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HomeMy WebLinkAbout1992-1418.McNabb.93-06-09 I " I ~"": (- a I ~ ,ONTARIO '~,f,.' EMPLOYES DE LA COURONNE : ~ .~~~ CROWN EMPt'(;,.'cES DEL'ONTARIO ,,'l....,.,'\c 1111 GRIEVANCE COMMISSION DE , , - SETTLEMENT REGLEMENT - BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G 128 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 128 FA CSIMILE /TELECOPIE (416) 326-1396 1418/92 \ IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McNabb) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE: N. Dissanayake Vide-Chairperson P. Klym ,..." Member J. ~Miles Member FOR THE G. Leeb UNION Grievance Officer ontario Public service Employees Union FOR THE A Rae EMPLOYER Counsel Winkler, Filion & Wakely Barristers & SOlicitors HEARING May 17" 1993 ... 2 DECISION This is a grievance w~erein Mr Percy D McNabb claims that he has been improperly reassigned or transferred' The union concedes that matters of assignment and transfer are ) exclusive management functions under section 18 of the Crown Employees Collective Barqaininq Act However, it is alleged that the employer exercised its rights in bad faith and that therefore the Board has jurisdiction to provide relief Reliance ;is placed on Re Bousquet, 541/90 (Gorsky) The evidence indicates that in 1992 the Ministry of Natural Resources undertook a province-wide reorganization of its operations Prior to the reorganization the province was '\ divided into a number of Districts, one of which was the Cochrane District The operations of the Cochrane District were in turn sub-divided into three departments (1) Forest Management (2) Fish and Wildlife and (3) Land and Waters. As part of the reorganization in June 1992, the sub~division of the Cochrane District by function was eliminated. Instead the District was sub-divided into three geographic areas (1) Cochrane (2) Smooth Rock Falls and (3) Iroquois Falls Each area was headed by its own supervisor reporting to the District Supervisor. \ Prior to the reorganization, the grievor was employed in the Forest Management Department of the Cochrane District as J, ) ~'~' [' ~~ ~~ \' -/ ::, ~./ .", ., 3 a Timber Technician classified asa Resource Technician II In this ~position he had district-wide responsibilities Following the reorganization: the grievor was. assigned to the Smooth Rock Falls area in the position of Area Technician, also classified as a Resourc~ Technician II The designation of the gri~vor's new position or its classification is not an issue between the parties. Tbe dispute relates to the assignment of the grievor to the Smooth Rock Falls area, which was his least preferred location' The crux of the grievance is that in assigning the grievor to Smooth Rock FaL~s despite his stated preference for other locations, the employer chasacted in bad faith ~\ The grievor testified as to the reasons why he did not wish to be assigned to the ~mooth Rock Falls area. He testified a,bout }?roblems he had in the past with some employees of a contractor It was his position that when assigned to Smooth Rock Falls, he would come into I greater' contact with that contractor He also testified that he lived in Cochr al)eand therefore preferred to be assigned to the Cochrane area. He testif ied that his new 'assignment would , result in a significant increase in travel time and he could be required, at short notice, to be away from home for several consecutive days at a time . " c-;, '\ 4 The evidence relati,ng to the grievor's probiems about the contractor is that when he raised this wi th hissupe~visor Mr. George Brue~mer, the latter undertook to and did speak to the supervisor of the contractor' 5 employee Thegrievor was subsequently advised by Mr Bruemmer that the contractor's supervisor had no concerns about his employees working with the grievor He told the grievor that he should try working with the contractor's employees :for a period of 6 months and that if he had any further problems, the grievor shoulq advise him. The grievor testified that following this the I contractor's employee in question confronted him at a grocery ! store and reprimanded him for having complained to the I supervisor and threatened that if he complained agai~ he would make sure that the grievor will not have 'a job However, the grievor conceded that he did not bring this threat or any other concern to Mr Bruemmer's attention Mr Bruemmer testified that since he had heard nothing from the grievor he had assumed that his problems with the contractor's employees had been resolved With regard to the grievor's concerns relating to travel, the uncontradicted evidence is that the time away from home and travel time have always been a concern of the majority ox employees in the District. There is nothing to suggest that the requirement of extensive travelling or the concerns relating to that, were unique to the grievor On the other J I \ I I (:" , . 5 hand, the evidence indicates that the employer accommodated the grievor's concerns by undertaking not to assign the grievor to work in the Northern part of the area for lengthy periods of time The evidence indicates that the grievor was suspended for 2 days without pay just p'rior to the announcement of the \ reorganization. The employer alleged that the grievor had two safety violations in the ~am,e day This discipline was grieved The grievor ,admitted to one infraction but denied the other The grievance was settled during the grievance procedure with the penalty being reduced to a written warning The grievor conceded one of the alleged safety infractions and stated during his testimony that he would not have grieved if the penalty was a written warning in the first place Thus it \ appears that the employer accepted his position during the grievance procedure Presumal:;>ly this evidence was led in \ order to suggest that the grievor's assignment to Smooth Rock Falls was a form of penalty for the alleged safety infractions. However, there is no evidence to suggest that this had anything whatsoever to do with the grievor's assignment to Smooth Rock Falls Mr. Bruemmer, who was the grievor's indirect supervisor prior to the reorganization in the position of Forest Management Supervisor, and became his direct supervisor after ;- - 6 the reorganization as Area Supervisor for the Smooth Rock Falls area, testified as to the process by which employees were assigned to-the various positions First the boundaries for the 3 areas were delineated and an organization chart was prepared with boxes for the positions required in each area, and finally names were put in the boxes The union relied heavily on an "Employee Information Form", which each employee was required to complete prior to the ,reassignments taking place This required each employee to provide, inter alia, his qualificat~ons and employment history In addition it solicited the employee's preferences of areas for assignment. The grievor had given Cochrane and Iroquois Falls as his r preferred choices. Mr. Bruemmer testified that in staffing the 3 areas, the employer wanted a mix of skills in each area Nevertheless, each area had a greater concentration of particular types of work In these cases, employees with the greatest skills and experience in a particular typ.e of work were matched to the areas where that was needed-the most Also; Mr Bruemmer testified that an attempt was made to continue existing reporting relationships wherever possible He testified that the foregoing "organizational needs" were treated as paramount Employees got their preferred locations only where that could be accommodated while fulfilling the Ministry's organi~ationa1 needs. > ( ~'.; N I 7 The evidence is that the grievor had the grea.test experience in Forest Management iri the District Mr Bruemmer testified that out of th~' 3 new areas Smqoth Rock Falls had the high~stproportion of Forest Management responsibilities Furthermore, he testified that the extensive experience the grievor had in check scaling was best suited to Smooth Rock Falls In addition, he testified that the grievor had significant experience relating to large "order-in~councilll timber lic~nces The employer could best use this experience in Smooth Rock Falls. Finally, Mr Bruemmer testified that practically every supervisor who directed the grievor in the former Forest Management Dept had been reassigned to Smooth Rock Falls. Thus the policy in favour of continuing existin9 reporting relationships also supported a decision to assign the grievor also to Smooth Rock Falls Mr Bruemmer testified that while the grievor'sstated preferences did not include Smooth Rock Falls, his wishes could not be accommodated because of the organizational needs The evidence is that the gr levor was not the only employee who did not get his preferred location. The employer's primary consideration was its own organizational needs While the union alleged that there Were two other employees who wished to be assigned to Smoo1;.h Rock Falls, the evidence is that one of them did not convey any preference of i location to the employer. In any event there is no evidence I ) ;- ~,,;;'f.'~i' G' ..... ~:- 8 to suggest that the employer's organizational needs could have been met by assigning one of these employees to Smooth Rock Falls instead of the grievor The union also alleged that after paving solicited the employees' preferences, it acted in bad faith by subsequently ignoring the employee's I wishes We cannot agree Merely because the employees were aSked ~or their 'preferences, no employee could reasonably have been led to believe that he would necessarily get his preferred location,. If the Board were to take such a position, it would discourage the employer from seeking employee input in exercising management rights That would be counter- productive We are satisfied that the decision to assign the grievor to Smooth Rock Falls was taken on the basis of legitimate operational considerations There is no indication of any malice or personal conflicts between the grievor and the l \ -members of management who were involved in the decision. In short, the allegation of bad faith is not supportable by any I evidence In the absence of bad faith the Board has no jurisdiction to review the employer's decision relating to the grievor's assignment. Accordingly, this grievance is hereby dismissed . -:.-' !3 9 Dated this 9th day of June, 19,93 at Hamilton, ontario I - ~>-'-"-'~Gr-~ N Dissanayake f. Vice~Chairperson >. .~ if7;C10 ~ p Klym Member c;~~ J Miles Member I