HomeMy WebLinkAbout1996-1024LEE97_05_17
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRiEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5CS 1 Z8 TELEPHONE/TELEPHONE (416) 328-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 328-1396
GSB # 1024/96
OPSEU # 96D782
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Lee)
Grisvor
- and -
the Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE F D. Briggs Vice-Chair
FOR THE G. Leeb
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE S Patterson
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING March 14, 1997
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/' There are two gnevance before the Board, an mdIVIdua1 gnevance filed by WIlma Lee and
a Druon gnevance The Druon gnevance states, "The M1ll1stnes are VIolatmg ArtIcle 24 m
that preViously held classificatIons that were subsequently altered are not consIdered for re-
deployment, aSSIgnment of dIsplacement" By way of remedy the Druon requested a
declaratIon that the Employer's mterpretatIon IS contrary to the CollectIve Agreement and
that I remam seIzed to deal With other matters wluch IDlght flow from such a declaratIon.
Ms Lee's gnevance alleges that her seruonty has been nnproperly calculated, By way of
remedy, she IS seekIng to be appropnately placed m a pOSItIon With retroactIve
compensatIon.
The partIes entered an agreed statement of facts that stated.
1 The gnevor has been employed m the Ontano PublIc ServIce for approxnnately 23 years m the
followmg capacItIes
Dates (m/dly) Title Classification
Unclassified Service
6/18/73 to 8/24/73* Student Student
1/9/73 to 11/16/73* TypIst Clencal Typist 1
11/19/73 to 12/30/73* Typist Clencal Typist 1
12/31/73 to 3/31/74* Clencal Typist Clencal Typist 2
4/1/74 to 3/31/78* Clencal TypIst Clencal TypIst 2
Appointed to Classified Service on April 3, 1978
4/3/78 to 12/31/82* Clencal TypIst Clencal TYPist 2
1/1/83 to 6/25/85 Clencal Typist Clencal Typist 3
6/26/85 to 12/8/85 Actmg Warehouse Clerk Clerk 3 Supply
12/9/85 to 6/18/89 Warehouse Clerk Clerk 3 Supply
6/19/89 to 6/26/92 Actmg Engmeenng Resource Techmclan
ServIces Officer Semor 1
6/29/92 to 11/15/96 Warehouse Clerk Clerk 3 Supply
*denotes work locatIOn Lanark. All other services was out of work locatIOn Carleton Place
2 The gnevor s contmuous service date IS September 1, 1973
" On May 16 1996 the gnevor was gIVen her notIce m accordance With the collective agreement
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that her pOSitIOn as Warehouse Clerk III Carleton Place was declared surplus
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4 The partIes agree that there was no vacant pOSitIOn m accordance With Article 24 5 mto wruch
the grlevor could be nnmedIately assigned.
5 Article 24 4 1 outlmes the manner m which the Mirustry must proceed m order to Identify a
displacement opporturuty for surplus employees. The parties agree that there was no
dIsplacement opporturuty for the grIevor m accordance with 24 4 l(a) through (c) mcluslve
6 It IS the Employer's posloon that the gnevor had no entItlement under 24 4 1 (d) to dIsplace mto
a pOSitIOn With the classification of Resource TechnICian Semor 1, as that classificatIOn has a
maxnnum salary greater than that of the Clerk 3 Supply
7 In accordance With 24 4 l(d), the Muustry rod not search for a displacement opportumty for the
gnevor mto a posItion With the classificatIOn Clencal Typist 3, smce that clasSIficatIOn no
longer eXists Further, the Mirustry did not search for a displacement opporturuty under
244 l(d) mto a pOSitIOn With the claSSificatIOn Office AdnurustratIOn 8 (the claSSificatIOn
subsequently asSigned to the gnevor s preViOUS Clencal Typist 3 pOSitIOn), as the Gnevor never
held that claSSificatIOn, It is the Employer's pOSItIOn that even if the Board were to rule that
OA8 IS a posIoon prevIously held under the mearung of 24 4 1 (d), then the Gnevor still has no
entitlement under 24 4 1 (d) to displace mto a pOSition With the clasSificatIOn of OA8, as that
claSSification has a salary greater than that of Clerk 3 Supply
8 In accordance With 24 4 1 (e), the Mirustry Identified a less semor employee beyond 40km of
Carleton Place, whose posItion the Gnevor was quahfied to perform. The pOSitIOn was titled
Inventory Management Officer, claSSificatIOn Clerk 3 Supply, location Sault Ste Mane.
9 By failmg to mdlcate m wntmg to the DIrector of Human Resources her mtentIOn to displace
the employee identIfied, m accordance With Article 24 4 1 (f)(I), the Gnevor was deemed to have
rejected the dIsplacement to Sault Ste. Mane.
10 The Gnevor worked out the balance of her notice penod Without bemg redeployed to a vacancy,
and was subsequently laid off effective November 15 1996
11 The class standard for the Clencal TypISt senes was deleted from the OPS claSSIficatIon system
on December 31, 1986 when the Office AdrrumstratIOn Group (OAG) class standard was
mtroduced,
12 The OAG class standard replaced the followmg classes
- Accountmg Supervisor BIU 1 2
- Clerk Fllmg: 1 2 3, 4
- Clerk General. 1,2 3,4,5
- Clerk General BIU 6 7
- Clerk Mail 1,2,3
- Clencal Stenographer' 1 2,3 4,5
- Clencal Typist: 1 2,3,4*
- Coroner s Clerk 1
- Data Entry Operator' I 2 3
- Data Entry Supervisor 1
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- Operator Addressmg EqUipment. 1, 2
- Operator Central SWItchboard. 1,2
- Operator Copy MachIne
- Operator Mail Insertmg Machme
- Operator Telephone SWItchboard. 1,2
- Operator Teletype Eqwpment: 1,2
- ReceptIOrust
- Revenue Officer
- Secretary. 1,2, 3,4, 5
- TypISt: 1,2,3,4,
*the senes m wluch the gnevor's preVIOUS pOSItIon had been classIfied
13 While the dutIes encompassed m the Clencal TypISt class standard were subsequently subsumed
mto the OAG system (and specIfically, the gnevor's Clencal TypISt 3 pOSItIon was
subsequently classIfied as OA8, the gnevor never actually held the classIfication of OAG at any
level.
14 The relevant salary maxunums are as follows
ClasSIfication Hourly Rate Schedule Weekly Salary
Clerk 3 Supply $16701hr 47 $668 00
RTSl N/A 6 $808 84
OA8 $18601hr 37 $674.25
15 The current dIspute between the partIes relates to the Gnevor's entitlement under ArtIcle
244 1 (d) to dIsplace an employee classified at the OA8 level.
16 AddItIOnally the parties agree to have the Board determme Vruon gnevance #96V059
17 Liz Glover IS less seruor than Wilma Lee,
It IS Ms Glover's Job that the gnevor alleges she IS entitled to bump mto The Board was
satIsfied that Ms Glover was notIfied of her nght to attend the hearmg and make
representations She chose not to
It would be useful to set out the relevant proViSIOns of the collective agreement. It states
20 4 DISPLACEMENT
2041 An employee who has completed lus or her probatIOnary penod, who has received
notice of lay-off pursuant to Article 20.2 (Notice and Pay m Lieu), and who has not
been asSigned ill accordance WIth the cntena of Article 20.5 (Redeployment) to another
pOSitIOn shall have the nght to displace an employee who shall be IdentIfied by the
Employer m the followmg manner'
(a) The Employer Will IdentIfv the employee With the least semonty. m the same
classifIcatIon and the same l11ll1lStry as the employee's surplus employee, he or she shall
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be dIsplaced by the surplus employee provIded that.
(I) such employee's headquarters IS located WithIn a fort} (40) kdometre radIUs
of the headquarters of the surplus employee, and
(ii) the surplus employee IS qualIfied to perform the work of the Identified
employee.
(b) If the surplus employee IS not qualIfied to perform the work of the least semor
employee Identrlied under paragraph (a) above, the Employer will contillue to Identify,
In reverse order of semonty, employees ill the same classIficatIOn and ill the same
mInIstry untIl a less semor employee IS found WIthm forty (40) kilometres of the
surplus employee's headquarters whose work the surplus employee IS qualIfied to
perform.
( c) Failing displacement under paragraphs (a) or (b) above, the Employer will Identify, ill
reverse order of semonty, employees ill the classes ill the same class senes ill
descendmg order untIl an employee WIth less semonty IS found ill the same nurustry
WIthm fort) (40) kilometres of the surplus dIsplaced by the surplus employee provIded
he or she IS qualIfied to perform the work.
(d) Failing dIsplacement under paragraphs (a), (b) or ( c) above, the Employer will reVIew
other classes wlnch the employee held eIther on a full-tune basIS, or who performed the
full range of Job duties on a temporary basIS for at least twelve (12) months ill the same
mllllstIy WIthm forty (40) kdometres of the surplus employee's headquarters. The
Employer will Identlfy, ill reverse order of semonty, a less semor employee ill the class
With the maxunwn salary closest to but not greater than the mmumwn salary of the
surplus employee's current classIfication, The Identified employee shall be dIsplaced
by the surplus employee provIded he or she IS qualIfied to perform the work.
On June 26, 1985, the gnevor left the posIbon of Clencal TypIst (C1enca1 TypIst 3) and
became an ActIng Warehouse Clerk (Clerk 3 Supply) She obtamed that posIbon on a
permanent baSIS m December of 1985 and held It untIl she left the Mlll1stty m 1996 except
for a three year penod when she was ill an Actmg Engmeenng ServIces Officer posIbon,
ApproXimately SIxteen months after she left the C1encal TypIst pOSItIOn, a letter was sent to
people In that classIficatiOn at Carleton Place whIch stated
As you are aware, your position ill the Clencal or Office ServIces categof\ has been re-evaluated under
the new Office AdmullstratIve Group standards
The re-evaluatIon of your pOSItIon has resulted ill a new classIficatIOn level of OA8 effectIve December
31 1985
In terms of pay, the OA8 level has a hIgher salary maXImum than that of your old classificatIOn. As a
result, your salary treatment upon reclassification IS as follows
Apr 1/86 11.37/hour
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Ment due date: Apr 1/87 (annualmcrements)
TIns is m accordance With salary treatment procedures as specified m Article 4,2 of the Appendix to the
Collective Agreement (copy attached).
If you have any concerns m thiS matter, they should be dIrected to your supervisor
That letter comphed WIth the AppendIx to the collectIve agreement m effect at the tune The
relevant portIOns of that AppendIX stated.
Part 1 - Office Adnull1stratlon Group Job Evaluation System
I EstablIshment of Office AdmmtstratIOn Category
Effective December 31, 1985, the Clencal Services Category and the Office Services
Category shall be restructured to form a smgle category, entitled Office AdmIrustratiOn
Category as set out m Addendum 1 attached hereto
Part 4 - Salary Treatment of Employees on Implementation
4 1 Where a pOSitIon is reclassIfied to a class With the same maXllmun salary the employee
who occupies the pOSition at the tune of the reclaSSificatIOn shall be pmd the rate that
IS closest to, but not less than, luslher current rate,
42 Where a pOSItIOn IS reclaSSIfied to a class WIth a lugher maxunum salary, the employee who
occupIes the pOSition at the tune of the reclaSSification shall be paId the rate that is closest to,
but not less than, luslher current rate EXCEPT where the employee was at the maxunum rate
of the former salary range for'
- 6 months or more, In the case of a salary range With selll1-annual Increments, or
- 12 months or more, m the case of a salary range WIth annualmcrements,
In wluch case, the employee shall be paid the next lugher rate
UNION SUBMISSIONS
It IS apparent on the face of the above docwnents that If the gnevor had stayed m the pOSItIOn
of Clencal TypIst 3 she would have been reclaSSIfied to an OA8, the Umon submItted. The
reclassificatIOn whIch occurred after she left the pOSItIOn should not now bar her from
exercIsmg her nghts to dIsplace another employee accordmg to ArtIcle 20 4 1 ( d)
Mr Leeb, for the Umon, asserted that, m matters of Job secunty fightS, one of the most
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fundamental of all nghts found m a collectIve agreement, the language should be afforded
an expanSIve mterpretatIon. Indeed, It has been found by Boards of ArbItration that to restnct
the use of sernonty reqmres clear and express language It was suggested that m the event
that I fmd m favour of the Employer, the Employer would be able, m effect, to extmgmsh
Job secunty entitlements by reclasslfymg employees
The Employer's posItIOn would allow that every employee who receIves a surplus notice
would be hmIted to theIr current classIfication only To be clear, If your clasSIficatIOn no
longer eXIsts, all meamngfu1 purpose would be ehmmated from ArtIcle 204 led) Tlus IS
partIcularly womsome m the face of the bargammg urnt overhaul whIch will be completed
by May 31, 1998 It IS possible, lfthe Employer's View IS correct, that m the fma1 SIX months
of the hfe of tlus colle cove agreement, all employees whose classificatIOn was changed as
the result of the bargammg urut overhaul would have no bumpmg nghts to pOSItions that they
held pnor to May 31, 1998
The Drnon rehed upon Re Crown in Right of Ontario (Ministry of Northern Development
and Mines) and Ontario Public Service Employees Union (Smith)(625/93) (February 8,
1995), Kaplan (unreported) In that matter, the gnevor, an Econoll11st 4 who was surplus ed,
alleged that he should have been allowed to bump mto a posIoon as a Envlfonmental Officer
5 The first Issue for the Board to detenmne was whether the grIevor was qualIfied to
perform the work of an EnVIronmental Officer The grIevor had held a pOSItIOn as
EnVIronmental TechnICIan earlIer III hIS career WIth the MIrnstry, whIch ultimately became
the EnVIronmental Officer class senes The gnevance was dIsmIssed on the baSIS that the
gnevor was not qualIfied to work m the EnVIronmental Officer 5 pOSItIOn. However, m
comments made at page 31, the Board stated.
A final observatIon In order WhIle we have dIsmissed thiS gnevance on the baSIS that the
gnevor was not qualified to perform Mr Bolger s pOSItIon, had we fOWld that he was qualified
we would have awarded hIm the Job satIsfied as we are that he had previously performed a
posItion In the clasSificatIOn ill question, In thiS case, the eVidence establishes that the MInlstrv
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In searchIng for a new Job for tlus gnevor, consIdered the Environmental Officer senes, TIns
constitutes an adnnsslon that the gnevor has bumpIng nghts In that senes, and on thiS basIs we
would have found that he was entitled to exerCIse hiS bumpmg nghts m tlus senes,
ObvIOusly, an employee's semonty Interest, particularly In tunes of econOllliC restraInt
accompamed by a reductIOn In staffing wluch, of course, occasIOned tlus gnevance, should not
be considered lIghtly The gnevor In tlus case IS the SenIor employee, and the parties have agreed
that SenIor employees, proVIded quahfied, are entItled to exerCIse bumpmg nghts In theIr class
senes and m any class senes In wluch they have previously served, If the employer Wishes to
take the posItion that the class senes has fimdamentally changed SInce the tune when a particular
employee serviced In It, and that senes should not therefore be considered In the exercise of a
bumpmg claun, It IS Incumbent on the employer to lead eVidence to that effect. In tlus case, the
employer explICItly acknowledged to the gnevor that the EnVIronmental Officer senes was an
appropnate one to conSider In a bumpIng claun,
Mr Leeb contended that, based on the deCISIOn m Smith and the fundamental nnportance
of semonty, the absurdIty of the Employer's pOSItIon IS clear Therefore, employees should
be entItled to have access to preViously held pOSItIons If they meet the twelve month cntena.
The Employer also refuses the gnevance on the baSIS that the GAG 8 pOSItIon IS paid an
amount lugher than the gnevor receIved m her most recent pOSItIon. The Dmon subnntted
that there IS a patent harshness the Employer's pOSItIon places on employees such as the
gnevor The gnevor accepted a promotIon m 1985 However, due to a subsequent
reclassrficatIon and salary upgrade for the C1enca1 TypISt 3 pOSItIon, she was subsequently
paid an amount less than what she would have receIved had she remamed a Clenca1 TYPISt
3 Over the years, the Val1.ance between the new GA8 pOSItion and the gnevor's pOSItIOn of
Supply Clerk 3 contmued to grow The reclassIficatIOn of the clencal pOSItIOns were due, m
large measure, to pay eqmty adjustments because they were female dommated pOSItIOns It
IS Iromc, Mr Leeb suggested, that the gnevor should now suffer due to a pay eqmty
adjustment. It was subnntted that for the purposes of detenmmng whether the pOSItIOn of
OA8 IS compensated at a lugher rate than that of the gnevor, thIS Board should conSIder the
rate of pay that the gnevor receIved as a Clerk Supply 3 as compared to the Clencal TypIst
3 The umque reversal of compensatIOn amounts m thIS case allows for such an
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mterpretatlOn. That IS the only way the language can be reasonably apphed m the
crrcumstances of tlus case
Once It IS determmed that the gnevor's former class was Clencal TypIst 3, It does not make
any sense that srmp1y because the Employer mtroduced a new scheme of classlficatlOn and
pay eqmty was mtroduced, the gnevor would be dIsadvantaged m tlus fasluon, GIven the
fundamentalrmportance of semonty, the partIes could not have mtended that employees
would be treated as the Employer IS suggestmg, Mr Leeb argued that the umque SItuatIon
JuStifies the fmdmg sought by the Dmon.
EMPLOYER SUBMISSIONS
Mr Patterson, counsel for the Employer, subIll1tted that to fmd for the Dmon would create
chaos regardmg the surp1usmg of employees Further, the mconsIstency m the Dmon's
pOSItion cannot prevail gIven that they want the gnevor to be conSIdered as a Clerk TypISt
3 for some purposes and as an OA8 for other purposes
It was asserted by the Employer that only one mterpretatlOn can be found for artIcle
204 l( d) That IS to conSIder what the employees currently earn m therr present claSSIfication
and compare It to the current salary oftherr former claSSIfication. To fmd for Ms Lee would
allow a person who was demoted m 1986 to msp1ace a person eleven years later and receIVe
a promotlOn through the surplus process
Mr Patterson dIstmgmshed the Smith decIslOn on the baSIS that the Board made ItS remarks
regardmg the claSSIfication Issue based on a findmg of an estoppel The Employer put the
Umon on notIce by VIrtue of that htIgatlOn that It would no longer look at predecessor
classlficatlOns III the search for surplus employees
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The Umon's posItIon, the Employer argued, IS dIrectly contrary to the negotiations for the
mstant collectIve agreement. Indeed, the Umon IS attemptmg to get at arbItration what It was
unable to obtam at the bargammg table In the 1986 - 1988 collective agreement, specIfic
reference was made to an employee's positIon. Arttcle 24 2 3 stated.
Where an employee has not been assigned ill accordance With sub-sectIons 24.2,1 or 24.2.2, he
shall be assigned on the baSIS of lus semonty to a vacancy ill another nurustIy WItlun a forty
(40) kilometre radius oflus headquarters proVided he IS quahfied to perform the work and the
salary maxmlWll of the vacancy IS not greater than three (3 %) percent above nor twenty percent
(20%) below the maxunum salary oflus classificatIOn as follows
- a vacancy wluch IS m the same class or pOSItIon as the employee's class or positIOn
- a vacancy m a class or positIOn ill wluch the employee has served dunng lus current
term of contmuous service, or
- another vacancy
The proViSIon was lUlchanged for the collectIve agreement m effect from January 1,1989, to
December 31, 1991 In the most recent expIred collective agreement, It was stated at Arttcle
2461
Where an employee IS IdentIfied as surplus he shall be assIgned on the basiS of hIs semonty to
a vacancy m Ius nurustry WithIn a forty (40) kilometre radIus of hIs headquarters proVided he
IS quahfied to perform the work and the vacancy IS
- m the same class or pOSItIOn as the employee's class or pOSItIOn,
- m a class or pOSItIOn m wluch the employee has served dunng hIs current term of
contmuous service or
- another vacancy
The language of the mstant collectIve agreement IS qUite dIfferent, Mr Patterson suggested,
No longer IS there any reference to pOSItIon, only to classes prevIOusly held. The partIes
altered the language m the certam knowledge that there would be massive 1ay-offs m the
publIc semce When the partIes explIcItly delete a word as rmportant as "posItion",
arbItrators have an oblIgatIOn to attach some sIgmficance to the deletion. The language was
altered m an attempt to srmplIfy the process NeIther party could afford to IdentIfy whether
eveI)' employee who was surplused held another pOSItIOn at one time It would have created
an admmIstratIve mghtmare It IS precIsely that chaos that the deletIOn of "pOSItion" was
mtended to address
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As a general proposItIOn, Mr Patterson agreed that the Junsprudence stands for the
proposItIon that language should be mterpreted broadly m matters of semonty However,
6ere must be some language winch supports a broad mterpretatIOn and It cannot be found
m the mstant matter
Any concerns regardmg what rmght occur dunng the penod followmg the bargammg urnt
overhaul can be dealt WIth by the Jomt System Subcomnuttee of CERC m accordance WIth
paragraph 2 of AppendIx 7 of the collectIve agreement.
In reply, Mr Leeb remmded the Board that Ms. Lee was not demoted. Indeed, ITomcally she
was promoted and yet fmds herself now dIsadvantaged because of It. Further, It was
subrmtted that there IS no magIC to the deletIOn of the word "pOSItIOn" because the word
"class" IS broader than "pOSItIOn" That IS to say that a class IS made up of many pOSItIOns
and, accordmg1y, there IS no need to mclude the word "pOSItIOnS"
The fundamental questIon for tlus Board to address IS what does artIcle 20 4 1 (d) mean If
you do not consIder preViously held Jobs There would be no applIcatIon whatsoever If the
Employer's pOSItIon IS upheld,
Fmally, the Dmon contended that the Smith decIsIOn was not based upon a findmg of an
estoppel. Accordmgly, there IS nothmg m the new collectIve agreement winch would
preclude a fmdmg consIstent WIth the decIsIOn of Vice ChaIT Kaplan.
DECISION
In Smith, at page 26, the Board set out the Employer's argument as follows
Had the partIes WIshed, they could have opened bumpmg nghts to employees who had
served ill the classIficatIOn or an" predecessor classIficatIOn They choose (sic) not to do so,
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and counsel argued that the Board should not mterpret ArtIcle 24 so as to mclude predecessor
classw.canons, The class standards for both the EnVIronmental Techmclan and EnVIronmental
Officer claSSIficatIOns had been mtroduced mto eVIdence and a punrlew of them revealed that
they were not the same, There was slffiply no Justification, 10 the employer's View, to broader
bumpmg nghts by extendmg them to predecessor claSSIficatIOns when the parties themselves
had chosen not to do so
In the mstant matter, the Employer argued that the deletIOn of the word "pOSItIOn" IS
determmatIve It IS apparent on the face of the Smith deCISIOn, that the Employer dId not
conSIder the presence of the word "pOSItion" sIgmficant or worthy of takmg mto account.
Indeed, m the mstant matter, I am of the VIew that the deletIOn of "pOSItIon" IS not
determmatIve
The Employer argued that the Board found an estopped m Smith and that the Urnon had
been put on notice that the estoppel was to end. In a reVIew of the deCISIOn I could not fmd
an allegation of or a findIng of an estoppel. The Urnon argued that the partIes negotiated the
new proVISIons of the collective agreement WIth the knowledge of the fmdmg made by Vice
Chalf Kaplan m Smith.
After conSIderation, I find that the Urn on gnevance must succeed, I agree WIth the Urnon's
SUbtnlSSIOn that there IS nothmg m the new collective agreement, eIther by addItion or
deletion, which would lead me to vary from the deCISIOn m Smith
There are many changes m the mstant collective agreement from the most recently expIred
verSIOn, Many of those changes concern Job secunty It IS apparent that the partIes made
many alteranons due to the rmpendmg lay-offs. I agree WIth Mr Patterson that some of those
negonated changes appear to be an effort to srmphfy the process of engagmg m a downsIzmg
of the ilk we are presently engaged m. However, I dIsagree that the dIfferences m language
leads to a findmg that predecessor claSSIficatIons are not to be conSIdered when provIdmg
nghts to an employee who has receIved notIce of surplus
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The Employer asserted that the deletIon of the word posItIon IS determmatIve of tlus matter
The Umon stated that gIVen the overall changes to the proViSIOn, the word "posItIons" was
ormtted because It IS obViously subswned by the word "class" I agree With the Umon, It IS
worth notIng that the Umon dId not place any weIght on the word "pOSItIon" m ItS arguments
to the Smith board. As stated above, neither did the Employer The Umon's argument
seemed to be that the Employer had preViously agreed by conduct to the Umon's
mterpretatIon and the Employer's argument was that m order to fmd the language meant
predecessor classificatIOns, clear language was requITed.
V Ice ChaIr Kaplan found that, If the gnevor had been quahfied to do the work, he would
have found that the gnevor had preViously worked m the class senes he was then seeking to
bwnp mto There appear to be two reason for lus deCISIon. The first IS because the Employer
preViously conSIdered the gnevor to have worked m the Envrronmental Officer senes and,
accordIngly, there was an adrmssIOn that the gnevor had bwnpmg nghts WIthm that senes
But the Board also conSIdered the overall unportance of semonty m these tune of econormc
restramt.
I am srmilarly persuaded, Moreover, the parties have been dlscussmg bargammg umt
overhaul for a nwnber of years They agreed m the mstant collectIve agreement that the
overhaul would be completed dunng the hfe of tlus collectIve agreement. In these tImes of
maSSIve restructunng and downsIzmg, I cannot belIeve that the partIes would agree to a
prOVISIOn whIch would, as suggested by the Dmon, potentIally leave employees WIth
sIgmficantly less bwnpmg nghts dunng the last SIX months of the collectIve agreement
because they had a claSSIficatIon change due to the bargammg umt overhaul. Indeed, the
Umon suggested that It IS possible that any benefit denved from ArtIcle 20 4 1 (d) would be
meamngless If the Employer's pOSItIOn were upheld. I thmk the Umon IS conect.
~.'-
- 13
The Dmon gnevance stated that the "MmIstnes are vIOlatIng ArtIcle 24 (now ArtIcle 20) m
that prevIOusly held classIficatIOns that were subsequently altered are not consIdered for
redeployment, assIgnment or dIsplacement" As requested I declare that the Employer's
mterpretatIOn of artIcle 20 4 1 (d) IS contrary to the collectIve agreement. I remam seIzed to
deal WIth matters resultIng from the tills declaratIOn.
NotwIthstandmg the findmg above, the gnevance of Ms. Lee must be dIsffilssed, I agree WIth
the Employer that the classrlicanon of OA8 has a salary greater than that of Clerk 3 Supply
I cannot agree With the Dmon's suggesnon that I return to the salmy rates m effect at the tune
of the gnevor's promonon or any other preVIOUS tune There IS nothmg m the collecnve
agreement that would allow for such an mterpretanon. I am of the View that the salary rates
to consIder are those m effect at the tlffie of the dIsplacement.
Dated m Toronto this 17th day of May, 1997
VIce ChaIT