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HomeMy WebLinkAbout1996-0749SINNATHURAI97_02_0 -- 'ONTARI'O EMPLOYES DE LA C'OUR'ONNE CR'OWN EMPL'OYEES DE L'ONTARI'O 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 749/96 OPSEU # 96D711 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sinnathurai) 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 Migus EMPLOYER Staff Relations Consultant Ministry of the Attorney General HEARING November 26, 1996 -.:~ Subsequent to the ratIficatIOn of the new collectIVe agreement whIch resulted from a five week stnke, It became apparent, through the filmg of dozens of gnevances, that there was a fundamental dIspute between the partIes wIth respect to ArtIcle 3 15 and ArtIcle 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 provlSlons of the Collective Agreement, the parties agree to abide by the followmg procedure m order to effectively deal with grIevances ansmg out of the application of Articles 3 15 and 3 38 The parties further agree that entenng mto thIS 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 m accordance WIth ArtIcle 3 15 or 3.38 will be forwarded dIrectly to the Drrector of Human Resources m the respective mnustry C) The Mirustry's HR department wIll dIrect such mqumes mto the alleged claIm by the gnevor D) WithIn a reasonable tnne frame, the Mirustry's HR department will forward to OPSEU Gnevance Department, AttentIOn. Kathleen Lawrence, Its response to the gnevance together WIth the InformatIOn that It relied upon should the gnevance be demed. Attached WIth the Mirustry s reply to OPSEU will be a copy of the appropnate grIevance. A copy of the response WIll be provIded to the local Umon representatIve. E) The OPSEU Gnevance Department WIll consult WIth the gnevor based on acts as presented by the MinIstry F) Should the matter be resolved at that stage, the MImstry's HR department will be adVIsed m wntmg WIthm a reasonable tllTIe frame G) If the matter IS not resolved at the OPSEU representative meetmg WIth a gnevor, there may be dISCUSSIOns WIth the nllmstrv and/or a meetmg If requested. H) If there IS no dISCUSSIon or meetmg WIth the rmmstry, followmg dISCUSSIon WIth the gnevor OPSEU will adVise the lUlmstry 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 centrallzmg the handlmg of the gnevances, the Employer WIll not rely upon time lllTIlts to refer a matter to arbitratIOn followmg notificatIOn of the Mimstry s HR department of mtentIOn to proceed to arbItratIOn. J) The parties agree that m view of thIS agreed upon expedIted procedure, gnevors will be allowed a reasonable tllTIe off work WIth no loss of payor credIts to proVide background comment and directIOn to the Umon 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 mvoked, It IS agreed that a mmIstry may not unreasonabh deny a request for attendance at a heanng. I -.;. ~-: I 2 M) It IS agrced that for purposes of thIS specIal protocol, OPSEU will be entItled to the followmg With regard to the filmg of a gnevance, - work hIStOry 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 certaInty, It IS understood that the Umon may requIrc copIes of the gnevors contracts as well as position descnptlons. Such mformatIOn will be supphed by the MinIstry's HR department. N) MIlllstnes through their Human Resource department will forward to the OPSEU Gnevance Department, Attention. Kathleen Lawrence, at the earhest converuence, a summary sheet for all converSIons under ArtIcle 3 15 and 3.38 that have been made dunng the hfetune of trus Collective Agreement. 0) Either party will have the optIOn of wIthdrawmg from thIs gnevance arbitratIOn process, generally or for mdlVldual cases, upon notificatIon to the other party That agreement was dated and SIgned January 15, 1997 However, the partIes had been d1scussmg the process for some tune pnor to the Slgnmg 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 Imtlal gnevances would proVIde some guIdance to the partIes for other outstandmg matters It would be helpful to set out AmcIe 3 15 and Artlcle 3 38 at tlns 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 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 lllllUStIy has detennmed that there IS a contmumg need for that work to be performed on a full-tune basIs, the mmIstry shall estabhsh a posItion wItrun the ClaSSified Service to perform that work. 3 15 1.2 Where the lllllUStIy has detennmed that It will convert a posItIon m accordance with 3 15 lithe status of the incumbent 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 15.2 For the purpose of thiS sectIon "full-time shall man a mmunum of one thousand seven hundred and thirty-two and three quarter (l 732.75) straight tIme hours or one thousand rune hundred and twelve (1 912) straight-tIme ~ 3 hours m each year, as applIcable, mcludmg authonzed leaves of absence However all hours worked by an unclassified employee whllc he IS replacmg a classified employee who IS on an authonzed leave of absence shall not be mcluded m computmg the annual hours worked by the unclassified employee GO TEMPS AND STUDENTS 338 1 A GO Temp IS an unclassified employee who IS on a temporary work assignment arranged b~ the Civil Service ComnusslOn under the GO Temporary Services Program. A GO Temp ceases to be an employee upon compleuon or termmation, for any reason, of the temporary work assignment. 3.38.2 1 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 l11ll11stry has determmed that there IS a contmumg need for that work to be performed on a full-tune baSIS, the l11ll11stry shall establIsh a posItion Wlthm the ClassIfied Service to perform that work. 3 38.2.2 Where the l111Illstry has determmed that It will convert a posItion m accordance With 3 38.2.1, the status of the mcwnbent m the posItion will be converted from GO Temp to classified, proVided that the mcwnbent has been m the pOSItIOn m questIOn for at least two (2) years. 3.383 The followmg article shall apply to GO Temp employees Article A, 1,2,27 and 86 No other articles shall apply Mr Smnathurm filed a gnevance on May 1, 1996, statmg that he should be "appomted to the classtfied staff as per the proVISIons of artIcle 3 15 1 1 and 3 15 1 2 of the CECBA" and he asked that he be "classified nnrnedIately as per the above referenced artIcles and that I receIve full nghts as per artIcle 24 of CECBA, effectIve upon appomtment to classIfied status" The Employer prOVIded the Board WIth the gnevor's work hIstOl)' whIch stated. 1 ) The gnevor startcd on contract as an OAG 1 Mall Clerk December 12, 1989 The gnevor has contmually held the contract position of Mall Clerk (later reclassdied to OAG 2) up until the present time, With the exception ofworkmg as a Mail ClerlJDnver OAG 4 from Sept. 1991 - Mar 31 1992 Dunng that time, the gnevor backfilled for a number of classlficd staff on actmg assignments - .' I 4 2) More recently the gnever was covermg for Fraser Gledhill, a classified Mail Clerk on secondment to the Accountmg OperatIOns sectIOn of the Financial and AdnurustratlOn Services Branch. Mr Gledhill retIred at the end of January 1996 3) Management reviewed the complement of the mailroom and determmed that they would not fill the clasSified vacancy left by Mr Gledhill S retrrement but m fact, would delete the posItIon. 4) As a result, the gnevor was gIVen 16 weeks' notice of layoff on Apnl4 1996 Notice was not gIVen earher as the UnIon to whIch the gnevor belonged was on strike February 26 - March 31, 1996 HIS notice was to run out July 31 1996 5) The gnevor was then offered the opporturuty to cover the vacation and parental leave of Ronald JaVier, another classified Mail Clerk OAG 2. His notice of layoff was extended to December 6, 1996 Subsequently, Mr Javier was bwnped by Carol T erslgrua. The "bwnper" started on October 31, 1996 Because the gnevor IS still entltled to complete hIs full notice penod, management IS reqUITed to overlap coverage of the posItion until December 6, 1996 when the gnevor WIll be laid off. The parnes were agreed that the gnevor had met the two year cntena for converSIOn but It was the pOSItIOn of the Employer that It had deterrmned that there was no ongolllg or contmumg need for the work to be done on a full-trme baSIS and accordlllgly, the gnevance must fall. The Umon, III ItS wntten submISSIOn, asserted that the gnevor performed the work at questIOn for SIX and one-half years pnor to the fillllg of the gnevance Further the Umon stated. It IS the Umon's submiSSIOn that the employer took over four years, follOWIng a two year consideratIOn penod, to make a detennmatlOn that there was no ongOIng need for the work to be done on a full-time baSIS. It IS the Umon's poslDon that by the time of ratification of the current collective agreement, the work perfonned by Mr SmnathuraI was ongoIng and therefore the MInlstl) had an obhgatlOn to convert Mr Sllll1athurm to the regular claSSified service In accordance With Article 3 15 1.2 The Mlmstrv has mdlcated m ItS submiSSion that the mail room has been reduced from seven pOSIDons to three pOSItIOns as a result of employee retirement. It IS the uruon s mfonnatIon that at least two employees who retired In the past two years had not worked In the mail room for a number of years pnor to their retirement. but had been seconded elsewhere III the MlIl1stn Mr Smnathurm had been perfonnmg, for all purposes, the duties of a pemlancnt full-time posItion for several years, and not a temporary backfill pOSitIOn. - I 5 .Smce August 1996, the dutIes that constItute at least one full-time Mail Room Clerk positIOn have been transferred from the mail room at MIniStry of the Attorney General to the mail room at the MIniStry of the SolICitor General at 25 Grosvenor Toronto It was the Dmon's posItIOn that the Employer cannot clfcumvent Its oblIgatIOn to convert mcumbents Wlder the new collectIve agreement by a SImple assertIOn that there IS no contmumg need for the work. The Mlllistry does not agree WIth the Dmon's charactenzatlOn that the work performed by the gnevor was ongomg. It stated. There was a downsIzmg m the mail room from 7 positIons to 3 posItIOns. Management detennmed m approxunately January of 1996 that It would mscontmue claSSified pOSitIOns as the mcumbents retIred. (Four employees retIred) Any mdlVlduals backfillmg those positions were gIven theIr proper notice entitlements, as was the case here. But for the unexpected need wluch arose from Mr JaVIer's requested leaves of absence, the gnevor would have been laid off on July 31, 1996 Because the employer IS legally compelled to prOVIde the gnevor WIth a speCIfied amount of working notice, the employer IS requIred to overlap the fillmg of the claSSIfied posItion for a penod of tune until December 6, 1996 Tlus overlap should not be construed as eVIdence of an ongomg need for the work to be done. The Employer contended that the new language of the collecuve agreement came mto effect on March 31, 1996, and fundamentally changed the Employer's oblIgatIOn to convert mcumbents rather than to post the posIuon. DeCISIOns were made pnor to the new collectIve agreement but m some cases, such as for thts gnevor, notIce was delayed by the onset of the strike GIven the delay caused by the strike, It would not be proper to conSIder the Dmon' s rememal request. It must also be taken mto account that the Employer was oblIged to have the grIevor work out lus 16 week nouce penod proVIded by the Employment Standards Act In accordance With Management's RIghts, It IS appropnate for the MmIstry to transfer work to another locatIOn and have the work absorbed by eXIstmg full hme staff. That IS to say, asserted the MmIstry, It can deCIde to contmue WIth less people domg the work, thereby allowmg It to determme there IS no contmumg need for certam unclassIfied work. It was - . 6 submItted that the Employer has the nght to determme whether there IS a contmumg need for the work and the tnmng of that assessment, whether done as of the date of ratIficatIOn or as of the date of the filmg of the gnevance, IS melevant. The Employer also contended that the fact that the gnevor contmued to work for a penod after receIVlllg hIS notIce IS not determmatIve Indeed, by VIrtue of length of the notIce provIded by the Employment Standards Act, the gnevor WIll contmue to work for a specIfied penod. However, the fact that work IS contmued dunng that nonce penod IS not detemunanve The Employer cannot be prejUdICed for meetmgs ItS legIslated oblIgatIOn to prOVIde nonce oftermmanon. Further, the last penod of the gnevor's employment, that IS from July 31, 1996 until December 6, 1996, was an extenSIOn wInch was the result of a leave of absence of a claSSIfied mall clerk. As stated m ItS wntten SublllissIOn, the employer was forceful m sublllittmg that the extenSIOn should not be construed as eVIdence of the need for ongomg work. The Employer conceded that the servIce proVIded contmues However, that work IS done by fewer people and better eqUIpment. The Employer made a bona fide busmess deCISIOn that there was a need to reduce the workforce Flowmg from that deCISIOn IS the further determmatIOn that there IS no contmumg need for the work to be done on a full tnne baSIS In reply, the Umon asserted that the Board's task IS easy m thIS the determmatIOn of thIS matter gIven the Employer's conceSSIOn that the some of the work was transferred to the MmIstIy of the SohcItor General. If the work contInues then the gnevor should be converted. DECISION The Issue before tlus Board IS whether the gnevor ought to have been conveIted to claSSIfied ~ 7 selVlce m accordance WIth ArtJ.cle 3 15 1.2 The partIes were agreed that the gnevor met the two year reqmrement. The dIspute anses because the Employer states that there IS no ongomg or contmumg need for the work to be done on a full-tIme basIs Therefore there IS no classIfied posItIon to be estabhshed to wIuch the gnevor would be converted. ArtIcle 3 15 1 1 sets out the clear cntena necessary to obhge the Employer to estabhsh a classIfied pOSItIon. The cntena at Issue IS the determmatIOn of a contmumg need for the work to be performed on a full-tune baSIS There was reference to the fact that some of the dutIes, such as mass mailmgs and some dnvmg, once performed by the gnevor, have been transferred to the M1ll1stry for the SohcItor General. The Employer dId not dIspute tlus assertIOn. Indeed, It acknowledged that re-orgamzatIon statmg that It was wItlun ItS management's nghts to orgamze the work. It was mentIOned that the gnevor contmued to do the work at the tune of the filmg of the gnevance That IS true However, he had already receIVed hIS notIce of termmatIon and was workmg through Ius notIce penod. I am of the VIew that the fact that the gnevor was stIll performmg the work at the tune of the fihng of the grIevance IS not, m and of Itself, determmatIve of the Issue because he had already receIved notIce oftermmatIon To make such a fmdmg 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. It IS true that the gnevor's notIce was extended. However, that was to cover a penod of vacatIon and parental leave of another employee That employee was subsequently bumped, effectIve October 31, 1996 The gnevor worked out the extenSIOn to the notIce penod, that IS, untIl December 6, 1996 Therefore, the eVIdence regardmg work beyond the ongmal notIce penod IS of no aSSIstance to thIS Board m ItS dehberatIOns The gnevor was asked and -.. I 8 agreed to work for the specIfic purpose of fillIng In for the leave of absence of a classIfied employee who was on vacatIOn and parental leave The Uruon asserted that because there IS a contmumg need for the work I must find that a classIfied Job should be establIshed leadIng to the ultunate converSIOn 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 posItion wIll be establIshed when other cntena are met and "where the MimstIy has determmed that there IS contmumg need for that work to be perlormed on a full-tIme baSIS"( emphaSIS rmne) There IS a consIderable dIfference between those two The decIsIOns that were relIed upon by the partIes were not cases that were partIcularly helpful. None of the decIsIons dealt With a maSSIve reducnon of the work on a Provmce-wIde basIs and are dIstIngmshable on that basIs alone The Employer IS entitled to detenmne ItS workforce as long as It does so m accordance WIth the terms and proVIsIOns of the collective agreement. The Employer has decIded to layoff thousands of employees workmg m every MIll1StIy ArtIcle 3 15 1 1 and 3 15 1 2 wIll not protect unclaSSIfied employees from receIvmg notice of tenmnabon. In consldenng the cntena for the establIshment of classIfied pOSItIOns as set out In 3 15 1 1 of the expued collectIVe agreement, the Board m Re 803/91 stated Is the work. bemg performed on a "full-time" baSIS Article 3 15 1 reqwres that the employer must have determmed that there was a contmumg need for the work. to be performed on a full-time" baSIS We have alread\ decided that the employer S determmatlon 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-tIme baSIS wlthm the definItIOn of article 3 15.2 Under article 3 15 2 10 computmg the stipulated straIght tIme hours, "hours worked by an unclassIfied employ wIllie 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 portion of the hours - 9 rehed upon by the uruon were "replacement hours" m the sense that the unclassified officer was replacmg 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 bemg replaced was on "an authonzed leave of absence" To summarIze our mterpretatIon then of the dIsputed phrases, we fmd as follows (A) ArtIcle 3 15 1 does not reqwre that the work be performed by the same or a particular employee. "An employee m the unclassIfied servIce" m article 3 15 1 means any employee" m the unclassIfied service. (B) We find that the eVidence that the work m questIOn m fact contmued to be performed, m absence of any eVIdence to the contrary, IS conclUSIVe proof that the employer had determmed that there was a contmumg need for that work to be performed. If the employer had not so determmed 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 fmdmgs (b) We find that by contmumg to assign unclaSSified employees to perform the work m question, the emplover has detennmed that there IS a contmwng 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 deal WIth gnevances where, as a SImple result of the passage of tIme, gnevances were filed allegmg that converSIOns should have occurred. It bears repeatIng that the mstant matter IS qUIte dIfferent. The Employer IS undergomg substantIal downsIzmg and, as a result, many unclassIfied people are bemg gIVen notIce of temunatIon. AddItIonally, many claSSIfied employees are bemg laId off. The Employer IS oblIged to gIve the unclaSSIfied employees notIce m accordance WIth the Employment Standards Act and those employees have vanous penods of tIme to work pnor to theIr termmatIon. As IS eVidenced by these proceedmgs, many employees dIsagreed WIth the Employer's actIOns, thought they should be converted, and, subsequent to theIr notIce, filed an grIevance These partIcular CIrcumstances vmy suffiCIently from the fact SItuatIOn before the Board m Re 803/91 that I cannot SImply follow the method used therem for determmmg whether there was a contmumg need for the work. In Re 803/91, It appears that the Employer was usmg unclaSSIfied employees mappropnately ~ I ~ 10 It had assIgned too many employees to unclassified sefVIce gIven the amount of work to be done The Board found that a number of new classIfied posItions had to be establIshed. Indeed, the Board ordered the partles to compare the number of hours of work and attempt agreement on the number of posItions to convert. However, m that case, the work went on for years and years and contmued long after the fihng of the gnevance There was no Issue of lay-offs or reducnon of any sort m the work force m that case The ongomg operatlOns 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 tune of the filmg of the gnevance because the gnevor was workmg. However, the gnevor was workIng lus nonce penod at the tune of the filmg of the gnevance and so the fact that the work was contmumg at the tune of the filmg of the gnevance IS not persuaSIve for tlus Board as It nught have been m Re 803/91 In thIS mstance, the Employer agreed WIth the Dmon's assertIon that the work was transferred to another MinIstry and was "absorbed by eXIstIng staff" However, the Employer took the pOSItion that, m accordance WIth ItS management's nghts, It could aSSIgn the work m that fasmon. The Dmon acknowledged the MlIDStry'S nght to re-orgamze the work. Further, the Employer has the nght to transfer work from one location to another However, the Dmon suggested that the transfer of work IS, ill and of Itself, eVIdence that there IS an ongomg need for the work to be done However, as stated earher, 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 perfonned by the gnevor That one or two or more employees are absorbmg the work once done by the gnevor ill addItIon to theIr own work does not lead to a fmdmg that a pOSItIon should be estabhshed and therefore that an unclassIfied mcumbent who meets the cntena should be converted. The Employer has made a corporate declSlon to do the work WIth less employees It has that ~-- I 11 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 pornt and suggested m ItS subnnSSIOn. It IS the Umon' S posItion that at the time of ratification Mr SmnathuraI' S case meets all the necessary condItIOns, and therefore quahfies for converSIOn. The Umon requests that the board find that the gnevor S dutIes were performed on a contmumg full-time basIs, for at least two years, pnor to and followmg the filmg oftlus gnevance, and order that the gnevor, as the mcumbent be converted from the lU1classlfied to the classIfied servIce. Followmg the reasonmg m the Canete award, GSB#2192, and m recogmtIOn of the downSIZIng m the mall room that has occurred, (SIC) the UOlon requests that the gnevor be surplus sed, m accordance wIth ArtIcle 24, followmg converSIon. It IS also requested that the Vice-Charr remam seIZed to determme any Issue WhIch may anse With regards to ImplementatIOn of the A ward. The new language for converSIOn of mcumbents came mto effect upon ratlficatIOn, that was March 31, 1996 The gnevor got Ius notIce oftenmnatIon on Apnl4, 1996, that IS some four days followmg. It IS the Umon's pOSItion that, as of March 31, 1996, the gnevor had a nght to be converted because as of that tune 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. I agree However, m the mstant case, both partIes stated m theIr submIsSIOns that the work was transferred and was, as the Employer stated, bemg absorbed by eXIstmg staff It was acknowledged by the Umon that the gnevor's work was not bemg done by only one other person on a full-tIme basIs. If It were the case that one other person was domg the gnevor's work on a full-tIme basIs, It would not be dIfficult to find that the Employer transferred the work for the sole purpose of attempting to CIrcumvent ItS responsibIhtIes under the new collectIve agreement to convert unclaSSIfied posItIOns mto classIfied posItions In these cases eVIdence of the past WIll not necessanly be detenmnatIve of the future gIven 12 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 wlll be able to, as a general proposItIOn, aVOId estabhshIng new classIfied posItIons because of ItS downsIzmg 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 contmumg need for the work to be done on a full-tIme basIs must be detenmned. In tlus econotnlc clnnate downsIzmg has been and will contInue to be a major factor m the detenmnatIOn of the workforce. The re-orgamzatIon of work that flows from that downslzmg cannot be Ignored m deterrmmng whether ArtIcles 3 15 1 1 and 3 15 1 2 have been complIed With. F or all of those reasons, the gnevance IS dlstnlssed. Dated m Toronto tlus 9th day of February, 1997 /J . . 7 '} , ~/ -L i -I ,//,' ,r. '};J~ / A {~/L ~ L.--(.A~- :.J ---C. F eltcIty D Bnggs / / Vice Chair