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HomeMy WebLinkAbout1984-0672.OPSEU.86-11-07IN TNE HATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TNE GRIEVANCE SETTLEMNT BOARD BETWEEN: Ontario Public Serviie Employees Union - And - The Crown in Right of Ontario (Ministry of Transpqrtation & Communications) Before: E. E. Palmer Chairman R. Cochrane Member E. Orsini Member For the Griever: A. Ryder Counsel Gowling & Henderson Barristers & Solicitors , For the Employer: .J. Zarudny Counsel Crown Law Office, Civil Ministry of the Attorney General Dates of Hearing: September 18, 1985 October 3, 1985 October 4, 1985 Employer AWARD The present arbitration arises out of a Union grievance filed by the Union relatin,g to certain assignments made by the Em- ployer which it claims were improperly carried out. This matter was not settled during the grievance procedure and so forms the basis of the present arbitration. ‘Hearings in relation to this matter were held in the office of the Grievance Settlement Board in Toronto on 18 September 1985 and 3 and 4 October 1985. At that time-the parties were offered an opportunity to present evidence and argument. In fact, at the conclusion of the third hearing it was .agreed that.written argument would be forthcoming to the Board. This was subsequently done. ': Given the nature of the case, it is useful to set out the actual argument of the parties at this pointas a basis for resolv- ing this matter. Thus, initially the arguments took the following form: THE UNION ARGUMENT THE FACTS 1. In 1977 Mr. Rays Illingsworth, head of the Construe-. tion Administration office of the Ministry's Central Re- gion, directed that certain construction administration work be done at the Regional Office at 5000 Yonge Street,. Willowdale. The work consists of four basic functions described as the processing.of force accounts, D4S Forms, materials and payments certific~ates. 2. Prior to 1977 this work was performed by bargaining unit persons.' Since 1977, in the four other regions within the Ministry, the work has been performed by bargaining unit persons who have been.variously classified. 3. In the Central Region the work occupies five'employ- ees on a full time basis. Until 1983 one employee exfr- ciied overall supervisory responsibility and 'the other four employees were assigned to one of the four functions noted above. All of the employees retained the classifi- cation and pay of their former positions and their assignments were made without reference to the job competition provisions~of Article 4. .Since 1977 approximately five employees of managerial status and thirteen bargaining unit employees have been signed to the work for periods normally lasting two years but ranging from a few months to five years. 4. On being assigned the employee would overlap with the previous occupant for a short period who would train the new assignee. Thereafter the employee learned on the job subject to normal supervision. It was Mr. Bob Guy's evidence that it was six months before he really understood the task assigned to him. 5. In 1983 the Ministry took the steps necessary to have two of the jobs classified by the Civil Service Commission and the job position name of "Construction Administration Technician" was assigned. This is a bargaining unit job which encompasses whatever super- visory component attaches to the work. Accordingly, since 1983 the remaining three positions only have been filled on a rotational basis by assignments which avoid..: the provisions of Article 4 of .the Collective Agreement. UNION'S POSITION 6. It is submitted that Article 4 of the Collective Agreement applies to the assignments as described above. The position should.not have been filled without a job competition as required by Article 4. The Union seeks a declaration to this effect. 7. Alternatively, should the Board rule that these assignments were training appointments pursuant to Section 18(l) of C.E.B.C.A., the Union submits that these appointments ceased to be training appointments after approximately six months, after which time the position involved no training whatsoever. The Union therefore seeks a declaration that .the continued occu- pancy in the position should have been subject to a job posting and competition as required by Article 4. ARGUMENT 8. 'The case deals with the relationship between Sec- tion 7 of CECBA, and Article 4 negotiated under it, on the one hand and Section 18(l) of CECBA on the other hand. This relatiOnsh,iD has been a subiect of a deci- sion by Mr. Shime in OPsEU and the Crow; in Right of Ontario (T/32/81). On the basis of this decision the Following observations can be made: -4- (a) (b), Cc) (d) All appointments or job assignments made by the Ministry need not come under the collective agree~ment. In particular Section 18 of CECBA entitles the, Ministry to make appointments for the purposes of training and developmerit. On the other hand Section 7 of'CECBA gives bargaining rights to the union respecting questions of promotions and tr,ansfers of employees. The exercise of these rights has resulted in Article 4 of the collective agreement. The Board and the Tribunal have recognized that overlaps exist between. Section 18 items and Section 7 items. If the matter falls outside Section 7 and within Section .18, then clearly the parties cannot, by agreement, cut down rights under Section 18. If, as here, the matter. falls within both Section.7 and 18, then the parties by agreement can cut down or "touch upon" the rights under Section 18. As noted the parties have; by Article 4. pro- vided procedures to be followed upon the exis, tence of a vacancy. Thus, where there is a vacancy Article.4 applies. There can be no training appointment where a vacancy.exists; otherwise the employer would be at liberty to circumvent the provisions of the Act and the Agreement by filling vacancies under the guise of training and development. 9. Thus, the determination of this case, it is~ submitted, depends upon an examination of the nature, of the appoint- ments made to determine whether or not they fill a vacancy within the meaning of Article 4 of the Agreement. If they do, it is submitted that the requirements of Article ,4 govern. OPSEU and Crown in right of Ontario - an unreported decision of the Ontario Public Service Labour Rela- tions Tribunal. Case No. T/32/81 10. It is the Union's submission that an examination of the appointments under discussion will disclose firstly that they are in the nature of vacancies, not training appointments, so that the effect of the appointments is to circumvent the act by putting the filling of vacancies beyond the reach of a provision in the Collective Agree- ment which was legitimately negotiated under the Act. THE NATURE Of THE APPOINTMENTS 11. It is respectfully submitted that the appointments -5- are .in the nature of vacancies as contemplated under Article 4 and comprise no training element whatsoever. 12. Arbitral jurisprudenc,e has clearly established that a vacancy arises whenever, in the opinion of the Employer, there is sufficient work in a particular classification to justify an employee performing tha,t work on a full-time basis. Pilkington Brothers Canada Ltd. (1976), 13 L.A.C. (2d) 287 (Burkett). Polymer Corp. Limited (1974), 5 L.A.C. (2d) 344 (Rayner) Loblaw Groceteries Co. Ltd. (1967). 18 L.A.C. 420 Tide Water Oil Co. (Canada) Ltd. (19631, 14 L.A.C. 233 (Reville) 13. Furthermore, an Employer's "declaration" that insuf- ficient work exists is meaningless if in fact his actions indicate otherwise: " Horton Steel Works Ltd. (1973). 3 L.A.C. (2d) 54 (Rayner) Tide Water Oil Co. (Canada) Ltd., ~upra 14. In the .facts at hand, it is submitted that there are several fact0r.s which indicate that the Employer considers there to be sufficient work available to justify the filling of a position: (a) the position has always been filled by a full-time employee; (b) there has never been a vacancy in this posi- tion for any significant amount of time; (cl after the job is supposedly "learned", the incumbent remains in the position on a full- time basis so as to perform the work. As the Employer's cond-uct points towards the need to per-. form sufficient work adequate 'to justify the filling of the position, it'is submitted that a vacancy i,n the con- text'to Article 4 exists. 15. -It is further submitted that the positions in clues- tion dare not in the nature of training appointments what- soever. It is to be observed that the usual characteris- tics of a formal training period are lacking. fin particu- lar. it is worth noting that training programs generally: -6- (a) are highly structured and organized; (b) are usually on a particular duration, which duration is usually the same for all the candidates: (c) usually involves formal evaluation at pre- arranged intervals; (d) usually have pre-set goals or standards to be reached; (e) involves considerable instruction, usually oral; (f) usually involves teaching of particular skills or knowledge. The Union submits, therefore, that the position does not appear to be in the nature of "training and development" as it exhibits none of these characteristics. Pacific Dental Ceramics Ltd. (1980), 27 L.A.C.~ (2dJ.l (Larson) Gardner-Denver Company (Canada) Ltd. (19691, 2.0 L.A.C. 161 (Palmer) Canadian Westinghouse Company Ltd. (1962). 12 L.A.C. 270 (Thomas) John Inglis Company Ltd. (1959), 9 L.A.C. 308 (Curtis) De Havilland Aircraft Ltd. (1962). 12 L.A.C:325 I Cross ) $6. ,It is respectfully submitted.that these appointments ~were not made for training purposes. While it is acknow- ledged that there was a period of familiarization in which the employees may have acquainted themselves with the routine and details of the job, it is submitted that this does not constitute "training". Arbitrators have recognized that most ordinary jobs require "familiari- zation". Such "familiarization" have consistently been distinguished from formal training. Gabriel of Canada Ltd. (1978), 20 L.;A (Kates) Lake Ontario Steel Company Ltd. (1975 (2d) (Hinnegan) RCA Victor Co. of Canada Ltd. (1970). (Simmons) . ) C. ,(2d) , 10 L. 22 L.A. 168 A.C. C. 329 -7- International Nickel Co. of Canada,Ltd: (1970), 22 L.A.C. 210 (Brown) 17. Inassessing the purpose behind the appointments in .this case, it is significant to note that the number of "trainees" has always equaled the number of jobs to be performed. In OPSEU and The Crown In Right of Ontario, the Board observed a lack of correlation between the number of trainees and the number of openings projected to occur in a classification was an indication that the Employer's intent wars in fact to train. It is implicit in this decision that it is an indication that training is not taking place where the Employer anticipates that ~thezwill be a job opening for each trainees in the classification in which he is being trained. OPSEU and The Crown In Right Of Ontario (Ministry of Transportation and Communication) - Unreported Decisionof the Grievance Settlement Board dated October 20, 1982 at p. 12. 18. It is suggested that these "appointments" at most provided familiarization and experience to employees. Any employee who might "work his way up from the bottom" would benefit from such "experience" each and every time he was promoted. TO allow the Employer to unilaterally desig- nate a position as "training and developmental" sim'ply because it provided this experience would be to allow the Employer to, escape the job posting, requirements whenever he so chooses. 19. In the event that the Board does, however, determine that these appointments involved a,period of training, the Union submits that the evidence discloses that the "train- ing element" be regarded as terminated after approximately six months. It is suggested that at this point a vacancy arises and the job posting provisions of Article 4 should 'be invoked. This would not interfere with the Employer's right to make training appointments. It would simply en- sure that a position which came within the purview of the Collective Agreement only be removed to the extent nec- essary to accommodate a period of training. 20, It is respectfully submitted that the Employer should not be able to remove positions from the scope of the Collective Agreement by simply introducing. a short period of ,training for any.particular position. Requiring the Employer to submit to Article 4 after the training period was completed would avoid such a situation. Furthermore, it is suggested that such an approach would not offend Section 18(l) of C.E.C.B.A.~ The Employer's exclusive Function to determine training appointments would only be "touched upon". The Employer would still be left with the function of determining the durations of the training, , I -a- but would be precluded from allowing the incumbent candidate to simply "fill the vacancy" once his training period had terminated. 21.. Pdr all the above, it is respectfully requested that the Board declare that the provi,sions of Article 4 should have been invoked in the filling of these positions. FINAL SUBMISSIONS BY THE EMPLOYER THE FACTS 1. OPSEU tendered three witnesses in an attempt to establish that the assignments of Messrs. Bob Guy and Tom O'Neill to the Construction Administration Office in Toronto were not made primarily for "training" or "development", within the meaning of section 18(l) of the Crown Employees Collective Bargaining Act ("C.E.C.B.A."). 2. With respect to the assignment of Bob Guy, which ~.. commenced January11981 and ended in February 1984'. the evidence clearly established the following: a) the assignment was VOLUNTARY; b) the assignment was at all times TEMPORARY c) his assignment was intended, at all times by the Employer, primarily .for developmental purposes (within the meaning of the word 'develooment ins the Crown Employee; Collective Bargaining Act, 5. 18(l) - namely, the primary purpose of the assignment was to expose field staff like Mr. Guy to con- struction administration functions and,experience that staff would not be exposed to in the field and also t,o enhance their career opportunities - in.short, to make them better at their field jobs .as 'Technicians - 1 .Construction'; d) with respect to the length of Mr. Guy's assign- ment: i) t~he testimony of Ray Illingworth (who testi- fied for the Employer) es.tablished that: - the 2-year period set for Bob Guy's assignment contemplated his being rotated among four functions in the Toronto Office: - it was left to the initiative of each employee (like Boy Guy) to ensure his con- -9- tinued exposure to development functions; - Boy Guy's Z-year period was ext.ended by one year with his approval for a Legitimate management purpose - namely, to co-ordinate assignments better and to extend his devel- opment: - at no time was Ray Illingworth advised by Boy Guy that he ,had ceased to receive beneficial development; ii) the testimony of Bob Kant (who testified for the Employer) established that: - Bob Guy understood from the beginning of his assignment that it was temporary and for a 2-year period; - after the first year of Bob Guy's assign- ment, Bob Kant offered to extend Bob Guy's assignment by one additional year (to allow better co-ordination of assignments to the office and to continue Bob Guy's develop-.., ment) and Bob Guy accepted; - at that same point in time, Bob Kant asked Bob Guy if he should be rotated to a different function in the office but Bob Guy declined and Bob Kant was led'to believe that Bob Guy had not stopped receiving 'de- velopment' re: "B-4-S's"; .- Bob Kant established that~ as far as he was concernedi Bob Guy had not stopped re- ceiving 'development' as of that point in time; - Bob Kant also established Bob Guy did not want. to rotate because he was about to receive additional development in respect of a new computer system; - had Bob Guy in fact been rotated among all four functions in the office, he would not have stopped receiving 'development' even after the 3-year period of his assign- ment. 3. Bob Guy admitted in cross-examination that both Ray Illingworth and Bob Kant were in the best position to say when, if at all, Bob Guy stopped getting 'development' during his voluntary assignment to the Toronto office. 4. Bob Guy also admitted in cross-examination that even after the three-year assignment ended, he had not been exposed to all of~the functions in the Toronto OfEice. - 10 - 5 *. With respect to the assignment of\Tom O'Neil, which commenced April 9, 1984 and continued until the date of the hearing, the evidence clearly established that this assignment ~occurred after the date of the Union grievance dated April 6, 1984. 6. Even if Tom O'Neil's testimony were relevant to this case, ~the evidence established that: a) his assignment was VOLUNTARY: b) his assignment was at all times TEMPORARY; and cl his assignment was ,intended, at all times by the Employer, primarily for developmental purposes (within the meaning of the word "development" in section 18(l) of CECBA~). 7. Mr. O~'Neil admitted in cross-examination that, although he was competent to do 'force accounts' after one year, he still viewed his assignment, as of 'the date of the hearing, to the Toronto Office as 'developmental' and would like to be exposed to the other functions ins the Office. 8. Clearly, as of the date of the grievance, Tom O-Neil was on a developmental assignment and had not stopped re- ceiving "development". At no time did Mr. O'Neil ever ad- vise management .that he, had stopped receiving 'development'. 9. There was no evidence that the Ministry was aware, prior to the hearing before the Board, that Bob Guy's (or Tom O'Neil's) selection of a function in the Toronto Office stopped being.developmental prior to the anticipated end of the assignment, and that accordingly, Mr. Guy (or Mr. O'Neil) should have been rotated within the office to a different function or returned to the field. 10. Contrary to the Union's statement of fact in para- graph 3 of its Argument, there was no evidence that devel- opmental assignments were ever made for any period of time which even approached "five years". Even .if this were true, the issue would be whether development in fact stopped in those cases and whether the Employer was aware of that, but continued the assignments regardless. 11. The evidence clearly established that the kind of "training" referred to in paragraph 4 of the Union's written Argument was merely orientation. In addition, the evidence clearly established that while it took at least 6 months for Mr. Guy to become exposed to the 'D-4-S' function, it took at least one and a half-years or more before be was competent at that one function.~ Mr. Guy admitted that he never stopped learning or growing - and in that sense developing. - 11 - 12. The statement of fact in paragraph 5 of the Union's written Argument does not accurately reflect the evidence and should read as follows: "The evidence established that from 1977 to 1983, the Ministry had made no final deci- sion as to how or by whom the work in the Toronto Construction Administration Office would be done - except that during.that time the work would be utilized for 'development' purposes pursuant to C.E.C.B.A., s. 18(l). The evidence further establishes that in 1983, as soon as the Ministry made a decision that the work which had been done by management assignees would no longer be the subject of developmental assignments and was to be performed by two incumbents classified within the bargain- ing unit, the Ministry declared two positions to " be in existence and vacant and posted the vacan- cies in accordance width the procedural requirements of Article 4. ; " The evidence establishes that since 1983, the Ministry has continued to have certain work done in the Toronto.Office by way of 'developmental' assign- ments and that its intention to utilize this work for this statutorily approved purpose has never ceased. In addition, there is no evidence the Min- istry has yet made any.decision pursuant to its other statutory management rights under C.E..C.B.A.,~ s. 18(l) as to how the work in the Toronto Office (other than the work assigned to the ,two classified positions) will be performed in the future." 13. There was no evidence before the Board that the Employer- had exhausted its supply of legitimate candidates for developmental assignments to the Toronto Office, as of the grievance - or as of the hearing. '14. There is no ev~idence of any conduct by the Minis- try which.could beg viewed as negating the positive..evidence that the work to be done in the Toronto~Office was intended .to be used for developmental purposes - as opposed to simply getting work done. Accordingly, the evidence establishes that the Ministry decided to make these assignments pursuant to its statutory right under C.E.C.B.A., section 18(l) for 'developmental' purposes and that it intended to continue to.do subject to its statutory right to change its mind at any time and assign the duties in some other manner. - 12 - 15. There is no evidence before the Board that the Employer at any time advertised any vacancy and es- tablished any closing date without complying with Article 4. THE EMPLOYER'S POSITION THE 'REAL ISSUE' 16. In Paragraph 8 of its written argument the Union admits that C:E.C.B.A., s. 18(l) provides the Employer the exclusive right "to determine training and development" and that therefore matters relatings to employee 'develop- ment' "will not be the subject of collective bargaining" and "[will not1 come within the jurisdiction of a board" (c.E.c.B.A., S. 18(l)). 17. The word "board" in section 18(l) is defined in C.E.C.B.A., s. l(l)(c) and includes both an interest rights board established under C.E.C.B.A., s. 11 and a panel of the Grievance Settlement Board established pursuan:t to C.E.C.B.A., S. 19(l)., 18. The grievance ~form (dated April 6. 1984) alleges that "the.practice found in the Ministry memo dated December 14, 1983" (which is.Exhitit 2) represents assignments which violate Article 4 because they wer~e made without the posting of a competition. 19. The memorandum dated Dec~ember 14; 1983 (Exhibit 2) clearly represents an expressed intention by the Employer to do what C.E.C.B.A., s. 18(l) states, is the exclusive res- ponsibility of the Employer - namely, to determine the 'training and development' of staff. 20. It is submitted that the evidence before the Board is totally consistent with the intention expressed in Exhibit 2. 21. The main thrust of the Union's argument (para- graphs 8 to 18) - and until the hearing before the Board the only thrust - was that the assignments in question (ie. of field staff - Technician-l-C's to the Toronto Construction Administration Office) were not of a 'training' or 'develop- ment' nature. 22. However, it is submitted that, by the testimony heard on October 3rd, 1985, the evidence clearly estab~lishes. that .the primary purpose of the assignments in question was to improve the working skills of the Technicians (Tech.-l-C's) who were assigned and was accordingly for "development" within the meaning of C.E.C.B.A., s. 18(l). - 13 - 23. Apparently, the Union prefers to ignore the statement made by the Chairman of the Board on October 3rd, 1985 to the effect that this is so. The Employer accepts the statement by the Chairman and prefers to address the real issue in this case. 24. If the foregoing were the only question raised before the Board then the Union grievance would 'surely be dismissed in accordance with the ruling of the Divisional Court in the case of Brick and Roth (G.S.B. File #244/82, 245182 and 326/82) (attached at Tab 1) where the Court stated "If the subject of the grievance was within the.right of management as a matter of training and development, [the Board] had no jurisdiction", 25. 'Although the grievance form itself does not raise the issue of.what, if any, legal obligations the Em- ployer has when a'developmental assignment ceases to gen- .erate 'development', the Employer is content to have the Board address what will be referred to as the real issue. 26. It is submitted that a determination of this 'real issue' by the Board did not really require .the hearing of evidence. The~Board need not make any findings of fact such as whether Bob Guy stopped receiving 'development: within the plain and ordinary meaning of that word (and which by the Tribunal decision in T/32/81,at page 7 is different from 'training'), in order to address this issue. The Board need only assume a situation where an employee who receives a developmental asignment ceases at some point in time, prior to that anticipated by everyone, to receive 'development' - unknown to everyone except possibly the employee. 21. The Union has attempted to deal with the real issue in paragraphs 19 and 20 of its written argument. 28. The thrust of the Union submission in paragraph 19,is that at the moment any particular employee on a devel- opmental assignment ceases to receive "development", a "va-~ cancy", within the meaning of Article 4.1 of the Agreement, ' exists as a matter of law and the Employer must run a compe- tition before it,can.continue to have that work done. 29. It is submitted that the Union submission logically suggests that whenever 'development' ceases in a particular case (with or without the knowledge of the Employer), if the Employer fails to run a competition be- fore it continues to have the work done it must be held to have violated Article 4.1; or if the Employer assigns an .employee to do the work for mbre than eight consecutive days'it must be held to have violated Article 6 (assuming that the work done can be related to "the duties of a position in a classification with a higher salar,y maximum"). .* : - 14 - 30. It is submitted that the true and ulterior purpose of the Union is to relieve this Employer of those statutory and exclusive rights (including rights in respect of 'training and development' as well as other management rights with respect to having,work,done) which may be ex- ercised by the Employer at any time - whether during or at the end of any developmental assignment. Accordingly, the Union's true purpose is to accomplish indirectly (by griev- ance arbitration) that which it is statutorily prohibited from doing directly (by collective bargaining). NATURE OF THE EMPLOYER'S RIGHT TO ASSIGN STAFF FOR "DEVELOPI4ENT" 31. It is submitted that the existence of (1) the statutory management rights clause in the form of C.E.C.B.A., s. 18(l); and (2) Article 27.14 - which prohibits the Board from adding to or amending the Collective Agreement; leaves no room in law for any implied term that this Employer must make decisions, in respect of 'training and development' (or any other exclusive management right), fairly and with-' out discrimination. Re Metropolitan Toronto Board of Commissioners of. Police (1981) 124 D.L.R; (3d) 684 at 687 (Ont. C.A.) [Tab 21 Note: Leave to appeal to S.C.C. refused 124 D.L.R. (3d) 684n. 32. Clearly, 'development' assignments are not subject to C.E.C.B.A., s. 7 and the Employer's exclusive functions regarding them are not subject to collective bargaining, so that neither Article 4 nor 6 nor any other Article could restrict this Employer with respect to such assignments. ’ 33; For the Board to accept theUnion argument in paragraph 8(d) that "there.can be no training [or develop-. ment] assignment where a vacancy exists would result firstly in a circular 'chicken and egg' type of analysis to deter- mine which comes first the 'vacancy' or the 'developmental assignment'; and secondly, (and more significantly) in the Board ignoring the predominance of C.E.C.B.A., s. 18(l) - which has been confirmed in the Tribunal case #T/32/81 appended to the Union argument. 34.~ It is submitted that absent bad faith or some illeg,al form of discrimination'this Employer has the exclu- sive,function of making 'development' assignments and deter- mining their duration. 35. There is no evidence before the Board of any such bad faith or illegal discrimination by th,is Employer in setting the duration of particular developmental assign- ments. , 36. If evidence should reveal in any pa,rticular case that this Employer made a mistake in.setting the duration of a developmental assignment then: (a) if the mistake is brought to the attention of the Employer before the assignment ceases then logically the Employer should correct the mistake lest it be accused of acting in bad faith (Note: this situation was not estab- lished); or (b ,) if the mistake is brought to the attention only after the developmental assignment has expired then the, Employer can hardly be criti- sized for not having corrected 'the mistake in time - let alone be accused of a violation of an Article of the Collective Agreement which represents only one of many ways the Employer might have dealt with the situation. OPTIONS AVAILABLE TO THE EMPLOYER WHEN A DEVELOPMENTAL ASSIGNMENT CEASES TO GENERATE DEVELOPMENT 37. The Union's submission ignores the fact that when a developmental assignment .ceases to be developmental this Employer has certain statutory- rights and duties, which, if exercised, may never result as a matter of law in the crea- tion of a 'vacancy' for purposes of Article 4.1. 38. It appears clear that the Union does not dispute the right of this Employer to replace or substitute employ- ees doing certain work by way of 'developmental assignment', one after the other. 39. It also appears clear from this Board's award in 'File #519/84 that this Employer may assign certain work to non-bargaining staff without creating a 'vacancy' for pur- poses of Article 4. 40. Nonetheless, the thrust of the Union argument is that at.the very moment that. an employee's 'development' ceases (something which will vary in each case depending upon the individual employee and the nature of the assign- ment) a 'vacancy' arises in law, regardless of the knowledge, intention or economic viability of the Employer, - and a com- petition must be held. - 16 - 41. Logically, the Union's submission would have the Board declare that whenever there is work to be done, a 'vacancy' exists until such time as management has exhausted allof its management rights to have that work done without running a, competition. Such an analysis ignores the statu- tory scheme of things under C.E.C.B.A.. 42. I The Union's position ignores the fact that although there may be work that could or should be done, the Employer and only the Employer, by virtue of statutory powers and duties under C.E.C.B.A., s. 18(l), may decide for example whether or not the bundle of duties will be the subject of a permanent job, or whether it will be performed by civil servants at all. 43. The thrust of paragraph 20 of the Union's written submisSions is. that the,Employer should not be able to know- .ingly and intentionally,evade Article 4. The fact situation which the Union addresses but which is not before the Board is where'an Employer has knowingly and intentionally kept employees in developmental assignments after it knew that development had ceased. There was no such evidencein thi.s case. 44. It is submitted that this Employer has the statu- tory right to.exercise any one off at least the following 10 management rights - either during or at the end of a developmental assignment: (al Alter or broaden the assignment to again generate 'development (for the employee); teg. re: Bob Guy. the 'Ministry might have required him to learn "force accounts" - if in fact he had Stopped receiving 'development and if the Ministry knew); (b 1) End the assignment of the ‘particular employee and do one or more of the following: i) no longer have the work done; ii) substitute a different employee by a new developmental assignment; iii) .divide the work up and re-assign the work to existing employees (eg. the remaining employees on developmental assignment); iv) re-organize the operation and assign the work to another department; VI assign the work to non-bargaining unit staff (GSB Award in #519/84): vi) privatize (contract out) the work to the private sector): vii) assign the work to contract (unclassified) staff [C.E.C.B.A., s. l(Ll(f)(vii)l; . i viii) create a classified position and assign work temporarily to staff - in accordance with Artic le 6 (no competition required); and ix) create a classified position and post -17- the position as a 'vacancy' to be filled in accordance with Article 4. 45. It is submitted that although there may be adequate work to occupy someone, no '~vacancy' is, created until this Employer has at least been made aware that a particular employee is no longer receiving 'development' and has the opportunity to exercise one or more of the ten foregoing rights to have work done in a particular way.' 46. For the sake of argument, the parties and the Board could have assumed a fact situation where at some point in time, unknown to anyone else (including the Em- ployer) an employee (like Bob Guy or Tom O'Neil) ceased t0 receive 'development "prior to the anticipated end of his developmental assignment. 47. On that basis, the Employer could accept a declar- ation by this Board that whenever the Employer learns that MY such 'development has ceased it must elect to exercise at least one of the ten rights set out in paragraph 41 - and that by failing to do so and by continuing to have the work done by the same employee (knowing the assignment is no longer developmental) the Employer is put on notice that it may be exposing ~itself to an Award that could hold.that the Employer attempted to circumvent Article 4 by saying one thing and doing another - and thereby in fact violating Article 4. 48. It should be quickly noted that there are no such facts in this case. 49. Alternatively, it is submitted~that the Ministry policy and practice of rotating 'Technician-l-Construction' field staff constitutes a switching of staff and accordingly creates no 'vacancy' within the meaning of Article 4.1. Tab 3 - OPSEU (M. Thompson) v. Crown in Right of Ontario (MTC) GSB #141/84 (Roberts) - at page 5. so. As the Roberts panel in the Thompson case noted (at page 5 - Tab 3) the practical consequences of adopting the Union's position would be that, for example, in the Toronto Construction Administration Office, every.two years -18- the Ministry may have had to make up to 5 postings and that the associated costs might have deterred the Employer from continuing the rotation scheme and providing what Mr. Guy himself described as valuable experience for field staff. 51. submit ( (' 1. For all of the above reasons, it is respectfully ted that the Board should either: a). dismiss the grievance as failing to establish any violation of the collective agreement; or b) declare that when a developmental assign- ment ceases to be developmental and the Employer is aware of that fact then the provisions of Article 4.may only come into effect when the Employer has either elected not to exercise or has exhausted its remaining exclusive management rights and continues to have the work done. RESPONSE OF THE UNION Re: The employers paragraph 2(a):' It is - submitted that the questlon ot whetner tne 'asslgnmenrs were voluntary is irrelevant to the factors bearing on the application of Article 4 of the Agreement or Section 18 of the Act. With respect to the employers 'paragraph 2(b): It is submitted that the question of whether the assign- ments were temporary is also irrelevant to the issues before the Board. Temporary assignments are specifically dealt with elsewhere in the Collective Agreement and "Temporariness" is simply not a factor bearing on the application of Article 4 or Section 18. 2. Re: The employers paragraph 2(c): It is sub- mitted that the employers intention is also an irrelevant *factor to the application of Article 4 for Section 18. In any event the employers intention, ~following the organiia- tion in 1977, was to fill vacancies in bargaining unit work in a way that re-moved the jobs, from the bargaining unit, so that they could be assigned to employees selected from the field. Thus the fundamental issue created in this case is whether management has the right to convert bargaining unit jobs to non bargaining unit jobs; as occur- red here. It is submitted that management's intention' to breach the 'collective agreement cannot justify having done So. ,-19- 3. With respect to the Employer's paragraphs 3-15 it is apparent that they reflect a different view of the evidence heard by the Board and no more,can be done save to repeat the facts asserted by the union. REPLY TO THE EUPLOYERS ARGUMENT AS TO THE ISSUES PRESENTED IN THIS CASE ,~ 4. The union respectfully disagrees with the charac- terization of the issues set out in the employer's sub- missions. 5. It~is submitted that every grievance which investi- gates the contest between section 7 and 18 of the Act must determine two questions where Article 4 is the product of the exercising of rights under Section 7. The first question is whether the original appointment fell within Article 4 or Section 18. Its cannot fall under both. A lawful appoin.t- ment under Section 18 cannot be a breach of Article 4 be- cause the parties have agreed, in exercising bargaining rights under Article 7, that the filling of vacancies will be governed by Article 4. Its therefore must follow that vacancies cannot be filled by training appointments. :. 6. I submit that this is not a case of' Article 4 over- riding Section 18. Rather it is a case where the parties have determined that the overlap between Section 7 and 18 shall be resolved (when it comes to filling vacancies) by the procedures in Article 4. I. Indetermining whether an assignment falls within Article 4 or Section 18, therefore, it is necessary to determine if a vacancy exists. Surely the Ministry errs, when it implies in paragraphs 3 to 9, that the existence of any training neg~ates the notion that a vacancy is being filled. .Most jobs require training. Thus .it cannot be said that'"Section 18 training" continues so long as the employee continues to experience something new in the job. 8 ., It is submitted therefore that where the training 'consists of an orientation period. after which' the employee is obliged to perform the task on his own ., subject to dipl- inishing supervision, the training does not qualify under Section 18. The reason it does not qualify is that it is the type of training that attaches to all assignments within the bargaining unit. 9. It is submitted that to qualify for training in the sense required by the Section 18, the trainee will not be occupy.ing a bargaining unit job, he will not be taking a job from the bargaining unit and he will not be filling a vacancy in the bargaining unit. >. 1' - 20 - .lO. Thus it is submitted that the key to character- izing a job as training, or not training, within Section 18, is whether the encumbent is required to do the job as well as to learn how to do it. If the occupant must do both, then a bargaining unit position has been filled and Article ,4 ought to apply. This I submit is the ratio in .the Brick and. Roth decision before the GSB which was attached to the union argument in chief (CBP 11-12) 11. It is submitted that a second issue is possible in the contest between Section 18 and Article 4. It has been referred to by Mr. Zarudny as "the real issue". I submit however ~that it only arises if the original appoint- ment began as training within the Act. If this is so, the trainees responsibility will not.include the responsibility to perform bargaining unit work; rather the encumbent is obliged only to learn how to do it. Where the trainee "takes over" and assumes the responsibility to perform the work, then he or she is filling a bargaining unit job and at that stage a competition under Article 4, in our submission, is required. ._ REPLY ON THE NATURE OF THE EWPLOYERS RIGHT TO ASSIGN STAFF FOR DEVELOPMENT 11. It is submitted that~the employers right to make a training and developmental appointments is absolute provide that the appointments are properly characterized as training and development under Section 18. As I say, it is the union‘s contention that the appointments~ in this case ~cannot properly be characterized astraining appointmentsunder the Act and therefore Article 4 ought to have applied. REPLY ON THE OPTIONS AVAILABLE 12. This section of the employees argument, as in the others,~ reveals the fundamental difference between the union's approach and the employer's approach. Basically Mr. Zarudny ' assumes the bargaining unit work, this is work which for years has been performed by bargaining unit people, can be performed in a matter that escapes Article 4 of the Collec- tive Agreement provided the encumbent is receiving a learning experience. The union on the other hand submits that the right to make training appointments was never intended to be used to,remOve bargaining unit jobs from the scope of the collective'agr.eement. Thus, in short, the union says that the Ministry cannot fill vacancies, as it has done here, by rotational appointments. Apart from restating this fundamental difference in the approach. of the parties it is submitted that no. useful purpose can be gained by answering the ~employers submissions on a paragraph by paragraph basis, in the section of Mr. Zarudny's argument. THE DECISION OF THE BOARD A resolution of this matter must start with an analysis of the Crown Employees Collective Sarqainins Act, R.S.O. 1980, c.108 [hereinafter called "the Act"]. There, as pointed out by the Union, generally speaking, pursuant to Section '7, all matters relating to the representation of~employees within the bargaining unit are subject to collective bargaining and, when a collective agreement is reached, such is deemed to cover all, aspects of the employment '~. relationship between the parties and is binding upon and enforce- able upon employees within the bargaining unit. The only exception to this position is that such is subject to the limita- tions imposed by Section 18(l) of the Act, the relevant parts of which read: 18. - (1) Every collective agreement shall be deemed to .provide that it is the exclusive function of the employer to manage, which function, without ,limiting the generality of the foregoing, includes the right to determine.'. . (b) . . . training and development . . . The governing principles of which are subject to review by the em- ployer with the bargaining agent. and such matters will not be the subject of collective bar- gaining nor come within the jurisdiction of a board. It is t,rite to observe, therefore, that this Board does not have jurisdiction to deal with questions of "training and detielop- ment", even though such affects members of the bargaining unit as 'is argued~by the Employer in the case here. No one can dispute the underlying, proposition.. The problem for this Board is whether - 22 - the present factual.issues disclose that we are dealing with a case bf "training and development." In our view a determination of this issue, in a positive sense, requires us to examine what the Employer was requiring these employees.to do and to assess whether such can be reasonably charac terized as "training and development." I~f it can, this Board must conclude it has no jurisdiction to deal with this grievance:,if it cannot, we must proceed to examine the question of whether these actions constitute a breach of the governing language of the collec tive agreement. Before turning to this examination, the Board wishes to make ': certain observations. First, it is our view that whether employees undertake work voluntarily is irrelevant to the present issue. While such might affect individual relief, it cannot validate an otherwise obvious violation of the collective agreement. The Supre Court of Canada has made it clear that some form of agreement betwe employers and individual employees cannot supercede the governing coliective agreement: Syndicat Catholique des Employe's de Magasin de Quhbec v. Compagnie Paquet Lte'e, [1959] S1C.R. 206, 18 D.L.R. (2d) 346, 59 C.L.L.C. 15,049. In short, an employee's agreement to violate the collective agreement does not justify the violation. Second, the question of whether an assignment is "temporary" is not disposi.tive of the present issue. While it may be the case that training assignments are, by .their nature, temporary,. not all temporary assignments are in the nature of training. Third, we do not accept the view that the "intent" of the Employer is conclusive of the issue before us. Such intent is -, me en S - - 23 - obviously relevant to issues of bona fides, but that, in our view, is not the question here. The objective facts are what determines whether a person is receiving "training" or "development"; wishing doesnot make it so. What, then, is meant by the term "training and development"? The resolution of this matter is not an easy one, but it is essen- tial to determine whether we have jurisdiction.in this case. For- tunately, there are a number of areas where support is found. First; we would note the obvious: "training" must be~consid- ered as something different than "development." Normal canons of interpretation suggest that, if possible one should not find redun- dancy in the use of words: e.g., Re DeHavilland Aircraft,'11 L.A.C. 350, at p. 352 (Laskin, 1961). In this case, the distinction is clear. "Training", in our view, relates to a process where a person is developing the skills to do a job; "development" to processes for the enhancement of existing skills. Obviously, there is a .possibility that the former might be subsumed by the latter, but the conjunction of the two suggests such a result. Also the defini- tion of the former fits easily into the well-known distinction in arbitral jurisdiction between "familiarization" and "training" periods for jobs: e.g., Re RCA Victor, 22 L.A.C. 329 (Simmons, 1971). The~problem with both these terms is that, while the former term may have a more limited connotation, in one sense the latter always exists. Jobs, it seems, are always changing. It follows that one must always be "developing" old skills and learning neb ones in order to be able to 'adequately perform the work of an existing position. It follows, In our opinion, that for the Em- . . ,* - 24 - ployer to make use of the exception of Section 18(l) of the Act one of two situations'must exist: either,persons must be undergoing "training" to prepare themselves for existing jobs; or they mustbe undertaking 'ldevelopment" activities in relation to or in conjunction with an existing position. < Turning, then, to the exist~ing case, it seems clear that in the situations shown by the evidence these employees were not undertaking "training" in the sense expressed above: they were not learning how to do a .job they would move into at some later date. Rather, they were being given additional experience which hopefully would make them better and more useful employees because of their broader experience in related fields to their normal jobs. Again, this experience would also provide a pool of "trained" employees for the job in question should such be needed. There can be no question, then, but that the objective sought to be achieved by the Employer related to "development." The issue that remains, however, is whether the methods used to achieve the.objectives can be upheld as still constituting "devel- opment." We do not believe such was the case. In our view, without dilating on the evidence, the extensive time for which employees were placed in this "developmental" position seems~inconsistent with that characterization. As asserted by the Union, in essence the,position was permanent. As pointed out earlier one "develops" while holding a permanent position. Here, given the time spent in this position, one~can hardly state that there is a permanent posi- tion to which a "developmental" programme is attached. , ‘( ,. - 25 - The final issue, then, is what remedy should flow from such a finding? Here there are two solutions proposed ~by the Union. The first of these was a declaration that these jobs ini- tially should have been subjected to a job posting under the coll- ective agreement. we cannot accept this. In our view,~ the Em; ployer was within its rights to establish a job such as this to attain "developmental" goals, i.e., to enhance~the experience of otherwise employed members of the bargaining unit. The fault., so found by us above, in so doing was to maintain persons in this job for an excessive period of time. Therefore, we prefer the alterna- tive position of the Union. Specifically, it is our award tha.t.if the Employer wished to maintain employees in this job for longer than approximately six months such jobs ceased to exist for develop- mental purposes and that, accordingly, they became jobs under the collective agreement and subject to its provisions. In the instant case, we adopt this temporal limitation because of the facts that here exist; in other cases such time limit might ~increase or de- crease, depending on the nature of the job in question:. DATED at Lynden, Ontario, this 7th day of November, 1986. , n.,,: ,:' ,c--~ /,kJ ,.A E. E. Palmer, Q.C.; Chairman R. Cochrane. Member