Loading...
HomeMy WebLinkAbout1990-0856.Brattsti.91-06-04 ,'^ r r¡ .:.f.\'" '.:.' . ',_ . '-,', . ~ ~:~. -., ," EMPLOYÉS DE LA COURONNE ' ~;'?;:?~'}:~;~h;~Ç::' g~!::~~MPL 0 YEES DE L'ONTARIO i 'i GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT ,,' .' BOARD DES GRIEFS IBO DUNDAS STREET WEST, SIjJTE 2100, TORONTO, ONTARIO, MSG IZB TELEPHONE/TELEPHONE' (416) J26- lJ88 lBO, F/IjE DUNDAS OUEST, BIjREAIj 2100, TOF/ONTO (ONTARIO), MSG lZ8 FACSIMllE/TÉLÈCOPIE: (416) 326-1396 856/90 :IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE(Brattsti) Grievor - and - The Crown in Right of ontario (Workers Compensation Board) . Employer, BEFORE: P. Knopf Vice-Chairperson P. Klym Member M. O'Toole Member FOR THE J. McDonald GRIEVOR Counsel Sack Goldblatt Mitchell Barristers & Solictors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING January 29, 1991 \. , DECISION This case arises out of the Employer's decision to move the Microfilm Services Unit from the Head Office located at 2 Bloor Street West in Toronto to the Downsview Rehabilitation Centre in April of 1990. The Union has brought this case on behalf of 22 grievors who were affected by the move. The parties have agreed that, although we only heard the evidence from two grievors, the decision in this Award will affect all. . The essential facts giving rise to the case are not in dispute. The Microfilm Services Unit of the vlorkcrs' Compensation Board has been located at the Head Office at 2 Bloor Street West for many years. The Unit employs approximately 30 people, working in both a temporary and permanent capacity. In December of 1988, management announced to the employees in the Microfilm Services Unit that it would be relocating the Unit to the Downsvicw Rehabilitation Centre effective in April of 1989. A notice was served on the employees advising them that th e i r . positions would be transferred to the new location. They were also offered the option of signifying in writing to the Employer by January the 3rd 1989 if they did not wish to relocate and that they could then be considered for placement at or below their salary grade at the original location. However, before the January the 3rd 1989 date came to pass, the decision to relocate was rescinded and neither management nor the Union took any further steps on that anticipated move. Then, on Marçh the 1st, 1990, employees were again advised that the Microfilm Operations would be relocated to the Downsview Rehabilitation Centre and that the anticipated date of relocation would be July of 1990. On March the 23rd the employees were issued a package advising them of the .:- ; - 2 - \ "";. .~J facilities available at the new location and the modes of transportation available to the Centre. They were also issued a notice which contained the following: . . ~ . I would like to take this opportunity to assure you that this relocation will have no impact on either the status or content of your current job. In addition, although this change ,will affect your travel arrangements for work" the transfer of the microfilm function to the DRe does not constitute such a "significant geographic change~ that it would make you an "affected" employee. In short, your job ~ontinues but is relocated to the DRe. I appreciate tha t , for some employees, this relocation will be quite disruptive. For this reason, the Board is undertaking a number of measures which will assist you in the transition to the Downsview worksite. In partic.ular, there will be free parking ~vailable at the DRe for employees able to arrange for car travel. For those of you who travel by bus, a shuttle service will be provided by the Board from the public bus terminal at Jane and Wilson to the Centre. Although a definite transition date has not been determined, I expect that the transfer will occur in the latter half of April, 1990. You will be informed of the precise date as soon as it is finalized. .. . . . The relpcation in fact took place in April of 1990. Some emp.1oyees resigned rather than be subjected to the relocation. The vast majority were relocated and the 21 grievances were filed. The parties came to an ag reed statement regarding the impact or effect of the relocation upon the employees. It was agreed that "most" of' the employees experienced difficulties as a result of the transfer. Some employees experienced dffficulty with respect to transportation problems in that more transfers were needed on the public transit systems and arrangements became more - 3 - ~ ~ complicated with the use of the subway lines, bus 1i ncs and the shuttle bus. Further, the shuttle bus which was provided by the Employer to connect the public tr ansi t to the Downsview Rehabilitation Centre was not always reliable. Apparently, most people experienced longer travel time rcsu1ting in the necessity to leave their homes earlier and arrive back at home later in the evening. This affected some peoples' social and family life and they found themselves being more tired. The longer travel time also had effects on some people who had night classes scheduled and who had existing arrangements for volunteer activities. Some people '-¡lere also affected who had had car pool arrangements for the Bloor Street location. Further, some employees who had been able to take public transportation to Bloor Street found themselves having to use private cars to get to Downsview and this impacted upon their insurance rates and the wear and tear on their automobiles. A number of people had problems regarding the sCheduling of appointments and daily activities which had been based on the Yonge and Bloor Streets location. For example, doc tors 1 appointments, banking arrangements, lunch hour shopping and health club mømberships which had been arranged in the Yonge and Bloor area were affected by the move. This occurred because no such facilities exist on the Downsview site, whereas they were readily available and accessible on lunch hours at the downtown location. The Board had the benefit of hearing the evidence of two Union witnesses and the specific disruptive effects that the relocation had upon their careers, their families and their social and personal routines. That evidence simply gave a personalized flavour to the agreed facts set out above. But, given our conclusions below, it is not necessary to review that evidence in detail. On the other hand, for some employees the relocation had a beneficial impact. For these people, they experienced . . - 4 - ,~ reduced travel time . Some people enjoyed being away from the downtown atmosphere and pr.eferred the suburban and open space of tho Downsvicw Centre. Some people appreci~ted the fre~ parking at the Centre. Other people preferred and enjoyed the new building in Downsview and its facilities. There is also no dispute that the relocation resulted in no change in the work perform~nce of the employees, no change in their productivity or the "turnaround timen expected in production. There were no changes in the use of the technology and there were no changes in the organization of the department. The move was implemented because the Employer had other needs for the space at 2 Bloor Street West and was able to relocate this unit at Downsview at no cost to the organization. I~ is'also conceded by the Employer that the move in 1990 was precisely the same move that was anticipated in 1988 but simply did not occur at that time . In other words, there was no difference between the anticipated move in 1988 and the one that actually occurred in 1990. The relevant provisions of the collective agreement are as follows: ARTICLE 5 , ' PROMOTIONS AND TRANSFERS 5.01 When a vacancy of a permanent nature occurs or a vacancy of a temporary nature occurs and is expected to exceed thirty calendar days (for reasons other than vacations) or a new position is created within the bargaining unit, the position will be filled as follows i ( a ) In accordance with Article 6 Technological and Organizational Change, first consideration will be given to pl~cing employees occupying the same or ,I 1 - 5 - ~ . higher salary classification within the bargaining unit who arc affected by organizational or other changes which have resulted, or are likely to result, in a reduction of the work force. The placement of affected employees shall be on the basis of seniority, !?rovided the employee has the qualifications and ability to perform the required duties in a competent manner or can attain them within a eight month training period. .. . . . . ( c ) Subsequent to these considerations, all . vacanCIes above Salary Grade 002 shall be posted on designated Boardwide bulletin boards for not less than fivc ( 5 ) working days, except those: . . . . (iii) vacancies of a temporary nature will only be posted in the geographic location where they occur (Head Officc; Downsvicw Rehabilitation Centre; Regional Office; Area Office) when the vacancy is a result of absences under ArtiCles 16 or 17, all other vacancies will be posted under Article 5.01. Information Offices will be part of the office to whom they re~)ort. When a temporary vacancy is filied through the posting procedure as outlined in th ì S ,a r tic 1 e , any SUbsequent vacancies resulting from the initial vacancy will not be posted. 5.02 Information in Postings All postings shall set out the posi tion tit¡e, the number of vacancies, location if outsirlc Head Office, salary level or grade and salary range, together with the major responsibilities, the basic requirements of the position and the closing date of the , posting., . .. . . ;.- ~ 6 - ,) ", ARTICLE 6 TECHNOLOGICAL AND ORGANIZATIONAL CHANGE 6.01 Definition In this Article "technological and organizational change" means the introduction of equipment, material work functions, processes and methods, organization and ~eographic location, significantly different from that previously utilized. [emphasis added] . 6.02 Adverse Effects to be Eliminated In introducing technological and organizational changes, the Employer will make every reasonable effort to minimize or eliminate adverse effects on employees caused by such changes. 6.03 Advance Notice and Information ( i ) When introducing technological or . organi~ational change the Employer will notify the Union as far as practicable in advance 'of its intentions and provide updates as new developments occur. ( i i ) At least eighty (80 ) working days in advance of the change, the Employer shall, to the best of it~ abi'lity, provide the Union with written notice as to the'nature of the change, date of change, approximate number, job titles and location of employees likely to be affected and the expected effects on employees. 6.04 Consultation The Union and the Employer will meet at either party\s request with the intent of reaching agreement in good faith regarding any special provisions that may be necessary to assist affected employees beyond those contained in the Collective Agreement. - 7 - ! 6.05 Identification of Affected Employees In notifying the Union in accordance with Article 6.03 ( i i) the Employer will identify and advise those employees affected by the change, (a) whose prescnt jobs will be significantly chang ed, (b) whose jobs will become redundant. 6.06 Retraining ( a) Where, as a l::'esul t of technological or organizational changE! , an employee's present position is significantly changed, requiring new or modified skills, such employee shall be provided with the opportunity for retraining. The Employer will provide a period not to exceed eight (8) months fQr this retraining during which time the employee must acquire the skills . required in the changed position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours. (b) Where, as a result of technological or organizational change, an emp loyee' s position becomes redundant and they are placed in a vacant position under the terms of Article 5.01(a), i f n e c e s sa ry , they shall be provided with retraining. This retraining period will not exceed eight ( 8 ) months during which time the employee must acquire the skills required to perform the duties of the position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours. 6.07 Transfer Arrange~~ Where practicable, an employee affected by technological or organizational change who declines retraining when their job IS significantly changed, who is unable to acquire the required skills through retraining or whose job is made redundant, ,I - 8 - ,) + ~ shall be given priority consideration for vacant positions under Article 5.01(a). 6.08 Income Protection Where an employee is placed under Article 5.01(a) or Article 6.10, the present practice in respect of income protection will be maintained. 6.09 Notice of Layoff - If'it is necessary, as a result of technological or organizational change, to layoff an employee, notice of at least four ( 4 ) weeks shall be given. An employee with five ( 5 ) years of service shall have at least eight (8) weeks notice and an employee-with ten ( 10 ) years of service shall receive at le'ast twelve (12) weeks of notice. Copies of all such notices shall be sent to the Union. 6.10 Reassignment In Li~u of Layoff ( a) An employee shall not be placed on layoff while there is another employee in the same Division, Branch, ,Regional Area Office, or Information Service Office, as the case may be. (i) who is in the same or another classification or position in which the employee has served satisfactorily during his/her term of employme n t ~ or if there be no such classification, then in any other position for which the employee is qualified in respect of the normal requirements of that position; ( i i ) who has similar qualifications and (iii) who has less seniority (b) If no position is available under article 6.10(a) an employee will then be given the option of displacing any employee in the bargaining unit provided the criteria set out in article 6.l0(a) are satisfied as an alternative to accepting layoff. r ·-. 9 - . " 6.11 Recall following L~yoff Where a permanent employee is placed on layoff and his former position, or another position for which he is qualified becomes vacant within two (2) years after being placed on layoff, the Employer shall notify him at least fourteen (14) calendar days prior to its being filled. A copy of such nptice shall be sent to the Union. Such employees shall be recalled into the vacant position if he applies for the position within the stipulated time and no other employee who has similar qualifications and has greater seniority applies. 6.12 Continuity of Service Upon recall after layoff, t,he period of absence due to layoff shall not be computed in determining the length of service, and the service before and after the period of layoff shall be deemed to be continuous. 6.13 Transfers Into the Bargaining Unit A person employed by the Board who applies for and is appointed to a position in the Bargaining Unit, will be afforded full seniority based on lcng th of serVlce. It is understood, however, that for purposes of the application of this article, a supervisor or above who is appointed to a position in the Bargaining Unit, shall be entitled to exercise only that portion of their seniority, if any, accumulated as an employee in the Bargaining Unit, or a position which would have been in' the Barç¡aining Unit, had the Bargaining Unit existed at that time. The Argument Counsel for the Union stressed that the evidence of its witnesses as well as the agreed statements of facts and the documentation of the Employer indicate that the 8mployer has or must acknowledge that the relocation had a disrupting effect upon the individual members of the Microfilm ·' - 10 - c\ ""¥ , < Operations. Further, it was stressed that this relocation was exactly the same kind of transfer anticipated in 1988 wherein the Employer seemed to understand its obligations under Article 6 and gave the employees an appropriate notice to trigger their rights under Article 6 of the Agreemcn t. Thus, it was argued that the move to Downsview must be considered as a change in g~ographic location that is "significantly different" and thus triggering the protections of Article 6.01. It was argued that the parties have defined what a geographic difference is in the context of the collective agreement by making reference to Article 5.01(c)(iii) wherein geographic locations are defined in the context of temporary vacancies and Head Office is differentiated from the Downsview Rehabilitation Centre. This was said to bea recognition by the parties, and tho . Employer in particular, that the Downsview Rehabilitation Centre is a geographic area separ~te and distinct from Headquarters and also recognition that employees are entitled to know where a job would be even if it is of a temporary na ture. It was s~id that this was then reinforced by Article 5.02 which emphasizes that the Downsview Rehabilitation Centre ìsa separate and distinct geographic location from Head Office. On ,the basis of tha t, i t \'1 ass aid that the grievance ought to succeed. In the alternative, counsel for the Union argued that it is impossible to objectively determine if one geographic location is significantly different from another and therefore one must look also at subjective factors to appreciate and assess the impact of a move. Reference was made to the cases of Dominion Stores Ltd. (1982) , 4 L.A.C. (3d) 126 (Prichard) and Marshall Steel Limited, unreporteò decision under the Employment Standards Act by Referee Dissanayake dated May 23, 1990. Relying on these cases, i.t was stressed that the ,purpose and intent of Article 6 are to recognize that there are "vested rights" and a "reliance interest in an emplo.yee to the location of his job. u It was argued that an employee I. - 11 - / organizes his/her life around the job and the· location of the job. It was said tha t the Article recognized tha t 5:uch rights must be protected with this multi-located employer and recognizes that an employee has a right to maintain a stable work location even though the employer has the right to reorganize. It was argued that the circumstances of this case amount to a "significant difference" in geographic I location and that the rights under Article 6 have been triggered. I In response, the Employer began by conceding that the Downsview Rehabilitation Centre is a "different geographic locationU than the Hc~d Office where the microfilm operations had been located. But, it was stressed that in order for the Union to succeed, the onus is upon the Union to convince the Board that the move amounts to a Usignificantly different" geographic location as i~ required under Article ~. In order to determine what is significantly different, it was said that we should look only at the objective work-related differences betweon the two locations. In support of this, the Employer relied upon the case of Dr. L. Mendes, unreported decis,ion under the Employment Standards Act by Referee E. Norris Davis dated August 8, 1986. Further, it was stressed that Article 6 provides a collective notice to be given to the Union and this implies that'it is improper to apply a subjective test that could result in a technological chango being specific to individual employees. It was said that we should look only to see whether the change itself is "significant" and not whether it has any significant effect on individual employees. Further, it was argued that Article 5.0l(c)(iii) should be read as indicating that while the Downsview Rehabilitation Centre and Head Office may be different geographic locations, that in itself does not make them significantly different hecause otherwise the langua<Je of "significant difference" would not be required in Article 6. . - 12 - ') ~ In reply, counsel for the Union argued that Article 6.01 should not be read as meaning that there may be existing geographical locations that are not significantly different. Instead, it was suggested that the language recognizes that there are different geographical locations which mayor may not be significantly different. The Decision The issue for determination in this case comes down . to the neat question of whether the move of the rHcrofi 1m Operations from the Head Office ,location on Bloor Street in Toronto to Downsview amounts to a significantly different geographic location. If it does, there is no dispute over the fact that the provisions of Article 6.01 would apply and that the Employer has not complied with these. Thus, for the grievance to succeed, the Union must establish for us that the move in April of 1990 amounted to a significantly different change in geographiè location for the Microfilm Operations and its affected employees even though they remain in Metropolitan Toronto. In order to determine this question, we begin by noting that it is agreed by both parties that the Head Office location and the Downsview Rehabilitation Centre are "different geographic locations·' within the meaning of the collective agreement. Indeed, this is clearly recognized in Articles 5.0l(c}{iii} and 5.02. The only question for us to determine"is whether this difference in geographic location amounts to a "significant difference". Whe ther the, difference is significant or not is a matter of relatively! We ag ree wi th the language in the Dominion Stores Ltd. case, supra, where that Board of Arbitration had to determine tho meaning of the terms "major experiments or innovations" in . -- 13 - I order to determine whether or not a technological change had taken place. In deciding that the Board pondered: . . . With respect to the term "major", we recognize th a tit is an inherently relative term and that it lacks any self-defining quality. As a result, it must be interpreted in the context of the parties' intents and the nature of the employment setting. By analogy, the word "significant" is a relative term and its meaning should be interpreted in the context of the parties' . intentions, collective agreement and employment setting. That analysis leads us to Article 5.01(c)(iii) and Article 5.02. Those ArtIcles show us that the parties have recognized that employees have an important interest in knowing where a potential job would be located. For something as relatively minor as a temporary vacancy, employees are entitled to have it posted in the geographical location where that would occur. In that situation, the Downsview Rehabilitation Centre is differentiated from Head Office. Further, for all permanent job postings, the parties have ag reed that a location should be specified if it is outside of Head Office. This indicates that the parties have recognized that an employee has an interest in knowing where a job will be located and whether or not it is at Head Office or elsewhere. Thus, they have differentiated between Head Office and an area location, including Downsvicw. That alone does not answer the grievance. We must look to what would be the appropriate test of significant 'd i ffercnce. We agree with counsel for the Employer that the test is not a subjective one. Otherwise, collective notice to the Union would not have been contemplated under Article 6, nor would it make any sense. Further, if it was a purely subjective tes t, this could lead to the absurdity of a technological change being triggered by the relocation of one member of an office unit but not another simply because of I ,~; , - 14 - ). , ~ differences in il}vididual circumstances. . Instead, we have concluded that the test of whether there is a significant difference in geographic location must take into consideration both an objective and a collective determination of what, if any, "adverse effects" as are contemplated by Article 6.02 may occur by the geographic change. When we apply that test to the agreed upon facts before us, we are ~orced to several inescapable conclusions. 'First, while Downsview and the Head Öffice locations are both within Metropolitan Toronto, there is considerable geographic difference between the two locations. Quite simply, ,they are miles apart. Further, the accessibility of the two locations . , is quite different. The Yonge and Bloor location is readily ,accessible by both public and private transportation, including the subway lines. However, public transportation and subways do not take one directly to the Downsview location. Thus, access is undeniably more complicated for most people unless they lived in that particular area. Further, the Head Office location is in a 'downtown, commercial setting with easy access to shops and banking facilities. On the other hand, the Downsview location is suburban, isolated from access to shops and any banking facility. These differences between the locatjons are so numerous and so profound that it 1S impossible to conclude anything other than that the two locations are "significantly different.1I As a result, we do declare that the relocation of the Microfilm Operations to the Qownsvicw Rehabilitation Centre in April of 1990 amounted to an organizational change within th~ meaning of Article 6.01 of the Collective Agreement. Further, we conclude from the evidence that the Employer failed to acknowledge this as an organizational change and failed to abide by its obligations under Article 6 of the collective agreement. The Union has not sought any retroactive relief as a result of this violation. Further, . -, .l 5 - , the Union has specifically withdrawn several aspects of relief claimed in the original grievances, namely paragraphs .1 , 2 , 4 and 5 . It is clear to us from the submissions of counsel that the union is seeking prospective relief and tha t they arc entitled to it. However, in the circumstances of this case we trust in the abi.lities o~: counsel and the goodwi 11 of the parties and arc confi~ent that they ~.¡i 11 be able to fashion an agreement as to wh,:¡, t, if any, further appropriate relief should flaw as a result of the violation. Thus, we remit the matter to the parties for them to agree on any further re~edial aGtion. If, within 90 days the parties arc unable to t"each such an agreement, either party may ap~ly to the Registrar to have this matter brought back before this panel of the Board for an expedited hearing. In any event, we retain jurisdiction to assist the parties ~-lÌ th the implementation of the Award should any further assistance be requ ired. Finally, as we indicated to the counsel and the parties at the hearing, we ar'c gratefui to counsel for their able and expeditious presentation of this important and interesting issue to the Board. DATP.D at Toronto, Ont.ario this 4th day of June 1991. , Vice-Chair i/ " I / : / " // If G ~ ( , ~ p.'Klvm - Member I I ?1J 7~.q~~ r1cmbcr . ~