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HomeMy WebLinkAbout1988-1173.Babb et al.90-08-08 · ' "': ONTARI° EMPLOYES DE LA COURONNE i CROWN EMPLOYEES OE I_'ONTARIO '- GRIEVANCE .COMMISSION DE .. SETTLEMENT R~-GLEMENT BOARD' DES GRIEFS 180 OUNDAS STREET WEST, TORONTO. ONTARIO, MSG 1Z8 . SUITE 2100 TELEPHONE/T£L~PHONE 180, RUE DUNDAS OUESTo TORONTO, (ONTARIO) MSG ?Z8 . BUREAU 2100 ' (41~) 598.0688 U'' : '- / "' -':'*77' . ~ ' :T. ' ' : ,, IN THE HATTER OF AN ARBITRATION .. ~_ .,.~'...: ~..,- . -' Under '"' -- THE CROWN EHPLOYEE$ COLLECTIVE' BARGAINING ~%CT ' ';" ~efore ' , . . BETWEEN OPSEU (Babb"et ali" '- ' ' , ~rievor ' - · allc~ - - . '." .. (Mi~nistry. o[_ Co~uni[y & Bocial Services} ' ' ~ Smpl oye r .. ." ": ' -.. · - T~ ~WilS0n ' Vice-ehairperuon ~.. E'i~m :" . ~ember I. Co,an '" .,- -. ~ember FOR THE -' ~; :-? "~f',~ichar'ds" ' ._ GRIEVOR' .'- .,, -~,,- .... ,.:GrieYance Off'i'6er · '; ': ~'~:- .. Onti~io'Public Service · . ' ' ' · ' - t.i ':. . tFOR TEE' , . '-' -:: ; ~. 'Pa%teks6n EMPLOYER C'0un ' · : Lecal Service's Branch ' ' - .:, -- , : Mi~istry of Community & Social ese rvices -- H~RING: Ma~h 23'; 1989 April 26, 19~9 DECiSiON Thfs' case involves a'number °f.,gr!evance's' arising from a declaration by the employer' that-the grievers are surplus. The grievers 'seek a declaration that'the letters. of surplusage be rescinded and the grievers be reinstated . the appropriate department without loss of pay or benefits. The .grievers are.classified at the OAG '9"level"'and'the'position title in question is,ORFUS Analyst. TO understand the issues, it is' nedessaz~'to set out .the .relevant provisions of Article 24 - JOB SECURITY · 24.1 ~Where a 1&y-off'may occur, by reason of shortage of work or funds or:the abolition of a position or other material change .:~n ..organization, the identification of a surplus' employee in an administrative district or unit. lnstitutio~ or' other such work area and the subsequent assignment displacement or lay-off shall be in accordance with , seniority sub, eot to the conditions set out in this Article. 24.2.1 Where an employee-is identified as surplus he shall be assi.gne~, on the basis of his seniority to a vacancy in his' minis%fy within -a :forty (40)' ' "' kilometre radiU~' of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent '(3%) above nor tWenty percen~ (20%) below the. maximum salary of his qualificatio~,- as follows: ~.a vacancy which is in the same Class o~ position as.the.emPloyee's class or position - a vacancy i~ a class or-position in which' the '- ~ ~? employe as served d'rih his current term of '~:- ~vTcontinuo~s serviCe;"o~'.~::¥-. 24.'2.2 W/th mutual comsent, a .surplus employee shall be :-"~ .=~..assSgDed to a vacancy in his Ministry beyond a forty · ~(40~) k~ome~re, radius of~ high,headquarters provided ~? ~.he~'is q~ai£~ie~, to Pe~f0~m"the work and .the salary ~" .,..' maximum of .the .¥acancy is~not greater than three percent (3) abOV~'nor~f~enty~.(.20%) below the maximum salary of his classification. Relocation expenses u:~ .~' 'sha~!~e paid in, accordance with the proPisions of 24.2,3~ .... Where .,an employee haS~ot been assigned in accordance' with~sub~sections .24.2.1 or 24.2.2, he : s~alluDe assigned'on the basis of his seniority To a vacancy in anoth~r'~lstry within a for%~ (40) ' kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum ..... -.' .- of.<%the vagancy!is, not greater than three percent (3%) above nora"twenty-percent (20%). below the maximum salary.,of his classification; as follows: -'~'3 . ~ a, vacancy wh~ch.~s in' the ~ame class or position as'the employee's class dr posit.ion; ... · - a va~anc~%~" a cias~ or position in which the :-'~-.: ' ~ ~emplpyep:.has served during his current ~erm of continuous service, or - another vacancy '~'24.2~4.~. Effective March 16, 1987, with mutual consent, a '-. . ~,~. sump!us,, empl0y~, w~o has.-nOt.-,been-' assigned in · accordance, with'Subsections~2~,'2.t, 24.2.2, 24.2.3 shall'be assigned to a vacancy in another ministry '~ beyond a forty (40) kilometre radius, of his headquarters provided he.is qualified to perform the work,and the salary .maximum of the vaCancy~ is not greater than three Percent. ('3%)' above~nor twenty percent (.20%) below the maximum salary of his classification. Relocation expenses shall be paid .'?. l,;~. in.,accordance with the provisions of the E~ployer's policy. 24.3 [omitted] ' 24.4 An., emp,loyee,. , who does not attend a placement interview ,when'r,e. quested'bY: '~he Employer or who doe~ not' accept, an"~signm~nt'-ln accordance with sub- sections 24.2.i or, 24.2.3 shall be laid off and the apply. 2415 . Wh~ ~an amplog~e - '-.' int accordwhCe,. -. wit ~-:-~, :. :. 24.2,,3 or 2:4.2',4, hm' shall be 'subject t0 lay-off in ~ .... J~ accord~nce,~w~'~ the,followin~ applicable sections. 24.6.1 An ~pl6yee- ~' who haS' completed his Drobationa~ .period and-~ho.is"Sub3ect ~o~lay-off as a surplus employee shall - ' ~ :he. following ma~er and~ s~quence · ' -~ · [deta~le~ b i uence-omi==ed] - T0 'understand' ~h~ c~mplex .~ssU~. ln'-=his case, an a~alys'ls ~f '" '~' ~-' necessa~. Steven Baker, one 'of. the the 0R~S Recove~ unit 'i~ x, ~rfe%or~ gave extensive te'~timony ~h the; mat~er. 0f assistance ~n ~his ~gard is. ghezPgsi.~ion $Deci~i.cation ,(E~ibtt 5) for OR~S '= i987..~, It: state ~alys~ dated April 27, .. · "To 'assess and recover ~Yg.rpd~n~' under F~tlY~.Benefi~s Act (on a, .caseload of.'appro~. 4','000 cases - value 7,5 million ~ ,- . D~IES ~D RELATED TASKS_ ~,~ [ ,' 1. Reviews case decision~ and' 0v~pa~ent su~aries by: - reviewin~ decisions of IMO' s to ensure that correc~ aPPlication of legislat£on and accurate 'calculations of overpayment are documented;' ~-'- '~,j ' ;summarizing, in de~l,~ caSes where Policy may be flexible, suggesting, most .~ppropriate course of; action,-forwarding · group leader for approval;'. ' '- .'~ summarizing C~es o~ un~'~d~l ~ ' ~. - ¢ircumstances'-.(administrative " error or~'¢l'ien~.':death etc,).; · . - preparin~ computer input forms or authorizing-input forms prepared in unit, ensuring documented overpalrment and supplied reason match, and that the overpayment is recorded within est~blishedtime.period for proper ~alculation; ,' ..... .. - reviewing month.l~.lists of delinquent account and following ' :- up with reminder'l'etters or ~hOne'~Calls;,. - tracing 'deb~6~s Via 6redit"~'.bureau.,_~Ministry of .~r~nsDorta=ion,;'~ostai authorities, or line enquiry ~ext of ~ . kin, Registry O'fflce, etc~ '.:' , -'o., ~ . ,'~'.,-~-?. . . .: ~... · .,.;_ .... ;.', -.summarizing, in d~t'ail, ~ases', that warrant civil proceedings;.~ ':" ' ~' - drafting end 'signing .of .dem~..!~ters for refund, return ,.. of overpayments, as required;. ., ' ... - negotiating paym&nt~ plans ~i~'h debtors .... - :.'-. 2. perfor~-related duties, such. as ' "' 50%' - prepares and signs resp°nse to letters receive~ and ~onthiy . s~atements, requesting'deferral of Overpayment; .~ - views the contents of~le~ter~ and sta%ements' and rpcommends: (1) possibi~ity ofd~ferring;collection of overpayment until · circumstances change', ~or (~)'recommends. wri~e~. _. ~. · -off 'of 'OVerpayment subject Supervisor's approval if over $500.00 due to an administrative' error, or.,. ~. (3) '~egotiate payments;' _. -, " - 'determines tha~ .overpayment will not be recovered when amount under SSOO.OO'is due to an admini'strative~error, in case of recipient.'s death or.where the recipient's whereabouts in unknown; -' - drafts and signs d~a'il~d repli~ to. Mini'ster/Deput¥ Minister, M.P., M.P.P. et al explaining how the overpayment was created and refund'procedures; -'checktng with field 'staff to obtain information to review and finalize c~iculatio~s, and also to explain reasons for overpayments .to clients; - - reviewing computer outpUt to identify erroks etc. either on case. input from unl,t or refunding input, from the. Accounts Branch, and follow Up as necessary; ''~ acts as group,, leader. . , when. leader.' performs other duties as assigned '-by' supervisor/grouP A typical Overpayment situation w0uld~artSe where upon the cancellation of ~%'il~''benefitsL it-.was discovered that the recipient had been,overpaid i.e. paid when. not eligible due to income, from work.' When the'infOrmation arrived at~ORFUS,' it woUld be checked for accuracy, and then. inputed into the computer system Called Comprehensive IncomeMaintenance Syste~ '(CI~MS.).~ This would produce an "overPayment' statement" which' would be .sent to the recipient. .If the client responded, the analyst would write a letter to try to arrange repayment. Once the arrangement i's made, the computer automatical~ gene~ates-a .monthly update. If the recipient missed a payment, he .Would'~'be.. contacted and 'further arrangements.made, ,If the recipient ignores the's~ction, then the file would, be. reviewed, a-summary . prepared and civil · legal proC~edin~s. might- be comme~ed resuttin~".in liens on property, garnishees on wages etc. The section had its: own s61icitor. If the recipient had d'i'sa~e~re~, S~arches would-be made through the Ministry'of Transportation, credit.bureaus, Bell Canada etc. The -sectionl had 11 clas~ified~ s~aff and one unclassified. The case 6 · ' load .was about, ~ f 000 cases per collection "~ff~der ? - - ", ~ ,.':-On 21,Sept~be~f. 1988 the Assistant.Deputy MiniSter wrote the members of ORFUS informing them that "th~ current funCti~K'assigned to ORFUS will cease to. exist within the Ministry,.?-'.iH'e declared their po~i~tons.~r~s within section. 22(4).of the Public Service ,Act and Article 24.1 of the ColIect~ve Agreement. 'The largest portion of the .~ob went to. CCS in the Ministry of Government 'Services.~ i..e. ~he Central Collection Services ~°r'~h~ provincial government....$0me~of the functions were decentralized, for example ' .. checking the. payments was moved to the' social services .,Di~tr'ict + Offices. T~is had. previogsly taken an 0RFUS 'anaiyst~'almoSt an hour · 'a'day,.~ Alsp ~ ~is~rict offices now checked the computer system through their terminals to see that the m0~t~ly statements"'are sent OUt. :Irene'. Sch~effer is a senior PoliCy. Analys~ and in 1987 she was ~ ' ' instructed-to ..look at all the functions of the Family. Benefits ~- Administrative ~nlt. A~ the. time 'in 0RFUS'th~re Oas a backlog of about ~1,000 case~ and o~ly abou~'~,'0~0-3,000 were ma~in~ payments. - It was.recomme~de~ that a number.of cases b~' Written 'off as for eXample.those where no payment had been received and. those that were'over four years old, those where the client..(recipient) had` ' no~..been notified,.or could not be found or was deceased'.' This , amounted to about. 22,00Ocases. The remaining 19,000 were reviewed and .in this' re~ard one of the collection ~fficers from CCCS was 7 seconded. A~Procedure was established in which they would try to locate the client and a notice would'be 'Sent Out.: ~f there.was no response within sixty days the case would be turned over to COS for collection. The.,proJeoted date for completion 0'f"~his backlog was May to June 1989. New files are to be held in the local offices. automated on CIMS and the client iS now to call the local office. If the client does not "call, %he~ claim 'bac~ up pending the introduction of.a new scheme. The reViewing Of monthly lists of. ..delinquent accounts will now be ~one in the~l°Cal~ offices. They max ,now re'er the matter to COS 'or recommend 'that it be written ..' off or'.J6st postponed or let it simply'go forward'in the computer system for successive monthly statemen=s to the ~lients%' Tracing of clients will.be done by COS. ". . ~'. If anaccount is delinquent for two months'it is to ~o ~o cc$ unless the'local office suppresses{he 'file. 'Negotiations will be done at the local ofice. When a case goes to COS, it~ ~is in the form of a referral profile identifying the client ~tC~ .and the 'actual file would stay with ~he i~cal 9f~ice~ The new cases are being held in the local (distriot) of'rices Until.'the. back log is cleared up. · Ms. S'chaeffer t~stified that" CCS is a much more ~ctive collection system than~ORFU$ - more a stereotyp~ Col.le¢~ion agency with skip tracing'capabilities. The clerks'at Cc~'a?e~,at a higher. ..-w.c.lassification than tho~e' at ORFUS. .. The Union argues that the terms of'Secti~n*-24.1 were.'n'6t met. The work is still there. ' The~x'bac~i'6g ~f c~s i,s essent£ally .... cHimerical-because they were inactive files. ' The new procedures when ~inal. ly in place may simply k.educe the '~ed for a-few~of the · employees, but the basic~work does not di's~pear'~or ~Ven Change in~ any fund.amenta! w~Yl The'"more active stoic of Collection''. is ~ust that - a mere.change in style-or' techhiques and ~hey could ~ust as eaSilY be used by 0RFUS. Therefore the ~ob has ~ot beeh abolished.' .Only in th~ case of the ~0 day review ~eriod:by the~District O~f£ce has any work been actually tr~nsferred'°~-of..the'ORFUS· function ~ and eyen in that case £t mi~ht be that some. of ~he grievers could 'attic% 'OffiCes ,. With.reSpect to the proposed t~nsfer'of ORFUS grievers to .CCS, Mr.. Richards for the Union argued that bein~ declared~SurDlus can. only occur within the transferee Min'i~try, ri.e~.' move the ORFUS people to CCS and'then if any one is s6~Plus'within~that unit then that is the appropriate time to declare him/her.surplus. With resp.ec~ to-the classification di~fer~nces,-~r.. Richards pointed out that in fact ~h~re ~s a grievanCe~ over tha~ as well' but in any ~vent ,it ~ 'the ~ob itself'that is moved ~(wh~'tever its correct classifi~ati2n~.,~ ~ , ' · .. Y The principle~decision in this,.area and reiied upon by both parties is Union Grievance and Ministry~ ~0~ .Heaith~ (G.S.Bi 665/81 decided 31 March 1982) i.e'. the OHIP c~se. This ~ase was concerned with.the situation~created by the government's decision to move its · OHIP administration .from Toronto to KingSton. The government. offered OHtP employees .the right to move ko K£ngst~n' including rsmoVal expenses. Ab~t 90%~,.: 'of the empl6y'ees de~l'i~ed-for any number of Personal reasons and the government'said they would be deemeO .after two weeks to'have abandoned their emploYment-pursuant to Sectio~ .20 .of the Public Service ACt. The Union ~rieved that the emploYe~s had.Ceen "latd~off''. and. were betn~ den~ed Ar~tCle 2~ ~tghts. .This Board ,alloWed the grievahces~~ :in some ways, this case sounds like the reverse of'the present case, but of distance oFq to use the technical languag~ Of ~he' ~e.ciSion, ~eographical location. In this respect it drew on' an earlier decision,- Travers ~9/79, 213/78 where in a Supplementary Award the. Board~ had to determine for purposes of rein~tatement what "substantially equivalent Position" meant. The ~oard at page 10 of that Supplementary Award wrote: "In the search for -factors of equivalence between ';jobs, geographic legation and level of skill and 'responsibility. In this particular case, the'Union stressed the impO~tagce~.of preserVing pay''level' and ~eograDhic location, in this' particula~ case, we would'agree that geographic location is a relevant factor in evaluating the 3oh's. ..2..' Therefore, in this case, a position within commuting distance.from Ridgeway is necessary to meet the requirements of S 18 (3a)." · The Kenned~'panet-~n the OH~P case found that~the ~easoning in Travers which was dealing~wit~ 'the ~ow Sec~£on 19"-(4) of CECB Act offered "some support for the position %hat one element of a' positioh may be,~its GeoGraphic component." · ~ .... Then at page'~12,i~t~9~,BoaKd went on to characterized the issue -before £~ as follows: l~-~ ~ -r~ "The issue' to be resolved.in this arbitration tel&res directly to Article 24.1 of 'the Collective~ " """~ -,' -~reement and whether in the ~ircu~stances the employees, who are unabi~ or unwilling ~o. relocate =o..Kingston are. '2:'- ...~.-entttled tO the contractual rights of employees who have been laid-off. :The'isSue. may be. even mo~e .narrowly. "',stated .as the .determination. of whether or nbt the positions'occupied"by·lncumbeh~'employees in Toronto have - '": -a,..~eOgraphic c0m~onent. It is our view t~t the situation has be~n characte~iz'edcQrrectly by the Union '~ --"' ----~as a situation of/lay-off and.for the reasons..relied upon by the Union." .... " ~ ,. .... · . The Union had relied on the location in th9 Posit/on Specification ~n~ the Ge~gkaPh£ca'i~'~constraints'adopted by the parties in the assignment proViSionS-in Article 24.2.1,, 24.2~2, and · 24'.2.3 of the Collective Agreement-'~"Mr. kennedy%concluded at page 14: ~'""~' ~":' ' ':' -'h:' ~ . "'.' ,' ?. ~ i~ . -. :.,, ' - -'" "It.:ma~ fumther be Dpt~d that in Article' 24.i,"the identification of a surplus -employee is. ,related to "an 'administrative district or unit, institution or other such work area." The Employer's-positi6n is, in substance, tha~ "- ,where the.job content remains the same, the emPloyee.can be transferred anywhere within the Province of Ontario to perform that work.. .The.:specifi~ language of the clause defines narrower boundaries outside of;which~ the ~Emplqyee becomes a surplus employee rather than one who has abandoned the 3ob, The actual identification of those boundaries in the abstract 11 is not within the purview of this arbitration. Each situation has to be viewed on its own facts and'in the light of what is',. reasonable in ali the circumstances. The.,cDntract language in Article 24 indicates, without specific definition, that the .~parties have agreed'that those limits do-exist." The union in our case argued"that.if 'there is~any ambiguity in Article 24,~the.Board shouid, iook at the history. In this respect it offered the' eVidence~of'Donald'Stewart. He has been the job s~Curity officer at O~SEU for ~reater ~han-fo~r years and, as such is responsible for 'the administration of cerqain provisions of the~'collecttve 'agreement. When a host MiniStry declares an employee.'Su~lus,.'lt 'giVes 'a letter-of;surPlus and lay- off · and the Union as.a matter 'of right ~tso receives a copy of the le%t~r. If there-is no notice'of 1.aY-off, the Union still receives a' letter of surpiu.s..from the~ Secretaria~ on.'a, monthly. list alon~ with the vacancies that are identified:by the Secretariat for wh$ch surplus employees have access rights. Mr. Stewart:provided. the Board with a list of organizational changes. These included-,t~e dividing up of .the old Ministry of :Transportation and. Communications: the Communications. part was moved t° the Ministry of Citizenship and Culture. in which citizenship was created into a separate MinistrY,of,,Citizenship, and Culture and' Communicat.~Ons were Joinedto.'form a new Ministry (1~87); In 1985 the Division of M~nes and. Minerals was moved from the Ministry of Naturai'Re~ources and` combined with. the Northern Affairs to form a new Min~'str¥. several other examples were given. Th6 m r~sp~tive employees ~moved .wi.~th .their ..Jobs into the '~ewly constituted~ Ministries,' No~ not. t. ce. of ..surplusage was ~iven or -~equired a~d they did aot appear~on the monthly last. Another more ret-ant ~Xa~p~ef~ a Financial Officer II~ was moved from H°6St~g to Gove~e~t' ' Se~tce~'~ ' and' ~he ~-~gdundancy was declared in' . the transferee'"Mi~st~ .'This was part, of the gransfer ~:' ~he 'Ontario L~nd Corporation tO G°ver~en~-~Se~l.c~ver a .number of years. ~ somewhat', different ex'pla.-wes the ~ransfer of Brookside Centre from the Mintst~ of Co~uni~ and Social Services to the Mi~st~ of'corrections. - ' ~'1 ' ' ~" ~': ~ ~- ' · ~ ' ~- .- The: Un,on argued' ~h ~hi~ evidenc~ sho~ed, wh~re the ~ployer has nb~' exerCiSed-or c~im~d--rl~h~s '~°'-~re~te surplus~ and ~here'~re has .... ma~e,..repres~'a~ions'. , ~6: ~e-Union as-'t~ how they ..... ' 4- ':~ '' -' '" .wouSd~et. "'Rely~nff on ~hese a o~ ::~niofi~did~no~ att~Pt to r&neg6fia~e "'~het"tems." of ~h~. Colie~t'ive" ~greement.' It then re~err~d the rBoa~-t0 .i~s~deci~ion-in Ha~w~ll-~'and, Mlnist~ of .Cdrre~tional Semtces (GSB 50~/82). ~he -S6ar~' ~found' on the evidende ~f bargatni'hg~-hi'~to~ ~fi~ ~he 'Mifiistry"was estopped from refusing the ~rievor his moving expenses un, er its own policy. By way of comparison s~: T~shiD 'of Jaffray and Meln~ck and C.U.~.~, LOcal'lgl (1987):. 29 L.A.C..(_3d) 403 The Union.also referred the Board to SheDpard and Ministry of Correctional S~rv~c~-(GSB' 5~0/B2'.)'~'~. In ~h~ ;.,case ~h~ evidence ~ha'~: ~h~ pr~0~ pr~e~co, of the ~in~str~ ~n ~r~n.t~n~ Correctional Officers -a p~id '~a~ Break had ~on~ on for Furthermore this had previously been noted in the'Burns_ grievance decision where it wad"stated that ':fOr .a,..period of y~rs prior to the ~hange in 1982~ the gri~VOr h~d received,~eight hours' pay for a shift of eight hours includin~a.'.mea~ period~%~ The Board relied on the decisio~~ '~ of A~bitrator Kennedy-in Re'Dom~las. Inco& United Glass and Ceramic WOrkers, ~Ldcal.-203 (198~)~,. 9 L.A.C. (3d) 125 in which he concluded %~t the company was'~stopped.~fr?m..putting an end to its prior pra~i~e Agreement. A~ page 19 of ~he'Sheppard decision Vice-Chair Roberts concludes: ?The doctrine of promissory estoppel has found 'the basis '.~f many awards issued by this Board, and we can see no reason ,why it ough~ not'to form the.basis of.~he a~ard in %he present case. FOr several years, the Min£stry~forbOre from £nSisting upon its strict contractual'ri~hts to require, employees of the '.Toront0 Jall~to wor~ for $ hours ~er da~ 'W~thout~ paid meal break. The employees at,the ,facility.were induced to rely .Upon this.practise, and this reliance was ~otheir d~triment, in the sense that' they 'never sought, to .p~otect .their expectations through language negotiated Agreement. The furor which followed the Ministry's decision to ....enforce its strict~ .con~ractua~ rights' .eloquently de~hStrates that if adequate, notice had been'given, the Union would have attempted to renegotiate the'relevant language of the Collective Agreement. Ih this respect, this.case appears ~' %o be ,on ali.fours" with Dom~las, supra, and as 'the Soard did in that~case we Conclude that the estoppel must continue until "- the end of the Collective Agreement which was in'f0~ce during the ten month ~eriod." The UniOn further s~bmitted that an employee cannot be dePriVed of his position .unless it is part of. a'. larger reorganization. ~t refer~ed us to Corr~ and the Ministry of Health GSB 424/85 and'~kinner and the Ministry of Industry and Tourism GSB 226/79 The Skinner deci'si°n dealt"witH~a g~ievance tha% the emP~er, had' viola~ed Art~ci~ 4 by ~t Pd§t£ng.'<new .positions. when it massively reorganized the Minist~'of"t~dustryand,Tourism. The Board agreed. SpecifiCally, the grl'e~or~ gr~ieved5 that 30% of the w0r~ 'he 'had previously done had 'be~nt~ansferred to the p~motion unit Qf .~he Industrial Deveiopment."B~anch and it'.sh°u'!~hpve bee~ posted so that he coul~'"have competed ~for..it. ~The Board· agreed: the. grievor's old posi~i0n had'b~en abo~t§hed and two,new positions had been Created. (Page. 6). "The Mini-~%~y in our,Qase~argues that the grie%ors positions are like tho'~°f'Skinnerand submits 'that i~new positions arise in CCS as a result of the work transfer then' tho~e.'posi%~ops must be posted.' -'- - Mr. Patterson for the2~inist'ry a~ued that there is an ...arbitrability issue. His poi~ ~s'that the Ministry first decides w~ther to la~-off and .that decision lies 'strict~y.'within its authority as set 'out in Sdbs~Ctioh -~8 (1)- of CECB Act and .specifically clause (a). "c0mple~ent, organization..., work methods and, procedures". I have no doubt 'that the' true~.aqthor~ty of a Ministry to !ay-off'a PUblic servants-clearly arises frpm Section 22 ('4) of the Public 'SerVice 'Ac~ an~ ~eciffcallY in.this ~case the ctaim "abolition of a pos~ti'~n or o%he~ mater/al change". I~ have pre~ously analyzed this~issue'in'"Dafoe'-and 'Ministry of Natural Resources GSB 1868/87. fnd~ed"the' ~ght'of this Boara. to review releases 'to decide 'whe=he~ th&~ ake bona fide releases has been repeatedly-affirmed by this B~ard: see Leslie and Ministry' of. · Community and Social Services GSB 80/77 and of course above ali in our own circumstancgs the OHIP cas~ supra pages 8-13 itself. In th~ OHI__P Case the Ministry said the employees were n'O~ ~aid-off; -th~ Board said they,.were. In ou~ case, the Minist~ 'says th~ ~" ~g~levor~ were iaid-of~; .the Union ·says they were not bona fide "' laid-0ff. Of .course,.,if their ~erminat'ion was not a lay-elf, then it was a dismissal ~ithout.3U~t cause. ~See .Dafoe supra p 16 and pp"19-20. ·'Furthermore, the. answer to the Mlnis~rY's argument that '''' lay-off'is not negot~.able'~is answered bYpointin~ %0 Article 24 of ~he ~ollective. Agree~.ent., 'On th~ merits.of ghe case, Mr. Patterson submitted '~hat the pOSitions. of the griever were abolished or disinte~rated: some of the functions were. transferred-to CCS and some downstream to the '' IMO (Income Maintenance Officers)' a~ the-MCSS-~District Offices, H~ fu=ther argues that the superior tracing and 'collection· tech~ques 'available at COS s~gw that the po~itio~ is a different position. He distin~u~shes ~h~ changes testified to by Mr/ Stewart as s~mple~matter~ of..changing Ministry titles - i.e. a new hat, " same person;. Mr. Patterson further argued that Article 24-is Ministry specific: ',~at 'is, it applies only withtna Ministry. Flnal-ly, he.argues t~at as soon as the.Mtn'~ry kn6ws the'Position ' is disappearln~, it-must gi~e the lay-~ff notice: see OPSEU and MCSS."(GSB 2507/86). The material.change occurs when~t~e~decisio~ 'tO reorganize is made and that lay-offs may occur. At t~at point, notice must}he,given. In this respect, the Ministry submitted that ,~ 'there were fOur elements ~o ~ · 'c.-- '~ ' ~ ih:an administrative section, b) within Section .~.4. , it occur ' C) in a Minist~ and d) _ cases l all four have been changed.- ~nd as .Ms%~. Shaeff~r~'test~fied not. a singl~ aspect of the' Job ~ Passing in 'tact .to 'central 'Collection or ~o district. offices. ~'In.ctheir~.~view-~he O~IP case nstanps, for-the proposition tha~ A 'bOsf%ion. is' made up .of al number ,.-,. The operative, words fn ;Sec%ion"24;1 from the point or-:view of t- .. these ~rlevances are "shor%a'~'of -0~k"'o~'. :fUnds or. the a~91i~on of. a...posigion or o~r ma~&rial change' ;~ organiza~ton".- Under ..,_ , the Colle~i~e A~re~en~, ~he ~U~ti~ion of surplust~io~ees can. onl~ ..~cur &f ~e of thsse "situations-~ ~ exists, .' There no -..issue here of."shor~gage_ of work or f~ds~'~so We ar~ 'concerne= .... .' ~he. que%~i99s of "~bolit~on it'ion or' oth~r, material;~ chan~e two most relevant cases a~'-The oHIP ~D~c'i~i°n' and-the Skinner position bad,been abolishe¢ when a' massive r~organiz~tion occurred. Only 30%.of ~he work'of the Drevious'B~si%ibn had been c~rried over into the ~ork of the positions whic~ =~'gTiev0r' claimed should -.have ~9.,pos~ed, -The Board agreed~''. "in"%he ca'S~, of'the OHIP.. change,' the movement o~ the i7 9irtu~of ~the. geographical change'~sulted'in the Creation of new p~sit'i~hs and the right ~to laY-off rights in the 'grievors., The ' skinner case was of cours.e,~concerned with Article 4 - it is in' a "~ense' ~the· opposite 'end of the i~sue', i.e. a "new' 61as~ified Pos'ition 'is created" 9~,~ gOmpared with the "abolition of a positio~~' The'.Skinner.decisi0n was in my view correct. The facts of our case do-not coincide with the facts in Skihne'r s~ ~ar' as "abolition of a position" is concerned. Most of the'functions of the grievors posit$ons pass under the Memorandum of.~nderstanding to CC$~ It may be-..in the. case of ~hose.functions that-passed down to Di'str!ct~,-.Offices_<the. positions did not remain a unified collection'.of functions, it does not appear'-o~'thi's' ~vid~hce tha~ ithey- did. But clearly that. work'that essential'l~ in tagt and it. cannot be concluded on this ~%idence that the positions.~did not moVe to CCS. The OHIO' cas~' ~s not · dtrectly, applicable.:.,~there, is no relevant ~eog=&p~i~al'el~ment in our case. I have no doubt that the major geographical' shift involved in that case 3ustified.the Board tn'f~nd~ng~t they were .no~, the s,ame ~positions. "reliance p%aced in the Travers case analysis W~s' correct. The consi~e~ations applicable 19.(4)-of C~cB AcC.,is not analo~o~' Article 4 or_ Article A~r~e~ent~.-~.S~ffice'i't to.~say'th~t in our case most of the wor~ in t~ O~Fu~ un&~ passed to CCS. Whether the transfer of th~ functions/'to.~. CCS will .ultimately require, some reorganization of' the p~itiohs ~as'not :" b~fOr~! u~"~.~ut .I~ agree with Mr.~R.ichards.' argument .that a few .... ~rea'ter ~aCititi~ ~n~skfD traciqg,~and a different computer program ~':~°~0t'chahge the'pSsi~ions. ,There is 9f course no question of.'the ' "~ht o~ .C6~Soc '%67,~et .out .of the collection ,bus/ness and hand it 6vet 'to' C~$. 3 Th~'..issde'is whether without- %ransferring ~he p~sk~ions~ the - Ministry' can accomplish, this obJec3 without violating the Coliective Agreement, Of course,.the other side of'~ '~he"~oln.is .t~at ~n employee in-~ORFUS.who did'not wish"to transfer t0'~CS woUld-nOt then.be-~ble to 'invoke-~rti¢!e 24. ""Was~there. a~"materiai~chan~e.in organizatlon"~ It 'is clear from Mr. ~-~e~rt'~ ~testlmony::that ~- sectton~.~ ~ units, even whOle diviSionS":~e~larly sw~tch Minis~rie~.~-, we ,also 'see frgm the Skinner decision that when 'the positions, are broken up, new positions are created and 01~ posi%lons' are abolished.. But in our case, Mr. RiChards.iS'correct; we do'not'know whether the positions are being broken ~p or not because we do ~ot. know until the functions are.placed in CCS in the Ministry of Government Services. I% ma~ ultimately, be that. as the functions, arrive in CC$. the~ wiii be dispersed Or there may be fewer positions left and we may get .. a Skinner set Of facts. But on this evidence, it'is in fact- ''_premature to decide~-_'The remaining issue is whether Article 24 is Minist~ specific. There is nothing in the language identifying reasons for lay-off which suggest that it applies s%mply because the functions are trans.ferred out of the Ministry. Once a lay-off does' occur, the Article,does distinguish the order of assignment rights first within the employee's Ministry and then outside the Minis'trY but 'OUr determin~tion of ,.whether the p,o, si~£on i.s. abo.!ished :is hot ~ccording to-the'l'~anguage affected by,whether the~position is transfe~red' with~'n or out of the Minis, try~ I,;,need not..,decide whether a~ actual -estoppel has' been 'proven,.: bUt,. Mr. S,t, ewart'; ~ s ev£dence"is relevant to establ£shing the factual background in which gogernment reor~anizations, have- occ.u, rr.ed in. the..pas,t,: Accbrdingly, ~-I am satisfied that on. these facts the conditions se~· out in 'the ter~s ~of Article 24 had not come :i,~n~o exist?nce at tl'~e ~:ime tl~a'~ -t:he let'~ers of surplusage were iSsued m'~d therefore I deci~re that those'letters were void. · As ~he Union requested and as ~hts Dec/sion contemplates' th~s Board ;w/,ll remain se£sed of \. these'"'grie~ances to decide, any.issues': between ~he. parties. ..that may r'esui~ from ~h.is declaration. Dated ' a~-:Toronto 'this 8th day of~'Augu~t .~., · 19~0. Thomas Wilson- ce_Chairpers ~ Klym // Member ' I. Cowan Member