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HomeMy WebLinkAbout1990-0520.Shelton, Haynes and Villella.90-10-09 , ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DEL 'ON TARIO 1111 GRIEVANCE , COMMISSION DE ~ SETTLEMENT REGLEMENT '~:SCARD', . . , DES GRIEFS =r-=- -~'C -~' 180 DUNDAS STFlEET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZB "TELEPHONE/TELI:PHONE: (416) 326- f388 180, RUE OUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ8 FACS/M!LEIrt:LECOPJE: (416) 326-1396 520/90, 530/90, 531/90 , IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Shelton/Haynes/Villella) Grievor -, - and- I The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: N. oissanayake vice-Chairperson E. seymour Member M. O'Toole Member FOR THB R. Healey GRIEVOR Counsel Gowling, Strathy & Henderson -" Barristers & Solicitors FOR THE E. McKnight EMPLOYBR staff Relations Advisor Human Resources Branch Ministry of Transportation !lEARING September 17, 1990 ~ 2 . .. ..... -: - ~ .' -~ -~;~~. AWARD These are 3 individual grievances filed by three bargaining unit employees L.S. Shelton, M.R. Haynes and N.V. Villella respectively, wherein they claim that they were improperly denied interviews that formed part of the competition held by the Employer to fill nine positions titled "project supervisor". The Union claims that the competition process was seriously flawed and se~ks a direction that it be re-run. The Employer raised a preliminary objection that ~ these grievances are not arbitrable on the basis that the vacancies filled were management positions which are outside the scope of the collective agreement. Without admitting any of the alleged facts, for the purposes of the preliminary objection only, the Employer was willing to argue the issue on the basis of the facts as alleged by the Union. The Union claims that the competition in question -. was seriously flawed for three reasons: (1) The grievors were asked to write an examination without being told that the results of such examination would determine whether they will be granted interviews. In addition, one grievor was not advised to bring along . 3 a reSume to the examination, while the other two were. :-<;~~---- ~-. h (2 ) All three grievors had seniority with the Ministry in ,excess of 20 years. This seniority and experience was, not given any consideration in the screening process for interviews. (3) The Union claims that the purpose of any screening process must be to' ascertain whether the candidates were qualified for the project supervisor position. All three grievors had twice successfully completed an intensive course on project supervisor ~ duties, the last time being within a period of two years preceding the competition. Therefore, the grievors had already established their qualifications for the project supervisor job and should have been granted interviews on that basis alone. As already noted, the preliminary issue was argued on the basis of the alleged facts. The Employer's posit-ión is that appointment to a management position is an employer prerogative not restricted by anything in the collective agreement between the parties. Article 4 of the collective agreement is the provision that deals with job competitions. It reads: 4 .-ìtJ . When a vacancy occurs, in the Classified ~.~ service for a bargaining unit position or "'-':.0;::-- a' new classified position is created in- the bargaining unit, it shall be advertised for at least ten (10) working days prior to the est'ablished closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7 (Hours of Work), and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall -. give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off . does not unduly interfere with operating requirements. 4.5 Relocation expenses shall be paid in accordance with the provisions of the " ,. ' Employer's policy. Employer Counsel points out that article 4.1 expressly states that the procedure therein applies only "when a vacancy occurs in the classified service for a bargaining unit position or a new classified position is 5 creat.~(r-~in. the bargaininq unitll (Emphasis added). She ~ refe~-the Board to two recent decisions,o~ the Board which dealt with this same issue and concluded in' the Employer's .favour. She urged the Board to follow that line of cases. (See, Re Ronald Jones, 1525/87 (Fraser) and Re Dòminic Tse, 895/88 (Samuels) and the cases cited therein) . Counsel for the Union concedes that all of the prior decisions of the Board run directly counter to the Union'S position. However, it is his SUbmission that we should find all of those decisions to be wrongly ~ decided. Counsel points out that since they are bargaining unit employees and not management employees, the grievors have no standing before the Public Service Grievance Board either. Therefore, if this Board also does not assume jurisdiction, the grievors would be. left with no remedy. Counsel urges this Board to, and submits that there is room to, interpret article 4.1 in . such manner as to avoid such an unjust result. He cont~pds . that a fair result may be achieved by interpreting the reference to "bargaining unit" positions in article 4.1 to be only an II inclusive" statement. In other words, we are urged to find that the reference to bargaining unit positions in article l 6 4.1 ···'ddês not necessarily exclude other types of I ~-- ~. posi ~i6îis. Alternatively, counsel submits that the Board should assume jurisdiction under section 18(1) of the Crown Employees Collective Bargaininq Act. Specifically, the argument is that where the Employer exercises a management function in an unfair or unreasonable manner the Board has jurisdiction. Having considered the submissions of the parties, the Board finds that it has no jurisdiction to hear ~ these grievances. The decisions cited above set out very clear and precise reasons as to why this Board has no jurisdiction relating to a competition for a management position. We do not propose to repeat those reasons here. Suffice it to say that we do not find those decisions to be wrongly decided. On the contrary we find them to be eminently correct. Therefore we have no reason or justification to not follow them (l@ Blaket ~ . The Board sympathizes with the plight of the grievors who feel aggrieved by the Employer's actions, but cannot find a legal forum to litigate their concerns. While.it may be tempting to do so this Board . , 7 has nO~egal authority to intervene. To do so would be' ~..- ~- -. to t-ót'ãI 1 y ignore and -.over-step the Board's legal mandate. For those reasons, there grievances are hereby dismissed. Dated this '::!th day of October 1990 at Hamilton, .. ontario ~-~~~ Nimal V. Dissanayake vice-Chairperson . ~~~ ~~. (AddendU~ attached) E. Seymour Member ~7()~7~_. M. O'Toole Member -- c 0 . . . ~ , ~_ ." . __ _0. r 'T~~: -: .............. -... ~ > . - . ~ . +- ,;,. . . ...... ~ . . '. ~~ ~ . ~-~ - -. . -~.. ."... ,-- --~~- -" GSB FILE 520/530/531 - OPSEU VS MOT VILLELLA HAYNES/SHELTON Addendum Employee Nominee: Edward E. Seymour I am in agreement with the award in this matter. However. if the allegations by the union regarding the manner in which management " conducted the competition are correct, then it is understandable why the grievors considered the process to be unfair. The allegations made by the union in its defense against management's preliminary objection are outlined in the Main Award and need not be repeated here. It is agreed that previous GSB awards regard i ng th is issue have decided that management has the exclusive right to conduct a job competition in any way it chooses. Nevertheless it is, in., my opinion, incumbent upon management to ensure that the process is fair to everyone taking part. This was a preliminary matter so there was no evidence as to whether the same conditions existed for all candidates. We do not know the ranking of the candidates taking part in the examinations. We do not know if any of the candidates were told the examination was for interview screening purposes and we do not know what service the successful candidate had within the Ministry. Even if consideration were taken into account, the Ministry would have been within its legal right to award the job to whomever. without any recourse for the grievors, under either the Collective Agreement or the Crown Employees Collective Bargaining Act. Management has the right to deny the grievor the opportunity to even writ~.the examination. However, once having granted them the opportunity. as was done in this situation, the grievors' should have been granted the same consideration as other candidates. That is to participate in the entire process, not just part of it. Such as approach would have been in the best interest of good labour relations.