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HomeMy WebLinkAbout1996-0665RYCE97_08_22 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (415) 325-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (415) 328-139($ GSB # 665/96 OPSEU # 96D693 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ryce) Grievor - and - the Crown in Right of Ontario (st Lawrence Parks commission) Employer BEFORE C G Simmons Vice-Chair FOR THE C. Walker UNION Grievance Officer Ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 6, 1997 April 17, 1997 June 24, 25, 26, 1997 July 3, 1997 ~> 2 DECISION This is a layoff grievance In his statement of grievance Mr Ryce states (Exhibit 1) I grieve that the employer has violated the agreement by declaring me surplus improperly and by denying my employment stability rights. He seeks that the employer s decision be rescinded and that it comply with the agreement and that he be reimbursed for any and all losses caused by the employer's actions. The grievor further seeks, "that the employer be required to establish a proper and decent process for conducting surplus and employment stability matters." The position which the grievor occupied is entitled "Plant & Property Officer, Clerk 7 Supply - Atypical" There is a less senior employee who occupies the position of "Program Support Officer, Clerk 7 Supply - Atypical" Both employees were/ are located at Old Fort Henry in Kingston, Ontario The grievor's position evolved from a maintenance position including supplies, mechanical, masonry, and cleaners. The incumbent's position, Mr John Gillis, evolved from the Assistant Quartermaster position and dealt with articles such as uniforms, gun powder, museum artifacts - that is museum assistance work including leather working, care of ordinance, and a number of other related matters as well as the care and maintenance of weapons. The employer stresses that both positions were atypical although they both fell within the Clerk 7 classification range There were four Supply Clerk 7 employees surplused on April 26, 1996. The grievor claims that he is qualified to perform the work of the Program Support 3 Officer position which Mr GUlis currently occupied and therefore, he ought not to have been surplused. Article 20 4 is the relevant article' 204 DISPLACEMENT 20 4 1 (a) The Employer will identify the employee with the least seniority in the same classification and the same ministry as the employee s surplus position. If such employee has less seniority than the surplus employee. he or she shall be displaced by the surplus employee provided that: (1) such employee's headquarters is located within a forty (40) kilometre radius of the headquarters of the surplus employee: and (ii) the surplus employee is quallfted to perform the work of the identified employee. The employer takes the view that the grievor is not qualified to perform the duties and responsibilities of the Program Support Officer and therefore has not violated the collective agreement. The grievor was first employed on February 20, 1979 as a seasonal security officer He was appointed to the classified service on May 1, 1986 In 1990, he was placed into the position of "Plant & Property Officer" (Exhibit 3) In this position the grievor was working with tractors, dump trucks, and other vehicles to assist with the daily routine in the Maintenance Department. He later was assigned duties and responsibilities of ordering supplies and was also introduced to some supervisory capacity responsibilities as well as record keeping. The grievor has been an active union participant and it was thought at first that the reason for his layoff was due to his union activities but when assured by counsel for the employer that it had nothing to do with his layoff the union accepted that assurance - 4 There was considerable evidence led during these proceedings and I will not attempt to reproduce it in any detaU. It is agreed, however, that the employer based its decision primarily on two factors. The fIrst factor revolves around ..transportation of dangerous goods" The employer had not been informed at the time of its decision that the grievor had a certificate which permitted him to transport dangerous goods and the employer was in error in this regard. The transportation of dangerous goods refers primarily to moving black gun powder from a certain storage space in the Kingston area to Fort Henxy The grievor demonstrated that he had a certificate to transport such dangerous goods but the employer was unaware that he had such a certificate when the decision to surplus him was taken. The second factor that played a role in the employer's decision relates to leather working. Old Fort Henxy is a fort located on a bluff in the Kingston area. From May until September each year the fort is open to the visiting public where a number of students are employed and wear British uniforms that replicate 1867 At one time there were as many as 144 students but this past year that number was down to 60 due to cost-cutting initiatives. These students wear the uniforms that are intended to be as accurate as possible to the uniforms the British wore in the 1867 era. Mr Steven Mcready is the supervisor for the support programs at Fort Henry Mr Mcready informed me that there are approximately 6000 artifacts on display at the fort representing the guard and civilian life in 1867 and there are new acquisitions being gathered from time to time. Mr Mcready informed me that the fort s main purpose is to bring to life a British garrison in 1867 The fort is a national historic site. So, one of its 5 purposes is to educate and entertain the public what life was like in the Kingston area and in the military in 1867 There are, in addition to the military uniforms, civilian uniforms or dress of the 1867 era and people who are employed at the fort give interpretations as to what would have been the situation in 1867 The fort has maintained a policy of having proper uniforms relating to the 1867 era. In this connection, there are certain details with which they are concerned. One must be able to differentiate the soldiers from one another and there are a number of ways in the army to do so There are badges, chevrons, applications of braids on the cuff, collar, or shoulder, and it is important who orders the material to know clearly what they are ordering and where these items are to be applied to the uniforms. In addition to the uniforms, badges, etc. there are a nmnber of leather items that are required. These include belts, straps, slings, ammunition pouches (cartouche), water buckets, shell cases, and saw cases. Mr Mcready had certain examples with him in these proceedings. They included the cartouche, tube pocket, shovel case, a belt, ball bag (carries ammunition), water bucket (to fight fires), scabbard (to hold a sword), and a powder bucket. While this was not a complete list of what is required it was provided to this arbitrator as examples. These leather productions are expected to be as close in detail to the original leather accoutrements as is possible. The incumbent, Mr GUlis, has made most of the samples that were presented to this arbitrator or they were made by his predecessor, Mr Rick Compeau, but Mr GUIies, if he does not make them, he repairs them. Mr Mcready stated that the primary reason why the grievor was not awarded this position was due to the leather work that is required in that position. 6 It was his feeling that the grievor did not have the capabUity nor was he qualified to perform the required duties of a leather worker In his view, the responsibUitles and duties are fairly technical and they need manual dexterity and one needs to think in third dimension and work in patterns. It was Mr Mcready's opinion that the grievor could not perform that part of the job. The grievor informed me that he had performed tack and harness leather work for a former owner of a tack and harness shop at a local raceway where race horses raced and were stabled. Mr Michael Gibson, the owner of the tack and harness shop, testified that the grievor had worked for him in the late 70s to the mid-80s Mr Gibson wrote on behalf of the grievor the following (Exhibit 32) January 31 1997 TO WHOM IT MAY CONCERN This letter is to confirm that Mr John Ryce worked at "Kingston Park Raceway" and "'Kingston Park Raceway Tack and Harness Shop. on a seasonal/part-time basis from 1978 to 1985. Mr Ryce had a variety of duties and responsibilities during this time some of which was to clean and care for leather saddle cloths, horse harness and racing accessories. Mr Ryce was also required to repair and provide preventative maintenance to the leather equipment associated with horse racing. Mr Ryce was a quick learner and he picked up on the repair and care of the leather equipment quite easily If you have any questions or require clarlftcation, please do not hesitate to contact me. Sincerely. Michael P Gibson Former Owner/Operator K.P.R Tack & Harness Shop It became readily apparent that the grievor's role with Mr Gibson was to take harness apart and clean it as well as repair and sell various pieces of harness. Mr Gibson said they were all small repairs, that they did not have a sewing machine, and that they placed different snaps and buckles on pieces of harness. - 7 This arbitrator does not accept the expelience the grievor had at Mr Gibson's tack and harness shop as equipping him with the capabUities of producing period leather works such as was demonstrated to me durlng the course of these proceedings. When it is established that the leather works remained a core function of the work throughout the evolution of that job and this is established in Exhibits 4, 5, and 6 and the grievor aclmowledged that it is an important function of the job, then this arbitrator is driven to the conclusion that the employer was correct in denying the grievor the light to bump into that position. The experience in leather working by the grievor does not convince me that he is qualified to perform the functions in the position that is held by Mr GUlis pursuant to art. 204.1(a)(ti) I am persuaded that the grievor would require training before being qualified to perform such duties and responsibUities. It is for all of the foregoing reasons the grievance must be and is hereby dismissed. Dated at Kingston, Ontario, this 22nd day of August, 1997 .flA~' 7J C Gordon Sinrmons Arbitrator