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HomeMy WebLinkAbout1998-1785.Union.99-03-04 .. O/llrARIO EMPlOYfS DE LA COURONNE CROWN EMPLOYEES DE l'O/llrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE~ELipHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU (Joo, TORONTO (ON) M5G 1Z8 FACSIMILE~ELiCOPIE (416) 326-1396 GSB # 1785/98 OPSEU 99UOIO IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown III R1ght of OntarIo (MInIstry of Cornmumtv and SocIal ServIces) Employer BEFORE R1chard M. Brown V lce-Chmr FOR THE DaVId Wnght UNION Counsel Ryder Wnght Blair & Doyle Barnsters & SolICItors FOR THE DaVId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING February 18, 1999 I ThIs gnevance arIses under the memorandum of settlement, dated January 20, 1999, codlfymg the employer's "reasonable efforts" oblIgatIOns when functIOns prevIOusly performed m the OPS (Ontano PublIc ServIce) are transferred to the broader publIc sector or the pnvate sector The substantIve dIspute between the partIes IS whether the placement of certam transfers on Schedule D IS proper Before thIS Issue was argued, the UnIon contended the employer was oblIged to prOVIde mformatIOn as to why the transfers were placed on Schedule D An oral rulmg on thIS procedural matter was delIvered at the heanng on February 18 The reasons for that rulmg are recorded m thIS wntten deCISIOn. The context can be descnbed bnefly SOCIal aSSIstance files are bemg transferred from the Mimstry to mUnIcIpal delIvery agents pursuant to the Soczal Asslstance Reform Act, 1997 The employer has placed the transfers to some mUnICIpalItIes on Schedule B and the transfers to others on Schedule D For transfers on Schedule B, artIcle 6 spells out the steps the employer IS oblIged to take to find Jobs WIth the receIvmg employer for dIsplaced publIc servants Accordmg to artIcle 7, the employer has no such oblIgatIOns for transfers on Schedule D ArtIcle 8 4.2 sets out the cntena for determmmg whether a transfer may be placed on Schedule B as well as the tIme lImIt for resolvmg a gnevance over such a placement 8 4 2 The PartIes agree that before the Employer places a transfer on Schedule D (Other Transfers), It WIll notIfy the UnIon of ItS mtentIOns If OPSEU dIsputes the placement of the transfer on Schedule D, then the followmg procedure WIll apply (1) OPSEU WIll have seven (7) calendar days after bemg notIfied to gneve and fully resolve the placement of the transfer on Schedule D (Other Transfers), 2 . (11) 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 Mimstry based on operatIOnal needs, a smgle recelvmg employer would create less than eleven (11) full-tIme bargammg umt related Jobs The Jobs must be created m the smgle recelVmg employer's workplace, as a result of the transfer of the functIOn or work, m the thIrty (30) calendar day tIme penod nnmedlately followmg the transfer of work. All of a recelvmg employer's worksltes wlthm a smgle mumclpalIty shall be conSIdered one workplace m ArtIcle 8 4.2(1l) By letter dated February 11, 1999, the umon was notIfied of the employer's mtentIOn to place on Schedule D transfers to fifteen mumcIpalItIes (ThIS letter replaced an earlIer one dated February 5 ) The gnevance was filed on February 17 The heanng was held on the evemng of February 18, wlthm seven days of the letter of February 11 Counsel agree the hearmg m thIS matter must be completed wlthm the seven-day penod speCIfied m artIcle 8 4.2(1) They dIsagree as to whether tIme has yet begun to run under that artIcle Based upon the assumptIOn that the lImItatIOn penod began on February 11, the employer argued the tIme lImIt would expIre at mldmght on the day of the heanng The umon contends tIme has not begm to run because the employer had not proVIded an explanatIOn as to how It deCIded that the dIsputed transfers dId not meet the threshold of "eleven full-tIme bargammg umt related Jobs" (The mformatIOn prOVIded to the umon before the heanng was VIewed by It as madequate) The umon's argument IS constructed upon the employer's oblIgatIOn to serve notIce of ItS mtentIOn to place a transfer on Schedule D Accordmg to thIS lme of reasonmg, thIS notIce oblIgatIOn ImplICItly reqUIres the employer to prOVIde mformatIOn demonstratmg the placement IS 3 . consIstent WIth the cntenon m artIcle 8 4 2(11), and tIme does not run untIl thIs reqUIrement IS met. Dmon counsel relIes upon the followmg passage from Mr Kaplan s decIsIOn m OPSEU and Mznzstry ofCommunzty and Social Servzces, dated June 2, 1997, GSB No 2779/96, concemmg the employer's oblIgatIOn to make "reasonable efforts" under AppendIX 9 of the 1994-98 collectIve agreement. Second It IS mcumbent upon management to mvolve the umon m dIscussIOns about how It proposes to meet ItS reasonable efforts oblIgatIOns and to commence those dISCUSSIOns ImmedIately followmg the decIsIOn to dIvest. ObVIOusly, these dISCUSSIOns cannot be pro forma They must be meamngful exchanges of relevant mformatIOn and Ideas dIrected at assIstmg the employer m dIschargmg ItS oblIgatIOns under the collectIve agreement. (page 19) Also cIted by the umon IS Unzted Electrzcal Workers and Canadzan Westznghouse Co (1964), 14 L.A.C (ReVIlle) In my VIew, these authontIes are of no aSSIstance m determmmg the narrow Issue at hand, because the memorandum of settlement clearly defines the commencement of the lImItatIOn penod. The opemng sentence of artIcle 8 4 2 reqUIres the employer to "notIfy the umon of ItS mtentIOns" Paragraph (11) gIves the umon "seven calendar days after bemg notIfied" to fully resolve any dIspute "NotIfied" ObVIOusly refers back to "notIfy the UnIon of ItS mtentIOns " In other words, the seven days runs from notIficatIOn of management's mtentIOns The employer's obhgatIOn to "notIfy the UnIon of ItS mtentIOns" cannot be senSIbly construed as contammg an ImplICIt oblIgatIOn to prOVIde supportmg mformatIOn. That IS a readmg the language does not support. The mescapable conclUSIOn IS that the runnmg of tIme \ 4 . . under artIcle 8 4.2(1) IS tnggered as soon as the employer serves notIce of ItS mtentIOns to place a transfer on Schedule D The umon has aVaIlable the normal processes for obtammg mformatIOn about a contested decIsIOn, mcludmg the gnevance process, the productIOn of partIculars and dIsclosure of documents The seven-day lImItatIOn penod leaves much less tIme than usual for usmg these procedures, but the umon and employer agreed to thIS tIme lImIt m unambIguous terms m artIcle 8 4 2(1) The partIes mIght wIsh to turn theIr attentIOn to how such procedures could be modIfied to work wlthm the very stnct temporal constramt Imposed by artIcle 8 4 2 (1) In the event they are unable to agree, any dIsputes about the applIcatIOn of these procedures wlthm tIght tIme lmes WIll fall to thIS Board to decIde Richard M. Brown, V Ice Charr Ottawa,Ontano March 4,1999 5