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HomeMy WebLinkAbout1985-0046.Union.86-06-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EkiPLOYEES COLLECTlVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor and The Crown in Right of Ontario (Ministry of Cons~er and Canmerciai Relations) Employer Before: R. J. Roberts Vice-Chairman R. R&sell Member D. Middletdn Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union F-k the Employer: I(. waisglass Staff Relations Officer Personnel Branch ‘Ministry of Consuner and Commercial Relations April 24, 1985 2. a’ DECISION' At the outset of the hearing in this matter, counsel for the Ministry raised a preliminary objection to jurisdiction. The Board was advised that the Union had been given timely notice of this objection and the grounds upon which it rested. It--was requested that the Board hear and decide the objection before~ receiving any evidence or argument relating to the merits of the case. We agreed. I On March 5, 1985, the President of the Union sent to Mr. D. A. Crosbie, the Deputy Minister of the Ministry, the following letter: Dear Sir: ,. We are hereby filing a Union grievance in connection with a violation of Article 4.1 of the Collective Agreement relating to a position in Registry Office #63 in then Per Property Registration Branch of your Minis sonal try. The Ministry failed to advertise the posit of~'Counter Clerk' prior to 'transferring' present incumbent, Mr. F. Bhanji, into the position. . ion the said Compliance with Article 4.1 is hereby requested. Kindly direct~all correspondence relating to this matter to the attention of: Mr. N. Luczay Grievance Classification Officer ; Ontario Public Service Employees .Union 1901 Yonqe Street Toronto, Ontario M4S 225. '~(416) 482-7423 Ext. 216 Yours very truly, J. Clancy, President,.O.P.S.E.U. ., 3. The Union grievance which was attached to this letter tread, in pertinent part, as follows: STATEMENT OF GRIEVANCE Violation of Article 4.1 relating to the position of 'Counter Clerk', Registry Office #63. SETTLEMENT DESIRED That the above position be posted as per Article 4.1. As can be seen, the grievance requested the posting of a.specific position which allegedly had been improperly filled by an employee in Registry Office #63, Mr. F. Bhanji. . The following circumstances gave .rise to the Union grievance. On November 26, 1984, Mr. Bhanji had been.demoted into the aboxfe position, which was at the C,lerk 2 General level, from the position of Clerk 3 General in the same Registry Office. The letter of demotion which was given to Mr. Bhanji stated, . in pertinent part: Dear Mr. Bhanji: On October. 5, 1983 you received a memorandum from Mr. B. W. Gibbs, Senior Deputy Director, Real Property Registration Branch, advising you that your work output was considerably below the standards expected.{35 documents per day) and had averaged 15 documents per day over the previous 6 months. You were also informed that we considered that any legitimate concerns had been addressed and that the work environment and procedures were conducive to high levels of productivit~y as evidenced by the work of the majority of your peers. In that memorandum you were also informed that if you did not meet the standard within 3 months you would be assigned to a lower classification level. 4. The matter was referred to me for consideration and I reviewed your performance with your immediate supervisor after 3 months and since your average had risen to 28 documents per day I informed you by memorandum on February 6, 1984, that action reqard- inq your classification would be deferred at that time. However, you were also advised that we were not condoning your present work level. We have monitored your performance since February 6, 1984 and you have been consistently below the standard of 35 documents per day. You have averaged 23 documents per day since February 1984. You have'indicated to me that you are unable to meet the requirements of your abstract clerk position, in that you have never been able to achieve the standard of 35 documents per day. Therefore, I have no.-alternative but to assign you to the position of Counter Clerk at the Clerk 2, General level. 'Your salary will be,the maximum of this level which is $320.73 per week. We will continue monitoring your performance in your new position. Yours truly, L .J~: L. Hauqhey : -Land Registrar Land Registry Office No. 63 100 Queen Street West New City Hall Toronto, Ontario M5H 2N, 965-7553 Shortly thereafter, on November 30, 1984, Mr. Bhanji grieved his demotion in an individual qrievq$ce. On February 21, 1985, Mr. Bhanji's grievance went to mediation. Apparently;,.the parties failed to resolve the matter, and the grievance proceeded to arbitration; Counsel for the Union, Mr. N. Luczay, indicated in his opening statement, inter *, that it was at the time of the mediatiqn that it became clear that the Ministry was not going to do anything in 5. response to the position of the Union that it was a violation of Article 4.1 of the Collective Agreement to fill a vacancy without posting it, even in the case of a demotion. It was at that point, Mr. Luczay stated, that he decided that the instant policy grievance ought to be filed. As previously indicated, such a grievance was filed on March 5. On March 28, 1985, the Personnel Services Branch of the .Ministry sent to the Union the following second stage reply to the policy grievance: Mr. J.'Clancy President OntarioPublic Service Union 1901 Yonqe Street Toronto, Ontario M4S 225. Dear Sir: I held a meeting with Mr. N. Luczay of O.P.S.E.U. on March 25, 1985 with respect to the union grievance dated March 5, 1985 alleging a "Violation of Article 4.1 relating to the position of Counter Clerk, Registry Office #63." A review of the facts indicates that this union grievance was filed well after the time limit of 30 days contained in Article 27.8.1. The grievance is, therefore, denied. If theqrievance is pursued at arbitration, it will be our position that the grievance is not arbitrable. Without prejudice to our position on arbitrability, I have also reviewed the merits of your complaint and find that there has been no violation of the Collective Agreement. Mr. Bhanji, 'a Clerk 3 General in Office #63, was demoted on the basis of his 'inability to meet the performance standards of his Abstract .~" Clerk position. He was demoted to a Counter Clerk position in which'he had previously performed satis- factorily. This position is an entry level position with the classification of Clerk 2 General. In my view, this does not constitute a violation of Article 4.1. To accept the Union's position on this matter would leave us little alternative but 6. to dismiss Mr. Bhanji from the .public service. Yours truly, D. S. Naqel Director It was asserted that the policy grievance wasp inarbitabie as untimely and that, in any event, the actions of the Ministry did not constitute a violation of Article 4.1. On July 11, 1985, the individual grievance of Mr. Bhanji came before a panel of this Board which was chaired by Mr. P. Draper. At that time, Mr. ~uczay attempted to consolidate the individual and policy grievances. This attempt was denied. In an award dated Januar~y 23, 1986, the Board set forth its reasons as follows: .: .- AS a further part of his argument, Mr. Luczay contended that the position to which the grievor was demoted should have been posted 'as required by Article 4 of the collective agreement. In response, Mr. O'Shea informed the Board that the Union had applied to the Board for. a hearing of a policy grievance based on an alleged violation by the Employer of -- Article 4. Following the hearing, the Board ascer- tained from the Registrar that subsequent to the application for a hearing of the present grievance, an application was made by the Union for a -hearing of a grievance alleging "Violation of Article 4.1 relatinq.to the position of 'Counter Clerk', Registry Office t63" and requesting "That the above position be posted as perArticle 4.1". At the request of the parties it was not to be ,listed for hearing until further notice. It had not been listed by the time the hearing of the present qrievance'had concluded. The effect of Mr. Luczay's submission is to append to the present grievance a new and unrelated allegation that the Employer‘has breached Article 4. The grievance property before the Board is that alleging an unjust disciplinary demotion of the Grievor. The Union cannot,now be permitted 7. to aiter the substance of that grievance so as to encompass a separate and distinct allegation of a violation of the collective agreement by the Employer. Accordingly, the'Board will limit itself to a consideration of the issue of the Grievor's demotion. Id. at pp..l-2. The Board went onto conclude that the demotion of the grievor was non-disciplinary and "should not be disturbed". & at p. '; 1 11. At the present hearing, it was requested'by Mr. Luczay that the Union grievance be construed by the'Board as in- cludi'nq a prayer for a declaration regarding the proper application of Article 4.1 in the'case of a demotion. Counsel :~ ,..: I.... . ..dO for the Ministry agreed that~ the Board possessed jurisdiction so to construe the grievance, and we indicated that we would do so. This, then, left the Board to consider two distinct branches of the argument regarding the.preliminary objection: (1) juris- dication to entertain the merits of the grievance as they related to -the specific demotion of Mr. Bhanji; and, (2) jurisdiction to issue a declaratxon interpretatinq the'apFlicability of Article- 4.1. to demotions in general. (1) Jurisdiction of the Merits of the Union Grievance as they relate to the specific demotion of Mr. Bhanji ._ On this branch of the case,.~the Board does not hesitate to concl.ude that the preliminary objection must be upheld. We do not have jurisdiction to deal with the merits of the circum-. stances in which Mr. Bhanji was demoted and order, as the Union 1. I,-, view of the'rulinq of the Board that the Union grievance raised a separate and-distinct matter. we have concluded that the facts. do not raise any case for issue estoppel. 8. requested, that the position into which he was demoted "be posted as per Article 4.1." On the evidence, it must be concluded that the Union had notice that this position was being filled without being posted long before March 5, 1985, the date of the Union grievance. Under Article 27.8.1 of the Collective Agreement, a Union grievance must be filed "within thirty (30) days following the occurrence or origination of the circumstances giving rise to the Grievance." There is no doubt that the demotion of Mr. Bhanji constituted the circumstances which could have given rise to a Union grievance requesting a posting of the position into which he was demoted: however, these circumstances occurred on November 26, 1984--well beyond the time limit established in the Article. It was submitted by~Mr. Luczay that the Board shou ld take into account the decentralised nature of the Union in dealing ~with Union grievances. These 'grievances, he asserted, must be authorised by the President of the Union upon the recommendation of a grievance offi+r~: from the main' office, and the latter might not become aware of events "in the field" within the applicable time limit. The short answer to this. is that, as conceded by Mr. Luczay, the time iimits are mandatory. This makes it incumbent upon the,Union to ensure that those who are responsible for recommend- ing the filing of Union-grievances become apprised of circumstances which might give rise to them as quickly as possible. Further, the Board must reject the submission of Mr. Luczay that this was a continuing grievance to which the 9. time limits of Article 27.8.1 did not apply. Generally speaking, a continuing grievance is one in which the violation of the Collective Agreement is of a continuing nature. As to the specific circumstances of Mr. Bhanji's demotion, there could only have been a single violation of Article 4.1; i.e., not posting the position into which he-was demoted. The mere fact that the impact of this violation continued to .affect Mr. Bhanji did not turn the matter into a continuing violation. As was stated ingrown and Beatty, Canadian Labour Arbitration (2d), "continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach. I... It has been suggested that the correct test is one developed in contract-law, namely that there must be a recurring breach of duty, not merely recurring damages." Id. at pp. 95-6. - Accordingly, it must be concluded that this Board does not have jurisdiction to entertain the merits of the grievance as they relate to this specific demotion of the grievor. If it had been the wish of the Union to file a grievance relating to this, it should have done so within the time limits set forth in the '~ Co&leckive Agreement. (2) Jurisdiction to Issue a Declaration regarding the Application of Article 4.1 to demotions in general The Board finds that itdoes possess jurisdiction to entertain the merits of the Union's claim for a declaration. In this regard, we accept the submission of Mr. Luczay which essentially was that it was not until the'mediation meeting 10. of February 21, 1985, that the Union was made aware of the general position of the Ministry that the provisions of Article 4.1 of the Collective,Agreement did not apply to positions which were filled by demotion. We accept-that it was as-a result of this revelation that the Union filed its policy grievance on March 5, 1985.. In light of this,, ~. there is no doubt that insofar as 'the grievance included a claim fora declaration regarding the applicability of Article 4.1 to positions filled by demotion, it was filed in a timely manner. To reiterate, Article 27.8.1 of the Collective Agreement entitles the Union "to file a Grievance ,.,<: _. :at the.second age of the Grievance Procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the Grievance." It goes without saying that less than thirty days elapsed between February 22, and March 5;1985. This was more than sufficient to perfect the ..'S jurisdiction of the Board over the merits of this particular issue.,, There was, however, .spme indication from the parties that this' issue might in the future be considered to be moot. We were apprised that in the current round of negotiations an accommodation had been reached regarding thisvery issue. Considering this, we will leave i~t,.to the parties to decide whether it would be worthwhile to pursue the merits of a declaration. The preliminary objection is allowed in part and 11. dismissed in part. DATED at London, Ontario, this 25th day of-June, 1986. \U h I I \ Vice-Chairman R. Russell D. Middleton. '. -_