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HomeMy WebLinkAbout1996-2779UNION97_04_04 OmAIIK) [ J,41'/ 'II' J'I j A L-I J/.IIIONN/ GIl< l\VN I AoII'j (1\ /1 S P/ t ')N Am GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (41(J) 320-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (410) 320-13~ GSB '# 2779/96 OPSEU # 97U008 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 community & Social Services) Employer BEFORE W Kaplan Vice-Chair FOR THE G Leeb/J Paul GRIEVOR Grievance Officers ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 1, 1997 ~ 2 Introduction ThIs matter first came before me on Apnl 1, 1997 at which time the union presented a motion requestmg, among other things,. an order staying the Issuing of certain surplus notices which were scheduled for the following day Given the urgency of the matter, the parties asked me to issue an oral decIsion which I did following the conclusion of the proceeding On Apnl 2, 1997, the Board issued this order in written form and that order, among other things, denied the union's request. The .following decision sets out in more detail the union's request, the submissions of the parties, and the reasons for my disposition on April 1 , 1997, issued, as just noted, in writing the following day It is useful to begin by briefly setting out some of the relevant facts Prince Edward Heights (hereafter "PEH") is a government-operated facility located in Picton providing services to adults with developmental handicaps On July 23, 1996, the Minister of Community and Social Services announced a four-year plan to move people with developmental disabilities back into their communities PEH is scheduled for closure by March 31, 1999 Funding for the care of PEH clients is to be redirected to local community agencies, and a schedule was establIshed for the winding down of operations On October 23, 1996, the Administrator of PEH, John HeWitt, Issued an "Update" to all employees indicating that as many as 70 clients of the facrllty would be transferred to the community by March 31, 1997 Employees were adVised that four areas would be closed down In phase one They were Fish lake Farm (which was already scheduled for closure under an eXisting management plan), HrliJer Home, Wellington Home, and Area 0 Fish lake Farm closed on December 31 , 1996 when 7 clients were placed 3 with various community agencies Hillier Home stopped operatmg on December 31, 1996 On January 20, 1997, a union gnevance was filed allegmg a violation of the collectIve agreement arising out of the closure of Fish Lake Farm None of the residential counselors assigned to work at Fish Lake Farm, or who were on leaves of absence from Fish Lake Farm, received surplus notices On March 7, 1997, another Update from the Administrator announced that Wellington Home and Area D would be closed next with their residents being transferred to other institutions by March 31, 1997 Employees were advised that further surplusing would occur at PEH on April 2, 1997 Thirty-four employees were scheduled to receive surplus notices on April 2, 1997 Other surplusing was scheduled at other facilities of this Ministry Of the thirty-four employees scheduled to be surplused, four or five have received job offers from broader publIc sector organizations, and are using vacation and other credits to bridge themselves to April 2, 1997 A number of other employees have also received job offers, but are not scheduled for surplus on April 2, 1997 These individuals have requested, but have been denied, unpaid leaves of absence On March 24, 1997, ~ union grievance was filed alleging that the employer had failed to comply with AppendiX 9 of the collectNe agreement. Another gnevance has been filed concerning tl~e employer's refusal to grant employees unpaid leaves of absence As the foregoing makes clear, some PEH employees have secured jobs with communIty organIzations as some of the dents were transferred to the local community The union takes the position that these Jobs were obtained without the assistance of the employer, that the employer has not made, as 4 It IS required to do under Appendix 9 of the collective agreement, reasonable efforts to assist employees in finding jobs The union, therefore, takes issue with the employer's refusal to allow those employees who have secured Jobs to obtain leaves of absence pending their receipt of a surplus notification thus depnving them of the benefits of the provisions of the collective agreement when their positions are eventually surplused That is why the third gnevance was filed Because of all of these events, the union appeared before a panel of the Board chaired by Mr R J Roberts on March 25, 1997 requesting, among other things, that the Board order a stay to the surplusing scheduled for April 2, 1997 It should be noted that the January 20, 1997 and March 24, 1997 grievances in this matter had already, by agreement of the parties, been scheduled to proceed before a panel chaired by me beginning on April 1 , 1997, and Mr Roberts was advised of that fact prior to his issuing a Board Order on March 25, 1997 The text of that order is as follows The Employer in this case is hereby ordered not to take any further steps to implement the surplusing of bargaining unit employees at the Prince Edward Heights facility in Picton, Ontario, until the end of the first day of hearing upon the merits of this case, which is currently scheduled for April 1 1997 At any time in the course of the hearing on April 1, 1997, the Union may request an extension of this order until the final determination of the merits of the grievances in this matter, and may apply for any further interim relief that, in its view, may be required. The January 20 and March 24 1997 grievances that w"ere placed before me are hereby directed to be consolidated for purposes of hearing and disposition. 5 All other applications for interim relief are hereby dismissed The Evidence Mr Carl Yates is the president of the local union and he has considerable expenence in Job security He testIfied that employees who were surplused would, more likely than not, move long distances in order to obtain employment in their chosen field given the absence of opportunities within a commuting range of PEH A review of the Ministry seniority list indicated that employees scheduled for surplus who exercised bumping rights would, in fact, be required to move long distances. Mr Yates also testified that the union would ask, in monthly ERC meetings, about the employer's efforts to find employees jobs, and in response it was referred to officials at the Area Office in Kingston who only provided the local with a copy of a letter that had been written to a community organization informing it that clients were being placed in the community and suggesting that it consider hiring PEH staff According to Mr Yates, he has been advised by at least one local organization that PEH has done nothing to assist in the placement of PEH employees On a joint PEH-Iocal union initiative, a job fair was, however, held Needless to say, Mr Yates and Mr Robert Cook who also testified on behalf of the union, were aware that PEH was scheduled for closure on a phased in basIs, and they were aware of this no later than July 1996 when the Minister made his announcement. However, what neither Mr Yates nor Mr Cook knew was the exact tlmmg of the surplusing that would result, and as Mr Cook testified, It was only In early March 1997 that the unIon and employees learned what was scheduled for April 2, 1997 Soon thereafter a grievance was filed Mr Cook noted that when Fish Lake Farm was closed, no 6 staff received surplus notices as the affected employees were Integrated Into ongomg operations Finally, Mr Hewitt testified on behalf of management. According to Mr Hewitt it was necessary to surplus employees because the transfer of numbers of clients to community organizations resulted in a decreased need for staff If the thirty-four employees scheduled for surplusing were not, because of a stay, surplused, PEH would have, Mr Hewitt testified, thirty-four more employees on payroll than it required as there were no vacancies at PEH This would have negative repercussions from a financial perspective It could also, Mr Hewitt maintained, detrimentally affect some employees who had secured employment with a local community organizations and who were bridging their employment status with PEH until April 2nd In cross-examination, Mr Hewitt agreed that one likely result of refusing employees who had secured jobs with other agencies an unpaid leave of absence, employees who were not now being surplused, was to require those employees to resign their employment with PEH Should their positions subsequently be declared surplus, these employees would miss out on some of the benefits of the collective agreement. Union Submissions The union's principal submission was that I should direct that the Order Issued by Mr Roberts continue until the merits of this matter had been finally determined Union representatives reviewed a number of authontles setting out the Board's power to award Interim relief and following that review took the position that this was an appropnate case In which to do so Various reasons were given in support of this submission first, It was 7 clear that only by staying the Impending surpluslng could the status quo be preserved so as to ensure an appropnate remedy at the conclusion of the case A large number of indivIduals were affected, and as those people, and others also being surplused on April 2nd elsewhere within the Ministry, exercised their rights, the potential for chaos increased, as did the difficulty, at the end of the day, should the union prove successful, in undoing what was already done In further support of its submissions, the union noted that it acted quickly upon receiving notification that employees were actually going to lose their jobs and not only was a grievance filed, so too was an application for interim relief A stay was, in the union's view, all the more necessary because the employer had not even come close to meeting its obligations under Appendix 9 One appropriate remedy, should that conclusion be reached, was a cessation on surplusing until such reasonable efforts had been made QUite clearly, in the union's view, the balance of harm lay with the union given the consequences that were sure to now be felt by affected employees, and those consequences to the union and to individual employees were both significant and compelling On the other hand, the worst case for management was that it would have some additIonal staff on duty pending the outcome of the case In balancing these interests, there was, in the union's View, little contest for it was clear that It was the union and its members who would face the greatest potential harm and negative consequences Once again, the only way to avoid those results was to continue the order given by Mr Roberts, and In that regard reference was 8 made to that order, and to two other cases, t::l!.el.d #1 (1471/96) Roberts and ~ #2 (1471/96) McKechnie In ~ #1, the Board granted Interim relief In ~ #2, another panel of the Board extended that relief without inquiring again Into the basis upon which it had initially been granted Those cases were, the union argued, governing and the same process, given the earlier Roberts decision cited above, should be applied in this case Employer Submissions In the employer's submission the Order issued by Mr Roberts, set out above, provided no relief whatsoever to the union as Mr Roberts was very well aware when he issued it that the matter was already scheduled to proceed before me on April 1 , 1997, and that the first round of surplusing would not begin until April 2, 1997 Accordingly, there was nothing in the order that could be or should be continued With respect to the union's principal request, the employer took the position that it should be denied In support of this position a number of submissions were made to the effect that the Board should consider adopting a new test for the granting of interim relief, namely the one set out in Rp Religious Hospitallers of Hotel-Die of St. Joseph of Diocese of London and Ontano Nurses Association 48 L.A C (4th) 180 (McLaren) In the alternative, and applying the Board's traditional test, the employer took the position that while there was obviously an arguable case, the balance of potential harm did not reqUire the stay being sought by the union, particularly since granting that order would deprive some employees of their co!lectlve agreement rights, and would thus be contrary to the collective agreement. The employer also argued that there were other less 9 intrusive means available to balance the competing Interests In the employer's View, If It was determined at the end of the day that reasonable efforts were not made, that some employees were surplused before they should have been, or that other breaches had occurred, all of this could be remedied wIth a compensation order Indeed, there were additional reasons, employer counsel argued, for not granting the stay The union knew as early as July 1996 that PEH was being closed, if it had concerns about reasonable efforts not being made it could have raised them much earlier than on the eve of the first phase of surplusing What did not make sense, counsel argued, was to grant a stay in cases of this kind since it was both obvious and axiomatic that the parties would, in virtually every instance, disagree about whether reasonable efforts had been made The provision was, the employer observed, a new one in the collective agreement and it would, accordingly, take some considerable time for a jurisprudence to develop In the meantime, counsel suggested, the only sensible way of proceeding was to adjudicate these gnevances as they arose and, if and when they were successful, provide appropnate relief Intenm relief of the kind being sought by the union in thiS case should, in the employer's submission, be reserved, if at all, only for the most extraordinary case There was nothing, counsel noted, in Appendix 9 or elsewhere in the collective agreement that entitled the union or its members who were being surplused to keep their jobs while gnevances taking Issue WIth Appendix 9 or any other provIsion of the collective agreement, were proceedmg to a heanng, or were already at a hearing before the Board The employer therefore asked that the request be dismissed 1 0 Order and Reasons for Decision My order in this matter was released by the Board on Apnl 2, 1997 In bnef, I dismissed the union's application for a stay on the scheduled surplusing, I directed the employer to keep careful records of all surplusing that did occur in order to provide a proper basis for determining appropnate remedIes should one or more of the gnevances prove successful, I ordered the employer to make regular reports to the local union on its efforts to secure employment for PEH employees, I consolidated a third grievance, the one dealing with the employer's refusal to grant employees unpaid leaves of absence with the two grievances already before me, and I directed that this matter proceed in an expedited fashion so that a decision could and would be issued in advance of the next scheduled surplusing round I also left open the opportunity for the union to appear before me on an expedited basis to renew its request for a stay, or to seek such other relief as it then considered appropriate, should the next, and already scheduled, round of surplusing be advanced At the outset of these reasons for decIsIon I must point out that there IS no evidence whatsoever In thiS case of the union sitting on its rights While It knew as early as July 1996 that PEH was to be closed, it did not receive any direct information that bargaining unit members were to be surplused untIl March 1997 After receiving that mformatlon, a grrevance was filed, and It IS clear that the union has actively attempted to preserve ItS members' fig hts Having said that, I must also say that thiS is not, In my View, an appropriate case to stay the surplus:ng and that IS why I denIed the union's request on April 1, 1997 1 1 Employer counsel invited me to adopt a new test for the granting of Intenm relief While each case will obviously have to be cons:dered on its own facts, I can see no reason, in thIs one, to depart from the Board's long-established policies and jurisprudence, policies and jurisprudence which are also found and widely accepted elsewhere in our system of labour relations That generally accepted jurisprudence sets out a two-fold test IS there an arguable case, and what is the balance of potential harm or inconvenience As has been set out by the Board (see, for example, Stewart 1000/94 (Gorsky), the granting of interim relief is not limited to rare or exceptional circumstances Interim relief will be granted where, applying the long-established principles set out in the authorities, one party or the other has made out an appropriate case In this case, I can only conclude that if the union is successful on one or more of the grievances that an appropriate remedy can be devised and implemented that will make individual employees whole For example, given the order issued on April 1, 1997, it will be possible, should the union prove successful in one or more of its grievances, to undo what was done pending the issue of a final award That was not possible, given the time delay, In Whiteside/Stewart et al 330/92 It should also be noted this case will be scheduled, heard and decided in an expeditious fashion That was not the situation in Beatty et a11135/93 Finally, I am of the vIew that the order issued by Mr Roberts on March 25, 1997 expressly reserved to me both the right and the responslbiiJty of determining whether the scheduled surpluslng should be stayed In that way, this case IS qUite different from ~ #2, an authority relied on by 1 2 the union which IS, In any event, qUite distinguIshable gIven that NllitQ #1 , unlike the Roberts decIsion set out above, was a decIsion, not an order of the Board Any fair reading of the Roberts order Indicates Its Inherent limitations and Its express intention that the substance of the Issue, namely, the request for a stay, be put before me Besides, the Roberts order is Just that an order It is not a decision and it IS not, accordingly, governing as per Blake Accordmgly, and for the foregoing reasons, the union's request for a stay of the surplusing scheduled for April 2, 1997 was denied DATED at Toronto this 4th day of April 1997 ~11r---- William Kaplan Vice-Chairperson