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HomeMy WebLinkAbout1996-0318UNION96_06_17 ONTARIO EMPLO rES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TElEPHONE/TELEPHONE (416) 326-138< 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1391 GSB # 318/96 OPSEU # 96U051 IN THE MATTER OF AN ARBITRATION Under 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 Natural Resources & Management Board Secretariat) Employer BEFORE: F. Briggs Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE P Toop EMPLOYER Policy Advisor Employee Relations Board Management Board Secretariat HEARING June 3, 1996 The partIes agreed that I have the JUflsdIctlOn to hear and detenmne two pohcy gnevances WhICh are vutually Identlcal. One gnevance mvolves the Mlrusny of Natural Resources and the one Management Board SecretarIat. The Uruon alleges that the M1ll1stry has effected lay-offs contrary to ArtIcle 24 and any other relevant artIcles of the CollectIve Agreement and asks for an order settIng out the appropnate procedure The partles agreed to proceed by way ofpresentmg a fact sltuatlon to the Board. The Druon asserted that the facts are an accurate reflectlon of a partlcular workplace and, wInle the Employer was not prepared to concede the accuracy of the facts, It was content for me to consider the facts as a hypothetlcal sltuatlon for illustrative purposes There was also agreement that tIns deCISion shall be apphed across the public servIce. The partles reached a Memorandum of Settlement on March 29, 1996, whIch concluded the flISt pubhc sector strike in the provmce of Ontano One of the Issues whIch separated the partles was lay-off and bumpmg rights. A number of collectlve agreement provisions were amended and tIns IS the fIrst deCISIOn dealmg With the matter of bumpmg nghts. The fact Sltuatlon before me was as follows 1 John van Geene's (the gnevor) Continuous Semonty Date IS October 4, 1985 2. The grievor's pOSItIon IS an Area TechnicIan classIfied as RT3 m the Bracebridge MNR office. 3 On May 16, 1996, the gnevor was adVIsed lus pOSItIon was declared surplus. 4 On May 16, 1996, Mr Howard Mills was declared surplus. Mr Mills' Contmuous Service Date is April 23, 1985 Mr MIlls' pOSItIon IS an Area Techruclan classIfied as an RT3 5 M Mills was advised he could rnsplace a Mr Stephen Tavlor (CSD February 17, 1986), RT3 m the Bracebndge MNR office. 6 On May 22, 1996, the gnevor was adVIsed he could displace into an RT3 posItion in Kenora, OntarIO 1 2 7 On May 22, 1996, Mr Mills advIsed the Ministry that he did not wish to displace Mr Taylor 8 For the purposes of deciding thIS case It IS to be presumed that the f,'T1evor IS quahfied to perfonn the position held by Mr Taylor The Memorandum of Settlement sets out the new terms and proVIsiOns governmg lay-offs and bumpmg nghts The relevant sectlons of that agreement state 241 Where a lay-off may occur for any reason, the Identification of a surplus employee in an admimstratIve district or urut, insbtubon or other such work area and the subsequent displacement, redeployment, lay-off or recall shall be 10 accordance With sernonty subject to the conditions set out in thIs Article. 244 DISPLACEMENT 2441 An employee who has completed hislher probationary penod, who has received notice oflay-offpursuant to Sub-section 24.2, and who has not been aSSigned in accordance with the cntena of 24.5 to another poslbon shall have the right to cbsplace an employee who shall be identified by the Employer in the followmg manner. (a) The Employer will Identify the employee with the least senionty 10 the same classification and the same ministry as the employee's surplus pOSition. If such employee has less sernority than the surplus employee, sthe shall be cbsplaced by the surplus employee provided that: (I) such employee's headquarters is located WIlhm a forty (40) kilometre radIus of the headquarters of the surplus employee; and (ii) the surplus employee IS quahfied to perfonn the work of the identified employee. (b) If the surplus employee IS not qualified to perfonn the work of the least semor employee IdentIfied tmder paragraph (a) above, the Employer will cont1Oue to Identt1Y, ill reverse order of seruonty, employees 10 the same claSSification and 10 the same nurustry tmtil a less semor employee IS found WIthm forty (40) kilometres of the surplus employee's headquarters whose work the surplus employee IS quahfied to perfonn. (c) Fallmg displacement tmder paragraphs (a) or (b) above, the Employer Will Identify, 10 reverse order of semonty, employees m the same classes m the same class senes 10 descend10g order untIl an cmployee with less seruonty IS found In the same minIstry wlthm forty (40) kllmctres of the surplus employee s headquarters The Identified employee shall be displace by the surplus employee prOVided he/she IS quahfied to perfonn the work. 3 (d) Failmg dIsplacemcnt under paragraphs (a), (b) or (c) above, the Employcr wIll revIew other classes whIch the employee held eIther on a full-tIme basis, or who performed the full range of Job duties on a temporary basis for at least twelve (12) months m the same mImstry Wlthm forty (40) kilometres of the surplus employee's headquarters. The Employer wIll identify, in reverse order of semonty, a less senior employee in the class WIth the maxunum salary closest to but not greater than the maximum salary of the surplus employee's current classification. The identified employee shall be displaced by the surplus employee provided he/she is qualIfied to perform the work. (e) Falling chsplacement under paragraphs (a), (b), (c), (d) or (e) above, If the employee requests, the Employer will repeat the steps specified in paragraphs (a), (b), (c ) and (d) with respect to POSItiOns beyond a forty (40) kilometre radius ofhIslher headquarters. No relocation expenses will be paid. (f) Faihng chsplacement under paragraphs (a), (b), (c ), (d) or (e) above, the Employer will identify, in reverse order of seniority, a less senior employee who is: (I) m another ministry; and (ii) whose headquarters is withIn a forty (40) kilometre radius of the displacing employee's headquarters; and (iii) whose posItion the displacing employee prevIously held either on a full-time basis, or who performed the full range of job dutles on a temporary basIS for at least twelve (12) months in that ministry; and (iv) if the employee previously held more than one position in that minIstry, the posItion with a maxunum salary closest to but not greater than the maximum salary of the displacmg employee's current classification. (g) No later than one (1) week following conunencement of the notIce period, the Employer will advise the surplus employee of the posItIon mto whIch he/she is eligible to displace. (h) The surplus employee must mdicate in \\TIting to the MlDlstry/Agency Drrector of Human Resources hislher mtention to chsplace the employee IdentIfied pursuant to paragraph (a), (b), (c), (d), (e) or (f) above, as applicable. Wntten mtentlOn to dIsplace must be receIved by the Mimstry/ Agency Drrector of Human Resources no later than one (I) week follOWIng the date the surplus employee receIved adVIce that he/she was elIgible to dIsplace an employee pursuant to Sub-sectIon 24 leg) above. (1) An employee who docs not mdicate m \'ffitmg to the MlillStryl Agency Drrector of Human Resources hlslher mtentlon to dIsplace Wlthm the tIme penod 4 stIpulated by Sub-sectIOn 24 l(h) above shall be deemed to have given up hls/her nght to displace and opted for redeployment under SectIOn 24.5 24 4 2 The fIrSt employee who is displaced by an employee exerclsmg hls/her right to displace under Sub-section 24 4 I will have displacement nghts The employee displaced by the first displaced employee will also have displacement rights but the employee he/she subsequently dtsplaces will not have any such right. 24 4.3 An employee who IS displaced by an employee who exerCIse his/her displacement right under tlus Section shall receive notice of lay-off or salary contmuance, at the Employer's discretion. The displaced employee's notice penod or salary contmuance shall be for a six (6) month period. 24 4 4 SectIOn 5 4 of Article 5 (Pay Administration) shall not apply where an employee displaces a less SenIor employee pursuant to Sub-seeton 24 4 1 (c), (d), (e) or (f) above, save and except that SectIon 5 4 of Article 5 shall apply for the balance of the employee's notIce period only 24 4.5 Except as provided in this Section, employees who are displaced will have full access to the provisions of this Article 24 The Employer gave the Board a copy of Its polley regardmg the bwnpmg procedure. The Umon agreed to allow It to become an exhibIt WIth the proVlSO that the Union ffid not agree Wlth Its contents. The document, dated May 14, 1996, IS an eleven page comprehensIve gwde to the vanous lll1Il1stnes as to how the process of bwnpmg IS to be handled. The Umon attempted to subllllt an earlIer memorandum issued by the Human Resources Branch wluch outlmes a ffifferent process regardmg employee bwnpmg nghts I understand that tlus memorandum was rescmded Wlthm days of Issuance. Mr Toop, for the Employer, objected to the adnussIOn of the document. I reserved on the Issue of the adnussiblhty of the document and asked to partIes to make SubllllssIOns about It m the event that I found It adnusslble The Umon takes the pOSItIOn that ArtIcle 24 of the new collectIve agreement has been VIOlated. There was no suggestIOn by eIther the Employer or the Uillon that ArtIcle 24 IS ambIguous and unclear Indeed, It was the Employer's posloon that the language was partIculanzed to the extent that no doubt could be left as to Its meanmg. The document at 5 Issue IS extnnslc eVIdence and would only be rehed upon In the event that the language was found to be latently or patently ambIguous. In the absence of any suggestIOn that the new proVISIons regardmg lay-offs and bumpmg nghts IS ambiguous, I did not accept the document mto eVIdence. UNION SUBMISSIONS Mr Leeb, for the Umon, began by asserting that the Umon dtd not take issue With the Employer's need to downSize. Further, It does not challenge the sIgmficant number of lay- off notices that have been Issued m five mmistnes to date. The narrow matter before tlus Board IS the Issue of displacement or bumpmg nghts. In the above fact SItuatlOn, Mr Mills has the most semority He was offered the opportunIty to bump Mr Taylor m the MNR office in Bracebndge. There was no other opportunIty Wlthm forty (40) kilometres to offer the gnevor and, accordmgly, he asked the Employer to look outSIde the forty kilometre area. The Employer comphed and, m accordance With the agreement, the gnevor was offered a positIon outside the forty kilometre area, speCifically m Kenora. However, because Mr Mills elected to not bump Mr Taylor, the situatIon IS that the least semor RT3 IS remammg m the Bracebndge office while the more semor gnevor IS obhged to move to Kenora and IS without bumpmg nghts Semonty IS probably the most fundamental and lffiportant nght m collecnve bargammg, the Umon contended. Thts pnnclple was set out m Re United Electrical Workers, Local 512, and Tung-Sol of Canada Ltd. (1964), 15 L.A.C 161 (Reville) wherem It was stated at page 162 Senionty IS one of the most Important and far-reachmg benefits which the trade uruon movement has been able to secure for Its members bv virtue of the collCCtlve bargammg process. An employee's semonty under the terms of a collective agreement gives nse to such unportant nghts as rehef from lay-off, nght to recall to employment, vacatIOns and vacatIOn pay, and 6 pensIOn nghts, to name only a few It follows, therefore, that an employee's selUonty should only be affectcd by vcI)' c1car language In the collective af,'fcement concerned and that arbitrators should construe the collective agreement With the utmost stnetness wherever It IS contended that an employee's semonty has been forfeited, truncated or abndged under the relevant sectIOns of the collective agreement. The Drnon asserted that the fact that a JunIor employee can remam m lus or her pOSitIOn m these crrcmnstances IS contnuy to ArtIcle 24 4 1(1). It IS clearly unfarr that a sernor employee IS bemg asked to relocate hWldred of miles wlule an employee With less semonty can remam m the Bracebndge office In order for sernonty to have any affect, It must mean that the most semor employee get the first opportwuty to the remammg job In the fact SituatIon before tlus Board, Mr Taylor should be the employee offered the posloon m the Kenora office. In these crrcumstances, senionty must prOVIde the best opportumty, the Dmon urged. The gnevor was given the Kenora office assignment even before the Employer knew what Mr Mills' decIsion would be regardmg Mr Taylor'sJob The process IS set out m artlcle 24 4 in some detail. The Employer IS oblIged to offer a bmnpmg oppOrtunIty for a posloon held by a less sernor employee Wlthm forty lalometres. If that is not possible, the employee IS to be told and gIVen an opportunIty to deCide If they want another offer outSide of forty lalometres It was the Dmon' s argument that after thiS "first cut", the employer has further obhgaoons. The process IS not over The Umon put fOlWard three proposIoons for the Board to conSIder and put each m the context of the fact SItuatIOn set out above Mr Leeb suggested that the Board order a procedure whIch, at the pomt where Mr Mills refused the opportumty of bumpmg Mr Taylor, the Employer would be dIrected to offer the posItIOn to the gnevor It JS clear from the memorandum of settlement that the person who follows the gnevor has no nghts to bump 7 whIch remforces the Umon's argument that the gnevor should be offered Mr Taylor's posltlOn. In that sltuatlOn, the person after the gnevor would have the opportumty of the Kenora office posltlOn. The Umon recogmzed that the Employer would argue that such a procedure would create an adrrumstratIve mghtmare However, Mr Leeb asserted that thts procedure would not be as dIfficult as it rrught appear on first blush. It would requrre the Employer to re-offer the pOSItIon each tune an employee opted out of bumpmg mto a posItion that is offered. In the alternatIve, the Umon suggested that It IS possible to have a "make-up round" subsequent to the frrst round. Tlus alternatIve would be less desirable. The make-up round would reqwre the Employer to take all of the vacancIes wluch remamed unfilled as the result of people electmg to resIgn or otherwIse leave in response to therr frrst round surplus notice. A "new pot" would be created and members of the bargammg urnt will be offered posItIons m that pot m accordance With seniority Tlus would alleVIate the unfarrness of the very fact SItuatIon before tlus Board. That IS to say that m such a scenano, the gnevor would be offered Mr Taylor's pOSItIon and would not be obhged to take the pOSItIon m Kenora. The Umon's fmal alternatlve process is that followmg the week m wluch employees are requrred to respond to therr surplus notlce, that IS, on the eighth day, the Employer would approach employees on the baSIS of semonty The most semor employees would get the first offer of any poslt:1ons wluch remamed because of others optIng out. The Umon suggested that the Employer would have to approach employees mdlVIdually and they would have to make an unmed1ate deCISIon. The mam dIfference between thiS alternative and the UnIon's first suggestlOn IS the amount of tIme that members of the bargammg UnIt would have to respond to a subsequent Job offer 8 WhIle the Umon conceded that Its suggested alternatives would take more work and time, It subrmtted that more work was JustIfied m the crrcwnstances because employees are bemg laid off m large numbers and are facmg unemployment. In accordance with the pnnclples set out m Tung-Sol (supra), specIfic language IS requrred to abndge semonty nghts and the Employer's explanatIon that It IS aIlXlOUS to complete the process IS not sufficient to reduce the semonty nghts of employees, some of whom have considerable semonty To accept the Employer's posItion IS to Ignore the fundamental pnnclple of semonty, Mr Leeb argued. The bumpmg nghts of employees should have no element of random luck. The affect of the Employer's Vlew of this matter IS that semority IS paramount only for a fleetIng moment m tune TIns can not be what the parnes mtended m ArtIcle 24 The Umon relted upon Re The Crown in Right of Ontario and OPSEU (Whiteside/Stewart) (June 1, 1991), unreported (Kaplan), Re City of Edmonton and Canadian Union of Public Employees, Local 52 (1972),1 L.A.C. (2d) 369 (Lefsrud), Re Board of School Trustees of School District No. 39 (Vancouver) and International Union of Operating Engineers, Loea1963 (1995), 47 L.A.C (4th) 248 (Hlcklmg) The Umon stated that a "make-up round" would only be tnggered If someone refused an opportumty to bump The Employer wIll only be oblIged to go further down the semonty hst by a number equal to the number of people who refused offered posItIons Surely that exercise cannot create adrmmstrattve chaos. The entlre exercIse would not be reqUITed where Jobs are lughly specIahzed and therefore have few who are quahfied to perform the work, smgle 111cumbent posItIons or m SItuatIOns where there are a small number of people 111 a classIficatIOn senes The Umon asked the Board to balance the mterests of the partIes 111 thIS matter ConsIder 9 the addItIOnal work that mIght be reqUIred versus the semonty nghts of the thousands of employees who wIll be or have been declared surplus. WhIle It IS true that the Employer receIved gams ill the newly negotiated collective agreement, It dId not obtam the nght to Ignore semonty The exprred collecnve agreement had a job offer guarantee m ArtIcle 24 and It IS correct that such a proViSion no longer eXIsts. Displacement used to be the end result of the process and now It IS the begmmng. Whtle the Umon agreed to speed up the process, It dId not agree that It would be over m two weeks In the fact situatIon before dus Board, the Employer will argue that under ArtIcle 24 4 1, the gnevor went through the process to 24 4 led) However, the Umon asserts that the gnevor IS not precluded from exerclsmg lus nghts under 24 4 lea) or (b) The process IS sequentIal and, accordIngly, the opportmutles become increasmgly less desirable For tlus reason more desrrable pOSItIons wluch may arIse ought not to be precluded. Mr Leeb subIll1tted that the Employer IS obhged to act reasonably m the admtmstratIon of the lay-off and bumping prOVisions set out in the collectIve agreement. In order to aclueve reasonableness m tlus mstance, the make-up round IS requrred. If the Employer takes a "snap shot" approach to the apphcatIon of semonty and employees elect to resign rather than opt for the Job offered to them, the affect to those remammg IS that therr semonty becomes mearungless and that IS an unreasonable result. The Employer has called theIr pOSItIon as the "best bump of the day" The Umon strongly dIsagreed With tlus concept and suggested that semonty entItles employees to the best bump at the end of the day Indeed, but for the element oftllmng In one calendar day, the gnevor would be staymg ill the Bracebndge office and the less seruor employee would have been offered the pOSItIon m Kenora. Semonty should prevaIl for the entrre process, not Just for a fleetmg moment m tune 10 The Uruon asked the Board to apply rules of InterpretatIOn and read the collectIve agreement as a whole, gIVe the words theIr plam meanmg and not anlve at an mterpretatIOn wluch would lead to an absmdIty EMPLOYER SUBMISSIONS Mr Toop began by askmg the Board to remember the labour relatIOns context ill wluch the new collectIVe agreement prOVIsIons were negotIated. Both partIes were aware that sIgmficant lay-offs were meVltable 'flus Board must gIve effect to the clear deal that was amved at by the parnes. There IS no junsdlcoon to substitute another process even m the event that the Board nnght be of the View that a better deal was or IS possible. The language IS clear and unambIguous. The Employer IS obhged to Identrfy an employment opportunIty and to fulfil that duty WIthm the wordmg of Arttcle 24 1 It is very sIgmficant that all of ArtIcle 24 IS wntten m the smgular and not the pIma!. The reason for tlns is because when the partIes agreed to the deal they mtended every employee to get one opportunIty to dIsplace. The sub-secoons wluch make up the remamder of ArtIcle 24 4 1 merely IdentIfy the process Mr Toop asserted that Art1cle 24 makes It clear that an employee gets one chance to bump and the employee does not get the nght to pIck one Job from a basket of Jobs The Employer IS to IdentIfy the Job and the employee must make an electIons Each employee gets a smgular opportunIty in a sequenoal order If an alleged unfauness such as m the fact SItuatIOn before thIS Board occurs, that IS unfortunate but It IS the result of the sequentIal nature of the process and the partIes have to lIve WIth all of the consequences of then deal 11 The Employer suggested that a close analysts of the process m ArtIcle 24 reveals that the tIme frames are very tIght, that IS, one week for the Employer to IdentIfy the deal and one week for the employee to respond. These tune frames are maxunums Indeed, there are no mnumwn tunes proVIded. The Employer must act WIth dIspatch and the employee then does the same. If the employee makes lus or her deCision m a moment, so be It. They each have a week. It should be apparent, Mr Toop said, that ArtIcle 24 4 1 has a nng of fmal1ty The tIme frame IS so mtegral to the process that the partIes agreed m Arttcle 244 1(1) that If an employee had not made theIr elecnon m wntmg Wlthm the set out tune frame, s/he IS deemed to have rejected the offer of therr abihty to bump mto another poslnon. The Employer's obhgaoons are clear, ill Mr Toop's SUbmISSIOn. The Employer must proVIde a nght to an employee to bump mto a posloon m accordance WIth the proVISions set out. The Employer must Idenufy that posIoon and offer the posluon to the employee. However, once that offer IS made, it IS only a matter of WaItIng for a response from the employee. The collecnve agreement does not, as suggested by the Umon, proVIde a nght to displace anyone. It proVIdes the nght to dIsplace another employee ill an Idennfied posIoon. It flows from this that an employee who IS Identlfied as a "bumpee" cannot be anythmg other than the "fITst avaIlable bumpee" Tills IS obVIOUS from the language agreed upon by the partles. The Employer can not offer more than one displacement opportunIty to one person at one tIme The Employer Idennfied the first Job WItlun the nalTOW lumts set out ill the collecnve agreement and It must be a posloon that has not been offered to another employee at the same tune for all of the obVIOUS reasons Mr Toop conceded that there IS a "make-up round" of a sort set out m the Employer's mterpretanve bulletm. However, lookmg at the fact sltuanon before the Board, tt occurs as 12 the result of Mr MIlls refusmg the opportumty to bump mto Mr Taylors' posItlOn. There have only been two people mvolved m the bumpmg and the collectIve agreement allows for three. To be clear, the only people who WIll be offered a posItion m the make up round, as considered m the Employer's bulletin, IS an employee who did not receIve an offer preVIously Each employee IS only glVen the nght to dIsplace mto another pOSition once That was the agreement of the partIes and the board must .dlsmlss the gnevances. The Employer relted upon Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (Palangio) (March 7, 1984), unreported (Venty), Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Lobraico) (October 7, 1993), unreported (Gorsky); Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Read et al) (December 19, 1990), unreported (Gorsky), Re The Crown in Right of Ontario (Ministry of Transportation and Communications) and OPSEU (Becker) (May 16, 1993), unreported (Samuels). The Employer asserted that the Gnevance Settlement Board Junsprudence has contemplated the Issue of the random luck m thts process. In Re Polangio (supra), specIfic reference IS made to luck and It IS made clear that the nght IS to a process, not to a partIcular posItlOn. So It IS m the mstant matter Mr Toop argued that the Dillon's suggested alternatIves were flawed for varIOUS reasons. Each would create a level of admmlstratlve chaos when undergomg a lay-off of these proportlOns The tlurd optlOn put forward by the Dmon flIes ill the face of the wordmg of the collectIVe agreement by the suggestIOn that the employee would have to make theIr electlOn unmedlately upon bemg gIVen a opportmuty ill the make-up round. The Dmon IS suggestmg an mfimte regreSSIOn senes process The partIes could not have meant for that to happen gIven the tIght tIme frames set out III the collectIVe agreement. 13 The Employer does not dIspute the Importance of semonty and the pnncIples set out In the Tung-Sol (supra) decIsIOn. However, general pnncIples cannot ovemde clear proVIsIOns m a collectIve agreement and m the mstant case, the partIes agreed to a process The Employer has complIed. Employees are not glVen a chOIce or an opportunIty to elect one of multiple Job offers. The Employer must make the offer Unfortunately, as m the fact situatIOn before tlus Board, the fIrst will not always be the best. To do so, gIven the language of the collectIve agreement, IS not unreasonable Thts IS partlcularly true when the magmtude of the lay-offs IS kept In mmd. In reply, Mr Leeb refuted the concept 9f admimstrative chaos. He suggested that there were suffiCIent lmntatIons set out In the collective agreement to protect the process. The Umon's mterpretatIon would only be slightly more comple~ not overwhelming. DECISION It IS often saId m the Junsprudence of the Gnevance Settlement Board regardmg matters touchIng upon lay-offs, surplus and deployment Issues, that the Board IS not charged WIth creating nghts and oblIgatIon, nor are they to amve at a process whteh IS the most desrrable or reasonable m therr View It seems to me that thIs IS precisely what the Union IS askIng of me In the mstant matter Indeed, the Umon's suggested altemanves to the Employer's present procedure appeared more conSIstent WIth pOSItIOns that would be offered to an rnterest Board of ArbItratIOn and not a Board charged WIth mterpretIng an already eXlstmg collectIve agreement. The Uillon argued that tlus Board need only look to the decIsIOn ill Whiteside/Stewart for the gUIdance reqUIred In my detemunatlon. WIth respect, I disagree The collectIve Agreement which was most recently entered mto by the partIes and concluded the five and 14 one half week strike m the publIc sector dIffers sIgmficantly and substantIvely regardmg the matters of lay-off Arguably, m and of Itself, the change ill title of Article 24 IS tellmg. It was ArtIcle 24 - Job Security The present IS Article 24 - Employment StabIlIty Further, there IS a preamble m the present agreement wluch states The amended prOVISIOns of ArtIcle 24 apply to any employee who receives notIce of lay-off on or after the date of ratification by the parties. An employee who has received notIce of lay-off pnor to the date of ratrlicatlon by the parties shall be entitled to the former prOVISIons of ArtIcle 24 With respect to employees to whom the former prOVISIOns of ArtIcle 24 17 (Job Offer Guarantee) have been applIed up to and mcludmg the date of ratificatIOn by the parties, these prOVISIOns shall contInue to apply untIl December 31, 1996 and, With respect to any employees to whom such proViSions contmue to apply as of that date, the following new proviSIons apply effectIve January 1, 1997 The Whiteside/Stewart deCISIon regarded employees placed on the surplus lIst. In Its deCISIOn the Board stated at page 32. ObVIously management has Its own legItimate interests, mcluding the mterest of the orderly planning of surplus asSIgnments. As was noted in Read et aI, "Not only employees have a genuine concern over the subject of job secunty when there is a material change in organIzation or the abolitIon of a position. The Employer IS concerned with carrymg out a reorgaruzatIOn in an orderly fashion" (at 20). We fmd, however that in balancing employee and employer interests it would not Ill1pose a significant burden on management to reqwre it to give effect to an employee's semonty interests in his or her pOSItIon up to the point that a surplus aSSIgnment actually takes effect. As already noted, once that assignment takes effect, the employees lose whatever senionty mterests they may have had m their previous positIOn. Accordingly, m tlus case, we fmd that the employer breached Article 24 of the CollectIVe Agreement when It proceeded WIth Ms. Bascom's reasSIgnment notwlthstandmg the facts that there was a customer ServIce clerk vacancy ill the tIme penod lll1111edIately precedIng that reassignment takIng effect. That Board was dealmg WIth aSSIgnments made Wlder the surplus prOVISIons Employees had an mdefimte tlffie to respond to the aSSIgnment oppOrtunIty so long as It was not later than two weeks pnor to the date of lay-off The mstant matter IS a different case entrrely The parties put theIr mmds to a process which would dIctate the laymg-off of maSSIve numbers of employees and their nghts to bump mto other pOSitIOns Under the expIred collective agreement wluch guided the Board m Whiteside, the employee dId not have to declare therr mtentIon to take an offered pOSItIon untIl up to two weeks pnor to therr lay-off Presently, the parties are, by agreement, workmg wlthm tight tIme frames Those tIme frames might, as m the mstant fact SItuatIOn, work contraI)' to an mdlVldual employees' 15 circumstance WhIle It IS true that much of ArtIcle 24 IS new, the Board's JUrIsprudence IS of some assistance and generally supports the Employers VIew that an element of luck IS present m the process. In Polangio, the Board was consldenng a gnevance allegmg that the gnevor was unproperly dealt WIth m a sItuatIOn ansmg from the relocatIOn of certam MlillStry posIhons. In the events that followed the gnevor was placed m a lower classIficatIon wluch took place fourteen months pnor to the lay-off. The Board stated, begmnmg at page 8 It would appear that ArtIcle 24 provides a certain measure of job protectlOn m the sense of guaranteemg a job and the aVOIdance of a sudden lay-off, but does not provide classIfication protection. The purpose of the Article generally is to provIde employment stability and salary stability on the basis of seniority Assignment of employees on a senionty basis means that the more semor the employee, the earlier the assignment. There is an aspect of the "luck of the draw" as is patently evident on the facts of the instant Grievance. Here, we find three other employees who had Identical Jobs to the Gnevor and worked in the same office as the Gnevor did obtam better jobs than the Grievor However, that SItuation cannot be aVOIded under the present working of ArtIcle 24 The wording of that ArtIcle does not pernut an employee to shop around for asSIgnments. Simply stated, if an assIgnment IS offered and refused, the employee is then subject to lay-off. The only choice gIven to a surplus employee under Article 24 is to accept an assignment or to face lay-off The assignment provisions of surplus employees under that Article IS not designed to provIde an employee with a preferred job, or a chOIce among Jobs, or even the same job. It IS deSIgned however, to provIde a Job with an element of salary protection through the device of the asSIgnment and the red crrclmg provislOns. In Lobraico, the Board was asked to determme If the collectIve agreement was VIolated when the Mnustry appomted the gnevor to a pOSItIon that dId not have secure fundmg after he was declared surplus In amvmg at Its deCISIOn, the Board stated at page 39 .In the case before us, success for the Gnevor would not require the Employer to appomt lum to any partIcular Job The Gnevor would only be able to claL"n the nght to be appomted to some available Job WIthm the contemplatIon of art. 24.2.1, and as the Employer has done so, he IS not entItled to any other form of relief. From the perspective of art. 24.2.1, the Employer does not have to conSider the preference of the Gnevor, who cannot mSlst on bemg appomted to a particular vacant position because he regards It as bemg more secure. In the Becker deCISIOn, the gnevor was told that her pOSItIOn would be movmg to another 16 City, and as she was not relocatmg, she was subject to the surplus process. She was accordmgly assIgned to another pOSluon wluch had a lesser salary The gnevor clauned that there were other posluons Wltlun her MinIstry to wluch she could have and should have been assIgned that would not have resulted m a lesser posltJ.on. It was stated, begmmng at page 14 Therefore, it is possible to be assIgned to a pOSition carrymg a reduced salary m one's own mmIstry, though there are vacanCIes elsewhere at the same level as the employee's current classIficatIon, available at the same tune. It would also appear that, when consideratIon IS being glVen under ArtIcle 24.2.1, the employee must be asSIgned to the best pOSition available WIthIn his or her own mirustry, depending upon qualtficatIon to perfonn the work and seniority The article lists the vacancies to be considered ill descending order, from those in the same class or pOSItion as the employee's current class or position, down to any other vacancy withIn the salary parameters established... In Read et ai, the Board was dealmg with a gnevance wherem the gnevors' were "requestIng a form of pre-dtsplacement", effectively bypassmg the asSIgnment process wIDch was set out m the exprred collectIve agreement. The Board found that dIsplacement nghts only arose after the assIgnment process was unsuccessful. In conSIderatIon of the matter, the Board Cited another deCISIon at stated at page 20 As Mr Venty noted, although restncting his comments to the process of assIgnment, there must be:" a degree of order m sequence of assIgrunent in View of the number of employees mvolved In a major reorgarnzatIon. otherwIse chaos would be the end result." Not only employees have a genUIne concern over the subject of Job secunty when there is a matenal change m orgamzatlon or the abolItIOn or a pOSItIon. The employer IS concerned WIth carrymg out a reorgaruzatIon m an orderly fashion. If employees had a chOIce between assignment and displacement nghts, the SituatIOn for the Employer could become truly chaotic. I am satisfied that If the parties had deCIded to create alternatIve nghts (either asSIgnment or dIsplacement) ill favour of employees affected by Article 24 1, It would have been a Simple matter to say so. In drafhng Article 24 I as they did the parties created a scheme that IS much more consistent With the establIshment of a mandato!)1 process movmg from assIgnment to dIsplacement to lavoff. The Umon lid not lispute that, at the hrne the gnevor was offered the posItIon m the Kenora office, It was the best avatlable Job What It argues IS that a better Job became avaIlable after the Employer Idenufied and offered the Kenora office Job to the gnevor I am unable to find 17 any proVIsiOn m the newly negotIated collective agreement which would have tills employer reVIsit ItS obhgatIon to Identify a posItIon because a subsequent operung arose whIch might be consIdered "better" by a partIcular employee Although I recogruze the Importance of semonty, what the Uruon IS askmg me to do IS to buIld a step mto the dIsplacement proVlslons that sunply does not eXISt. I can not. Could the process followed by the Employer be unproved upon? Perhaps. Could the process at Issue be adjusted m an effort to reduce unfortunate crrcwnstances such as those before tlus Board? Maybe. However, those are not quesnons for tIns Board to address. The questIOn for tlus Board IS whether the process followed by the Employer complies WIth the negotIated proViSIons of the collective agreement and I am of the View that It does. The partIes, m the negottatmg process, had an herculean task. That IS, to arnve at an orderly and farr process for maSSIve lay-off's wInch would encompass every MinIstry and reach employees in each comer of the provmce. To further comphcate the matter, the Issue of tune factored mto the equatIon. It IS apparent that m an effort to come to that accommodatIon occaSIOns will arIse when the process wInch IS the most farr for the enttre workforce may occasIOnally dIsadvantage mdlVlduals. That IS unfortunate However, It IS not a Vlolanon of the collectIve agreement. F or those reasons, the gnevances are dIsmissed. Dated ill Toronto, thiS 17th day of June, 1996 ~ ( ~C({CL~~/ L77 FeliCity D Bng l