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HomeMy WebLinkAbout1985-0498.Union.86-03-17 u j --'• �ra.rtic 3tiltWENT BOARD .' ADVANCE COPY CAO" EMPLOYEES i r rnEr,Ulr 'i'YNL7�, GRIEVANCE Ff 4 +.J 111 r i�NTEL1 SETTLEMENT C UNy raJ � �;�-?era„r a L ;'rt ra BOARD ” yp DuNDAS STREET VAST, TOPONTO. ONLVAIO. 044128 SUITE 2100 TEL£PxON£r 4161599-0688 498/85 IN THE MATTER OF AN ARBITRATION Under THE CR0m EMPLOYEES COLLECTIVE BARGAINING .ACT ' Before THE GRIEVANCE SETTLEMENT BOARD BetWeen: OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional .Services) Employer Before: R. L. Verity, Q.C. Vice-Chairman L. Robbins Member I . J. Cowan Member For the Grievor: B. Hanson Counsel Cavalluzzo, Hayes & Lennons Barristers & Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: Wednesday, October 2, 1985 t I 2 - I D E C I S T O N A Union Grievance was filed dated May 24, 1985 , which grieved Management ' s declared intention in filling a temporary + vacancy . The Assistant Office Manager at Maplehurst Complex had previously advised the Employer that she would take a maternity leave commencing duly, 1985 . The Grievance contained two separate fact situations which allegedly violated the provisions of Article 4 and 6 of the Collective Agreement . At the Hearing , the Union withdrew the second matter. ' Accordingly, the Grievance now reads as f011aWS : "The Union grieves that , without benefit of competition and without an opportunity for bargaining unit employees to apply , a mem- ber of exempt staff (Darleen Williams) was placed for a period of at least six months in the bargaining unit position of Acting Assistant Office Manager. " The relief sought in the Grievance Form was amended at the Hearing to a request for a Declaratory Order . The Employer raised two prullminary objections - one relating to form of the Crievance , and the second relatinq to w 3 . timeliness . The Employer argued that the fact situation set out in the Grievance did not occur, and in that sense was a non-event . Clearly, the evidence supports the Employer for the reason that Marlene Williams at no time served in the capacity of Acting Assistant Office Manager. y The Collective Agreement contemplates in Article 27 . 8 . 1 that the Union has a right to grieve where any differ- ence arises "from the interpretation , application or alleged contravention of the agreement" . Frequently , in a policy Grievance the Union will cite an individual case as an example of how certain conduct adversely affects members of the bar- gaining unit . While the specific example cited by the Union was erroneous , the substance of the Grievance still remains in- tact. The Board notes that the Employer' s second stage reply of July 29 7985 crakes it clear that Management Was under no misapprehension regarding the Union ' s 'complaint . We find that the Employer ' s first objection is simply not supportable . The Employer ' s second objection is that the; Grievance is untimely . Article 27. 8. 1 .entitles the Union "to file a Grievance at the second stage 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" . the incident that gave rise to this Grievance was a Memorandum dated February 27 , 1985 from Superintendent A . J . Roberts to all staff members at the Maplehi)rst Complex. • r G I l The Union Grievance filed on flay 24 , 1985 is almost two months subsequent to the Memorandum. Clearly , the Griev- ance was not filed .in a timely fashion, and it does appear that the time iimits are mandatory rather than directory . However , in our opinion , the alleged violation of the Agreement is of a ; continuing nature , and accordingly strict compliance with the time limits is of less significance . The Employer candidly admitted that it had not raised the timeliness issue prior to the Hearing. In our opinion, this second preliminary objection ; must tail . In this matter, the issue is whether a temporary vacancy, resulting from a maternity leave is a vacancy contem- plated by the provisions of Article 4 of the Collective Agree- ! f ment . If the answer is in the affirmative , the Employer vio- lated the Collective Agreement in its failure to post the va- cancy , hold the competition , and select a successful applicant . i The relevant facts are not in dispute . Maplehurst Correctional Centre is a maximum security institution which accommodates 424 male inmates , and is said to be the Ministry ' s second largest facility . The Complex is restricted to male in- mates , both young offenders and men over the ache of 18 years . There is a full - time staff complement of Lorne (145 pt--rsunr-, , ssid 5 - an additional 55 "casual" employees°. Maplehurst has a clerical support staff of some 22 'empioyees' which includes an Office Manager and an Assistant Office Manager . On December 31 , 1984 , Mrs . Kathy Ellison commenced her duties as assistant Office Manager .at Maplehurst following her success in a competition . In that position her classifica- tion was Clerk 5 General . In late January , 1985, tors. Ellison advised Office Manager Jack Robertson that she would be going on maternity leave in July and would not return. "until Oanuary , . 1986 at ' the earliest" . Mrs. Ellison is entitled to 17 weeks maternity leave with pay , and a further 6 months leave without pay. Superintendant Roberts and the Office Manager met to consider their options , recognizing the fact that Mrs . Ellison would be on an extended maternity leave . On a previous occa- sion; Mrs . Ellison had been on maternity leave for in excess of 10 months . By way of background information , the following facts are relevant . In September , 1984 , the then incumbent Assistant Office Manager left Maplehurst for another assignment . The vacancy created was filled on an acting basis from September to December , 1984 by two Maplehurst clerical staff - Chulam Panj"ani ( then a Clerk 4 General ) for 6 necks ; and Mrs , Noreen r Martens ( then a Clerk 3 General ) for 8 weeks . At the Hearing , Superintendent Roberts testified that the split responsibili - ties of the acting assignment had created internal dissension . Both Panjwani and Martens applied for the permanent position , but were unsuccessful applicants . The successful applicant , Mrs. Ellison had no previous experience in the position . In February , 1985, Mr . Roberts spoke with two Maple- hurst clerical staff, Doris Gradey and Jessie Boland . Neither roman was interested in the acting Assistant Office Manager ' s position . However , neither Mr. Panjwani nor Mrs . Martens was asked to fill the position. Subsequently in February , 1985 , Mr . Panfwani advised the Employer that he had accepted the pos- ition of Assistant Accountant In the Ombudsman ' s office. Mrs . i Martens subsequently won a competition and is now Senior Accounting Clerk at Maplehurst (a Clerk k General position) . Superintendent Roberts then approached his secretary Mrs . Darlene Williams ( a non-bargaining unit position ) to take j on the responsibility of the Assistant Office Tanager ' s posi- tion on an acting basis after some preliminary training . Mrs . Williams was to be freed from her responsibilities by Marilyn McGuire , a Typist 3 . the Superintendent decided on this course of action as developmental opportunities for both Komen . 7 - Accordingly , on February 27 , 1985 , the Superintendant issued a Memorandum which precipitated the Union Grievance . "I am pleased to announce that effective March 4 , 1985 Ms. Darieen Williams will commence a developmental assignment . She will undergo training daily from 10 : 00 ^. a.m. onward In various positions throughout the office until approximately August 1st . Around August 1st when Mrs. K. Ellison goes on Maternity Leave Ms . Williams will assume the position of Acting Assistant Office Manager. Ms. Marilyn McGuire will likewise be ex- panding her experience while she replaces Ms. Williams as Superintendent ' s Secre- tary . She will be filling in during after- noons from March 4 to August.. and full time from August onward. I am sure you will join me in wishing both staff the best of luck in their new assign- ments. " Mrs. McGuire worked only 2-112 days on her acting assignment and then returned to her previous position. Mrs . Williams carried on with the clerical development assignment ; however, she too returned to her regular position at the end of March , partly as a result of the adverse reaction amongst bar- gaining unit employees to the Superintendent ' s Memorandum. Mr . Roberts then discussed the situation with Ministry Regional Office officials , and in Duly , 1985, Mrs. Patricia Lamb, the Assistant Office Manager at Metro-West Detention Centre , was appointed on an acting basis to replace Mrs . Ellison . Mrs . Lamb continues to serve as Acting Assistant Office Manager , and I i , i pp l S as of the date of the Hearing , Mrs . Ellison had not advised the Employer of her anticipated date of return. Mrs . Ellison does , I ho*ever , plan, to return to her position . i Superintendent Roberts testified that he made the I appointm�r . of Mrs. Lamb because of her experience in the same positicn at the Toronto-West Detention Centre . He was con- � cerned about the dissention created in 1984. In addition, the Super+..tendent wanted one person to fill in for Mrs . Ellison on her ;:tended absence . The Superintendent was also concerned � tra'. Mrs. Ellison would be on maternity leave during the summer %,z ;ation period . Mr. Roberts rejected any consideration of rjking a series of acting appointments because of the 1984 cx• ; jerience, and because in his words "we wanted long- term stabil- ity" Both Parties agree that the key issue for determina- tion must be - is there a vacancy? r The Hoard shall not attempt to set out the submis- sions except in summary form. Essentially , the union ' s argu- ments are two-fold . ; 1 ) That the Employer , Ahen filling d temporary vacancy of some duration , is required to comply with Article 4 of the Collective Agreement , iti particular Articles 4 . 1 and 4 . 3 ) . I i i I I i - 9 - Z } In the alternative , if Article 4 . 1 is deemed in- i applicable , the Employer is nevertheless required to act reasonably in filling the acting position . Under the first argument , Mr , Hanson contended that the facts establish that there was a vacancy because Patricia Lamb is currently occupying the position originally intended i for Darleen Williams . Union Counsel argued that Vice-Chairman I Samuels ' Decision which considered the identical issue , in ' Sikand and Ministry of Transportation and Communications , I 381 /80, is manifestly wrong . ' It was the Union ' s contention that the management rights provisions of Article 16. 1 of the Crown Employees Col- lective Bargaining Act , must be read in conjunction with the bargaining authority provisions of Article 71 and treat what transpired in the instant Grievance is a "transfer" as specs- fled in Article 7, and therefore not an exclusive function of i management . Further , he contended that the only provision i which would limit the applicability of Article 4 to temporary I vacancies is Article 6 which contains no limitation and relates primarily to calculation of pay for temporary assignments . Alternatively , it nas argued that Management ' s dis- cretion in making a temporary assignment must i)c exercised rea- sonably even in the absence of expressed terminology to that r effect . Tt was the union ' s contention that Management had not exercised its discitetion reasonably in the instant matter . The Employer contended that there was no violation of the Collective Agreement in the sense that there was no vacancy created by the maternity leave. It was-. contended by Mr. Bene- dict that the union was estopped from claiming a remedy on the evidence presented that four employees called upon to testify at the Hearing received a total of' 21 temporary assignments all of which had been made free from the requirement of postings as provided in Article 4. 1 . The following Articles were cited by the Parties : Article 4 : "POSTING AND FILLING Of VACANCIES OR NEW POSITIONS 4. 1 When a vacancy occurs In the Classi- fied Service for a bargaining unit position or a new classified position is created in the bargaining unit , it shall be advertised for at least tern ( 10) working days prior to the established closing date when adver- tised within a ministry , ' or it shall be advertised for at least fifteen (15 ) work- ing days prior to the established closing date when advertised service-wide . All applications will be acknowledged . Where practicable , notice of vacancies shall be posted on bulletin boards . 4 . 2 The notice of vacancy shall state , where applicable, the nature and title of position , salary , qualifications required , the hours-of-*ork schedule as set out in Article 7 (Hours of Work) ,' and the area In which the positions exists . I i I i - 11 - 4 . 3 In filling a vacancy , the Employer shall give primary consideration to quail - fications and ability to perform the re- quired duties . Where the qualifications and ability are relatively equal , length of continuous service shall be a considera- tion. 4. 4 An applicant who is invited to attend an interview within the civil service shall i be granted time off with no loss of pay and with no loss of credits to attend the in- terview, provided that the time off does not unduly interfere with operating re- quirements . " Article 6 : i "TEMPORARY ASSICUMENTS 6. 1 Where an employee is assigned tempor- arily to perform the duties of a position in a classification with a higher salary ' maximum for a period in excess of eight (A ) consecutive working days , he shall be paid acting pay from the day he commenced to perform the duties of the higher classifl- cation in accordance with the next highest rate in the higher classification provided that such acting pay shall not be less than three percent (3%) above his current rate . i 6.2 When an employee is temporarily assigned to the duties and responsibilities of a position in a classification with a lower salary maximum where there is not work reasonably available for him in the po-sition from which he was assigned , he shall be paid the lower applicable classi- fication rate to which he was assigned , after the expiration of ten ( 10) consecu- tive working days in such lower classifica- tion . 6 . 3 When an employee is temporarily assigned to the duties and responsibilities of a position in a classification with a lower maximum salary where there is work reasonably available for him In the posi - tion from which he was assigned , he Jiall continue to be paid at the rates oppllcohle -to the classification from which he was assigned. 6 .4 This Article shall not apply to tem- porary assignments where an employee 'is temporarily assigned to perform the duties - arid responsibilities of another employee who is on vacation . 6. 5 Where an employee is temporarily assigned to perform the duties and respon- sibilities of a position not covered by this Collective Agreement , he shall retain his rights and obligations under the Col- lective Agreement . " This Grievance has the potential for consequences far beyond the facts of the present case . In essence , the Anion seeks to have all temporary assignments posted . At the outset, we do not agree that any case has been made for the application of the doctrine of promissory estop- pel. The first issue for determination on the facts is whether there is a "vacancy" . Clearly the Collective Agreement establishes a posting procedure in Article 4 which is to be followed once a vacancy occurs . The Collective Agreement is silent on what constitutes a vacancy . i 13- The facts of the instant Grievance establish that a temporary vacancy occurred in the Assistant Office Manager ' s I position at Maplehurst when the incumbent left in Duly of 1985 on maternity leave. The vacancy created by her maternity leave is for a significant and indefinite period of time which could conceivably extend for some 6 to 10 months . r There appears to be a dearth of recant arbitral Jurisprudence directly on point . However , related arbitral ' principles are carefully considered by Arbitrator Burkett in Re Pilkin ton Brothers Canada Ltd . and United Class & Ceramic Workers ( 1976) 0 13 L.A. C. (2d) 287. As stated at pp 290 and 291 : "Arbitral Jurisprudence holds that a vacancy does not exist because there is no one filling an existing classification or + because the duties of an existing classification have been assigned to i persons in other classifications . Rather it has been held that a vacancy exists when , In the opinion of the company, there is' sufficient work in the classification to ' Justify filling it . The jurisprudence has been capsulized in' Re Polymer Corp . Ltd . and Oil , Chemical and Atomic Workers , Local 9-14 ( 1974) 9 5 L.A.C . (2d) 344 (Rayner) , wherein it is stated at p . 346 : ' The threshold Issue that must be decided before this article becomes operative 1s whether a vacancy does , in fact , exist . It is generally accepted that a vacancy does not exist simply because an employee is not filling a particular classification . U'Ither , a vacant post tion Exists %%hen there 1 s 14- adequate work to Justify the existence of an employee in that position . In Re United Brewery Workers, Local 800, and Loblaw Groceterlas Co. Ltd . (1967 ) , 18 L .A. C . 420 (Weatherill) , it was stated , at p . 423: ' Whether or not work is required in any particular classification. . is , in my view, a matter for the company to determine; When the company does determine that work is to be done in a particular classification, and there is no employee in that classification , then „ a vacancy , whether temporary or permanent , exists . ' In reaching that conclusion, he relied on a decision of a board of arbitration chaired by Reville, C.C.O. , Re Oil , Chemical & Atomic Workers , Local 9-599 , and Tidewater Oil Co. (Canada) Ltd . ( 1963 ) ,' 14 L.A.C. 233. Ire that case , the learned arbitrator stated: ' The term vacancies. . .not merely means an emptiness or a vacant position in the dictionary sense of the term, but means a vacant position for which there is adequate work in the opinion of the ' Company to justify the filling oaf that position . " And at pp . 291 , Arbitrator Burkett - states : . "The right of the company to unilaterally decide if work exists in a classification sufficient to create a vacancy is not , however , an unqualified right. First , it must withstand an examination of the company ' s practice. An employer cannot , on the one hand , assert that there is no vacancy and on the other, require the work of the classification to be done to an extent as would establish that there is a fob of work ' . being done. " I - 15 - I This panel of the board accepts the principles and � rationale stated above . The Employer has of course the prima 1 facie right not to fill a vacancy . In the Instant matter , the Employer decided to fill the vacancy in question by the I appointment of Mrs . Lamb to the acting position . In the interpretation of Article 4 . 1 , we are unable to find that there is any ambiguity . Accordingly , past practice is not an appropriate consideration . Alternatively, if past practice was a relevant consideration, the incidents presented at the Hearing were less than satisfactory for the following reasons . The language of i Article 4. 1 applies to all government Ministries who are subject to the terms of the Collective Agreement . The ' incidents of past practice presented at the Hearing related exclusively to the local practice at the Maplehurst complex . ; I In that regard , there was no evidence that the Union was or %as not aware of the practice of not posting temporary vacancies . No evidence was led to suggest that the Union agreed or consented either implicitly or explicitly to such a practice , nor was there any evidence that had the Union been aware of the practice that any complaint, had been made . In addition , there was no evidence introduced concerning the overall practice of this Ministry or other Ministries in similar circumstances . Simply stated , a Board of Arbitrators must exercise care to understand precisely „hat Ltie circumstances of the past practice was bcfore it can he rri ied I upon , However as indicated previously , pa5L practice is sirr.ply not a relevant consideration . i I 16 - Giving effect to the plain meaning of Article 4 . 1 it is simply not possible to restrict posting procedures to a per- manent vacancy thereby excluding a temporary vacancy of sub- stantial duration . Naturally ', the 'require.ment of posting a temporary vacancy will be determined on the facts of each case , y having regard to the expected duration of any such vacancy . In summary, there is simply no rationale for finding , on the facts of this case, that a vacancy as set out in Article 4 . 1 does not .contemplate a temporary vacancy . Article 6 of the Collective Agreement relates exclu- sively to temporary assignments . Articles 6 . 1 , 6 . 2 and 6 . 3 relate to payment for temporary assignments . Article 6 . 4 makes it clear that the entire article is inapplicable where an employee is temporarily assigned to the position of a vacation- ing employee . Article -6 . 5 addresses,- the issue of retention of rights where a temporary assignment is- to a position not cov- ered by the Collective Agreement . In short , Article 6 is of little assistance . The instant Grievance can be distinguished on the facts from the Samuels decision in 51kand and Ministry of Transportation and Communications , 381180 . The rationale of that decision does not go so car as to say that a vacancy under Article 4 . 1 must be permanent for the Article to app 'sy . Vlcc- chairman Samuels found on the facts that management correctly determined that the position did not need to bt, filled :inn that 17 - i by a reorganization of fob duties , the requirements of the Employer would be accomplished . on the facts before this panel , the Employer did r i recognize that there was not just an "emptiness" in the classi- fication in question , but a vacant position for which there was adequate work to be performed . For the above reasons , it is unnecessary to consider the Union ' s second argument . The sole Issue be-fore this panel is whether the temp- orary vacancy rendered Article 4. 1 Inapplicable. In the re- sult, the Board issues a Declaratory Order that Article 4 . 1 is applicable , and that the posting procedures should have been followed . In our opinion , a vacancy does not have to be per- manent to trigger the posting provisions of Article 4. 1 . what must be determined in each case is whethcr there is a vacancy for the purposes of Article 4. DATED at Brantford , Ontario , this 17th day of March, 1986. R . L . Verity, Q . C . Vice-Chalrman fL . Bobbins - ��crsner ---- "I dissent" (See ittiched) � T—. -j ..~ j . CoZon _- Mt-mbi-r�T_ r DISSENT RE: 498185 OPSEU (Union Grievance; and Crown/Ontario (Ministry of Correctional Service) I have reviewed the award r. f my colleagues in the above noted matter and regret that I am unable to concur, for the f oliowing reasons: - Article 4.2 sets out what is required in a notice of vacancy - No mention is made of "duration" v hich would be essential in the case of a temporary vacancy malting it clear that a temporary vacancy was not contemplated by' the parties. . If Article 4 ha . been intended by the parties to cover temporary vacancies there would :lave been no need for Article 6 which outlines the salary treatment V.; be accorded an employee who "is assigned temporarily" to the duties a position in a class with a higher salary maximum" since the salary treatment would have been set out in the notice of vacancy required under -;2, Sir :e there is no language in this agreement specifically concerning mporary vacancies" the majority decision at page 16, which requires that each case be decided on its facts", expands the Collective Agreement without indicating what limits on the interpretation should be applied. i I - 2 - i The employer has, in any case, the option of placing a G.O. Temp or contract employee in the temporary vacancy making advertising of a ; temporary vacancy unnecessary. i I Application of the irne,pretation of Article 4 in this award w-111 1- inconsistent, unpredictable and unwieldly if not totally inpracticable in administrative terms since, in the majority of cases where a temporary vacancy results from the illness of an employee, it is extremely difficult if not impossible to determine in advance the duration of the absence. I The fact situation utilized in the instant grievance is not, in my view, representative of the circumstances generally giving rise to a temporary vacancy in that Mrs. Ellison gave notice well in advance of her proposed absence of the date on which it would commence as well as the fact that it w•oWd be for at !east 6 months. For these reasons 1 would have denied the grievance. 1. J. Co an