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HomeMy WebLinkAbout1990-0003.Union.92-06-03 , _ ONTARIO I:MPLOYÉS DE LA COURONNE . ..' . ... CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT 'c, BOARD DES GRIEFS 180 DUNDAS STRëëT WEST, SUITE 2100, TORONTO, ONTARIO. MSG 128 TE:LEPHONE/TELEPHONE: (4161 J26-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G IZ8 FACSIMILEITELÈCOPIE . (~I6) J26-1396 3/90 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BE 'l'WE EN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Community & Social Services) Employer BEFORE: S. stewart Vice-Chairperson E. Seymour Member D. Walkinshaw Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors . FOR THE R. Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING July 10, 1990 November 15, 1991 I · InTERIM DECISION This matter initially came before the Board on July 10, 1990, at which time the Parties agreed to adjourn the hearing pending discussions between counsel with respect to exchanging information and attempts at settlement. The matter came on before the Board again on November 15; 1991. At that time counsel requested a decision of the Board with respect to two preliminary matters. The first preliminary ma tter relates to whether the Board ought to require the Union to provide the Employer with particulars. The second issue is whether the Union is improperly attempting to extend the scope of the original grievance and ought to be precluded from doing so. There was also an issue with respect to the scope of a subpoena duces tecum. Counsel were in agreement that his latter issue may not be in issue depending on the ruling of the Board with respect to the matter of particulars. Accordingly, the Board did not hear submissions with respect to this matter. 1'11e grievance is d.~ted Februar.y 7, 19 90 , and the statement of grievance is as follows: "That J. Deimer, - acting on behalf of the Ministry of Community & Social Services, has failed to abide by the provisions of the Public Service Collective Agreement, Article 4. " The grievance requests the following with respect to the desired settlement: 2 1 ) That the r Üstry assure the Presider :;¡£ OPSEU, J. Clancy, and the Executive of Local 448 in writing that it will abide by the Collective Agreement. 2) That all bargaining unit positions currently vacant be posted and filled in accordance with the provisions of the Collective Agreement. On the first day of hearing, July 10, 19 90 , Mr. Whitaker advised the Board that it was tne position of the Union that approximately one-third of the positions at the institution were being held by unclassified staff. It was the position of the Union that there were permanent positions being filled by unclassified staff that ought to have been filled with classified staff and that the Employer had violated Article 4 of the Collective Agreement by failing to post these permanent positions on an ongoing ba s is. On behalf of the Employer, Mr. Little has requested particulars from the Union with respect to which positions the Union considers ought to have 1:H~en posted. Mr. Whitaker responded by letter dated November G, 1991, the relevant portion of which stèltes as fa llo'''¡s: ~s we discussed over the telephone, I have enclosed a summons to the Deputy Hinister requesting contracts for all employees named on i\ppendi x·A. to the S llmmOl1s. Appendix A consists of the name of all t~mployeeQ appointed to the unclassified service after July of 1987 through to OC tOÌ)t~ ('of. 1991. Beside each name is the 8mployee's classification, their department number, their contract st~rt date and contc~çt end date if no longer with the Ministry. As we discussed, the Union's case is that all the indi vidu.:l.ls It/hose na.me s are listed on Appen~ix A \-/e re irllproperly appo inted to the unclass i fied service. We take the position that the posit ions I 3 I held by all individuals on Appendix A should be posted and the individuals who held positions should be appointed to the classified service. - Mr. Little submitted that the Union has not specifically identified the positions that it claims ought to be posted and that the Bo~rd ought to direct the Union It is the Union's position that it is unable to l t.o do so. identify the specific positions until it h~s reviewed the documentation it has subpoenaed from the Employer. Mr. \Vhitaker stated that the grievance relates to a large number of positions held by various people over a period of time and that the precise nature of the duties and responsibilities of each person in those positions is ..vi thin the knowledge of the Employer. While the Union has some information in its possession, it cannot precisely define the positions that ought to be posted until it has had an opportunity to review all of the infonndtion that it has subpoenaed relating to these positions. In particular( Mr. Whitaker contends that it is necessary to examine the history of each position over a period of time in order to determine whet-her a post ion filled by an unclassifed ei"uployee (or series of employees) ought to have been posted pursuant to Article 4 of the Collective Agreement. T~~e ag ree ~t/Ì t Ìl ¡vI r . Littl!"!'s submission that the Bmployer is entitled to know with some precision what 4 positions the Union is claiming ought to have been posted. W1ile the Union's position, as set out in Mr. Whitaker's letter of November 6, 1991, is that all positions occupied by the persons it has identified are vacancies that ought to have been posted, it is apparent that this position may be refiI1(~d somewh"1t if the union has an opportunity to review the material that it has subpoenaed. At this point we are not prepared to direct the Union to provide particulars as to what positions it claims ought to have been posted. We think it appropr iate t'hat this roa t ter. b~~ ~iscussed between counsel once the Union has received and reviewed the material that it has sllbpoended. If there remains an issue with respect to' this matter it can be raised with the Board. As we noted at the outset of this decision, there is an issue with respect to the scope of the s ubpo ena. To some extent, the issues of particulars and the scope of the subpoena arø i nt8rt'..,ri ned. How€ve r , the issues surrounding the subpoena were not addressed pending the Board's ruling with respect to particulars. It was "l'3recd that the matter wOllld be aùdressed in writing if it is necessary to do so. The second issue relates to whether the Union is att~mpting to expnnd the scope of the grievance and ought to be precluded from doing so. It is t11e Employer's position that the Uni.on is n01l1 attempting to raise a - I .. :.J "Beres ford II type of case. It is the Employer's position ena t, firstly, this type of case is not within the ambit of t.he grievance as it is frA.med and that, secondly, the Union's claim in this r.egard is one that rclatp-s to an individual claim and is not one which is properly brought forward as a Union grievance. In Mr. Little's submission, such a matter ought properly to be raised as an individual grievance. On this point, Hr. Little emphasize<Ì the relief sOllght by the Union as outlined in Hr. Ì'fuitaker's letter of November 6, 1991, that th~ individlJ;Üs appointed to the positions that the Union claims should have been classified positions be appointed to the classified service. It was common ground that this particular remedy was not specifically raised in the grievance procedure. Roweve r , ¡'lr . lfuitaker argues that it d logicA.l extension of the Board's power to fully remedy a breach of the Collective Agreement to dirc~ct th~t those persons in unclassified positions that were performing those duties at the time of the grievance should be appointed to the classified service and be given an opportunity to compete for those positions. . We are unable to accept Mr. Little's submission thi'lt the "Beresford" aspect of the claim is not encompassed by the grievance as it is frð.med. We not~ that this BOi'l.r~ dealt with a "Beresford" type claim, in the same sense that the claim has been articulated before us, on the b"tsis of q 6· liinguage similar to the language of the grievance in this e.'l.se in Ministr~ of Natural Resources & OPSEU L~~~'?f!. - _____~ __........____..___._ u_ ___"""__.__ Grievance) (Kaplan). Grievances are often framed in __._ ___ __T__ ~ ..... general terms. In our view, the nature of the Union's claim, as it has been further refined, is encompassed by tne general language of the grievance as it is framed. \orniIe the particular relief with respect to the persons eligible to apply for the vacancies claimed is not specific.'l.lly raised in the grievance, we agree with Mr. Hhitaker's submission that this is a matter that reasonably . flows from the grievance, in. that the question of who would be eligible to apply for such a vacancy is a matter that must be addressed for the ultimate resolution of the issue explicitly raise~ by the grievance, in the event that the Union is successful in establishing a violation of the Collective A.gref~ment and obt,:Ün i ng d n order from the Board directing the posting of any vacancies found to exist. As well, we Ciinnot accept Mr. Little's ar.gument that this matter is not properly the subject of a Union grievance. The basis of this argument iA that the "Beres for.d" ar.gument raises an issl.1c of.: bl:'e<ich of statute, the Public ~ervi~~ Ac~, or, at most tìle isslJf~ of discìF~rge of an unclassified employee, tlVit is 001'"_ properly the subject of a Union policy grievance. In our view, the issue of whether there has been a bt'"c?i.ch ofJ\.rtiqle 4 of i 7 the Collective Agreement is one that has been squarely raised by the grievance. While the unclassifi..t~d st<'l.tus of individuð.l employees may be encompassed in this issue, this does not persuade us that the subject matter of this ~rievance does not fall within the scope of Article 27.12.1, the provision of the Collective Agreement dealing ~ith Union policy grievances. In our view, Fleet Inª~~~~~~ ~i~~~~~ (unreported decision dated August 1, 1980, Rð.yner) , a decision relied on by r>1r. Little in support of his position, deals with a factual sitn.=ttion that is not analogous to the facts at hand. It is our conclusion thð.t the dispute raised here is properly brought forward as a policy grievance pursuant to the tenns of this Collective Agreement. If the grievance is decided in favour of the Union and the Board concludes that there are vacancies that shoulc1 hð.ve been posted pursuant to Article 4 of the Co lll~ct lve i\g ("ecme nt, the usual remedy is an order directing the Employer to post the positions. In Ministry ~f ~~~~£~~ ~~~~1.!.£<:'~~, ~~BE_~' the Board found it appropriate to direct that unclass i fied employees \-¡no 'nad occupied po sit ions trn t should have been postëd be given an op¡x>rtunity to compete for the positions. As the Divisionàl Court has made clear in many instances, this Board has broad powers to ensure t1lat its orders are truly remedial and dispositive. 8 Notwithstanding Mr. Little's submissions to the contrary, it is our view that the order sought by the Union may be appropriate. '\'lhether or not it is appropriate will depend on the particular facts before us. Howeve r I given the fact Ulat it appears that there are a large number of positions in issue, and the fact that we are advised that there are a number ,of individual grievances proceeding separately in which "Beresford" claims are made in connection with positions ~hat may also be the subject of this grievance, it is our view that we should follow the USUF\l course of leaving the details of any remedial order with the parties, with the Board retaining jurisdiction in the event that the parties a~e unable to reach agreement. More specifically, if the Board concludes that there h~s been a violation of i\rticle 4 it will, subject to any unanticipated submissions thàt this would not be an appropriate remeò.y, order the posting of any such vacancy, leaving any issue of who may apply for the position with the parties. I n ou r v;i. e\ÿ , this is the most expeditious way of dealing with the matter. itJ e note, parenthetically, that while we did not hear any detailS about.the other p~oceedings that may relate to the alleged vacancies at issue in this proceeding we trust that the avoidance of duplicated proceedings will be addressed between counsel. We also note Hr. Little's reference to th is BO<1 ril' s recent decision in Parry, 237/91, and his suggestion that the basis of the Union's position i0 9 connection with this grievance may be in question. This matter was not argued at this point in these proceedings. The preliminary matters are disposed of in accordance with the foregoing. As previously noted, in the event the scope of the subpoena duces tecum remains in issue, the matter is to be addressed by the parties in writing~ In the event that this matter is no longer in issue, or can be resolved oy the parties, counsel is to contact the Registrar in order to arrange for the recorlVening of the hearing in accordance with the availability of the parties. Dated at Toronto this3rd day of June ~ 1992 ~um~-K s. L. Stewart - Vice-Chairperson - r ./ ., / E. Seymour - ~1ember . D. Walkinshaw - t1ember