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HomeMy WebLinkAbout1986-1439.Union.88-03-16! Between Before IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES’COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) Grievor And The Crown in Right of Ontario (Ministry of Health) Employer Paula Knopf Vice-Chairman T. Traves Member H. Roberts Member For the Grievor A. Ryder COWlSC!l Gowling & Henderson Barristers & Solicitors For the Employer E. Hipfner - Staff Relations’Officer The Management Board of Cabinet Hearing December 18. 1987 AWARD This is an unusual job posting grievance. The Union is alleging that the Employer has failed to post full-time classif ied positions and thus violated Article 4 of the collective agreement. The Employer asserts that there were no “vacancies” to post and that instead it was exercising its exclusiva right to organize and determine staff complement in times of a recruitment freeze. The issue in the case is whether vacancies existed at the relevant times. The incumbents in the positions in question had been notified of their right to be present at the hearing and to participate independently in the process. However , they have chosen not to appear or to participate. There is no dispute over the facts giving rise to this case. Indeed, the Union elicited its evidence through James McLennan, the Manager of Claim Services in London, Ontario who supervises the jobs in question. The office that he supervises receives claims from doctors and processes them for services rendered, both within and outside the province. Prior to October 17, 1986, there wera approximately 56 claims clerks who were responsi>le for processing and 48 or 49 of them dealt with claims from within the province. The rest of the clerks processed claims from outside the province as well as “opted out” dot tors. In the early fall of 1936, Mr. McLennan knew that he had lost or would be losing four oE his staff due to retirements or transfers. But in August 1986, the Deputy Minister of the Ministry had announced a hiring freeze - 2 ‘- affective until October 31, 1906. so on October 17, 198G, Mr. McLannan posted two scp;lrate notices for "developmental assignments". These "assignments" normally enable people to train in a new position for a limited period of time in order to gain further and better experience in new joas. One of these notices was for a "claims clerk out of province/au t of country” claims processor. The other notice was for *claims processing” which would only deal with Ontario claims. Mr. McLennan's department had lost four employees for various reasons. Their names and duties were as follows: White - in-province claims Revi t - out-of-province claims Lydested - in and out-of-province Voorhaus - out-of-province The evidence established that clerks who processed out-of-province claims were also called upon to process in-province claims from time to time. When Mrs. White retired, her workload was distributed among all the other in-province claims clerks. Following the postings for the developmental assignments, two people were' appointed to the claims clerks "out-of-province/out-of-country" position to take over the places of one person who retired and one person who resigned. Both were from within the department. Elizabeth Kirby was appointed in Desember 1996 and Carolyn Bakker was appointed in March 1987. They still hold these positions. Prior to taking this position, Ms. Kirby had been primarilygrocessi~ng in-province claims, but her work also occasionally covered out-of-province and "opted out" doctors as well. The Employer acknowledes that Ms. Kirby c - 3 - and Ms. Bakker are doing the same work of the two People they replaced. Mr. McLennan also acknowledges that at the time of the posting, the Employer intended to make these appointments on a permanent basis. The notice was 1 designed simply to determine who was interested in the job so that Mr. ElcLennan could assign someone who at least wanted to do the work. After the new assignments were taken up, Ms. Bakker's former workload was given to one of the successful candidates in the competition for the in-province job. Most of Ms. Kirby's work had disappeared with the introduction of legislation prohibiting Ontario doctors from opting out of OHIP. The.remainder of her workload was distributed throughout the department. No appointments were made pursuant to the posting for the developmental assignment for the in-,province claims processing. Even though two positions in that unit had to be filled, it was not necessary to do so by way of a developmental assignment because the hiring freeze was lifted even before the assignments could be made. The Employer then posted the vacancies in~accordance with Article 4 of the collective agreement. The Union's objection is to the original posting for the developmental assignment. Only declaratory relief is sought regarding these positions. The Argument Counsel for the Union based his argument on the working together of sections 7 and 18 of the Crown --- Employees Collective Bareining. lJn.ier section 18 it --- ---- is acknowledged that management had the exclusive authority to make appointments s,uch as developmental 2 - 4 - ,” assignments. however, under section 7, it was argued that transfers and promotions must be subject to the collective agreement. In the case of such overlap, counssl argued that the parties had limited management rights pursuant to Article 4 of the collective agreement by requiring the posting provisions for vacancies in the classified service to fill full-time jobs. It was said that the main issue in t.he case was whether a vacancy arose. It was acktiowledged that a vacancy arises when management decides that there is a sufficient bundle of work for an emialoyee to do on a full-time basis. Counsel argued that in the case at hand, management had decided that a vacancy existed because someone had to be brought in to do a certain amount of work after the original staff wars reduced. It was argued that the developmental assignment was simply a device designed to avoid the recruitment freeze and that the best proof was that no real training programme was established in conjunction with the alleged developmen ta1 assignment. It was stressed that Article 4 of the collective agreement could not be avoided with the ruse of a developmental assignment. By way of relief, the Union sought a declaration that the posting of the developmen ta1 -assignment with respect to the in-province claims processors (Exhibit 3) violates the collective agreement. The Union also sought a deslaration that the posting for the out-of-province/out-of-country (Exhibit 21 development assignment was also invalid and that a new competition be ordered. The Employer argued that the Union had not met the onus of proving that. a vacancy did exist. Counsel for the e Employer defined a vacancy as something which occurs when there is “work to be done” in the opinion of the employer which the employer decides to fill. Counsel argued that the facts reveal that no vacancy should be considered to have occurred because the work done by the Eour employees who left the department was redistribute3 in accordance with management rights throughout the rast of the department. Further, it was argued that management's actions are exclusively witbin its right to rotate ,and reassign staff and that these rights had not been reduced by Article 4 of the collective agreement. The Board was referred to the following authorities: Thompson v. Ninistry_of TransporEtion & Communications, Board File 141/84; O& Chemical h Atomic Workers, Local 9-599, and -I_-- Tidewater Oil%., (Canada) Ltd. (19631, 14 L.A.C. 233 (Raville); Klonowski v. Ministry of Correctional Services, --. -- Board File 16/83 and 17/83; United Automobile Workers and Kysor of Ridqsown Ltd., Kysor Industrial of Canada Ltd. and Erie Metal Finishers Ltd. (19671, 18 L.A.C. 63 - (Palmer); Hergott v. Worker's Compensation Board, File 431/82 and Corv et al. v. Ministry of Health, Board File 0414/85 etc. The Decision The issue in this case is whether the evidence establishes that a vacancy existed. If there were any vacancies within the meaning of the collective agreement, then the obligations under Article 4 can be triggered, including the obligation to post. If no vacancies existed, management is free to exercise its rights to organize the work force as it sees fit without regard to the dictates of Article 4. The parties essentially agree as to what constitutes a vacancy. They agree that a vacancy occurs when management determines that there is sufficient work to be done by an employee on a full-time basis. Applying this definition to the facts in this case, we shall turn first to the out-of-province claims processors.' At the time the notice fo,r the developmental I .’ - 6 - assignment was postej, the evidence clearly establishes that manaqement had lost or was losing two emi>loyees in that unit. Management then chose to find two people to replace them. The work was not redistributed throtighout the department. While the posting advertised itself as a "developmental assignment", it was the acknowledged need and intention of Mr. McLennan to appoint two of the recruits on a p.ermanent basis to these positions. 'Thus, no other conclusion can be drawn except that management perceived that there was sufficient work to be done by two employees on a permanent basis. Therefore, two vacancies existed that management decided to fill. Management chose to fill those vacancies by recruiting interested applicants through the developmental assignment notices rather than the posting requirements under Article 4. Obviously, the recruitment freeze imposed upon management made it appear impossible to hold the traditional job posting. This recruitment resulted in the selection of two employees. One of those employees, Ms. Kirby, had previously done work which encompassed the job to which she was reassigned, namely out-of-country claims. The Union acknowledges that because the tasks she was doing, both before and after the events in question, amount to the same "job' or "position", management had the right to reassign her to do the difforent work within the same job. Thus, it is conceded that there was no b.:each of the collective agreement with regard to the rsasaignment of Ms. Kirby to her new duties. Futher, her "reassignment" is accepted by the Union as a legitimate way in which management could staff-the positions. However, the Union still asserts that the notice (Exhibit 3) and the appointment of Ms. Uakker were contrary to the collective agreement. - 7 - As stated above, it is clear that a vacancy existed. Ms. Bakker had been a claims clerk before she answer23 the recruit notice for an out-of-province claims clerk. The Employer itself treats “in-province and out-of-province” clerk positions as two different jobs, even though they fall within the same classification and job specification. The best example of this is the “separate” postings filed advertising the different positions. (See Exhibits 2 and 5. ) Thus management chose to put Ms. Bakker in the new “job” without regard to Article 4 of the collective agreement. However, since a vacancy for the out-of-province claims clerk job existed, management was obligated to comply with Article 4 and hold a competition for that position or vacancy which Ms. Bakker filled. The result of management’s action was ~ that the collective agreement has been breached and that other employees who were entitled to the benefits of the job posting and competition have been deprived of that opportunity . Therefore, this Board orders that a competition be held for this one position as soon as prac ticable. As much as is humanly possible, Ms. Bakker is not to be given any advantage in the competition with regard to the knowledge and experience she has gained in the position since her appointment in 1986. The Union has also sought declaratory relief for the posting of the developmental assignment for <n-province claims. The evidence in that context establishes first of all that although two ?eo>le were leaving the unit, the work of one 01 those people was simply redistributed throughout the rest of the unit and ad:Jed to the remaining employees’ caseload. Thus, the position was cssentiallyeliminatedbecause management decided that the body of work was not suEf icien t to have it done by one person on a full-time basis. The right to redistribute workload is an undisputed right of management in this situation and therefore did not amount to a brozch of the collective agreement. Management chose to deal with the remaining caseload and other workers differently. Management decided to have that work done by interested applicants on a rotational basis to enable them to learn the job. Mr. Mciennan intended to laave them in place for six to eight weeks and then to rotate others in their place. The Thompson case, ~a_ suggests that rotation for developmental purposes, even for a period of two years, is permi~ssibl’e under the collective agreement. This panel of the Board will not agree fully with that because management could not be allowed to disguise a vacancy or avoid the rights of Article 4 with the ploy of a develogmen ta1 assignment. But each case must be decided on i ts own fat ts. On the fat ts of this case, we are satisfied that at the time the developmental assignment was posted, management had determined that the work needed to be done and could best be done by employees being trained for specified periods of time. This is distinct from a situation where work needs to be done by a person on a full-time or permanent basis. Thus, no vacancy existed in the true sense of the word for the in-province claims processors. We reach that conclusion even in the face of the evidence that little or no documentation corroborated the claim that a real training programme was designed. Further, we acknowledge that as soon as the recruitment freeze was lifted, the P,m?loyer abandoned the concept of the developmental assignGent and then posted two positions in accordance with Article 4 of the collective agreement. But despite all this, we are convinced on the Eacts that at all relevant times management had bona fide organized the work force in such a way that full-time permanent positions did not exist , ihe BOdt-d r-ztains jurisdiction with the mstL?r in the nvent that 0;lr assistanc3 is r3quire'j. with regard to the implemsntation of this award. DATED at Toronto, 3ntario this 16th day of MARCH 1938. _-_----- ___._~ Paula iinopf, VlcG??ZGZGn-- _-__-----.--me- __---- T. WAVES, Member H. Roberts, Member