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HomeMy WebLinkAbout1984-1398.Union.85-08-20i ., . i :“,, TE‘EP”ONE’ rrs/sos- 0698 139s/s4 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) and Crievor The Crown in Right of Ontario (klinistry of Education) Employer: Before: C. Brent Vice-Chairman S. Kaufman Member F. T. Collict iMember For the Ciievdr: P. J. J. Cavalluzzo Counsel CavaJluzzo, Hayes & Lennon Barristers & Solicitors For theEmployer: M. Milich Staff ,Relations Officer Staff Relations Branch Civil Service Commission Hearing: June 19,1985 , i .- _ 2 (i Ttie grievance which gives rise to this matter (Bx. 11 is dated I ~. I . 3e;ember 5, 19t14.‘ The issue which the Union placed &fore the Board is whether the Employer was obliged to give it advance notice Of its intention to eliminate a bargaining unit position and create i,n its stead a management position. The Union is seeking a declaraticn to the effect that the Employer is obliged to notify it in advance *of a change of this sort and to consult and discuss the change with the Union prior to instituting it. The parties didnot call any witnesses. They agreed on a Statement of fact which was filed with the Board. That statement is reproduced below: Regarding the Union Grievance between O.P.S.E.U. and the Mtiistryof Educatigl - G.S.B.' d1398/84: 1. 2. -. 3. 4. The positions in question in this grievance are : '(Cl) Supervisor - Steno Pool, student Services imit whit,‘ was in the bargaining wit and classified as Clerk 4 General. (b) Supervisor - Support Services classified as ~~-11 in the Management Compensaticn Plan. The position of SuperVisOr - Support Services superseded the position of Supervisor, Steno Pool, Student Services Unit as a result of a - rganltatron of the Educational Services '~~~~. ~.,: - .-' Set zcn in the Falf'df 19B2: The Ministry drafted a new specification for the position and classified the position of Supervisor, Support Services as CM-11. The position was deemed to be excluded from the bargaining unit Mder the criteria set out in the CrWn Employees Collective Bargaining Act. The Union was not consulted prior to the action taken by the Ministry to~exclude the position from the bargaining unit and then ' lnatter was not submitted to the Ontario Public Service Labour Relations Tribunal for a' 1 detzrminaticn. :. 5. 5. 7. 8. The duties of the positidn of Supervisor, Steno Pool were inkorporated with the duties of the Superv-lsor; support Sdrvices. The position of Supervisor, Steno Pool was deleted. In November, 1985, the position SuperViSOr, support Services was posted as an Acting appointment. OkDecember 5, 1984, the Union submitted its policy grievance. . . . . The incumbent was given notice of the hearing and did not attend. The Union asserted that the Employer's failure to inform it of the proposed change went to the cornerstone of the collective bargaining i relationship. It referred us to various articles in the collective agreement and to provisitis i? them EmplOYeeS COlleCtiVe Bargaininq ACt in support of its contention that it had the right to be notified. The Exployer's positian was simply that there was no obligatim to inform the Union or to consult with itin this case. It asserted that there,was nothing in the collective agreement and the Act to support the view that there was &?y such obligation. We have read and considered the terms of the collective agreement to which we were referred, and the provisions of the Act and the cases i to_whic\ we --+=re*ffy=~& .~ FOr the purpo_se of this case'we must assume .,. . . % that the new position is not a bargaining unit position. we agree that there are provisions in the collective agreement, such as Article 5.8, which specifically require the Employer to notify the Union in advance of certain changes. we further agree that, assuming the position in question is not a bargaining w&t position, the Union does not have the right to bargain on behalf of the person who ,' occupies the position, nor,is there any right to come before this Board I to grieve con'cening the method by which the position is filled. - 4 Section 19(l) of the Crown Employees collective Bargaining kct clearly provides that certain. functions (including the right to determine complement and organization) shall be the exclusive frnctiar of the Employer, and that the right will not be tie subject of collective bargaining. Quite clearly, the statute provides that the employer cannot bargain away those rights, but it could probably bargain concerning the manner in which those rights would be exercised. The collective agreement already deals with some procedural aspects concerning the exercise of managements rights. We'cannot ignore its silence concerning re-organizations of this sort, since it deals so specifically with some chazges, and since this situation is one which results in a no>-bargain+? unit position being created. The'fact that this position is one which is not in the bargaining,unit also makes it milch more difficult for us to imply any obligation to notify in advance and/or to consult. Having said that, we are led to the conclusion that we do not have the jurisdiction to make the declaration which the pion requests. To put it another way, the Union cannot show that the Employer has violated anyprovision of the collective agreement and so isnotentitledto a However, in spite of that conclusion, we do'wishto register our agreement in principle with the submissions made by the Union to the effect that it makes eminent good sense to notify the Unicm in advance of a change of this sort. The Union's interest is'being directly affected~by the potential loss of a bargaining~unit positian, and one of its members i% aiso going to be directly affected. Surely it can be seen that, alghough the Union may be powerless to affect the decisim, would want to be aware of any concrete pla.?s .xhlch directlj' affect ICS rdpr.asrntation rights. The Enployar certaU1ly has the riyht to do what it did and to do i,t in the way in which it did. The exercise of management rightS.in a manner which does not take into account thS legitimate +ntelests of the bargaining agent may lehd avmtually to the ddmandtohave restrictions beingpiacedon the manner in which those rights are to be exercised. For all of the reasons set oilt above, the grievance is dismissed DATED AT LONDON, ONTARIO THIS 20th DAY OF August , 1985. ^ Gail Brent, Vice-Chairmdn /q! j&9 /7t&L- s. Kau.fman. Member$ : i _ ,, ? /.’ ,.’ .’ ; ;‘. ,..’ ’ I’ ;, . :.sc.f ; . , - F. T, Colllct, Member , : i