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HomeMy WebLinkAbout1993-1135.Beatty.96-03-08 , ( :i.~ .... .2) "' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO b~ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT .Jo BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G' 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G1Z8 FACSIMILE/TtitcOPIE (416) 326-1396 GSB # 1i35/93 OPSEU # 93E362-93E389 IN THE HATTER OF AN ARBITRATION Under THE CROWN, EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Beatty et al) Grievor - and - The Crown-in Right of ontario (Ministry of Transportation) Employer BEFORE W. Kaplan Vice-Chairperson FOR THE C. Walker GRIEVOR Job Security Officer Ontario Public Service Employees Union \ FOR THE D strang EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING February 21, 1994 June 27, 1994 May 25, 1995 ; July 18, 1995 February 21, 1996 ( ro. 2 Introduction I In the summer of 1993, the decision was made to c1ose'the Ministry's District Office in Port Hope This decision resulted from the implementation of the government's Expenditure Control Plan. Thirty-two ; bargaining unit employees were affected and a large number o'f grievances were filed As it turned out, all of the affected empioyees were successful in securin9 alternative OPS employment. Nevertheless, there were a number of other issues requiring resolution, and the various grievances ~ proceeded to a hearing The parties were able to resolve almost allot the matters in dispute However, one group of grievances, filed by employees who accepted job offers in other geographical locations, remaIned - outstanding. It is fair to say that these grievances seek compensation for costs incurred and losses suffered as a result ot the various moves, costs J incurred and losses suffered by the grievors and their spouses, and costs and losses not covered by Management Boare! policies relating to the relocation of employees. - " It should be noted, at the outset that the employer conceded that Article 26 should have applied given that the Port Hope District facility was closed Obviously, this provision provides the union withcer7tain rights arising out - of closures impacting large numbers of bargaining unit members Moreover, it also provides affected employees with longer periods of notice than are available to surplused employees pursuant to Article 24 A notable feature of this case is the fact that the union is not alleging any bad faith on the part of the employer Rather, its claim is simply based on the failure to provide employees with the extra notice period in Article 26, a failure which, the union alleged, resuited in employees taking the job offers ~hey , 'I did, when they did, leading to the uncompensated costs incurred and losses - " 3 suffered The Evidence :- . Richard Blakely, the local union president, testified Port Hope employees received their surplus notices on June 23, 1993 Mr Blakely described the efforts of the union and management to assist in securing alternative employment. As Mr Blakely was aware that other surplus declarations! within the Ministry were in the works, he urged members to carefully consider any employment offers as, he testified, a bird in the hand was - better than two in the bu~h Put another way, things were, Mr Blakely stated, looking grim. Indeed, the decisions made as a result of the -< Expenditure Control plan resulted in the elimination within the Ministry of more than three hundred bargaining unit positions. Ninety vacant positions " were also eliminated "\ Mr Blakely described his efforts, and those of management, to identify and secure new'positions for surplused employees. Suffice it to say that the , process was far from problem free, and a number of examples were provided suggesting that the dissemination of information within government was not all that it could have been This evidence was confirmed by another witness, Mr Lloyd George, the chief union steward As already noted, almost all of the grievances associated with this surplusing were resolved by the parties. However, seven grievances remain outstanding These grievances were filed by individuals who were reassigned ~o new positions beyond 40 kilo metres Each of these individuals is seeking compensation for certain expenses which they believe are attributable to the moves; expenses which are not, however, covered by - - ~ 4 \r t ,....:... Mal1agement Board's relocation policy All seven grievors, prepared impact statements setting out the .amount and nature of their loss, and six of the seven testified With employer counsel's permission, the impact statement of the one grievor who was not able to attend the hearing because of a conflict was introduced on consent. None of the grievors wished to be returned to 'Port Hope, or to displace employees occupying positions in Port Hope or elsewhere, all they wanted was reimbursement for the additional costs they incurred and losses suffered One of theugrievors, Gloria Moore Shaw, however, presented a somewhat different case as she did not base her claim on the alleg~d violation of \ , - Article 26 Rather, she asserted that Article 24 had been breached 'by the employer in that it limited its job search on her behalf to' the geographic iocation where her husband had been assigned. Employer counsel objected I to the Board's jurisQiction to hear this grievance -In order to expedite matters, Ms. Shaw testified and the parties reserved their submissions on the arbitrability of this grievance to final argument. I , The Grievors and Their Impact Statements As already noted, each of the grievors prepared impact statements setting \ out the nature of their loss It should also be pointed out that the grievors were, to a greater and lesser extent, able to point to other jobs, in Port Hope or elsewhere, now held by more junior employees, but jobs, nevertheless, that they Iwould have taken had they been offered them first. In some cases, the grievors were obviously qualified for the positions they now identified In other cases, the grievors asserted they had the ability to do the positions they now identified. The purpose of this evidence was to demonstrate that had the grievors been given the greater notice period -- 5 \ ~ provided for in Article 26, and had the union been given the opportunity to assist in the surplusing .process as contemplated in that provision, the grievors would have had the opportunity to secure these other jobs and, in \ that way, would not have incurred the costs and suffered the losses set out in their individual impact statements. It should also be pointed out that in each case, a job was offered and voluntarily accepted Each of the grievors , r > could have, had they wished, declined the job offer and waited for ~ something better to come along Most of the grievors were quickly placed after receiving their surplus notices. / It is not necessary, in these reasons for decision, to set out the CO$ts and losses being claimed by each of the grievors. Each of the impact st~tements - has been carefully reviewed, and it is clear that the grievors and their families suffered from the moves, both financially and emotionally It is also clear that each of the grievors was treated in accordance with Management Board's relocation poljcy, and none of them had any dispute - . about their treatment in that respect. The nature of the losses varied widely In some cases, losses on the sale of the family home were claimed, in other cases, expenses for commuting and purchasing a new home were claimed (where, for example, more money had to be spent to secure a ,) comparable residence), in one case losses incurred as a result of overpaying for a new home were claimed! Some spouses lost income as a result of ,- having to move, and a number of claims were made in that respect. The losses ranged from several thousand dollars to more than forty thousand dollars , As already noted, Ms. Shaw's circumstances were slightly different than 1 those of the ether grievers She received a surplus declaration at the same ) ; I 6 time as the other Port Hope employees Initially, Ms Moore wished to be given a job offer in the same location as her husband Indeed, one of the . exhibits introduced into evidence notes that "it was agreed that no offers .:;, ! would be made to Mrs Shaw until her husband was placed" Ms. Shaw's -,. ! .. - ;. }. - , husband was placed in Chatham on November 1, 1 993' Some time thereafter, Mrs. Shaw was given a training assignment in Chatham, and " shortly after that she accepted a' permanent position in the community I' " -' In these proceedin9s, Ms Shaw took the position that she should have been offered a~job closer to Port Hope, and she asserted- that there were jobs ~ , . I closer to Port Hope that she would have taken had they been offered to her She testified that by January 1994, she no longer wished to join her \ husband in Chatham, and that the statement quoted above was, therefore, incorr.ect. Eventually; Ms.. Shaw was successful in securing a lateral . ' transfer to a position in a differ,ent Ministry in Whitby She then returned to her residenc~ in Port Hope. Ms Shaw sought to be cornp~nsated for her moving expenses back to Port Hope. She ,observed that her belongings had originally been move~, to Chatham along with those of her husband, but testifi~d that she never resided witn him; and woulQ not have ,mov~d to Chatham if she had been offered some other job, closer to home as, she now c1aim~9, she should have been According to Ms Shaw she expressed, to m~nagement her d,esire for a job closer to Port Hope, but was informed there were no avC!i1able jobs. Management Bo~rd documents were introduced into evidence listing jobs that Ms Shaw testified. she was qualified to perform. She also stated that she would pave commuted as far as Toronto Given that none of these jobs were ever offered to her, Ms. Shaw felt that she had n6 choice but to accept ----.-- I ,. 7 the Chatham position. , In cross-examina~ion, Ms. Shaw agreed that her grievance w~s filed in July 1993 She agreed that in November 1993, she:! was interested in a Chatham position, and expressed that preference to management. Her views on that matter, however, changed in January, and she advised the employer of that / change In the meantime, Ms. Shaw had received notification that her surplus period was extended and so there was no issue in her case that she had received the amount of notification provided for ,in ArticJe 26 When . Ms. Shaw accepted tne Chatham assignment, she did so voluntarily after more than six months had passed The evidence having been- completed, the matter turned to argument. \ ~ Union Argument In the union's submission, there was no doubt that the grievors, with the exception of Ms. Shaw, had not received the amount of notice provided for and required by Article 26 Management had conceded that that article had \ not been but should have been applied. And if it had, the union argued, all of the grievors would not onlY have received the extra notice it mandated, but would have also received the assistance of their union as it would have been directly involVed in the surplusing at an early stage Moreover, had th~ proper notice been given, the surplusing could not have begun when it did, indeed, it would not have begun prior to the time when most of the grievors had accepted alternative offers of employment. I I 8 The fact of the matter was that the evidence established, in the union's submission, that there was no need for the grievers to grab the first jobs , ' that came along for there was' evidence indicating the availability of other positions far closer to home - positions that Would have obviated the need for any of the grievors to have moved And it was compehsation for the costs and losses that Were incurred and suffered by these'moves that the grievors now sought from the employer It was. admittedly impossi61~ to determine what Job offers the grievors would have received if they had received their Article 26 rights, as other employees were also being surplused and may have been in competition for the some 'of the same jobs However, given the dates upon which some of the other jobs became available, dates following the time when the grievors had been surplused and taken other job offers, there was good reason to believe that ~the job " offers the grievors had taken would have gone to other s'urplused - ~ employees, while the other jobs which subsequently' became available and which were in commuting distance of Port Hope would have gone to the grievors -' ~ The union was not, in this case, alleging that members of 'local management, in assisting the grievors in fihding new 'positions, were acting - ~ in anything other than good faith Nevertheless, the grievors were, by virtue of having been denied their riglits under Article ~2'6, put in a position where they were denied the significant-benefits of that provision, and they had incurred costs and suffered losses as a result. As such, the union asked that the grievors be granted damages in the amounts set out in their impact < statements, and further requested' that I remain seized with respect to the " implementation of my award ---- 9 With respect to Ms. Shaw, the union took the Posi~ion that her grievance I was both arbitrable and meritorious. The evidence established, in the union's su~mission, that by January 1994, Ms. Shaw no longer wished to move to Chatham, and she notified the Ministry of this. Accordingly, Ms. - Shaw should have been, as required by the collective agreement, offered vacancies closer to hOrTle, and if she had been offered those vacancies she would not have incurred the losses she suffered as a result of subsequently " having to move back to Port HQpe after transferring to a job closer to home. The union asked that Ms. Shaw be compensated for the losses, that she had incurred pursuant to Management Board Directives and Guidelines. In conclusion, Mr Walker noted that the union put the employer on notice through the timely filing of the grievances that it disputed the. manner in which the surplus notices had been given. These grievances were filed before any employee had actually taken another job offer, and the grievors could hardly be faulted for, nor should they be held responsible for, the delays that subsequently occurred While the union was not seeking, in this case, to displace any of the employees who obtained positions that might rightfully have gone to the grievors, it was seeking damages, damages that were, in effect, an enhancement of the other expenses that they ha9 incurred, and damages which were fair and rE:!asonable given the employer's failure to provide them with the appropriate notice - Employer Argumeflt Employer counsel began his submissions with some,; comments about the Shaw grievance In ~ounsel's view, this grievance was clearly moot. The - grievor testified that she was perfectly content with management's actions between the time she received her surplus notice, and filed her grievance, / 10 . and December r993 'In January 1994, some six months after her gnevance ~ was filed, Ms. Shaw was ncilonger happy However, iri the employer's submission, even taking her evidence at its best, her unhappines~ could not be traced to a dispute or difference that h~d arisen in the summer of 1993 Counsel also pointed out that Ms Shaw agreed to accept a job in Chatham in January or February 1994 No one forced her to accept this job; she could - ,have waited 'for another job offer It was her decision to accept the - position, and counsel argued that this decision, and the impacts of it, could hardly'be subsumed in a grievance filed many mcinthsbefore In the employer's view, the Shaw grievance should be dismissed , Turning to the other grievances before the Board, counsellargued that there was absolutely no evidence that any of thegrievors suffered damages as a } result .of having been denied the extra notice provided for in Article '26 There was just as much likelihood, in the employer's view, that the damages, such as they were, would have been the same had the extra nOJice " ( been given, or they might even have been much Worse Counsel noted that 1 the surplusing schemes under Articles 24 and 26 set out various rights that, as an employee moVes from one. stage to the next, become increasingly specific ending ultil')1ately with a right, to bump There was no way of knowing, even assuming for the sake of argument that the grievors had received the notice required by Article 26, whef,l they would have exercised their Article 24 rights. Moreover, it could very well have worked out that the grievors would been offered no jobs, leaving them only with the alternative of attempting to bump - It was also noteworthy, in managemerit',s view, that in the instant case, 1 1 '" " given the notice requirements of Article 26, the grievors would not have been able to a<;:cept the job offers that they did as those jobs would not have been offered when they were, and no one could tell if they would have been available when the initial notice period expired Indeed, it was conceivable, depending on how things had worked out province-wide, that there would have been no jobs available, or that the ones that were left would have been even less attractive than the ones that were accepted had the grievors received the extended notice provided for in Article 26 ,,) Simply put" there were too many intangibles in the process. Given that fact, no one could fairly claim the kind of damages being sought in this case as there was no way of knowing what jobs would be available in the weeks and months to corne as all sorts of other employees w~re, at the same time, or likely soon would be, exercising their surplus rights. Th~re was, simply put, no way of knowing what would have happened had the grievors received a longer notice period , Referring to Whiteside/Stewart et al 330/92 (Kaplan), counsel argued that there was 'both flexibility and uncertainty in the surplusing system The Board noted in that case , We are in agreement with other panels of this BC';lard that there is a necessary element of chance in the surplus procedure Senior employees are surplused first, and the provision operates to provide them, in recognition of their seniority, with first crack at available jobs The operation of this procedure may, although this is , ~ somewhat unlikely, occasionally result in junior employees obtaining "better" or "n:lore preferable" jobs than senior employees where, for example" the senior employees are reassigned and a junior employee moves to the head of a seniority list and a new and "better" vacancy arises (at 30) , 12 Uncertainty was, counsel argued, a fact of life in larg~ bargaining units like , this one where hundreds and p6ssibly thousands of employees received , surplus notices at around the same time Counsel suggested that a wide variety of factors will come into play in determining what available jobs are given to surplused employees. Some employees will take time to consider job offers, and when they do so, those jc>'bs will j not be available to be offered to other employees. The decisions of individual employees, in this and other ways, affects the number and types of positions available in the job pool the point in all of this, in the employer's submiission, was that the system was not a mechanical one, but a human one and there was no way of predicting what jobs would ever be offered, and when, because .individual choices taking place over a period of weeks and months were constantly affecting the overa'II, mix In all of these circumstances, it was the employer's subr)iission that no one could reasonably say that had they been given more time on the surplus list that they would have ended up in a better position. However, even assuming that such a claim was made, it was counsel's view that the only appropriate remedy would be to put .the person back on the list for the period of time which they had been deprived This was not, counsel rioted, the remedy being sought in the instant case The grievors in this case got jobs, but they did not have to accept the job pffers that were given to them. That was their decision and they were fortunate, in management's view, to have been given job offers early on in the process While moving was unpleasant and stressful, equally unpleasant and stressful, perhaps even more so, was the range of possible' alternatives / 13 Counsel also noted that the grievors got their moving and other expenses reimbursed as provided for in Management Board policy Yet, in these i . proceedings, they were seeking additional funds and the point was made that that remedy did not naturally flow from a failure of the employer to give them more time on the surplus list. In management's view, the specific claims that were being made had nothing to do with that failure Certainly, they could never have been anticipated by the employer Referring to the various impact statements, counsel argued that some of the damages being claimed were not damages, and were c,ertainly not damages attributable to, or foreseeable from, any employer breach Counsel asked that these grievances be dismissed. Union Reply A number of points were made in reply the most important of which is that if the employer had not contravened Article 26, there was more likelihood then not, even conceding that the surp1usln9 system was large and Imperfect, that the grievors would have ended up with jobs closer to home. In the result, they would not have, incurred the additional costs and losses, In these circumstances, the union argued, it was well within the Board's jurisdiction to make the grievors whole, and that did not, in this case, involve more time on the surplus list. What the remedy properly involved was compensation, and that meant going beyond the Management Board Directives and Guidelines and directing that the grievors receive - compensation At the very least, in the union's view, the grievors should receive any additional discretionary amounts that are available under Management Board's Directives and Guidelines along with those they already received by right. Mr Walker again asked that I find for the grievors and issue an appropriate award to that effect. ~ '" .,. 14 Decision '..... ~ Having carefully considered the evidence and arguments of the parties, I have come to the conclusion that these grievances must be dismissed Turning first to the grievance of Ms Shaw, the evidence clearly demonstrates that the matter she grieved, and the concerns she placed before the Board, are not the same Any grievance she had with the Ministry quickly became moot as she testified that 'after receiving her surplus notice, and filing her grievance, she was quite satisfied with the manner in / which the employer went about finding her a new job It should be noted - , with respect to Ms Shaw, that she went on the corporate surplus list in .. September 1993 As there were a number of jobs close to Port Hope that she could have filled, the conclusion is inescapable that she did not fill them because managment was acting on her stated wish to join her 'husband in Chatham. At some point, she decided otherwise, but the Board has no jurisdiction to hear her grievance, filed in the summer of 1993 many months prior to her dispute or difference with her employer Her grievance is inarbitrable and must be dismissed as such With respect to tbe other grievor$, one can only sympathize with them and the obvious strains they have incurred resulting from the loss of their jobs in Port Hope and~ their transfer to new positions in other communities. However, the fact of the matter is that each of these grievors voluntarily accepted the jobs that were offered to them There was nothing compelling them to accept the first jobs that came along as all of these grievors had a number of rights under the collective agreement. The evidence establishes that these grievors were encouraged by union officers, and others, to accept the job offers. bne can readily understand the uncertainty that would 15 'i) "- accompany the receipt of surplus notices by a group of employees, particularly when it was generally known that such notices were being received by other employees elsewhere These other employees would be competing for some of the same jobs sought by, and offered to, the grievors In these circumstances, as Mr Blakely testified, a bird in the hand was much better than two in the bush As the Board noted in Whites-ide/Stewart, supra, a great deal of chance and - uncertainty accompanies the surplusing procedure The decision of one employee in one locality can dramatically affect the rights and opportunities of many other employees. The fact of the matter is that the procedure followed in this case, albeit imperfect and ripe for substantial improvement particularly insofar as the distribution of information is concerned, was not only conducted, as the union conceded on several o~casibns, in good faith and With ~ood will, but also, quite extraordinarily, was successful in finding jobs for all of the surplused employees. The grievors in this case accepted the jobs that were offered to them rather than take their chances that something better might come along, and they were then' fully comp~nsated in accordance with the relevant Directives and Guidelines They could have chosen to await different job offers, but they did not. Moreover, while the costs -incurredl and losses suffered are obviously real, they are not, on the facts before me, damages arising from '- the breach They are far too remote for that. There is no way that they could have ever been reasonably foreseen by the employer, or anyone else for that matt~r The fact that one grievor paid too much for a house in the , new locality, to give one example, is not a damage that arose from the breach In another example, the fact that a spouse lost a job is equally uncompensable That spouse might have lost a job no matter how long the I, ( \ , .. ) 16 employee concerned remained on the surplus list, or when, he or she accepted a job offer It is simply impossibl'e to tell what would have occu(red had the grievors been given more time on the list, and there is no reason to believe t~at a longer period on the list would have resulted in the grievor's being offered jobs any closer to home The fact that the grievors took the first jobs that were offered to them is noteworthy -and is reflective of the pervailing uncertainty that understandbly influenced their decision and the views of management and union representatives alike A few final observations are in order Employer counsel argued that the only possible remedy for an Article 26 breach would be to give the individual concerned more time on the surplus list. This is obviously one remedy for such a breach, but there may be, others, and the determination of the appropriate remedy will have to be made in each case This case is important for another reason as well It demonstrates the necessity of the parties, when faced with circumstances of this kind, to schedule the grievance for a hearing before it would require, if successful, by the passage of time, and the exercise of countless contingent decisions, the " unraveling of what has already been done This Board has in the past, and will continue in the future, to appropriately respond to requests for ) expeditious hearings when asked by the parties. What difference that might have made ih this case, if any, is impossible to say for, as already noted, there is every likelihood that tne grievors would have taken the jobs that were offered to them when they were offered to .them rather than face an \ uncertain future ') 17 ~. r .:.. Accordingly, and for the foregoing reasons, the grievances are dismissed , DATED ~oronto- this 8th day of March 1996 L(} - - ~--------~----- William Kaplan Vice-Chairperson r" \ p - , I ~ j \ r- , '1 \ J