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HomeMy WebLinkAbout1996-0697PENNEY97_03_13 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE /TELI~COPIE 1416) 326-1396 GSB # 697/96 OPSEU # 96B777 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Penney) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE R.L. Verity Vice-chairperson FOR THE C. Walker GRIEVOR Job Security Officer Ontario Public Service Employees Union FOR THE L. Brossard EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 19, 1996 January 27, 1997 - 2 DECISION David Penney is a long servIce employee who, since 1968, has worked m vanous posItions wIthin the MInIstry He received written notice, dated May 16, 1996, from the Deputy Mmister of Natural Resources that hIS position was being declared surplus effectlve November 15, 1996 He receIved a second letter, also dated May 16, 1996, from the Ministry's Human Resources Branch statmg that the displacement Identification process "wIthin forty (40) km of your positlon headquartersll had been completed and that "there IS no employee you can displace within this geographIc parameter In accordance with Section 2441 (a), (b), (c), or (d)." In a gnevance filed, Mr Penney contends that the employer failed to identIfy properly hIS dIsplacement rights. ThIS matter anses under the provIsIons of the current collectIve agreement whIch IS for the period April 1, 1996 to December 31, 1998 There IS no dIspute between the partIes that under thIS agreement the employer properly conSIdered the grievor's displacement opportunitIes under Article 24 4 1 (a), (b) and (c). The issue Involves the proper Interpretation of ArtIcle 24 4 1 (d) Although the dispute concerns the meanIng of a particular paragraph In Article 24, It is helpful to set out other proviSIOns m order to properly understand the dispute -,.. 3 ARTICLE 24 - EMPLOYMENT STABILllY PREAMBLE The amended provisions of Artlcle 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 prior to the date of ratificatIon 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 including 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 provlSlons continue to apply as of that date, the follOWIng new provisions apply effective January 1, 1997 241 Where a lay-off may occur for any reason, the Identification of a surplus employee m an administratIve dIStrict or unit, Institution or other such work area and the subsequent dIsplacement, redeployment, lay-off or recall shall be In accordance wIth seniority subject to the conditIons set out in tlus ArtIcle. 24.2 NOTICE AND PAY IN LIEU 24.2.1 An employee Identified as surplus shall receIve SIX (6) months notIce of lay-off or, WIth mutual consent, an employee may resign and receIVe equivalent pay In heu of notice. Pay in lieu for the balance of the notIce period shall only be granted where the Employer determines that operational requirements permit an employee's eXIt from the workplace pnor to the expiratIon of SIX months notIce. 24.2.2 The notIce period will begin when the employee receIves offiCIal written notice. 244 DISPLACEMENT 2441 An employee who has completed his/her probationary penod, who has receIved notIce of lay-off pursuant to Sub-sectIOn 24.2, and who has not been assigned In accordance WIth the cntena of 24.5 to another pOSItIon shall have the nght to dIsplace an employee who shall be Identified by the Employer in the follOWIng manner- (a) The Employer will identIfy the employee with the least selllonty m the same classificatIon and the same milllstry as the employee's surplus pOSItion. If such employee has less seniority than the surplus employee, he/she shall be dIsplaced by the surplus employee provided that: (i) such employee's headquarters IS located wItlun a forty (40) kilometre radms of the headquarters of the surplus employee; and (ii) the surplus employee is qual1fied to perform the work of the Identified employee (b) If the surplus employee IS not quahfied to perform the work of the least selllor employee identified under paragraph (a) above, the Employer will contmue to identIfy, in reverse order of senionty, employees in the same claSSIficatIon and In the same IllilllStry until a less semor employee IS found wIthm forty (40) kilometres of the surplus employee's headquarters whose work the surplus employee is qualIfied to perform. - 4 (c) Faihng displacement under paragraphs (a) or (b) above, the Employer will identify, III reverse order of semority, employees III the classes III the same class series m descendmg order until an employee With less semonty is found in the same mlmstry wIthm forty (40) kilometres of the surplus employee's headquarters. The identIfied employee shall be displaced by the surplus employee provided he/she IS qualified to perform the work. (d) Failing displacement under paragraphs (a), (b) or (c) above, the Employer 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 in the same ministry within forty (40) kilometres of the surplus employee's headquarters. The Employer will identify, in reverse order of seruority, a less seDlor employee 10 the class with the maximum salary closest to but not greater than the maximum salary of the surplus employee's current classJ.fication. The Identlfied employee shall be displaced by the surplus employee prOVided he/she is qualified to perform the work. (e) Failing displacement under paragraphs (a), (b), (c) or (d) above, If the employee requests, the Employer will repeat the steps speCified m paragraphs (a), (b), (c) and (d) with respect to positions beyond a forty (40) kilometre radius of his/her headquarters. No relocation expenses will be paid. (f) Failing displacement under paragraphs (a), (b), (c), (d) or (e) above, the Employer will ident1fy, m reverse order of seniority, a less senior employee who IS: (i) m another ministry; and (Ii) whose headquarters is withm a forty (40) kilo metre radlUs of the displacing employee's headquarters; and (ill) whose pOSition the displacing employee previously 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 in that ministry; and (IV) if the employee preVIously held more than one posItIon m that mmistry, the position with a maximum salary closest to but not greater than the maximum salary of the dlsplacmg employee's current classmcatIon. The ldentIfied employee shall be displaced prOVided the dlsplacmg employee IS quahfied to perform the work. (g) No later than one (1) week followmg commencement of the notIce period, the Employer will advise the surplus employee of the position into wluch he/she is ehgible to displace. (h) The surplus employee must mdicate m writing to the MIDlstry/Agency Drrector of Human Resources hls!her mtentlon to displace the employee Identlfied pursuant to paragraph (a), (b), (c), (d), (e), or (f) above, as applicable. Wntten mtentlon to dIsplace must be receIved by the MUllstry/Agency DIrector of Human Resources no later than one (1) week following the date the surplus employee received adVice that he/she was ehgible to dIsplace an employee ,... 5 pursuant to Sub-section 244 l(b) above. (i) An employee who does not mdlcate m wntmg to the MUllstry/Agency Director of Human Resources hls!her mtentIon to displace wlthm the tIme penod shpulated by Sub-section 244 l(h) above shall be deemed to have gIVen up his!her nght to displace an opted for redeployment under Sechon 24.5 2716 The Gnevance Settlement Board shall have no junsdlctIon to alter, change, amend or enlarge any provlSlon of the Collective Agreement. The hearing proceeded on the basis of an agreed statement of facts followed by argument. The agreed facts, Exhibit 2, are as follows. 1) The parties agree that the Gnevor was surplus from a pOSItIon classified as Community Development Officer 2 and that there was no available displacement in the Ministry pursuant to Article 24 4.1(a) through Article 244.1(c) inclusive. 2) The parhes agree that the issue ill dIspute is the application of Article 244 1( d). Accordingly, the parties agree that the Board shall be asked, at the heanng on November 19 1996, to determme whether the Grievor has an entItlement under Article 244 1(d) to be conSidered for displacement into classes beyond the one class with a maxunum salary closest to but not greater than the maxunum salary of the surplus employees current classification. 3) The parties agree that neither party shall enter any evidence from negotiating history 4) The parties agree that for salary purposes the Current Gass MaXlUlum for the Community Development Officer 2 is $986.15 per week. 5) The parhes agree that m addition to the current surplus claSSificatIon of Community Development Officer 2, the Grievor had preVIOusly held the followmg OPSEU home pOSition classifications With the Mimstry of Natural Resources: OPSEU Home POSition ClassificatIOns. Current Class Maximum. Resource TechmClan Semor 3 $975.80 per week Resource Techmcian Semor 2 $862.98 per week Resource Technician Semor 1 $808.84 per week Resource Technician 3 $727.20 per wcek 6) The partIes agree that the Gnevor's headquarters at the hme he was declared surplus was Ignace, Ontario -- 6 As can be seen from the statement of agreed facts, the parties acknowledge that the gnevor had no dIsplacement opportunity in the Mimstry under the proVIsIons of Artlcles 244 l(a), (b) and (c) As to the provision in contention, 24 4 1( d), the partles agree that the employer comphed wIth the requirements contaIned In the first sentence, namely that a reVIew took place of other clasSIfications In the same mInIstry which the grievor had previously held eIther on a full-time basIs or of whIch he had performed the full range of duties on a temporary basis for at least 12 months WIthm a 40 kilometre basIs of the gnevor's headquarters. The reVIew established that the grievor had preVIously held four separate classIficatlons wIthm the MilllStry M Resource Technician SenIor 3, Resource TechmcIan Semor 2, Resource Technician Senior 1 and Resource TechnicIan 3 The dIspute focused on the mealllng of the second sentence of paragraph (d) of Artlcle 24 4 1 The employer was unable to identify a less semor employee at the RTS 3 classIfication wIthIn a 40 kilometre radius that the grievor could displace, but dId identIfy a dIsplacement Opportulllty under paragraph (e) of ArtIcle 24 4 1 which was within the milllstry but beyond the 40 kilometre radIUs. The union contends that there was no need to consIder subparagraph (e) m that under (d), the employer was obhged to continue to search, In reverse order of senionty, under the R TS 2 classIfication and, If necessary, to proceed further to search the remamIng classifications whIch the gnevor held for the stlpulated period. It is InterestIng to note, however, that In a letter to the gnevor, dated May 23, 1996, the MInIstry dId Identlfy a posItlon at the RTS 2 classIficatIOn wIthIn a 40 kilometre radIUs of the gnevor's headquarters. That offer was rescInded verbally shortly ~~- 7 thereafter, when the Ministry recoglllzed that It had vIOlated the gUIdehnes referred to In Management Board Secretanat's Interpretatlon Bulletlll, dated May 14, 1996, ExhibIt 6 The partles agree that there IS no ambIguity In the wordlllg of 24 4 1( d) Bnefly stated, the UDlon contends that subparagraph (d) Involves a three step process. first, the reVIew process, secondly, the Identificatlon of the first class with the maximum salary closest to but not greater than the maXImum salary of the gnevor's current classIficatlon, and thIrdly, once the class has been identIfied, In t.hIS case RTS 3, the process outhned in subparagraph (a), (b) and (c) above. Mr Walker argues that while the wordlllg in subparagraph (d) may have been more comprehensibly expressed, It was sufficIent to allow the search to contlllue in order to find a less selllor employee in any c1assIficatlon prevIOusly held by the grievor The UnIon submits that It makes no sense to review the classes prevIously occupIed by the gnevor and then to hmIt the identificatIon process to the one classIficatIOn "wIth the maxImum salary closest to but not greater than the maXImum salary of the surplus employee's current classificatlon." The employer asserts that the union's Interpretatlon of Article 244 1( d) contemplates an extra step not contamed In the clear language of the collective agreement. Ms. Brossard contrasts the language of the second sentence m Artlcle (d) "In the class" which IS singular wIth the wording of (c) where the language refers to "classes in the same series m descendIng order" where the words used are plural. In her VIew, the use of words "In descendIng order" m (c) speCIfies a multl-search through the same class senes In descendmg - 8 order By way of contrast, she maIntains that (d) contemplates a singular IdentIfication for an employee wIth less selllority than the gnevor In "the class" qualified by the words "with the maXImum salary closest to but not greater than the maXlffium salary of the surplus employee's current clasSIficatIOn." In support, reference was made to the folloWIng authontles. The Ministry of Natural Resources and Management Board Secretariat and Ontario Public Service Emplovees Union, Lavoffs & Bumping Rights (unreported, June 17, 1996 (Bnggs)), Re Northwest Community College and Canadian Union of Public Employees, Local 2409 (1984), 15 L.A.C. (3d) 395 (Munroe), Re Service Emplovees International Union, Loc. 268 and United Steelworkers of America. Local 5481 (1994), 43 L.A.C. (4th) 76 (Aggarwal), Re Cargill Ltd. and United Food & Commercial Workers, Local 1118 (1996),54 L.A.C. (4th) 76 (Koshman), Re Bingham Memorial Hospital and Canadian Union of Public Employees, Local 2558 (1991), 20 L.A.C. (4th) 434 (Marcotte); and Re Pebra Inc. and CA. U1;-Canada. Locals 1524 & 1987 (1994),42 L.A.C. (4th) 171 (Hunter) By way of background It should be stated that the present collective agreement arose from a Memorandum of Settlement, dated March 29, 1996, which was entered Into by the parties dunng the concludIng days of the OPSEU strike agaInst the Government of Ontario. In the settlement the parties reached an agreement on the contested area of lay-off and bumpmg rights in the context of the Government's stated objectIve of substantlally redUCIng the number of publIc servIce employees. The parties were then aware that lay-offs In large numbers were mevItable ~- 9 The current ArtIcle 24 entItled "Employment Stabihty" refernng to lay-off procedures dIffers substantially from Article 24 of the prevIous collectIve agreement entItled "Job Secunty" I make no attempt to set forth the differences between the two collective agreements regardIng ArtIcle 24, except to say that the wordIng of the current Article 24 represents a sIgnificant change of focus m matters of lay-off and displacement rights. Under the current collectIve agreement ArtIcle 24 1 makes It clear that In Clfcumstances of a lay-off, the IdentificatIOn of a surplus employee and "the subsequent displacement, redeployment, lay-off or recall shall be in accordance with senionty subject to the conditions set out in thIS Article." Under 24.2.1, it is specIfied that the surplus employee IS entItled to six months notice of lay-off or, where there IS mutual consent an employee may resign and receive pay in heu of notice. The tIme frames for identifying and respondIng to displacement opportunitIes are limIted. Under Article 24 4 l(g), the employer IS gIven a maXImum of one week (seven calendar days) from the commencement of the notIce of lay-off penod to adVIse the surplus employee If he or she can bump a less selllor employee IdentIfied by the employer Similarly, under ArtIcle 24 4 l(h) the employee must gIve wntten notIce to the employer no later than one week (seven calendar days) after receIvmg notIce of lay-off as to his or her declSlon on the pOSItIon Identified. Failure on the part of the employee to dehver a wntten response wIthm the stIpulated tIme penod is deemed abandonment of hIS or her dIsplacement nghts (ArtIcle 2441(1)) -.. . 10 Article 24 4 1 under the heading "DIsplacement" estabhshes a detailed process based on senIonty to be followed In sequential order for an employee beyond the probatIonary penod who has receIved notIce of lay-off and who has not been assIgned by way of "redeployment" wIthIn the terms of Article 24.5 Of siglllficance is the fact that an employee who receives a notice of lay-off IS entitled to one opportunity to bump ThIS displacement process consists of a number of steps to be taken consecutIvely to Identify bumpmg nghts wIthm specified areas of search. There are common elements in the first four steps as described In 24 4 l(a), (b), (c) and (d) in that the employer IS reqUIred to conduct a search withm the same ministry withIn a 40 kilometre radIUS of the surplus employee's headquarters and the surplus employee must be qualified to perform the work of the Identified pOSItion Each step of the dIsplacement process has a deSIgnated area of search. Under (a) the employer looks for "the employee WIth the least selllonty m the same claSSIficatIon." Under (b) the search IS broadened to permit the employer to search, m reverse order of senionty, employees in the same classificatIon to identIfy a less senior employee that the surplus employee IS entItled to bump SImilarly, under (c) the area of search IS extended to mclude "the classes in the same class series m descendmg order" to IdentIfy an employee with less selllonty I turn now to (d), the clause In dispute The partIes agree that the provlSlon IS not ambIguous although they each read It m a dIfferent way The task of the arbItrator, then, - , 11 is to determIne the Intentlon of the partIes from the expressed language used by them As a basic rule of interpretatIOn, the words of a particular provIsIon In a collectIve agreement are to be gIven thelf ordInary and plain mealllng In the first sentence of 24 4 1( d), the employer IS requlTed to "reVIew" other classes held In the same mInIstry wIthIn 40 kilometres of the headquartefs of the surplus employee, subject to the quahfication that the employee must have oceupied these classes eIther on a full-trme basIs or performed the full range of job dutIes on a temporary baSIS for a maXImum of 12 months. The plain meamng of "reVIew" is to re-examIne Of conduct a general consIderation of past events. In the instant grievance there IS no dIspute that the employer conducted a proper review and determined that the gnevor held fOUf preVIOUS classificatIOns in the same mInIstry; namely, Resource Techlllcian SenIor 3, Resource TechlllcIan Semor 2, Resource TechmcIan Selllor 1 and Resource TechmcIan 3 The second sentence of (d) requires the employer to "IdentIfy", from the reVIew referred to In the first sentence, m reverse order of senionty, a less senior employee "m the class wIth the maXImum salary closest to but not greater than the maXImum salary of the surplus employee's current classIficatIon." The ordInary mealllng of "identIfy" is to recoglllze or select. In my view, the employer correctly IdentIfied "the class", m thIS case Resource TechlllcIan Selllor 3, quabfied by the phrase "WIth the maXImum salary closest to but not greater than the maxrmum salary of the surplus employee's current classIficatIon" The thud sentence goes on to provIde that the Identlfied employee shall be bumped In the event that - 12 the surplus employee is qualified to perform the work. In the instant gnevance smce no employee was identIfied for dIsplacement purposes at the Resource Techlllcmn Senior 3 classificatIon, In my VIew, the employer made the correct determmatlOn to proceed to the next step, namely 24 4 1( e) While the uDlon's understandIng of 24 4 1( d) may make sense from the standpoint of gIvmg full effect to the Importance of semonty, (d) makes no reference to any contmuatlon of the search by the use of the words such as "in descendIng order" whIch had been used m the precedmg paragraph. The union's interpretation appears to suggest an addItional step not actually contaIned in the language of the provision. ArtIcle 27 16 makes It clear that "The Grievance Settlement Board shall have no JurisdIctIOn to alter, change, amend or enlarge any proVIsion of the Collectlve Agreement." I am satisfied that had both partIes mtended to identIfy In paragraph 24 4 l(d) dIsplacement nghts wIthIn other classes prevIously held by the gnevor, It would have been a SImple matter to have said so. ThIS m fact was not done. For the reasons stated above, thIS gnevance IS dismIssed. DATED at Brantford, Ontario, thIS 13th day of March, 1997 . ~--~~7 R. L. VERITY, Q C. - VICE-CHAIRPERSON