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HomeMy WebLinkAbout2003-0518.Union Grievance.03-06-04 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# 0518/03 UNION# 2003-0999-0017 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) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Mary Gersht Counsel Management Board Secretanat HEARING May 26 2003 2 DeCISIon ThIS polIcy gnevance IS the latest m a senes of three ansmg from the pnvatIzatIOn of dnver-exammatIOn servIces The umon challenges two decIsIOns made by the MmIstry the decIsIOn to allow certam employees to re- elect whether to transfer to the new servIce provIder; and the decIsIOn to deny other employees any opportumty to make such an electIOn I The chronology of events leadmg up to thIS gnevance begms m November of 2001, when the umon receIved fonnal notIficatIOn of the MmIstry's mtent to pnvatIze dnver-exammatIOn servIce Three hundred and fifty-four classIfied employees then elected whether to follow theIr Jobs to the successful bIdder, who had not yet been chosen, or to take an enhanced severance package under AppendIx 18 of the collectIve agreement A confidentIal mfonnatIOn memorandum (CIM) was Issued to qualIfied bIdders on December 18, 2001 UnclassIfied employees were converted to classIfied status If, pnor to the Issuance of the CIM, they had reached the two-year benchmark for converSIOn contamed m the collectIve agreement then m force In the first gnevance, dated January 25,2002, the umon contested the MmIstry's refusal to convert employees who completed two years of servIce after the Issuance of the CIM. In OPSEU and Mlnzstry of Transportatzon, GSB FIle No 02211/02, decIsIOn dated October 24, 2002, I allowed the gnevance, dIrected the employer to convert all unclassIfied employees who had reached the two-year mark by September 17, 2002 and remamed seIzed of any Issues ansmg m the ImplementatIOn of the award. 3 After receIvmg the converSIOn decIsIOn, the partIes entered mto a memorandum of settlement dated December 19,2002 The first two paragraphs of the memorandum state 1 The Employer agrees to convert all the employees lIsted m Attachments "A" and "B" m accordance wIth ArtIcle 31 15 of the collectIve agreement, from the unclassIfied servIce to the classIfied servIce The effectIve date of converSIOn shall be the same as the date thIS Settlement IS executed by the partIes The partIes agree that all employees lIsted m Attachments "A" and "B" shall have the optIOn to elect to transfer to the new servIce provIder 2 (a) SubJect to paragraphs 3 to 5 below, the partIes agree that the employees lIsted m Attachments "C" and "D" at the tIme of the executIOn of tlus Settlement are not elIgible for converSIOn However m the event that any of these lIsted employees become elIgible for converSIOn after September 17, 2002 up to and mcludmg the day before the successful proponent IS announced these employees wIll be converted to classIfied status If they have completed 18 consecutIve months of full-tIme servIce dunng thIS tune pen ad, and have satIsfied the reqUIrements of ArtIcle 31 15 The effectIve date of converSIOn shall be the date that they were elIgible for converSIOn (b) The partIes agree that any employee that has completed 18 consecutIve months of full-tIme servIce as of the date of the sIgmng of thIS Settlement and IS elIgible for converSIOn m accordance wIth ArtIcle 3 1 15 shall have an optIOn to elect to transfer to the new servIce provIder and that such employees shall have the same nghts as those employees converted pursuant to paragraph 1 above (c) The partIes agree that unclassIfied employees who become elIgible for converSIOn pursuant to paragraph 2(a) above after the date of the sIgnmg of thIS Settlement but before the successful proponent IS announced shall have no optIOn to elect to transfer to the new servIce provIder The partIes further agree that the nghts of these unclassIfied employees shall be lImIted to those outlIned m sectIOn 5 2 of AppendIx 18 4 The memorandum of settlement refers to the benchmark for converSIOn as bemg eIghteen months because the collectIve agreement had been amended before the settlement was negotIated Based upon when unclassIfied employees reached the eIghteen-month mark, the settlement dIvIded them mto three categones wIth dIfferent nghts 1 Those reaclung tlus mark by December 19,2002 are entItled to be converted, effectIve that date, and they are granted an electIOn whether to transfer to the new servIce provIder, 2 Those reaclung the eIghteen-month mark between December 19 and the announcement of the successful proponent are entItled to be converted upon reaclung the mark, but they are not granted an electIOn, and 3 Those reaclung the mark after the announcement are entItled to neIther converSIOn nor electIOn There were one hundred and seventy-nme unclassIfied employees m the first category They were converted on the date of the settlement, m January of 2003, they elected whether to transfer to the not-yet-IdentIfied new serVIce provIder or to take an enhanced severance package The second category IS compnsed of tlurty-nme unclassIfied employees who were converted between the settlement and the nammg of the successful bIdder On January 8, 2003, the umon filed a second polIcy gnevance contendmg classIfied employees who had made an electIOn m November of2001 should be allowed to re-elect because of "lengthy delays" m the pnvatIzatIOn process The employer raised a prelImmary obJectIOn that the gnevance was barred by the 5 settlement of December 19,2002 ThIS obJectIOn rested m part upon the umon's unsuccessful attempt to have the settlement provIde a nght of re-electIOn for these employees I dIsmIssed the prelImmary obJectIOn m OPSEU and Mlnzstry ofTransportatzon, GSB FIle No 2445/02, decIsIOn dated March 4, 2003 WhIle the first two gnevances were bemg addressed, the MmIstry contmued ItS dealIngs wIth prospectIve bIdders The CIM was amended m December of 2002 to mdIcate a total of 450 employees mIght choose to transfer to the new servIce provIder ThIS figure mcluded the already classIfied employees, who first elected m November of2001 and for whom the umon was seekmg a nght of re-electIOn, as well as the employees converted effectIve December 19, 2002 who would be makmg an electIOn m January of 2003 The successful bIdder, Serko Des Inc , was announced on Febnmry 25,2003 On May 8, 2003, after receIvmg the decIsIOn dIsmIssmg the prelImmary obJectIOn to the second gnevance, counsel for the employer wrote to counsel for the umon concernmg that matter The relevant portIOn of that letter states In the above noted gnevance the Umon alleged that the MmIstry has acted unreasonably m that they have not allowed classIfied employees m the Dnver and Velucle EXaInmatIOn ServIces who were put to an electIOn m 2001 to make a new electIOn (re-elect) On a wIthout precedent basIs and wIthout any admIssIOn as to lIabIlIty or and admIssIOn as to any nght to a re-electIOn, (whIch IS not admItted but specIfically demed,) the Employer has decIded to exerCIse ItS managenal dIscretIOn to pennIt all affected classIfied employees to elect whether to opt m or out to transfer to the new servIce provIder The Employer advIses that m order to treat all affected employees fairly and also for busmess reasons, all affected employees who elected m January, 2003 pursuant to the Minutes of 6 Settlement dated December 19, 2002 wIll also be provIded wIth an ElectIOn F ann to opt m or out of a transfer to the new servIce provIder ElectIOn fonns were sent to employees on May 9 and they were dIrected to respond by May 16 Of the approXImately 475 employees mVIted to re-elect, 14 decIded to follow theIr Jobs to the new servIce provIder A total of about 50 employees had made tlus chOIce m the two mItIal rounds of electIOns m November of2001 and January of2003 II The mstant gnevance was prompted by the employer's decIsIOn to grant an opportumty to re-elect to the 179 employees who were converted to classIfied status on December 19,2002 and m January of2003 made theIr mItIal electIOn about transfernng to the new serVIce provIder Charactenzmg thIS decIsIOn as an Improper exercIse of management nghts outsIde the collectIve agreement, umon counsel argued the MmIstry, wIthout any legItunate governmental purpose, unfairly dIfferentIated between two groups of employees by allowmg the 179 converted on December 19,2002 to re-elect whIle denymg any electIOn to the 39 converted thereafter The relIef sought by the umon IS twofold. (1) a declaratIOn that the MmIstry should not have umlaterally mVIted the 179 employees to re-elect, and (2) an order dIrectmg the MmIstry to allow the 39 employees to make an electIOn By way of a prelImmary obJectIOn, employer counsel submItted tlus gnevance IS barred by the settlement because It explIcItly states employees converted after December 19, 2002 have no nght of electIOn In the alternatIve, counsel argued the MmIstry acted for legItImate busmess reasons and treated employees fairly by allowmg all those wIth a nght of electIOn to re-elect m May of 2003 after the successful bIdder had been announced 7 III I begm my analysIs by consIdenng whether the MmIstry IS ever entItled to mVIte employees to re-elect about transfernng to a new serVIce provIder The nght of electIOn IS governed m general terms by AppendIx 18 of the collectIve agreement In the mstant case, the memorandum of settlement contams terms dealIng wIth the nght of electIOn for converted employees The questIOns of whether re-electIOn IS appropnate can be answered only by reference to the collectIve agreement and any more specIfic accord between the partIes As electIOn IS a matter regulated by the collectIve agreement, the management nghts reserved to the MmIstry do not permIt It to grant employees an opportumty to re-elect Havmg decIded the MmIstry may mVIte employees to re-elect only If permItted to do so by the collectIve agreement or any applIcable accord, I declIne on two grounds to decIde whether the re-electIOn by employees converted on December 19,2003 was proper A declaratIOn on tlus pomt would provIde no sIgmficant gUIdance for the future because the case at hand mvolves a hIghly unusual factual scenano that IS almost certam not to be repeated. In addItIon, I would not grant the order requested by the umon even If the re- electIOn m tlus case was Improper The order sought IS one dIrectmg the MmIstry to allow 39 employees, those converted between December 19,2002 and the nammg of the successful bIdder, to make an electIOn The memorandum of settlement expressly states those converted dunng thIS penod have no nght of electIOn Umon counsel contended the MmIstry cannot rely upon thIS portIOn of the settlement because other elements of It were contravened by the re-electIOn granted to the 179 employees converted on December 19,2002 In my VIew, even If thIS re- electIOn was m contraventIOn of the settlement, It dId not detnmentally affect the 39 employees for whom an electIOn IS now sought Accordmgly, even If the 8 settlement had been breached m the manner alleged, I would deny the order requested because It would not remedy any hann caused by the alleged breach Dated at Toronto thIS 4th day of June 2003 & ..i-..~~ / RIchard Brown VIce-Chair