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HomeMy WebLinkAbout1986-0104.Winger.87-08-05IN THE MATTER OF AN ARBITRATION UNDER TBE CROWN EMPLOYBES COLLECTIVE BARGAINING ACT BEFORE TBE GRIEVANCE SETTLEMENT BOARD BETI$BEN: BEFORE: FOR THE GRIEVOR: OPSEU (Charles Winger) - And - TRE CROWN IN RIGHT OF ONTARIO (Ministry of the Solicitor General) J. Emrich Vice-Chairman F. Collom Member H. Roberts Member I. Roland Counsel Gowling and Henderson Barristers and Solicitors FOR TRE EMPLOYER: .I. Gavras Counsel Crown Law Office Civil Ministry of the Attorney General BEARING: June 30, 1987 Grievor Employer /-: . . The grievor, Mr. Charles Winger, whose seniority dates from May 25, 1982, was classified as a Buildings Caretaker I at the Welland detachment of the Ontario Provincial Police when he was laid off on April 4, 1986. The grievor was offered a position as a Buildings Caretaker I at the Cayuga detachment, which is located more than forty kilometers distant from Welland. The grievor refused this assignment but sought instead to displace a junior employee, Mr. McArthur, who holds the position of Buildings Cleaner 2 at the Niagara Falls detachment of the Ontario Police. Mr. McArthur was notified of the hearing, the nature of the issue and its implications for hfsown job security, and advised of his right to attend and participate. Mr. McArthur chose not to appear or to participate. The relevant clause of the collective agreement is 1 (d): . Article 24.6. 24.6.1 An employee who has.completed his probationary period and is subject to lay-off as a surplus employee, shall have the right to displace an employee who shall be identified by the employer in the following manner and sequence: (d) Notwithstanding the above, in the event that there are one or more employees in one or more classes in another class series in which the surplus employee has served during his current length of continuous service who have less seniority than the surplus employee, the surplus employee will displace the employee with the least seniority in the class with the highest salary maximum (no greater than the current salary maximum of the surplus employee's class) and provided that the surplus employee has greater seniority than the displaced employee hereunder, provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee. 2 There was substantial agreement as to the material facts. The narrow issue between the parties is whether the grievor could be said to have served in the position of Buildings Cleaner 2 during his continuous service with the Employer. If it could be said that the grievor had so served, then it was conceded that the grievor would be entitled to displace Mr. McArthur. It was agreed that the position of Buildings Cleaner 2 was in a different class series than the position of Buildings Caretaker I. It was further agreed that the highest salary maximum of the Buil~dings Cleaner 2 position is no greater than the salary maximum of the Buildings Caretaker class, which is higher-rated. There was no dispute that both, positions are within the same ministry and. performed at locations within a forty kilometre distance of each other. Mr. &Arthur is junior to the grievor, having a seniority date of September 7, 1982. Finally, it was undi~sputed that the grievor was qualified to perform the work of the Building Cleaner 2 position. The evidence disclosed that during a period of ten working days in July, 1982, the grievor worked eight days at the Niagara Falls detachment, replacing Tom Drennan who was absent on vacation. Sgt. Rowe. who was the grievor's supervisor at the Welland detachment assigned this work to the grievor, but left it to the grievor to balance his responsibilities at Weiland with the additional work at Niagara Falls. The grievor consequently worked on Mondays at the Welland detachment and then worked from Tuesday to Friday for two weeks at the Niagara Falls detachment. The grievor explained that it was never made clear at the time exactly what classification Tom Drennan .held, but there was no question that the grievor continued.to earn the salary of his classification during this period. Apparently, from the 3 . point of view of the men performing the work of building cleaner and caretaker, little distinction was drawn between the two classifications. The grievor was questioned concerning the two job specifications of Assistant Caretaker (Cleaner.2) and Caretaker at the Niagara Falls detachment. Certain of the job duties distinctive of the Caretaker position were not performed by the grievor during his eight day stint whereas the grievor indicated that he performed all the functions described as job duties for the Assistant Caretaker'position. It was clear from the grievor's evidence that some job duti.es from both the positions were not performed because the need or occasion did.not arise for the performance of such duties during the eight day stint. It was clear that the men holding these positions do not take an inflexible approach to their work by carefully differentiating job duties by classification. The grievor recalled that Tom Drennan was classified as a Buildings Cleaner 2 in 1982. but was pranoted to the . position of Building Caretaker I following the retirement of the former incumbent' and an ensuing job competition. The grievor recalled that the prior incumbent had taken sick leave before retiring. The formal employee service record (ESR) of the grievor and of Tom Drennan were filed'in evidence. No change in status from Building Caretaker I to Cleaner 2 is noted on the grievor's service employment record. It was clear from the evidence of Mrs. Adrienne McMullin. Staff Relations Officer for the Ministry of the Solicitor General, that not all temporary assignments for a short duration would necessarily be noted on an employee's ESR. The ESR of Tom Drennan disclosed that on May 25, 1982 tie was promoted to the classification of Buildings Caretaker I on an acting A . basis. The "acting" designation was removed on or about January 23-d, 1984. On the basis of the foregoing evidence, the Board finds that the grievor was assigned, on an informal basis to work as a replacement for , Tom Drennan for a period of ten working days in July 1982. The Board further finds that at the time the grievor performed this work, Mr. Drennan was classified as a Buildings Caretaker I on an acting basis and that the Cleaner 2 classification had been vacated by him since May 25, 1982. The Board accordingly finds that the grievor, in replacing Tom Drennan, was not performing work as a Cleaner 2 in July, 1982, but was performing work of a~Buildings Caretaker I. It follows therefore that the grievor never performed work in the Buildings Cleaner class series to which he seeks to bump pursuant to Article 24.6.1(d). .That being the case, the Board has no basis to find that the grievor meets the prerequisite that the surplus employee, the grievor, in this case, has served in the class series to which he seeks to bump. The foregoing findings of fact would be sufficient to dispose of the grievance, however counsel addressed considerable argument as to the proper interpretation of the.meaning "has served" in Article 24.6.1(d). The gravamen of the Union's argument was that "has served" was to be given a functional significance - that is, if an employee had performed the duties in the class series to which he seeks to bump on assignment from the employer, whether formally noted in the employee's ESR or not, then it could be found that the surplus employee "had served" in the class series. Counsel for the Union emphasized that the time-honoured purpose of the seniority system was to preserve job security for long service employees during reductions in the work force. The bumping system gives effect to job security proportional to seniority subject to meeting the employer's demand for maintaining an efficient and competent workforce. Counsel for the Union pointed out that in Article 24.6.1(d), the Employer's interest was protected by the twofold requirements of previous service in the class series to which a surplus employee seeks to bump and the requirement that the surplus employee be qualified to perform the work of the~position in the class series sought. Counsel for the Employer argued that in order to establish that a surplus employee has served in the class series which the employee targets for bumping, more than a casual assignment and undertaking of duties of the position more than three years earlier would have to be demonstrated. Indeed, the employer insisted that in order to protect the job security interests of junior incumbents of a targeted position in a class series different than that of the senior surplus employee's classification, the surplus employee would have to show that his past service in the class series had been noted formally in his ESR.- The Board prefers the functional definition of previous service argued by the Union as more consistent with the objectives of a seniority system, given the qualifications captured in the provisos pertaining to ability to perform the work. As indicated above however, even if this interpretation were to be adopted by the Board, the grievor has been unable to demonstrate that his past service in Niagara Falls during July, 1982 was in the class series of Buildings Cleaner rather than his own class series of Buildings Caretaker. Accordingly, for the reasons given, the grievance is dismissed. Dated at Kingston, this 5th day or’ August, 1987. ._.’ LZ,, F. (y& I Jane E. Emrich I Vice-Chairman KAg&eL M . . 0 om llember MypJ-e . Roberts Member 7