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HomeMy WebLinkAbout1984-0052.Petrie.84-10-17.,.. _ ,.’ : _. ,.: . . .: :: ,, 52184, 53184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Robert E. Petrie) and Grievor The Crown in Right of Ontario (Ministry of Labour) Employer R. J. Roberts Vice-Chairman 8. Switzman Member A. Reistetter Member For the Grievor: I. Freedman Legal Director Ontario Public Service Employees Union For the Employer: W. J. Gorchinsky Chief Staff Relations Officer . Staff Relations Division Civil Service Commission Hearing: July 13, 1984 DtCISION This arbitration arises out of a grievance alleging that the‘ Ministry violated the job posting requirements of Article 4 of the collective agreement when it assigned a surplus Occupational Health and Safety Officer from Sudbury to duties in its office in Barrie, Ontario. For reasons which follow, the grievance is dismissed. At the outset of the hearing, the parties submitted the following stipulation setting forth the operative facts of the case: STATEn!.?NT OF FACTS 1. In the early part of 1983, the Director of the Industrial Health and Safety Branch decided that there was insufficient work for the five inspectors located in Region 19, Sudbury. Upon a work load review, it was determined that there was a back log of work in Region 11, Barrie. 2. Following agreement between the management at Sudbury and the officers of Local 630, OPSEU, Sudbury, it was agreed that one of the officers at Sudbury could be treated .?I!3 surplus, regardless of seniority. Accordingly, Mr.Ewing, as the surplus employee in Sudbury, commenced work in Barrie, Region 11, on June 6, 1983. 3. No other employee was hired for Mr. Ewing's former position in Sudbury. 4. Mr. Ewing did not replace any other employee in Barrie. 5. The parties agree that no new classification was created in the Bargaining Unit in this matter. .,. ,. .~ .,:. 3. It also was stipulated that there was no change in then overall number of positions for Occupational health and Safety Inspectors in the' province as a result of the reassignment of Mr. Ewing from Sudbury to Barrie. In its argument; the Union drew into play Article 24. 2.2 of the collective agreement, which readsas follows: 24.2'.2 With mutual consent, a surplus employee shall .be assigned to a vacancy ,in his ministry beyond a forty (40) kilometre radious of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greate.r than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification. +elocation expenses shall be paid in accordance with then provisions of ~the Employer's policy. .The Union took the position that the element of- "mutual consent" which must exist for this provision to apply, required the consent of the Union, and not that of the surplus employee. Because .the Union did not, give its:consent. to the I assignment of Mr. Ewing to Barrie, it was submitted, Article 24i2.2 did not apply and the "override" of the job posting 7 provisions set forth in the related subsection of Article 24, *, Article 24.13, likewise was inapplicable. Article 24.13 reads: 4. 24.13 It is understood that when It is necessary to assign surplus employees in accordance with this Article, the provisions of Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply. Since this "override" was ineffective in the present case, the Union submitted, it was incumbent upon the Ministry to post the job in Barrie and allow interested employees to compete for it. The Ministry resisted the submissions of the Union on, inter *, the following grounds: It was argued that the consent referred to in Article 24.2.2, above, was that of the employee, and not the Union. Secondly, it was argued that, in any event, there was no need to post the job in Barrie because no "vacancy" existed in that location, within the meaning of the posting provisions of Article 4.1 of the collective agreement. This provision reads, in pertinent part, as follows: 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised servicewide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. -_____I ; ‘. :. : : 5. Because a "vacancy" must occur bef,ore Article 4. .l comes into play, the Ministry submitted, it didn't matter whether 1 Articles 24.2.2 and 24.13 applied. The job .in Barrie still would not have been required to be posted. After giving the matter careful consideration, we do not believe that it will be necessary to 'reach the second submission of the Ministry, above,, in order to resolve the present case. Assuming arquendo that a "vacancy" did exist in Barrie, it would appear that Articles 24.2.2 and 24.13 of the collective agreement nevertheless applied effectively to override the job posting requirements of Article 4. On balance, it seems tha~t the element of "mutual consent" in Article 24.2.2, does not .require the consent of the Union. It solely requires the consent of the surplus employee. This interpretation seems most 'consistent with the overall scheme of Article 24. The entire focus'bf this Article is upon su.rplus employees. It attempts to provide job security for them by giving them prio;ity in filling certain vacancies within and without their Ministries. Article 24.13 makes it' clear that in order to provide' this form jx of jobs sedurity to surplus employees, both' Union and management agreed to forego any rights they might otherwise have had to require such vacancies to be filled with more desirable candidates. I ,:. I :~ ” Given this concentration of Article 22 upon the rights of surplus employees, it would seem most natural to infer that the parties intended any reference to consent to involve that of the surplus employee. And indeed, a comaprison between the wording of Articles 24.2.1 and 24.2.2 seems to bear this out. Article 24.2.1, which addresses the assignment of a surpius employee to 'I a vacancy in his ministry within a forty (40) kilometre radius of his headquarters.': does not require any mutual consent. It mandates that if all requirements are satisfied, the surplus employee "shall" be assigned to that position. In their submissions, both parties tended to agree that this most likely was because neither Union nor management believed that being required to move to a job within a 40-kilometre radius would occasion undue hardship to the surplus employee. Article 24.2.2, however, presents a different story. It addresses the assignment of a surplus employee to positions beyond a 40-kilometre radius of his headquarters. As a condition precedent to such assignment, however, "mutual consent” is required. Again, both parties tended to agree that this most likely was required because of the hardship that would fall to a surplus employee in, e.g., having to move his residence to a different location, and because moving expenses might have to be paid by the Ministry which was :. .i‘.$ :.( 5.. .. . . . . ., . \ 7. involved. On this basis it seems self-evident that the element of "mutual consent" must have been intended by the parties to refer to the consent of the Ministry and the surplus employee. Neither within the overall context of Article 24 nor within the specific context of Article 24.2.2 is there any indication that one more consent, in the form of consent from the Union, was intended to be required. In the.present case, both the Ministry and the surplus employee, Mr. Ewing, consented to his reassignment from. Sudbury to Barrie. There was nothing improper about this consent. On the evidence, -Assuming arguendo that Mr. the meaning of Article 4, 24.2.2 and 24.13 of the co it was not induced- or coerced. Ewing filled a "vacancy," within n the office in Barrie, Articles lective agreement applied effectively to override the job posting requirements of Article 4. Because the entire case of the Union was predicated upon the contention, that Article 24.2.2 required the consent of the Union, and because we have resolved this contention against the Union, it does not appear to be necessary for the, Board to proceed further to consideration of other issues. The Union, for example,~ did not place before the Board any contention that t4r. Ewing should not have been assigned to Barrie because in doing so, the Ministry exceeded the bound of its management rights under The Crown Employees . , . . a. Collective Bargaining Act with respect to assignment of an employee to a position which might not constitute a "vacancy" within the meaning of Article 4 of the collective agreement. Without the benefit of full agreement upon such an issue, so that the positions of the parties would be made clear, it would not appear to be appropriate for the Board to attempt to resolve it. The grievance is dismissed. DATED AT London, Ontario this 1984. 17 day of October. R.J.Rob&, Vice-Chairman B. Switzman, Member A. Reistetter, Member