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HomeMy WebLinkAbout1982-0431.Hergott.83-02-14IN TIIE: IYATTER OF AN ARBIT~TION Under THE CROWN ~EZ4PLOYEES COLLZCTI:T ZXRGXNIXG ACT 3efore THE GRIEVANCE SZTTLZMENT SOARE .~ Setween: Before: CUPE !Donna Hergott) Grievor - and - I The Crown in Right of Ontario (Workmen's Compensation Board) Employer R. L;i Kennedy Vice Chairman F. 3. Collon Member G. A. Peckham t4e.mber i: : -.I For the Griever: G. 0. Zones Xati0na.l Feorese5tativc Cana.dian Union of P:iblic Employees For the Emulover: LPl. ?. Moran Ccunse.1 Cicks, Msrlesy, Saxxiltcn, Siewart & Storie 3arristers & So'icitors Zearing: Zanuary 5, 1383 r--- I,:. I:::;:~;-; .’ .~. .’ ,, .’ -2- AWARD The grievance in this matter alLeges that a vacancy occurred in the position of Rehabilitation Counsellor in the Smployer' s Kitchener office by reason of the retirement of an incumbent. There was no subsequent Fasting of the vacancy and the position was filled by the Employer with another Rehabilitation Counsellor who had previously been employed in that capacity in another office. It is the position of the Union that under Article 5 of the Collective Agreement, the vacancy should have been posted and filled in accordance with the provisions of that Article allowing other employees the opportunity of applying and being interviewed for the position. The grievance in its original form was an individual grievance on the part of another employee in the Kitchener office claiming that she be given the opportunity to apply for and be interviewed for the position, but at the hearing with the agreement of both parties, the claim for individual relief and the posting of this actual job was withdrawn and in its place i;-, the Union sought only a declaration as to the obligations of the Employer under the provisions of the Collective Agreement in circumstances of the nature that lead to this arbitration. There were five employees classified as Rehabilitation Counsellors employed in the Kitchener office prior tc Apri? of 1982. There are a total of 200 employees in the classification ,.. I-. b: 3 -3- in all of the Employer's offices across Ontario. One of the Rehabilitation Counsellors in Kitchener indicated an intention to resign in April of 1982. At the request of the Employer, she extended her time until June 25, 1982. On or about June 18, 1982, a Rehabilitation Counsellor who had previously been employed in another office moved to the Kitchener office and she subsequently took over the same case load that had previously been looked after by the .retiring employee. It is the position of the Union that on the retirement of the employee in Kitchener, a vacancy of a permanent nature in that office had occurred and it therefore had to be posted by reason of Article 5.L(b) of the Collective Agreement. It was the position of the Employer that in assuming duties in Kitchener, a qualified Rehabilitation Counsellor was reassigned from the Toronto office to the Kitchener office to perform duties within the same 0 classification. Mr. Moran stated that there were some 200 such Rehabilitation Counsellors within Ontario and when one of them leaves, the Employer has the right to determine where a vacancy 1 will be posted and filled, or whether the complement of Rehabilitation Officers is to be reduced. It was further the Employer position that for a long time that practice of reassigning had been followed for Rehabilitation Counsellors to the knowledge of the Union and therefore to the extent there might be considered to be any ambiguity in the Agreement language, the practice wou Id exp la in wha t was intended. rr.i,: The applicable provisions of the Collective Agreement Based on that practice, the Employer further argued that the Union was at this stage estopped in these circumstances from challenging the practice. read as follows: ARTICLE 5 PROMOTIONS AND STAFF TRANSFERS 1. When a vacancy of a permanent nature occurs or a new position is created within the bargaining unit, the position will be filled as follows: (al In accordance with Article 6 Layoff and Recall, first consideration will be given to placing employees occupying the same or higher salary classification within the bargaining Iunit who are affected by organizational or other changes which have resulted, or are likely to result, in a 0 reduction of the work force, or where the employee requires a transfer to more suitable work. (b) Subsequent to this consideration, all vacancies above Salary Grade 002 shall be posted on designated Boardwide bulletin boards for not less than five (5) working days, except those: (il which have had a similar posting within the previous three (3) months, in which case the applicants for the previous posting will be considered as applicants for the current vacancy, (ii) for which past experience shows that no employee is qualified. Such vacancies will be listed on a bulletin which will be posted periodically. ,,‘\, t.. .~, ~. c. .: .‘.: - ..: -5- 2. Information in Postings All postings shall set out the position title, location if outside Head Office, salary level or grade and salary range, together with the major responsibilities, the basic requirements for the position and the closing date of the posting. 3. Interviewing of Applicants (I) All applicants within bargaining unit shall be interviewed either in person or by telephone. (1I)Where a grievance arises out of the selection process of a posted~ position, the Employer will provide the Union with the selection documents for the successful candidate and the' Grievor at the first applicable step of the grievance procedure. 4. Eligibility to Apply for Postings Consideration for the posted vacancy will be given to any employee with seniority who: (i) has six (6) months service on his current job, on the condition that his current job was not acquired as a consequence of a reduction of staff or organizational changes, or is eligible under the provisions of Schedule "B" in which case he shall be exempt from this requirement. 5. Role of Seniority in Promotions and Transfers Both parties recognize: (a) The principle of promotion within the service of the Employer. (b) That job opportunity shall increase in proportion to length of service. (c) That the primary considerations in filling a vacancy are qualifications and ability to perform the required duties. (d) Therefore, in making staff changes, transfers or promotions, where qualifications and ability are relatively equal, seniority shall be the determining factor. F I -6- I, -. : : m .~. The Collective Agreement being considered on this arbitration became effective October 1, 1981, and in the course of the negotiations leading to that Agreement, Article 5 was discussed and amendments thereto were agreed. For a long time in prior collective agreements, Article 5.4 contained the additional requirement that to be considered, an employee had to be currently in a classification having a lower ‘maximum salary than the posted vacancy. In addition, the prior subsection 4 contained a further provision that consideration for a posted vacancy would be given to any employee who had previously filed a request for transfer to the posted position. The earlier agreements thereEoce had a further subsection 9 permitting an employee who desired a transfer to file a written request for transfer, which request would be kept on file Ear a period oE one year. In the event the requested position became,vacant, that application for transfer would be considered on the same basis as an application for the job when it was posted. Those provisions were removed from the Collective Agreement in the / I’ ., ,,. last set of negotiations, and there was therefore no longerany I '.- limitation on the right of an employee to apply for lateral transfer or demotion in response to a job posting. On behalf of the Employer, evidence was presented with respect to seven specific situations in recent years wherein Rehabilitation Counsellors had been reassigned Erom one area to -7- another without any posting of a vacancy. The Employer has offices in, many centres throughout Ontario and within the Central Region centered in Toronto, there are several different divisions each employing a certain number of Rehabilitation Counsellors. Of the seven specific incidents testified to by management, five involved reassignment within the Central Region, and two ,involved reassignment from one city to another city. The current local President of the Union acknowledged that he had been aware of some of those reassignments and that no objection had been taken to them on the part of the Union. In addition, three of the employees affected by those reassignments were at the time Union Officers. It was the evidence on behalf of the Employer that when a Rehabilitation Counsellor left or retired and it was determined that the total complement would remain the same, reference was first made to a file kept by supervisors recording any indications of interest that existing Counsellors had in moving to a different location. All Rehabilitation Counsellors were advised that if they had an interest in working in some other location to let management know. Therefore, when a Counsellor left or retired Erom a particular location, and another Counsellor had indicated a desire to move to that location, and was suitable for the job, there would be a reassignment of the Counsellor without any formal job posting. Similarily, if any Rehabilitation Counsellor had indicated a desire to move to the geographic r r - 8- I :i i ;’ location of the one who 'Jas reassigned, the same process would be followed. A vacancy would be posted at the final Location where a Rehabilitation Counsellor was needed. It was the evidence of management that that practice was of long standing and was known to the Union Executive. Xanagement witnesses stressed the need for continuity betireen Counsellor and client in order to achieve the most favourable results and that consistency in carrying case loads was a very desirable characteristic. Therefore, in making reassignments, management considered both the needs oE the office wherein a vacancy first arose and the needs of the oEfice from which a request for transEer was received and the Einal decision made based on a balancing of those interests. It was further management's evidence that in addition to the seven specific reassignments referred to, there had been several others, but those were not further particularized. It was the evidence of the Employer that the record that was kept of indications of an interest in reassignment was not equivalent to the application for transfer provisions of Article 5.9 of the old collective agreement. ,-he '.:. practice as described had not been changed in any way by reason of the modifications that appeared in the Collective Agreement effective October 1, 1981. In the particular fact situation of the Kitchener office at the time the incumbent retired, there did exist a request from another Rehabilitation Counsellor -9- indicating an interest to move to Kitchener and as a result, the reassignment was made. We did not receive any evidence as to whether or not, contemporaneously with the events in Kitchener, a posting for Rehabilitation Counsellor occurred elsewhere. Counsel for the Employer indicated that one had been posted in Central Region but the Union was not prepared to admit that that was the case. In any event, Counsel for the Employer took the position that he was content to argue the matter ,without specific evidence on that point and that,we could deal with it on the basis that the overall complement of Rehabilitation Counsellors was reduced by one. That position was satisfactory to the Union. It is the position of the Union that Article 5 on its plain language obliges the Employer, in all situations of promotion and transfer relating to a vacancy of a permanent nature, to post that position in all cases, that are not specifically exempted from the provisions of the Article; It was argued that the situation before us clearly was not one within the provisions of Article 5.1(a) or within the exempting provisions of Article 5.1(b) and therefore the job had~ to be posted. Mr. Jones stated that while the Employer's practices were of a similar nature to the previous request for transfer provision, those sections.had been deleted from the Agreement ‘.I’ .’ ..yl :-.‘. - 10 - in negotiations between the parties. Therefore, whatever ?ast practice migh: be considered to exist, it was irrelevant to the changed language to which the parties had agreed. ,Yr. Jones argued that in the past, on occasions when vacancies were filled without a sosting, the Union had not been in a position to know whether or not that situation came within one of the exceptions that had now been deleted from the Agreement. Mr. Jones stressed the importance of the seniority provisions OE the Collective Agreement and the right of all employees within the ‘-1 ,r .: ,.~, unit to apply for any vacancy of a permanent nature wherever it occurred. He pointed out that in the evidence of the EWLOyer, it was only where there was an existing request for a transfer that such an assignment was made but it was the underlying principle of the Collective Agreement that all employees had a right to apply for that position with seniority being the determining Eactor where qualifications and ability were relatively equal. He pointed out that Article 5.2 required a job gosting to specify the geographic location and that this was a clear indication of the parties’ intent that the concept Of a ‘.__ vacancy had a geographic connotation. It was the Employer’s position that the provisions of Article 5 apply only after it has been detemrined that there exists a permanent vacancy. That detersination is properly a function of management and there can be no vacancy where the - 11 - total complement in the classification is not changed.' We were referred to various arbitral authorities confirming the right of management~to reassign employees to varying bundles of duties falling within the job classification and in particular to Re Kysor Industrial of Canada Ltd. (1967), 18 L.A.C. 63 (Palmer); Rio Algom Mines Limited (1972), 1 L.A.C. (2d) 244 (Rayner) and Re International Nickel Co. of Canada Ltd. (1975), 8 L.A.C. (2d) 34 (Brandt). The International Nickel case deals / ,..: specifically with the right to reassign to differing duties within the classification at differing job locations operated by the Employer. Mr. Moran further supported his argument by reference to Section 18(l) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, C. 108, making it an exclusive function of the Employer to determine assignment. He categorized the situation before us as being one of assignment, rather than transfer and argued that the Collective Agreement clearly distinguished between the two. He ~pointed out that there was no inequity to any employees and that whatever rights they had to apply for jobs, those rights existed only at such time as the. Employer determined the existence and location of a vacancy. From a practical point of view, it would further be most unlikely that an applicant from outside of the classification would be successful in a job competition with an existing Rehabilitation Counsellor in view of the training required for the position and the nature of the job duties themselves. Mr. Moran further argued that whatever changes had <. * - 12 - ,.,-. t . taken place in the Collective Agreement, they were immaterial to the arguments and the past practice being asserted by the Employer. In the course of the evidence, Mr. Moran had introduced as an Exhibit, a job posting dated June 21, 1982, Ear the position of a Rehabilitation Counsellor in Hamilton. He argued that that posting did in fact constitute a similar posting as envisaged in Article 5.1(b)(i) and that therefore the Kitchener position did not have to be posted. It was argued that the only remedy the Union might seek on a grievance of this nature was therefore that the applicants for the Hamilton position had not been considered for the Kitchener position. Since the grievance did not raise that issue, there was nothing for this aoard to consider. It is our view that the compelling argument before US relates to vhether or not a vacancy existed in the Kitchener .“x. ,~, ..~ 1. .; office such as to create an obligation to post on the part of the Employer. it is our view on the factual circumstances as outlined to us that no Vacancy existed in that office. The deteznination of the complement of the work force and of the assignment of employees within the complement is a recognized function of management provided that in exercising that function, management does not contravene the specific provisio . .e - 13 - i, . . ~.. of the Collective Agreement. In the evidence and argument before us, the Union relied on the provisions of Article 5 but those provisions are premised on the existence of a vacancy of a permanent nature. We do not read that Article as limiting the right of management to assign employees within a particular classification to the various bundles of duties to be performed within that classification or to the various locations at which they are to be performed. We would therefore accept the argument of the Bmployer,that the Agreement has not limited the Employer's right to determine whether a vacancy exists and at which one of the Employer's various locations it is to be found. Counsel for the Union made reference to the previous decision of this Board in Re OPSEU (Union Grievance) 665/81 as supporting his arguments that jobs under the Collective Agreement do have specific geographic connotations. That decision however does not assist in the factual circumstances presently before us. In the OPSEU (Union Grievance) matter, the Employer had moved, a large number of jobs from one geographic location to the other and the issue was whether or not employees who were unable or unwilling to relocate fell within the lay-off provisions of the Collective Agreement. in the OPSEU Decision, no challenge whatsoever was made to the right of the Employer to reassign the job duties to 'another location, and the sole issue - 14 - was whether employees who did not accept the reassignment were entitled to the benefits oE the lay-off provisions of the Collective Agreement. In the result, it is our conclusion that this grievance must be dismissed. : 9: 1300 5: 2000 . ,'.'.~ _: 5: 2520 DATED at Toronto, this 14th day of February, 1983. .( <. . . . .- F.D. Collom, :4ember ’ 17 . A. Peckham, Xember --