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HomeMy WebLinkAbout1986-0193.Beilhartz et al.89-07-11ONT*R,O EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE“O”NT.wm GRIEVANCE CQMMISSION DE SEllLEMENT REGLEMENT BOARD I DES GRIEFS :-. .;. Between: ., OPSErJ'(Beilhartz et aij' " 1. r. Grievor - and - ,;. .:, .The:Crown in Right.of Ontario (Ministry of the Attorney General) .' ._." Employer Before: AppearanceLfor Grievor: Appearance for Em&over: Hearinc: ‘i.. : CC’ B.B. Fisher' '. "Vice-chairperson J. McManus .: . . Member L. -Lobraico '.' Member : .~ .I Janet Mosher : ~,:1- : _ Counsel Gowling 8 Heiide'rson Barristers h Solicitors . I Paul Jarvis' Counsel Hicks Morley Hamiiton Steward Storie Barristers h Solicitors March 14, 1988 DECISION This case involves the determination as to whether or not the Grievance Settlement Board has the jurisdiction to review a decision of the employer not to appoint certain individuals into the classified service. Before that can be determined, it must first be decided whether a certain document, executed by both the employer and the Union in November, 1985. is either a Collective Agreement itself or part of a Collective Agreement signed by the parties on October 30, 1986 covering the period of time from Januaryl, 1984:to December 31.1985. The history leading up to this situation is as follows: ; 1. Professor Swan issued an arbitration award for 1984-85 Collective Agreement calling for new rights for part-time Civil Servants. 2. Following the Swan award, the parties executed a document entitled “Statement of Intent Concerning the Implementation of Changes to the Collective Agreement with Respect to Working Conditions and Employee Benefits.” This document was executed in November of 1985. The document, minus the schedules is attached as an exhibit to this decision. The majority of the document simply sets out the changes agreed to by the parties, including the implementation dates. Specific reference is made to the applicable Article number to be amended and its implementation date. These changes ultimately find their way into the finalized Collective Agreement executed by the parties on October 30,19&L However Item I of this Statement of Intent is different in that it has a special clause relating not to changes in the language of the proposed finalized Collective Agreement, but rather refers to the etnployer’s undertaking to review existing part-time unclassified jobs to see if the required work will continue indefinitely on a year-round basis and if so, to convert that job to the classified service. The applicable, paragraphs are set out below: .: The language of P&C - Regular.Part-time Civil-Servants ir set out, in Appendix E, attached 3. The employer conducted a review of the grievor’s job and sometime before December 31, 1985, the employer deter&n& that the grievor’s job did not fulfil the ,I, .I criteria. set out above and therefore the grievor was not put in,the classified service. 4. The grievor filed his griev&ce on March 12,‘1986. 5. On October 30, 1986, the Union and the employer &ecutid’a fin&ed Collective Agreement. The provision of the Statement of Intent referred.& above was not included in the Collective Agreement or its numerous schedules. -3- The Union presented its case primarily on the basis that the Statement of Intent was part of the finalized collective agreement which was signed almost eleven : months later. that the parties meant to include the Statement of Intent. This position, however, does not seem to be correct as normally the, subsequent execution of the collective agreement will cause a previous memorandum to be merged with the agreement unless the parties manifested an intention to the! contrary. As was said by Christie in Re Bakery and Conftitionery Workers International Union, Local 332 and Canada Breed Co. [22 L.A.6 (2b) 991 The documents in Smith Bros Motor Union Car&de Canada Ltd, supru There is clearly no indication in the October 30, 1986 Collective Agreement Therefore, this Board cannot derive its jurisdiction by virtue of using the October 30, 1986, Collective Agreement. The alternative argument of the Union is that the Statement of Intent, on its own, is a Collective Agreement. It fulfills the normal requirements of a Collective Agreement in that: i -4- -, .,,, ‘:;,:;>. *.,’ “,:. ‘, a) it addresses issue ielating’io’labour iel&&; b)’ it is in w&tin;; c) ii is signed by both parties:, _ ‘, ~. , , ; y; ~~. , d) it was intended’by the parties to gokn their akak &d &’ ” ’ . m fact did So uhtil the’O&ob& j0, 1986 Collectivd ” &reetieit was signed. This is Gdent bj; lo&kg at;’ ’ ’ ‘* ., number of documents introduced at the arbitration. The . . ,‘.. fiist document was a let& dated N&&ber 6,1985; from ‘. P.‘Moonky, S&or staff Rklations Of&& for the Civil- Service Cokriissionaddres~d to k.Tidd, Chief ’ .” ,’ “’ . tiegotikoi fo;T)PSEG in’which he~.kticlds& a Copy of the “I~ ’ z. ’ Statement of Intent si&d by the &plo;er r&d && &i .-‘iz to say the follo&ing: I.-,. :r. ._I,, /.. Our undertaking to implement these &an~e~$i6r~to thefillal&tion’ of the Collective Agreement k based on current circumstances and. is without prejudice to any position we may wish to take on a similar irsue in any&We set of negotiations. ., : Y : _ Similarly, when the employer responded to .these grievances, .which, of course was done prior to OctobeE30, 1986,,Mr, Don Pringle, Deputy Director, Provincial Court Services, in his letter of.April29, 1986, made specifiG.refcrence to the f?ct.th?t: The criteria for the inclusion of art-t@positio+s & the classified service are contained in the co1 ectrve agreement and the ‘Statement p. . . ’ of Intent’ with regard to implementa~o~~ ~. ,:, . -5- Thus, for the period from November of 1985 to October 30. 1986, this wm the Collective Agreement in force and the fact that after October 30, 1986, it was no longer of any force and effect because it merged with the “formal” Collective Agreement cannot effect the validity of these grievances which were filed in March of !986. This Board therefore draws its jurisdiction from the Collective Agreement existing at the time the grievance was filed, whi’ch is, in this particular circumstance, the Statement of Intent. Having crossed that hurdle however, the employer says that thus does not give Grievance Settlement Board the authority to review the decision of~the employer under the implementation provisions referred to above to see if it,is the right one but only gives the Board the power to insist that the employer conduct such a review which it did. This argument is based on the proposition that it is the exclusive function of the employer under Section 18(l)(a) of CECBA and the Civil Service Commission under Section 6(2) of the Public Service Act to appoint people to the Civit Service and therefore the parties could not have intended to nor can they agree to have this decision making process subject to arbitral review by the Grievance Settlement Board. Leaving aside the issue of whether or not the parties could legally agree to such a provision let us examine closely whether or not that was the intention of the parties as expressed in the agreement. Certainly the government has in the past’zealously guarded its right under CECBA to solely determine who to appoint people to the Civil Service and it therefore would take very clear language to convince this Board that it was their intention to fetter this right. The Statement of Intent talks of: -6- Where ministries determine that the required work is year round..., the job will be converted to 4 part-time pqsition~in th_e. &ssifed~ service. This section is clear that the Ministry is the one who conducts the review and makes , r’ the determination. If the parties had intended that this process has to be subject to arbitral review it would have made more sense to have a clause like the following: lyhere an, existingpart-time job-present in the unclasified service LS detquned to cons&t qf requrt& war. that IS t ..‘g ear-round, ongomg and contintious VI nature...theJob wrll e converted to a part-time position in the c&&ied seyxe. . . . .Therefore, on the language itself, the Board is not satisfied that theparties intended to make the employer’s decisiqnsubject to arbitral;review as, to its correctness. However, it is clear that the,parties intended that the employer would be obliged to conduct a real review and not a sham.review, therefore, the review would have to be.conducted in a reasonably thorough manner, in good faith,,and be based on the criteria set forth in the Statement of 1ntentli.e. an examination of whether ot not the required work was year round, etc!). Clearly, the employer is not entitled to consider irrelevant factors in its decision, for instance, refusing to appoint a certain group forbudgetary reasons, and the Union is entitled to utilize the arbitration process to insure that the decision making process conformed to these requirements. However, if the process was proper, the Board cannot change the result simply because they may, have come to a different result themselves. If this sort of sounds like the standard for judicial review, the analogy is intentional. A finding that the Grievance Settlement Board has the right to review the decision making process of the employer, not for correctness but for compliance with the criteria set out above, in no way effect the employer’s rights under 18( 1) of CECBA, to appoint persons to the Civil.Service. It only ensures that the employer did indeed conduct a proper review like it contracted to do. In summary then the Board’s decision is as follows: a) The Statement of Intent was the collective agreement in force at the i time that the grievances were filed. 0) The implementation clause does not give the Union the right to have the correctness of the employer’s decision reviewed by the Board but it does give the Union the right and the Grievance Settlement Board the power to examine whether the process of the employer’s review was proper in order to determine if the employer carried through with its contractual’obligation to perform such a review. The Board is not clear from the grievance whether or not the Union is attacking the process or simply the results, therefore, it is premature to rule on whether or not rhe grievance should be dismissed. Therefore, if the Union intend to argue that the process was faulty, they should request that the Board ‘reschedule another hearing date. If the Union has not done so within sixty days of the release date of this award, the employer may, on prior written notice to the Union, request that the Board dismiss the grievance. ~-, . ~. ,... ,~. ._ :~... . ..s : ..i. Datedat Toionto, this 61 th day of Ju:ly--.’ r 198q..~ 2 * .t : I ,~I. ii:’ ‘: . : CK, Vice Uaxperson ’ ~_‘- ’ ,’ - ~- _. ._._ C’. w. I.. LU, .mmber J ‘. : 1 ,. _ z : . : STATEME?{ OF INTENT CONCERNING THE IfVLEI4ENTATION OF CHANQ$(M AGREE?!SXT WITH RESXCT TO WORKING CONOITI03S AND EM?LOYEE The parties hereto agree as follows: Pt. Artjcle 5 (Pay Administration) and Aooendix 9 The new language of Article 5 1s set out in Appendix,A. attached. The effective date of the new language shall be Clay 23. 1985. The text of Appendix 9 to the Collective Agreement shall be as set out in Appendix t3, attached. 9. Article 27 (Grievance Procedure1 The new language of Article 27 is set out in Appendix C. attached. The effective date of the new language shall be May 23, 1985. C. Article 31 (Leave - Foreiqn, IntergovernmentalI The new language of Article 31 is set out in Appendi:x 0, attached. The effective date of the new language shall be May 23. 1965. 0. Article 47.1 (Holidays1 The words "Dominion Day" In ArtfcTe 47.1 are to be changed to "Canada Day". This change will take effect on the date of signing of this - Statement of Intent. E. .Article 39.4 (Basic Life Insurance), The new !anguage of Article 39.4 shall be as follows: Jasic life insurance will terminate at the end of the aontn in which an employee ceases to be a civil servant unless coveraye is extended under the total disability provision. Employees who retire and iaunediately receive an allowance uncer th? Poblii -2- Service Superannuation Act are entitled to free ongoing coverage which will reduce to two thousand dollars (S2.000) thirty-one (X).days,after the first of the month coinciding'with or following the date of retirement and this amount:will:be kept in force for the remainder of the employee's life. The effective date of the new language shall be August 1, 1985. I_ , .; 1~ :~ -, .-, ,.r .-. _ ..: .. F. Article 24.4 (Job Security1 The new language.of Article 24.4 shall be as follows: .,, .' An employee who does not attend a'placement interv?ew when requested -. by the Emiloyer or who does not acceptan assigr&nt in accordance with subsections 24.2.1 or 24.2.3 shaWbe laid:off and the provisions of Sections 24.5 and 24.6 sha!l not &ply: ' .' .'.- .. The effect,ive.date of the new language shall .be I!y,23,.1985. _. .' / I,: G. Article 16.8 ‘('Health and Safety and Vldeo"i%splay.Terminals) The following language shall be added to.the.Col:lecti;e Agreement as . Article 18.8: z-' 9. . . Video display terminal w&stations's~hall be'equipped with tables ?. .,, '....< or stands for the terminal to pennit'ft to.be:af,,a height appropriate ;~ to the circumstances of,its use and-the seating avai'lable for the operator. The chafr provided shaii have a seat which is adjussable .- -..j ;, 1. in height, a back rest which is adjustable in height, and a fout 1 . _ 'rest hhere necessary to accbmnodatera particular operator. Mherz . . r appropriate to the nature of the work, papei'stands or work srands shall be provided. .: The employer shall have until January 31, 198~6 to il:\pler;leilt this orsvisicn. : . ,J.' -3- H. Schedule 6 The following classes shall be transferred from Schedule 6 to Other hours of work schedules, as indicated below, effective December 1, 1985. Class Title Class Code ke-assion to Sch?cuie(sj Supervisor of Operations . 03531 : 3.7 Highway Carrier, Supervising Inspector 1 06006 3 Real Estate Officer 1 (8U) 00999 A (36k ilour week) f Real Estate Officer 2 '01002 ' A (36;1 hour week) Real Estate Officer 3 01004 A (36& hour weekj Organirer 2, X-Ray Surveys ,09532 , ; 3 Rehabilitation Offfcer 3, Health 10206 A (36;i hour week) Euilding Caretaker 6 50640 3.7 Court Reporter 3 00485 3 Artifacts Officer 07870 ! 3 L!btarian 5 j 07938 3 Nurse 3. Nursing Educatfon 50084 4.7 Soctal Work Supervisor 1 (BU) 10?05 3 Social Uork Supervfsor 2 (8Ul 10108 3 Architectural Job Captain 12234 3.7 Photogramtrist 4 12886 ' 3 Technician 1. Engineering Office 12722 3 Technician 2. Engineering Office 12724 3 Technician 1. t!unicipal Engineering 12970 3 Technician 2. Munfcipal Engineering 12972 3 Technician 3. Engineerfng Survey 12919 2 . Technician 4. Engineering Survey 12920 3 : 12934 3 12956 3 12756 3 12758 3 Technician 3, Constructlon Technician 4, Road Design Traffic Analyst 4 Traffic Analyst 5 -4- I.-,. ?art C of-the Collective Agreement: .Reqular Part-time Civil Servants ,.l . ,Lanquaqe :y -e The language-of Part C,-.Regular'Parf"time Civil Servants is set : 'otit in Appendix-E;.attached. - "" - _ ~. " ,:- ', ,. ,. 2. Conversions from the Unclassified Service to the Classified Service Ministrfes shall review.existfngpartFtime jobs-in the unclassified 2 seivice.to'detenhine whether the required work will continue indefinitelv u i" on‘a year-round, ongoing-and uninterrupted basis, Where ministries determine that the'reouired work~.is Year-round. ongoing and continuous, , inrnature ,and the regularly scheduled hours of work, for the job meet:the ,requirements of Article 59.1.: the job, will be converted to a part-tfme.position-in the classified 'service. 'When-the-Staff Relatfons,Branch writes to the Directors of Personnel ,.of the various Hinistries requesting them to implement Part C of the Collectfve.Agreement. It will indicate to them that in conducting the above-noted'review it-is not intendedthat the existing hours 4 -of work'~for'part-time unclassified jobs "il.1 be reduced (to fall below the limits specified in Article 59.1) for the purpose of preventing the conversfon of such jobs ~to the classifiedservice. 'e : As unclassfffed ,jobs .are identified~for.conversion to positions in the classified service. the persons who are to be appointed to these positions as regular part;time civil servants will be advi,sed of the effects of the upcoming change to their status. This advice will cover the benefits provisions of Part C of the Collective Agreement and the individual's senbri+.y or probationary StJiuS. as applicable, on the date of his subs.cquu:?; appointmehr to the classified service. r ,. -5- The employer shall identify positions and advise employees, as provided above. by December 31. 1985. It iS understood, however, that a uniform appoi.ntment date of January 1. 19%. shall apply to all appointments to the classified service resulting from the above-described identffication/conversion process. 3. Probationary Period and Seniorlty Persons appointed as regular part-time civil servants on January 1, 1486 in, accordance with the above-described identification/conversion process shall.have continuous unbroken service immediately prior to appointment to the classified service recognized for probationary and seniority purposes. It is understood, however, that any service pr:or to January 1, 1984 shall not be recognized. To illustrate: 1 A) Employees who have one (1) year or more s&vice.(i.e. hired on or before January 1. 1965) fn the position l&diately prior to appointment to the classified service shall be deemed to nave . completed their probationary period on January 1. 1986, and their seniority.will be calculated from January 1. 1984 or their daie of hire, whichever is later. : I 9) Employees who have less than one (1) year's service (i.e. hired after January 1, 1985) iannediately prior to January 1, 1986 shall complete thefr probationary,period no later than one (1) year from their date of hire in the position and on completion of their probationary period shall have their seniority calculated from their date of hire. i = - 6 - Effective Date of'Provisio& ' \ 4. ._ i ~I The provisions of-Part c 6; the Collective Agreement {ill be implemented . ,*g/ i, effective January 1, 1986, with~~the exception of the following : provisions whiih'shall have an efjective date of i&23, 1985: I I. i; . -' Article 65 - Isolation Pay . . - Article 27 - 6rievance Procedure 1 ~Ariicle'79.1 (a)(i) -'Termination Patients ,.. , Article 7g.l(aj(i)Jshail be applied where all~the following .,. conditions are'met:'~ _ . . i - an u&l&sified.jbb is converted-to a regular part-time . . . '. .,. position in the classified serv;ce effective January 1. '. ., 1986. the incumbent of the unclassified job did on or after .:: , ., : . May 23, 1985, but before January 2. 1986. f .- _. : * ._,, ,,, ~.- - the incumbent of the unclassified job had a minimum of one (1) year of service in the job iaanediately prior to his death. 'It should be noted that where all of the aboveinoted conditions ,. .' are satisfied, Article 79.2 shall have no application. .'. - Article 76 A I?-'- - Maternity Leave : -.. An employee who is appointed to a regular'part-time position .:.. in the classffied service on January 1, 1986'shalT have that -_ portion of her maternity leave which occurred on or after May 23, 1985 covered by the provisions of Article 76 where all of the following conditions are met: the employee was entitled to and took pregnancy leave under the provisions of the Employment Standards A-t - 7 the employee was entitled to UIC maternity benefits under the Unemployment Insurance Act the employee provides the,employer with proof that she received UIC maternity benefits. Where the leave commenced prior to Way 23. 1985,and continued after that date, Article 76 shall apply only to'that portion of the leave falling on or after May 23, 1986 at the same level of benefit that would apply had the leave been covered by Article 76 from the date of its commencementT . . E.g. if leave commenced one week prior to May 23. 1985 the employee.would receive the provisions of Article 76.3.2(a) for 1 week and the provisions of Article 76.3.2(b) for : the following 16 weeks. z Notwithstanding the above. it is understood that the provisions of Article 76.4 shall not apply to any period of titemity leave prior to January 1, 1986. 5. !molementation Reoort The Eapioysr will provide the Union with a report which will indicate the number of part-time unclassified employees who were appointed as regular part-time civil servants on January 1. 1986 as a result of the aforementioned identification/conversion process. This report will be provided a; soon as possible after January 1, 1936. -8- 6. Reconciliation Tape on Union Dues _. The .reconcilfation tape on union dues described in Appendix 1 z of the ColTective,Agreement shall be modified as soon as possible .' . after January 1. 1986 to include, for each employee, an identifier code indicating current employment status under one of the following headings: ! :_ 'I Full-time Civil Servants - Regular Part-Time Cfvii Servants -. .. ..: - Unclassified Staff - Seasonal Employees Unclassified Staff - ,Other than Seasonal Employees The Employer will'consult appropriate Union:officia~is concernin.g the Union's operating requirements in relation to thfs modification J:-.Article 25 -Seniority (Length ~of Contfnuous Service) The new language of Article 25 shall be as set out in Appendix F. attached. The effective date of the new language shall be January 1. '1986. K. Article 3.13 - Unclassified Employees The new language of Article 3.13 shall be as set out in Appendix G. attached. The effective date of the new language shall be January 1. 1986. I -9- L. Grievances It is understood that the new or revised language which the parties have agreed to implement pending finalization of the Collective Agreement is subject to Article 27 - Grievance Procedure (attached as Appendix C). FOR THE EMPLOYER FOR THE UNIONS .Date Sf ynature" Date . . Signature * Date Signature c Date : Signature