HomeMy WebLinkAbout1984-0052.Petrie.84-10-17.,..
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52184, 53184
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Robert E. Petrie)
and
Grievor
The Crown in Right of Ontario
(Ministry of Labour)
Employer
R. J. Roberts Vice-Chairman
8. Switzman Member
A. Reistetter Member
For the Grievor: I. Freedman
Legal Director
Ontario Public Service Employees Union
For the Employer: W. J. Gorchinsky
Chief Staff Relations Officer .
Staff Relations Division
Civil Service Commission
Hearing: July 13, 1984
DtCISION
This arbitration arises out of a grievance alleging
that the‘ Ministry violated the job posting requirements
of Article 4 of the collective agreement when it assigned
a surplus Occupational Health and Safety Officer from Sudbury
to duties in its office in Barrie, Ontario. For reasons
which follow, the grievance is dismissed.
At the outset of the hearing, the parties submitted
the following stipulation setting forth the operative facts
of the case:
STATEn!.?NT OF FACTS
1. In the early part of 1983, the Director
of the Industrial Health and Safety Branch
decided that there was insufficient work
for the five inspectors located in Region
19, Sudbury. Upon a work load review,
it was determined that there was a back
log of work in Region 11, Barrie.
2. Following agreement between the management
at Sudbury and the officers of Local 630,
OPSEU, Sudbury, it was agreed that one
of the officers at Sudbury could be treated
.?I!3 surplus, regardless of seniority.
Accordingly, Mr.Ewing, as the surplus
employee in Sudbury, commenced work in
Barrie, Region 11, on June 6, 1983.
3. No other employee was hired for Mr. Ewing's
former position in Sudbury.
4. Mr. Ewing did not replace any other employee
in Barrie.
5. The parties agree that no new classification
was created in the Bargaining Unit in
this matter.
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It also was stipulated that there was no change in then overall
number of positions for Occupational health and Safety
Inspectors in the' province as a result of the reassignment
of Mr. Ewing from Sudbury to Barrie.
In its argument; the Union drew into play Article 24. 2.2
of the collective agreement, which readsas follows:
24.2'.2
With mutual consent, a surplus employee shall
.be assigned to a vacancy ,in his ministry beyond
a forty (40) kilometre radious of his headquarters
provided he is qualified to perform the work and
the salary maximum of the vacancy is not greate.r
than three percent (3%) above nor twenty percent
(20%) below the maximum salary of his
classification. +elocation expenses shall be
paid in accordance with then provisions of ~the
Employer's policy.
.The Union took the position that the element of- "mutual
consent" which must exist for this provision to apply,
required the consent of the Union, and not that of the surplus
employee.
Because .the Union did not, give its:consent. to the I
assignment of Mr. Ewing to Barrie, it was submitted, Article
24i2.2 did not apply and the "override" of the job posting
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provisions set forth in the related subsection of Article
24, *, Article 24.13, likewise was inapplicable. Article
24.13 reads:
4.
24.13
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.
Since this "override" was ineffective in the present case,
the Union submitted, it was incumbent upon the Ministry
to post the job in Barrie and allow interested employees
to compete for it.
The Ministry resisted the submissions of the Union
on, inter *, the following grounds: It was argued that
the consent referred to in Article 24.2.2, above, was that
of the employee, and not the Union. Secondly, it was argued
that, in any event, there was no need to post the job in
Barrie because no "vacancy" existed in that location, within
the meaning of the posting provisions of Article 4.1 of
the collective agreement. This provision reads, in pertinent
part, as follows:
4.1
When a vacancy occurs in the Classified Service
for a bargaining unit position or a new classified
position is created in the bargaining unit, it
shall be advertised for at least ten (10) working
days prior to the established closing date when
advertised within a ministry, or it shall be
advertised for at least fifteen (15) working days
prior to the established closing date when
advertised servicewide. All applications will
be acknowledged. Where practicable, notice of
vacancies shall be posted on bulletin boards.
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Because a "vacancy" must occur bef,ore Article 4. .l comes
into play, the Ministry submitted, it didn't matter whether 1
Articles 24.2.2 and 24.13 applied. The job .in Barrie still
would not have been required to be posted.
After giving the matter careful consideration, we do
not believe that it will be necessary to 'reach the second
submission of the Ministry, above,, in order to resolve the
present case. Assuming arquendo that a "vacancy" did exist
in Barrie, it would appear that Articles 24.2.2 and 24.13
of the collective agreement nevertheless applied effectively
to override the job posting requirements of Article 4.
On balance, it seems tha~t the element of "mutual
consent" in Article 24.2.2, does not .require the consent
of the Union. It solely requires the consent of the surplus
employee. This interpretation seems most 'consistent with
the overall scheme of Article 24. The entire focus'bf this
Article is upon su.rplus employees. It attempts to provide
job security for them by giving them prio;ity in filling
certain vacancies within and without their Ministries. Article
24.13 makes it' clear that in order to provide' this form
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of jobs sedurity to surplus employees, both' Union and
management agreed to forego any rights they might otherwise
have had to require such vacancies to be filled with more
desirable candidates.
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Given this concentration of Article 22 upon the rights
of surplus employees, it would seem most natural to infer
that the parties intended any reference to consent to involve
that of the surplus employee. And indeed, a comaprison
between the wording of Articles 24.2.1 and 24.2.2 seems
to bear this out. Article 24.2.1, which addresses the
assignment of a surpius employee to 'I a vacancy in his
ministry within a forty (40) kilometre radius of his
headquarters.': does not require any mutual consent. It
mandates that if all requirements are satisfied, the surplus
employee "shall" be assigned to that position. In their
submissions, both parties tended to agree that this most
likely was because neither Union nor management believed
that being required to move to a job within a 40-kilometre
radius would occasion undue hardship to the surplus employee.
Article 24.2.2, however, presents a different story.
It addresses the assignment of a surplus employee to positions
beyond a 40-kilometre radius of his headquarters. As a
condition precedent to such assignment, however, "mutual
consent” is required. Again, both parties tended to agree
that this most likely was required because of the hardship
that would fall to a surplus employee in, e.g., having to move
his residence to a different location, and because moving
expenses might have to be paid by the Ministry which was
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involved. On this basis it seems self-evident that the
element of "mutual consent" must have been intended by the
parties to refer to the consent of the Ministry and the
surplus employee. Neither within the overall context of
Article 24 nor within the specific context of Article 24.2.2
is there any indication that one more consent, in the form
of consent from the Union, was intended to be required.
In the.present case, both the Ministry and the surplus
employee, Mr. Ewing, consented to his reassignment from.
Sudbury to Barrie. There was nothing improper about this
consent. On the evidence,
-Assuming arguendo that Mr.
the meaning of Article 4,
24.2.2 and 24.13 of the co
it was not induced- or coerced.
Ewing filled a "vacancy," within
n the office in Barrie, Articles
lective agreement applied
effectively to override the job posting requirements of
Article 4.
Because the entire case of the Union was predicated
upon the contention, that Article 24.2.2 required the consent
of the Union, and because we have resolved this contention
against the Union, it does not appear to be necessary for
the, Board to proceed further to consideration of other issues.
The Union, for example,~ did not place before the Board any
contention that t4r. Ewing should not have been assigned
to Barrie because in doing so, the Ministry exceeded the
bound of its management rights under The Crown Employees
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a.
Collective Bargaining Act with respect to assignment of
an employee to a position which might not constitute a
"vacancy" within the meaning of Article 4 of the collective
agreement. Without the benefit of full agreement upon such
an issue, so that the positions of the parties would be
made clear, it would not appear to be appropriate for the
Board to attempt to resolve it.
The grievance is dismissed.
DATED AT London, Ontario this
1984.
17 day of October.
R.J.Rob&, Vice-Chairman
B. Switzman, Member
A. Reistetter, Member