HomeMy WebLinkAbout1990-1335.Villella.91-07-05
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'(-- ONTARIO EMPI.OYtS DE LA COURONNE I
CROWN EMPLOYEES DE I. 'ONTARIO
1111 GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNOAS STREET WEST, SUiTE 2100, TORONTO, ONTARIO, M5G lZB TEU:PHONEITÉLËPHONE: (416) 326-1388 I
lBO, RuE DUNOAS OUEST, BUREAU 2100, TORONTO (ONTAI'lIO), MSG lZ8 FAcSiMfI..EITÉLÉcOPIE: (416) 326-1396 I
1335/90
IH THB HAftSR 0. U ARBITRATION
Und.er
THB CROWN ,BXPLOYEES COLLECTIVE BARGAINING ACT
Before .
'rHB GRIBVARCB SBTTLBDlf'1' BOARD
(
BBTWU;W
OPSEU (Villella)
. orievor
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The Crown in Right of Ontario
(Ministry-of Correctional servíces)
Bmployer
BEFORE: J. Emrich Vice~Chairperson I
M. Vorster Member
- D. Halpert Member
POR THE R. Stephenson
GRIEVOR Counsel
. Gowlinq, Strathy & Henderson
Barristers & Solicitors
FOR TBB J. Ravenscroft
EMPLOYER Grievance Administration and
Negotiation Officer
Ministry of Correctional Services
REARING December 13, 1990
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rhe grievor is a classified Correctional Officer working at tne Vanier
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Cantre in Brampton. From May, 1969 to April 21th, 1930 he was appoin~ed as
the Young 0ffender worK Crew Supervisor. Pri.or to the elCpiry of Crt¿
grievor's one year term, the Employer issüed two mamos soliciting
applications from corraqtional staff for this position. rhe grievor
submitted t'flO applications, in response to the memos circulaced, but he ~as
not r9'appointed. He claims that;. the posi~ion should hava bean post3d ill
accordance with Articlas 4 and ó.ó.1 of thi:! c1Jlle:.tive agreement and t.hat. he
should have been awarded the position.
'Ire IDnployec raisad a praliminary ob~ct~on co tna grievance on tne
basis Chat the assigniIlent of correctional scaff on rotation to tne duties of
Young Offender Work Crew 3up.:rvisoC" is an exc1.usi ve management func tion
which 1s J1ot'slIOject to the raview of this Board. Tne Employer contended
that there was no tarnpot'ar'Y vacancy to wnich the provisions of the
. collective agreement could apply.
rhd C'~levant provisions of the collectilla agreement and of the Crown
Employees! Collective Bargaining Act are the fotlowing:
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AfUICLE 4 - POSrIN..1 AND FLLLli'i1 or VACANCIES OR NEW POsrfIONS
4.1 when a vacancy occurs in tne Classified Ser~ice for
a bargaining unit position or a ne~ classified
posicion is cr-aatad in the oargaining unit, it
shall be advercised for at laast ten (10) ~orking
days prior to cne established olosing data when
advertised w.Ltn.Ln the ministry, or tt shaH be
advi:!rtised for at least flfcaan (1;) worKing days
prior to tne estaolished closing date when
advertised sarvica-wide. All applications will be
acKnowledged. 'lIhare practi:::aole:l notice of
I vacancies shaLL De posted Ql"l buUetin boards.
4.3 In filling a vacancy, t;he Ea1ploye~r shall give
primary consideracion to qualifications and
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ability to parfo¡:om toe ¡:oaquired duties. Whe¡:oe
qualifications and ability are relatively equal,
. length of continuous sarI/ice shall be a
consi de ¡:o at ion.
ARTICLE ó - rEMPORAR'l AS3((h'ME.~'rS
6.ó.1 Whet'd an amployea is assigned tampo¡:oarily to a position,
Article 4 (Posting and Filling of Vacancies or Na~
. Positioos) shall not apply except ,.rhere:
(1) the term of a temporary assignment is gcoeatar than
six (5) months' duration, and
(ii) the specifiq dates of the term are established at
least; t,.ro (2) months in advance of the commancemeot
of the temporary assignmant. .
. 6.6.2 Except as prov idad in ó. Õ. 1, in no casa shall any
provision of the Cbllectiva Agreement with respect to
tha fUling of, assignœnt or appointmant to a vacancy
apply CO temporary assignments.
FUNC£IONS OF E.VWfJJYER - SECr ION 18
18.-(1) Every colleotive agreement shall be deemed to
provide that it is the exclusive function of the employer to
manage, ~hich function, ~itnout limiting the generality of the
foregoing, includes the right to det3:rmine,
(a) i:!mploymant, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work
methoos and procedures, kinds and locations of eql.1ipJœnt
and classification of positions;
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and such matters ~ill not be the subject of collective bargaining
nor come witnin the jurisdi~tion of a board.
Mr. McKie was the successful appointee as Young Offender WorK Cra~
Supervisor for a one year tec-m commencing June 11, 1930. He was notified of
his rignt to attend and participate at the hea~lng. He actended and gave
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evidence as a witness 00 behalf of thE! EmployeI' iJut did not othaI'wisa
participate 1n I'espect to this pc-el.imtnary jurisdbtional issue. .
A similar' issue was raised in the caseRa 01?SEU (Fitzgerald) and the
Crown in RiMt of Chtario GaB 259/83 (¡'.f.G. Piche::"). At pages 12 and 13 of
that decision, ,'41". Pickler sUIDlDar'iz.as t~he principles applicable to this
issue:
rhe parties referc-ed tha Board to a numbeI' of
reported decisions relating to whatner a particular
assignment constitutes moverœnt to a n\:!w or vacant
position so as to invoke the applicati()(l of section 4 of
the collective agI'eement. While tha cases are of
limited value insofaI' as they turn on l~he facts
particular- to them, they do confirm tn<~ generally
accepted aroitral principle that the Eroployar cannot
avoid tha applicatioo of the joo postirlg provisions of
the collective agreement oy purporting to I'eassign "
employees to jobs within the same posil;ion, when the
assignment involves a clearly different bundle of duties
and responsibilities, bearing little Ol~ no relation to
the position pc-eviously held. By the sarne token, the
t'otation of employees through different types of
assignments within a given position dOé!s not necessarily
constitute transfer to a new or diffec-¿!nt position. For
example, in OPSEU (M. rhompson) and Crown in Ri~ht of
Onta['io (Ministry of rc-anspo['taticn and Communications)
141/d4, this Boac-d found that the movea~nt of property
agents in the p['operty saction of the tvlinistI'Y among
three distinct araas of set'vica, including land
appraisal ~ negotiations and land ma.nag¡:m~nt did not
constitute mO'lament from one posicion t;o anoth¿r within
tna maaning of Article 4 of the collact~ive agreement.
~e Boat'd denied toe grievor's claim tr.~t the ~loyer's
failure toC'otata him inco tne appt'aiS8tl s¿ction was
tantamount to a denial of an opportunity to bid on a
. vacancy, where a less senior agent ~as rotatad ahêad of
him.
In the Board I s view the 'Ihompson é!:['Îavance is an
instru~tive analogy for the purposes of the instant
case. Given the complex nature of many endea'lours;
whetnec- puolic or private~ the duties and
responsioilities that may generally fall within a given
position or joo may be quita varied. Some of the duties
may CCl'lStitute the bulK of an individual's day to day
assignment, while others are pel"forœd cnly
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to strœture job descriptiœs .in terms sufficiently
broad to ensure an adequate degt'ee of flexibility and
.lDar1pOW'er deployment is a cr-itical employer inter-est.
Boards of arbitratiœ nave, therefore, been reluctant to
find, absent clear directicn within the terms of a
collective agreement or a job description, that any
adjustEnt in tœ duties of an employee is nece~ily
tantamunt to a change of positim. Ibe more general
approach is to view a JOÞ or position as a bundle of
duties and responsibilities, and to ~ledge that a
new position is not necessarUy ct"eated by a minor
ch.ange in an employee 1 s tasks, particularly Where the
COn! function of the joo remains the saœ. (See,
generally, Children's Aid Society of the Re~lonal
MurÜ:Jipalicy ofiorit and Ontario PooHo Sèr'lica
Employees Onion and its ~ocal 34, an unreported decision
of a board of aroitration coaired by R.O. MaoDowell, -
dat~d I?ebruary 7, 1935).
, (emphasis added)
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'rhe 'lhompson case, 141/a4 rafer-red to, as well as the case OPSE:LJ p.
KlonOvlslÜ) and rhe Cro'110 in Ri,ght of Ontario J.S.B. 1551/00, held that tne
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reassignment to different du~ies within the sane joO or position did no~
Gonstitute a change 1n pOSition or trigger a vacancy to which tna posting
pro'lislons would attach. It is impor-tant to note as well tnat tne rhompson
case was dècided oafore the introduction of Articla 6.ó.1 into the
coLlective agreement La 193Ó. In the Klonowst<.L case, tne rdcit.at ioo of
facts is vary orief. Howevdr- ie, is apparent that the change of assignment
fraQ admissions to general duties was not considered a significant enough
~hange of the core functions within the same jOb or position.
In the casa OPSEU (Union e:r-ievance) and the Crown in Right of Ontario
1439/35, tne Union conceded at p.5 in raspect to tne grievor-, Ms. Kiroy,
that the tasKs'oefor-d and aft~r her dev3lopmentaL reassignment were so
similar, "managamant had the rignt to reasslga har to do different worK.
within the same jootl. HO'flever', in respact to the assignment of another
grievor, Ms. BaKker, to the positioa of Out of Pro~ince/Out of Country
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Claims P~ocesso~, the aoa~d found that the Employer had traditionally
t~eated this as a separate position, although it fell within the same
classification and jOb specification. 'rhis was evidenced by the æpacata
posting of notices soliciting applications.of interested candidates. At p.3
of the aWar'd, tne Boal:"Q, also not:!9 that the Enployer acknowledged that it
intended to .nake these appointments on a permanent basis, although tney ~ere
described as developmental assignments. At the time of the haaring, the
grie'ior, Ms. Bakker, nad baen ~orlting as an Out of Province/Out of Country
Claims Processor for just over a year.. Hal/ing found ttlat tha Employer
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distinguished the positions th~ough separate postings and that the grie'ior's
work \lias sufficiently dissimilar- befo~e and aft,:!~ her reassLgruænt t the
Board conCluded that the Employer had violated Article 4 by failing to post
the vacancy.
rhe grievor testified that stnce 19:35 until 1939, management at Vanier
. Centre had posted a notice soliciting applications from interested
correctional staff for che position of Young Off9nder worlt Cre~ Supervisor.
l'he notice fo~ the opening in 1333 VIas filed in evidence and appears as
follows:
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[NrE&~AL CQ~Er[r[ON
YOO[i} a~FE.NDffi wORK SUPffilJISJR - OJfuŒCr [O~AL O!?InŒR 2
Responsibilities: ro manage and coorclinate required
wort{ and maintenance proja~ts in a str'uctllred
corre~tianal set~ing. Perform a full ~anga of dutias
related to the care, cont~ol, supervision and custody of
young offenders, on an assigned shift. Successful
applicants for tnis position may be assigned to othèr
areas, performing other related duties. Present
schadule" 03:00 hOlJ["s to 16:00 hOlJ["s may be SLlOj:!ct to
change.
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Qualification Criteria: Ontario Grade 12. Ability to
meet Ministry I s madical and physical standaJ:ods.
rhorough kno\iledga of ¡'4it1istry policies and procedures.
General ~owledge of the jabbing ~ills regarding
painting, carpentry. AcUity to instruct young
offanders and suparvisa 1n worK s~iils. Good
interparsonal SKills relating to the managam¿nt of young
persons in a worKing environment, whiCh will require
patience and understanding. Ability to resolve
independently proolematLo areas as they arise.
Satisfactory attendance will also be a consideration.
Successful completion of the Ministry's in-ser~ice phase
training progranme.
Qualified applicants are invited to SUbmit a detailed
resume application to:
l'4S. S. Ball
- Senior Assistant Superintendent
Vanier Cèntre
?O~ dox 1150
& amp ton, Ontario
r.;5 V 2M5
Area of' Search: fhis internal competition i3 restricted
to classified Correctional Officers C.O.2 at t'ne Vanier I
Centra for Women. I
Posting Date: January 11, 1983
Closing Date: January 25, 1;3ò3
Nota: rnis position will be for a maxi~um period of
ona year.
Mr. Arbuthnott testified that the position of Young Offender WorK Crew
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Supervisor was created bafore ae commenced worK at Vanier Centre. Exnioit 5
was not put to him in cross-examination, nor did ne give raply evidence.
rhllS the evidence scands uncontradicted that until 1989, correctional staff
were recr~ited using the sort of notice r3ferrad to above. [t-was clear
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from tna evidetlCa of all ¡.¡Unessas tnat the durat;ioo of tna positi,on 'Was
known to be for a peC'iod of one year.
In 19<33 t tVlO memoranda were issuad solicÜir:~g appli:;acions from
Invictus staff and correctional staff at Vaniar C~ntre. 'lbay appear as
foUails:
glttU.oit #4 .
MÐvtORArIDU1\1 rJ: Invictus Staff
~ROl'\ : B. Aroucimott
Y.O. Administrator (A)
DArE: April 4,1990
SUBJ&Cr: YOlU1g Offander 'iOC"K Craw
îhere will oe a vacancy far the position of young
offander 'Wor~ cre~ suparvisor beginning April 50, 1990.
Any £nvictus staff member interested in tne position
should suomi C a spde-dy memo to the undec'signed no later
than April 25, 1930.
B. ArOutMOCC
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Exhibit ,#5
ME."iORANDUi"i rJ: Vanier Correctional Staff
FROt'o1 : M. MacKinnon, a.M. 14 rnvict~s
DAre:: l-tay 18, 1990
SLJBJECr: toung Offender Workcraw Position
Please be advised that any Vanier correctional staff ~
interested irt the position of Young Offender Workcre~
S~pervisor sho~ld submit a speedy memo to the
unœrsigned by May 25, 1990.
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rne candidata chosan for this position would commence
duties on Juna 04. 1930.
Your attention is appreciated.
1'4. MacKiMon
Mr. Arbuthnott testified that four applicants ~ho worked in the Young
Offendar cottage responded to tne first memorandum and three applicants
responded to the sacond memo, of ~hom tillO had previous elC.per iance iIlorlting
with Young Offenders. Aftar screening, the Employer short-listad three
applicants. Mr. Arouthnott explained that he was 5aet{ing somaone who
expressed knowledge of what was entailed in the position, had genuine
interest in the work and whoæ attendance was at an acceptable level. In
cross-examination, ne admitted that SKills and experience in construction
trades would be an asset, but was not considered necessary. He explained
that such skill and experience was not considered to be of primary
importance as the maintenance crew was available for consultation and to
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perform major maintenanc~ projects. He indical;ed that the primary purpose
of the position 'lIIas to teach young cfffenders Ufe sKills.
¡"ir. Arouthnott testified that all the dUGtes of a Young Offender 'lIo('t{
Cl:'ew &1peNisor fell within the amoit of the position specificaGion of
"General Duty Officer". He explained that the bulk of the joo entails the
supervision 'of a small group of young offendera on general maintenance jObS
and repairs, grolUld.sKeepiag, and cleaning. HOllrevar, he added that the WO(,t{
Crew SupervisoL" is often red~ployed to other duties such as assisting in an
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emergency (ie. fire, escape attempts, or disturbances), 0(' acting as an
escort in the transfer and movement of inmates and YOUllg offenders batween
institutions (ie. from an open custody faëility' to Vanier) or during
r~creational passes.
In his tescimony, tne grievor emphasized t,he extent to which he was
occupied in the supervision of young orf~ders' wort{ projects such as the
knocking down of a cem¿nt bloct{ #laU, tne installation of drywall, the
repair of a loading dock, painting, and the construction of a cemant waL~way
during his term as Young Offender work Crew Supervisor. He added that he
was rectaployed on only four or five occasions to other duties, such as
making emergency runs, during the first six months in" the position. in the
latter four months in the position the grievor tesGified that he was not
redeployed to other t~s. The grievor explai~~d that at some point during
his term as Wor<'t Craw Sllpet"visoL" hd was asKed 1:;1:> t"edllCa the size of his crew
for greater security, and in NoveJlber ha was as({~d to mal{e regular logs of
what was accompliShed. He submitted a sample log in evidence for- the months
of January and Feoruary, 1930:
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JOBS CU"1PLErED Jfu'l. & FßB. 1990
Scrapped, primed and pa~nted KontlKl washrooms
Buffed and waxed S.N.U. Lounge area
Buffed and 'lIIaxed S.N.U. nallvlay
Buffed and waxed S.N.U. Reception rooms
Buffed and waxed Recreational trailer
Buffed and waxed 2 parts of trailer #1
lotoVed fW"nitura from school to lnglasiœ
Moved furniture from M.G.S. to school
Set-up classrooms
Cleaned windows & vacuumed- school tllil~e
Moved furniture from Unit Administrator's old office to new office
Buffed and waxed Ingleside corridors
Moved furniture from Inglaside to. storage
Re-arranged furniture from room to room at Lngleside
Moved 5 loads of metal shall/as ~ ga!."oage from s:hool
Cleaned Vanier vehicles regularly
Cleaned trailers regularly .
Shovelled Snow regularly - for trailers
- walkway to gym
- wal~way to school
- S.N.U. waUco«ay
- Invictus walkway
Painting at Invictus
Miscellaneous othe!." duties .
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rhe grievor testified that he was awar~ that various correctional officers
l,iare assigned to act as Young Offend'ar Vlorte Crew SUp;rýlsor from the end of
,April to the eleventh of June, when Mr. ¡otclÜa asswœd his posi tloo.
llie!."e Vias some diffar-ence between the evidence of the grievor and ~\1r.
'Aroutnnott as to what quastions wara ~ad during tne interview. The
gr-ievo~ reœained unshaKan in nis evidence that he was aSKed a teChnical
qllastion that pertained to tne planning, execution and completion of '3-
concrete walK~ay. Mr. ArbuthnoGt did not agree that tecnnical questions
wer-e astCad in the interview but: he did agra'd that: a quasticn could have bean
aSKed as to hail to plan wor-i{ on a cons~ructioo project.
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rhe g;r iel/or said that dur Lng his intervievr with !>ir. Arb\.lthnott and Mr.
M:;:Kirmoo, he was aSlted acouC his worK ralated E!xperience and oackground. He
testified that he W'as ast<ed to explain hevr ha vro\.lld make a cament"alkway
and the griel/or responded with an explanation of what mixture he woul~ use
and hOW' to finish it. , Mr. Arouthnott denied tt'lat the griel/or was a&t;od
specifically what sort of calnent mixture to USE!.
rhe Board finds that 011 review, the gr levor and Mr. Arouthnott. recall
different parts of tne> intervialol ",ith diffarent. emphasis. Ibis is not a
question of credioility, out rather reflects tr.e different perspectives that
each had concerning what information was of interest and importance. £n any
evant, from all the evidence, it is (~lear that the cora duty of this
position is the supervision of young offenders in wor~ projects lor the
cleaning, maintenance and repair of Vanier Centre proparty. rhe purpose of
the position is to enhance life sKLlls of thg yaung offenders who ara parI;
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of the craw. .
Howaver, it is also cle~r' that depanding ~~on the sKill and ability of
the Wor~ Crew Supervisor, and the willingness &ld aptitude of the young
offenders, the worK crew experience would provide an opportunÜy to acquire
trade &<i11s as well. lliis aspeot of the programme was recognized Md -
emphasized in concral;a I;erms in the 1933 post:in~~, altnough it was
downplayed during the 19ö9 recruitment:. BecausE~ the grievor possessed
considerabla trade Sl{ills atld e>tperiance, tna wc)rk crevl was able to
acoomptish some significant projects, such as Kr.toctting down a concreta block
viall, constructing a walKway, and install ing dry'wall. [f toe position ware
assigned to someone with few~r construction SKills, the projects
accomplished might be less .3Jnoitious.
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Nonetneless, the eviden~a establishes that the bulK of worK of tne
poai~ion in~olves tlassiseing in ene ~lnteaanc~ of tne instit~tion - eg.
minor repairs, cleanliness". Ln the position specification, this is
described as bei~g a related cas~ occupying 20% of a corre~tional officer's
tima. It is clear that the Young Offender Wor~ Cra~ Supervisor is
responsible for the safety and security of the young offenders worKing on
the crdw, but na is ~ot required to perform most of the duties occupying 00-'
of the corra~tional officer's time as detailed in the position
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specification.
Incidental to the maintenance dUties and responsioilicies, the worK
Cre~ Supervisor may be required to log the ta~s compl~ted, be assigned as
driver of an institutional vehicle or to act as an escort on ,transfers or
passas. He ~ould be expe~ted to contrioute to inmate and young offender
adjLlStrnent Oy parsOtlal axanple of speech, dress and conduct. In retatioo to
this aspect, ~e aote that the ¿or~ Crew Supervisor is required to wear a
maintenance worK-suit and wor~ Shoes, not the unifor~ of a correctional
officer. Ha is eXp2cted to wear the correctional officer's uniform when
reassigned as an escort or \'Inan parforming the aforemancion~d incidental -
ta~s . 'rhUs, t.he Board Hnds t.hat t.na proport.ional mi.)t of caSKS i.s qu.lt.e
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differenc, almost the raversa, from the mix taSKS of tne general ducy
officer.
Furthermore, ~e also find on the evidence that tha posicions of
Admicting and DiSCharge Officer and ~tivicies Officer ~are navar posted in
the same manner as openings for the position of 10ung Offender ~orK Cra~
Supervisor. Even the terminology used by the Employer in the memos of April
and. May, 1939 indicate that this position is perceived differently and
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filled through a mor-e for-mal pro:::ess than tha ['otatiooa1 assigruœnts for the
other t~o positions.
AlthOugh it is the prarogatil/a of the Elnpl.oyer to organize the
~or-kpla:::e and to create temporary vacancies of six months or less to ~nich
Article 4 would not attach by reason of Article &.5.1, it is clear an the
evidence that the duration of the appointment alS Young Offend:r worK Crew
Supervisor has always been and year. Although the same officer mi~t hold
the positlo~ ovar- several years, the,2vidanca w'as cLear that each year the
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inCumbent resubmitted his or her application and was put through the
selection process.
We therafore conclude tnat the distinctive mix of duties and
responsioilities of the position and tha manner in which the Employer has
posted and filled this position since 1935 raveals that this is not ~
informal rotational assignment falling \iithin tl:1e exclusive authority of
managernant to maKe, out is a temporary assignmal'lt to whicn the provisioos of
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Article 4 attach oy ~irtue of Article ó.ó.1. I~ fo11o...,s therefore that the
preliminary objectioo is dismissed. 'rhe BoaL"d 11aS raserved jurisdiction to
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hear the merits of MI:". Villella's claim to the position. Given that l\o1r.
McKie's inCumbency is due to expire, it would ~!em no longer possible for I
the Board to place ML". Villella in the posit ion ' if he were successful in
his claim on the marits. Should the parties De unable to rasolve the claim
on the ffisrits, in lignt of the ruling on thè pr¿!liminary iSSU3. tha Board
shall raconvane to hear th-a marits at the pactie~s' r-equest.
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Dated at Kingston, Ontario this 5th - day of ~\l:ly. 1991.
c-~ _ J F~~>::a-- 'Á-J .
Jar-a E. Ealr lch . Vice-ChalrpersOtl
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- '1. r(:ì)~
Menna ~orstar Member
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- "-... ' Don Ha!pe :ø
,\IlembaC'
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