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HomeMy WebLinkAbout1996-0461CONVERSION97_02_10 - .. ON"",O EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 11111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD Des GRIEFS 180 DUNDAS STRECTWEST. SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST. BUREAU 2100. TORONTO (ON) M5G 1Z8 FACSIMILE/TEU~COPIE (416) 326-1396 GSB # 461/96, 462/96, 480/92, 520/96, 531/96, 532/96, 533/96, 747/96, 997/96, 1119/96, 1162/96 OPSEU :# 960568, 960569, 960562, 960593, 960590, 960591, 960592, 960713, 96F546, 960839, 960841 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Conversion Grievance) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE F. Briggs Vice-Chairperson FOR THE O. Eady GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE 0 Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING January 27, 1997 February 4, 1997 I "" Subsequent to the rattficatlOn of the new collecttve agreement whIch resulted from a five week strike, It became apparent, through the filmg of dozens of gnevances, that there was a fundamental dIspute between the partIes WIth respect to Arttcle 3 15 and Arttcle 3 38 Accordmgly, the partIes agreed that an expedIted process should be agreed upon to deal wIth the numerous outstandIng gnevances. That agreement stated. NotWIthstandmg the proviSions of the CollectIve Agreement, the partIes agree to abide by the followmg procedure m order to effectIvely deal WIth gnevances ansmg out of the apphcatiOn of ArtIcles 3 15 and 3.38 The partIes further agree that entenng mto tlus procedure does not COnflIct WIth the prOVISIons of the Collective Agreement. A) All cases to be mcluded m tlus process will be mutually agreed to by the partIes pnor to schedulmg the actual heanng. B) All gnevances that allege than an employee has not been converted in accordance WIth Art:1cle 3 15 or 338 will be forwarded directly to the DIrector of Human Resources m the respective ffiilllStry C) The MinIstry's HR department will direct such mqumes mto the alleged claun by the gnevor D) Withm a reasonable time frame, the Mimstry's HR department will forward to OPSEU Gnevance Department, AttentiOn. Kathleen Lawrence, its response to the gnevance together with the mfonnation that It relied upon should the gnevance be derued. Attached WIth the MinIstry's reply to OPSEU will be a copy of the appropnate gnevance. A copy of the response will be prOVIded to the local Uruon representative. E) The OPSEU Gnevance Department will consult WIth the grievor based on acts as presented by the MinIstry F) Should the matter be resolved at that stage, the MinIstry's HR department will be advised in writmg WIthm a reasonable tune frame. G) If the matter 15 not resolved at the OPSEU representative meetmg With a gnevor, there may be discussions with the Il1llllstry and/or a meetmg if requested. H) If there IS no dtscussion or meetmg WIth the mmistry, followmg discussiOn WIth the gnevor, OPSEU will adVIse the ffiilllStry and MBS, Negotiations Secretanat, that the matter will be scheduled for arbItratIon at pre-agreed upon dates. I) The partIes agree that m VIew of consolidatmg and centralizmg the handlmg of the gnevances, the Employer will not rely upon tune lunIts to refer a matter to arbItration followmg notificatiOn of the MilllStry'S HR department of intentiOn to proceed to arbitratiOn, J) The partIes agree that ill VIew of tlus agreed upon expedtted procedure, gnevors will be allowed a reasonable tune off work WIth no loss of payor cremts to prOVIde background comment and dIrectIOn to the Uruon should the matter proceed to arbItratIOn. K) In VIew of the above paragraph, the parties agree and are commItted to an expedIted process whereby attendance at arbItratiOn will not be reqUIred for employees unless mutually agreed upon or ansmg out of exceptIonal CIrcumstances. L) Should the above paragraph be Invoked, It IS agreed that a mInIStry may not unreasonably deny a request for attendance at a heanng. I 2 M) It IS agreed that for purposes of thiS special protocol, OPSEU wIll be entitled to the followmg With regard to the filmg of a grIevance, - work lustory of the gnevor - Iustory of the positIOn - summary sheet for all conversIOns under Article 3 15 and 3 38 that have been completed, For greater certamty, It IS understood that the Union may requIre copies of the gnevors' contracts as well as positIOn descnptlons. Such mformatlon will be supphed by the MinIstry's HR department. N) Mimstnes through theIr Human Resource department Will forward to the OPSEU Gnevance Department, Attention. Kathleen Lawrence, at the earlIest convernence, a summary sheet for all conversIOns under Article 3 15 and 3.38 that have been made dunng the lifetllDe of this CollectIve Agreement. 0) Either party will have the option of wlthdrawmg from tlus gnevance arbitratIOn process, generally or for mmvldual cases, upon notificatIOn to the other party That agreement was dated and SIgned January 15, 1997 However, the partIes had been dIscussmg the process for some tune pnor to the SIgnmg of the above document. Dunng the course of those dISCUSSIOns It became apparent to the partles that they had a fundamental dIspute as the apphcatlon of the new language. The new collective agreement was amended to prOVIde 3 15 1 1 Effecnve upon the date of ranficanon, where the same work has been performed by an employee m the UnclasSified Service for a penod of at least two years, except for situatIOns where the unclassified employee is replacmg a classIfied employee on a leave of absence authonzed by the Employer or as prOVided for under the collectIve agreement, and where the minIstry has detennmed that there IS a contmuing need for that work to be performed on a full-tune basiS, the nunistry shall establish a position witlun the ClaSSified Service to perform that work. 3 15 1.2 Where the lDIDlStry has determmed that It will convert a pOSitIOn m accordance With 3 15 1 1, the status of the mcumbent m the posItion will be converted from unclasSified to claSSified, prOVided that the mcumbent has been m a pOSition m question for at least two (2) years. 3 15.2 For the purpose of tlus section, "full-time" shall mean a Illll11mum of one thousand seven hundred and tlurty-two and three quarter (1,732,75) stralght- time hours or one thousand nme hundred and twelve (1,912) straight-time hours m each year, as applIcable, mcluding authonzed leaves of absence. However, all hours worked b} an unclaSSified employee wlule he IS replacmg a claSSified employee who IS on an authonzed leave of absence shall not be mcluded ill computmg the annual hours worked by the unclassIfied employee. The language of the preVIOu.s collectIve agreement stated - 3 3 15 1 EffectIve Apnl 1, 1991, where the same work has been performed by an employee 10 the Unclassified Service for a penod of at least two (2) consecutIve years, and where the nurustry has determ10ed that there IS a contmu1Og need for that work to be performed on a full-time basis, the mnustry shall establIsh a pOSitIon WIthrn the ClassIfied Service to perform that work, and shall post a vacancy m accordance WIth Article 4 (Postmg and Fill10g of Vacancies or New POSItIons) 3 15.2 For the purpose of tlus section, "full-time" shall mean a nurumum of one thousand seven hundred and tlurty-two and three quarter (1732.75) stralght- time hours or one thousand rune hundred and twelve (1912) straIght-tlIDe hours III each year, as applIcable, mcludmg authonzed leaves of absence. However, all hours worked by an unclassified employee while he IS replacmg a classified employee who IS on an authonzed leave of absence shall not be mcluded 10 computmg the annual hours worked by the unclassIfied employee. As stated preVIously, dunng the course of dISCUSSIOns between the partIes to establIsh parameters for tlns procedure, It became apparent that there was, m add1tlon to many mdIVIdual dIsputes, a fundamental dIsagreement regardmg the new language. Accordmgly, the partIes agreed to put tlns "polley" Issue before tlns Board m the absence of an actual gnevance The partIes are agreed that, If the cntena set out m artlcle 3 15 1 1 are met, mcumbents are "rolled over" mto a claSSIfied posltlon. That IS to say, If an unclaSSIfied person has been perfonmng the same work for at least two consecutlve years and that work dId not result from replacmg a classIfied employee on a leave of absence, and the lllIDlStry detenmnes that there IS a contmumg need for that work to be perfonned on a full-tune baSIS, that unclassIfied employee shall be converted mto a classIfied employee and the Job shall not have to be posted. The dIspute, SImply put, IS that the Employer takes the posItlon that m the event that there IS no Incumbent who has been perfonnIng the work for two consecutive years, there IS no oblIgatIon to convert the pOSItIon to classIfied status The Umon's VIew IS that, In the event there IS no Incumbent, the Employer IS oblIged to convert the pOSItIOn the classIfied status - 4 and post the posItIOn m accordance wIth artIcle 6 01 of the collectIve agreement. The Employer also took the pOSItIOn that the language of the collecove agreement was latently ambIguous and extrInsIc eVIdence regardmg dIscussIOns that took place dunng negotIaoons was reqwred to aSSIst the Board m amvrng at an appropnate mterpretaoon. The Dmon urged the Board to refuse to hear or allow the eVIdence takmg the posloon that the language of the collective agreement was clear and unambIguous The Employer requested an adjournment to enable It to have Its WItness available The Dmon took strong excepoon to the request for an adjournment. The Dmon's major concern about the adjournment request was that the partIes have estabbshed a oght tIme schedule for proceedIng WIth these gnevances and a further delay could JeopardIze that schedule Full argument was heard and the adjournment request was granted and a further heanng date was arranged Wlthm a week. Moreover, I mstructed the Employer to fully partIculanze the eVIdence that It mtended to call to enable the Umon to be m a posloon to call whatever eVIdence It felt necessary on the next scheduled heanng day EVIdence was called by both the Employer and the Dmon regardIng dIscussIOns that were held dunng the course of negooatlOns both pnor to and dunng the strike regardmg the Issue of the converSIOn of unclassIfied posloons. At the tIme of Its adjournment request, the Employer suggested that, when the proVIsIOn IS read together WIth other language of the collectIve agreement, an ambIguIty IS dIsclosed. It was suggested that extrInsIc eVIdence would aSSIst m dlsclosmg the ambIgUIty and further, that eVIdence would reveal that the language had a "specIal meanmg" that was understood and agreed by the partIes In the first sentence of artIcle 3 15 1 1 "an employee" IS referred to It was the pOSItIon of the Employer that eVIdence would reveal that although "an -. 5 employee" IS a phrase not modIfied, It meant an unclassIfied employee who had peIformed the work m the same pOSItlon. ThIs IS clanfied by artIcle 3 15 I 2 The artIcles do not stand alone and must be read together and sequentially On the second day of the heanng, Ms. Holmes, for the Employer, suggested that the Board had two Issues to decIde The first 15 whether artIcle 31 15 15 latently ambIguous Second, If I decIde that there IS ambIgwty, I must decIde If the extrInsIc eVIdence resolves the matter III favour of the Employer Further It was argued that the mterpretatIon advanced by the Umon buttresses the presence of an ambIgwty because It leads to a doubtful applIcatIon. The Employer argued that the three paragraphs of the new prOVISIon must be read m tOtalIty The first paragraph relates to the "what", the second relates to the "who" and the tlurd paragraph deals WIth the "how" In other words, artIcle 3 15 1 prOVIdes a tnggenng mechamsm for the converSIOn of tncwnbents. That 15 to say that a claSSIfied pOSItIon IS created WIthOut the requrrement to have approvals and WIthout the reqwrement to post the pOSIllon. The final paragraph defines what a full tune pOSItIon IS The entIre proVISIon relates to the converSIOn of mcumbents only, not pOSItIons. The exceptIon of replacmg for leaves of absence buttresses the Employer's VIew, Ms. Holmes asserted. That exceptIon clearly modIfies the defrmtJ.on of "an employee" It was the Employer's contentlon that the deletion of any reference to a postIng requIrement should aSSIst the Board m fmdIng III Its favour The absence of a requrrement to post converted posIllons must be seen as an mdtcatlon that the partIes agreed that only mcumbents were to be converted, not the pOSItions. If the partIes agreed to create new pOSItIons, they would have proVIded a method for dealmg WIth them. There IS no mentIOn of these pOSItIOns m the proVISIOns regardmg surplus or dIsplacement. -".- 6 Ms Holmes submItted that the Umon's InterpretatIOn would lead to admInIstratIVe chaos because of the lack of dIrectIon as to how to deal wIth newly created posItIons Further, It IS unlikely that the Employer would agree to convet1 posItIons as suggested by the Umon In these tImes of substantIal downslZIng. The Employer relIed upon Re Maritime Telegraph & Telephone Co. Ltd. and Telephone Employees' Union (1989), 8 L.A.C (4th) 22 (Archibald)~ Re B.C. Rapid Transit Co. and Office & Technical Employees Union, Local 378 (1988), 1 L.A.C (4th) 328 (McPhillIps), Re Spruce Falls Power and Paper Co. Ltd. and Lumber & Sawmill Workers' Union, Local 2995 (1990), 13 L.A,C (4th) 372 (Palmer), Re British Columbia Teachers' Federation and British Columbia Teacher's Federation Administrative Staff Union (1995),47 L.A.C (4th) 221 (Germame), Re Sealy (Western) Ltd. and Canadian Beddings and Furniture Ltd. and Teamsters' Union, Local 351 (1982),5 L.A.C (3d) 360 (Hope), Re Jasper Trucking Co. Ltd. and United Brewery Workers, Local 300 (1978), 19 L.A.C (2d) 69 (Hope), Re Wire Rope Industries Ltd. and United Steelworkers, Local 3910 (1982), 4 L.A.C (3d) 323 (Chertkow) and Re Leitch Gold Mines Ltd. et al. v Texas Gulf Sulphur Co. (Incorporated) et al. (1968), 3 D.L.R. (3d) 161 (Gale, C.J 0 ) Mr Eady, for the Umon, took the pOSItIOn that the Board should not hear or conSIder extnnsIc eVIdence because the language of the collectIve agreement was clear and unambIguous He stated that, at no tune, dId the Employer pomt out preCIsely where the ambIgwty he and that IS because no ambIgUIty can be found. Tlus Board must fIrst make a findmg of ambIgUIty, latent or patent, before It can conSIder extnnsIc eVIdence No such fmdmg can be made, It was asserted. The headmg of the artIcle at Issue IS "ConversIOn of UnclaSSIfied POSItIOns to ClassIfied POSItIons" WhIle It was conceded by the Umon that headIngs alone cannot be relIed upon for the InterpretatIOn of a collectIve agreement, It should at least be noted that the headmg -. - / 7 IS completely consIstent WIth the Umon's VIew that It IS posItIOns that are to be converted. The converSIon process IS five step FIrst, the new proVIsIOn does not begm untIl the date of ratIficatIOn. Second, the same work must be done Thrrd, the work must have been done for at least two consecutIve years. Fourth, the two years must be exclUSIve of work resultIng from leaves of absence FIfth, the Employer must then detenmne that there IS an ongomg need for the work. Only when all of these tests are met the Employer IS mandated to estabhsh a pOSItIon m the classIfied seMce Now that there IS a pOSItIon, the next step IS to ascertam whether there IS an mcwnbent who has been perfonmng the work for two years If so, that employee IS automatIcally converted mto the pOSItIon as a classIfied employee If not, the pOSItIon must be posted. And, contrary to the SublDlssIOns of the Employer, there IS clear dIrectIOn as to how do accomphsh that. At artIcle 4 - POStIng and FIllmg of VacanCIes or New Posluons - It IS stated. 4 1 When a vacancy occurs m the Classtfied ServIce for a bargammg unit pOSItion or a new classtfied pOSItion IS created m the bargammg unit, It shall be advertised for at leats ten (10) workmg days pnor to the estabhshed closmg date when advertIsed Wlthm a rnmistIy, or It shall be advertIsed for at least fifteen (15) workmg days pnor to the estabhshed closmg date when advertIsed servIce-Wlde. Where practable, notice of vacanCIes shall be posted on bulletin boards. It must be clear, Mr Eady contended, that no adnnmstrauve chaos IS created. The Job IS eIther gIven to the mcwnbent m the event s!he quahfies or It IS posted m accordance WIth the collectIve agreement. Fwther, m response to the Employer's assertIon that such a proVISIon IS mutually exclUSIve WIth ItS goal to substantIally downSIze, the Umon argued that the Employer has control of the creatIon of new pOSItIons. The cntena that a new pOSItIon be created IS predIcated on the Employer haVIng deCIded that there IS a contmumg need for the work to be done If the Employer wants to lllUlt the number of converSIOns, It only has to dIscontmue the work. The Umon submItted that the reference In the expIred collectIve agreement to the postIng of Jobs In accordance WIth ArtIcle 4 was deleted by the partIes because, where pOSSIble, the ~ , 8 newly created Jobs WIll be assIgned to Incumbents It IS only In the event that there IS no elIgible Incumbent that the pOSItIOn IS to be posted. Retammg the reference to the postIng proVisIOn m the mstant artlcle would only lead to confusIOn. The Dmon proVided some background to the language by way of Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Union Grievances) (December 19, 1994), DIssanayake (unreported) That dIspute arose out of the language negotIated mto the most recently exprred collecnve agreement at artlcle 3 15 1 (set out above). The Employer took the pOSItIon that ill order for a pOSItIon to be converted It had to be occupIed by only one person for a two year penod. The Employer relled upon the use of "an employee" as an mmcatIon that only one person could have done the work. The Board disagreed fmdmg, at page 7 that, "we prefer the UIllon's mterpretatlOn that "an employee" m article 3 15 1 means, not "the same employee" but "any employee" Therefore, Mr Eady contended, the partIes knew clearly what the mterpretatIon of the expIred collectIve agreement was. It was WIth tlus knowledge that the new collectIve agreement was executed. The Dmon urged the Board not to conSIder the extrInsic eVidence because the language of the collectIve agreement IS clear and unambIguous and, m the absence of an ambIguIty, the Board cannot rely on such eVidence as an aId to mterpretatIon. It IS not suffiCIent for there to be a dIspute as to the meanmg of the collectIve agreement. If thIS was the case, extrInsIc eVidence would be allowed m Virtually all cases In order to fmd for the Employer, tlus Board must be able to ascertam preCIsely where the ambIgUIty lIes. If an ambIguIty IS found, the Board must then detenmne whether the extnnslc eVidence resolves the ambIgUIty m favour of the party assertIng there IS one None of thiS 9 can be done III the present case, Mr Eady urged. The Umon also relIed upon Re Ottawa-Cornwall Broadcasting Ltd. (CJOH- TV) and National Association of Broadcast Employees and Technicians (1977), 15 L A.C (2d) 64 (Fraser), Re North Cariboo Forest Labour Relations Association and International Woodworkers of America, Local 1-424 (1985), 19 L A.C (3d) 115 (Hope), Re University of Manitoba and Canadian Union of Educational Workers, Local 9 (1990), 11 L A.C (4th) 353 (Freedman), Re Perth County Board of Educabon and Federation of Women Teachers' Associations of Ontario & Ontario Public School Men Teachers' Federation ( 1977), 14 L.A.C (2d) 128 (Brandt), Re Canadian National Railway Co. (Telecommunications Dept.) and Canadian Telecommunications Union (1975), 8 L.A.C (2d) 256 (H.D Brown), and Re United Steelworkers of America, Local 1005 and Steel Co. Of Canada Ltd. et aJ. (June 6, 1978),200 R. (2d) 205 (Grange, J) DECISION After consIderatIon, I am of the VIew that there is no ambIguIty ill the language of the collectIve agreement as suggested by the Employer The prOVISIOns are clear and lead me to fmd for the Dmon. ArtIcle 3 15 IllS the fIrst step III the converSIOn process. If the same work has been performed for at least two consecutIve years (excludmg work resultIng from leaves of absence) the Employer must make a determmatIon as to whether there IS a contmumg need for the work If there IS such a need, the MImstIy must establIsh "a pOSItIon wItIun the ClassIfied ServIce to perform that work" Once the pOSItion has been establIshed m accordance WIth that first step of the process, an mcumbent who has been m that partIcular pOSItIon for at least two years WIll be converted from unclassIfied to classIfied. _. 10 The Employer suggested that, where there IS no mcumbent who IS elIgIble to be converted, there 1S nothIng further to be done. I tlunk not. Such an mterpretatIOn makes no sense and IS contrary to the clear proVISIOns of the collectIve agreement. In defendmg Its mterpretatIOn, the Employer argued that there IS no drrectIon as to how to proceed WIth establIshIng a posItIon m the event there IS no mcumbent. Agam, I dIsagree The Job postIng proVISIOns apply ArtIcle 4 1 states 4 1 When a vacancy occurs III the classified service for a bargauung urnt pOSition or a new classified posItion IS created III the bargaimng urnt. (emphasis mme) The Employer also asserted that admuustratIve chaos WIll result If I fmd for the Umon. Tlus IS dIfficult to ooderstand. Once a posItIon has been establIshed m accordance WIth artlcle 3 15 1 1, one of two events transprre. EIther an mcumbent meets certam cntena and IS converted or the posItIon IS posted and filled m accordance WIth ArtIcle 4 of the collectIve agreement. The Employer suggested that It was counter-mtUItIve that It would agree to a procedure for creatmg new posItIons m these tImes of government-wIde downsIzmg. As a matter of pnncIple, that argument has ment. However, m fact, the Employer still has some level of control over the establIshment of new pOSItIOnS and the converSIOn of unclassIfied employees to classIfied status In the event that the stated cntena are met, the Employer has an opporturuty to determme "that there IS a contmumg need for that work to be performed on a full tune basIs" Tlus allows the Employer a degree of dIscretIon. The Umon conceded that, generally speakIng, headmg of artIcles are not, m and of themselves, detenmnatIve of the mterpretatIon of a clause In the mstant case, the artIcle IS entItled "ConverSIOn of Unclassified PosItIons to ClassIfied Pos1tIOns" In ArtIcle 3 15 1 1, there IS reference agam to the mullstry haVIDg to "establIsh a pOSItIon" ArtIcle 3 15 I 2 states that where a "pOSItIon" has been establIshed It Will be gIven to an mcumbent m cel1am - 11 cIrcumstances. In order for me to fmd for the Employer, I would have to Ignore or read out the word "posIllon" m ArtIcle 3 15 1 1 If the partIes had mtended to convert only certam unclassIfied mcumbents to classIfied status m accordance WIth some set of cntena, they would have stated so Further, they would not have proVIded, m the detaIl found ill ArtIcle 3 15 1 1, cntena for the establIshment of a pOSItIon and set out further cntena for converSIOn of an mcumbent as IS found at ArtIcle 3 15 1.2 For all of those reasons, the questIOn IS answered m favour of the Dmon. That IS to say, m the event that a posItIon IS establIshed m accordance With the cntena m ArtIcle 3 15 1 1, and there IS no elIgible mcwnbent for the establIshed pOSItIon as per ArtIcle 3 15 1.2, the posItIOn shall be posted and filled ill accordance WIth the Job Postmg proVIsIOns ill Arttcle 4 of the collectIve agreement. Dated at Toronto, tlus lOth day of February, 1997 I FelICIty D Bnggs Vice ChaIT