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HomeMy WebLinkAbout1989-1548.Read et al.90-12-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 D'UNOAE; STREET WEST, SUITE2100, TORONTO, ONTARIO. M5G 1Z$ TE[,EF~ONE/TELEPHONE: [4~6~ 326-;388 180, RuE OUhlDA$ OUEST, BU,qEAU 2100, TORONTO (ONTAPtlO). M5G IZ8 F'ACSfMiLE/'t'£L._~COPfE : (.~r6j 326-r396 1548/89 & 2015/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE Ga~EVANCE SETTLEI~ENT BOARD BETWEEN= OPSEU (Read et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer - and - BEFORE= M.R. Gorsky Vice-Chairperson G. Majesky Member D. Clark Member FOR THE M. Kuntz GRINVOR: Grievance Officer. Ontario Public Service Employees Union FOR THE J. Baker ENPLOYER: Counsel Hicks Mor.ley Hamilton Stewart Storie Barristers and Solicitors HEARING:' April 23, 1990 DECISION Ail of the Grievors in this case, Adrianne Read, Diane Van Luven, Lorna Davison and Donna Munro, were Group Processing Clerks employed by the Employer at its 49 Place d'Armes office in Kingston,Ontario, each of them was classified as an OAG 8, and their work was related to the processing of OHIP premiums. It was agreed that the facts relating to the claims of each of the grievors were such that evidence would be heard only with respect to Ms. Van Luven's grievance and the result would be applicable to all of the Grievors. Exhibit 2A is a letter which was sent to Ms. Van Luven, dated July 7, 1989, by Patricia E. Malcolmson, Acting Executive Director, which letter is as follows: "July 7, 1989 Diane Van Luven Central Production Services Kingston, Ontario Dear Diane: As a result of {he legislated elimination of health insurance premiums, the Ministry will De implementing a number of organizational ~hanges to meet new program requirements. I regret to inform you that your position has been identified as one of those to be declared surplus. This letter serves as your notification in accordance with Section 22(4) of the Public Service Act and Article 24.1 of the Collective Agreement. The formal date of the abolition of your position has yet to be determined, but will not be less than 6 months from today. My purpose in writing at this time is to initiate your rights and responsibilities described in Article 24 of the Collective Agreement. 2 You will be advised at the earliest possible'time of the date on which your position will be declared surplus. I sincerely regret the need for this action and wish to acknowledge your past contribution to the work of our organization. Sincerely, 'Patricia E. Malcolmson' Patricia E. Malcolmson A/Executive Director" As will become apparent later in this Decision, the difference between the parties relates to the way in which they interpret the provisions of Article 24 of the Collective Agreement. Article 24 is as follows: '"]%RTICLE 24 - JOB SECURITY 24.1 Where a lay-off may occur by reason of shortage of.work or funds or the abolition of a posit/on or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent assignment, displacement .or lay-off shall be in accordance with seniority subject to the'conditions set out in this Article. 24.2.1 Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters provide he is qualified to perform the work and salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classificatiOn, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. 24.2.2 With mutual consent a surplus employee shall be assigned to a vacancy in his 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 in accordance with the provisions of the Employer's policy. 24.2.3 Where an employee has not been assigned in accordance with sub-sections 24.2.1 or 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another ministry within a forty (40) ' kilometre radius of his headquarters provided he is q~/alified 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, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. 24.2.4 Effective March 16, 1987, with mutual consent, a surplus employee who has not been assigned in accordance with subsections 24.2.1, 24.2.2 or 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%) beiow the maximum salary of his classification. Relocation expenses shall be paid in accordance with the provisions of the Employer's policy. 24.3 Where an employee is assigned to a vacancy in accordance with sub-sections 24.2.1, 24.2.2, 24.2.3 or 24.2.4, Section 5.4 of Article 5 (Pay Administration) shall apply. 24.4 An employee who does not attend a placement interview when requested by the Employer or who does not accept an assignment in accordance with sub-section 24.2.1 or 24.2.3 shall be laid off and the provisions of Sections 24.5, 24.6 and 24.10 shall not apply. 24.5. Where an employee has not been assigned to a vacancy in accordance with sub-sections 24.2.1, 24.2.2, 24.2.3 or 24.2.4, he shall be subject to lay-off in accordance with the following applicable sections. 24.6.1 An employee who has completed his probationary period and who 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: (a) The Employer will identify theemployee with the least seniority in the same class in which the surplus employee is presently working and if such employee has less seniority than the surplus employee, he shall be displaced by the surplus employee 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; (b) If no employee in the same class has less seniority than the surplus employee, the Employer will. identify the employee in-the class in the same class series immediately below the class in which the surplus employee is presently working who has the least seniority and if he has less seniority than the surplus employee, he,will be displaced by the surplus employee 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; (c) Failing displacement under (a) or (b) the Employer will review the classes in the same class series in descending order until a class is found in which the employee with the least seniority in the class has less seniority than the surplus employee. In that event'such employee will be displaced by the surplus employee 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; (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 sen'iority 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. 24.6.2 Any displacement shall be limited to a class which has a salary maximum no greater than the maximum of the surplus employee's current class and Section 5.4 of Article 5 (Pay Administration) shall not apply. 24.7 The employee must indicate in writing to the Director of Personnel his intention to displace another employee as far in advance as possible but not later than two (2) weeks in advance of his date of lay-off. If he does not indicate his intent to displace another employee within this period, he shall be deemed to have opted to be laid off and the provisions of Section 24.10 shall not apply. 24.8 Where the employee chooses not to exercise his rights under Section 24.6 he shall be laid off and the provisions of Section 24.10 shall not apply. 24.9 An employee who is displaced by an employee who exercises his right under Section 24.6 shall be declared surplus and the provisions of Article 24 shall apply. 24.10.1 Effective March 16, 1987, where a surplus employee has not been assigned to a vacancy in accordance with Section 24.2 and no displacement is possible under Section 24.6 and the employee is within the 6 two (2) week period prior to his date of lay-off, he shall be assigned on a retraining basis~ to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters, subject to the following conditions: (a) Such assignments shall be made on the basis of seniority; (b) Such assignments shall be made during the two (.2) week period prior to the employee's date of lay?off, where, based on information in its records or as provided by the Union or the surplus employee, the ministry determines that the employee has transferable skills which would enable him to meet the normal requirements of the work of the vacancy within a maximum retraining period of twenty-five (25) days. (c) Such assignments shall be limited to a class which has a salary maxim~u~ no greater than the maximum of the surplus employee's current class and Section 5.4 of Article 5 (Pay Administration)'shall not apply. (d) Where a surplus employee is assigned to a vacancy in accordance with 24.10.1 his date of lay-off shall be extended to accommodate the. retraining period and to maxim,am of twenty-five (25) days; (e) A surplus employee who has been assigned to a vacancy in accordance with 24.10.1 shall have no rights under Sections 24.2. or 24.6 following his original date of lay-off; (f) If, at the end of the. retraining period, the surplus employee meets the normal requirements of the vacancy to which he has been aqsigned, he shall be confirmed in that vacancy; (g) If, at the end of the retraining period, the surplus employee does not meet the normal-requirements of the vacancy to which he has been assigned, he shall be laid off without any additional notice under Section 24.11. 24.10.2 In 24.10.1 Ih) and (d), days shall include all days exclusive of Saturdays, Sundays and designated holidays. 24.10.3 A surplus employee who does not accept an assignment in accordance with 24.10.1 shall be laid off. 24.10.4 Where an employee has been assigned under 24.10.1 to a vacancy in a class with a salary maximum lower than the salary maximum of the class he held immediately prior to such assignment and subsequently he is laid off in accordance with 24.10.1 (g), any termination payments to which he may be entitled under Article 53 (Termination Payments) shall be based on the salary he was receiving immediately prior to the assignment under 24.10.1. 24.10.5 The assignment of a surplus employee to a vacancy in accordance with Section 24.2 shall have priority over an assignment under 24.10.1. 24.11 Effective March t6, 1987, an employee shall receive a notice of lay-off or pay in lieu thereof'as follows: (a) two (2) weeks' notice if his period of employment is five (5) years; (b) six (6) weeks' notice if his period of employment is five (5) years or more but less than ten (10) years; and (c) twelve (12) weeks' notice if his period of employment is ten (10) years or more; with copies of such notice to the Human Resources Secretariat and the Union. 24.12 An assSgnment under this Articl~ shall not be considered a promotion or a demotion. 24.13 Where an employee has been identified as surplus, reasonable time off with no loss of pay and with no loss of credits shall be granted to attend'scheduled interviews for positions within the public service, provided 8 that the time off does not unduly interfere with operating requirements. 24.14.1 Effective March 16, 1987, where a person who, prior to release, had completed at least one (1) year of continuous service, has been released and a position becomes vacant in his former ministry within a forty (40) kilometre radius of his former headquarters within one (1) year after his release, notice of the vacancy shall be forwarded to the person at least fourteen (14) days prior to the closing date of the competition and he shall be appointed to the vacancy if: (a) he applies therefor within the fourteen (i4) days, and (b) he is qualified to.perform the required duties, and (c) no other person who is qualified to perform the required duties and who has a greater length of continuous service applies for the vacancy pursuant to this subsection. 24.14.2 Appointment under 24.14.1. shall be limited to a class which has a salary maximum no greater than the maximum.of the class the person held when identified as a surplus employee and Section 5.4 of Article 5 (Pay Administration) shall not apply.- 24.14.3 A person shall lose his rights under 24.14.1 when: (a) he does not attend a placement interview when requested by the Employer; or, (b) he does not accept~an appointment in accordance with 24.14.1; or (c)' having, accepted an appointment in accordance with 24.14.1, he fails to report for duty within two (2) weeks of receiving written notice of the appointment. 24.14.4 The assignment'6f a surplus employee to a vacancy in accordance with Sections 24.2 or 24.10 shall have priority over an appointment under 2~.14.1. 24.14.5 Where an employee who has been released is reappointed under this Article to the same position or a position having the same classification as the position which he occupied immediately prior to his release, he shall be reappointed at a rate within the salary range applicable to the position equivalent to the rate at which he was paid immediately prior to his release. 24.14.6 Where a person who has been released is appointed under this Article to a position in a classification that is not the same as the classification of the position which he occupied immediately prior to his release, he shall be appointed at a rate within the salary range applicable to the position commensurate with his qualifications and experience, including previous relevant public service. 24.15 It is understood that when it is necessary to assign surplus employees or appoint persons in accordance with this Article, the provisions of Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply. 24.16.1 Effective March 16, 1987, where it is necessary to . release an employee who has completed his probationary period, because of the introduction of technological change in equipment or methods'of operation, at least three (3) months' notice in advance of the change shall be given to the employee affected and to the Union. 24.16.2 The matter will then be referred to the joint consultation committee of the parties to discuss and to attempt to resolve the problem with relation to the reallocation and retraining of the affected employees with a view to minimizing the effects of the Employer action required to be taken. ~ 24.17 For purposes of Article 24 lay-off means the same as release as per Section 22(4) of The Public Service Act, Revised Statutes of Ontario, 1980, Chapter 418." The Employer regarded Article 24.as providing for a measure of job security for employees who might be laid off by reason of shortage of work or funds or the abolition of a position or other material change in the organization. This article mandated that 10 the procedure to be followed required the Employer to first attempt to assign an affected emloyee to a vacancy, as is' Provided for in Articles 24.2.1, 24.2.2, 24.2.3 and 24.2.4, before the employee is given the right to displace an employee identified under the provisions of Article 24.6.1. Exhibit 2B is a letter dated August' 15, 1989 from Ms. Malcolmson to Ms. Van Luven, which is as follows: "August 15, 1989 Diane Van Luven Central Production Services Kingston, Onta=io Dear Diane: Further to my letter of July 7, 1989, I am writing to advise you that the date which your position becomes surplus is May 15, 1990. The enclosed pamphlet, "Your Guide to the Premium Transition Program Employee Assistance Package", contains information on training and tuition fee assistance, developmental assignments, job-search and placement strategies, and termination assistance. The guide has been developed to help you meet your personal needs and make informed career decisions. If you have any questions concerning the information contained in this guide, please contact your local Surplus Co-ordinator, or call the Human Resources ProjeCt Hotline at (613) 548-6271~ Once again, I wish to express my regret that your position has been declared surplus, and assure you that every effort is being made by the Government to find alternate employment for you within the Ontario Public Service. Sincerely, 'Patricia E. Malcolmson' Patricia E.~ Malcolmson A/Executive Director" 11 On August 22, 1989, Ms. Van Luven sent a memorandum to the Director of Personnel, Mr. R. Oss, which is as follows: "I wish to advise you that it is my intent to exercise my rights under Article 24.6.1 immediately, & request that you advise me of the employee to be displaced." As noted above, it was the view of the Grievors that they were not required to wait the conclusion of the assignment process but had the option of first exercising their rights under Article 24.6.1 to displace junior employees. Exhibit 2D, is a letter dated September 12, 1989 from Mr. Oss to Ms. Van Luven, and is as follows: "September 12, 1989 Diane VanLuven R.R. #1 Inverary, Ontario KOR lX0' Dear Ms. VanLuven: I have received notice of your intention to exercise your rights under Article 24 of the Collective Agreement to displace another employee. You are currently entitled to be assigned to a vacancy in accordance with Article 24, subsections 24.2.1., 24.2.2., 24.2.3 or 24.2.4 of the Collective Agreement. I am confident that the Human Resources staff in Kingston will do their'utmost to find an appropriate position for you. Only when all assignment possibilities under those provisions have been exhausted and you have not been assigned do you become a surplus employee subject to layoff in accordance with.Article 24.5. At that time you will have the right to displace another employee. Since you have advised me of your intention to displace, your memorandum will be retained on file and acted upon at the appropriate time, if necessary. Yours sincerely, 'R. oss~ 12 Director Human Resources Branch" In accordance with the Employer's interpretation of Article 24, it proceeded to carry.out the requirements of the assignment process and the Grievor was assigned to the position of Document Processing Clerk - 0AG 6 with the Ministry of Transportation on November 2, 1989, with a starting date of November 14,. 1989. Exhibit 2F is a letter to Ms. Van Luven from Paul Mooney, Director of the Redeployment Unit, Staffing Services Branch of the Human Resources Secretariat of The Management Board of Cabinet, which is as follows: "Ms. D. Van Luven c/o Mr. B. Rey Ministry of ~ealth Human Resources · MacDonald - Cartier ~ldg. 2nd Floor Kingston, Ontario Dear Ms. D. Van Luven RE: LC 89/16 I am pleased to advise you that, in accordance with Article~24.2.3 of the Collective Agreement, you are assigned to the position of Document-Processing Clerk - 060AD. The schedule starting date of your assignment will be Tuesday, November 14, 1989. Please report at 8:30 A.M. to 355 Counter Street - Main Reception. You should be aware that Article 24.4 states 'An employee who does not attend a placement interview when requested by the employer or who does not accept an assignment in accordance with subsections 24.2.1. or 24.2.3. shall be laid off and the provisions of Sections 24.5, 24.6 and 24.10 shall not apply.' Under the salary protection provisions of Article 5.4.1. of the Collective Agreement, you are entitled to salary progression based on merit, to the maximum of the 060AD range during the present cycle. This assignment does not, of course, preclude you from applying to any advertised competitions for which you feel qualified. Please indicate your decision by signing on the appropriate line below and return this form to your surplus co-ordinator by November ~6, 1989. On behalf of the Ministry of Health, I would like to thank you for your services to date and wish you every success in your new position. Yours truly, 'Paul Mooney' Director" Rather than face a layoff if she did not accept the position, Ms. Van Luven indicated her acceptance by signing in the appropriate place at the foot of the letter. On receipt of the letter (Exhibit 2F) Ms. Van Luven filed a grievance (Exhibit 2G) as follows: "I grieve that I have been denied my rights under Article 24.6.1 whereas I have been assigned and red circled in a lower position and.not allowed to displace another employee." The settlement desired, stated: "That I be given my rights under Article 24.6.1 and reimbursed all monies and benefits lost due to being red circled plus interest." Reference to being "red circled" arises out of the provisions of Article 5.4.1, which is as follows: "Where, because of the abolition of a 9osition, an employee is assigned: (a} from one position in a ministry to another position in the same ministry, or (b) from a position in one ministry to a position in another ministry. and the Position to which he is assigned is in a class with a lower maximum salary than the maximum salary for the class of the position from which he was assigned, he shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the assignment takes ~!ace. ,, In response to the grievance, Larry Treverton, Acting Manager, Group Processing, with the Human Resources Branch, of the Ministry. of Health, wrote to the Grievor-as follows: (Exhibit 2J. ) "Ms. Diane VanLuven R.R. #1 Inverary, Ontario KoH lx0 Dear Ms. VanLuven: I acknowledge receipt of your grievance, dated November 2, 1989, in which you allege you have been denied your rights under Article 24.6.1 of the 'Collective Agreement by being assigned, as a surplus employee, to a lower classified position and not allowed to displace another employee. You wrote to Mr.'R. Oss, Director, Human Resources Branch, on August 22, 1989 to advise him of your intent to exercise your rights under Article 24.6.1. Further, you indicated your desire to exercise those rights immediately and asked that he identify the employee to be displaced. In his response Mr. Oss explai-ned the application of Article 24. Only when all assignment possibilities under Article 24, Section 24.2, have been exhausted and you have not been assigned do you acquire the right to displace another employee in accordance with Section 24.6. By letter of November 2, 1989 you were assigned to the position of Document Processing Clerk with Ministry of Transportation. You accepted the assignment by signing your name out he line above the following words: 'I accept the above assignment' and returning it to the Surplus Co-ordination Project Team. Therefore you have been assigned to a vacancy and are Dot subject to lay-off (Section 24.5). That being the case, you do not have the right to displace another employee in accordance with Article 24, Sub-section 24.6.1." Mr. Treverton took the position that the provisions of Article 24.6.1 did not apply where an employee had been assigned to a vacancy in accordance with the assignment provisions of Article 24. At the hearing, counsel for the Employer took the position that it did not matter whether an employee had been assigned pursuant to the provisions of Article 24. Counsel argued that it was first necessary for the assignment provisions to be exhausted before the displacement provisfons of Article 24.6.1 could be relied upon by an employee. That is, assignment under the assignment provisions of Article 24 must be attempted and only where the process is unsuccessful in finding an assignment for an employee does the displacement right of an employee under Article 24.6.1 arise. On December 22, 1989, Mr. F. G. Feld, Director of the Claims Payment Division Of the Kingston District Office of the Ministry of Health wrote to Ms. Van Luven as follows: % "Ms. Diane Van Luven R.R. #1 Inverary, Ontario K0H lXO Dear Ms. Van Luven: We met on Monday, December 18, .1989 to discuss your grievance of November 2, 1989, concerning Article 24.6.1 of the Collective Agreement, at Step 2 of the Grievance Procedure. It was quite apparent that neither you, nor your union representative, agree with management's interpretation and application of Article 24 of the Collective Agreement, specifically Section 24.6. It was also stated by Ms. Wood that this grievance will be processed to the Grievance Settlement Board for a decision. You were assigned, by letter of November 2, 1989, to a vacancy in the Ministry of Transportation in accordance with Article 24, Section 24.2 of the Collective Agreement. On accepting that assignment you were removed from the-surplus list and thus are not subject to layoff as defined in Section 24.5. Therefore, you have no right to displace another employee in accordance with Section 24.6. Therefore, your grievance is denied.· Yours truly, 'F. G. Feld' F.G. Feld Director" Mr. Feld's letter merely reinforces Mr. Treverton's ~view as set out in Exhibit 2J. In support of' the argument that the provisions of Article 24 represent a continuum which prohibit employees from bypassing the assignment process for the displacement process, counsel for the Employer referred to the case of Teresa· Becket #511/82 (Samuels), dated May 16, 1983. The issue in that case was unlike the one before us in that it deals with an employee's rights under the portions of Article 24 dealing with assignment. There, it was stated at p.14: "Article 24.2.1 provides that this position shall be in the employee's own ministry. Article 24.2.2 allows for an assignment to a vacancy in one's own ministry beyond 40 kilometres 'with mutual consent'. Then Article 24.2.3 provides for an assignment in s~me other ministry, 'where an employee has not been assigned in accordance with sub-section 24.2.1 and 24.2.2". These qualifying words in Article 24.2.3 make it clear that, if an assignment can be made within the terms of Articles 24.2.1 or 24.2.2, Article 24.2.3 does not come into operation. Therefore, it is possible to be assigned to a position carrying a reduced salary in one's own ministry, though there are vacancies elsewhere at the same level as the employee's current classification, available at the same time." Counsel for the Employer relied on the provisions of Article 24.5 in making the same argument. However, the argument was not that Article 24.6.1 did not apply because Ms. Van Luven had been assigned to a vacancy in accordance with ss.24.2.2, but because Article 24.5 ought to be interpreted so as to find a continuum within Article 24 requiring a staged resort to its provisions: assignment, displacement and then layoff. If Ms. Van Luven's' position is correct, the fact that she permitted an assignment can only be seen as a means of avoiding, the provisions of Article 24..4, which would have precluded her from resorting to displacement rights under Article 24.6.1 and to her rights under Article 24.1.0. As noted, in the case before Mr. Samuels, the Board was dealing with the assignment process and found that it provided for a continuum with the earlier provisions having to be resorted to first. Where it is argued ~that alternative rights (assignment or displacement) are available, the argument that moved Mr. Samuels cannot have the same effect in the case before Nevertheless, Mr. Samuels,made a valid point in the Becker case at p.13: "At the outset, it is important lto make it clear that this Board cannot create a set of rights and obligations which seem, to the Board, to be the most desirable or reasonable. Our role is restricted to interpretting (sic) the Collective Agreement arrived at by the parties. What have they said about their respective rights in their Agreement? Secondly, it is worth noting that, from the evidence we heard about the process of relocating surplus· employees, it is obvious that it is a very complex matter, and will always be terribly complicated when there are many surplus employees, as there were in mid-1982. There is clearly no simple way to assign the surplus employees so that each one is placed in a new 'position which preserves all the employee's fo~mer salary and leaves the employee doing the same or roughly similar work." The above quotation from the Becket case was q~oted with approval by Mr. Verity in Palan~io 227/83 at p.7, which Decision was dated March 7, i984. ~ At p.8 of the Palangio case, the Board stated: "It would appear that Article 24 provides a certain measure of job Drotection in the sense of guaranteeing a job and the avoidance of a sudden lay-off, but does not provide classification protection. The purpose'of the Article generally is to provide employment stability and salary stability on the basis of seniority. Assignment of employees on a seniority basis means that the more senior the employeE, the earlier the assignment. There is an aspect of the 'luck of the draw' as is patently evident on the facts of the instant Grievance. Here, we find three other employees who had identical jobs to the Grievor an~ worked in th~ same office as the Grievor did obtain better jobs than the Grievor. However, that situation cannot be avoided under the present wording of Article 24. The wording of that Article does not permit an employee to shop~ around for assignments. Simply stated, if an assignment is offered and refused, the employee is then subject to lay-off. The only choice given to a surplus employee under Article 24 is to accept an assignment or to face lay-off. The assignment provisions of surplus employees under that Article is not designed to provide an employee with a preferred job, or a choice among jobs, or even the same job. It is designed however, to provide a job with an element of Salary protection through the device of the assignment and the red circling provisions. The process of assignment of sUrplus employees must have a degree or order and sequence in view of the numbers of employees involved in a major reorganization such as the Kingston relocation; otherwise chaos would be the end result." Article 24 is an unusual Article, which is quite different from similar provisions found in the private sector which deal mainly with displacement rights of senior employees. If it had been the intention of parties to permit employees subject to Article 24~1 to circumvent the assignment procedure, it would have been a simple matter to say so. As it is, the parties have drafted a job security provision which.creates employee rights which move through successive stages of assignment, displacement or layoff. While I would not, in the Circumstances, find the acceptance of the assignment by Ms. Van Luven as precluding her arguing that the assignment right and the displacement right are not part of a scheme that must be followed; having considered Article 24 in its entirety, I would agree with Mr. Verity, although in a different factual context, that the situation cannot be avoided given the present wording of Article 24. I find that that Article does not permit an employee to forego the process of assignment. Where assignment is offered and refused the employee would be subject to layoff without any rights under Article 24.6.1. The wording of Article 24 leads me to the same conclusion as arrived at by Mr. Verity, although in a different factual context. That is: "The only choice given to a surplus 20 employee under Article 24 is to accept an assignment or to face layoff .... " As Mr. Verity noted, although restricting his comments to the process of assignment, there must be: "... a degree of order 'in sequence in view of the number of employees involved in a ma]or reorganization ... otherwise chaos would be the end result." Not only employees hage a genuine concern over the subject of job security when there is a material change in organization or the abolition of a position. The Employer is concerned with carrying out a reorganization in an orderly fashion. If employees had a choice between assignment and displacement rights, the situation for the Employer could become truly chaotic. I am satisfied that if the parties had decided to create alternative rights (either assignment or displacement) in favour of employees affected by Article 24.1,'it would have been a simple matter to say so. In drafting Article 24.1 as they did the parties created a scheme that is much more consistent with the establishment of a mandatory process moving from assignment to displacement to'layoff. In each case subject to certain rights and subject to the penalty of a loss of those rights where an employee~does not accept an assignment as provided for in Article 24.4. At the opening of the hearing, counsel for the Grievor submitted that there was also a claim being made: that in .establishing the list of employees who are to be laid off pursuant to the provisions of Article 24.1, the Employer.should 21 have included employees in the OHIP office, in Kingston, with less seniority than the Grievors, even though the position of the last mentioned employees would not be affected by the abolition of OHIP premiums. Counsel for the Employer objected to such an issue being dealt with by the Board, because it had not been raised in the grievance. We determined to hear the evidence and argument with respect to the latter claim and to rule on the objection in our decision. The argument made by counsel for the Grievors was that its reading of the provision~ of Article 24.1 as requiring the identification of the junior employees referred was consistent with the statement in Article 24.1 that: "... the subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this Article." What was being requested was a form of.pre-displacement. That is, if the junior employees were placed on the list, then the Grievors could move into their positions (the employees referred to were also OAG Ss). There are a number of reasons why such an argument cannot succeed. It is only necessary to refer to the fact that Article 24.1, in referring to assignment, displacement or layoff rights, does so, not only in accordance with seniority, but "subject to the conditions set out in this Article." Displacement rights under Article 24.6,1 are subject to seniority, and displacement rights only arise after the failure to secure a position for an employee identified Under Article 22 24.1 through the process of assignment. What the Grievors' ask for'is the Creation of.a right which they regard as "logical". This cannot be achieved under Article 24.1. The other employees working for OHIP were not su~lus employees. If they could be treated as surplus employees, then the Grievors would not have been surplus employees and would have had no rights under Article 24, which only grants rights to surplus employees. What the Grievous really request is that the surplus list include them as well as the employees whom they wish to displace and they ask for an immediate right of displacement. That is, displacement without going through the assignment procedure. For the reasons above described, this is not what the parties have agreed to. In any eventl the form of the grievance makes no claim with respect to the establishment of the list of employees to be placed on the list of surplus employees and.there 'was no evidence to indicate that the parties treated the grievances as raising'a claim involving identifying the junior.employees too, as surplus employees pursuant to Article 24.1. I would have, therefore, allowed the objection and refused to entertain any argument~with % respect 'to the latter issue. For all of the above reasons, the grievances are denied. DATED AT Toronto, Ontario this 19th day o£Dece~e~990. M. R. Gorsky, Vice-Chairperson "I DISS~qT" (D[ssen£ attached) (~. Majesky - Member D. Clarki- Member B~;Wk~N OPS~' <READ et al ) - and - THE ~ IN TEE RIGHT OF ONTARIO 548/89 & o 5/89 lYl~ZO~ I have reviewed the majority award in this 'ma=~er, and with .eyes wide open, I must dissent. The crux of this case is whether senior employees can bump more junior employees. It would stand to reason that this sacred principle of seniority opera,es within the CECBA collective agreement. Or does it? The award in this ca~--{-~dic~tes to the contrary, that is, the negative. The issues in s~m~ry: ,1) Union asserts right for senior employees to bump junior employees. 2) Lang~age in Collective Agreement doesn't impose the interpretation arrived at by the ~ajorit¥ in .this award. Jurisprudence is disting~ishable (Samuels/Verity), in that the issues were materially different and didn't deal with rights of seniority and displacement. 4) Nothing in article 24.6 speaks to time guidelines. 5) The OHIP office,' due to phasing out of the premium collection department (a massive layoff/re-organization) treated OAG 8 employees differently 'in the Kingston office, depending on which department they worked This is a narrow application of the seniority/bumping principle. 6) As a result of our award, and ~hOse preceding this mat%er, would give the employer all rights. That proposition is incorrect, because for there to be a balance of the interests, employees must be able'to displace less senior employees. 7) If parties had intended for employees to not exercise "bumping rights" until the process unfolded, then the parties would,have had express language for the employer to notify them about when all placement opportunities were exhausted. That language is utterly absent. Frank!y, there is no obligation for the employer to notify the employee. That absence is an important one. In our award, the majority of the board made reference to the continuum principle which dictates that article 24 unfolds sequentially. On that point, Mr. Samuels made no such utterance in the Becket case with respect to whether the operation of article 24 unfolds in a numerically lock-step fashion. Frankly, as noted in our award, Samuels was dealing with a simple proposition of assignment and found that article 24 provided for a continuum with the earlier provisions having to be resorted to first. What distinguishes Samuels in Becket, from Gorsky in Read et al, is the fact that the union argues that the membership have ~lternative rights ie. assignment or displacement. Thus, the argument presented by Samuels is distinguishable from the instant case. In our award, the majority aisc makes reference to Mr. Verity in the Palangio case, with respect to whether an employee can forego assignment in favour of electing another option. Mr. Verity determined that article 24 unfolds sequentially, thus the only option available to employees is layoff should they choose not to elect assignment. Therefore, Mr. Verity has concluded that article 24 provides for assignment, and if it is refused, then layoff occurs with no access to article 24.8.I. Our award affirms the conclusion arrived at by Verity, although in a different factual context. That is: "accept an assignment or to face layoff .... " The union's position is with considerable merit. As a result of abolishing premiums, the work originally performed is now non-existent. Layoff occurred in Kingston among the OAG 8 group. Employees were served notice in July 1989 - effective May 1990. The grlevors advised the employer in fall of 1989 that they wanted to displace Junior employees. The employer took the'position the grievors had no right. The Seniority List in ~his case is central. As a result of the layoff, the Ministry had to correct the list by seniority, That is: 214 employees who were OAG 8. The grievous are rightly perturbed in that their seniority is greater than Junior employees who continue to work as OAG 8 in the original workplace. Grievors were advised of layoff and told it wasn't relative ie., layoff/bumping by seniority. Thus, layoff notices went out without reference to seniority. The essence of the award clearly supports a narrow scope of what constitutes the grievors workplace. A parallel would be to describe the process as one of Departmental Seniority. That is the most narrow form and application of seniority rights. Additionally, OAG 8 is not a classification consisting of rocket scientists, and.there is a great deal of portability of employee skills within the OAG 8 group, thus, the Kingston OHIP office should have 'recorded the seniority of ali OAG 8 staff, and made assignments after determining seniority on the basis of the full OAG 8 workforce compliment at the Kingston OHIP office. By allowing the employer to define seniority in such a narrow fashion is contrary to the arbitral principle, that seniority, absent specific language must be broadly construed. The union was also quite correct in reiterating that there is a presumption that seniority rights and consequences should be broadly construed.' Utilizing this line of thinking, the board should have allowed workers to maximize the seniority opportunity, and then been allowed to bump junior employees. The board was also asked to be cognizant of the principle of seniority rights or colloquially known as "bumping" by referring'to Brown and Beatty 2nd, 6:2330, pg. 263-285, Brown and Beatty describe the traditional definition of "bumping" in that a senior employee "bumps" a single junior employee, but are mindful that the~terms of the agreement will dictate the process in each instance. The employer argues that the union's position would lead to chaos and administrative burden. Secondly, the employer argues that the danger to accepting the union's position is the resultant "domino effect" where a' lay-off of a full-time worker will create this "exponential domino effect", leading to chaos. That is nothing more than political rhetoric. As a matter of fact, "bumping" and the preservation and retention of senior employees requires that there be some administrative inconvenience. It's the nature of the beast. A c~rsory examination of Brown and Beatty 2nd, 6:2330, pg. S85,. described the expectant complications and consequences' to the practice, which no matter how chaotic, are the. trade-off to preserve the status of senior employees: "Bumping is the procedure by which the employee with the greatest seniority who is about, to be laid off is allowed to invoke her seniority rights so as to displace, or bump, a more junior employee from a job unaffected by the lay-off. A chain process is set off in which the displaced em~ployee in turn is permitted to exercise his seniority rights against some other employee Junior to himself134'' [emphasis] It appears that the general expectation of the arbitral community is to recognize this chain-reaction of displacement, but whether or not the employer calls ~it chaotic, does not make the union position untenable. Frankly, on any given day, the employer would argue,that the concept of "bumping" into a singular position is chaotic, let alone a mass layoff. The employer's argument was a standard saber rattling tactic, designed to discredit not only the union's position for "multiple bumping", but was also an introspective with respect' to their attitude to "bumping" generally. In my mind, there is no question that the collective agreement is silent on this very matter of seniority calculation. As was noted by the arbitrator in Re Norther Telecom Canada Ltd. and U.A.W,, Local 1525 (1983), 9 L.A.C. (Sd) 224 (Picher) at p. 229: Canadian arbitrators have consistently recognized the critical value of seniority rights to employees. They have acknowledged a general presUmption in favour of seniority rights: absent a clear .and express restriction of seniority rights, a collective agreement that confers individual rights based on seniority should be construed so that doubtful language is interpreted in a way tsar preserves and enhances those rights. (emphAsis added). Frankly, when one looks at the language in the awards of Samuels, Verity and Oorsky, there is a conscious mention that they ~are looking to the language (article 24), and, ~hey appear to wrestle with wanting to give'the broader construsion that seniority rights warrant, but alas, they certainly do not construe doubtful language in a ~ay that preserves and enhances those rights. Looking to another award that broadly construes plant-wide seniority, the arbitrator stated in Re H.J. McFarland Memorial Home and Service. Employees Union, Local 183 (1984), 13 L.A.C. (3d) 391 (Solomatenko) at p. 397: It has been accepted by arbitrators, and ~ith .good reason in view of the importance of seniority rights in relation to other provisions of a collective agreement, that where the agreement is silent as to the type of seniority, it is to be construed as plant- wide see Re Canada Glazed Papers Ltd. and Printing Specialties & Paper Products Union, Local 466 (i97~), 13 L.A.C. (2d) 324 (Beck) at p. 329. In our award, we have committed a fatal mistake. Firstly, the whole seniority process is driven by the effective start date of workers. Even if you subscribe to Samuels and Verity, you must first determine the appropriate seniority within the workplace. The employer argues the union is attempting to circumvent the sequential unfolding of article 24. That is completely false. I suspect that the.union would have lived with the continuum theory of article 24, only if the scope of the workplace, and the determination of seniority, encompassed all ~orkers le., plant-wide vs. departmental seniority. In Re Canada Glazed Papers Ltd. and Printing Specialties & Pap~F Products Union, Local 466 (1976), 13 L.'A.C. (2d) 324 (Beck) at p. 329: The grievor may weI1 have quite properly and understandably considered himself 'to be employed in the Winder Department of Rolland Paper. But one could make the comment that almost all plants are divided into functional departments and almost ail collective agreements provide for wage rates on the basis of job classification, which classifications are specifically set out. But the seniority clause in collective agreements vary from agreement to agreement. Some provide specifically for plant-wide seniority, some for departmental seniority and some for job seniority, and indeed some agreements provide for all three or combination of any of the three. The essential point is that this has not- been done in this collective agreement. What we have here is no particular specification as to seniority which leads to the inference that seniority is on a plant-wide basis... As counsel for the union pointed out, seniority is one of ~he most important rights that a union member has and it is usually one of the mosi carefully drafted clauses in a collective agreement... (emphasis added) After taking into consideration my above enumerated concerns, I still have. one very major concern which speaks for itself. When we examine the construction of article 24.1 the provision performs a preamble function as to how Article 24 - Job Security will operate. ARTICLE24 - JOB SECURITY 24.1 Where a lay-off may occur by reason of shortage of work or funds or abolition of a position or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this Article. (emphasis added) Frankly, the construction of this article ie. assignment, displacement or lay-off, clea-rly distinguishes the conclusion arrived at by Verity in Palangio ie., accept assignment or face lay-off. Obviously, the language in article 24 speaks to a number of options available to workers. And in consideration to the importance of seniority as a right, the union's position that article 24 provides flexibility for either assignment or displacement is further enhanced .on review of article 24.1. \ Accordingly, I have noted my dissent, and would hope that in · the absence of strong awards from this board preserving seniority, that perhaps some remedy will occur in the collective bargaining .process and in the new relationship. OPSEU has with this new government. ~espectfulIy submitted ,by, Fp~~~.'~A~T.SERVICE8 Union N~minee Re-submitted November 1990 ~, Ontario