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HomeMy WebLinkAbout2002-2441.Union Grievance.05-01-27 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2441 UNION# 2002-0999-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry of Agnculture and Food) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION RIchard Blair Ryder Wnght, Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER MelIssa Nixon Semor Counsel Management Board Secretanat HEARING November 26 2004 2 DeCISIon The Umon alleges that the Employer has contravened a Memorandum of Settlement dated November 25 2003 ("the Memorandum") In respect of ItS treatment ofMr Wayne Miller The Memorandum reqUIred the Employer to fill a number of Meat HygIene Officer ("meat Inspector") posItIOns through a postIng and competItIOn process At the conclusIOn of the process, Mr Miller secured a full-tIme classIfied meat Inspector posItIOn In the Guelph North area. Mr Miller resIdes In Thornloe and he has hIstoncally worked In the New LIskeard area. GIven the consIderable dIstance between Thornloe and the locatIOn of hIS current posItIOn, Mr Miller IS reqUIred to travel to and from Arthur and to stay at Arthur dunng hIS workweek. The Umon submIts that the Employer's contraventIOn of the Memorandum has depnved Mr Miller of a posItIOn closer to hIS resIdence The Employer dIsputes the Umon's claim and takes the posItIOn that It has complIed fully wIth ItS oblIgatIOns under the Memorandum. Mr Miller has worked as a meat Inspector SInce 1976 Up untIl 1996 he had the status of a full-tIme classIfied meat Inspector He was laid off In 1996 along wIth other meat Inspectors In the ProVInce of Ontano when the government of the day determIned that meat InSpectIOn would be performed on a fee-for-servIce basIs For the next seven years, Mr Miller worked on contract as a fee-for-servIce meat Inspector From 1980 untIl 2003 Mr Miller performed hIS meat InSpectIOn dutIes In the New LIskeard area, pnmanly at plants 238 245 and 291 For vanous reasons and In the context of the Umon's bargaInIng umt Integnty gnevance ("the BUI gnevance") the recently elected government decIded that meat InSpectIOn servIces should be performed agaIn by publIc servants After a number of days of medIatIOn fOCUSIng on 3 meat Inspectors In lIght of the BUI gnevance the Umon and the Employer executed a Memorandum dated November 25 2003 The text of the Memorandum reads as follows Whereas the Umon filed the above noted Umon gnevance wIth Management Board Secretanat under the collectIve agreement between the Employer and the Umon, the partIes hereby agree In partIal resolutIOn of the gnevance GSB #2441/02 to resolve the matter as It relates to the meat Inspectors In the Mimstry of Agnculture and Food wIthout preJudIce or precedent on the folloWIng basIs 1 The Employer agrees to fill through postIng and competItIOn, sIxty-one (61) meat Inspector posItIOns as permanent classIfied Meat HygIene Officer posItIOns These posItIOns wIll be posted expedItIOusly 2 In addItIOn to the posItIOns posted pursuant to paragraph 1 above, the Employer shall also fill through postIng and competItIOn, an addItIOnal fifty-seven (57) unclassIfied Meat HygIene Officer posItIOns These posItIOns wIll be posted expedItIOusly 3 The partIes agree that the ImtIal competItIOn mentIOned above wIll be restncted to the IndIVIduals lIsted on AppendIx A 4 The competItIOn for the posItIOns shall be conducted In good faith. The partIes agree that length of demonstrated expenence as a fee-for-servIce meat Inspector (includIng Meat HygIene Officer) performIng InSpectIOns at plants lIcenced under the Meat InspectIOn Act (Ontano) and enforcIng the Act, regulatIOns and related legIslatIOn IS one of the several relevant factors to be consIdered In the competItIOn. 5 Persons who receIve posItIOns pursuant to the competItIOn outlIned above, and who have at least twelve months' expenence as a meat Inspector on a fee-for-servIce contract wIth the Mimstry of Agnculture and Food, shall be classIfied at the level of Agncultural SpecIalIst 3 Persons wIth less than twelve months expenence wIll be classIfied at the Agncultural SpecIalIst 3 level If they have completed the appropnate traInIng and assessment. Others wIll be classIfied at the Agncultural SpecIalIst 2 level untIl such tIme as they have completed the appropnate traInIng and assessment or they attaIn twelve months' expenence, whIchever comes first. 6 The partIes agree that the Employer may contInue to contract, on a fee-for- servIce basIs, the current meat Inspectors, and shall do so untIl the completIOn of the competItIOn process descnbed above 7 The gnevance IS hereby wIthdrawn wIth respect to meat Inspectors In the Mimstry of Agnculture and Food. The partIes agree that Vice Chair Ken Petryshen shall remaIn seIzed wIth respect to the ImplementatIOn of thIS Memorandum of Settlement. 8 ThIS agreement IS In partIal settlement of the above noted Umon gnevance, as It pertaIns to the Issue of meat Inspectors In the Mimstry of Agnculture and Food, and IS wIthout preJudIce to any other matter IncludIng any outstandIng Issue In the gnevance not expressly resolved by thIS agreement. 4 Of relevance for our purposes IS that the Employer agreed to fill sIxty-one permanent classIfied meat Inspector posItIOns and fifty-seven unclassIfied meat Inspector posItIOns through postIng and a competItIOn. The competItIOn was restncted to IndIVIduals who at the tIme were fee-for-servIce meat Inspectors The Employer agreed to conduct the competItIOn for the posItIOns In good faith and I remaIned seIzed wIth respect to the ImplementatIOn of the Memorandum Pnor to the medIatIOn, the Employer assessed ItS needs In each of ItS eIght area offices The manager In each area examIned hIstoncal data such as hours of work and attempted to predIct future developments In order to determIne how many full-tIme classIfied and unclassIfied posItIOns would be reqUIred In theIr area and where those posItIOns should be located. The number of classIfied and unclassIfied posItIOns set out In the Memorandum reflects the Employer's assessment of ItS needs at the tIme Although the tasks assocIated wIth runmng a competItIOn of thIS SIze were qUIte challengIng, the Employer completed the process expedItIOusly The process Involved testIng and IntervIeWIng approxImately 120 applIcants for the 118 posItIOns As part of the process each applIcant filled out a "NotIce ofIntent" form whIch provIded an IndIcatIOn of the type of posItIOn and the work locatIOn an applIcant was Interested In. Mr Miller IndIcated that he was Interested In eIther a full-tIme or a part-tIme posItIOn and that hIS first chOIce oflocatIOn was the Midhurst area, whIch Includes New LIskeard. His second chOIce was the LIndsay area and hIS thIrd was the Guelph North area. The Employer decIded that there would be mne full-tIme classIfied meat Inspector posItIOns In the Midhurst area. It also determIned that It would operate wIth two unclassIfied 5 posItIOns In the New LIskeard area. One unclassIfied posItIOn would have plants 291 and 238 and the other one would have plants 245 and 292 Ms T Draper the Manager for the Midhurst area, testIfied about the vanety of reasons whIch led the Employer to decIde to use two unclassIfied employees In the New LIskeard area. She IndIcated that Mr Miller had been workIng exceSSIve hours on a fairly consIstent basIs and, In addItIOn to the cost to the Employer thIS posed a health and safety concern. She also IndIcated that two unclassIfied employees would provIde the Employer wIth the flexIbIlIty It needed to serve the needs of the area best, havIng regard the slaughtenng schedule of the plants, and such Issues as water testIng, dead stock calls and further proceSSIng. In March 2004 Mr R. RangaI, the Meat InspectIOn FIeld Manager offered Mr Miller a full-tIme classIfied posItIOn In the Guelph North area. Mr Miller ranked tenth In hIS aggregate score and he was therefore not entItled to one of the mne full-tIme classIfied posItIOns In the Midhurst area. Mr Miller was aware of the possIbIlIty that he mIght not secure a posItIOn In the Midhurst area due to the competItIve process The Umon does not take Issue WIth the rankIng scheme adopted by the Employer and Mr Miller's partIcular rankIng wIthIn that scheme When offered the posItIOn In Guelph North, Mr Miller advIsed Mr RangaI that he preferred to work In the area closer to hIS resIdence Mr Miller had lIved In the area for many years, had been on CouncIl for two terms and had been the Reeve SInce 1990 Mr RangaI told hIm that he would consIder thIS request and get back to hIm. Mr RangaI subsequently offered Mr Miller one of the two unclassIfied posItIOns In the New LIskeard area. Mr Miller belIeved that acceptIng eIther of the unclassIfied posItIOns would not provIde hIm wIth sufficIent hours He also felt that It was not In the Employer's Interests to operate wIth two unclassIfied employees In that area. Mr Miller proposed to Mr RangaI and then later to Ms Draper that the Employer create a posItIOn whIch servIced plants 238 245 and 291 They were not receptIve to hIS proposal Mr Miller 6 then accepted the full-tIme classIfied posItIOn located In the Guelph North area, Incurnng hIS own travel and lIvIng expenses The Employer dId hIre two unclassIfied employees to servIce ItS needs In the New LIskeard area. Mr Terryberry was hIred to work at plants 238 and 291 whIle Mr RIvet was hIred to work at plants 245 and 292 BegInmng In the first week of Apnl2004 Mr Terryberry was assIgned hours of work at plant 245 In addItIOn to hours at plants 238 and 291 hIS assIgned plants CertaIn factors, IncludIng a delay In the re-opemng of a plant In Quebec resulted In more hours of work at plant 245 than prevIOusly antIcIpated. A chart prepared by the Employer shows the hours worked by Mr Terryberry at plants 238 245 and 291 and the hours worked by Mr RIvet at plant 245 between Apnl 5 and November 19 2004 The chart Illustrates that the two unclassIfied employees shared hours of work at plant 245 dunng some weeks In thIS penod. Mr Terryberry dId not work any hours at plant 245 between August 23 and October 22,2004 Dunng the Apnl to November penod, Mr Terryberry was also provIded wIth some hours of work at plants outsIde of plant 245 and hIS assIgned plants When the Employer offered one of the unclassIfied posItIOns In the New LIskeard area to Mr Miller Ms Draper was at least aware of the possIbIlIty that addItIOnal hours of work would be avaIlable at plant 245 However the Employer dId not specIfically advIse Mr Miller that he could be assIgned hours of work at plants other than at plants 238 and 291 when he was offered one of the unclassIfied posItIOns The Umon argued that the Employer contravened the Memorandum In two respects In relatIOn to Mr Miller FIrstly the Umon submItted that there are sufficIent hours for the Employer to have created a classIfied posItIOn In the New LIskeard area. In notIng the length of tIme Mr Miller has worked In the area as a meat Inspector and the number of hours avaIlable In the area, partIcularly at plants 238 245 and 291 the Umon argued that a tenth full-tIme classIfied 7 posItIOn In the Midhurst area should have been created and offered to Mr Miller The Umon submItted that the Employer's faIlure to create such a posItIOn was arbItrary and In a broad sense exhIbIted bad faith. The Umon made It clear that It was not requestIng that the Employer create a classIfied posItIOn at the expense of the other employees who secured classIfied posItIOns In the Midhurst area. The Umon also argued that the Employer effectIvely mIslead Mr Miller when It offered hIm an unclassIfied posItIOn assocIated wIth two plants wIthout IndIcatIng that there would be hours of work avaIlable to hIm at other plants, partIcularly at plant 245 The Umon argued that mIsleadIng Mr Miller In thIS way constItuted bad faith. The Umon noted that the hours of work assIgned to Mr Terryberry reflected the proposal Mr Miller had made to Mr RangaI and Ms Draper a proposal the Employer reJected. The Umon submItted that Mr Miller should now be offered a classIfied posItIOn In the New LIskeard area or at least be offered an unclassIfied posItIOn whIch accurately reflects the number of hours avaIlable to hIm, to put hIm In the posItIOn he would have been In but for the breach of the Memorandum. Counsel for the Umon referred me to the folloWIng decIsIOns Re McIntosh 3027/92 (DIssanayake) and Re OPSEU 1118/93 (Mikus) Counsel for the Employer emphasIzed the specIfic terms of the Memorandum In her submIssIOn that the posItIOn advanced by the Umon on behalf ofMr Miller ought to be reJected. Counsel submItted that the Employer complIed wIth ItS oblIgatIOns under the Memorandum and that the Umon faIled to establIsh that the Employer acted In bad faith In ItS treatment ofMr Miller Counsel for the Employer relIed on the folloWIng decIsIOns Re Landly-King 1593/84 (Knopf) Re Edgett et al 2476/90 (DIssanayake), Re Harrison et al 1164/92 (Knopf) Re 8 ROYf,land Carey P/00I0/97 (LeIghton) Re Bousquet 541/90 (Gorsky) and Re Young et al 1455/00 (Abramsky) The oblIgatIOns on the Employer anSIng from the Memorandum are clear and very specIfic The Employer was oblIgated to create and fill 61 permanent classIfied and 57 unclassIfied meat Inspector posItIOns It was also reqUIred to conduct the competItIOn for these posItIOns In good faith. With respect to thIS latter oblIgatIOn, the Umon does not take Issue WIth the score and rankIng ofMr Miller In the competItIve process Not surpnsIngly the Memorandum does not address where the posItIOns to be created and filled are to be located. As one would expect In these cIrcumstances, thIS determInatIOn was left to the dIscretIOn of management. The Employer dId create 61 permanent classIfied and 57 unclassIfied posItIOns To gIve effect to the Umon's first submIssIOn In the absence of any complaInt about how the Employer created and filled the other posItIOns would reqUIre the Employer to have created and filled 62 permanent classIfied posItIOns QUIte sImply the Employer was not reqUIred by the Memorandum to fill more than 61 classIfied posItIOns It was also not reqUIred to create and fill a classIfied posItIOn In the New LIskeard area. In assessIng ItS operatIOnal needs, the Employer determIned that It reqUIred two unclassIfied employees to servIce properly the New LIskeard area. In makIng thIS decISIOn, Ms Draper consIdered the vanety of factors referred to prevIOusly IncludIng the hours of work avaIlable In that area. Mr Miller had been workIng exceSSIve hours for some tIme, a matter conceded by the Umon. The avaIlabIlIty of two unclassIfied employees In that area would provIde the Employer wIth flexIbIlIty In meetIng eXIstIng operatIOnal reqUIrements Although Mr Miller vIewed the matter dIfferently there IS no basIs for concludIng that the decIsIOn to use two unclassIfied employees and not create a classIfied posItIOn In the New LIskeard area was 9 unreasonable In the CIrcumstances GIven that It was based on operatIOnal consIderatIOns and not Intended to detnmentally affect Mr Miller It IS my VIew that the Employer's decIsIOn was not arbItrary or made In bad faith. Therefore, It IS my conclusIOn that the faIlure of the Employer to create and fill a classIfied posItIOn In the New LIskeard area does not constItute a contraventIOn of the Memorandum. In consIdenng the allegatIOn that the Employer acted In bad faith by mIsleadIng Mr Miller when It offered hIm one of the unclassIfied posItIOns, I agree wIth counsel for the Employer that the Umon has faIled to establIsh bad faith by the Employer As a result of hIS desIre to work closer to hIS resIdence, the Employer offered Mr Miller one of two unclassIfied posItIOns, WIth each posItIOn havIng responsIbIlIty for two plants Mr Miller felt such an offer was not vIable and that he would need a posItIOn that was responsIble for plants 238 245 and 291 For reasons referred to prevIOusly the Employer was not prepared to accommodate thIS request and Mr Terryberry and Mr RIvet ultImately filled the unclassIfied posItIOns It IS Important to recogmze that there has not been a change to the unclassIfied posItIOns In the New LIskeard area. Although Mr Terryberry has had the opportumty to work at plant 245 and other plants due to vanous factors, thereby gIVIng hIm more hours, at least temporanly hIS unclassIfied posItIOn IS stIll only responsIble for plants 238 and 291 The Umon argues that Ms Draper should have advIsed Mr Miller that addItIOnal hours would lIkely be avaIlable for hIm at plant 245 when the Employer offered hIm the unclassIfied posItIOn. In my VIew It was not Incumbent on the Employer In these CIrcumstances to specIfically dIsclose what It antIcIpated mIght occur wIth respect to future work assIgnments, partIcularly when the avaIlabIlIty of extra hours was antIcIpated to be temporary GIven hIS expenence wIth the Industry and the New LIskeard area, Mr Miller would lIkely have been In as good a posItIOn as anyone to predIct how many hours he would have receIved from plants 238 and 291 as well as recogmze that addItIOnal 10 hours would lIkely be avaIlable to hIm at other plants It IS clear that Ms Draper dId not IntentIOnally wIthhold relevant InformatIOn from Mr Miller It IS lIkely that she belIeved that any InformatIOn about a temporary Increase In hours at other plants was not partIcularly relevant, gIven that Mr Miller wanted the certaInty of havIng three plants assIgned to hIm and thIS was not gOIng to transpIre Mr Miller certaInly dId not testIfy that hIS decIsIOn would have been dIfferent If he knew he would get some hours at plant 245 In CIrcumstances where the number of hours and theIr contInued avaIlabIlIty was uncertaIn. If one were to assume that the Employer mIslead Mr Miller when It offered hIm an unclassIfied posItIOn and such conduct breached the Memorandum, the remedy for such a breach would arguably be a dIrectIOn to the Employer to agaIn offer Mr Miller an unclassIfied posItIOn In the New LIskeard area. Indeed, the Umon argued that such a dIrectIOn would be appropnate In order to place Mr Miller In the posItIOn he would have been In but for the breach. However Mr Miller made It very clear dunng hIS testImony that he was no longer Interested In an unclassIfied posItIOn. He testIfied that he was concerned about beIng In an unclassIfied posItIOn and havIng It elImInated In the future for a classIfied posItIOn, for whIch he mIght not be selected. Mr Miller may also have recogmzed that there IS no guarantee of hours for the two unclassIfied posItIOns In the New LIskeard area and that any recent Increase In hours for Mr Terryberry may be temporary AccordIngly even aSsumIng a breach of the Memorandum, there would be no pOInt In dIrectIng the Employer to offer Mr Miller an unclassIfied posItIOn when he would not accept such on offer 11 For the foregoIng reasons, It IS my conclusIOn that the Employer has not contravened the Memorandum In ItS treatment ofMr Miller Therefore the Umon's claim on behalf ofMr Miller IS hereby dIsmIssed. Dated at Toronto thIS 2ih day of January 200S