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HomeMy WebLinkAbout1993-1118.Union Grievance.96-04-24 ,~ .. ,. ( tr~l.r a ONTARIO 'EMPLOYES DE LA COURONNE ~J- CROWN EMPLOYEES' DE L'ONTARro l)"f\.Q. ,64'1 ' GRIEVANCE COMMISSION DE (N-tA 0 ~ JJ pP 11111 SETTLEMENT REGlEMENT (p' ~- ~ . , BOARD DES GRIEFS " 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TEl;EPHONE/TELEPHONE (416)326-1388 180; RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELE,COPIE (416) 325-1396 ,-, GSB # 1118/93 OPSEU # ATG-U781 IN THE MATTER OF AN 'ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before I THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: L Mikus vice-Chairper~on E. Seymour Member D. Clark Member FOR THE R. Blair GRIEVOR C<:>unsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M. Fleishman EMPLOYER Counsel Crown Law Office - Civil Ministry of the Attorney General ~ November 6, 1995 of. · HEARING I ~ ~ - \ This decisIOn arises from a Union gnevance dated July 5, 1993, in which it is alleged that the Ministry "' of th~ Attorney General i& violating ~he ,provisions of Articles 3 and,4 <?f the CQllective agreement in r \ that it has faile4 to post regular'classified court repoI1er vacancies at numerous locations around the I .......... province. ~ , / ~ The parties presented the Board with the following Agreed Statement of Fact: , 1 By gnevance dated July 5, 199~, the Union gnev:ed that tp.e Ministry of the Attorney General is violating the provisions of Article 3 & 4 of'the Collective Agreement in failing to post regular classified court reporter vacancies at J1umerous locations, around the province. The Remedy which is sought-is that the Ministry .of the Attorney General immediatel~post all' vacancies for classified court reporter positions which are currently occupied by classified and lor fee-for-service reporters. .; ~ " 2. ~~~ parties have,agreed, for the purposes ofthls hearing, to deal only with the fact situation at the Court house at 361 University Avenue, Toronto Further, .the, parties agree, that the outcome at the.above noted location will not be spec~c;a11y bindirig for locations in the rest of the province. The parties agree that this P~eL.will remain ~eized to deal with any other aspects of this grievance which are not either resolv~ as,a result of the decision of this Panel or as a result of :negotiations by the parties. The balance of this Agreed ,,-- - .~., Sta~eP1ent of Fact deals with the Court House at 361 University Avenue in Toronto. 3 At present, Court Reporters are employed at 361 University Avenue, Toronto, as members 'of both the claSsified service and the unclassified service. 4 Pnor to December 1993, court reporters were employed in three categories, those being classified, unclassified, and fee-for-service; Tpen following December of 1993, the Ministry discontinued the use of fee-for-service court reporters. In September 1990, the Ontario Public Service Labour Relations Tribunal issued. a decision finding fee-for-servIce reporters to be Public Servants within the meanit!g of Section 8 of the Public Service Act. The Ministry formally appomted the fee-for-service court reporters to the unclassified service effective January 2, 1994"in accordance with the Tribunal decision. r- " 1 " \ ~ '" 2 .5 From the da~e of the grievance through to the present, the caurt duties .of caurt reparters categarized as fee-far-service .or as unclassified have been identical in all respects to t~e jab duties afcaurt reporters wha are characterized as-.classified while in court. Unclassified court reporters' are emplayed an as needed as required cantracts. Their wark day ends with the completian .of the caurt sitting they are assigned ta and they are free ta 'ga home at that time unless reassigned ta anather caurt. Classified caurt reparters are required ta work 7 ~ hours per day As between the three graupings, all.paurt reparters repqrt ta the same supervisary persannel. ~ , 6 The functians pe~armed by the ~lassified, unclassified~ ,and fee-far-service caurt reparters have not changed in apy in~terial' way dWing the periad relevant to the grievance. - r 7 Dunng'the time periad relevariJ tathe grievance, the J?umberaf unclassified court rep'orters has mcreased and the number afclassifiedcourt reparters has decreased, while the volume .of war1~'hasTemained the same or increased', " - ~< ~ In brief: the jab descriptian .of caurt, reparters at 361 Ui1iversi~ A venue is as follaws. The ,purpose ofth~ pasition is to'take down verbatim nates .of caurt praceedings, and ta transcribe the recardor these 'praceedings. Classified . caurt reporters narnially dQ the transcriptian on the inClimbent's own time. Cburt reporters take dawn verbatim nates during' caurt praceedIngs by means of sharthand nates, praduced manually' or'With the assistapce .of a stena machine. Samecaurt reparters use tape recarders ta praduce an electranic record of the court praceedings. Caurt'reporiers must read back, as required, fram their awn sharthand nates, .or play back the tape, during caurt praceedings. There is a separate compensatian p{acess for the productian .or transcripts. Time spent m the praductian .of transcripts -is not cansidered relevant by the parties ta the issue ta be determined by the, Baard. 9 At present, there 'are 38 'uhclassified and 74 .classified caurt reparters. Na c1~sified cOurt repprter positi<;>ns have been posted or filled for several years, ~ At the hearing the parties further' agreed that these praceedings 'are withaut preju~ice ta indiVl.dual .. .. grievances filerl'under sectianJ3 15 1 ofthe-calleciiveagreementand that the reference in paragraph 8 ta the transcriptian af'nates might become relevant if the Baardshauld-determine that pasitIans aught ta be posted and the parties are subsequently unable ta agree an the number "', ~ \ 3 The Union relied on section 4 1 of the collective agreement, which reads as follows: When a vacanCy occursl in the Classified Service for a bargaining unit position or a new clas$ifiedposition is created in the bargaining unit, it ~hall1>e a~vertised for at least ten (10) workfug days prior to the established closing date when advertised within a ministry, or Ii shall be advertised for at least fifteen (15) working p~s prior to the establish~ closing date when advertised ~ervice-wide. All applications will be ackilowledge<l Where practicable, notiCe of vacancies shall be posted on bulletin boards. ( It took the position that the facts of this case show there are groups of employees who perform identical duties. Those duties have not changed over time. The number of classified employees(has - -' decreased, the"nuIIlber of unclassified employees has increased. The volume of work has not changed. Given those facts, the Union asked, how is it possible ihat no positions have been posted. Article 4 1, argued the Union, states that' vacancies shall be posted. That provision places an obligation on the employer to post vacancies where, based on objective facts, there is a vacancy In this case, there is and has been a demonstrated need. The work requirements have not changed. And' yet, no vacancies have been posted for several years, notwithstanding the fact that the number of J classified employe~ doing the work had decreased. Common sense dictates th~t there have been and continue to be vacancies that ought to have been posted. The Union referred the Board to several cases in support of its position. The first was that ofRe Horton Steel Work Ltd. And United Steelworkers, Local 3598 (1973), 3 L.AC (2d) 54 (Raynor), in which the Board stated, at page 56, the following: ~ ' , ~ "- .It is well established that a vacancy need not be posted simply because an exisbng job in a classwcation is not filled., Rather the company must first initially determine if they require a person to do that job. The Board, in that case, referred to an excerpt from Re Oil, ChemiCal & Atomic Workers, Local ( 4 9-599 and Tidewater Oil Co., (Canada) Ltd (1963), 14 L.AC. 233 (ReVille) m which is was said "It follows, therefore, that the teqn vacancies .not merely means an emptiness or a vacant position -.. in the dictionary sense of the term, ,but means a vacant positIon for which there IS adequate work in I the opinion of the company to justify the filling of that position)) 4 The Horton Board adopted that statement and went on to say' " 'This statement cannot, of course, mean that the company can turn a blind eye to ,the realities of the situation. The comp~y pl~t determine in its opinio~ whetherthere;.s. in fact, 'adequate work for the filling of the position. However. in the board's opinioD,'the company's opi,nion must be exercised OD, the bas~ of a reasonable view of the objective facts as they e~t ;1t th~ time the vacancy is afIeged to exist. if. for example, the company used several employets to work part of the time ona particular job to such an extent that the job was being done for a full shift each day, it would hardly be open for the company to say that in their opinion there was notadeCI.Uate work to )ustify the filling of the position. J, The next case relied on by the Union was that ofRe Maplewood Nursing lIome :Ltd. Tilsonsburg (Maple Manor) and London and District Service Workers' Union, Local 220 (1989), 9 L.A.C (4th) 114 (Hunter). In that case a full time housekeeper retired and her work was distributed. Ih part. to the three other full-time housekeepers, exis.ting part-time housekeepers and newly hired part-time housekeepers. The Union argued that her position should have been posted andthe,Board allowed the grievance. It applied the reasoning in the Horton anc;l Tidewater decisions (supra) and found that the work of the retrred housekeeper continued to be required by the employer and that her vacancy ought to h~ve been posted. .. ~ ~ { .J' In referring to the GSB junsprudence. the Union relied on the following cases. Fox and the Ministry -, of Correctional Services GSB 663/90; OPSEU and Ministry of Community and Social Services aSH 1775/89 and OPSEU and Ministry of Community and Social Services GSB 1160/&9 Those , , \ ,./ ~ ( 5:> <!! , { 5 I cases stand for the proposition that if, on a reasonable review of the workload, the work of the vacated position continues to be required, a vacancy eXi,sts that must be posted. I Mr Fleishman, counsel for the Ministry, took the position that the general principles found in the \ . jurisprudence and relied on by the Union must be considered within the framework of the collective agreement and the legislation governing these parties. Section 18 of the Crown Employees Collective Bargaining Act grants the Ministry exclusive jurisdiction to detenni11e cl~sification of positions. So long as management reasonably exercises these rights in a martn~r consistent with the collective agreement, its actions are not reviewable by a board of arbitration. In considering whether the Ministry; s actions are consistent with the terins of the collective agreement, article 4 1 must be interpreted'havfug regard to article 3 IS 1 which states: ( CONVERSION OF UNCLASSIFmD POSmONS TO CLASSIFIED POSmONS "- Effective Aprill, 1991, where the same work bas been performed by an employee in the .. Unclassified Service for a period of at least two (2) conseCutive years, and wbere the ministry has determined that there is a continuing need for that work to be performed on a full time basis, themirlistry shall establish a position within the Classified Service to perform ~t work, ijJld shall post a vacancy in accordance with Article 4 (posting and Filling of Vacancies or New Positions). The interpretation to be given to those articles has been established in the Beresford and Ministry of Government Services GSB 1429/86 case and the cases that followed it {Singh GSB 333/91, r ;, - , Parry GSB 237/91 and Porter GSB 428/90, 1640/90,1641/901. ~hesecases, as well as the cases quoted within them, deci<;led that the distinction between unclassified and classified employees was based not on 'the jobs performed by the employees in the cla~sification but rather on the. employment \ I \ ~, ) 6 status 9fthe employees doing the job and that, provided the ,~ppointment complied with the provisions of the Public Service, Act, it was within the exclusive jurisdiction of the ~mployer to .-, -, classify employees. A board of arbitration has no authority to deal with the refusal of the employer to renew an unclassitied employee's contra,ct. Q In this case, ,article 3 15. 1 does not apply, argued the Ministry It only aqdresses the issue of full time positions. The evidence is clear that these employees do not work full time ,and cannot rely on the collective agreement to_assist them. ~, In reply, Mr Blair took the position that the Ministry's interpretation of article 3 15 1 is not applicable to the facts of this case. Itofters that article as a complete response to all questions of appointments to c@ssified or unclassified positions. However, it ignor~s that fact that article 4 1 deals with two situations; vacancies and new positions. The Union's argument In this case is that ~ vacancies were created when employees left the classified'service, that the work they did continued and in fact increased and was, done ~y un,classified employees. Ohce this Board,is satisfied that vacancies. existed, ihe employer is obligated by the, collect~ve agreement to post them as classified positions. / DECISION - - - ..... eIt IS clear from the cases presented to us that as long as the"empl6yer acts in a manner consistent WIth /' the Pubiic Service Act that defines unclassified positIOns, it has' the exclUSIve jurisdiction to determine the Classification of employees. lll'the instant case, the Union.ls not asking tlus Board to / :7i-.c: ~Ii;' \:.. 7 determine what positions should be designated as classified. The Employer had already done that by I employing a certain number of reporters as classified employees. When some of those employees left ._. those positions, they were replaced by unclassified employees, The issue is whether the Employer was entitled to unilaterally decide that those classified positions should be redefined as unclassified. '- , In our view, based on the evidence before us, when a classified employee resigns, retires or otherwise leaves hislher position, a vacancy is created that is subject to the terms of the collective agreement. If the Employer detennines, based on an objective assessment of the available work, that a classified position is no longer necessary, it is entitled to leave the position vacant. However, in the case before us, the parties have agreed that the volume of work remained the same or increased. Further, while the number of classified positions decreased, the number of unclassified pc>sitions increased. It is clear from the facts that the Employer filled vacant classified positions with unclassified employees. That is in violation of the requirement to post vacant positions found in article 4 1 For the reasons stated above, the grievance is allowed. The parties have asked for a declaration that the vacancies are to be posted and asked the Board to allow the parti~s to determine how to implement the award. We will remain seised in the event the parties are unable to agree on its implementation. , - ~ -4 \ ~ rc:=:t';. 8 Signed this 24 day of April , 1~96 ~~)~j ~~~ ~~ ~ Loretta Mikus E. Seymolir D Clark Vice-Chair Union Member Employer Member , - .. .. ; ~.