had been reclassIfied to a class wIth a lower salary maXImum was entItled to the appomtment to the first vacant posItIOn m hIS former class that occurred "m the same admmIstratIve dIstnct or umt, mstItutIOn or other work area m the same mmIstry m whIch he was employed at the tIme the reclassIficatIOn was made Before hIS reclassIficatIOn, the gnevor had been an InformatIOn Officer 2 m the Parks and Natural Hentage Branch of the PolIcy dIvIsIOn of the MmIstry of Natural Resources m the Greater Toronto area. The argument made by the umon IS descnbed at page 4 of the award Mr Adams argued that the prOVISIOn contemplates that an employee IS entI tled to return to a posItIon whIch may anse m hIS Immechate work area, such as the partIcular mstItutIOn m whIch he IS employed. However If no pOSItIon IS avaIlable there and there IS a pOSItIon m the former classIficatIOn avaIlable elsewhere m the MmIstrv partIcularly wIthm the geographIc regIOn m whIch 13 the employee worked, Mr Adams argued that the employee IS entItled to such a posItIon. Mr Adams argued that the phrase admmIstratIve chstnct m ArtIcle 522 has a geographIcal connotatIOn and submItted that where such a chstnct eXIsts wIthm the-MmIstry s operatIOns, an employee whose IX)- sItIon has been reclassIfied IS entItled to a posItIon that becomes avmlable wIthm that admmIstratIve chstnct Accordmgly m thIS case Mr Adams ar gued that Mr Paul IS entItled to the first posItIon m hIS former claSSIficatIOn ansmg m the greater Toronto area. In the alternatIve Mr Adams argued that the appropnate cachement area for the purposes of the applIcatIOn of Ar tIcle 5 2 2 IS the entIre PolIcy chvIsIOn, rather than the Branch. The Board reJected the broad approach advocated by the umon. In domg so It made these observatIOns at page 6 and followmg' In my VIew the words the same mchcate that the clause IS clearly mtended to provIde for the nght of an employee to the first classIfied posItIon ansmg m the partIcular work enVIronment he was m at the tIme of hIS reclassIfica tIon. I agree WIth Mr SmIth S submIssIOn that the reason that the clause outlInes alternatIves IS because there are many work enVIronments WIthIn the (lntarIO publIc servIce. To the extent that a purpOSIVe approach to the Issue IS appropnate, It must be noted that entItlement to a pOSItIon elsewhere m the MmIstry IS an entI tlement that would often be of no practIcal value to a re-classIfied employee If It means that he or she IS reqUIred not only to relocate but to relocate WIthout the benefit of a movmg allowance. In my VIew the real Issue m thIS case IS what constItutes the gnevor S work area. The reference to InstItutIOn m ArtIcle 52.2 mchcates that the work area IS to defined narrowly ~nIle the eVIdence before me as to the structure of the MmIstry of Natural Resources was qUIte lImIted, It IS apparent that the ProvmcIal Parks and Natural Hentage PolIcy Branch IS a dIscrete work structure. The entIre polIcy chvIsIOn, m my VIew IS broader than what IS con templated by the reference to work area m ArtIcle 522 ~nIle geographIc deSIgnatIOns mcludmg the Greater Toronto Area, eXIst wIthm the MmIstry the eVlClence chd not establIsh that thIS partIcular admmIstratIve chstnct m any way constItuted the gnevor s work area. [29] WhIle It seems orgamzatIOnal boundanes were more salIent than geo graphIc ones m the CIrcumstances of the Paul case the Board s comment on the reason for specIfymg the alternatIves "admmIstratIve dIstnct or umt, mstItutIOn or other work area IS equally applIcable to the prOVISIOn m Issue here The decI SIOn also touches on the problem of geographIc boundanes m the second of the above-quoted paragraphs, notmg that a broad VIew of thIS sort of language may not be m the mterest of employees generally That IS further Illustrated by the 14 Board S decIsIOn m Unwn Gnevance 665/81 (March 31 1982 Kennedy) con cermng the relocatIOn of the OHIP head office (hereafter "the OHIP case) [30] In June 1980 the government of the day announced that OHIP's head of fice would be relocated from Toronto to Kmgston over a perIod of three years The employer took the posItIOn that those OHIP employees wIlhng to relocate to Kmgston were guaranteed Jobs there but those unwIlhng to do so would be treated as havmg abandoned theIr posItIOns The umon s posItIOn was that the proposed relocatIOn mvolved a lay-off of the affected employees, who therefore had the rIghts that the collectIve agreement afforded m the event of a layoff. It argued that the posItIOns of the affected employees had a geographIc component, so that movement of the work from Toronto to Kmgston was not a transfer of eXIstmg posItIOns but an abohtIOn of those posItIOns and creatIOn of new pOSI tIons wIth a dIfferent geographIc element It noted that, as here the "PosItIOn SpecIficatIOn and Calls ActIOn Form for the affected posItIOns specIfied a geo graphIc locatIOn for the posItIOns It also pomted to the" 40-kIlometre radms test m the lay off prOVISIOns, whIch reqUIred mutual consent for assIgnment of a sur plus employee beyond that geographIc hmIt It argued that If the partIes had not recogmzed that posItIOns have some geographIcal constramt, there would have been no need to hmIt the geographIc area wIthm whIch a surplus employee could be compelled to accept a vacancy [31] The Board expressly accepted the umon s arguments, makmg these 00- servatIOns at pages 12 to 14 and 16 of ItS decISIOn. The Issue to be resolved on thIS arbItratIOn relates chrectly to ArtIcle 24.1 of the CollectIve Agreement and whether m the CIrcumstances the employees, who are unable or unwIllmg to relocate to Kmgston are entItled to the con tractual rIghts of employees who have been laId-off. The Issue may be even more narrowly stated as the determmatIOn of whether or not the posItIons oc cUlned by mcumbent employees m Toronto have a geographIc component It IS our vIew that the sItuatIOn has been characterIzed correctly by the UnIon as a sItuatIOn of lay-off and for the reasons relIed upon by the UnIon. The technIcal arguments submItted by the UnIon have been summarIzed m thIS award. In adchtIOn to those Mr Goudge argued that on the basIs of realIty and reasonableness a Job m Kmgston could not realIstIcally be VIewed as the same Job that preVIOusly eXIsted m Toronto 15 It may further be noted that m ArtIcle 24.1 the IdentIficatIOn of a surplus employee IS related to an admmIstratIve chstnct or UnIt, mstItutIOn or other such work area. The Employer s posItIon IS m substance that where the Job content remams the same the employee can be transferred anywhere wIthm the Provmce of (lntarIO to perform that work. The specIfic language of the clause however defines narrower boundanes outsIde of whIch the employee becomes a surplus employee rather than one who has abandoned the Job The actuallClentIficatIOn of those boundanes m the abstract IS not wIthm the pur VIew of thIS arbItratIOn. Each sItuatIOn has to be vIewed on ItS own facts and m the lIght of what IS reasonable m all the CIrcumstances. The contract Ian guage m ArtIcle 24 mchcates, wIthout specIfic definItIOn, that the partIes have agreed that those lImIts do eXIst. No challenge IS made to the Employer s nght to make the fundamental changes m the organIZatIOn that are proposed but the Employer cannot ffi- cape the contractual consequences of those changes SImply by categonsmg them as Job transfers. They constItute m substance the abolItIOn of certam pOSItIons under the CollectIve Agreement and the creatIOn of other pOSItIons. [32] I am not called upon to reconcIle the deCISIOns m ParayanJwzh[y[l and Joly By the standards of those deCISIOns, the CIrcumstances before me are en tIrely dIstmgUIshable NeIther they nor the other two deCISIOns mentIOned are determmatIve here They do however mform my assessment of the meamng of ArtIcle 20 1 2 [33] When the employer proposes to surplus some but not all of the employees employed m a partIcular pOSItIOn m "an admmIstratIve dIstrIct or umt, mstItu tIon or other such work area, ArtIcle 20 1 2 reqUIres that the least semor em ployees be selected for lay-off. Applymg the artIcle mvolves determmmg the "work area of the affected pOSItIOn. The language of the artIcle recogmzes that the work area may be dIfferent for dIfferent pOSItIOns The dutIes and responSI bIhtIes of a pOSItIOn may be such that the work area for that pOSItIOn IS an ai mmIstratIve dIstrIct, for others the work area may be an admmIstratIve umt, or a partIcular mstItutIOn, or "other such work area. The "work area may have both geographIc and orgamzatIOnal boundarIes Those are the boundarIes wIthm whIch an employee may be reqUIred to move to perform hIS work WIthout the re qUIrement trIggermg any of the rIghts or optIOns aVaIlable to someone who IS re qUIred to move to a "dIfferent posItIOn. 16 [34] The "work area IS a charactenstIc of the posItIOn, not of the superVIsor to whom someone employed m the posItIOn reports The geographIc boundanes of a posItIOn s work area do not vary wIth the wlllmgness to relocate of any partIcular mcumbent The PosItIon SpecIficatIOn for the posItIOn m Issue here describes ItS "Branch and SectIOn as "DISt 18 - Sault Ste Mane The assertIOn that the gnevors posItIOns had the entIre northwest regIOn as theIr work area, or enough of It to encompass Thunder Bay flIes m the face of the reahstIc and reasonable VIew contended for by the umon and accepted by the Board m the OHIP case In so far as It asserts a breach of ArtIcle 20 1 2 therefore thIS gnevance IS dls mIssed The Alleged Breach of Appendix 13 [35] The umon argues that the movement of the gnevor's purchasmg work from Sault Ste Mane to Thunder Bay amounted to a "change In "an operatIOn s headquarters to whIch AppendIx 13 apphed AppendIx 13 provIdes as follows Relocation of an Operation Beyond a 40 Kilometre Radius The Employer and the UnIon herewIth agree that, when a mmIstry decIdes to change an operatIOn s headquarters to a locatIOn outsIde a forty (40) blome- tre rachus of that operatIOn s current headquarters, the followmg terms and conchtIOns wIll apply' (1) affected employees wIll be notIfied, m wrItmg of the mmIstry s decIsIOn to change the operatIOns headquarters locatIOn and the date when such change WIll take place (2) (a) employees may accept the change m headquarters locatIOn, m whIch case they WIll be elIgIble for reImbursement of relocatIOn costs m a; cordance wIth the Employer s relocatIOn polIcy' or (b) employees may reject the change m headquarters locatIOn, m whIch case they WIll be gIVen SIX (6) months notIce of lay-off pursuant to Ar tIcle 20 2.1 (NotIce and Pay m LIeu) and have full access to the prOVI SIOns of ArtIcle 20 (Employment StabIlIty) and AppendIX 9 (Employ ment StabIlIty) of the CollectIve Agreement. (3) If several employees hold the same pOSItIon and fewer of theIr pOSItIons are reqUIred m the new headquarters locatIOn, the employees WIth the greatest senIOrIty WIll be gIVen the opportunIty to go to the new head- quarters locatIOn first (4) It IS understood that when an employee accepts the change m headquar ters locatIOn m accordance WIth thIS Memorandum of Agreement the prOVISIOns of ArtIcle 6 (Postmg and FIllmg of VacanCIes or New POSItIons) shall not apply 17 [36] AppendIx 13 speaks of changmg the "headquarters of an "operatIOn. Elsewhere m the collectIve agreement, the partIes spoke of an employee s havmg a "headquarters As I observed m Maclr/,tosh, 2587/96 (March 17 1997) An employee s headquarters for purposes of the central and bargammg umt collectIve agreements IS somethmg that IS assIgned to hIm or her as <p- pears from the language of ArtIcle 12 2 2(b) of each of the G bargammg umt collectIve agreements. In cases not governed by ArtIcle 11 of the central agreement, It appears that the employee s headquarters would be the locatIOn at whIch he or she ordmanly performs the work of the posItIon to whIch he or she has been appomted. The assIgnment of headquarters IS ImplIcIt m the appomtment to the employee S current regular or permanent posItIon. The locatIOn at whIch a posItIon eXIsts IS a elIstmgmshmg feature of the posItIon. two otherwIse lClentIcal posItIons at dIfferent locatIOns are dIfferent posItIons (see ArtIcle G G 1) It IS eVIdent from the prOVISIOns of AppendIX 13 themselves that an "operatIOn IS somethmg m whIch, or m respect of whIch, employees are employed I con clude that the "headquarters of an "operatIOn IS the headquarters of the em ployees employed m or m respect of that operatIOn. [37] The term "operatIOn IS not expressly defined m AppendIX 13 nor m two other prOVISIOns m whIch that word IS used ArtIcle 19 1 whIch addresses Clr cumstances m whIch "a reorgamzatIOn, closure transfer or the dIVestment, relo catIon or contractmg-out of an operatIOn m whole or m part WIll result m fifty (50) or more surplus employees m a mmlstry and paragraph 5 of AppendIX 9 whIch prOVIdes that "Where an operatIOn or part thereof IS bemg dIsposed of, and the employer has determmed that an opportumty for tendermg or blddmg IS warranted, employees shall be gIVen the opportumty to submIt a tender or bId on the same basIs as others [38] The Shorter Oxford dIctIOnary (9th ed Clarendon Press, Oxford) offers the followmg pertment defimtIOns of" operatIOn 1 a the actIOn or process or method of workmg or operatmg b the state of bemg actIve or functIOnmg (not vet In operatIOn) 2 an actIve process; a elIs- charge of a functIOn (the operatIOn of breathIng) 3 a pIece of work, esp one m a senes (often m pI. begl1l operatIOns) From thIS and the context m whIch the partIes have used the word I take "op eratIOn to mean a work process m whIch one or more persons are employed 18 [39] The applIcabIlIty of AppendIx 13 to actIOns of the employer cannot depend on how the employer charactenzed those actIOns at the tIme It took them LIke WIse It cannot depend on whether the employer dId what the prOVISIOn reqUIres m terms of offermg employees the opportumty to move wIth theIr work The pro VISIOn clearly contemplates m paragraph (3) the possibIlIty that an operatIOn wIll be downsIzed at the same tIme as ItS headquarters IS moved Accordmgly the prOVISIOn bears applIcatIOn where fewer employees perform the work of the op eratIOn at the new locatIOn than performed It m the prevIOUS one The headquar ters of an operatIOn IS sImply the place where the work of that operatIOn IS per formed DemonstratIOn that the performance of the work an IdentIfiable work process has moved from one locatIOn to another IS cntIcal to the applIcatIOn of the prOVISIOn. [40] The fact that an operatIOn ceases m one locatIOn and an operatIOn begms thereafter m another locatIOn constItutes a movement of the headquarters of an operatIOn only If the operatIOn at the new locatIOn IS "the same as the one at the prevIOUS locatIOn. For reasons already mentIOned thIS IdentIty (m the mathe matIcal sense) of the two operatIOns may eXIst even though the number and IdentItIes of employees employed are not the same It IS the work process Itself m respect of whIch there must be IdentIty or contmUIty WIthout mtendmg to ai dress m advance all of the Issues that mIght anse m determmmg whether such IdentIty or contmUIty eXIsts, It seems to me that the purpose(s) and work methodes) of an operatIOn would be features that would dlstmgUIsh one opera tIon from another [41] For purposes of the analysIs here I would describe the operatIOn m whIch the gnevors were employed at the tIme they were surplused as "purchasmg to serve the needs of mmlstry operatIOns m the Sault Ste Mane Dlstnct of the mmlstry s Northwest RegIOn, and I shall use "Sault Ste Mane purchasmg work as shorthand for that descnptIOn. ThIs IS a subset of the "Sault Ste Mane Purchasmg and Supply operatwn (my emphasIs) referred to m Mr MIller's 1994 memo That operatIOn was engaged m obtammg and supplymg goods and serv Ices for and to other mmlstry operatIOns m the Sault Ste Mane Dlstnct Mmls 19 try operatIOns m that DIstnct contmued to reqUIre goods and serVIces after the reorgamzatIOn m questIOn here Not all of those needs were to be met by havmg the operatIOns perform theIr own purchasmg usmg credIt cards A dIstmct pur chase and supply functIOn contmued to eXIst for that purpose followmg the dIs contmuance of purchasmg and warehousmg actIvItIes m Sault Ste Mane The locatIOn at whIch an employee or employees were performmg what remamed of those functIOns changed from Sault Ste Mane to Thunder Bay Apart from what necessanly follows from the change m work locatIOn, the eVIdence dIscloses no change m work methods [42] The employer argues that It dId not move the Sault Ste Mane purchasmg operatIOn. It says It dIscontmued purchasmg actIvIty m Sault Ste Mane, and thereafter certam "resIdual functIOns prevIOusly assocIated wIth that actIvIty were accomphshed by purchasmg officers m Thunder Bay [43] ThIs IS not a sItuatIOn (as m Unwn Gnevance 2417/92 (July 14 1993 Kaplan)) m whIch an operatIOn sImply ceases, leavmg the "customers of the op eratIOn to find other supphers on theIr own Here those who would formerly have dealt wIth the Sault Ste Mane purchasmg agents were told to deal wIth the Thunder Bay office The purchasmg records and supphers hsts of the Sault Ste Mane office the mformatIOn base wIth whIch the purchasmg agents there had worked were transferred to the Thunder Bay office A partIcular agent m Thunder Bay was desIgnated to deal wIth purchasmg for the Sault Ste Mane dIstnct That purchasmg agent travelled to Sault Ste Mane to meet supphers and at least to that extent, acqUIre knowledge about the work processes m whIch the Sault Ste Mane purchasmg operatIOn had been engaged [44] The employer argues that the "resIdual functIOns of the Sault Ste Mane purchasmg officers that contmued to be performed by purchasmg officers m Thunder Bay were msufficIent to constItute even a smgle posItIOn or more cor rectly that the eVIdence was msufficIent to demonstrate otherWIse and that on that basIs I should conclude that It had had no obhgatIOn under AppendIx 13 to offer eIther or both of the gnevors a posItIOn m Thunder Bay 20 [45] It IS Important to note that the questIOn IS not how much Sault Ste Mane purchasmg work was expected to remam or dId remam 3 or 6 months or 2 or 3 years after the performance of that work was shIfted to Thunder Bay The ques tIon must be how much such work was bemg performed m the new locatIOn 1m medIately after the shIft occurred The eVIdence before me IS a less that Ideal ba SIS for determmmg that questIOn, but that IS largely because the employer faIled to call eVIdence that I must mfer was aVaIlable to It [46] On Mr Behrsm s eVIdence perhaps 85 or 90 percent hIS work was unaf fected by the reorgamzatIOn m 1996 In the absence of eVIdence to the contrary I can and do mfer that the work he had been domg was stIll needed and was, m fact, performed from Thunder Bay after Mr Behrsm ceased performmg It Mr Kerhanovlch s reluctance to be pmned down on the same questIOn wIth respect to hIS work suggests that not much of hIS work was stIll needed by mmlstry op eratIOns m the Sault Ste Mane Dlstnct after the reorgamzatIOn. HIS work seems to have been much more related to the garage and warehouse operatIOns and the operatIOns they supported that Mr Behrsm s Of course one mIght say that to the extent garage and warehouse operatIOns formerly performed m Sault Ste Mane were consolIdated at the regIOnal garage and warehouse at Thunder Bay the purchasmg work assocIated wIth the moved garage and warehouse work should properly regarded as Sault Ste Mane purchasmg work for the pur poses of thIS analysIs Unfortunately there IS no eVIdence before me from whIch I can determme how much work that was [47] The person who dId the Sault Ste Mane purchasmg work after the move Steve MacGregor would have been the ObVIOUS person to have testIfy about the volume of Sault Ste Mane purchasmg work performed at the cntIcal tIme There IS no suggestIOn that he was beyond the reach of a summons, or that he was physIcally or mentally unable to testIfy WhIle It may be SaId that eIther party could have summonsed hIm the employer was m a better posItIOn to know what hIS eVIdence mIght be If It had As long as Mr MacGregor remamed an em ployee the employer could have reqUIred hIm to gIVe It an account of hIS work for It The umon could not He was clearly an employee of the mmlstry at the tIme 21 the gnevances were filed There IS no mdIcatIOn that he has ceased to be an em ployee at any tIme smce In addItIon to ItS greater access to Mr MacGregor's recollectIOn, the employer also had better access than the umon to the recollec tIons of other purchasmg agents m Thunder Bay and to the records of theIr wor k. [48] In these cIrcumstances, the eVIdence tendered by the umon IS sufficIent to persuade me that the Sault Ste Mane purchasmg work performed from Thun der Bay m the penod ImmedIately after such work ceased m Sault Ste Mane constItuted at least one full tIme purchasmg agent Job I am not persuaded, how ever that It was sufficIent to constItute two such Jobs [49] Accordmgly I find that the employer dId move the headquarters of the operatIOn m whIch the gnevors were employed from Sault Ste Mane to Thunder Bay that the extent of the moved operatIOn was such that there was one full tIme purchasmg agent posItIOn m It at ItS new locatIOn and that, accordmgly AppendIx 13 reqUIred that the employer offer that posItIOn to the gnevors m ac cordance wIth theIr semonty Mr KerhanovIch was more semor that Mr Behrsm. HIS testImony that he would have accepted a transfer to Thunder Bay was unchallenged The outcome for Mr Behrsm would have been no dIfferent, therefore, If the employer had properly dIscharged the obhgatIOns that I have found It had under AppendIx 13 Accordmgly Mr Behrsm s gnevance IS dIs mIssed m ItS entIrety [50] By way of remedy for ItS breach of AppendIx 13 the employer IS to com pensate Mr KerhanovIch for any loss that the umon can demonstrate he suf fered as a result of that breach, to the extent that that loss has not been mItI gated and could not wIth reasonable effort have been mItIgated I note that the claIm made on hIS behalf m that regard IS that If offered the transfer to Thunder Bay Mr KerhanovIch would not have retIred at the end of 1996 but would have taken the transfer and contmued to work for the mmIstry as a purchasmg agent m Thunder Bay untIl he could retIre on a factor 90 basIs m May 1999 The eVl dence from whIch the amount of compensatIOn payable would be determmed IS 22 not before me As I have already noted the partIes have agreed that thIS Issue may be the subJect of a further hearmg If they are unable to resolve It them selves [51] I remam seIsed wIth the Issue of the amount of compensatIOn payable to Mr KerhanovIch and any other Issue concermng the ImplementatIOn of thIS de CISIOn. Dated at Toronto thIS 18th day of May 2000 ~V