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HomeMy WebLinkAbout1996-0748SOPHA97_02_08 - , ONTARIO EMPLOYES DE LA COURDNNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE 7' SETTLEMENT REGLEMENT BOARD DES GRIEFS 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/TELECOPIE (416) 326 1396 GSB # 748/96 OPSEU # 960712 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sopha) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE F. Briggs Vice-Chairperson FOR THE K. Lawrence GRIEVOR Grievance Officer Ontario Public Service Employees union FOR THE M Meikle EMPLOYER HR Relations Consultant Ministry of the Attorney General HEARING December 9, 1996 . Subsequent to the ratIficatIOn of the new collecttve agreement whIch resulted from a five week strIke, It became apparent, through the filIng of dozens of gnevances, that there was a fundamental dIspute between the partIes WIth respect to ArtIcle 3 15 and Arttcle 3 38 Accordmgly, the partIes agreed that an expedIted process should be agreed upon to deal wIth the numerous outstandmg gnevances. That agreement stated. NotwIthstandmg the provIsIOns of the Collective Agreement, the parties agree to abide bv the followmg procedure m order to effectively deal With gnevances ansmg out of the applIcatIOn of Articles 3 15 and 3.38 The parties fwther agree that entenng mto thIs procedure does not COnflict With the provIsions of the Collective Agreement. A) All cases to be mcluded III thIs process wIll be mutually agreed to by the parties pnor to schedullllg the actual heanng. B) All gnevances that allege than an employee has not been converted m accordance Wlth ArtIcle 3 15 or 3.38 will be forwarded dIrectly to the Drrector of Human Resources m the respective muustry C) The Mirustry's HR department will drrect such mqumes mto the alleged clalDl by the gnevor D) Withm a reasonable tlme frame, the MinIstry's HR department will forward to OPSEU Gnevance Department, AttentIOn. Kathleen Lawrence, ItS response to the gnevance together With the mformatIOn that It rehed upon should the gnevance be derued. Attached With the Mlll1stry'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 gnevor based on acts as presented by the Mirustry F) Should the matter be resolved at that stage, the Mlll1stry's HR department Will be adVised m wntmg Wlthm a reasonable tune frame. G) If the matter IS not resolved at the OPSEU representative meetlllg With a gnevor, there may be dISCUSSions With the muustry and/or a meetmg If requested. H) If there IS no discussIOn or meetmg WIth the muustry, followmg dISCUSSIOn With the gnevor, OPSEU will adVise the muustry 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 consohdatmg and centralIzmg the handlmg of the gnevances, the Employer will not rely upon tIme lunIts to refer a matter to arbItratIOn followmg notIficatIon of the MllllStry'S HR department of mtentIOn to proceed to arbItratIon. J) The parties agree that m view of thiS agreed upon exped1ted procedure, gnevors WIll be allowed a reasonable tIme off work WIth no loss of payor cred1ts 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 requrred for employees unless mutually agreed upon or ansmg out of exceptIOnal crrcumstances L) Should the above paragraph be mvoked, It IS agreed that a nurustry may not unreasonably deny a requcst for attcndance at a heanng. 1 - , 2 " M) It IS agreed that for purposes of dus special protocol, OPSEU will be entitled to the followmg with regard to the filing of a grievance, - work lustory of the gnevor - history of the pOSitIOn - summary sheet for all conversIOns under Article 3 15 and 3 38 that have been completed. For greater ccrtamty It IS understood that the Umon may reqUire copies ofthe gnevors' contracts as well as posItion descnptlOns Such mformatIon Will be supphed by the MmlstI) s HR department. N) Mlntstnes through therr Human Resource department will forward to the OPSEU Gnevance Department, Attention. Kathleen Lawrence, at the earliest convemence, a summary sheet for all converSIOns under Article 3 15 and 3.38 that have been made dunng the hfetlll1e of tlus Collective Agreement. 0) Either party will have the optIOn of wlthdrawmg from tills gnevance arbitratIOn process, generall) or for millvldual cases, upon notIficatIOn to the other party That agreement was dated and Signed January 15, 1997 However, the parties had been chscussmg the process for some tune poor to the Slgmng of the above document. Indeed, on November 26, 1996 and December 9, 1996, the partles put two of the outstandmg gnevances before the Board. It was hoped that a determmatlOn on these two prebmmary gnevances would proVIde some gmdance to the partles for other outstandmg matters It would be helpful to set out Artlcle 3 15 and Artlcle 3 38 at tlus pomt. They state CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS 3 15 1 1 Effective upon the date of ratificatIon, where the same work has been performed by an employee m the Unclassified Service for a penod of at least two (2) consecutive years, except for SituatIOns where the unclassified emplovee 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 numstry has determmed that there IS a contmumg need for that work to be performed on a full-tlll1e baSIS, the ffimlst:I) shall establish a posItion wlthm the ClaSSified Service to perform that work. 3 15 I 2 Where the nurustrv has determmed that It will convert a posItIon m accordance With 3 15 lIthe status of the mcumbent m the pOSitIOn Will be converted from unclaSSified to claSSified, prOVided that the mcumbent has been m the pOSition m question for at least two (2) years. 3 152 F or the purpose of thIS sectIOn full-time shall man a minImum of one thousand seven hundred and thlrt\-two and three quarter (l 732 75) stralght- tIme hours or one thousand nme hWldred and twelve (I 912) straight-time - 3 hours m each year as apphcable, mcludmg authorIzed leaves of absence However all hours worked by an unclassified employee whIle he IS replacmg a classIfied employee who IS on an authorIzed leave of absence shall not be mcluded m computmg the annual hours worked by the unclassIfied employee GO TEMPS AND STUDENTS 338 I A GO Temp IS an unclassIfied employee who IS on a temporary work assIgnment arranged by the CIVIl ServIce ComnllssIOn under the GO Temporary ServIces Program. A GO Temp ceases to be an employee upon completIon or tennmatlOn, for any reason, of the temporary work assIgnment. 3 38.2 I Effective upon the date of ratIficatIon, where the same work has been performed by a GO Temp employee for a penod of at least two (2) consecutIve years, except for SItuatIons where the GO Temp 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 IllllllStry has determmed that there IS a contmwng need for that work to be performed on a full-tune basIs, the IllllllStry shall estabhsh a posItIOn WIthIn the ClassIfied Service to perform that work. 3.38.2.2 Where the rmmstry has detennmed that It will convert a posItIon In accordance with 3 38.2.1, the status of the mcumbent m the positIOn WIll be converted from GO Temp to classified, proVided that the Incumbent has been In the positIOn m question for at least two (2) years. 338.3 The follOWIng article shall apply to GO Temp employees Article A, I 2,27 and 86 No other articles shall apply Mr Edward Sopha filed a gnevance on May 2, 1996, allegmg that he "should be appomted to the ClaSSIfied Staff as proVIded m the proVISIOns of ArtIcles 3 15 1.2 of the CECBA agreement" He asked the he "be classIfied llnmedIately as per the above referenced artIcles and that I receIve full nghts as per ArtIcle 24 of the CECBA agreement effectIve upomtment (SIC) to classIfied status" The grIevor has worked as a full tIme Appomtments Clerk (OAG 8) WIth the Mmtstry of the Attorney General smce J anual)' of 1993 He was ongmally hIred by Management Board Secretanat as a GO Temp III September of 1989 He bId on and was successful for the pOSItIOn of temporary Appomtments Clerk. The Mmlstry set out the work hIstory of the gnevor III MmlstIy of the Attorney General as follows -..;, / 4 -Janua!)' 25/93 - Sept 30/93 -Appomtments Clerk OAG 8 -Backfillmg for a secondment - October 1/93 - Mar 31/93 -Appomtments Clerk OAG 8 - Apnl 1/94 - Aug 31/94 -Appomtments Clerk OAG 8 - Sept 1/94 - Jan 31/95 -Appomtments Clerk OAG 8 Pendmg recruItment - Feb 1/95 - Julv 31/95 -Appomtments Clerk OAG 8 5 month extensIOn - Aug 1/95 - Dec 29/95 -Appomtment Clerk OAG 8 5 month extensIOn - December 22/95 -16 week notIce - letter outhnes m order to meet fmancIal pressmes, It has become necessary to tennrnate pOSitIOn" - Jan 1/96 - Apr 21/96 -Appomtment Clerk OAG 8 extensIOn due to 16 week notIce -Apr 22/96 - May 24/96 -Appomtment Clerk OAG 8 extensIon due to luatus dunng strike It was the Dmon's SUbIll1SS10n that the Employer had three and a half years m wInch to detenmne If there was an ongomg or contmumg need for the work to be done and that It cannot now sunply state, as a matter of fact, that need no longer eXisted for the work to be done The Dmon stated m Its wntten SUbIll1SSlOn that: It IS the gnevor's eVIdence that he replaced Rita COnfOrtI who had been seconded to the Secuntv section at the MinIstry m January 1993 He performed the same work contmuously for approXImately three and one-half years pnor to filmg tlus specIfic gnevance In tlus case the Mirustry had an obhgatIOn to make such a determmatIOn by January 25 1995 or shortly thereafter By that tIme It was known that the employee, Rita Conforti, who Mr Sopha was replacmg, had won a competition and was workIng permanently m the Secuntles sectIOn of the Mirust!)' The Uruon acknowledges that smce Mr Sopha's termmatlon no other employee has been hrred to perform the Appomtments Clerk positIOn that Mr Sopha performed for three and one half years. However tlus fact IS not suffiCient m Itself to determme whether there IS a contmumg need for the work he performed. The volume of work m tlus office has not changed smce Mr Sopha s tcnrunatIOn on May 24 1996 The work, III fact, contmues to be performed SInce It has been dIstnbuted among the two remammg classified Appomtment Clerks WhIle the Mllllstn has reorgaruzed work such that they were able to ehmmate a positIOn m Mav 1996 still, the Umon submIts there IS an ongomg need for the same volume of work to be performed bv the Umt. It was the Uruon's assertIon that at the time of ratIficatIOn, all of the necessary condItIons In - . 5 AItIcle 3 15 1 had been met. Therefore the gnevor qualIfies for converSIOn under AltIcle 3 15 1.2 The Employer gave 16 weeks notIce as reqUITed under the Employment Standards Act However, the fact that the Employer met ItS oblIgatIon under the Employment Standards Act does not reheve It of Its obhgatIons under the collectIve agreement. Whether the notIce the gnevor receIved IS three weeks or tlurty weeks IS not relevant for tlus Board's purposes. The relevant consIderatIon IS the status of the gnevor at the tIme of ratIficatIOn and at the tnne of the filmg of the gnevance IrrespectIve of when the Employer decIded to termmate the gnevor, the effectIve date of hIS termmatIon was May 8, 1996, some eIght weeks after ratIficatIon. The Uruon argued that It IS not for tlus Board to decIde whether there IS a contmumg need for the gnevor's pOSItIon but, rather, where there IS a contmumg need for the work to be done accordmg to the language of the collectIve agreement. The Umon relIed upon Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Union Grievance) (#803/91) (December 19, 1994), unreported (DIssanayake), Re The Crown in Right of Ontario (Ministry of Financial Institutions) and OPSEU (Canete) (June 27, 1991), unreported (Snnmons), and Re The Crown in Right of Ontario and OPSEU(Koss) (November 1,1996), unreported (Mikus) The Employer began by remmdmg the Board that the gnevor got hIS notIce of termmatlOn ill December of 1995, wh1ch referred to "fmanclal pressures" Due to the five week stnke m February of 1996, the gnevor's notIce was for extended five weeks The gnevor was termmated on May 26, 1996 The gnevors' branch was downSIzed substanually The urut had mne people and It was reduced by a thrrd m a matter of months There were three appomtments clerks The other two are classIfied wIth one person deSIgnated at the group leader and the other as the deSIgnated bIlmgual posItIon. - -' 6 The gnevance was filed on May 2, 1996, and accordmgly, only the language of the new collectIve agreement IS to be consIdered by thIs Board, contended the Employer The new collectIve agreement reqUIres that the same work be done for at least two consecutIve years and that there be a contmumg need for that work on a full-time baSIS The Employer consIdered the matter and detenmned that there was no contmumg need. Management has the nght to downSIze and to redIstribute the work. WhIle It lllight be true that the workload has mcreased for the two remammg clerks, that fact IS not suffiCIent for the Employer or thIs Board to detenmne that there IS a contmumg need for a full-tune pOSItion. The Employer sublllitted that the oblIgation to assess ongomg or contmumg need anses on the date of the filmg of the gnevance or the effective date of ratlficatlon. In tlus mstance, as of eIther of those dates, the Employer had long smce detenmned that there was no ongomg or contmumg need for the work and, accordmgly, the date of the filmg of the gnevance or the date of ratIfication IS not relevant to the employer's oblIgation to assess the work. A deCISIon of what happens to thIs gnevor cannot be deCIded on language that was not If effect at the tune he was gIven notIce The Employer stressed that there was no pOSItIOn to assess as of the date of ratIfication or at the tune of the filmg of the gnevance because the gnevor had been gIven notIce under a preVIOUS collectIve agreement, that IS, December 22, 1995 The Employer suggested that Re Canete IS of no aSSIstance to tins Board because, m that case, the gnevor was found to have been unproperly appomted as an unclassIfied employee m the first mstance That IS to say that It was not appropnate for the Employer to fill a vacant claSSIfied posIhon WIth an unclaSSIfied employee That determmatIOn has no applIcatIOn m thIS matter The Employer relIed upon Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Union Grievance) (#1681/91) (November 1, 1994), unreported - , 7 (Watters), and Re The Crown in Right of Ontario (Ministry of Community and Social Services) and OPSEU (Lynch-Burrus) (February 8, 1995), unreported (DIssanayake) , In reply the Umon argued that the Employer could have gIven the gnevor an OpportunIty to work out Ius notIce or snnply gIven lum money m heu of notIce It chose to have the gnevor work hIS notIce penod and thIS must stand for the proposItIon that there was a contmumg need for the work. Further, m assessmg whether there was ongomg need for the work, It IS to be remembered that the work bemg petfonned by the gnevor had been that of a full tune classIfied posItlOn for fifteen years That IS, the work once done by Ms COnfortI The vacancy should have been posted more than a year pnor to the filmg of the gnevance The gnevor was lured to backfill and contmued to receIve extenslOns even after Ms ConfortI got another full tune posItIon m 1995 DECISION The Issue before tlus Board IS whether the gnevor ought to have been converted to claSSIfied servIce m accordance With ArtIcle 3 15 1 2 The dIspute arIses because the Employer states that there IS no ongomg or contmumg need for the work to be done on a full-tune baSIS Therefore there IS no classIfied posItlOn to be establIshed to wluch the gnevor would be converted. In tlus mstance, the Employer notIfied the gnevor m December of 1995, that "m order to meet financial pressures, It has become necessary to terrmnate posItlOn" At11cle 3 15 1 1 sets out the clear cntena necessary to obhge the Employer to establIsh a claSSIfied pOSItIOn. The cntena at Issue IS the determmatIon of a contmumg need for the work to be peIfonned on a full-tIme baSIS There was reference to the volume of work peIfOlmed by the office where the gnevor worked has not changed. Indeed, the Umon stated that, "The work, m fact, contmues to be performed smce It has been dIstributed among the - , ." 8 two remammg classIfied Appomtment Clerks. Wlule the M1ll1stIy has reorgaruzed work such that they were able to ehmmate a posItIon m May 1996, still, the Umon submIts there IS an ongomg need for the same volume of work to be performed by the umt" The Employer did not dIspute that some of the work has been redIstributed to the other clerks Indeed, It acknowledged that re-orgamzatIon statmg that It was wIthIn ItS management's nghts to orgamze the work. It was mentIOned that the gnevor contmued to do the work at the tune of the fihng of the gnevance That IS true However, he had long smce receIved lus notIce of tennmatlOn and was workIng through lus notIce penod. I am of the View that the fact that the gnevor was stIll performmg the work at the tune of the filmg of the gnevance IS not, m and of Itself, determmatIve of the Issue because he had already receIved notIce of termmatIon. To make such a findmg would suggest that m order for the Employer to prove that there IS no ongomg need for the work It must pay employees notIce m heu of notIce and not allow them to work therr penod of notIce I cannot make such a fmdmg. The Umon asserted that because there IS a contInumg need for the work I must find that a claSSIfied Job should be estabhshed leadmg to the ultunate converSlOn of the gnevor However, the collectIve agreement does not merely refer to the need for contmumg work. The collectIVe agreement specIfies that a full tIme posItlOn wIll be estabhshed when other cntena are met and "where the MimstIy has detennrned that there IS contmumg need for that work to be performed on a full-time basIs"( emphaSIS mme) There IS a consIderable dIfference between those two The declslOns that were rehed upon by the partIes were not cases that were partIcularly helpful. None of the deCISlOns dealt WIth a maSSIve reduction of the work on a ProvInce-wide baSIS and are dlstmgmshable on that baSIS alone The Employer IS entitled to detenmne Its ~ 9 workforce as long as It does so ill accordance wIth the terms and provIsIOns of the collectIve agreement. The Employer has decIded to layoff thousands of employees workmg m every MInIStry ArtIcle 3 15 1 1 and 3 15 1 2 wIll not protect unclassIfied employees from reCeIVIng notIce of termmatIon. In consIdenng the cntena for the establIshment of classIfied posItIons as set out In 3 15 1 1 of the expIred collectIve agreement, the Board III Re 803/91 stated Is the work beIng performed on a "full-tIme" baSIS ArtIcle 3 15 1 reqUIres that the employer must have detenruned that there was a contInuIng need for the work to be performed on a "full-tIme" basIs. We have already decIded that the employer's detemunatIOn IS conclusively eVidenced by what work IS actually bemg performed. Therefore, the Issue IS whether, at the Wlutby Jail, the work IS bemg performed on a "full-tune" basiS WlthIn the defirutIOn of article 3 15.2 Under artIcle 3 15.2 In computmg the stipulated straIght time hours, "hours worked by an unclassified employ while he IS replacmg a classified employee who IS on an authonzed leave of absence" are not to be mcluded. The eVIdence mdlcates that a SIgnIficant portlOn of the hours relted upon by the Ulllon were "replacement hours" m the sense that the unclaSSified officer was replaCIng a classified officer However, article 3 15.2 does not exclude all replacement hours from the computatIOn. The hours are excluded only If the classified officer beIng replaced was on an authonzed leave of absence" To summanze our mterpretatIOn then of the dIsputed phrases, we find as follows (A) Article 3 15 1 does not requlfe that the work be performed by the same or a particular employee "An employee m the unclaSSified service" m article 3 15 1 means an\- employee" m the unclassified service. (B) We find that the eVidence that the work m questIOn m fact contInued to be performed, m absence of an) eVidence to the contrary, IS concluslVe proof that the employer had determmed that there was a contmumg need for that work to be performed. If the employer had not so detennmed the work would not have contmued to be performed. On an application of the foregomg mterpretatIOns to the eVidence before us, we make the followmg findIngs (b) We find that b'y contInuIng to assign unclaSSified emplovees to perform the work 10 questIon, the employer has detennmed that there IS a contInuIng need, as of the time of the gnevance, for the performance of that work. Therefore, that reqUIrement of article 3 15 1 has been met. As stated preVIously, the deCISIOns before me dIffer from the mstant matter m that they all -- 10 deal Wlth gnevances where, as a SImple result of the passage of time, gnevances were filed allegmg that converSIOns should have occurred. It bears repeatmg that the mstant matter IS qmte dIfferent. The Employer IS undergomg substantIal downslzmg and, as a result, many unclassIfied people are bemg gIVen notice of tenmnatIon. AddItIOnally, many classIfied employees are bemg hud off. The Employer IS obhged to gIve the unclassIfied employees notice m accordance WIth the Employment Standards Act and those employees have vanous penods of tune to work pnor to theIr tennmatIOn. As IS eVidenced by these proceedmgs, many employees dIsagreed WIth the Employer's actIOns, thought they should be converted, and, subsequent to thelT notIce, filed an gnevance These partIcular CIrcumstances vary suffiCIently from the fact SItuation before the Board m Re 803/91 that I cannot snnply follow the method used therem for detennmmg whether there was a contmumg need for the work. Further, m Re 803/91, It appears that the Employer was usmg unclassIfied employees mappropnately It had assIgned too many employees to unclassIfied semce gIVen the amount of work to be done. The Board found that a number of new clasSIfied pOSItIOns had to be estabhshed. Indeed, the Board ordered the partles to compare the number of hours of work and attempt agreement on the number of posloons to convert. However, m that case, the work went on for years and years and contmued long after the filmg of the gnevance There was no Issue of lay-offs or reduction of any sort m the work force m that case The ongomg operatIons of the JaIl was at Issue In thIS case It IS true that the work has gone on for years and, like m Re 803/91, the work contInued at the time of the filIng of the gnevance because the gnevor was workIng. However the gnevor was workmg ills notice penod at the tIme of the filmg of the gnevance and so the fact that the work was contmumg at the time of the filmg of the gnevance IS not persuaSIve for thIS Board as It mIght have been In Re 803/91 - .- 11 The Employer took the posItIOn that, In accordance wIth ItS management's nghts, It could assIgn work to the remammg AppOIntment Clerks The Umon acknowledged the MInIStry'S nght to re-organIZe the work. As stated earber, the questIOn IS not merely IS there an ongomg need for the work but whether there IS a contmumg need for the work to be done on a full. tIme baSIS By all accounts there IS not one full tune person domg the gnevor's work and only the work that was performed by the gnevor That one or two or more employees are absorbmg the work once done by the gnevor m addItIOn to theIr own work does not lead to a fmdIng that a pOSItIOn should be establIshed and therefore that an unclaSSIfied mcumbent who meets the cntena should be converted. The Employer has made a corporate deCISIon to do the work WIth less employees It has that nght. There will be unclassIfied employees as well as claSSIfied employees who are affected by that deCISIOn. The new language found at 3 15 1 1 and 3 15 1 2 IS not protectIOn from lay-offs for unclassIfied staff. I belIeve that the Umon understood thIS pomt and suggested m ItS subrmSSIOn. The Umon requests that the Board order that the gnevor who was the Incumbent In the positlOn, be converted from tUlclasslfied to classtfied. Followmg the reasonmg m the Canete award, GSB# 2192, the Dmon accepts that the gnevor would likely be surplus sed, In accordance With Article 24 folloWIng converSiOn. It is also requested the Vice-Charr remam seized to determme any issue which may anse With regards to unpIementatlOn of the A ward. The new language for converSIOn of mcumbents came mto effect upon ratIficatIOn, that was March 31, 1996 The gnevor got IDS notIce oftermmatIon m December of 1995, that IS some three months pnor to the new collectIve agreement cormng mto effect. It IS the Umon' s pOSItIon that, as of March 31, 1996, the gnevor had a nght to be converted because as of that tIme there was an ongomg need for the work. For the reasons stated above, I am of the VIew those facts are not suffiCIent for the gnevance to succeed. The Umon submItted that the cases It relIed upon stand for the propOSItIOn that I am not oblIged to accept the Employer s "bald assertIon" that there IS no ongomg need for the work. - , . 12 I agree However, m the mstant case, both partIes stated m theIr submISSIOns that the work was bemg done by the other two Appomtment Clerks It was acknowledged by the Umon that the gnevor's work was not bemg done by only one other person on a full-tune basIs If It were the case that one other person was domg the gnevor's work on a full-tune basIs, It would not be dIfficult to fmd that the Employer was attemptmg to CIrcumvent ItS responsibIlItIes under the new collectIve agreement to convert unclassIfied posItIOns mto classIfied posItIons. In these cases eVIdence of the past will not necessanly be detenmnatlve of the future gIven the Employer's clear general mtentIon to proceed WIth less employees. Further, I cannot provIde a remedy on gnevances filed under tlus collectIve agreement because a posItIOn should have been converted years ago That IS not to say that the Employer WIll be able to, as a general proposItIOn, aVOId establIshIng new classIfied posItIons because of ItS downslzmg aspIratIons Indeed, to be clear, It IS not sufficIent for the Employer merely to rely on the exerCIse of downslzmg. In each case, whether there IS a contInumg need for the work to be done on a full-tIme basIs must be detenmned. In tlus econonuc clunate downslzmg has been and WIll contmue to be a major factor m the determmatIon of the workforce The re-orgamzatIOn of work that flows from that downslzmg cannot be Ignored m determInmg whether ArtIcles 3 15 1 1 and 3 15 1 2 have been complIed WIth. F or all of those reasons, the grIevance IS dlsnussed. Dated 111 Toronto thIS 8th day of February, 1997 /~ (- t' ' /!' '--/ I -,__ 1/\ r C' -7. l /({/[;/ 4, I C ~>)7 .../-( /l... 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