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HomeMy WebLinkAbout1998-1785.Union.99-02-04 Decision . ~ , f OIVTARJO EMPLOYES DE LA COURONNE . CROWN EMPLOYEES DE L'OIVTARJO , 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (415) 325-1388 180. RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (415) 326-1395 GSB # 1785/98 OPSEU 99UO 10 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uruon (Umon Gnevance) Union - and - The Crown In Right of Ontano (Mirustry of Commumty and Social ServIces) Employer BEFORE RIchard M. Brown V Ice-Chair FOR THE DaVId Wnght UNION Counsel Ryder Wnght Blair & Doyle BarrIsters & SolIcItors FOR THE DavId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING February 18, 1999 . . ~ , ThIS IS the first arbItratIOn under the memorandum of settlement, dated December 14 1998, codIfymg the employer's "reasonable efforts" oblIgatIOns when functIOns prevIOusly performed m the OPS (Ontano Pubhc ServIce) are transferred to the broader publIc sector or the pnvate sector The umon contends certam transfers have been Improperly placed on Schedule D I " The memorandum of settlement was negotiated agamst the backdrop of AppendIx 9 to the 1994-98 collective agreement and the case law mterpretmg that appendIX. ArtIcle 1 1 2 of the memorandum states ThIS Agreement represents a full and complete mterpretatIon of the matters ansmg under paragraphs 1, 4 and 5 of AppendIx 9 All nghts and obhgatIOns contamed m paragraphs 1, 4 and 5 of AppendIx 9 are governed by the provISIOns of thIS agreement. The memorandum dIvIdes transfers mto four categones referred to as schedules A through D The extent of the employer's obhgatIOn vanes substantially across these categones ThIS gnevance IS prompted by the Impendmg transfer of case files from the Mimstry to mumcIpal dehvery agents pursuant to the Soclal Asslstance Reform Act, 1997 The employer has placed the transfers to some mumcIpalItIes on Schedule B and the transfers to others on Schedule D The umon contends SIX transfers put on Schedule D do not belong there ArtIcle 6 of the memorandum spells out what the employer must do when a transfer occurs under Schedule B 6 1 1 For all Schedule B transfers, excludmg those covered by ArtIcle 6 3, the employer wIll propose m negotiatIOns WIth the receIvmg employer that Job offers shall be at a salary of at least 100% of the :2 . ~ , respectIve employee's weekly salary at the tIme of the transfer and recognIze the servIce and senIonty In the Ontano PublIc ServIce (OPS) of each employee for the purpose of quahficatIOn for vacatIOn, benefits (except penSIOn), layoff and Job competItIOn, severance and termInatIOn payments to the extent that they are prOVIded In the proponent's workplace or If none, the OPS Any payments made under ArtIcle 53 or 78 of the CollectIve Agreement shall be set off agaInst any calculatIOn of severance pay under a collectIve agreement or term of employment WIth the reCeIVIng employer In respect of OPS servIce Such payments under artIcles 53 and 78 may be set off agaInst severance payments under the Employment Standards Act In accordance WIth that Act. .. 6 1 2 The Employer agrees that In any negotIatIOns WIth the reCeIVIng employer It IS to be understood that the employer wIll request that employees of the Crown who are transferred under ArtIcle 6 0 - NegotIated Transfers should not be reqUIred to serve a probatIOnary penod WIth the new employer 6 2 1 In the event that a reCeIVIng employer does not fully agree to the request In artIcle 6 1 1, IncludIng the matter of a probatIOnary penod, the employer may offer the reCeIVIng employer a finanCIal IncentIve up to the amount that would have been payable as enhanced severance pay (calculated as proVIded In paragraph 4 of AppendIX 9) to each employee affected by the transfer that the employer determInes WIll be declared surplus, In order to secure or Improve a Job offer to the employee eqUIvalent to a Job offer as descnbed In ArtIcle 6 1 1 above or to ensure where Job offers are receIved from the reCeIVIng Employer for less than the full complement of employees IdentIfied by the Employer, that the reCeIVIng Employer offer employees Jobs on the baSIS of semonty The partIes agree In no case wIll the employer be reqUIred to pay a finanCIal IncentIve In excess of the maXImum of enhanced severance for the affected employees 3 - ~ , 6 2.2 The partIes further agree that the employer IS not reqUIred to enter mto any dIscuSSIOns or negotlatIOns wIth bargammg agents m the receIvmg employer's workplace, nor IS the employer reqUIred to offer any finanCIal mcentlve eIther dIrectly or mdIrectly through a receIvmg employer to a bargammg agent m the receIvmg employer's workplace 63 The partIes agree that where there IS an eXIstmg collectIve agreement(s) m the receIvmg employer's workplace, under WhICh employees acceptmg job offers are to be mcluded, the salary, terms and condItIOns of employment (wIth the exceptIOn of any agreement that may be reached wIth the receIvmg employer concernIng probatIOnary pen ods ) contamed m the receIvmg employer's collectIve agreement(s) wIll apply to employees acceptmgjob offers NotwIthstandmg the foregomg, the Employer wIll negotlate wages and workmg condItIOns as per ArtIcle 6 1 1 for employees of a PsychIatnc HospItal whose work IS transferred to a pubhc hospItal pursuant to a recommendatIOn of the Health Sector Restructurmg CommIsSIOn accepted by the MmIster of Health 64 Employees who accept a job offer m accordance wIth ArtIcle 6 1 1 wIth a receIvmg employer wIll be deemed to have reSIgned effectlve the date they commence employment wIth the new employer, and no other provISIOns of the CollectIve Agreement wIll apply except for ArtIcle 53 or 78 (TermmatIOn Pay) 65 If an employee refuses a job offer WhICh provIdes a salary of at least 85% of the respectlve employee's weekly salary at the tlme of the transfer and recognIzes the servIce and semonty m the Ontano Pubhc ServIce (OPS) of each employee for the purpose of qualIficatIOn for vacatIOn, benefits (except pensIOn), layoff, job competltIOn, severance and termmatIOn payments to the extent that they are prOVIded m the proponent's workplace, the employee shall be deemed to have reSIgned effectlve the date of the transfer of theIr Job and no other prOVISIOn of the collectIve agreement WIll apply except for ArtIcle 53 or 78 (TermmatIOn Pay) t 4 ~ 66 Where the salary of the Job offered by the reCeIVIng employer IS less than eIghty-five percent (85%) of the employee's current weekly salary, or If the employee's servIce or semonty are not carrIed over to the reCeIVIng employer, the employee may declIne the offer In such a case, the employee may exerCIse the nghts prescnbed by ArtIcle 20 (Employment StabIlIty) and/or paragraphs 2 to 5 of AppendIX 9 The employee must elect whether or not to accept employment wIth the reCeIVIng employer wlthm three (3) days of reCeIVIng an offer In default of electIOn, the employee shall be deemed to have accepted the offer 67 The partIes agree that the Employer's complIance wIth the prOVISIOns of ArtIcle 6 0 meets ItS oblIgatIOns under AppendIX 9 paragraphs 1,4 and 5, for the transfers hsted In Schedule B 68 In the event that the Employer falls to secure a waIver of a probatIOnary penod, any employee who accepts a Job offer and IS dIsmIssed by a reCeIVIng employer durIng a probatIOn penod, wIll be reInstated and treated In the same manner as If they had not accepted an offer No compensatIOn wIll be payable for any reductIOn In wages ,{- and benefits receIved whIle In the employ of the reCeIVIng employer UnlIke Schedule B, Schedule D does not oblIge the employer to make any effort to ensure the reCeIVIng employer hIres OPS employees who wIll be dIsplaced by the transfer The employer's only obhgatIOn IS contaIned In artIcle 7 7 1 In respect to all other dIspOSItIons or transfers of bargaInIng umt Jobs or functIOns InvolVIng transfers not Included In Schedule A, Band C, occurrIng dunng the term of thIS Agreement, affected employees WIll be surplussed as a result of the transfer or dISpOSItIOn subject to the terms of the collectIve agreement. The date of the Issuance of the surplus notIce WIll be determIned by the Employer 72 The partIes agree that the employer's complIance WIth the prOVISIOns of ArtIcle 7 0 meets all obhgatIOns under AppendIX 9 paragraphs 1,4 and 5 for the transfers not lIsted In Schedule A, B, or C 5 ~ The placement of a transfer on Schedule D IS governed by artIcle 8 4 2 (ll) The sole cntenon for placmg a transfer of a functIOn or work, from a specIfic program area, m Schedule D IS whether, m the Judgment of the MmIstry based on operatIOnal needs, a smgle receIvmg employer would create less than eleven (11) full-tlme bargammg umt related Jobs The Jobs must be created m the smgle receIvmg employer's workplace, as a result of the transfer of the functIOn or work, m the thIrty (30) calendar day tlme penod ImmedIately followmg the transfer of work. All of a receIvmg employer's work sItes ~wIthm a smgle mumcIpalIty shall be consIdered one workplace m ArtIcle 8 4 2(ll) The umon contends the dIsputed transfers do not belong on Schedule D because the number of Jobs mvolved exceed the threshold of "less than eleven" Whether thIS threshold IS exceeded may depend upon the answer to two questIOns concernmg the mterpretatIOn of artIcle 8 42(ll) II The first questIOn IS whether a management posItlon m the receIvmg employer's orgamzatIOn should be counted as a "bargammg umt related" Job The umon suggests an affirmatlve answer because a manger's posItlon IS related to the work of the bargammg UnIt. The employer claIms managers are excluded from the count. Accordmg to thIS argument, the "bargammg UnIt" mentIOned IS the OPS umt where the functIOns bemg transferred were performed m the past, not the bargammg umt of the receIvmg mumcIpahty The employer contends the word "related" was mtended to capture only Jobs m the receIvmg employer's workforce whIch are functIOnally comparable to 6 Jobs m the OPS UnIt. Management posItIOns do not count on thIS understandmg The most ObVIOUS meanIng of "bargammg UnIt related" IS the one suggested by the employer as the exclUSIve meanIng The "bargammg UnIt" to WhICh artIcle 8 2 4(u) refers must be the OPS UnIt, because thIS artIcle applIes to all receIvmg employers, mcludmg those WIth an unorganIzed workforce and no bargammg UnIt at all AJob IS "related" If the tasks mvolved are comparable to work formerly done m the OPS UnIt. Agreemg " thIS IS one meanIng of "related", the UnIon contends the word has a second meanmg whIch embraces mangers m the receIvmg employer's organIZatIOn. The Job of such a manager IS related to a pOSItIOn held by an employee m the same employer's organIZatIOn, m the sense that the former mdIvIdual supervIses the latter However, a management pOSItIOn m the receIvmg employer's organIZatIOn has a much weaker and less dIrect relatIOnshIp to the OPS bargammg UnIt, as the manager's role IS related m one sense to the pOSItIOns he or she supervIses, and those pOSItIons are related m another sense to Jobs m the OPS UnIt mvolvmg comparable functIOns ThIs analysIs mdIcates management pOSItIOns probably are not somethmg the partIes had m mmd when they adopted the phrase "bargammg UnIt related' The same readmg of artIcle 8 2 4(11) IS supported by the apparent purpose of the artIcle wIthm the overall structure of the memorandum of settlement. The memorandum defines the employer's oblIgatIOns m securmg new employment for former members of the OPS bargammg UnIt. ArtIcle 842(11) allows transfers creatmg less than eleven Jobs to be placed on Schedule D, so that any such oblIgatIOn IS aVOIded. The ratIOnale for thIS exclusIOn seems to be that the effort of securIng employment IS not .. warranted when few pOSItIOns are aVaIlable to employees dIsplaced from the 7 , OPS UnIt. In thIS context, the partIes no doubt mtended to count Jobs comparable to those done by members of the OPS UnIt. There IS much less, If any, reason to thmk the partIes mtended to count management Jobs In short. the employer's mterpretatIOn IS supported by both the language of the memorandum of settlement and ItS underlymg objectIve III The second mterpretlve Issue IS whether the Jobs to be counted mclude all '< posItIOns necessary to perform the work transferred from the OPS UnIt or mclude only the subset of such posItIOns not to be filled by members of the recelvmg employer's eXlstmg workforce ThIS Issue anses because mUnIcIpal delIvery agents recently have expenenced a substantIal decrease m the number of cases admmlstered and a consequent reductIOn m the number of cases per employee When cases are transferred from the Mmlstry m the near future, the current staff of these delIvery agents wIll be able to absorb some of the addItIonal work. Accordmgly, the number of Jobs avaIlable to new hIres wIll be less than the number reqUIred to handle all of the cases bemg transferred. The language of artIcle 8 4.2(11) IS ambIguous on thIS pomt. The t cntenon IS "whether, m the Judgment of the MinIstry based upon operatIOnal needs, a smgle recelvmg employer would create less than eleven (11) full- tIme bargammg UnIt related Jobs" There IS no explICIt reference eIther to Jobs aVaIlable for new hIres or to Jobs necessary to do the transferred work. Each of the partIes emphaSIzed language saId to ImplICItly support ItS pOSItIOn. The UnIon relIes upon the reference to "operatIOnal reqUIrements", whereas the employer stressed the words "create" and "full-tIme" '- 8 . ~ This dispute spnngs from the word "Jobs" which has more than one meamng Accordmg to Webster's DictiOnary (1990), the meanmgs of "Job" mclude both "a piece of work" and "employment." In effect, the umon's argument is premised upon the former defimtiOn, whereas the employer's rests upon the latter The employer contends a Job IS not "created" when transferred work allows a mumcipahty to avoid laymg off employees This argument is based partly upon a dIstmctiOn between creatmg somethmg and not elimInatmg it. ~ I agree this is a valId lmgUistIc dIstmctiOn. Yet it is not obviOus how the distmctiOn applies to the current dispute about jobs, because the word Job has at least two meanmgs The employer understands this word to mean employment. On this understandmg, a job is not created when new work is assigned to an eXistmg employee, who would otherwIse be laid off, because a new employment relatIOnshIp IS not born, even though an eXIstmg one IS saved from extmctIOn. Nonetheless, a new pIece of work IS created wIthm the receIvmg enterpnse whenever services are transferred. On the umon's understandmg, ajob results from the transfer of work, at least where the work is enough to occupy a full-time employee, even If the employee already IS a part of the mumcIpal workforce In short, whether ajob IS created m thIS scenano depends upon what meanIng of Job one has m mmd. As "full-time" IS an adjective generally used to descnbe an employee, the use of thIS modifier may suggest "jobs" IS used to mean employment. Yet the modIfier "bargammg UnIt related", WhICh nnmedIately follows "full- time," may pomt to the other meanIng of "jobs" As the employer suggested WIth respect to management pOSItiOns, the phrase "bargammg UnIt related" draws attentiOn to the nature of the work, by askmg if it IS comparable to "- that previOusly done m the OPS UnIt. ThIS questIOn focuses upon the pIece 9 ~ of work Itself LIkewIse, the words "operatIOnal reqUIrements" may connote work more than employment. In summary, the contract language sends mIxed messages about WhICh meanmg of "Jobs" the parties mtended ThIs conclUSIOn IS far from surpnsmg When the partIes negotiated artIcle 8 4 2(11), the scenano presented by a recelvmg employer WIth an under- employed workforce easIly could have escaped theIr contemplatIOn. Does a purpOSIve analYSIS resolve the ambIgUIty m artIcle 8 42(11)? Accordmg to the employer, thIS mterpretlve approach mdlcates the threshold ~ cntenon refers exclusIvely to Jobs not to be filled by the recelvmg employer's eXlstmg workforce ThIS argument rests upon the premIse that jobs not taken by the current mumclpal workforce are the only ones WhICh matter, because they are the ones aVailable to former members of the OPS umt. The premIse IS not contested by the umon. The employer's argument, bUIlt upon thIS postulate, struck me as bemg persuaSIve when I heard It. Upon reflectIOn, the UnIon's response convmces me that the employer has constructed a CIrcular argument WhICh IS not supported m lOgIC by the undIsputed premIse As the UnIon notes, the number of Jobs avaIlable to dIsplaced pubhc servants depends upon what, If anythmg, happens by way of negotlatIOns between the MinIstry and the recelvmg employer concernmg job secunty The cntenon set out m artIcle 8 4.2(11) IS applIed at the very begmmng of the process, when the MinIstry IS decldmg whether to place a transfer on Schedule D If the number of Jobs aVailable to new hIres IS projected at thIS early stage, the prOJectIOn occurs before the employer has made any effort to secure work for ItS dIsplaced employees The number of avaIlable jobs projected mIght be hIgher If the prOjectIOn were to be made at a later stage, after such efforts had occurred under Schedule B To Illustrate thIS pomt, the umon cIted an mstance where finanCIal mcentIves offered by 10 the Mimstry to a mumclpahty, pursuant to AppendIx 9, resulted m some mumclpal employees takmg early retIrement, thereby creatIng addItIOnal vacanCIes to be filled. The employer dId not suggest thIS had not occurred. In my VIew, the premIse that the only Jobs whIch matter are those avaIlable to new hIres does not resolve the Issue of how to mterpret "Jobs" m artIcle 8 4 2(1l), because the number of aVailable Jobs depends upon whIch mterpretatIOn IS adopted and what happens dunng any subsequent negotIatIOns between the MinIstry and the recelvmg employer ... Canvassmg the arguments advanced at the hearmg, I have not found a an adequate baSIS for choosmg between the pOSItIOns of the partIes Yet I must deCIde whIch mterpretatIOn IS correct. In my VIew, the best way to resolve thIS Issue IS by applymg an approach analogous to the one taken m a long lme of cases dealmg senIonty The leadmg case m thIS lme IS Tung-Sol of Canada Ltd. (1964), 15 L.A C 161 (RevIlle) In one of the most frequently CIted passages ever penned by an arbItrator, Judge ReVIlle wrote Semonty IS one of the most Important and far-reachmg benefits whIch the trade umon movement has been able to secure for ItS members by VIrtue of the collectIve bargammg process An employee's semonty under the terms of a collectIve agreement gIves nse to such Important nghts as relIef from layoff, nght to recall to employment, vacatIOns and vacatIOn pay, and penSIOn nghts, to name only a few It follows, therefore that an employee's senIonty should only be affected by very clear language m the collectIve agreement concerned and that arbztrators should construe the collectzve agreement wzth utmost strzctness whenever zt zs contended that an employee's senzorzty has been forfezted, truncated or abrzdged under the relevant sectzons of the collective agreement (page 162, emphasIs added) Some of the many cases applymg thIS quotatIOn are CIted m Brown and BeattIe, Canadzan Labour Arbltratzon, at 6 0000 11 I .. As Job secunty IS no less Important than semonty, arbItrators should take the same approach to Job secunty as they have taken to semonty When a collectIve agreement creates a semonty system, confernng slgmficant benefits upon employees, arbItrators stnctly construe any contractual hmltatIOn on an employee's semonty Slmllarly, when an employer and umon estabhsh a scheme of Job secunty, an arbItrator should "construe" any exceptlOn "wIth the utmost stnctness", to borrow the language of Tung-Sol The memorandum of settlement sets out a comprehensIve arrangement '< deSIgned to enhance Job secunty, and Schedule D IS an exceptIOn to the general scheme ArtIcle 8 4 2(11), WhICh determmes the scope of the exceptIOn, should be stnctly construed. As neIther the language of the artIcle nor the purpose underlymg It resolve the amblgmty about the meamng of "Jobs", thIS word should be mterpreted m the way more favourable to Job secunty For thIS reason, I read "Jobs" to mean the number of full-time Jobs reqmred to do the work transferred, regardless of how much of that work mltIally IS expected to be performed by the recelvmg employer's eXlstmg workforce IV Based upon the foregomg mterpretatlOn, how does artIcle 8 4 2(11) apply to the SIX mUnICIpal dehvery agents m dIspute? They are (1) County of Northumberland, (2) Cochrane Dlstnct Social ServIces AdmmlstratlOn Board, (3) Niplssmg Dlstnct Social ServIces AdmlmstratlOn Board, (4) County of Grey, (5) County ofWellmgton, and (6) CIty of Brant ford. The CIty of Brantford IS expected to receIve 1,350 cases from the Mimstry and to operate wIth a caseload ratIO of 1 120 Based upon these < numbers, at least eleven full-time employees WIll be dIrectly mvolved m 12 . - ~ - handlmg the cases to be transferred. The threshold of eleven IS exceeded even before countmg support staff The mescapable conclUSIOn IS that thIS transfer does not belong on Schedule D The employer IS dIrected to remove It from that schedule At the other five mUnIcIpal dehvery agents, the number of files to be receIved from the Mimstry, together wIth the caseload ratIO, mdIcate there wIll be less than eleven employees dIrectly mvolved m handlmg the cases to be transferred. Does the addItlon of related support staff, but not managers, ... ralse the total number of "bargammg umt related Jobs" above thIS threshold? In my VIew, the eVIdence at hand does not offer a satlsfactory answer The umon relIes upon testImony as to the current number of the two types of employees at Northumberland and the ratIO of one to the other I was urged to use thIS ratIO to calculate the number of support staff reqmred to handle the files to be transferred, not only for thIS mUnIcIpalIty but also for others I declme to do so for two reasons (1) the eVIdence mdIcates the ratIO depends upon the servIce delIvery model adopted, and not all mumcIpalItles use the same model, and (2) when the total number of cases mcreases as a result of a transfer of files from the MImstry, the ratIO may change due to economIes of scale Based upon the eVIdence at hand, I am not prepared to dIrect the employer to remove these five mUnIcIpahtIes from Schedule B In my VIew, dIsmIssmg the gnevance WIth respect to these five mumcIpahtles would not be appropnate Under artIcle 8 4.2(1) , a gnevance of thIS sort must be heard wIthm seven calendar days after the dIsputed transfer IS placed on Schedule D There IS httle time to muster a case Indeed, thIS matter was heard m less than four hours, endmg at 11 50 p.m. on the seventh day As well as leavmg httle time to marshal facts, the seven- day tIme frame ensures there IS relatIvely httle detnment to the employer If a 13 - , r' transfer IS removed from Schedule D because management's mterpretatIOn IS found to be mcorrect. In thIS settmg, I am not mclmed to resolve the matter based upon who bears the burden of proof As the ongmal placement of the five dehvery agents on Schedule D was based upon an erroneous mterpretatIOn of artIcle 8 4.2(11), I dIrect the Mmlstry to reVIsIt the apphcatIOn of thIS artIcle to these agents based upon the mterpretatIOn set out m Part III of thIS decIsIOn. I made an oral rulmg dunng the hearmg about the mterpretatIOn of the '< seven-day tlme hmlt. Wntten reasons for that rulmg wIll follow m due course At the end of the hearmg, the partIes agree_d neIther would obJect to the Issuance of thIS decIsIOn about artIcle 8 4.2(11) after seven days had elapsed. I remam seIzed to resolve any Issues ansmg m the ImplementatIOn of my award. Richard M. Brown, Vice ChaIr Ottawa,Ontano February 24, 1999 "- 14