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HomeMy WebLinkAbout1998-1154.Union.00-05-18 Decision o NTARW EMPU)Y]ks DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1154/98 OPSEU # 98U086 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uruon (Uruon Gnevance) GIievor - and - The Crown III RIght of Ontano (Mirusm of the SolIcItor General and CorrecTIonal ServIces) Employer BEFORE Deborah ID LeIghton Vice ChaIr FOR THE DavId Wnght GRIEVOR Counsel R, der Wnght, BlaIr & Do, Ie Bamsters & SolIcItors FOR THE DavId Strang EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING Juh 8, 1999 March 28 2000 On July 10 1998 OPSEU filed a umon gnevance allegmg that the employer had vIOlated the redeployment provIsIOns of the collectIve agreement, mcludmg AppendIx 13 m ItS surplussmg and assIgnment of staff after the closmg of three JaIls - Cobourg JaIl, HaIleybury JaIl and L'Ongmal JaIl The JaIls were closed m July 1998 The partIes agreed to proceed to oral argument after the mtroductIOn of documentary eVIdence only The Issue before me IS whether AppendIx 13 "RelocatIOn of an OperatIOn Beyond a 40km RadIUs" applIes to the three closures If I find It does apply I am to remam seIzed to address the Issue of remedy The umon's posItIOn IS that the operatIOn or work of the three JaIls was moved to other locatIOns and therefore AppendIx 13 applIes AppendIx 13 provIdes employees wIth the nght to move wIth the operatIOn or reject the move and take the nghts and provIsIOns under ArtIcle 20 The Issue at the core of the case IS what IS "an operatIOn's headquarters?" Is It the work or IS It the facIlIty? The employer's posItIOn IS that AppendIx 13 does not apply because "operatIOn's headquarters" does not mean Jobs and functIOns or the language of the ArtIcle would provIde thIS AppendIx 13 only applIes when a "functIOmng or cohesIve umt" IS moved to another locatIOn, accordmg to the employer The three mstItutIOns WhICh were closed were JaIls and as such were used as remand facIlItIes for partIcular courts Once mmates are sentenced they are generally transferred to other mstItutIOns, dependmg on the mdIvIdual's classIficatIOn. Remand facIlItIes are also used to house mmates sentenced up to 90 days and those servmg mterrmtlent sentences, for example on the weekends These servIces are provIded locally throughout the provmce 2 After cloSIng the JaIls, the servIces provIded by the three InstItutIOns were moved to other locatIOns The work stIll has to be done The employer acknowledged that there has been no drop In the cnme rate for the catchment area ongInally served by the three JaIls The Peterborough and LIndsay JaIls now serve the courts ongInally served by the Cobourg JaIl North Bay JaIl serves the courts ongInally served by HaIleybury JaIl, and Ottawa Carleton DetentIOn Centre now serves the courts L'OngInal JaIl served prevIOusly Documentary eVIdence showed that the Inmate populatIOn In July 1998 was transferred to vanous InstItutIOns There was also eVIdence of where staff ended up after the closures, WhICh for reasons that wIll be noted later In the decIsIOn, was not of assIstance to me In decIdIng the matter The eVIdence of transfers of Inmates was put Into the record to show that the work IS stIll beIng done The employer sImply moved where the work IS beIng done SInce the employer agreed that the work was stIll beIng done - the courts were stIll beIng served and there was no reductIOn In cnme - I have not summanzed the detaIled eVIdence put before me of where each Inmate was transferred. Mr DavId Wnght argued for the uruon that AppendIx 13 should have applIed to the closure of the three JaIls He submItted that when the employer decIdes there IS no more work then ArtIcle 20 applIes If the employer decIdes to dIvest the work then AppendIx 9 applIes If the employer moves the locatIOn of work then AppendIx 13 applIes AppendIx 13 provIdes The Employer and the Uruon herewIth agree that, when a mInIstry decIdes to change an operatIOn's headquarters to a locatIOn outsIde a forty (40) kIlometre radIUs of that operatIOn's current headquarters, the folloWIng terms and condItIOns wIll apply (1) affected employees wIll be notIfied, In wntIng, of the mImstry's decIsIOn to change the operatIOn's headquarters locatIOn and the date when such change wIll take place 3 (2) (a) employees may accept the change In headquarters locatIOn, In WhICh case they wIll be elIgIble for reImbursement of relocatIOn costs In accordance wIth the Employer's relocatIOn polIcy or (b) employees may reJect the change In headquarters locatIOn, In WhICh case they wIll be gIven SIX (6) months' notIce of lay-off pursuant to ArtIcle 20.2 1 (NotIce and Pay In LIeu) and have full access to the provIsIOns of ArtIcle 20 (Employment StabIlIty) and AppendIx 9 (Employment StabIlIty) of the CollectIve Agreement. (3) If several employees hold the same posItIOn and fewer of theIr posItIOns are reqUIred In the new headquarters locatIOn, the employees wIth the greatest semonty wIll be gIven the opportumty to go to the new headquarters locatIOn first. (4) It IS understood that when an employee accepts the change In headquarters locatIOn In accordance wIth thIS Memorandum of Agreement, the provIsIOns of ArtIcle 6 (PostIng and FIlIng of VacanCIes or New PosItIOns) shall not apply Mr Wnght argued that AppendIx 13 gave affected employees the chOIce to move wIth the work or be declared surplus He noted that AppendIx 13 was negotIated at the same tIme as the partIes agreed to AppendIx 9 WhICh has come to be called the "Reasonable Efforts" provIsIOn. Counsel submItted that It does not make sense that employees whose work contInues, but IS moved beyond 40km, have fewer nghts than employees whose work IS dIvested. That would be the case If the board accepted the employer's argument that AppendIx 13 does not apply here, In hIS VIew Counsel for the umon also noted that AppendIx 13 antIcIpates the possibIlIty of fewer posItIOns after the transfer of the work. He argued that the fact that the operatIOn has not been moved precIsely as It was In the old locatIOn does not matter He urged me to find that It IS the work that matters, not some concept of an operatIOn as physIcal plant. SInce thIS IS a case of first Instance, counsel provIded defimtIOns from Webster's New RiversIde UmversIty DIctIOnary and Black's Law DIctIOnary of the word "operatIOn." Headquarters has been Interpreted, but not for AppendIx 13 Counsel cIted OPSEU (Launn/Joly and Mimstry of Tounsm and RecreatIOD, 1759/90 (Venty) for the proposItIOn that "headquarters" refers to where an employee works 4 In conclusIOn, counsel urged me to find that AppendIx 13 applIes to the closure of Cobourg, HaIleybury and L'OngInal JaIls Counsel for the employer Mr DavId Strang, argued that AppendIx 13 does not apply to the cloSIng of the three JaIls It only applIes when a functIOrung urut IS moved to another locatIOn. Counsel noted that there was no correlatIOn between where the Inmates from the closed JaIls were placed and where the employees transferred. He dIsagreed wIth the umon's posItIOn that the operatIOn was moved when Inmates went one way and the employees went another The only correlatIOn wIth Inmates and employees was the transfer of Inmates and employees to the Ottawa Carleton DetentIOn Centre from L'OngInal JaIl Counsel argued that the umon was askIng for a maSSIve change In InterpretIng the collectIve agreement. He urged me not to read AppendIx 13 as separate to ArtIcle 20 rather he submItted AppendIx 13 should be Interpreted as part of ArtIcle 20 Thus the questIOn to ask In counsel's submIssIOn IS If the employees have been declared surplus because there IS no more work or because the work has moved. He argued that AppendIx 13 ShIftS nghts as much as It grants nghts He argued by way of example that the employer could decIde to transfer workers from WhItby to KIngston. Even If the workers In WhItby were Jumor to KIngston workers they would get the Jobs and relocatIOn expenses He was also of the VIew that If the employer wanted to move certaIn work from Toronto to KIngston, It could layoff all the workers In Toronto and hIre new employees In KIngston. In counsel's submIssIOn, the nghts under AppendIx 13 are nghts of the employer If the employer decIdes to transfer an operatIOn, then It has to pay relocatIOn expenses 5 Counsel argued further that other references In the collectIve agreement to headquarters are to an employee's headquarters, as In ArtIcle 11 Mr Strang cIted OPSEU (MacIntosh) and The Mimstry of Natural Resources, 2587/96 (Gray) to support the argument that an employee's headquarters does not change unless the employer changes It. He also relIed on OPSEU (Umon Gnevance) and The Mimstry of CorrectIOnal ServIces, 2417/92 (Kaplan) The uruon In thIS case argued that the work of the JobbIng shop at Millbrook CorrectIOnal Centre was transferred to Guelph CorrectIOnal Centre The board found that the JobbIng shop was downsIzed and closed. Counsel submItted that the surplus provIsIOns In the Red Book (collectIve agreement, January 1 1994 to December 31 1998) fundamentally changed the Green Book, the prevIOUS collectIve agreement. AppendIces 9 and 13 are the successors of ArtIcle 24 17 of the Green Book. Counsel asked me to compare the language of AppendIx 9 to AppendIx 13 AppendIx 9 provIdes l(a) The Employer wIll make reasonable efforts to ensure that, where there IS a dISposItIOn or any other transfer of bargaInIng umt functIOns or Jobs to the pnvate or broader publIc sectors In hIS submIssIOn, If the partIes had Intended that AppendIx 13 apply to the transfer of functIOns and Jobs beyond 40kms then they would have used such language In AppendIx 13 ThIS dIfference In language IS sufficIent to conclude that the IntentIOn of the partIes was dIfferent In each AppendIx. There IS a dIfference between functIOns and work and "operatIOns" He cIted Parnell Foods Ltd., a decIsIOn of the Labour RelatIOns Board In support of the argument that AppendIx 9 was beIng agreed to In the wake of Parnell, WhICh decIded the uruon had no successor nghts and reJected the uruon's functIOnal analysIs argument. 6 Counsel submItted further that operatIOn means more than work and IS dIfferent to the facIlIty In counsel's submIssIOn It IS a group of employees that IS a coheSIve umt. There IS a dIfference between mOVIng a cohesIve umt and, as In the case before the board, mOVIng employees and Inmates for example from L'OngInal to Ottawa Carleton DetentIOn Centre where there was no change In the operatIOn of 0 C.D C Counsel concluded that the gnevance should be dIsmIssed. Counsel for the umon argued In reply that the Issue before me IS whether or not the employees of the three J aIls get the nghts provIded under AppendIx 13 He argued that whether the employer chooses to say the headquarters are transferred or how the employer labels what has been done does not matter He agreed wIth Mr Strang that AppendIces 9 and 13 are the successors of ArtIcle 24 17 of the Green Book. ArtIcle 24 17 also provIded nghts to employees where an operatIOn was relocated. He submItted that whIle AppendIx 9 addressed Issues of contractIng out, AppendIx 13 dealt wIth the relocatIOn of an operatIOn. And the language of AppendIx 13 IS almost IdentIcal to ArtIcle 24 17 on relocatIOn of an operatIOn. Therefore, the argument that AppendIx 13 should have referred to Jobs and functIOns IS wIthout ment. Mr Wnght argued that the Uruon Gnevance (Kaplan) was helpful because the board finds that work IS the operatIOn, there was Just no eVIdence that the work was transferred. Here the work has been transferred. It doesn't matter that there was no need for a new facIlIty The reason there IS no correlatIOn between where Inmates and staff were sent was because the employer dId not follow AppendIx 13 7 DECISION AppendIx 13 was first negotIated Into the collectIve agreement dated January 1 1994 to December 31 1998 The partIes dIsagree as to Its meamng and have asked the board for an InterpretatIOn. No extnnsIC eVIdence as to the IntentIOn of the partIes was Introduced. I am beIng asked to Interpret the provIsIOn In the context of the whole collectIve agreement, USIng the plaIn language of the appendIx and certaIn polIcy consIderatIOns At the core of the case IS the meamng of "an operatIOn's headquarters" The partIes agree and It IS well establIshed that headquarters refers to the place or locatIOn where an employee works The partIes strongly dIsagree as to what an "operatIOn" means The dIctIOnary defimtIOns are helpful In thIS regard. Webster's notes that operatIOn IS ongInally denved from LatIn operan, WhICh means to work. The defimtIOn provIdes 1 An act, process, or way of operatIng. 2 The condItIOn of beIng operatIve or functIOmng (in full operatIOn) 3 A process or senes of acts aimed at produCIng a desIred result or effect (the operatIOn of cleamng the house for the party) 4 A method or process of productIve actIvIty (emphasIs added) Counsel for the employer also provIded a useful defirutIOn from The DIctIOnary of CanadIan Law [OperatIOn] "may be gIven two dIStInct meanIngs - a wIder meamng when used figuratIvely (as where a person operates a fleet of vehIcles by orgamZIng a system of actIvIty, wIthout necessanly dnvIng any of the vehIcles hImself) and a more narrow meamng restncted to the physIcal acts or omISSIOns of the operator of a vehIcle whIle It IS beIng dnven." (emphasIs added) The 'operatIOn' of the three JaIls fits best under the first part of the defirutIOn cIted by the employer or the fourth noted by the umon. 'OperatIOn' In thIS case Includes the Idea of an orgamsed system of actIvIty or a process of productIve actIvIty ProductIve actIvIty certaInly 8 suggests the Idea of work. PuttIng the two Ideas together I am persuaded that an "operatIOn's headquarters" IS best understood as the locatIOn for productIve actIvIty I am not persuaded that "an operatIOn's headquarters" refers only to a cohesIve and dIStInct urut or partIcular people NothIng In the defimtIOns suggests thIS InterpretatIOn. The employer agreed that operatIOn dId not mean "facIlIty " The operatIOn or productIve actIvIty of Cobourg, HaIleybury and L'OngInal JaIls was to provIde remand servIces to certaIn partIcular courts, servIng a partIcular catchment area. The eVIdence IS clear that thIS productIve actIvIty or work has not dIsappeared - the employer conceded that there had been no drop In the cnme rate for these areas and the work was stIll beIng done The eVIdence IS clear that the work has sImply been moved. The uruon acknowledged that thIS was wIthIn the employer's nghts However once the employer moves the operatIOn's headquarters to locatIOns beyond 40 kms, the employer IS bound by the plaIn language of AppendIx 13 Mfected employees have the chOIce to move wIth the work or be declared surplus MOVIng the work of one headquarters In ItS entIrety to a larger InstItutIOn, or splIttIng It between several new or old InstItutIOns does not extIngUIsh the nghts under the AppendIx. Further the operatIOn of AppendIx 13 cannot depend on whether the employer decIdes to transfer employees to the new locatIOn or not. As acknowledged by the uruon In mOVIng an operatIOn's headquarters, there may well be fewer Jobs There may well be dIfferences In how the work IS camed out. ThIS conclusIOn IS consIstent WIth other provIsIOns In the collectIve agreement. If there IS no more work then ArtIcle 20 and all ItS nghts are tnggered. If the employer decIdes to dIvest the work then AppendIx 9 applIes And If the employer decIdes to move where the work wIll be 9 done beyond 40kms then the nghts under AppendIx 13 must apply It would not make sense that employees whose work IS dIvested have greater nghts than those whose work IS moved beyond 40 kms In conclusIOn, havIng carefully revIewed and consIdered the submIssIOns of the partIes, I have concluded that AppendIx 13 applIes to bargaInIng umt employees whose work or servIces remaIns In the Ontano PublIc ServIce, but IS moved to a locatIOn over 40kms ThIS was the case for the bargaInIng urut members when the facIlItIes at Cobourg JaIl, HaIleybury JaIl and L'OngInal JaIl were closed and the work was transferred to other eXIstIng facIlItIes I, therefore, make the declaratIOn that AppendIx 13 applIes to the bargaInIng umt members of the three JaIls I shall remaIn seIzed of the gnevance to address the Issue of remedy as may be reqUIred by the partIes Dated at Toronto thIS 18th day of May 2000 ~ -.: -- -- 'Z.,. . . .. . ) . .1 .. . ':. ._ , " . I. n '"_- .:s. DJ.D LeIghton, Vice-Chair 10