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HomeMy WebLinkAbout1982-0244.Brick and Roth.82-10-20IN TBE MATTER OF AN ARBIT,RATIGN Under THE CROWN EM?LOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMZNT BOARD Between: Before: For the Grievor,: For the Employer: Rearing: OPSEU (Geraldine J. Brick & Leslie Roth) Grievors - And - The Crown in Right of Ontario (Ministry of Transportation and Comunica~:tions) Employer R. J. Roberts Vice Chairman J. McManus : Member II. Roberts Xember George A. Richards Grievance/Classification Officer Cntario Public Service Employees bunion Nancy Robinson Staff Relations Officer Staff Relations Division Civil Service Commission August 27, i932 ,.. -2- At the outset of the hearing in this case the Employer objected to the jurisdiction of the Board to hear the substance of the grievance. The parties agreed to present evidence and argument upon the jurisdictional issue and await the outcome thereof before proceeding to presentation of any substantive case. The issue raised in the preliminary objection of the Bmployer was whether the Affirmative Lction Program of the Bmployer, as applied in the Property Agent Training Program of the Central Region of the i"linistry of Transporta- tion and Communications in late 1981 and early 1982, constituted an exercise of the Employer's exclusive right to determine training and development or a matter of promotion subject to the terms of Article 4.3 of the collective agreement. We find that it was a matter of training and development falling within the exclusive management right of the Employer under section 18(l) (b) of the Crown Employees Collective Bargaining Act. Accordingly this Board lacks jurisdiction to 'hear the grievances. - 3 - This case has an int-;- n--sting background. I z seems that the government of Ontario has adopted a policy of equal opportunity for women Crown Zmployees. In line with this policy, the government put together an Affirmative Action Program. The Ontario Manual of Administration sets forth the policy of this program as follows: In order to accelerate the rate of inprove- ment in women's occuuational status, the Ontario Government has al&approved a policy of Affirmative Action for women Crown Employees... Affirmative Action is a results-oriented approach to increase the utilization of women in the work force. It involves: Policy review and modification to eliminate systemic barriers to women's advancement; and Planned, measurable results for achieving improvements in women's participation and staff development and in their occupational distribution. . . . The corporate goal of the program seems to be to achieve "representation by women, in all nodules and categories, .-:'. [to] a minimum of 305 by the year 2,000." Pursuant to this policy directive, the Yinistry of 'Transportation and Cokmunication instituted an internal Affirmative Action Program which included career development initiatives to help women become better gualified to compete for vacancies in fields which 7were -4- under-represented by women. This pr0qra.m was aimec; at increasing the pool of qualified women within the :linistry through the use of "on-the-jcb training, job rotations and secondments; or full sponsorship of special staff development programs." Ontario Manual of Administration, General Policy Regarding Affirmative Action Program, at P* 4-50-Z. The specific program which gave rise to the grievance herein was aimed at increasing the number of women within the Ministry who were qualified to compete for any job openings that might occur in the Property Agent classification. It was decided that this goal would be achieved by seconding interested female employees into the Property Agent job for a on2 year period of on-the-job training. The Xanager of the .LL f'irmative Action Program for the Ministry indicated that this approach was selected because, "such on-the-job training assignments are considered to be ti-kmost effective method for increasing the ninnber of women qualified to compete for positions in under-represented areas." Memorandum dated January 29, 1982 from Xanager, Affirmative Action Program to local Manpower Administration Committee Chairman, Head Office and Central Region (Metro areas); It seems that the staffing 3oiicli of the Qntario 24anual of Aclninistration Trovides four alternative net:hods of selection for personnel for secondinents into anotner job. These methods are as follows: Nethod 1: . a secondment opportunity .dlthin a ministry is~ identieied and approved within the ministry; . the duties and responsibilities are identified; . select&n criteria are established; . the position is advertised covering a defined area of search; . the successful candidate is selected through the normal competitive process. OR Method 2: . an individual is requested by an organization for secondment; . the tWq organizations involved and the individual agree to the terms. OR Method 3: . an individual nominates himself/herself for a specific secondment opportunity; . the parent organizatidn agrees to the secondment; . the organizarion(s) involved and the individual agree to the terns. Net-hod 4: OR . an organization requests the Civil Service Cam&sion to coordinate the selection of an employee suitable to undertake a secondment assignment. Ontario :4anual of Administration Policy, Staffing, at p. S-60-2. It was decided that 'the method of selection identified ' as Metbod 1, above, would be use<, i.e., advertising the secondment o$portunity and selecting the successful candidates through the normal ccmpetitive process. Pursuant to this decision, tie affirmative action opportunity posting were made: the first, with a closing date of Nov&er 13, 1981; the second, wi+h a closing date of February 19, 1982. Although the postings differed ia some respects, tbey.cbnveyed to interested applicants the same information. Because this information played some role in 'Lhe argument advanced by the Union, we reproduce in full in this Award the second Gosting, i.e., the on& wi.'A the closing date of February 19, 1982: (see -9e 7) ff PROPERTY RCENT TRAINING PROc7.A.Y 3 CENT?AL XEEGION ENGINEERING AND gxI‘HT-OF-WAY OF'ICE ?ROPP-STY ~,ECTION _~ 3501 OUFERIN STREET, DOWNSVIEW %- (2 POSITIONS~I 1) NOTE : This career development assignment.will beg open to fenrale staff interested in a career a% d Property Agent. The assignment will be for a period of one year. The'successful candidates' cxrent classification and salary maximum will not be changed durina the assignment and the candidates are expected to return to their previous duties after the training is completed. They should however, be well qualified to compete for vacancies which may occur in the Propercy Agent ranks. They must successfully complete the Probationary Rgent'~s Course (taken after approximately 6 months of traininql. THE TRAINING The incumbents will undergo a training prog?am consisting of: - an initial rotation through the various property functions such as appraisals, leasing and disposals for 2 to 3 veeks each, title searching for 5 to 6 weeks and title processing and expropriations for 1 to 2 weeks. - assignment to the Negotiations Group for a Berio.of about 8 weeks. under the close supervision of an experienced Agent, the incumbent will gain, through on-the-job training, exposure to all phases of right-of-way negotiations, including urjtinq up, taking and processing. agreements, commencing expropriation and following the statutory proVisions of The Expropriations Act, resolving complaints and dealfna with contentious issues and complex negotiations. - attendance at the Ministry's Probationary Agent's Course. - by the end of one year the incumbents should work with supervision confined to the weekly assignment and review of work with only the complex or contentious issues beinq referred to the supervisor. .~ THE JOB A Eully trained Ministry Property Agent is capable of and expected to: - negotiate the purchase of lands required for Xini'stry or GO Transit purposes. - initiate expropriation procedures when necessary. - appraise property required by the Ministry ot which is to be leased or sold. - lease or dispose of lands under XinisCry ownership which . are not inmediately required or are surplus to Ministry requirgmnts. - arrange for remOVa1 of obstacles from Hinistrj rights-of-way. NOTE : THIS IS Ad XFFIilMATIVE ACTION CAREER XVELOPxEEN+ OPPORTGNIn APPROVED BY THE CENTRAL ilEGiON LOCAL X?4PCWE8 ADNINISTXATIVE COM?(ITTEE THE CANDIDATES ‘4”ST: - 1) have a valid driver's license 2) achieve a satisfactory level in mathematics and Snglish tests (to be held following the interview) 3) bewilling to travel frequently, including overnight travel up to 3 or 4 days/nights per week 4) have d neat and tidy appearance .._ SdOULD HAVE-. 1) good oral and written communication skills, including the ability to write legibly 2) vorkinq experience with the subllc 3) ability to work with minimal supervision 4) use of d tax OTHER ASSETS: 1) experience in reading and interpreting legal and engineering plans 2) post-secondary educatidn INSTRUCTIONS TO Ak'?LIC%NTS To ensure maximum consideration of your application, Please respond as follovs: - discuss this assignrrvrnt with your ranager and obtain a memorandum indicating the manaqer's position with respect to holding your current position open during the assignment. The manager will receive equivalent salary dollars to hire replacement staff during the candidate's assignment - complete an Ontario Public Service 'Application for Employnent‘ Frcml754O-1062 - attach d completed "Application for Eeloyment Attachment. POrm ADM-P-25. On this form respond in pertinent detail to the candidate WSTS, SBOULDS, and ASSZTS listed above, i.e. where your expereince, knowledge, skills and abilities relate to a MUST, SHOULD or ASSET listed above, e.vlain the relationship. ~- as this is a .Metm Toronto Competition, moving expenses will not be paid - those selected for a personal interview will be contacted directly by a Personnel representative - zend completed forms and manager's menarandum to: John Girard Personnel Section Central Region. .5000 Yonge St. Xiliovdale NOTE : THIS IS AN AFPIRMATIVE ACTION CAREER DEVELOPMENT OPPORTLWITY, APPROVED SY TH'Z CENT.XAL REGION LOCAL .XA.VPO!ER ADHINISTIIATIYE COMNITTEE : : . -9- The two grievors submitted applications in response to both postings: however, neither'was' successful in either of the competitions. Their grievances follows. The relief sought, in pertinent part, was that the competitions "be declared void-and re-run in a fair and equitable manner in adherence with Article 4 of the Collective Agreement . . . .' in due course, our hearing followed. On the jurisdictional issue, the parties'attempted, to characterize in different ways what the Employer was attempting tc accomplish when it provided the .secondment opportunities' in the Property Agent classification, above. Counsel for the Employer contended that~the Zmployer simply was providing opportunities for on-the-job training and - la - development pursuant to its exclusive management right under the Crown Employees Collective Bargaining Act, and hence the matter was not within the jurisdiction of the 'Grievance Settlement Board. The Union, on the other hand, characterized the undertaking of the Employer as providing "promotional opportunties" -- a matter arguably falling within the ambit of Article 4.3 of the collective agreement. As a result, the Union submitted, the Grievance Settlement Board has jurisdiction to determine whether the competition was carried out in accordance with the requirements of the collective agreement. .We have decided that the undertaking of the Employer in providing its Affirmative Action Opportunities for the Property Agent classification is most appropriately characterized as an exercise of the Employer's exclusive right to provide training and development. The argument for the Union essentially was founded upon equating what is done in the name of providing training opportunities to what is done at the probationarylevelofthePropertyAgentclassification, i.e., Property Agent I. Counsel for the Union brought home to the ~'Board with considerable force that the Class - 11 - Standard for the Property Agent I class:'+-atisn, sverlaps -a-c in many significant respects the training experiences described in the Affirmative Action Opportunity postings.* While this considerable overlap between the job of a probationary Property Agent and an Affirmative Action Program trainee might tend, at first blush, to suggest that they are substantially identical and might ecually be subjected to the provisions of the collective agreement, further examination reveals significant differences which appear to justify character- izing the training opportunity as wholely within the exclusive management right'of the Employer. The most significant of these distinctions seems *For example, the Affirmative. Action postings .state:' that in the 'course of training the successful applicants '. initially will work under close supervision of an experienced agent but by the end of one year supervision should,be confined to "the weekly assignment and review of-work wFLh only the complex or contentious issues being referred to the supervisor." The Class Standard for Jroperty Agent I states, "During th~e:~ini.tial period of tineir employment, these emplcyees ,receive detailed instructions on each assignment, .but as they gain experience, technical direction consists primarily of close review of &&eir reports and recommendations." Another simiiaritv resides in the description of what fomd training might be received The Affirmative Action Opportunity postings indicate that,oart of the training will be "attendance at tne Mlnlstry's ?robaticna--y Agents course." It seems beyond doubt that the Probationary Agents course is a course seL up for those holding the 5ropert~ Agent I classification. Attendance at such a course iS ZefeiZed' to in the Property Agent I Class Standard. Finally, the description of the job of a Property Agent II in the Class Standard seems virtually identical with the description Of the job for which the Affirmative Action Opportunity postings.indicate <ne successful incumbents will receive training, - 12 - to be the lack.of any correlation between the number of AZfirmative Action trainees who are ‘seconded to the Proper*1 Agent classification and the number of openings that are projected to occur in that classification. Indeed, the evidence does not seem to disclose the existence of any correlation between the number of women who&e assigned to receive this training in any particular year and the planning targets adopted by the Ministry for the Property Agent position. It seems to be evident from these observations that the Ministry never anticipated that there would be a job opening at the Property Agent II level for each Affirmative Action trainee. We do not understand this to resemble in any respect the approach taken hy the Government toward a probationer in the Property Agent I classification. With respect to such an employee, the legitimate expectation of both parties would seem to be that upon successfully completing his or her probationary period, the employee would be placed upon permanent staff as a Property.Agent 11. It seems to us that such an expectation is implicit in the concept of declaring and seeking to fill a job opening pursuant to the dictates of Article 4.3 of the collective agreement. - 13 - There also are other significant differences between the,status of a Property Agent.I and 'an Affkqative Action trainee. The Affirmative Action trainee is seconded to the Property Agent classification pursuant to the Policy .on Secondment set forth in the Ontario Manual of Administra- tion. This policy states, inter alia, that: During the period of the secondment, the employee: * ramairs an employee of the parent organization; * remains an incumbent of his/her present position; * is subject to all normal compensation policies and procedures except where special salary arrangements may be involved: These factors completely differentiate the employement status of an Affirmative Action trainee from that of a permanent staff person such as a Property Agent I. We reject the assertion made by counsel for the Union that we should hold against the position of the Employer because its Affirmative Action Program, as presently administered, presents too great a potential for abuse,:~,, In this regard, counsel pointed out that under the secondment policy, above, the Employer could, by refusing to declare,.an opening in the Property Agent classification, financially benefit itself by seconding to the classification an endless stream of lower paid Affirmative Action trainees. There does not appear to be any evidence before us to support any inference that this was the motive of the Employer in this case. IYoreover, it seems to us to be unlikely that any department of the Employer would view as a cost saving a position requiring continuous inputs of intense supervision such as would be required to be given to an endless series of trainees. Further, the lack of any possibility of competing for an opening in the job, it seems to us, would soon dry up the stream of trainees, thereby thwarting the legitimate goals of the Employer's Affirmative Action Program. The. grievance is dismissed. We do not have jurisdiction to review the assertion of the grievors that the competition in question was not conducted in accordance with the requirements of Article 4.3 of the collective agreement. DATED AT London, Ontario this 2Qti day Of CCtOhr, Vice-Chairinan II I concw" J. McSmus, Member "I concur "~ H. Roberts, Member 6: 2310 6: 3230 6: 4100