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HomeMy WebLinkAbout1983-0206.Policy.83-07-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Crievor: For the Employer: Hearings: CPSEU (Policy Grievance) Grievor and The Crown in Right of Ontario (Ministry of Transportation and. Communications) Employer J.W. Samuek Vice Chairman S. Schachter Member F.T. Collict Member P. Cavalluzzo, Counsel 3. Hayes, Counsel Cavalluzzo, Hayes & Lennon J. Miko, Grievance Officer Ontario Public Service Employees Union R.B. Itenson, Senior Staff Relations Officer N. Robinson, Staff Relations Officer Civil Service Commission June 28, 19X3 July 8, 1983 206183 dr 207183 Interim Award 4,. 1. -2- The Union filed two policy grievances concerning the binistry’s application of Article 24 (concerning surplus employees) to employees in the classifications of Clerk 2, 3 or 4 affected by the move from Toronto to Kingston. In one grievance, the matter is put as follows: Grievance: The Union grieves that the Employer has violated Article 24.13 by posting positions which should have been filled by assigning employees from the Ministry of Transporta- tion and Communications, among others, whose positiom were made redundant by the transfer of certain MTC positions from Toronto to Kingston. Settlement: The Union demands that the Employer cease this practice forthwith, including the practice of posting area-wide and Ministry-wide competition in addition to those in Topical, and begii assigning MTC employees affected by the Kingston move to appropriate positions without pasting and without competition, in accordance with Article 24 of the collective agreement. In the second, we have: Grievance: The Union grieves that the Employer has violated Article 24 in relation to the fill- ing of vacancies and related matters arising from the transfer of certain position in the Ministry of Transportation and Commu- nications from Toronto to Kingston. The Union grieves the Employer% ioterpreta- tion and application of the word “aligned” in Article 24.2.1, among others, and the phrase wqualified to perform the warp in Article 242.1, among others; and the order and timing of the sub-articles of Article 24.2.1.” Settlement Required: That the Employer comply with the Article as wrinen and according to the requests for such interpretation already made in discusxiom with the Employs by the Union at the local level. . At the~opening of our hearing on June 28, the Union indicated that it would seek the following declaration: That, ,#I the Clerical Services, substantially for Clerk 4, and absolutely for Clerks 2 and 3, employees are presumptively qualified to perform work in that class or below, within the terms of Article 24. The Ministry objected to the Board’s power to grant such a declaration. We then adjourned and resumed the hearing on July 8 to hear argument concerning this preliminary objection. While the Ministry agrees that this Board has the power generally to grant a declaration, it argued that there was no power to grant the specific declaration requested by the Union. After considering the arguments of the parties, the Board ruled that it could not grant a declaration establishing a presumption of qualification to perform work. Article 24 provides for certain rights of assignment for a surplus employee “provided he is qualified to perform the work.” If an employee grieves that he or she has not been treated properly under this provision, the onus is on the employee to show that he or she is qualified to perform the work. However, if .there is a presumption of qualification to perform the work, then the onus in such a case would be 0” the employer to show that the employee was not qualified to perform the - work. Thus, if this Board were to grant the declaration requested by the Union, we would shift the legal burden provided for in Article 24. This would be a change in the agreement, and is beyond our jurisdiction. d’ I ’ -4- . .* Article 27.14 provides: The Grievance Settlement Board shall have no jurisdiction to alter, change, amend Q enlarge any pvision of the Collective Agreement. To establish a presumption of qualification to perform work would be a change in the Collective Agreement as contemplated in Article 27.14 and is specifically forbidden to this Board. Nonetheless, it is open to the Union to call evidence to show a violation of Article 24, within <he terms alleged in the two policy grievances, and this Board may make such order as seems appropriate and is within its jurisdiction. The parties will now consider the evidence to be adduced and the future course of the hearings on these two grievances. Having ruled on the preliminary objection, and having heard no evidence on the substance of these grievances, this particular panel of the Grievance Settlement Board does not necessarily have to continue in this matter. If, in the interest of expediting the conclusion of the hearings, it is desirable to form another panel of the Board to hear and determine the matters in substance, this may be done. Signed at London, Ontario, this l<N day , 1983. , I t J.W. rnk ice Cb .rman S. Schachter Member _ _ . F.T. Collict biember