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HomeMy WebLinkAbout2002-0211.Union Grievance.03-04-09 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0211/02 UNION# 02UOI0 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION DavId WTIght Counsel Ryder WTIght Blair and Doyle FOR THE EMPLOYER Mary Gersht Counsel Management Board SecretaTIat 2 DECISION The Issue to be determmed at thIS stage of these proceedmgs IS whether the fifty-four days of the 2002 OPSEU strike count for the purpose of determmmg whether unclassIfied dnver exammers are entItled to be converted to classIfied status All submIssIOns on thIS Issue were made m wntmg and wIthout a heanng ThIS Issue anses out of a umon gnevance filed agamst the backdrop of the llnpendmg pnvatIzatIOn of dnver exammatIOn serVIces On December 18,2001, a ConfidentIal InfonnatIOn Memorandum (CIM) was sent to quahfied bIdders The CIM contamed a tImetable mdIcatmg the successful bIdder would be announced m Apnl of 2002 and would begm provIdmg servIces by October of that year Once the CIM had been released, the employer decIded to stop convertmg unclassIfied employees, contendmg there was no "contmumg need" for theIr serVIces wIthm the meanmg of artIcle 31 15 of the collectIve agreement The gnevance, dated January 25, 2002, challenged tlllS decIsIOn The tImetable contamed m the CIM proved to be unduly optImIstIc, at the tIme of the heanng on September 17, the employer expected the successful bIdder to be chosen m December of 2002 and to begm provIdmg servIces by March of 2003 In an award Issued on October 24, 2002, I allowed the gnevance, dIrected the employer to convert all unclassIfied dnver exammers who, by September 17, 2002, had completed the penod of serVIce reqUIred to be ehgible for converSIOn, and remamed seIzed to address any dIsputes ansmg m the llnplementatIOn of my award Some such dIsputes were resolved by the partIes m mmutes of settlement dated December 19, 2002 As of that date, the successful bIdder had not yet been selected Much of the settlement deals wIth details about convertmg unclassIfied employees to classIfied status ClaImmg the penod of the strike counts for the purpose of converSIOn, the umon cItes artIcle 31 15 of the collectIve agreement, the settlement and allegedly mconsIstent treatment of employees seekmg converSIOn The employer rejects all of these 3 arguments and also relIes upon the protocol negotIated by the partIes to govern the return to work from the strike I The collectIve agreement addresses converSIOn m artIcle 31 15 ArtIcle 31 15 1 1 governs the converSIOn of a p05.'ztlOn Where the same work has been performed by an employee m the UnclassIfied ServIce for a penod of at least eIghteen (18) consecutIve months, except for sItuatIOns where the unclassIfied employee IS replacmg a classIfied employee on leave of absence authonzed by the Employer or as provIded for under the Central CollectIve Agreement, and where the mmIstry has detennmed that there IS a contmumg need for that work to be performed on a full-tIme basIs, the mmIstry shall establIsh a posItIOn wItllln the ClassIfied ServIce to perfonn that work. (emphasIs added) The converSIOn of an employee IS governed by artIcle 31 15 1 2 Where the mmIstry has determmed that It wIll convert a posItIOn m accordance wIth 31 15 1 1, the status of the mcumbent m the posItIOn wIll be converted from unclassIfied to classIfied, provIded that the mcumbent has been m the posItIOn m questIOn for at least eIghteen (18) months Both of these artIcles contam a tunelIne of eIghteen months The gnevance was filed under the prevIOUS collectIve agreement whIch contamed a tIme lIne of twenty-four months I begm wIth artIcle 31 15 1 1 One cntenon for the converSIOn of a posItIOn under thIS artIcle IS that "the same work has been performed" by an unclassIfied employee for the reqUIsIte tIme The language of the artIcle focuses upon the performance of work. As dnver exammatIOns ceased for the duratIOn of the strike, a lIteral readmg of artIcle 31 15 1 1 would lead to the conclusIOn that tune on strike should be dIsregarded when applymg thIS artIcle, because exammatIOns were not "performed" dunng the work stoppage 4 In contrast to artIcle 31 15 1 1 respectmg the converSIOn of a posItIOn, artIcle 31 15 1 2 concernmg the converSIOn of an employee makes no reference to the performance of work, as noted by umon counsel The cntenon for converSIOn of an employee IS that he or she "has been m the posItIOn" for the reqUIsIte tIme Contendmg unclassIfied dnver exammers contmued to hold theIr posItIOns throughout the work stoppage, counsel for the umon submIts the penod of the strike must be counted when applymg artIcle 31 15 1.2 Counsel also argues thIS readmg of artIcle 31 15 1 2 should gUIde the mterpretatIOn of artIcle 31 15 1 1, so that these two artIcles are construed m a "consIstent" fashIOn There IS consIderable force to the argument that the penod of the strike counts for the purpose of artIcle 31 15 1.2 Assummg tlllS argument to be correct, wIthout decldmg the matter, I find the resultmg constructIOn of artIcle 35 15 1.2 to be of lIttle assIstance when mterpretmg artIcle 31 15 1 1, for two reasons The first IS any mconslstency between artIcles 31 15 1 1 and 31 15 1.2 could be resolved eIther by readmg the fonner to confonn wIth the latter, as the umon urges me to do, or by readmg the latter to conform wIth the former, so that the performance of work would be a reqUIrement under both artIcles In other words, an argument based upon consIstency IS entIrely mdetennmate Moreover, what the umon descnbes as "consIstent" mterpretatIOns of these two artIcles may not be reqUIred. When negotIatmg them, the partIes may have mtended the cntena for converSIOn of a posItIOn to dIffer from the cntena for converSIOn of an employee, m the sense that one was based upon the perfonnance of work whIle the other was not Counsel for the umon offered no reason suggestmg otherwIse and none IS self-evIdent to me Counsel for the umon suggests the employer's mterpretatIOn of artIcle 31 15 1 1 would defeat the underlymg purpose As to the nature of that purpose, counsel relIes upon OPSEU (Mlstry) and OntarlO Human Rlghts CommlsslOn, dated Feb 10, 1998, GSB FIle No 0569/96 (Venty) To my mmd, the purpose of artIcle 31 15 1 1 was to state the "mIschIef' and the means to redress It The "mlschlef" was the employer's zndlscrzmznate use of 5 unclassified employees to do contznuzngfull-tlme work that should zn eqUlty and fazrness be done by classffied employees The means to redress the "mIschIef would be to gIve the unclassIfied employee, so cIrcumstanced, the nght to converSIOn to a classIfied employee (page 7, emphasIs added) ArtIcle 31 15 1 1 does prevent the "mdIscnmmate use" of unclassIfied employees, but It also permIts them to be used wItlun clearly prescribed hmIts Accordmg to tlus artIcle, an unclassIfied posItIOn need not be converted untIl "work has been performed" by an unclassIfied employee for eIghteen months As dnver exammers were off the Job dunng the recent work stoppage, a hteral readmg of thIS artIcle reqUIres the penod of the stnke to be Ignored when detennmmg entItlement to converSIOn ThIS mterpretatIOn does not amount to permIttmg the employer to make mdIscnmmate use of unclassIfied employees In summary, a hteral readmg of artIcle 31 15 1 1 excludes the penod of the strike from the determmatIOn of when a posItIOn becomes ehgible for converSIOn, and there IS no compelhng reason to adopt the contrary mterpretatIOn The umon's posItIOn IS not supported by the collectIve agreement II The relevant portIOns of the settlement state WHEREAS the Umon filed a gnevance dated January 25, 2002, and WHEREAS the Gnevance Settlement Board ("GSB") Issued a decIsIOn on the gnevance on October 24,2002, and WHEREAS the partIes wIsh to resolve any and all Issues and matters related to the decIsIOn on a full and final basIs, THEREFORE the partIes agree to full and final settlement of all outstandmg matters regardmg GSB#021l/0 1 wIthout precedent and wIthout prejUdICe on the followmg terms 1 The Employer agrees to convert all the employees hsted m Attachments "A" and "B" m accordance wIth ArtIcle 31 15 of the collectIve agreement, from the unclassIfied serVIce to the classIfied serVIce The effectIve date of 6 converSIOn shall be the same as the date tlllS Settlement IS executed by the partIes The partIes agree that all employees hsted m Attachments "A" and "B" shall have the optIOn to elect to transfer to the new servIce provIder 2 (a) Subject to paragraphs 3 to 5 below, the partIes agree that the employees hsted m Attachments "C" and "D" at the tIme of the executIOn of thIS Settlement are not ehgIble for converSIOn However m the event that any of these hsted employees become ehgible for converSIOn after September 17, 2002 up to and mcludmg the day before the successful proponent IS announced these employees wIll be converted to classIfied status If they have completed 18 consecutIve months of full-tIme servIce dunng tlllS tIme penod, and have satIsfied the reqUIrements of ArtIcle 31 15 The effectIve date of converSIOn shall be the date that they were ehgible for converSIOn (b) The partIes agree that any employee that has completed 18 consecutIve months of full-tIme serVIce as of the date of the sIgnmg of thIS Settlement and IS ehgible for converSIOn m accordance wIth ArtIcle 3 1 15 shall have an optIOn to elect to transfer to the new servIce provIder and that such employees shall have the same nghts as those employees converted pursuant to paragraph 1 above (c) The partIes agree that unclassIfied employees who become ehgible for converSIOn pursuant to paragraph 2( a) above after the date of the sIgnmg of thIS Settlement but before the successful proponent IS announced shall have no optIOn to elect to transfer to the new serVIce provIder The partIes further agree that the nghts of these unclassIfied employees shall be hmIted to those outhned m sectIOn 5 2 of AppendIx 18 3 The Umon agrees to advIse the Employer wIthm 5 workmg days of the date of the sIgnmg of tlllS Settlement as to any addItIonal employees that It claims meets the mmImum cntena for converSIOn of two consecutIve years or 18 consecutIve months offull-tllne servIce as of the date of the Settlement 4 In the event that the Employer agrees wIth any claims put forth by the Umon pursuant to paragraph 3 above then the Employer agrees to add them to Attachments "A" or "B" and those employees wIll be treated m the same manner as employees under paragraph 1 and m accordance wIth paragraph 7 7 5 In the event the Employer dIsagrees wIth any claims put forth by the Umon pursuant to paragraph 3 above, the Employer shall treat these dIsputed employees m the same manner as employees under paragraph 1 above so long as VIce-Chair Brown later determmes or the partIes later agree that such employees meet the reqUIrements for converSIOn under ArtIcle 31 15 of the collectIve agreement As noted above, the settlement IS dated December 19, 2002 Relymg upon paragraph 2(a), counsel for the umon contends unclassIfied employees are entItled to be converted "If they have completed 18 consecutIve months of full-tIme serVIce between September 17, 2002 and the date the successful proponent IS named" As noted by employer counsel, the umon's argument restates one cntenon found m paragraph 2(a) but overlooks another ThIS paragraph states employees wIll be converted to classIfied status "If they have completed 18 consecutIve months of full- tIme servIce dunng thIS tIme penod [1 e between September 17 and the nammg of the successful proponent] and have satlsfied the requlrements of Artlcle 31 15" (emphasIs added. ) I have already decIded the penod of the stnke does not count for the purpose of applymg artIcle 31 15 1 1 Accordmgly, the fifty-four days of the work stoppage are not to be counted when determmmg whether employees "have satl,~fied the reqUlrements of Artlcle 3115" wIthm the meanmg of paragraph 2(a) of the settlement III Allegmg arbItrary and dIscnmmatory treatment, counsel for the umon submIts [T] he Employer has not consIstently apphed the practIce of extendmg the converSIOn date by the length of the strike A number of employees were placed on Attachment B and converted by the Employer wIthout regard to the length of the strike It has long been accepted by tlllS Board that the Employer cannot exerCIse ItS management nghts m a dIscnmmatory or arbItrary way If It IS detennmed that the Employer does have the nght to extend the tIme for converSIOn by the length of the stnke, It cannot exercIse that nght m an arbItrary or dIscnmmatory way 8 Yet, tlllS has been the case The 22 employees hsted above have been converted wIthout regard to the strike and wIthout the length of the strike bemg held agamst them There IS no basIs for treatmg the employees herem at Issue any dIfferently To allow the Employer to pIck and choose between employees m thIS regard would be to sanctIOn an arbItrary and or dlscnmmatory exerCIse of management nghts and cannot be permItted. The umon's bnefnames 21 employees hsted on Attachment B That attachment records the "start date" for an employee as well the date when he or she "became ehglble for conversIOn" For the employees named m the bnef, the date shown for ehgiblhty for converSIOn IS eIghteen months after the start date, even though the strike occurred m the mtenm The essence of the allegatIOn of arbItrary and dlscnmmatory treatment, as mltIally presented by the umon, IS the 21 named employees were treated more favourably than were others for whom the employer mSlsted on dlscOlmtmg the penod of the stnke Two such employees are cIted by way of example The first IS Cmdy Lauper who started on August 13,2001 and whom the employer contends dId reach the eIghteen-month mark untIl Apnl 7, 2003 As the successful proponent was announced before tlllS date, the employer dechned to convert Ms Lauper to classIfied status She would have been entItled to converSIOn If tIme on strike had been counted her m favour The second employee cIted by the umon IS Chnstme CurrIe who started work on June 18, 2001 and whom the employer contends was not ehgible for converSIOn untIl February 8, 2003 As the successful proponent had not been announced by February 8, Ms CurrIe was converted to classIfied status However, she was not permItted to elect whether to transfer to the new serVIce provIder, because the employer treated her as not bemg ehgible for converSIOn on December 19,2002, the date of the settlement She would have reached the eIghteen-month mark by that date If tIme on strike had been counted her m favour The most pertment part of the employer's response to the allegatIOn of arbItrary treatment IS as follows 9 The Umon argues that the Employer has not consIstently apphed ItS posItIOn to the affected employees m that there are employees on Attachment B to the Settlement who, It suggests, were converted wIthout regard to the penod of the stnke WIth respect, that IS a complete mIsrepresentatIOn of the facts gIvmg nse to the Settlement Rather, the Employer has acted consIstently at all tImes wIth respect to the converSIOn of employees and specIfically wIth respect to the ehgibIhty for converSIOn of the named employees m the Umon's submIssIOns In reaclllng the Memorandum of Settlement, the partIes agreed that all of the employees hsted on Attachment B to the Settlement had become ehgible for converSIOn on the date of the Settlement, December 19,2002 and It was agreed that those employees would be converted effectIve December 19,2002 (as found at paragraph 1 of the settlement) At the tllne of the Settlement, all of the employees on Attachment B had reached thelr elzglbllzty for converSlOn wlthout countzng the perlOd of the strzke as each had worked 54 days past the orzgznal date on whlch they would have been elzglble but for the strzke (emphasIs added) In reply argument, counsel for the umon submIts Attachment "B" was mtended to hst employees ehgible for converSIOn as of September 17, 2002, not those ehgible as of December 19 [A]s can be seen from paragraphs 1 and 2 of the Settlement and from Attachments A and B to It, the Important date IS September 17, 2002 The Attachments are expressly stated to be hstmgs of employees who had reached the pomt of ehgibIhty for converSIOn as of that date Counsel for the umon went on to name ten employees shown on Attachment "B" as bemg ehgible for converSIOn on September 17 None of them would have reached the eIghteen-month mark by that date If theIr servIce dunng the strike had been Ignored. The essence of the umon's revIsed argument IS that tIme on strike counted to the benefit of these ten employees but not to the benefit of employees m CIrcumstances analogous to those of Ms Lauper and Ms Curne The determmatIOn of whether employees have been treated m an arbItrary or dIscnmmatory fashIOn should be based upon what the employer dId when convertmg them, not what was said m Attachment "B" about theIr ehgibIhty for converSIOn The only dIfferences among employees m theIr actual treatment are m accordance wIth the substantIve terms of the settlement Itself Based upon when unclassIfied employees 10 reached the eIghteen-month mark, the settlement dIvIdes them mto three categones wIth dIfferent nghts (1) those reaclllng tlllS mark by December 19, 2002 are entItled to be converted, effectIve that date, and they are granted an electIOn whether to transfer to the new serVIce provIder; (2) those reachmg the eIghteen-month mark between December 19 and the announcement of the successful proponent are entItled to be converted upon reachmg the mark, but they are not granted an electIOn, and (3) those reachmg the mark after the announcement are entItled to neIther converSIOn nor electIOn WIth credIt for tune on stnke demed to all, the twenty-one employees named m the umon's bneffall m the first category, Ms CurrIe m the second and Ms Lauper m the thIrd. In short, the dIfferences m the entItlements afforded to them are determmed by the terms of the settlement, not by credItIng some wIth tune on stnke wIllIe denymg like credIt to others IV The employer's approach to detennmmg when employees became elIgible for converSIOn does not contravene artIcle 31 15 of the collectIve agreement, the settlement or the ImplIed contractual prohIbItIon agamst arbItrary and dlscnmmatory treatment Havmg come to thIS conclusIOn, I need not consIder the employer's alternatIve argument based upon the return to work protocol Dated at Toronto thIS 9th day of Apnl2003 ~ RIchard Brown VIce-Chair