Loading...
HomeMy WebLinkAbout1996-2167ROBERTSON97_11_23 . DWrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'DWrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS '80 DUNDAS STREET WEST, SUITE 800, TORONTO ON M5G tZ8 TELEPHONEITELEPHONE (41ts) 32ts-1388 180, RUE DUNDAS OUEST, BUREAU 800, TORONTO (ON) MSG tZ8 FACSIMILEITELECOPIE (41fJ) 32ts-139f1 GSB # 2167/96 OPSEU # 96G391 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Robertson) Grievor - and - the Crown in Right of ontario (Ministry of Northern Development & Mines) Employer BEFORE R.J. Roberts Vice-Chair FOR THE U. Boylan UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat FOR THE S. Barrett INTERVENOR Counsel Sack, Goldblatt, Mitchell Barristers & Solicitors HEARING November 18, 1997 1 INTERIM AWARD I. Introduction: The gnevance leadmg to the present arbitratIOn alleged that the employer breached artIcle 209 1 of the collectIve agreement betwen Management Board of Cabinet and OPSEU ArtIcle 20 9 1 reads as follows 209 1 It IS understood that attntIOn can be used effectIvely as a redeployment strategy The Employer agrees that, wherever possible, It wIll utIhze attntIOn as a means of reducmg the workforce Counsel for the umon, Ms. Ursula Boylan, submItted that the employer breached artIcle 20 9 1 when It declared the gnevor's posItIOn to be surplus Instead of elImmatmg by attntlOn the posItlOn of her superVIsor, who was neanng retirement. The supervIsor dId not belong to - 2 OPSEU He belonged to the Association of Management, AdmmistratIve and ProfessiOnal Crown Employees ofOntano (AMAPSEO) In the submIssIon ofumon counsel, thIS dId not matter The word "workforce" as used III article 20 9 I, It was submitted, meant the entire OPS workforce, and not just those employees who were members of OPSEU Counsel for the employer, Mr Leonard Marvey, submItted that the word "workforce" as used m ArtIcle 20 9 1, was restrIcted m scope to members of OPSEU As a result, he submItted, the Gnevance Settlement Board was wIthout junSdlctIOn to entertam the merits of the gnevance Mr Steven Barrett, who was permItted to intervene on behalf of AMAPSEO, essentially jomed m thIS submIssion and further submItted that the mterpretatIOn of artIcle 20 9 1 that the umon sought m this case was hIghly Improbable because It would undermme the job secunty agreement that AMAPSEO had executed with Management Board of Cabmet just three weeks before the executiOn of the OPSEU collective agreement. For reasons which follow, the prehmmary ObjectIOn of the employer and AMAPSEO must be sustamed. The word "workforce", as used III ArtIcle 20 9 1 of the collectIve agreement, IS restncted m scope to members of OPSEU It follows that the Board does not have jUnSdIctlon under artIcle 20 9 1 of the agreement to determme the merits of a claim that a positiOn occupied by a member of AMAPSEO should have been elImmated by attntiOn before the gnevor s pOSitIOn was declared surplus. The gnevance IS dIsmIssed. II. Factual Background . 3 At the outset of the heanng, the partIes entered mto eVIdence the followmg Agreed Statement of Facts 1 The grievor, Heather Robertson, was surplussed from her posItion on May 23, 1996, as a Semor Land Use Planner m the Land Use Po hey and Plannmg SectIOn of the Mineral Sector Analysis Branch m the Ministry fo Northern Development and Mines. Her position ws in the OPSEU bargaming unit and she was classified as a Commmmty Planner 4 (CP 4) [AppendIX A] 2 On July 17. 1996, the gnevor filed a gnevance [AppendIx B] allegmg that the employer had breached article 24Z.1 [now 20 9 1] She resIgned on July 30, 1996 The remedy requested is a rescIssion of the surplus notIce. 3 When the grievor was surplussed from her positIOn there were two employees m her land use plannmg umt. herself (CP 4 m OPSEU) and Mr Gibhn, Land Use Po hey and Plannmg Coordmator (PM20 m AMAPSEO) [AppendIx C] 4 The Mimstry restructured ItS serVIces retammg the PM 20 posItion, whIle surplussmg the CP 4 posItion. 5 The mcumbent m the PM 20 postIon, Mr GIblIn, was turnmg 65 m June 1996 and was therefore reqUired to retIre He requested an overage extenSIOn until December 1996 4 and this was approved. 6 The PM 20 posItIOn was advertised m October 1996 [AppendIx 0] A surplussed AMAPSEO PM 20 was directly assigned to the vacancy upon the retirement of the mcumbent and the postmg was cancelled. 7 There have been no allegatIOns of bad faIth or dIscnmmation wIth respect to thIS gnevance On behalf of AMAPSEO, Mr Barrett entered mto eVIdence a Voluntary RecognitIOn Agreement between AMAPSEO and Management Board of Cabmet dated March 23, 1995 Under thIS agreement, the Crown recogmzed AMAPSEO "as exclUSIve bargainmg agent for a bargammg unit composed of all Crown employees as defined m section 1 of CECBA, 1993 who are publIc servants (save and except, persons who exerCIse managenal functions or who are employed m a confidential capaCity relating to labour relatIOns, or lawyers and engmeers who are employed m theIr professIOnal capaCIty) who are not mcluded m the SIX bargammg umts [prevIOusly recogmzed by the Crown] " It was mdIcated that AMAPSEO currently had about 4,000 members. Mr Barrett also entered mto eVIdence a job secunty agreement that Management Board of Cabmet and AMAPSEO executed on March 6, 1996 It was noted that thIS agreement contamed a complete code governmg, mter alIa, the surplussmg and voluntary eXIt of . 5 AMAPSEO employees. The executIOn of thIS agreement predated by three weeks the executIOn of the OPSEU collective agreement contaimng artIcle 20 9 I III. Consideration of the Issue: In support of the prelIminary ObjectIOn, Mr Marvey submitted that as a matter of constructIOn, a consIstent mterpretahon of the agreement estabhshed that the parties mtended "workforce" to refer solely to members of OPSEU He turned first to the recogmtIOn clause of artIcle 1 of the collective agreement. ArtIcle 1 3, he noted, expressly provIded that "thIS Agreement shall apply to the employees m the bargammg umt described m ArtIcle I I [i.e , employees m the 6 OPSEU bargaming umts listed m artIcle I 1 of the agreement] "This demonstrated, in Mr Marvey's submissIOn, that the partIes never contemplated that any prOViSIons of the agreement would apply to non-members ofOPSEU The mtent of the parties solely to apply the terms of the agreement to members of OPSEU was even more graphIcally demonstrated, Mr Marvey submItted, In the management nghts clause of artIcle 2 of the agreement. ArtIcle 2 1 acknowledged that, subject to more express terms governmg the relationshIp between the partIes, the employer was vested, mter alIa, WIth "the nght and authonty to dIrect the workforce, mcludmg the nght to hIre and lay- 6 off, appomt, assIgn and duect employees." The word "workforce", as used m thIS proviSIOn. Mr Marvey submitted, could not help but be mterpreted as referring soley to members of OPSEU These were the only employees that the partIes could have contemplated bemg hued. laid off. ete , under the agreement. It was further submItted that even m the context of article 20 9 I, the word "workforce" referred solely to members of OPSEU Mr Marvey noted that artIcle 20 9 I essentIally recogmzed that reducmg the workforce by attntIOn was an effectIve "redeployment strategy ArtIcle 20.5 of the agreement, WhICh expressly addressed redeployment, spoke soley m terms of redeploymg employees to classified positIons held by members of the OPSEU bargammg umts. More speCIfically, article 205 1 (a), whIch applIed to all redeployments, lImIted redeployment to pOSItIOns "m the same classIficatIOn as [the surplussed employee's] pOSItIOn." The reference to "the same classification", Mr Marvey submItted, could refer to none other than classificatIOns establIshed pursuant to the OPSEU collectIve agreement. Mr Marvey also referred to Re Art Gallery of Ontario and Ontario Public Service Employees Union, Local 535 (1992), 30 L.A.C (4th) 179 (Brandt) In that case, a member of a part-time bargaining umt sought to gneve the demal of her apphcatIon for ajob postmg under the full-tlme collective agreement. The umon submitted, inter alia, that because the full and part- tlme collectIve agreements were stapled to each other and the part-time agreement was referred to as an appendIx of the full-time agreement, the gnevor was entItled to gneve the matter under the full-tlme agreement. I 7 Professor Brandt rejected this submIssion. He said, 111 pertment part. I agree wIth the general proposItion advanced by counsel for the company, VIZ., that unless there IS clear and compellmg language to the contrary the collective agreements should be read as separate and dIstmct and as confernng rights only on those members of the bargaimng umt that are subject to its terms. I am not persuaded that these partIes have, m sufficIently clear language, agreed to allow members of the part-time bargaining umt to post for vacanCIes m the full- time umt and to gneve under that agreement a declSlon by the employer denymg that apphcation. Id., at 183-86 It was concluded that the grievor only had nghts under the part-time collectIve agreement and, as such, was not entItled to post for vacanCIes and gneve under the full-time agreement. Mr Barrett agreed WIth the above submissions, and added a further submISSIOn that, gIven the relatIOnshIp between the tlmmg of the executIOn of AMAPSEO's job secunty agreement and OPSEU's collective agreement, It was hIghly improbable that the employer and OPSEU mtended to use the word "workforce" in artIcle 20 9 1 of the latter to embrace AMAPSEO employees as well as those m OPSEU AMAPSEO's job secunty agreement was executed on March 6, 1996 OPSEU's collective agreement was executed three weeks later, on March 28, 1996 The agreements were WIth the same employer and the umons were m close contact WIth each other AMAPSEO'sjob security agreement provided a complete code govermng the surplussmg of employees, bumpmg nghts, dIrect aSSIgnment, voluntary eXIt, etc If the employer were required under artIcle 20 9 1 of the OPSEU agreement to elImmate by attntIOn the job held by Mr Giblm, It was submItted, the nghts that AMAPSEO prevIously negotiated for employees under the AMAPSEO agreement would be completely undermmed. 8 On behalf of the gnevor, Ms. Boylan submItted that m artIcle 20 9 I of the OPSEU agreement, the parties mtended to use the word "workforce" to embrace the entIre OPS workforce, mcludmg those employees represented by AMAPSEO In support of this submissIOn, she referred to artIcle 6.3 3 of the agreement, which essentially provIded that an agreement between OPSEU and the employer to make employment equity the overridmg consIderatIOn m fillmg a vacancy had to be based upon "an analysis of workforce data mdIcatmg that a desIgnated group is under represented." Ms. Boylan asserted that the use of the word "workforce" m thIS proVIsIon must have been mtended by the partIes to refer to the entire OPS workforce and not just the employees covered by the OPSEU agreement. The use of the word "workforce" m artIcle 20 9 1, she submItted, should be interpreted m the same way In reply, Mr Barrett challenged Ms. Boylan's assertion of the breadth to be gIven to the word "workforce" m article 6.3.3 of the OPSEU agreement. He suggested that there mIght be many mstances m which It would be inappropnate to use workforce data for the entIre OPS m deCIding whether to make employment equity the overndmg consIderatIOn m fillIng a pOSItion m an OPSEU classIficatIOn. It mIght be more appropnate, he mdIcated, to use workforce data for the composItion of the workforce by CIty, Mimstry and claSSIficatIOn. The latter cntenon would relate solely to claSSIficatIOns held by OPSEU employees. Havmg gIven due consIderation to the submISSIOns of the partIes, I now turn to determme the questIOn whether the word "workforce", as used In article 20 9 I of the OPSEU collectIve agreement, was mtended by the parties to embrace the entIre OPS workforce or just those 9 employees covered by the OPSEU agreement. For reasons which follow I conclude that it was mternded to embrace only those employees covered by the OPSEU agreement. I start with one of the "fundamental precepts that govern certIficatIOn and collectIve barga1Omg, VIZ., that the union obtains exclusIve barga1010g fIghts in respect of employees 10 a defined and prescribed bargaimng umt." Art Gallery of Ontario, supra, at 181 It does not obtain bargaining nghts for any other employees. As a result, arbitrators have consistently held that clear language would be requIred to support a conclusIOn that the partIes intended to confer nghts under a collective agreement upon those who were not members of the bargammg umt. See id., at 185-86 At the same time, it is not uncommon for parties to negotIate mto theIr collective agreements, prOVlSlons that enlarge the rights of members of the bargaimng unit at the expense of non-members. The most ObVIOUS example of this would be the negotIation of a ban aga10st other employees performmg certam defined bargaining unit work. The negotiatIOn of such a ban mIght dImImsh the pnor nghts of managerIal employees and, perhaps, members of other bargammg umts who had prevIously shared the work 10 question. The questIOn then becomes, whether the employer and OPSEU mtended to enlarge the nghts of members ofOPSEU at the expense ofthose who were not members ofOPSEU, mcludmg members of AMAPSEO when they negotIated artIcle 20 9 1 mto theIr collective agreement. It seems to me that they dId not. As a result, I cannot gIve the word "workforce" as 10 used m article 20 9 1, the expanSive lOterpretatIOn sought by counsel for the umon. I accept the submIssIons of Mr Marvey that, as a matter of construction, the partIes most likely lOtended to use the word "workforce" in artIcle 20 9 1 to refer solely to members of the OPSEU bargalOlOg umt. I am persuaded m partIcular by Mr Marvey s submissIOn that artIcle 209 1 addressed the employer's redeployment strategy and article 20 5 of the agreement made It clear that redeployment under the collective agreement solely mvolved persons m OPSEU classIficatIOns. I am also persuaded by the submIssion of Mr Barrett that Just three weeks after the negotiation of the AMAPSEO job security agreement, a matter well known to both the employer and OPSEU It was hIghly improbable that the lattter would negotIate mto theIr collectIve agreement a proviSIOn that would lIterally force the employer to breach the code of the AMAPSEO agreement govermng the surplussmg of employees, bumpmg nghts, etc It would reqUire much stronger language than the vague reference to "workforce" m artIcle 20 9 1 to support such a startling result. The use of the word "workforce" m artIcle 20 9 1 must be taken to refer soleley to OPSEU employees. IV Conclusion. The prelImmary objectIOn to jUriSdIctIOn is alllowed. The Gnevance Settlement Board 11 does not have jUnSdIctIon to entertam the ments of the gnevance. Dated at Toronto, Ontano, this 23rd day of November, 1997