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HomeMy WebLinkAbout1992-2417.Union.93-07-14 ~ _._~~~ ---'- -.-I---------~- ----------------------/r",-------~.----- .--.---.---..---.----------- ---'------.----- " ,( ONTA ' ...- EMPLOYES DE LA COURONNE\..o< CROWN EMPLOYEES DE L'ONTARIO ~ I 1111 GRIEVANCE COMMISSION DE - SETTLEMENT ' ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARfO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 :) 2417/92 -- IN THE MATTER OF AN ARBITRATION Under J THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario - (Ministry of Correctional Services) Employer i BEFORE: W. Kaplan Vice-Chairperson M. Lyons Member M. O'Toole Member FOR THE A. Ryder UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING June 3, 1993 ( I I -~--- ( I , -------------l------------.---~-~--- .---'------- --- -.------ ---~----------.-~--.- . " 2 C Introduction On September 9, 1992, OPSEU filed a union grievance alleging that the employer had violated Article 24, the job security provision, of the Collective Agreement. In particular, the union alleged that the employer had, upon the closing of the Jobbing Shop at the Millbrook Correctional Centre, improperly assigned employees workinQ in that shop to new jobs according to Article 24 6 instead of Article 24 17 Article 24 6 sets out a detailed procedure for the redeployment of _surplus employees Article 24 17 1 provides ., Effective January 1, 1992, employees whose jobs become surplus as a result of contracting out, divestment or comparable transfer of work from the Ontario Public Service to a Crown agency, broader public sector, - non-profit orgamzation, or the pnvate sector; or relocation of an operation will be guaranteed a job offer in accordance with this Article I The union took the position that the Jobbing Shop employees should have been redeployed according to the terms of this provision because the work of the .Jobbing Shop was effectively transferred to the Guelph Correctional l Centre, and as a result, given this transfer of work, the provisions of Article 24 17 should have applied The employer took the position that the Jobbing Shop was downsized and then dosed, that none of its work had been transferred anywhere and that the redeployment provisions of the Collective Agreement had been properly applied A t the outset it should be noted that no employee lost his job as a result of the closure of the Jobbing Shop, and that the only remedy sought by the union was a declaration of ~ violation ~____.._--.l__ _____ - -- - - ~--- ---. -----._-----~------ -----\-.---------------.-----.--...-----.-.- .~---------~ - --------~----~-_.-:-~------_._---_._-------- . 3 Many of the -facts in this case are not in dispute The Jobbing Shop was one of a number of workplaces In the Mlllbrook Correctional Centre There were six Industrial Officers, including one Industrial Officer on L TIP, assigned to - ,l the Jobbing Shop who, with the assistance of inmate workers, built cell doors, fireplaces, grill doors, barbecues, permit holders, key vaults, and hinges These products were manufactured for the Mlllbrook Correctional Centre, other Ministry facilities, and other ministries The six employees -j assigned to the Jobbing Ship were D Humphnes, H Moore, R Heard, 0 Nolan, R Merpaw and H Goedhuis. On August 12, 1992 union representatives were invited to a meeting convened by Mr C DeGrandis, the Supenntendent -of the Mlllbrook Correctional Centre, and Mr A Roberts, the Acting Regional Director While this is a matter of some dispute between the parties, the union was advised at this meeting that the Jobbing Shop would be either downsized or closed. The fact of the matter ,is that the Shop was downsized and then closed On , August 26, 1992 the Industrial Officers assigned to the Shop receIved notices from the employer setting out their new assignments. Mr Goedhuis J and Mr Moore were not immediately reassigned, but were kept on as Industrial Officers assigned to the Shop on a reduced workload The Evidence Mr Daniel Murphy testified. Mr Murphy is the; local union president, and he testified about the meeting held on August 12, 1992 Mr Murphy attended that meeting along with Mr DeGrandis, Mr Roberts, Mr Goedhuis and several others. Mr Roberts announced the closing of the Jobbing Shop, and he explained this decision According to Mr Murphy, Mr Roberts stated that the Shop was a money loser, and that the equivalent shop at the Guelph ~ - -- ~- . - _._----- - -------~-~------ --~-tc:---.--."~--~ T-~-----~~-.---~----- "----- t ) 4 Correctional Centre was larger, more modern, and could, handle all Ministry needs Accordingly, the Millbrodk Correctional Centre Jobbing Shop was to be closed Mr Murphy testified that Mr Roberts stated that the work of the Millbrook Correctional Centre Jobbing ~hop wc;>uld, after it was closed, be performed at the Guelph Correctional Centre Mr Murphy also testified that Mr Roberts advised him that affected employees would be redeployed pursuant to Article 24 6 Mr Murphy, however, advised Mr Roberts and the others in attendance at the meetmg that affected employees should be redeployed. according to Article 24 17 Mr Murphy's notes of this-meeting were introduced into eVidence, and they t reflect his testimony before the Board Mr Murphy also testified that nothing was said at the August 12, 1992 meeting about downsizing Rather, he was told at that meeting that the Jobbing Shop would be closed, and that the employer first referred to downsizing the Shop at another meeting held one week later When the Industrial Officers were advised in writing on August 26, 1992, of their \ new assignments, reference was made to downsizing the Shop, and, as already noted, two of the Industrial Officers were kept on at tne Jobbing Shop. The letters to Mr Goedhuis and Mr Moore stated "The Jobbing Shop at Millbrook Correctional Centre will continue to operate with two Industrial Officers assigned to the area on a reduced workload basis for the immediate future As described by Mr Roberts a future review of the downsized Jobbing Shop operation will occur toward the end of the year" Mr Murphy testified that the space that used to be occupied by the Jobbing Shop has now been taken over by other institutional activities. ---- - ......-~ - _.~---------_._(~----_._---'-- - ---------------------. .--- ~.- -_....--" ~....,....t'"---- -----"------ ~-~---~-~----- ---- I 5 I In cross-examination Mr Murphy was asked whether anyone in management - ever said that the Jobbing Shop would be moved to the Guelph Correctional .> Centre, and he testified that management told him that the Jobbing Shop at Guelph would be doing all Ministry work, and while management never said that the operation would be moving there, in I Mr Murphy's view, the fact that the work was going to Guelph proved that the Jobbing Shop had been moved there Mr Murphy agreed that he had no other factual basis for hIs conclusion that the Millbrook Correctional Centre Jobbing Shop had been moved to the Guelph Correctional Centre other than what he had been told at the August 12, 1993 -meeting;- He testified that the employer changed its terminology when it was advised that the union took the position that Article 24 17 should apply in the face of the transfer of work, and that It ~ was his job as the local union president to ensure that the terms of the - Collective Agreement were properly applied Mr Murphy agreed that management has consistently advised him that the Jobbing Shop work had not been transferred to the Guelph Correctional Centre Mr H Goedhuis also testified As already noted, he was one of the Industrial Officers assigned to the Jobbing Shop, and he was kept on as an Industrial Officer assigned to that Shop on a reduced workload basis after the meeting of August 12, 1992 Mr Goedhuis testified that after that meeting, he and Mr Moore finished the outstanding work of the Jobbing Shop, as the other Industrial Officers were sent to their new jobs According to Mr Goedhuis, the last job was completed in late September or early October Among Mr Goedhuis's assignments was the preparation for moving of all the equipment used in the manufacture of the permit holders This equipment was placed on pallets for shipment. , ........'~ ....'-~...~- ~ - .. -.-.~ ~.. -.. -:'~'; - - ------- ---"-..- -----------.---r.--------.- --..------------------~--r---~------ ------------.------ -.- 6 .... In cross-examination, Mr Goedhuis was asked a number of questions about the work of the Jobbing Shop. He did not agree that the manufacture of the permit holder was a simple job, and he noted that nothing was simple when ') working with inmates He also testIfied that whether he was building a complex item or the permit holder, he had to work from plans, and these plans provided for one piece of an item to be fitted with another to create a finished product. These plans were, in Mr Goedhuis's evidence, crucial to the performance of Jobbing Shop work, and even the plans for relatively simple products were often complex. Mr Goedhuis testified that._in the two years prior to the Jobbing Shop being closed, the manufacture of permit holders may have required the attention of one of the Industrial Officers for a period of four to five weeks each - year Mr Goedhuis agreed that for the majority of the time, the Industnal ( Officers assigned to the Jobbing Shop worked on other projects. Mr Goedhuis was not aware that with the exception of the equipment used to manufacture the permit holders; all of the other equipment of the Jobbing Shop had been declared surplus, and was sitting In storage He did know, however, that the permit holder equipment was sent to the Guelph Correctional Centre, and he agreed that this equipment only constituted a ) small proportion of the equipment used in the Joqblng Shop l Mr DeGrandis testified on behalf of the employer He testified that Mr Murphy and the others in attendance at the August 12, 1992 meeting were , told that the Jobbing Shop was being closed According to Mr DeGrandis, no one in management ever said that the work of the Shop was being sent to the Guelph Correctional Centre, and the suggestion that this was the case - - --- - --- -----~------.-..---~-.~ -----r..7-------~---------~----~------ r ( ~ ~.i:~> 7': came from the employees present at the meeting Mr DeGrandis also testified that the work was not transferred to the Guelph Correctional Centre, or anywhere else for that matter, and that the Millbrook ) Correctional Centre has retained all of its Jobbing Shop plans ) Mr DeGrandis testified that he was concerned that the closure of the - Jobbing Shop might negatively effect institutional maintenance, and so he arranged with the Ministry for two Industrial Officers to remain on the job after it was closed for a six-month period in order to assess institutIonal needs. Mr Goedhuis and Mr Moore were given these assignments Mr DeGrandis testified that the Millbrook Correctional Centre retained, in addition to the plans, all of the raw materials, inv~ntory and finished products produced by the Jobbing Shop. With respect to the equipment, Mr .. DeGrandis declared it surplus according to established Ministry policy, and the Guelph Correctional Centre requested the.. permit hoider equipment. Mr DeGrandis estimated that this equipment constituted approximately 15% of the equipment of the Jobbing Shop. ) In cross-examination, Mr DeGrandis testified that the permit holder equIpment was sent to the Guelph Correctional Centre on May 18, 1993 He also testified that the Jobbing Shop ceased operation around the end of September 1992, (although, as already noted, two Industrial Officers were kept on duty pending a determination of whether their services continued to be required) Mr DeGrandis testified that as a result of this downsizing, tne MiUbrook Correctional Centre could no longer take orders for the I manufacture of Jobbing Shop products from outside the institution, but it still could meet orygoing institutional needs. Mr Goedhuis and Mr Moore still spend some of their time doing Jobbing Shop work Mr DeGrandis also ------..- -----------~~-----~----r-~-- -~---------------- -oe---.-r--c--~--~~- ------~------ 8 \ I testified that he still gets calls requesting orders Mr DeGrandis does not refer callers to the Guelph Correctional Centre, rather, he advises them that the Millbrook Correctional Centre Jobbing Shop is closed He testified that these potential customers could place orders with the Guelph r Correctional Centre, or with private industry In reply evidence, the union recalled Mr Goedhuis, who testified that he prepared the permit holder equipment for shipment to the Guelph Correctional Centre sometime around the end of 1992 To prepare thiS equipment, Mr Goedhuis had to recall some of it from storage, while some of It remamed in the space. formerly occupied by the Jobbmg Shop The evidence having been completed, the matter turned to argument. - Union Argument Union counsel argued that the Industrial Officers assigned to the Jobbing Shop should have been redeployed according to Article 24 17, and he argued that while all of the Jobbing Shop employees had received new jobs, a declaration should still Issue given that Article 24 17 provided additional advantages to redeployed employees. According to union counsel, the evidence established that the Jobbing Shop I -I had been transferred to the Guelph Correctional Centre, and as a result, the provisions of Article 24 17 should have been invoked In counsel's submission, an operation consists of three things work, requests for work and tools Counsel noted that some tools have been sent to the Guelph ~ Correctional Centre, and he suggested that the evidence of Mr DeGrandis indicated that the work of the Jobbing Centre had been transferred to the _.- -. .---------- ---- ~ -~-- - ~-- .... - ------- --I ---~-'-'--------~--.---------~._-c--------~-----------.--------.-.----..- --- -f"Y----.-..--~----. 9 -- Guelph Correctional Centre, and that Mr DeGrandis was telling as much to 1 callers who wished\ to place orders for products Counsel noted that the Guelph Correctional Centre had its own modern and efficient Jobbing Shop ) and so no significance should be attached to the fact that It did not take over all of the equipment of the Millbrook Correctional' Centre \ Union counsel argued that the, union had proved a prima facie case that the Jobbing Shop Operation had been transferred to Guelph, and having done so, management had an onus to prove otherwise Counsel suggested that the employer had not, in calling Mr DeGrandis, discharged Its onus, because Mr DeGrandis was not fully informed as to all of the facts, as he was only aware of the situation at the Mlllbrook Correctional Centre Counsel suggested that management should have called someone from the Guelph - Correctional Centre to give evidence about the situation at its Jobbing Shop Given that the employer had not discharged its burden, counsel, requested that the grievance be upheld and that the Board declare that Article 24 17 should -have been applied Employer Argument Employer counsel began his submissions by taking issue with the union's characterization of the evidence Counsel noted, for instance, that Mr DeGrandis never testified to referring Jobbing Shop customers to the Guelph Correctional Centre Counsel also took issue with the union's suggestion that the Jobbing Centre work had been transferred to Guelph According to counsel, all of the evidence in this case was to the opposite effect. Counsel noted that there was no evidence of any work being transferred to Guelph, the only evidence was that the equipment used for the manufacture of permit holders was transferred Counsel noted that the plans for the I ~ --. ._- -------------------r- ------ ~ -----------------. c -------------- ~-- ------'""----~ ----- 10 ' permit holders, and for all of the other products produced in the Jobbing Shop .at the Mil/brook Correctional Centre, remained at Mil/brook/and counsel referred to Mr Goedhuis's evidence about the importance of these ) plans in the manufacturing process Counsel suggested that the work of the Jobbing Shop could hardly said to be transferred, for without the plans, according to Mr Goedhuis's evidence, the products could not be manufactured Counsel argued, however, that even assuming, for the sake of argument, that the permit holder work was transferred to Guelph, that did not prove that the Jobbing Shop operation had been transferred there given that the permit holder work occupied less than 10% of the time of one of the Industrial Officers over the period of one year Very simply, In counsel's submission,- there was no evidence whatsoever of the Millbrook Correctional Centre Jobbing Shop operation being transferred to the Guelph Correctional Centre, or anywhere else for that matter Counsel also made some submissions with respect to onus In his view, the onus in this case was clearly on the union The union may, as part of its case, raise certain facts that the employer will wish to rebut, but it is still incumbent on the union to prove its case, and counsel argued that there was no evidence whatsoever in this case of the transfer of the Jobbing Shop Counsel also observed that it is far from clear whether there would have been any benefit to the affected employees had they been assigned new positions under Ar~icle 24 17 Instead of under Article 24 6 Counsel suggested that the employees may indeed have been better off having been given recourse to the general surplus provisions \ I -.-----------~-.--~------~--"---c::---,..-----.---- - .------...--------.-.----~---, \ (- " -~-'--.......--~--~~------ . -~" 11 \:.:.;. Union Reply In reply, counsel noted that while the union bears an evidentiary burden, so too does the employer, particularly when all of the material facts are in its ) possession Counsel agreed that in determining whether or not an operation had been transferred, diagrams and plans are important, but, counsel argued, these were only one of a number of factors to be considered And, in his submission,' when all the factors were exammed in this case, it was clear that the Jobbing Shop operation had been transferred to the Guelph Correctional Centre Decision -- Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance must be dismissed - In our view, no matter what was said at the August 12, 1992 meeting, the evidence establishes that the Millbrook Correctional Centre Jobbing Shop was downsized and then closed There was no contracting out, divestment or comparable transfer of work, nor was there any relocation of an operation Rather the decision was made to downsize and then cease certain operations at the Millbrook Correctional Centre The employer \ notified the affected employees of this decision, as is required under the Collective Agreement, and those employees received new assignments .I according to the surplus procedure set out in Article 24 6 of the Collective Agreement. They quite properly did not receive the benefits of Article 24 17 because the conditions precedent to the operation of that provision did not exist. r ) - ~ - _.- .~- - ___-,<4 --~- ._____~____.____n_ -- -.----~---r-----.~--~---------~~--~~-~ - -~ - -- ---~t- -=---~-- -~-.------______~~_ _____~__.__~_~ \, . " 12 ~ It is true enough in this case that the- equipment used to manufacture the permit holders ended up at the Guelph Correctional Centre It is probably fair to infer, although no evidence was led on this pomt, that this equipment is being used to manufacture equipment holders at the Guelph Correctional Centre Jobbing Shop in the same way it was used at the Millbrook Correctional Centre Jobbing Shop But even assuming that this was true, the manufacture of these permits constItuted, at best, a minor part of the activities of one of the Industrial Officers working at the Millbrook Correctional Centre, and the fact that it was "transferred" to Guelph cannot support the union's/ assertion that the Jobbing Shop operation was transferred to Guelph. Indeed, all of the evidence in this case is to the opposite effect Mr - DeGrandis testified that he declared the Jobbing Shop equipment surplus according to Ministry policy, and Mr Goedhuis's evidence establishes that after this declaration took effect he prepared that equipment for shipment to the Guelph Correctional Centre It will be recalled that Mr GoedhUls had to retrieve some of this equipment from the warehouse in order to prepare it. This evidence indicates that the Guelph Correctional Centre availed \ itself of the opportunity to obtain some required equipment which had been declared surplus by another institution This evidence does not indicate that the Jobbing Shop operation was transferred to Guelph The evidence in this ca~e establishes that the decision was taken to downsize and then close the Jobbing Shop at the Millbrook Correctional Centre The affected employees were advised of this decision, and were then reassigned according to the surplus provisions of Article 24 6 There is no evidence in this case supporting the union assertion that the Jobbing .. _~ ~_._~u _ __..U -- - -- -- ---~ -- ------=--.---.---~~.----.---(-;---.---'----------.-----------f~c--'-----"~------ ------.----.-----. ~.' 13 Shop work or operation was transferred anywhere In the result, the I grievance is dismissed ) DATED at Toronto this 14th day of J u i?y , 1993 j/Y y-- -,--------------- William Kaplan iC~_i~i , Lyons ember l1Z-5-_C~~ M O'Toole - Member c - \ r I J I I ~-