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HomeMy WebLinkAbout1983-0227.Palangio.84-03-07Betweel Before I $H ‘. ‘- IN THE MATTER OF AN ARBITRATION Under E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD I For the Grievor: OPSEU (Leonor F. Pa ,langio) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) ~ Employer R. L. Verity,,Q.C. Vice Chairman S. D. Kaufman Member P. D. Camp Member I. Roland Counsel Gowling & Henderson Barristers & SOliCitOrS For the Employer: N. Robinson Staff Relations Officer -Staff Relations~Division Civil Service Commission Hearings: I September 29, 1.983 December 2, 1983 - ,’ ,i -2- DECISION Mrs. Leonor F. Palangio filed a Grievance on February 10, 1983 in which she alleged that the Ministry had failed .to comply with the job security.provisions of the Collective Agreement in her circumstances - in particular that the Employer had violated Articles 24.2.1 and 24.13. The Grievance is a direct result of the Ministry's decision to relocate certain Ministry of Transportation and Communications positions, including the Grievors, from Toronto to Kingston. The Grievor was unwilling to move to Kingston. The relief requested in the Grievance Form was entitlement to a position as set out in Exhibit 6 being Competition No. TC(M) 83-82'CR. .At the Hearing, the Grievor abandoned that relief and on consent was allowed to amend the settlement request to a claim for damages. Essentially, the material facts are not in' dispute. The Grievor commenced work with the Ministry on February 24, 1975. From July 1979 until September 2, 1983, the Grievor was classified as a Clerk 4 General and held the position of Data Control Resolve Clerk in the Vehicle Control Section, Licencing and Control Branch of the Ministry at Queen's Park in Toronto. The maximum salary for that classification was $375.31 per week or $19,583..00 per year. On January 18, 1983, the Grievor was notified of the prospective relocation of her position to Kingston as part of a general re-organization. Mrs. Palangio was unable or unwilling to move to Kingston. .By mid;May, 1982, the provisions of Article 24 of the Collective Agreement were applied and the Grievor was then included on a corporate surplus 1iSk of. the Civil Service Commission. - ,’ -3- On July 7,'1982, Mrs. Palangio was assigned under Article 24.2.1 to the position of Work Order Clerk in the Financial Planning and Administration Branch of the Ministry in Toronto, which position was classified at the Clerk 3 General level (maximum salary of $342.57 per week or $17,875.00 per year)~. The Grievor was given 24 hours to accept the assignment and was advised by her Supervisors that failure to accept would result in lay-off. The assigned position offered was "red circled"'as was required by Article 24.3.1. On July 7 and 8, Mrs. Palangio informed the Ministry of her decision not to accept the assignment. On July 20, 1982, the Ministry~ formally acknowledged her refusal and accordingly applied the provisions of Article 24.4 of the Collective Agreement which called for lay-off with no displacement rights. Subsequent to July 7, the Grievor applied within the Ministry for numerous positions at the Clerk 4 level and in each case she was not considered forthese positions. In addition, she applied for available positions at the Clerk 5 level, and again was unsuccessful. Evidence was presented at the Hearing that there were seven vacancies~ at the Clerk 4 level during 'the time frame from July, 1982 to September, 1983 (Exhibit 7). the Civil Service Commission testified Mrs. Nancy Navkar of that she had overall responsib ility for the administration of the surplus program. It was her evidence that in July, 1982 there were 750 government employees from various Ministries declared surplus. - -4- She testified in some deta-il as to the procedure for placement of surplus employees. In her evidence, Mrs. Navkar described a vacancy as occurring during a moment in time. She described Article 24.2.1 as a mechanical exercise whereby the most senior and qualified employee would be assigned to a vacancy. Once the assignment was made an employee was given 24 to 48 hours to accept or reject the assignment. Thomas McIntosh, Project.Co-ordinator for the Kingston relocation project of M.T.C., testified that some 250 to 300 M.T.C. employees were affected by the relocation. He stated that he advised the Grievor thatin the event that she rejected the assignment she would then be laid off on September 2, 1983: that she would not be considered for future assignment interviews; and that she would have no rights of displacement. The Union argued that the Ministry was incorrect in its application of Article 24 to the Grievor's circumstances. Mr. Roland urged the Board to find that the Grievor had no reasonable time in which to accept an assignment in her own classification and that the Ministry's interpretation of an assignment contained no temporal dimension to the concept of a vacancy. He argued that the Grievor's assignment to a lower classification was unreasonable, recognizing the fact that the assignment took place some 14 months prior to the lay-off. Essentially, it was Mr .-Roland's argument that what was denied to the Grievor was the opportunity to be appointed to an assignment to a -. I -5- vacant~clerk 4 position within any reasonable time frame. The Ministry alleged that there was no provision in the Collective Agreement which provided for any time frame without triggering Article 24, and in the event that the Board were to find to the contrary, the Board would be amending the provisions of the Collective Agreement. It was further argued that the Ministry had properly administered the provisions of Article 24. The following clauses bear repetition: "24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or other such mrk area and the subsepnt assignment, displacenent or lay-off shall be in accordance with seniority subject to the conditions set out in this Article." .~. . "24.2.1 Where an employee is .identified as surplus hs shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometer radius of his headquarters provided he is qualified to perform the work and*three precent (3%) above nor twnty percent (20%) balow the maximum salary of his classification as followsf - a vacancy which is the sama class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of. continuous service; or - another vacancy." "24.3.1 Where'an employee is assigned to a vacancy in accordance with sub-sections 24.2.1, 24.2.2 or 24.2.3, section 5.5 of Article 5 (Classification Procedure) shall apply." "24.4 An employee who does not accept an assignment in accordance with sub-sections 24.2..1 or 24.2.3 shall be laid off and the provisions of sections 24.5 and 24.6 shall not apply." *the salary maximum of the vacancy is not greater than -6 - "24.6.1. An employee who has corrpleted his probationary period and wlx is subject tom lay-off as a surplus employee, shall have the right to displace an employee who shall be identified by the mloyer in the following manner and sequence...." "24.10 An employee shall receive a notice of lay-off or' pay in lieu thereof as follows: (a) two (2) weks' notice if his period of enploymsnt is less than five (5) years; (b) four (4) weeks' notice if his period of employment is five (5)'years or more but less than ten (10) years; and (c) eight (8) weeks' notice if his period of enploymant is ten (10) years or more; ,with copies of such notice to the Civil Service Ccsnnis- sionand the Union." "24.11 An assignment under this Article shall not be considered a promotion or a deSwtion." "24.13 It is understcod that when it'is necessary to assign surplus employees in accordance with this Article, the provisions of Article 4 (Posting and Filling of Vacancies or New~Positions) shall not apply." "24.16 For purposes of Article 24 lay-off neans the sane as release as per Section 22(4) of The Public Service Act, Revised Statutes of Ontario, 1970, Chapter 386." Also of interest is Article 5.5 of the Parties' Collective Agreement: "5.5.1 Where, because of the abolition of a position, an employee is assigned: ,. (a) from one position in a ministry to another position in the sane ministry, or (b) from a position in one ministry to a position in another ministry, and the position to which he is assigned is in a' class with a lowar maximum salary than the neximum salary for the class of the position from which he was assigned, he shall continue to be entitled to - salary progression based on merit to the maxirmun salary of the higher classification including any revision of the maxirm.im salary of.the higher class- ification that takes effect during the salary cycle in which the assignmant takes place." f z i ‘.;. ,. :.: 2’. -7- In a determination of the issue, the Board'adopts the rationale of Vice-Chairman Samuels in OPSEU (Becker) and Ministry of Transportation and Communications, 51 ,1/82 where it is stated at page 13: I, . . ..this Board cannot create a set of rights and obligations which seem, to the Board, to be the most desirable or reasonable. Cur role is restricted to interpretting the Collective Agreement arrived at by the parties. what have they said about their respective rights in their Agreement. Secondly, it is worth noting that, from the evidence wa heard about the process of relocating surplus employees, it is obvious that it is a very complex matter, and will always be terribly com- plicated when there are any surplus employees, as l&are ware in mid-1982. There is clearly no sinple way to assign the surplus employees so that each one is placed in a new position which preserves all the enployee's former salary and leaves the employee doing the sane or roughly similar work." Article 24.1 contains a measure of employee job security where a lay-off occurs under certain circumstances including "material change in organization". Pursuant to Article 24. .2.1 where an employee is identified as surplus, he or she is then assigned, if'~qualified to perform the work, to a vacancy on the basis of seniority within the Ministry "within a 40 kilometer radius, and within certain salary perameters in one of three possible situations: - a vacancy within th-e same classification - - a vacancy within a class in which the employee has served during his current term of continuous service - another vacancy. - -8- An assignment can be made to a vacancy within the Ministry beyond the 40 kilometer radius upon the consent of the Parties as set out in Article 24.2.2. Similarly, an assignment can be made under Article 24.2.3 to another Ministry on the terms and conditions set out in that section. Article 24.3.1 provides for the "red circling" of an employee assigned to a vacancy under paragraphs 24.2.1, 24.2.2 or 24.2.3. Article 5.5.1 establishes the provision of "red circling" to protect the salary level of an employee moved to .a position in a classification with a lower maximum salary than the salary available to the classification which the employee has held. Article 24.4 is clear that an employee who fails to accept an assignment in one of the instances set out above shall be laid off and shall have no displacement rights as set out in 24.6.1. In a review of the Article in its entirety there is no provision that states that an employee.retains seniority who refuses an assignment. The difficulty faced by the Grievor in the instant case is that the Collective Agreement does not provide a time frame fork an employee for the acceptance of an assignment. Under the provisions of Article 24.4 an employee who refuses the assignment is deemed laid off. It would appear that Article 24 provides a certain measure of job protection in the sense of guaranteeing a job and the avoidance of a sudden lay-off, but does not provide classification protection. The purpose of the Article generally is to provide employment stability - 9 - and salary stability on the basis of, seniority. Assignment of employees on a seniority basis means that the more.senior the employee, the earlier the.,assignment. There is an aspect of the "luck of the draw" as is patently evident on the facts of the instant Grievance. Here, we.find three other employees who had identical jobs to the Grievor and worked in the same office as the Grievor did obtain better jobs than the Grievor. However, that situation cannot be avoided under the ~present wording of Article 24. The wording of that Article does not permit an employee to shop around for assignments. Simply stated, if an assignment is offered and refused, the employee is then subject to lay-off. The only choice given to a surplus employee under Article 24 is to accept an assignment or to face lay-off. The assignment provisions of surplus employees under that Article is not designed to provide an employee with a preferred job, or a choice among jobs, or even the same job. It is designed however, to provide a. job with an element of salary protection through the device of the assignment and the red circling provisions., The process of assignment of surplus employees must have a degree or order and sequence in view of the numbers of employees involved in a major reorganization such as the Kinqston relocation; otherwise chaos would be the end result. _ - 10 - We find that the procedures followe~d by the Ministry do comply with the provisions of Article 24.2.1. Accordingly, this Grievance must be dismissed. DATED at Brantford, Ontar ,io, this 7th day of March, A.D., 1984. R. L. Verity, Q.C. -- Vice-Chairman "I dissent" (see attached) S. Kaufman -- Member ., DISSENT I cannot agree with the Award of the majority, for the reasons that follow. The Employer had implemented a system of assignment of employees of the Ministry,of Transportation and Communicat who did not elect to move from Toronto to Kingston. That ,ions system led to unfair results in the Grievor's case. These results caused her to question the reasonableness of the system in relation to Article 24 of the Collective Agreement. The Board was askqd to decide whether the system failed to comply with the requirements of Article 24 because it allowed no temporal dimension to the concept of vacancy and assignment. Article 24.2.1. contemplates the assignment of a surplus employee on the basis of his seniority to a number of positions, in the following order: - a vacancy which is the same class or position as the employees' class or position; - a vacancy in a class or position in which the employee has served during his curr~ent term of continuous service: - another vacancy; The Grievor's name mechanically came up on the surplus list at a time when no Clerk 4 positions were available. She was offered a Clerk 3 position which she refused, 14 months before the proposed lay-off date of September 2, 1983. She refused the position because it under-utilized her skills, specifically computer skills, and offered little opportunity for promotion - (Exhibit 11). -. -. .’ -2- Thus, 14 months before September 2, 1983, the Grievor was faced with a dead-end job or lay-off unless she could find another job. The Grievor refused the assignment within the 24 hour period she was given to accept or reject it, and was then removed from the surplus list and automatically excluded from consideration for assignment in any of the positions de- scribed above. In my opinion, the system employed reflects an unreasonable interpretation of Article 24 of the Collective Agreement in that it fails to incorporate a temporal dimensio~n to the concept of vacancy and assignment. The fact that the Collective Agreement is silent as to time periods for acceptance of assignments and time of removal from any surplus list (indeed it is silen~t as.to the existence of the surplus list) does not validate the system set out in Exhibit 12 and described by Ms. Navkar and Mr. McIntosh as "Procedure A", which was applied to the Grievor. Ms. Navkar told the Board the time frame for acceptance of an assignment depended on the Ministry, but that employees are taken off the surplus list when they are assigned, not when they, accept the assignment. When asked whether.she could wait and hold,a Clerk 3 position for a Clerk 3 (and presumably leave a Clerk 4 on the surplus list),Ms. Navkar advised the Board that the Collective Agreement did not say that, and she had to assign. the vacancies as they arose, to the most senior surplus employees qualified to fill them. The procedure was clearly fixed. The 24.2.1 order set out above simply was not considered in this mechanical scheme. Assignment is, in this system, the luck of the draw, as the Award of the Vice-Chairman points out. The employee must take .,.,, ;:-., -3- whatever comes up, seniority and classificatimof the position notwithstand-ing, as long as it fits within any of the descrip- tions within Article 24.2.1, and in no particular order of those descriptions. As a result; less senior employees can be assigned to posi- tions with higher classifications than employeeswith an earlier seniority date. This conflicts with the controlling principle of Article 24, which is that employees' assignments "shall be in accordance with seniority, subject to the conditions set out in this Article" (italics mine). The "shall" is mandatory. Assignments then must be in accor- dance with seniority. This is only subject to the conditions set out in Article 24. Article 24 does not require that the assign- ments be accepted immediately or that the surplus employees be removed from consideration on a surplus list if they refuse the assignment. That inflexibility is not in Article 24; it'is in the system propounded by management as set out in Exhibit 12, and in the evidence of Nancy Navkar and Thomas McIntosh. Thomas McIntosh, then Project Coordinator of the Kingston .~ Relocation Project of the Ministry of Transportation and Communi- cations advised this Board that if an employee refused an assign- ment, for example, for medical reasons, management would permit the person to refuse the assignment and alloti him to remain on ~ the surplgs list. Thus, even the Ministry was -giving a tempOra1 dimension to its system. The discretion to allow employees t0 remain on the surplus list after refusing an assignment for which : .- ~-4- j they are "automatically" qualified, i.e., they are the most senior person on the surplus list and qualified when the job is available, is not absent from the scheme, notwithstanding -that the Collective Agreement is silent on the point. ~The question then becomes, should the discretion to allow the Grievor to remain on the surplus list have been exercised in this case, should it have been built into the system, and what would have been reasonable time to allow her to remain on the surplus list. In my opinion, the Grievor should have been allowed to remain on the surplus list. This would have had the effect of maintain- ing seniority as the controlling factor. The system as presently structured and in its present "mechanical" operation overlooks the employee's right to a simi- lar position within a reasonable period of time. In my opinion, it would have been reasonable to hallow the Grievor, and others in a similar situation to remain on the surplus list until August 15, 1983. It would have been reasonable to oblige them to accept the first position in the same class or position that came available for which they were qualified~'and to offer them a va- cancy of the class or position in which they had served during their current term of continuous service as they came available. The most senior person could have first choice of the latter posi- tion. If no position came available in the same class or position as any particular employee until August 15, 1983, the employee, in this case, the Grievor, would be required to take whatever position within 24.2.1 was available to her for assignment in the , ‘- -5- time remaining before the lay-off date. The risk would be on the employee, if no position described in 24.2.1 came available in the remaining period before the proposed date of lay-off. Management's failure to give the Grievor this time frame to remain on the surplus list, which in my opinion would have been reasonable, constituted a breach of the Collective Agreement for which she is entitled to a remedy. Further, Article 24.13 says: It is understood that when it is necessary to .assign surplus employees in accordance with this Article, the provisions of Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply. Notwithstanding Article 24.13, a competition for Supervisor, Inside Examiner and Application Acceptance Clerk, classified Clerk 4 General was held. The competition was restricted to employees on the surplus list. The Grievor had been struck from the surplus list, and consequently, was not even considered for the job, which was within her own Ministry. MS. S. Belle,, a former co-worker of the Grievor, with seniority date of 12/07/76, compared to the Griever's, 24/2/75, won the com- petition. In explanation as to why a competition was held for the posi- tion in the face of Article 24.13, Mr. McIntosh advised the Board that he thought that it was held because the position required driver examination experience. However, the incumbent, Ms. Belle advised the Board that she had had no testing experience when she applied and that she learned it after she-got the job. Mr. McIntosh acknowledged that on-the-job training had been provided. The Grievor was "out of the running" because she had -failed to accept an assignment to a Clerk 3 job and was no longer on the surplus list. It appears that no competition should have been held for this job, and had the Griever re- mained on-the surplus list, she would have been eligible for it. As a result of the operation of the system, a less senior employee got a position with a higher~ classification. Another of Ms. Palangio's co-workers, R.~Samuels, was assigned to a Clerk 4 position, which~became vacant g/8/83 with a seniority date of .2/l/80: J. Carson, with a seniority date 6/9/76 was assigned to a Clerk 4 position vacated 8/8/83. Both these assignments occured after the Grievor was removed from the Surplus list. The Grievor found herself a Clerk 3 position with a start- ing date of October 3, 198.3, and learned of those assignments. It did not appear fair, because she was the more senior employee made ineligible by virtue of her refusal of a Clerk 3 position 14 months before the expected date of lay-off. The Grievor seeks compensation at the Clerk 4 level for the period from September 2, 1983, to October 3, 1983, which is the period in which she was a new Clerk 3 position. Article 5.5.1 (red-circ 1 laid-off before .assuming the duties of \ As well she seeks the application of ing) to her present Clerk ,3 position, to put her in the position that she would have been had she been assigned to her present position. She does not seek to displace - MS. Belle. - - -7- This Board has the jurisdidtion to grant relief (Zubricki, Tremblay). I woul,d have al and allowed the Grievor the above relief. All of which is respectfully,submitted. & full range of lowed the grievance