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HomeMy WebLinkAbout1996-0833COCHRAN97_05_22 ~o- O/IITARIO EMPLOYlS DE LA COURONNE CROWN EMPLOYEES DE L'O/IITARIO ~ 1111 GRIEVANCE COMMISSION DE , SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 833/96 OPSEU # 96B850 IN THB MATTBR OF AN ARBITRATION Under THE CROWN BHPLOYEBS COLLBCTIVB BARGAINING ACT Before THB GRIEVANCB SBTTLBKBNT BOARD BBTWEEN OPSEU (Cochran) Grievor - and - the Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORB R.H. Abramsky Vice-Chair FOR THB C. Walker GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S Patterson BKPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 9, 1997 " /' AWARD This IS a most unusual case In wluch the parties to the collective agreement - the Dmon and the Employer - agree that there has been no violation of the nghts of the gnevor, Wenda Cochran, under the collectIVe agreement. Nevertheless, the case was presented and revealed a truly sad situation In which Ms, Cochran found herself the victIm of a number of errors made by both the Mimstry and the Umon. At the outset of the hearing, the parties entered an Agreed Statement of Facts, as follows 1) The employee was declared surplus on May 16, 1996 from her Regular Part-Time (RPT) position In Carleton Place. 2) The employee's contInUOUS servtce date (CSD) of record at the time ofsurplusing was September 4, 1984 3) There was no vacancy witlun 40 km to wluch the employee could be tnlmedlately directly assIgned. 4) There was no displacement opporturuty WIthin 40 km. 5) A displacement opportumty beyond 40 k:m (in the Napanee Office) was offered on May 29, 1996 and accepted. 6) The employee gneved on June 5, 1996 that the Mimstry had failed to calculate her semonty properly The Issue In dispute related to the employee's contention that seruonty for RPTs should be prorated. The gnevance was derued. 7) The employee was confirmed In the Napanee positIOn effective July 23, 1996 8) During the course of Investigating the employee's June 5th gnevance, and In prepanng the Mimstry's case for arbitratIOn, It became apparent that the CSD of record was Incorrect. Proper applIcatIOn of Article 18 l(c) dictates the gnevor's CSD as April 14, 1986 (not September 4, 1984) SInce she had no prevIous unbroken part-time unclassified service Immediately pnor to appoIntment. 2 , ./ 9) On November 28, 1996, the employee's CSD was corrected to April 14, 1986, and the employee was adVIsed that the displacement to Napanee was rescmded, smce she was not semor to the employee she had displaced. The employee's surplus notice period was extended to May 20, 1997, and a new displacement to Thunder Bay was offered (and rejected) 10) On December 9, 1996, the employee filed a second gnevance clamung that the Mimstry was estopped from rescinding the Napanee displacement. The grievance was denied. 11) The employee is currently workmg out the balance of her notice penod. 12) There is no dispute between the parties With respect to the issue of CSD/semonty for the purpose of Article 20 nghts. The parties agree that CSD/semority for RPT employees should not be prorated. 13) There IS no dispute between the partIes wIth respect to the issue of the calculation of tills employee's CSD/senionty The partIes agree that the employee's CSD (senionty date) IS April 14, 1986 14) The partIes agree that the Mimstry was obliged to correct the CSD and rescind the displacement to Napanee. The Union agrees that the employee was properly treated when the Ministry extended the notice period to May 20, 1997 What IS clear from the stIpulated facts IS that the Mimstry erred m onginally calculatmg the gnevor's semonty date. Whereas her correct semonty date was April 14, 1986, for many years (smce 1985) it had been Improperly calculated as September 4, 1984 Tills error, however, was not discovered until Ms. Cochran filed a gnevance on June 5, 1996, With the support of her local umon, contendmg that she had more semonty than September 4, 1984, on the baSiS that her semonty as an RPT should have been prorated to mclude the two years she had worked on short-term contracts. Under ArtIcle 18 l(c) of the collectIve agreement, however,"an employee's length ofcontmusous servIce will accumlate for a regular part-time CIvil servant, from January 1, 1984 or from the date on which he or she commenced a penod of unbroken, part-time employement m the 3 , pubhc servIce, munediately prior to appomtment to a regular part-time posItion m the cIvil servIce, wluchever IS later" In other words, semority for a RPT employee IS not prorated based on hours of servIces. It was for tills reason that once the gnevance went beyond the local level, OPSEU could not support it. In the meantime, however, when the Ministry reviewed the gnevance, It was dIscovered that the grievor actually had less semonty than onginally thought, not more. When the error was discovered, the Ministry corrected her semority date. The effect of thts correction on the grievor was profound. After she had been surplused on May 16, 1996 from her posItion, she was offered and accepted a dIsplacement opportunity m Napanee, based on the ongmal ffilscalculation of her semonty date. The gnevor relocated her home, at her own expense, based on this reassignment. She started work at the Napanee office on October 7, 1996 and spent two months learning the Job and becoffilng famihar WIth her new locale. Then, on November 28, 1996, she was advised that because of the error m the calculatIon of her semority, the Napanee offer was rescmded, effective tnl1nedIately, and a dIfferent displacement opportumty, in Thunder Bay, was offered, to a position m a lower classIficatIOn and fewer hours. Ms. Cochran declmed thts offer, concerned that if she accepted it and moved, there was no guarantee that another "error" would not be discovered. She has stated that she would never have moved to Napanee had she known It was not a legitimate offer 4 -- ~ On December 9, 1996, Ms, Cochran filed a second gnevance, contendmg that the Mimstry was estopped, by its own errors, from rescmdmg the Napanee offer Because the Mimstry's ongmal error adversely affected -another bargaimng umt employee (who had been improperly laid off 10 the displacement accepted by the grievor based on the ongmal rmscalculatlon of her semority), the Vmon was of the positiOn that the rmstake had to be corrected. It was not, 10 Its View, a situation which could be overlooked by the Mimstry even though Its mistakes had caused the Napanee offer to be made in the first place. Smce this time, the Ministry has reimbursed the gnevor for the expenses she mcurred in her move to Napanee, and the grievor has been eligible under Article 20 S of the collective agreement to apply for vacancies that anse Within the Mnistry dunng her notice penod. Through the date of the heanng, April 9, 1997, however, no such opportumty had ansen, The Mimstry also extended the gnevor's six-month notice penod until May 20, 1997 It should also be noted that pnor to the Mimstry's offenng the gnevor a dIsplacement opportumty 10 Napanee, she was offered (incorrectly) a job-shanng displacement 10 Niplgno That offer was resc10ded pnor to any actlOn be10g taken by the Ms, Cochran. At apprmamately the same time, 900 employees 10 the Mimstry were bemg surplused and, as the Mimstry acknowledged, some nustakes were made There was no allegatiOn, however, and no eVidence that the mistakes made by the Mimstry (or the Vmon) 10 tIDS matter were made 10 bad faith. S r ARGUMENTSOFTHEPARTffiSANDTHEGRffiVOR While the Umon acknowledges that It cannot support the two gnevances filed by Ms. Cochran, It urges the Board to order the Mimstry to provIde a temporary assignment for Ms. Cochran It subrmts that errors made by the Mimstry - as well as the Union m erroneously supporting her imtIal grievance - required the Ministry to go beyond the rmmmums of the collective agreement and to create a continumg opportumty for her The Employer argues that while It IS most sympathetIc to Ms. Cochran and regrets Its error in the onginal calculation of her semonty, it asserts that in the absence of a violation of the collective agreement, the Board has no junsdictIOn to award a remedy In tlus case, It points out that the Umon IS not arguing that the Employer vIOlated the collective agreement, and consequently, there IS no issue between the partIes. In these CIrcumstances, It contends that the gnevance must be dlsrmssed. In support of Its contention, the Employer CItes the decision of the Grievance Settlement Board In E. Blake et al. and Amalgamated Transit Union (GSB Nos, 1276/87 et al.) (May 3, 1988)(Slume, ChaIr) The gnevor argued that she has been appalled at the numerous errors that have been made winch have so profoundly affected her livelihood and emotIonal health, She does not understand how the Mirustry cannot be held accountable for Its mIstakes, In her VIew, It IS unjust that the Mimstry assured her agam and agam that her semonty date was 6 ~. I ... correct, allowed her to move, and then abruptly rescinded the agreement wIthout offenng an equal opporturnty She seeks the prorating of her sernonty and re10statement of her CSD to September 4, 1994, and eIther re10statement or a reasonable placement wIth10 commut1Og dIstance. DECISION Although I am truly sympathetIc to Ms. Cochran - and I was most impressed wIth her at the heanng - an arbitrator IS linuted to enforc1Og the collectIve agreement. An arbItrator has no general junsdICtIon to nght wrongs or correct an 1OjUstIce. With some exceptIons not applicable here, an arbItrator's junsdiction extends only to enforc1Og the terms of the parties' collectIve agreement. Where, as here, the partIes to the collective agreement - the Union and the Employer - do not contend that there has been a vIOlatIon of the agreement, then the gnevance must be disnussed. Tills hold1Og was made clear in E. Blake et al. and Amalgamated Transit Union, supra. At Issue 10 that case was whether an 1OdIV1dual employee has the nght, 10dependent of the Urnon, to access arbItration before the Gnevance Settlement Board. The Board ruled that the 10dIvIdual dId not have that nght s10ce the nght to arbItrate belonged to the "partIes" to the collective agreement - the Urnon and the Employer The Union, the Board recognized, must act 10 the 10terests of the entire collective bargairnng urnt, and at times, "the urnon will undoubtedly make deCISions where the mdlvIdual mterest IS subordmated to that of the group, subject only, to the urnon's duty under 7 I " SectIon 28 of the Crown Employees CollectiVe Bargammg Act that It "not act m a manner that IS arbItrary, dIscnnunatory or m bad faith." (DeCision at p 2) In thts case, while the local umon erred m supportmg the gnevor's claIm for proratmg of her hours for senionty purposes, the Umon, at the end of the day, was obligated to follow the requirements set forth m Article 18 1 (c) It has no power to unilaterally amend or overrule the collective agreement. Likewise, smce the nghts of another employee had been improperly adversely affected by the Mimstry's origmal tnlscalculatlOn of Ms. Cochran's semonty date, the Umon had no chOIce but to support the correction of that nustake once it was discovered, even though It meant that the gnevor was placed m a most dIfficult position. In the current Situation of sIgnIficant downsizmg, the relatIve semonty rights of employees become cntical and the partIes have no chOIce but to follow the the reqUlrements of the collective agreement m detenrumng senionty Applymg the holdmg of E. Blake et al.J supra, to the facts m thts case, it is clear that since the Umon and Employer agree that there has been no vIolatiOn of the collectIve agreement, the grievances must be dlSlnissed. A gnevor, under the collectIve agreement and the Crown Employees Collective Bargaining Act, as amended, has no mdependent access to the Grievance Settlement Board to pursue an mdiVIdual claim. 8 _. I '" Because there has been no violation of the collective agreement, I am Without Jurisdiction to order a remedy 10 tlus case It is my understanding that Ms. Cochran has pursued other avenues of redress - through the Ombudsman's Office and her M.P.P - and perhaps those avenues will proVide a remedy which this Board lacks the Junsdiction to order For the above-stated reasons, the grievances are disffilssed. Issued tlus 22nd day of May, 1997 - ~~ H AiJQIl1S1~ Randi Hammer Abramsky, Vice-Chair 9