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Home My WebLink About1984-0662.Miller.85-05-30662184 IN THE MATTER OF AN ARBITRATION Under THE~CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (B. Miller) and Crievor The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer Before: R. L. Verity, Q.C. J. McManus L. R. Turtle Vice-Chairman Member Member For the Grievor: N. A. Luczay Grievance Settlement Officer Ontario Public Service Employees’ Union For the Employer: S. Barty Head, Personnel Service Northwestern Region, MTC Hearing February 11, 1985 5 2 - 2 - DECISION This matter arises from the Employer's decision in 1984 to demote and "red-circle" the Griever, 8laine Miller, under the authority of Article 5.3.1 of the Collective Agreement. The demotion was for nonidisciplinary reasons and allegedly resulted from a Ministry reorganization. The facts are unusual. At the time of the demotion, the Grievor was employed in the classification "Sig~n Painter Foreman" and was employed' at the Ministry's office at Sault Ste. Marie (District 18). The Griever's initial employment was as a Manual Worker in July 1957. Subsequently, he progressed through 'the ranks in various classifications including Sign Painter Helper and Sign Painter Journeyman. In 1973, he achieved the classification of Sign Painter Foreman.. The Grievor retained that classification until June 1984, at wh ich i , time he was demoted the classification of "Sign Painter" (formerly known as Sign Painter Journeyman). A Ministry reorganization occurred in 1977 which brought about regionalization. As a result, the North-West Region was established, which was comprised of three Districts, namely the Districts of Thunder Bay, Kenora and Sault Ste. Marie. The new regional office was located atThunder Bay. . i ‘F,. / - 3 -. Prior to 1 977, the Sault Ste. Marie area manufactured signs. However, as a result of regionhlization, the decision was made that the Sault Ste. Marie District would no longer remain a 'sign manufacturing district". Accordingly, District 18 became a "non-manufacturing district". ~Evidence presented by the Employer established that the Ministry equated sign painting to sign manufacturing. i 'Non-manufacturing districts, such as District 18. would be responsible only for the seasonal manufacture of signs. The sole manufacturing district in the region is located at Thunder Bay. That District has a sign manufacturing shop which produces signs throughout the year. The evidence establi~shed that prior to regionaliza- tion, the Grievor supervised two positions, with three incumbents ,in those two positions, and a summer staff. (. Presently, the Grievor is required to supervise only one subordinate. As of 1978, the Griever's job responsibilities involved the erection and maintenance of signs as opposed to 'the manufacture of signs. The evidence is clear that the responsibilities and duties of the Grievor's position hav undergone substantial change as a result of regionalizati e on. resulting from the Ministry reorganization took place in 1978, and that for some unknown reason the Grievor's position was not reclassified at that time. i - 4 - The employer called two witnesses in support of its position. The Griever's Supervisor, District Services Supervisor Gary Gardiner testified regarding the effect of the. Ministry's reorganization on the Sault Ste. Marie District. Mr. Gardiner stated that he assumed his present responsibilities in 1981. It was his testimony that the Griever's responsibilities had not changed since 1981. He testified that the Griever's position title changed in 1984 from "Sign Painter Foreman" to "Sign Erection Foreman". Ministry Classification and Pay Administration Officer, Gail Ihnat, testified that she prepared a Position Specific~ation and Class Allocation Form regarding the Grievor's position in 1984. The previous Job Specification form was dated July 1965. Miss Ihnat concluded that the Griever's position was atypical of the Sign Painter classification primarily because of the changqs .in duties brought about by regionalization. She testified that the Grievor was demoted following the issuance of the revised PositionSpecification Form. Miss Ihnat also testified that reclassifications The Employer was unable to offer any explanation for the delay in reclassification of the Grievor's position. The Union called no evidence, and chose instead to rely upon the evidence adduced by the Employer, During the Hearing, the Board, on numerous occasions, expressed serious concerns regarding the direction of the pro- ceedings. It appeared to US that the Parties were addressing different issues. Mr. Barty quite properly contained himself to the allegation of improper demotion, whereas Mr. Luczay posed questions in the format of a classification grievance. It was not until final submissions that Mr. Luczay advanced his principal argument in support of improper demotion - namely the substantial delay factor in reclassificating the Griever's position. On behalf of the Employer, Mr. Barty argued that the Grievor was demoted as a result of a Ministry reorganization and subsequent reassignment of.duties. In short, it was argued. that the Ministry properly applied the provisions of Article 5.3.1. The Union contended that the demoti primarily because of the delay involved. Mr. I that .in 1 984 the Employer could not support demotion under the improper on was Luczay argued i ,, - 6 - pretext of a reorganization that had taken place in 19 77 and 1978. However, the Union did agree that the Griever's duties and responsibilities had materially changed as a resul t of that reorganization. Alternatively, Mr. Luczay argued that in demoting the Grievor, the Employer had breached.the posting provisions of Article 4.1 or possibly the lay-off provisions .of Article 24. -The Art~icle in -question is Article 5. 3.1 which reads as follows: "5.3.1 Where the duties of an employee are changed as a result of re-organization or reassignment of duties and the position is reclassified to a class with lower maximum salary, an employee who occupies the posi- tion when the reclassification is made is entitled to salary progression based on merit to the maximum salary of the higher classification including any revis,ion of the maximum salary of the higher classifi- catiqn that takes effect during the salary cycle in which the reclassification takes place." Having considered the matter carefully, there can be no doubt that management hai the right to reclassify an employee, where the duties of the employee have changed or have been reassigned as a result of a reorga'nization. In such circumstances, the employee is entitled to the protections of red-circling, which affords the employee that protection for a limited period of time as. specified in the Article. Had the Ministry invoked the provi 5 ions of Article 5.3.1 at the time of reorganization, or with i n a reasonable period of time following reorganization, the Grievor's reclassification and the resulting demotion W ould have been justifiable. However, it is totally~inappropriate to reclassify an employee under the guise of a reorganization pursuant to Article 5.3.1 some 6 or 7 years after the fact. In the result, this grievance shall succeed and the Grievor shall retain his previous classification of Sign Painter Foreman. DATED at Brantford, Ontario, this 30th day of May, '1985. R. L. Verity, Q.C. - Vice-Chairman "L. R. Turtle" (See Attached Addendum) L. R. Turtle - Member I ADDENDUM I would have.added something that I believe is implicit in the award,for the purpose of clarification. “This award is in respect to this Grievor only and while the existing circumstances remain unchanged. The employer is free to exercise the contractural rights contained in article 5 of the Collective agreement and reclassify the job as and when the Grievor is no longer the incumbent or if changes are made to the job in the future.” Respectfully I L.R.Turcle