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HomeMy WebLinkAbout2000-1357.Policy.17-07-27 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2000-1357 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Policy) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Bram Herlich Arbitrator FOR THE ASSOCIATION Marisa Pollock, Counsel Goldblatt Partners LLP Barristers and Solicitors FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING June 29, 2017 - 2 - Decision [1] The parties entered into a Memorandum of Settlement (“MOS”) dated March 15, 2016. Among the matters agreed to was a provision that I “remain seized to resolve, on a summary basis, any disputes or difference or disagreement arising between the parties in respect of the administration and implementation” of their MOS. The parties appeared before me to make submissions with respect to the issue that has arisen between them regarding the administration and implementation of their MOS. [2] A copy of the MOS is appended to this decision. The issue before me relates to Paragraph 4 (i.e. subparagraphs 4.1 through 4.8). This paragraph sets out the terms of a review process the parties agreed to undertake with a view to determining what number, if any, of 375 currently excluded positions ought to be included in the bargaining unit. The MOS also deals with the process of identification and selection of the 375 positions. [3] Paragraph 4.1 required the employer, within three weeks of the execution of the MOS, to provide the union with a list (including recorded WIN data) of all (within certain enumerated categories) excluded positions as of February 29, 2016. The employer provided this list on or about April 5, 2016. It enumerated some 8000 excluded positions and provided “WIN” data in respect of each one in up to 35 fields, including position number, position description and employee name. [4] Paragraph 4.2, as part of the review process to unfold, contemplated the agreement of the parties to the preparation of a questionnaire “to be independently filled out by individual employees in identified positions” to provide information related to the propriety of inclusion/exclusion in/from the bargaining unit. However, the parties clearly did not contemplate that questionnaires would be completed with respect to all of the 8000 identified excluded positions. - 3 - [5] Paragraph 4.3 required the union, within six months of the settlement (i.e. approximately five months after receiving the employer list under 4.1), to “identify 375 positions for review for potential inclusion in the AMAPCEO bargaining unit (the “disputed positions”).” The union did so on or about September 15, 2016. [6] Upon receipt of the union’s list of 375 positions, the employer, under paragraph 4.4 was, within six months, to provide the union with disclosure of the following in respect of each identified position: the filled out questionnaires; the most recent job description; an exclusion rationale; and relevant organizational charts. The employer provided disclosure to the union on March 15, 2017. That disclosure has resulted in the union now seeking to be afforded the opportunity to select some 30 or so other positions to be part of the parties’ review. These would, generally speaking, replace previously identified positions which can no longer (and at least cannot currently) be part of the review as contemplated by the parties. [7] I will return to the relevant specifics of this disclosure (or lack thereof) after I complete my summary description of the process contemplated by the parties’ MOS. [8] Three months after the disclosure for the 375 disputed positions, the parties were to meet to agree on further details and scheduling for the review process (see paragraph 4.5). I was advised, during the hearing of this matter, that this meeting was scheduled and to be held shortly after the date of the hearing. [9] Four months after the disclosure for the 375 disputed positions the review process begins and is to be completed within six months. As of the date of the hearing, that process had yet to commence. In this process the parties, armed with the relevant facts and considerations regarding the propriety of exclusion, are, to the extent reasonably possible, to resolve the status of individual employees (paragraph 4.6). - 4 - [10] Finally, once the review process is complete, any outstanding disputes concerning inclusion or exclusion of the 375 positions are to be referred to this Board for mediation, followed, if necessary, by an expedited adjudication on an informal consultation basis (paragraph 4.7). [11] The disclosure provided by the employer in March of this year highlighted a number of problems associated with the identified positions. Many of these problems were little more than minor wrinkles which the parties appear capable of resolving. Those are not being dealt with here (and, to be clear, the parties agreed that neither was I to now deal with issues related to exclusion of HR Ontario positions – the parties were apparently well along the path of resolution of those matters). [12] Based on the disclosure provided, AMAPCEO asserted that 32 of the 375 disputed positions had been identified by the employer as either eliminated, vacant, unfilled or otherwise problematic. AMAPCEO organized these under the following headings: • Positions that have been eliminated, inactivated, deleted, etc.- 19 positions • temporarily vacant positions 6 positions • position incumbent on accommodation or leave and CECBA questionnaire has not been completed 3 positions • position unfilled and CECBA questionnaire has not been completed 1 position - 5 - • position under review and CECBA questionnaire has not been completed 1 position • position is not an OPS position 1 position • position transferred to AMAPCEO by MX review 1 position [13] AMAPCEO argued before me that, for the purposes of the review process agreed to by the parties, these 32 positions are all in need of replacement and that it ought to be permitted to select 32 further positions to maintain the required number of disputed positions to be subject to the parties’ review. [14] There were no significant facts in dispute for the purposes of my determination. The union was prepared to accept, at face value, all of the information provided to it by the employer. And neither was there any suggestion of bad-faith or any other claim that the employer was deliberately controlling events so as to (at least partially) defeat the objectives of the parties’ MOS. [15] The employer asserted that (subject to one relevant exception for our purposes) all of the information it provided in its initial list of 8000 positions (and accompanying data) was current and accurate at the time of its provision in April 2016. Further, it asserted that any positions that were vacant at that time were so identified in the information provided to the union. The union did not dispute the assertion. [16] The positions of the parties are relatively straightforward. [17] The union asks that I consider the terms of the MOS as a whole. The MOS establishes the term “disputed positions”. These are defined as 375 positions identified by the union for review for potential inclusion in the bargaining unit in - 6 - accordance with the review process agreed to by the parties. Subsequent references to the “disputed positions” must therefore be taken as a reference to no more and no less than 375 positions. If a union identified position cannot form part of the review process because, for example, the employer has chosen to discontinue it and there is no incumbent capable of completing the questionnaire, let alone being included (or excluded) from the bargaining unit, then there is a deficit relative to the required number (375) of positions to be subject to the review process. To adopt the term used by both parties before me: where it becomes impossible to include a previously identified position in the process, the union ought to be permitted a “do-over” to restore the requisite number of positions being reviewed to 375. [18] The employer vigorously rejects the union’s suggestion. These are sophisticated parties. They would not be surprised that in the one year between the time of the employer’s initial list and its subsequent disclosure regarding the disputed positions, positions would have been eliminated or become vacant. Neither is the number of changes that occurred out of the ordinary - that is simply part of the normal ebb and flow of the workplace. And, more importantly, these sophisticated parties elected to not address the consequences of such developments for the purpose of their review process. The MOS simply does not contemplate any do-overs. Finally, the logical extension of the union’s position adds unnecessary movement to what is otherwise a fixed target. More than a year has passed since the promulgation of the initial list. On the face of the MOS process, it could easily be in excess of a further year before there are any final dispositions. If each time one of the disputed positions becomes impossible to include in the review process for any of the types of reasons adverted to, that would require identifying a new position to be included in the review and recommencing the process in respect of that position. Neither clarity nor stability are served by imposing such a requirement. [19] The union, to a certain extent, acknowledges the force of this last point raised by the employer. It agrees that the identification of disputed positions should not be - 7 - an open ended process, subject to alteration regardless of how far into the process the parties find themselves at the time that a previously identified position can no longer be included in the process. It accepts that, at some point, the inventory of disputed positions must become fixed and not subject to any substitutions or do-overs. It suggests, however, that the appropriate time to preclude any do-overs is once the review process as set out in paragraph 4.6 begins. That would insure a meaningful opportunity to finally identify the 375 positions that the parties have agreed will be the subject of the review process. [20] The employer, of course, at least effectively submits that the list of disputed positions is irrevocably established at the moment that the union identifies them, in this case on September 15, 2016. [21] Between the time suggested by the employer (i.e. when the union first identifies the 375 disputed positions) and that suggested by the union (i.e. once the review process begins) there are 10 further months of potential uncertainty and possible need to re-do the process at least in respect of any do-overs. The employer’s proposed terminal date provides greater efficiency and certainty. In a contest between these two proposed terminal dates, I prefer that advanced by the employer, subject to one qualification. [22] The parties agree, at least implicitly, that at some point in time within the process they have constructed, the list of disputed positions must irrevocably crystalize. Any changes subsequent to that crystallization will simply reflect the vicissitudes of the workplace and will not result in any do-overs. The dispute between the parties is with respect to when, not whether, that crystallization occurs. [23] In my view, that crystallization should occur once the union identifies the 375 positions. However, the process the parties have constructed is one in which the union is entitled, as it did, to rely on the accuracy of the information the employer provided when it furnished the initial list of 8000 positions. - 8 - [24] I referred earlier to an exception conceded by the employer. At the time it provided the initial list, one of the positions it identified (and that was subsequently selected by the union) ought not to have been included as it was not an OPS position (except for time limited payroll purposes). In that singular case, the employer agreed that the union ought to be accorded a do-over. In all other respects, however, the list provided to the union was accurate at the time it was provided. But when the employer advised the union in March 2017 that there had been changes to some 30 of the disputed positions identified by the union in September 2016, it was no longer possible (definitively or even temporarily) or meaningful to include those positions in the process. I was not provided with full particulars in respect of each of these positions, in particular when the relevant changes occurred. They may have occurred anytime in the one-year period from the employer’s provision of the list of 8000 in April 2016 until its subsequent disclosure to the union approximately a year later. It stands to reason that some of these changes may have occurred prior to the union’s identification of the disputed positions, some after. In my view, these ought to be treated differently. [25] The union, in selecting 375 positions from the 8000 identified by the employer, relied upon the accuracy of the employer’s information. To the extent that changes occurred before the union was to make its selections, I am persuaded that the union ought to be accorded the requisite do-overs. By contrast, to the extent that changes occurred after the union made its selection (and absent bad faith, which is not here alleged), those developments are simply part of the usual ebb and flow of the workplace and do not require any other modification to the inventory of disputed positions. [26] To summarize, having regard to the foregoing, I am satisfied and hereby direct that the union, as agreed to by the employer, is to receive one do-over to replace the singular position that was not part of the OPS. Further, I also direct that the union receive the requisite number of do-overs to replace positions that, prior to September 15, 2016, became ones which could no longer be included in the process. - 9 - [27] I will remain seized with respect to the implementation of this award and in all other respects as agreed to by the parties in their MOS. Dated at Toronto, Ontario this 27th day of July 2017. Bram Herlich, Arbitrator