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HomeMy WebLinkAbout1996-2670UNION97_05_14 .~ 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 ON M5G 1ZS TELEPHONE/TELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41tJ) 32tJ-13~ GSB # 2670/96 OPSEU # 97U007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - the Crown in Right of Ontario (Ministry of Transportation & Management Board Secretariat) Employer BEFORE R J Roberts Vice-Chair FOR THE C Walker GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P Toop EMPLOYER Staff Relations Officer Management Board Secretariat HEARING May 10, 1997 -- ~ ,/ 1 AWARD ThIS arbItratlOn arose out of a polley gnevance that was filed by the umon on January 16, 1997, m response to a umlateral polIcy of the employer That polley was to WIthhold from the displacement process certam "threatened" posltlOns These were posltlOns whose mcumbents were scheduled to receIve notIce of layoff wIthm the sIx-month notIce penod of an already- surplus sed employee Accordmg to the employer, the surplus employee was barred from bumpmg Into these pOSItIons. ThIS polIc'r was establIshed In the QuestlOn and Answer (Q&A) sectIOn ofInterpretlve BulletIn 2 a document produced by the employer to gmde MInIstnes through the dIsplacement nghts provIsIOns of the collectIve agreement. The pertInent Q&A read as follows Q What happens If the least semor employee m a surplus employee's class IS holdmg a posItlon that has been IdentIfied for future abolItIOn I Will the surplus employee be allowed to bump mto a 'threatened" posItlOn I ~/ / 2 A If a mmlstry mtends to gIve notIce of lay-off to the "Job-threatened" employee before the surplus employee's ongmallay-off date and thIS mtentIOn has been dIsclosed to the mmIstry's ERC, bumpmg WIll not be allowed. But, If the mImstry WIll not gIVe the "Job-threatened" employee notIce of lay-off untIl after the surplus employee's ongmallay-off date, the surplus employee WIll be allowed to exerCIse hIs/her nght to bump When telhng the surplus employee he/she can bump a "Job-threatened" employee, you should pomt out the posItIOn IS hkely to be abohshed wIthm a specIfied tIme It IS only falf to gIve the surplus employee as much detail as possIble so he/she can make an mformed declSlon. Accordmg thIS InterpretIve Bulletm, a surplus employee was only allowed to bump a "Job- threatened" employee when the latter was not scheduled to receIve notIce of layoff untIl after expIratIOn of the surplus employee's sIx-month notIce penod. At the heanng, both partIes agreed that the dIsplacement provlSlons of the collectIve agreement dId not expressly Impose thIS sIx-month restnctIOn upon the fight to bump mto a "threatened" pOSItIon. They also agreed that the most relevant prOVIsIOns of the collectIve agreement were as follows ARTICLE 20 - EMPLOYMENT STABILITY 20 4 DISPLACEMENT 20 4 1 An employee who has completed hIS or her probatIOnary penod, who has receIved notIce oflay-off pursuant to ArtIcle 20 2 (NotIce and Pay m LIeu) and who has not been assIgned 10 accordance WIth the cntena of artIcle 20 5 (Redeployment) to another pOSItIOn shall have the nght to dIsplace an emplovee who shall be IdentIfied by the Employer In the follow111g manner' ~ 3 (G) No later than one (1) week followmg commencement of the notIce penod, the Employer wIll advIse the surplus employee of the posItIon mto WhIch he or she IS elIgIble to dIsplace Counsel for the employer submItted that the thrust of ArtIcle 20 was to provIde a degree of stabIlIty m the workforce In lIght of thIS, It was mcumbent upon the employer to define the word "posItIOn", as used m ArtIcle 204 1, to mean a relatIvely stable posItIOn, and that was what the sIx-month restnctIOn dId. Counsel for the umon submItted, on the other hand, that the word "posItIOn" meant Just that. It embraced every posIton that a surplus employee could have bumped mto at the tIme of notIce of surplus, no matter how "threatened" that posItIOn was In a forceful and eloquent argument, counsel for the employer pOInted out that when the partIes negotIated the collectIve agreement, they could not have Intended to have surplus employees bump more Jumor employees who were about to receIve surplus notIces themselves That had the potentIal to create, It was submItted, an admmIstratIve mghtmare of fruItless multIple bumpIng and chaotIC labour relatIOns The sIx-month restnctIOn, counsel submItted, must have been Intended by the partIes to be the cntenon of stabIlIty to apply to "threatened" posItIOns because SIX months was speCIfied In artIcle 20 2 1 of the collectIve agreement as the duratIOn of the notIce penod for surplus employees Refernng to the one-bump rule of the employer that was upheld In Re Union Grievance and Ministry of Natural Resources &. ManaRement Board Secretarzat (1996) G S B No 318 OPSEU No 96U051 (Bnggs), counsel mdIcated that It was also the pOSitIOn of the '" 4 employer that an employee only was permItted to bump once In hIS or her sIx-month notIce penod. If a surplus employee bumped mto a posItIOn that was abolIshed m a subsequent round of surpluSSIng wIthIn hIS or her notIce penod, counsel suggested, he or she would not have the nght to partIcIpate In a second round of bumpIng. In all lIkelihood, the employee would be forced to leave the government serVIce Counsel for the umon vIgorously dIsagreed wIth thIS suggestIOn. He stated that the "one bump wIthIn a notIce penod" Issue was unresolved between the partIes and on that Issue, the posItIOn of the umon was that the surplus employee would be unaffected If the Job he or she bumped mto was abolIshed In another round of surpluSSIng WIthIn hIS or her sIx-month notIce penod. The employee would be entItled to partICIpate fully In the round of bumpIng that would follow the surplussmg For hIm or her, the dIsplacement process would merely start all over agaIn. Refernng to a number of cases In whIch the words of the collectIve agreement were stnctly construed accordIng to theIr plaIn meanmg, mcludIng Re Union Grievance and Ministrv of Natural Resources (1996) G S.B No 318/96 (Bnggs) and Re Penney and Ministry ofNaturul Resources (1997) G S.B No 697/96 (Venty), counsel for the umon reIterated hIS pOSItIon that the plam meanIng of the word "pOSItIOn" was Just that. any pOSItIOn that eXIsted at the tIme of notIce of surplus, no matter how "threatened" It mIght be There was no room, It was submItted, for applYIng any mInimUm cntenon of stabIlIty, let alone a sIx-month cntenon, before makIng a "threatened pOSItIOn aVailable for purposes of bumpIng m the dIsplacement process ~ ~ 5 HavIng gIven due consIderatIOn to the submIssIOns of the partIes, I find myself attracted to the essence of the submIssIon of counsel for the employer When the partIes negotIated the dIsplacement provIsIOns of the collectIVe agreement, they embarked upon what ArbItrator Bnggs SUCCInctly charactenzed as a "herculean task." Ministry of Natural Resources & Management Board Secretariat, supra, at 17 They had to "arnve at an orderly and fair process for maSSIve lay-offs WhIch would encompass every MInIstry and reach employees In each corner of the provInce" Id. ThIs obJectIve would be thwarted If every "threatened" pOSItIon was made aVailable for purposes of bumpIng. The partIes could not have Intended to have surplus employees bump more JUnior employees who were about to receIve surplus notIces themselves a few days or weeks later They must have Intended the word "posItIOn", as used In ArtIcle 20 4 of the collectIve agreement, to be gIven a reasonable constructIOn. ThIS would Involve applYIng a cntenon of reasonable permanence or stabIlIty to a "threatened" pOSItIOn before makIng It aVailable for purposes of bumpIng under ArtIcle 20 4 1 At the same tIme, however, I cannot approve the sIx-month cntenon of stabIlIty that the employer seeks to apply before makIng a "threatened" pOSItIOn aVailable under ArtIcle 20 4 1 ThIS would have qualIfied as a reasonable cntenon of stabIlIty If It had already been agreed or decIded that a surplus employee \-Vas only permItted to bump once dunng hIS or her sIx-month notIce penod As counsel for the employer pOInted out, thIS would mean that If a surplus employee bumped Into a threatened" posItIon that was later abolIshed withIn hIS or her SIX- ~- 6 month notIce penod, he or she would not have the nght to make another bump Instead, the employee lIkely would be forced to leave the government serVIce The partIes could not have Intended to VISIt thIS severe consequence upon surplus employees. To aVOId It, It would make sense to wIthhold from the bumpIng process the posItIons of employees who were scheduled to receIve surplus notIces wIthIn the sIx-month notIce penod of an already- surplus sed employee In theIr submIssIOns, however, the partIes made It clear that the "one bump wIthIn a notIce penod" Issue remaIned at large between them. The employer asserted that only one bump was permItted wIthIn the notIce penod. The umon vIgorously demed that thIS would be the case Both partIes IndIcated that they were not prepared to have the Issue determIned In thIS arbItratIOn. In lIght of the uncertaInty that presently eXIsts upon the Issue, I cannot regard the sIx-month notIce penod as a reasonable cntenon of stabIlIty to apply before makIng a "threatened" posItIOn aVailable under ArtIcle 20 4 1 I thInk It goes wIthout saYIng that It IS cntIcal to the orderlIness and faIrness of the dIsplacement process to establIsh a reasonable cntenon of stabIlIty There must be a mutuallv agreeable standard for the employer to apply when determInIng whIch "threatened" posItIOns to make avaIlable for purposes of bumpIng under ArtIcle 20 4 1 OtherWIse, the process mIght become bogged down In a swamp of gnevances It IS my recommendatIOn that the partIes meet at the earlIest pOSSIble tIme to resolve thIS Issue 7 I wIll retaIn JunsdIctIon of the matter pendIng thIs determInatIOn. Dated at Toronto, Ontano thIS l4th day of May, 1997