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HomeMy WebLinkAbout1988-0534.Union.88-12-13 ' · '" ' ' =~ ,'~ ' ONTARIO EMPLO¥~:S DE LA COURONNE ,' CROWN EMPLOYEE$ DE L'ONTARJO GRIEVANCE C,OMMiSSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREEt' WEST, TORONTO, ONTARtO. MSG 7Z$. ~OlrE 2700 TE£EI~HONE/T~L~PNONE ~80. RUE D[JNDAS OUEST, TORONTO, (ONTARIOJ M5G IZ8- BUREAU 2100 (416) $~8-0688 0534/88 IN THE HATTER OF AN ARBITRATION Under THE CROWN 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: M.W. Wright Vice-Chairperson ~ F.E. Collom Member :': A.S. Merrit~ Member. For the Grievor: M. Ruby Counsel · Gowling & Henderson · Barristers and Solicitors J. Albrecht Guelph Correctional Centre, Ministry of Correctional Services For the Employer: J.F. Benedict :. .. Manager Staff Relations & Compensation Ministry of Correctional Services Hearing: November l, 1988 D E C I S I O~N This is a Union Grievance brought by O.P.S.E.U. The Grievance ils dated June 6, 198B and reads as follows: "STATEMENT OF. GRIEVANCE Several CO 3 positions at the Guel'ph Correctional Centre have been vacant for extended periods of time. Competitions have not been held to fil 1 them. SETTLEMENT DESIRED That all vacant CO 3 positions at Guelph Correctional Centre be identified and com- petitions be held to fill them." T'he Union's case r~evolves around Article 4. I of the Collective ' Agreement which reads as fol lows: "4.1 When a vacancy occurs in the Classified ~' Service for a Bargaining unit position or a ]~' new classified position lis created in the bar- · ~. gaining unit, it shall be advertised for at ~m~m~ least ten (10) working days prior to the esta- : 'blished closing date when advertised within ..~. a ministry, or it' shall be advertised for at '~' least fift~eeh (15) working days prior to the m m ~ $~ establ i shed cl osi ng date when advert i sed servi ce-wi de..." (Underlining added) The Union's complaint is that between June 1987 and June 1988 three Correctional Officers-3 retired at the. Guelph Correctional Centre and a fourth C0-3 position became vacant. The Union complains that since the 'four C0-3 positions have become vacant the Employer has not taken any steps to fill the vacancies by adverti.sing and taking the .necessary steps to fill 'them as required by IArticle 4 of the Collective Agreement. What is most unsettling to them Union is that ever since the vacancies occurred the work previously · ~, performed b~ CO-3's has been carried out, on an acting basis, by ~? CO-2's, a fact which is admitted by. the Employer. In other words, the work previously done by CO-3's is now being 'done by acting CO-2's and the Union has no idea how long this state' of affairs will be continued by the Employer. On April ?, 1988 the Senior Assistant Superintendent at the Guelph Centre sent a memorandum to all Correctional Officers-2 in which he advised them that "for the present time we will continue to~ be placing Correctional Officers-2 into the position of Acting Correctional Officers-3'." CO-2's who were interested in becoming acting 'CO-3's were invited to signify their interest to the Senior Assistant Superintendent. On July 20, 1988 the Regional Personnel Administrator of the Ministry of Correctional Services wrote a letter to the Staff Representative of O.P.S.E.U. at Guelph in which he confirmed that there were then four vacancies at the Correctional Officer-3 level. He then went on to state the following:' "The assignment into these positions has been rotated on a developmental basis to those staff who have expressed an interest' over the past twelve months. As stated at the meeting, we are presently reviewing our manpower structure at the Guelph Correctional Centre and as a. 'result have chosen not 'to fill some existing _ b3 _ vacancies until this review is finalized. To this end, I would point out that Section 18, Subsection (1), SUbsection (al of'the Crown Employees Collective Bargaining Act clearly gives management the right in determining com- plement and organizational structure." We note in passing that at the hearing Mr. Benedict did not press or argue the "developmental" aspect referred to in the fore- going letter. There .was also filed with us a copy of ~ letter wri.tten by ...~ MK. R. M. McDonald, Deputy Minister of ~Correctional Services. to "Superintendents'~ by which we assume, is' meant the Superintendents of all of the Correctional Centres in Ontario. In this letter, -i the Deputy Minister points out, among other =mattersj that "the Ministry will over a period of time, cease to utilize the Correct- "2 ional Officer-3 (gO-3) category." .~ ~ Mr. Benedict has advised us that the three C0-3 posi~tions whose ,j prior incumbents .retired have been eliminated from the manpower i. stru~:ture since September 1988 and that only one C0-3 position sti 11 remains vacant. Counsel ~for the Union recognizes that events have overtaken him as ~egards the three positions which have been eliminated and he asks, therefore, merely for a declaratory statement from this 8oard that the Employer should have applied Article 4 by proceeUing .. to fill the vacancies when they occurred. He also'asks this Board to direct the Employer to fill the vacancy which still remains open in. accordance with the'provisiOns of 'Article 4 of the Collective Agreement. Counsel for the Union complains about the protracted period of uncertainty which has been imposed by the Employer-upon the C0-2's at the Guelph Centre. Pointing to Article 4.1 oflthe Collect- ,. live Agreement he argues that the procedure which the ~mployer .'must follow "when a vacancy occurs" is very clear namely "it (the vacancy) shall be. advertised..." and filled as provided for in Article 4. Anticipating the .argument by Counsel for the Employer founded on Sec., 18(1) of the Crown Employees Collective Bargaining Act Union "' Counsel points to. Sec. 7 of the same Act which vests collective bargaining authority in a Union which has been granted representation rights by the Ontario Public Service Labour Relations Tribunal Sec. 7 gives-the ~Union laUthority to bargain concerning "promotion" from C0-2 to CO-3 and that the method of giving effect to the promo- tion is set out in Article 4 of the Collective Agreement. Strong objection, is raised to having the C0-2's held in a state of suspension for an indefinite period of time while the Employer makes up his mind at the same time disregarding entirely the -. provisions of Article 4 of the Collective Agreement. Counsel for the Ministry argued that no vacancy has occurred and he advanced three arguments in support of that proposition: His first argument was that Article 4 of the Collective Agreement is silent on the question as to how much time an Employer may take before deciding to fill a position. Until such time as the Employer makes a decision to fill a position no vacancy exists and it is beyond the Board's jurisdiction 'to impose time limits on the Employer. The secondl argument is that management has acted reasonably in that it would not make sense to fill positions while a process-is under way' to change the manpower structure by eliminating .the CD-3 positions.~ We can deal with both of these arguments at the same time. This Board does not seek to impose any time con'straints on the Employer nor should this matter be determined on the basis as to whether or not the management decision is a reasonable one or whether it is being applied in ~, a reasonable manner. This 8oard looks tO. the Collective Agreement to see whether or not t~he agreement has been complied with. When a C0~3 retires and his work is being performed by another person -- in this case a C0-2 -- it is apparent that a vacancy has 'occurred. If, in the future, manage- merit should decide to discontinue the position then it becomes part of the exclusive function of the Employer to take such effective steps as management considers necessary by determining ithe complement of the organization' and there are l~)roc~duresI available for management to. give effect to its managerial decisions when they are finally formulated. Until such time, however as management reaches a final decision the provisions 'of the Collective Agreement apply and must be complied with. Mr. Benedict's third argun~nt, which is rather convoluted, leads him to the conclusion that·this Board is without jurisdiction. After reminding us about the distinction between civil servants (employed in the classified 'service) and public servants (employed in the unclassified service) he makes the point that the mere fact that the Employer chooses to have the work continued after the retirement of a civil servant does not necessarily mean that there is a vacancy. A. vacancy is not created, ·he argued, by the mere fact that 'the same work is being continued.- He.argued that whether- or not there is a vacancy will depend on who the Employer decides will do the work, 'that is to say whether by a civil servant or by a public servant and not by the nature of the work involved. If the ultimate decision should be made that the work will be done by a public servant ('unclassified service) then, .by reason of the provisions of Article 3.1 of the Collective Agreement, Article 4 thereof will have no relevance. Until· that decision is made · no vacancy exists and, it is argued, this Board'is without juris- .d~ction to deal with t. he matter. Mr. Benedict's argument falls in~ediately to the ground since the Employer already made the decision on who will do the work -- CO-2's working as acting CO-3's.. The Employees who have been doing the work previously performed by CO-3's are Correctional Officer-2 Employees. They are civil servants (employed in classified service). Dn the basis of Mr.. Benedict's own argument, therefore, a vacancy obviously has occurred and Article 4 of the Collective Agreement ~applies. ~' In the result, this Board determines as follows:- ... l. We declare that vacancies occurred when prior incumbents of the C0-3 positions retired and the Employer should have complied · ? -with Article 4 in. posting and. filling of those vacancies; and 2. A vacancy now exists in the .classified service for a C0-3 position and we hereby direct .the Employer to proceed forthwith to post and fill the Vacancy in accordance with the provisions of Article 4 of the Collective Agreement. To the extent indicated above, the Grievance is allowed. DATED AT OTTAWA this 13th day of December, 19g~.