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HomeMy WebLinkAbout1982-0511.Becker.83-05-16IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAI.NING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Employer: N. J. Robinson Staff Relations Officer Staff Relations Division Civil Service Commission Hearing: April 25, 1983 OPSEU (Teresa Becker) Grievor - and - The Crown in &ig$t of Ontario (Ministry of Transportqtion and communications) Employer J. w. samL+e1s J. McManus P.D. Camp Vice Chairman Member Member L. Stevens Grievance Officer Ontario Public Service Employees LJni,qn : b -2- TABLE OF CONTENTS Introduction . . . . . . . . . . . , . . . . . , . . , Article 24 and the Plqemenf Process . . . . . . . . . Conclusions ..... ) . .., .. , ........ List of Exhi bits.......: ... . ....... Page . . 1 . . 3 . . 11 r . 15 -3- Introduction The issue in this matter is whether or not the process for placing surplus bargaining unit employees complies with Article 24 of the Collective Agreement. The griever joined the service of ,the Government of Ontario in October 1969, and commenced work classified as a Data Processing Technician 1. From May 1978 until August 29, 1982, she was a Data Input Technician with the Ministry of Transportation and Communications (MTC), classified as a Data Processing~ Technician 4 (DPT 4). The maximum annual salary f,or a DPT 4 in August 1982 was .$21,098. In January 1982, the grievor was told that her position would be one of those going to Kingston, as part of a planned move by the Ministry. She wa; one of the employees who could not, or would not, relocate to Kingston, and therefore she was identified as a surplus employee, with a prospective lay-off date of September 2, 1983. She was then subject to the process established for placing surplus employees under A~rticle 24. On August 20, 1982, she was-assigned to the position of Inside Examiner at MTC's‘John Rhodes Centre, classified as a "Clerk 3, Ggnera.1" , a classification with a maximum annual salary at .the time of $17,875. This was her'first position in the Clerk General classi- fication. Her salary was "red-circled" pursuant to Article 5.5 of . . the Collective Agreement. -4- That very afternoon, the grievor learned from Topical that a DPT 4 position was vacant in the Ministry of Government Services (MGS). This was the position of Data Librarian in the Downsview Comput.ing Centre. When she raised this opening with the Personnel Officer for MTC, he told her that she had already been assigned to her new position in MTC, therefore Article 24 no longer applied to her, but she was free to apply for the position in YGS. She did so, was interviewed, but vas unsuccessful. Subsequeqtly, she also applied for two further vacancies classified as DPT 4, but was unsuccessful in both applications. The griever claims that her employer, the Government of Ontario, has violated Article 24 of the Collective Agreement by assigning her to a Clerk 3 General position when there were vacancies at the DPT 4 level to which ahe could have been assigned. The parties agreed that this Board should first hear evidence and argument concerning the process used to place employees under Article 24 I and that we should give our decision on its validity .under Article 24. Then,.if.we decide that the employer has violated the Collective Agreement, we'would go on to hear evidence and " argument concerning the griever's qualifications for the three positions for which she applied and was unsuccessful. This is our award concerning Article 24 and the placement process. -5- Article 24 and the Placement PrOCeSS In 1982, the Government of Ontario was faced with large numbers of SUrplus employees, primarily because of major relocations taking place in three ministries - Health (the OHIP office), MTC, and Community and Social Services (Corn. SOC.). By August 1982, there were about 700 surplus employees province-wide, and some 600 from the Metro area. In Article 24, the Collective Agreement sets out certain terms and conditions governing the re-assignment of these surplus employees. Article 24 24.1 24.2.1 provides: Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent assign- ment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this Article. Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%)-.above nor twenty percent (20%) below the maximum salary of hisclassifi- as follows:. ..:e cation, - a vacancy which is in the:same class or position as the employee's class or .position; - a vacancy.in a class or position in which the employee has served during his current term of continuous.service: or - another vacancy. 24.2.2 24.2.3 24.3.1 74.4 24.5 -6- With mutual consent, a surplus employee shall be assigned to a vacancy in his ministry beyond a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary. maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification. Relo- cation expenses shall be paid in accordance with the provisions of the Employer's policy. Where an employee has not been assigned in accordance with sub-sections 24.2.1 or 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary~maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (2'0%) below the. maximum salary of, his classification, as follows: - a vacancy which is in the same class or position as the employee's class or position: - a vacancy in a class or position in which the employee has served during his current term of continuous service: or - another vacancy~. Where an employee is assigned to a vacancy in accordance with sub-sections 24.2.1, 24.2.2 or 24.2..3, section 5.5 of Article 5 (Classi- fication Procedure) shall apply. An employee who does not accept an assignment in accordance with sub-sections 24.2.1 or 24.2.3-shall be laid off and the provisions of sections 24.5 and 24.6 shall not apply. Where an employee has not been assigned to a vacancy in accordance with sub-secti0n.s 24.2.1, 24.2.2 or 24.2.3, he shall be subject to play-off in accordance with the following applicable sections. . . . . . . . . . . : '. - 7 - 24.13 It is understood that when it is necessary to assign surplus employees in accordance with this Article, the provisi,ons of Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply. . . . . . . . . . . Article 5,5 deals with the salary adjustment of employees assigned under Article 24: 5.5.1 Where, because of the abolition of a position, an employee is assigned: (a) from one position in a ministry to another position in the same ministry, or (b) from a position in one ministry to a position in another ministry, and the position to which he is assigned is in a class with a lower maximum salary than the maximum salary for the class oftheposition from which he was assigned, he shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the assignment takes place. 5.5.2 Sub-section 5.5.1 applieaonly where there is no position the employee is qualif,ied for, and that he may be assigned to, and that is: (a) in the same classification that applied to the employee's position before-the position was abolished, or -(b)'in a cl assification having the same maximum salary rate as the maximum salary rate of the classification that applied to the employee's position before the position was abolis,hed. i: I - 8 - Our primary focus is on Articles24.2.1~and 24.2.3. It is to be noted that these two provisions are virtually identical, and set out the conditions under which the surplus employee will be assigned to a new position. The,only difference is that Article 24. deals with a new,position within the employee's current ministry, whereas Article 24.2.3 deals with a new position in some other ministry. And the issue is whether or not it is legitimate for the employer to assign the surplus employee to a lower-paying job in his or her own ministry when it is possible to assign the employee to a position in some other ministry which carries the same tilassi- fication and pay as the employee currently enjoys. The procedure used by the employer to assign the griever to her new position was as followS (much of the procedure is set out in Exhibit 4, a memorandum on "Staffing Procedures - Bargaining Unit Surplus Employees, Metropolitan Toronto"): 1. As soon as she was identified as a surplus employee, she filled out a job application form, setting out all her experience and qualifications. This form was kept in the Personnel Office at .MTC, and the Civil Service Commission was told her name, current job classification, seniority date,~~ and current ministry. 2. The Civil Service Commission placed her name on a list of surplus ,employees, in order of seniority. -. ^ -9- 3. The Personnel Office in MTC proceeded to look for vacancies within MTC to which the griever could be assigned under Article 24.2.1. 4. The Civil Service Commission published a list of job classes for which the Commission anti- cipated it would have qualified surplus employees, within the salary parameters under Articles 24.2.1 and 24.2.3. In other words, the Commission announced to all managers in the government service that there were surplus employees who had to be placed under Article 24 and.here was the list of job classes for which at least one of these employees appears to be eligible. This list was circulated to all persons with staffing responsibility within Metro Toronto, or.40 kilometers from the places of work of the surplus employees. 5. Several ministries, with significant. numbers of surplus employees within their own ministries,~ maintained the application forms of their own .~surplus employees. In mid-1982, these ministries were Health, MTC and Com.~ Sot. When a vacancy would arise within such a ministry, it would not be announced to the Civil Service Commission until the ministry had decided that none of its own surplus employees were qualified to fill the - 10 - position. And, if the position was filled internally, the ministry would inform the Civil Service Commission so that the employee's name would be deleted from the list of surplus employees maintained by the Commission. The Commission maintained the application forms for surplus employees from ministries which did not maintain their own files. 6. Thus, the Civil Service Commission would learn of vacant positions in two situations: a. when the position first became available, if it was in a ministry which did not have many of its own surplus employees and which did not maintain the application forms of its own surplus employees; or b. when the ministry established that none of its own surplus employees was qualified to fill the vacancy, if it was in a ministry which had, a significant number of its own surplus employees and maintained the application forms for these employees. Such vacant positions were announced by the ministry concerned.by sending a copy of the I. - 11 - job advertisement and selection criteria to MTC, OHIP and Corn. Sot. Reassignments Teams and the Recruitment Branch of the Civil Service Commis- sion, indicating the contact name and phone number for the position. In response to this announcement the Reassignment Teams in MTC, OHIP and Corn. Sot. would --Screen the resumes of their own surplus employees on the basis of seniority to determine those apparently qualified. --Give the Recruitment Branch of the Commission the names of the three most senior surplus employees apparently qualified, indicating the dates of contin- uous service: or inform the Recruitment Branch that there were no such employees. The Recruitment Branch of the Commission would --Screen the application forms maintained in its office. --Prepare an integrated list of apparently .. qualified employees by. seniority. --Select.the most senior person on the list, if this person was not being inter- viewed for any other vacancy and if this .~ 9. 10. - 12 - was the first list on which the employee appeared as the most senior, and notify the releasing ministry for that employee ~~. to submit his or herresume to the ministry with the vacancy. If there was no such senior person, then the Commission would select the three most senior employees on the list and notify their releasing ministries to submit the resumes to the ministry with the vacancy. --Notify the ministry with the vacancy that these resumes were coming. --If there was no apparently qualified employee among the surplus employees, issue clearance to the ministry with.a vacancy to go ahead with a regular job posting. Employees would~not be sent-for interviews for more than one vacancy at a time, unless one of the vacancies was in the employee's own ministry. An employee would be assigned to the first vacancy for which he or she was found to be qualified. - 13 - 'Conclusions At the outset, it is important to make it clear that this Board cannot create a set of rights and obligations which seem, to the Board, to be the most desirable or reasonable. Our role is restricted' ta interpretting the Collective Agreement arrived at by the parties. What have they said about their respective rights in their Agreement? Secondly, it is worth noting that, from the evidence we heard about the process of relocating surplus employees, it is obvious tha+ it is a very complex matter, and will always be terribly complicated when there are many surplus employees, as there were in mid-1982. There is clearly no simple way to assign the surplus ' employees so that each one is placed in a new position which pre- serves all the employee's former salary and leaves t~he employee doing the same or roughly similar work. _ In this situation, the Board must take the Collective ": Agreement as it stands, and, where there may be ambiguity, interpret the instrument in a reasonable fashion which will enabletheparties to have a workable relationship. In our view, Article 24 is intended to offer a certain measure of job~security 'for surplus employees by providing for a new assignment to a vacant position, which the employee is qualified to perform,.and which meets certain criteria. These are - 14. - - within 40 kilometres of the employee's current headquarters - a salary' maximum no greater than 3% above or lesser than 20% below the maximum salary of the employee's current classification - in the same class or position as the employee's current class or position; or in a class or position in which the employee has served during ~. his or her current term of continuous service; or some uther class or position. Article 24.2.1 provides that this position shall be in I the employee's own ministry. Article 24.2.2 allows for an assignment to a vacancy in one's own ministry beyond 40 kilometres "with mutual Sonsent". Then Article 24.2.3 provides for an assignment in some other w, -"where an employee has not been assigned.in accordance with sub-sections 24.2.1 and 24.2.2". These qualifying words in Article 24.2.3 make it clear that, if an assignments can be made within the terms of Articles 24.2.1 or 24.2.2, Article 24.2.3 does not come into operation. Therefore, it is possible to be assigned to a position karrying a re~duced salary in one's own ministry, though there are vacancies elsewhere at the same level as the employee's current classification, available at the Same time. - 15 - It would also appear that, when consideration is being given under Article 24.2.1, the employee must be assig,ned to the best position available within his or her own ministry, depending upon qualification to perform the work and seniority. The ar,ticle lists the vacancies to be considered in descending order, from those in the same class or position as the employee's current class or position, down to any other vacancy within the salary parameters established. And then a similar priority attaches to consideration under Article 24.2.3. However, Article 24.2.3.need not be considered if an assignment can be made under Articles 24.2.1 or 24.2.2. The Union argued that, to use Articles 24.2.1 and 24.2.3. in this way, would violate Article 5.5.2. We do not agree. Article 5.5.1 establishes a "red-circlingH provision to protect the salary level of an employee moved to a position in a.classifi- cation with a lower maximum salary than the maximum salary available in the class or position whit.h the employee had held. Article 5.5.2 simply provides.that this red-circling will only apply if there is no position the employee is qualified for, and may be assigned to, that is in the same classification that applied to the.employee or that is in a classification having the same maximum salary rate as the maximum salary rate of the employee's last position. Article 5.5.2 establishes certain limitations on the red-circling. provision. It doe,s not govern the procedure for ie-assignment of surplus employees. - 16 - In sum, we find that the procedures established by the employer, as set out in this award, do'comply with Articles 24.2.1 and 24.2.3 of the Collective Agreement. The shortcomings in the process suggested by this Board in Van Steen,333/81 (at p. 13-14), and Heginbottom, 647/81 (at page 7) have been overcome. Thus, the grievance is denied. '. Done at London, Ontar io, this 166 day of I 1983. "I dissent" ,(to follow) -- J. McManus, Member P.D. Camp, Member 6: 2000 1: 3534 1. 2. 3. 4. 5. LIST OF EXHIBITS "Staffing Procedures" Reply to the grievance from Ministry of Government Services Reply to the grievance from Ministry of Municipal Affairs and Housing Seniority List of surplus employees Reply to the grievance from Ministry-of Transportation and Communications . .