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HomeMy WebLinkAbout1996-2587MACINTOSH97_03_17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO __ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2587/96 OPSEU # 97B174 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacIntosh) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE o V Gray Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D. Chiro EMPLOYER Coordinator, C A Negotiations Management Board Secretariat HEARING February 6, 1997 Decision The gnevance m thIS matter reads as follows. Statement of Gnevance The posItlOn from whIch I was dIsplaced moved from Huntsville to MIdhurst. So far my recall rights to MHlhurst have been denied. The posItlOn I held m Huntsville has been relocated to MIdhurst, why should my recall not be move [SIC] to MIdhurst where the posItlOn moved to Settlement DesIred I feel the MmIstry should acknowledge that my recall rights should stem from MIdhurst. The partIes agreed to the following statement of facts. 1 The gnevor Shawn Macintosh was hITed as a RadIo TelecommumcatlOns SpecIahst classIfied as a CommumcatlOns TechmcIan 3 on a full-tune classIfied basIs 15 May, 1996, m the MmIstry's Huntsville office. 2. The gnevor receIved a notIce of surplus on July 23, 1996, as a result of bemg dIsplaced by another employee. See Schedule A. The gnevor chose to work out hIS 6 month notice penod. 3 EffectIve October 21, 1996, the grievor was requITed to report to and work out of the MmIstry's MIdhurst office as a result of the closure of the Huntsville office. 4. The grievor completed workmg hIS 6 month notice penod at the MIdhurst office in accordance wIth paragraph 3 5. The gnevor was given a temporary assIgnment effectIve January 13, 1997 See Schedule B. 6. The MmIstry'S HuntsvIlle office IS closed. Schedule A IS the "notice of surplus," a letter dated July 23, 1996 The first para- grap h of the letter says As a result of an ehgible OPSEU employee wIth more semonty exercIsmg dIsplacement nghts under Article 24.4 of the current Collective Agreement, you are bemg declared surplus m your posItlOn and you WIll be laId off effec tlVe January 22, 1997 Durmg hIS openmg statement, the umon's representative stated that the allegatIOn m paragraph 5 of the agreed statement of facts was not relevant to the - 2 - / Issue raIsed by the gnevance He also acknowledged that the gnevor received accommodation expenses while workmg in Midhurst. The Issue raised by the gnevance IS whether the grievor's "former head- quarters" for purposes of what was then Article 24 6 1, nowI ArtIcle 20 6 1, of the partIes' collective agreement IS MIdhurst, as the umon claIms, or HuntSVIlle, as the employer asserts The umon seeks a declaratIOn that the gnevor's "former headquarters" for purposes of ArtIcle 20 6 IS MIdhurst. ArtIcle 20 6 1 prOVIdes as follows 206 RECALL 2061 A person who has been laId off IS entitled to be assigned to a pOSItion that becomes vacant wIthm twenty four (24) months after hIs/her 1ay.off pro. vIded that. (a) the vacant pOSItion IS m the same classIficatIOn and mmlstry as hls/her former pOSItion, and (b) the vacant pOSItion IS WIthin a forty (40) kilometre rachus of hlslher former headquarters, and (c) he/she IS qualIfied to perform the required duties, and (d) there is no other person who IS qualIfied to perform the requIred dutIes, who has a greater length of contmuous servIce and who is ehgible for aSSIgnment to the vacancy eIther pursuant to Article 206 or Article 20 5 (Redeployment) ThIS Issue IS sIgmficant to the grievor because work of the sort he dId as a RadIO TelecommumcatIOns SpeCialIst m HuntSVIlle IS now bemg done m MIdhurst. Midhurst IS more than 40 kIlometres from HuntSVIlle. Accordingly, the prospect of a vacancy in a pOSItIOn m the same claSSIficatIOn and mImstry arismg WIthin 40 kllometres of Huntsville m the perIOd prOVIded for m ArtIcle 206 1 seems substantially less than the prospect of such a vacancy ansmg m that penod wIthm 40 kIlometres of MIdhurst. NeIther party sought to supplement the agreed statement of facts WIth eVIdence of any other facts, and the partIes' representatives proceeded to make submISSIOns on the baSIS of the facts agreed upon and conceded durmg theIr 1 The proVISIOns of the partIes' 1996 memorandum of settlement have been rearranged, reo numbered and otherwIse echted to form collective agreement documents that the parties agreed would be the official, effective verSIOns as of February 17, 1997 Although the events that are relevant here occurred before that date, the prOVIsion numbers and Ian guage used m thIS deCISIon are as set out m the documents that became offiCial on Febru an 17 1997 Unless otherWIse mdIcated, references are to the collective agreement WIth respect to central workmg conchtions and benefits 3 opening statements. During argument, however, the umon's representative made other allegations of fact. The employer agreed with one such allegation. that the Huntsville "operation" in which the grIevor worked prior to receIvmg his notice of lay-off was "relocated" to MIdhurst m a transactIOn to which Appendix 13 of the collective agreement would have applIed. Appendix 13 provIdes as fol- lows Relocation of an Operation Beyond a 40 Kilometre Radius The Employer and the Umon herewIth agree that, when a mmIstry decIdes to change an operatIOn's headquarters to a locatIOn outsIde a forty (40) kIlome- tre radIUs of that operatIOn's current headquarters, the followmg terms and conditIOns will apply' (1) affected employees will be notified, m wntmg, of the mmIstry's deCISIon to change the operatIons headquarters locatIOn and the date when such change will take place, (2) (a) employees may accept the change m headquarters locatIOn, m which case they will be ehgible for reimbursement of relocation costs in ac- cordance WIth the Employer's relocatIon pohcy; or (b) employees may reject the change m headquarters locatIOn, in whIch case they will be given six (6) months' notice of lay-off pursuant to Ar ticle 20 2.1 (Notice and Pay ill Lieu) and have full access to the prOVI sions of Article 20 (Employment Stability) and AppendIX 9 (Employ ment Stability) of the CollectIve Agreement. (3) II several employees hold the same pOSItion and fewer of their pOSItIons are required m the new headquarters locatIOn, the employees WIth the greatest semorIty will be given the opportumty to go to the new head- quarters locatIon fIrst. (4) It IS understood that when an employee accepts the change m headquar ters locatIOn m accordance with thIS Memorandum of Agreement, the prOVISIOns of ArtIcle 6 (postmg and Fillmg of VacanCIes or New POSItIons) shall not apply The other fact asserted by the umon's representative durmg argument was that after the grIevor received the notIce of July 23, 1996, he "stayed m" hIS pre-notICe pOSItIOn and contmued to perform the work of that pOSItIOn m MId- hurst for the last three months or so of hIS notIce perIOd The employer's repre- sentative demed thIS, assertmg that someone had bumped the grIevor out of that pOSItion before the pOSItIOn moved to Mldhurst, and that the work the grIevor performed m MIdhurst was make-work. -- -- -- 4 ,- Argument The umon says that when the employer moved the work the grievor was performIng In Huntsville to MIdhurst, and then assIgned the gnevor to perform that work In MIdhurst, it changed his headquarters to MIdhurst. Therefore, MIdhurst was the grievor's headquarters when he was laId off at the end of the notice perIod, and It was thereafter hIS "former headquarters" for purposes of Ar tIcle 20 6 1 WhIle ArtIcle 11 addresses m detaIl how a headquarters IS deter mmed for "employees who do not attend at or work at or work from any perma- nent mmlstry faclhty m the ~ourse of theIr duties", there IS no SImIlar prOVIsIOn for other employees. The umon argues that the headquarters for an employee not covered by ArtIcle 11 IS simply the locatIOn at or from which the employee works hIS or her workplace. The umon agrees that the headquarters of an employee who IS workIng out hlsther notIce penod would not change to the locatIOn of a temporary assignment of the sort contemplated by ArtIcle 20.8 1, for example, if that were the last work done before the lay-off took effect. The umon says that the dIstmctIOn here is that the grievor was domg hIS "regular," "permanent" work at the locatIOn wluch he now claims was his headquarters when hIS lay-off took effect. The employer's pOSItIon IS that for purposes of ArtIcle 206 1 the "former headquarters" of a laid-off employee is the employee's headquarters at the tIme he or she receIved notIce of lay-off, whICh both partIes agree was HuntsvIlle In this case It says that a deCISIOn of arbItrator Briggs dated June 17, 1996 sup- ports the pOSItIon that rIghts under ArtIcle 20 are to be determined from a "snap- shot" of the facts as they eXIst on the date the lay-off notIce IS gIven. In any event, the employer says that the gnevor's headquarters locatIOn dId not change after he receIved hIS lay-off notIce, and remamed HuntSVIlle when hIS lay-off took effect. Decision The deCISIon of arbItrator Bnggs on whIch the employer relIes dealt WIth the bumpmg procedure under what IS now ArtIcle 204 That artIcle says that wlthm one week of gIVmg an employee notIce of lay-off, the employer must Iden- tIfy for that employee the "best" pOSItIOn mto whIch It then appears the employee could bump m accordance WIth search rules described m detaIl m that artIcle. - 5 - The employee then has one week to accept or reject that position. Of necessity, the position identified for anyone employee would exclude the "best bumps" Identified wIth simIlar search criterIa for more senior employees who were laid off at the same time The Issue before arbItrator BrIggs was whether, havmg gone through thIs process of Identifymg "best bumps" for a large group of em- ployees gIVen notice of lay-off at the same tIme, the employer was oblIged to go through a second round of matchmg, m whIch posItions rejected by employees m the first round were to be offered those who had been offered less desIrable POSI- tIons m the first round. ArbItrator BrIggs found that nothmg m the artIcle re- qmred the employer to go through the process more than once The entitlement afforded by the article consIdered m the BrIggs award had to be calculated ImmedIately upon notIce of lay-off bemg given. Naturally, that entItlement was assessed on the facts as they eXIsted when the notice was given. By contrast, any entItlement afforded by the provisIOn m question here IS only assessed, If at all, during the perIod after the employee's lay-off takes effect. In partIcular, any question about what the employee's "former headquarters" was only arIses after the lay-off takes effect. Accordmgly, the natural meamng of "former headquarters" would be the employee's headquarters at the time the lay- off took effect. It may be that, as a practIcal matter, the employee's headquarters IS unlIkely to change after notice of lay-off IS given. Still, the question IS what the grievor's "headquarters" was when the lay-off took effect. WIth respect to the factual dispute that arose durmg argument, neIther representative asked to reopen the eVIdentiary phase of the hearmg in order to introduce eVIdence as to who performed the work of the gnevor's pre-notice POSI- tlon at or after the tIme the pOSItIOn moved to Mldhurst. I am therefore oblIged to decIde thIS matter WIthout havmg any eVIdence before me that addresses that pomt. Havmg saId that, I should also say that I do not thmk that It matters m this case what work the grIevor was domg durmg Ius notlce penod. An employee's "headquarters" for purposes of the central and bargammg umt collectIve agreements IS somethmg that IS "assIgned" to hIm or her, as ap pears from the language of ArtIcle 12 2.2(b) of each of the 6 bargammg umt col- lectIve agreements In cases not governed by ArtIcle 11 of the central agreement, It appears that the employee's headquarters would be the locatIOn at whICh he or she ordmanly performs the work of the pOSItIon to whIch he or she has been ap- 6 ./ pomted. The assIgnment of headquarters is ImphcIt in the appomtment to the employee's current "regular" or "permanent" position. The location at which a posItion eXIsts is a distmguishmg feature of the position. two otherwise identical posItions at dIfferent locations are dIfferent positIons (see ArtIcle 6 6 1) When the gflevor receIved notice of dIsplacement and lay-off July 23, 1996, hIs headquarters was HuntsvIlle To obtam a declaratIOn that the gflevor's "former headquarters" for purposes of ArtIcle 206 is MIdhurst, the umon would have to show that at some time between the time It gave notIce of lay-off and the time when the lay-off took effect, the employer dId something that amounted to assIgnmg the gflevor a dIfferent headquarters. An employee's "headquarters" locatIOn does not change merely because the employer temporaflly reqUires hIm or her to work at some dIstance from the headquarters locatIOn associated WIth hIs or her pOSItIOn. ThIS IS so even if the work performed away from headquarters is the same as the work the employee performs at headquarters. If were otherwIse, provisions WIth respect to travel, accommodatIOn and meal expenses whIch become payable when an employee IS reqUired to work at a dIstance from hIS or her headquarters would be meamng less For the peflod of about three months durmg whIch the employer required that the grievor work in Midhurst, It paid him the allowances to whICh an em- ployee temporarily workmg at a dIstance from his headquarters would be enti- tled The employer dId nothing to aSSIgn the gflevor a new headquarters. The grIevor had been gIven notice of lay-off and dIsplacement from one of the perma nent pOSItions m the operation that was moved from HuntsvIlle to MIdhurst. HIs work m MIdhurst was temporary WhIle the umon asserts that the gflevor con tmued to do m MIdhurst the work of the posItion from whICh he had been gIven notice of dIsplacement and lay-off, It does not argue that AppendIX 13 reqUired the employer to offer the grIevor a change of headquarters. The umon has not IdentIfied any other collective agreement prOVISIon that reqUired the employer to aSSIgn the gflevor a dIfferent headquarters In short, the gflevor's assIgned headquarters as of July 23, 1996 was HuntsvIlle The employer dId nothmg to change that aSSIgnment before the gflevor's lay-off took effect on January 22, 1997 nor was it obhged to do so Ac- 7 - cordmgly, the grIevor's "former headquarters" for purposes of hIS recall rIghts under ArtIcle 20 6 IS HuntsvIlle ThIS grIevance is therefore dIsmIssed. Dated thIS 17th day of March, 1997 / ? ? ,. ~ if f;~~aA: Owen V Gray, Vice-C