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HomeMy WebLinkAbout1985-0302.Calicchia.86-09-24I _ . ., ‘. ONTA!?wJ CROWN EWLDYEES GRIEVANCE SETTLEMENT BOARD TE‘EP”ONE~ rrS/%e-0.~88 0302185, 0602/85 . r IN THE MATTER OF AN ARBITRATION - IJ;lder - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - Before THE GRIEVANCE SETTLEMENT BOARD . Bet&en OPSEU Cc. Calicchia) - and - The Crown in Right of Ontario (Ministry of Tkansportation and Communication) Before: . R.J. Roberts Vice-Chairman 1.J:Thomson ~' Member A.G. Stapleton Member For the Grieve;: P.A. Sheppard -_ ,Barrfster & Solicitor For the Employer: K.B. Cribbie Senior Staff Relations dfficer Human Resources Branch Ministry of Transportation and ,Communications Hearing: * 7 April 21, 1986 Grievor Employer 2. i DECISION This is a job posting case. The grievor applied j for an advertised position as a Vehicle Inspector 2 at the Faljtaff facility of the Ministry. When he was advised that he was in- elLgible to apply because he was located outside~the area of search specified by management .the grievor filed the grievance leading to the present proceeding.- For reasons which follow, the grievance is dismissed. I For quite some time, the Ministry operated certain sa!ety lanes at 262 Falstaff Avenue in Downsview, Ontario. This facility was adapted to provide yearly inspections for mechanical safety; of various types of vehicles. By far the biggest user of this ; facility was Metro Toronto, which required cabs and tow trucks : to go through the lanes each year to keep their licence. In addition, Metro Toronto sought to have its police cruisers similarly in- 1 spected on a yearly basis. In February, 1984, the grievor became an Acting Senior Inspector in the safety lanes at Falstaff . In this, capacity, : he replaced Mr. B. Young, who had been promoted into another position. At that time the complement of bargaining unit staff at Falstaff generally comprised two Senior Inspectors, ,classifiod at the grievor's then level of Vehicle Inspector 2, and a number: of Vehicle Inspector l's, who generally worked under their direction 3. The grievor continued in this position until the end of 1984. ,_ At that' time, however, the Ministry~ decided to'make a drastic~ change. "Instead of operating the lanes in its own right, . . with the facility being open to the public, the Ministry decided to operate. it solely for the purpose of inspecting vehicles re- f,erred to it.by Metro Toronto. This decision was made pursuant to an agreement with Metro under.which the Ministry's exclusive . services were.provided in exchange for a fee. 1' . . . . It w&evident that the agreement required a substantial downscaling of the Falstaff operation. While Metro had been the facility's majorcustomer,-.it still had only provided, 60-65% of its business. Clearly, the complement of bargaining unit staff would be'required to shrink:to about two-thirds of its ~original . size. In line with this, the grievor, who was the junior of the two people in the position of Senior Inspector, was notified that his position-had been declared redundant and was not going to be filled by the Ministry ,from that point onward. The grievor was required to take a position as an Area In.spector, inspecting vehicles in a geographic'area. While this position also was classified at.the level of vehicle Inspector ~2, the grievor ,did not regard it as being as desirable as.the position at Falstaff. .It required more travel, was not as safe, and, in the grievor’s opinion, provided less visibility for purposes of future opportunities for promotion. Mr. T. Sharp, who was the Regional Manager for the Central Region (Drivers and Vehicles1 at the Ministry, testified '; I that this narrow area of search was defined because there already , was a surplus situation at the Falstaff facility. The agreement ! .I with Metro Toronto only required one Vehicle Inspector 2 and three I V,ehicle Inspector 1's. Even without Mr. Rendell, the facility still had five Vehicle Inspector 1’s. The head of Personnel Services at Central Region, Mr. Renderson, testified that this A little less than a month after the grievor departed from Falstaff, the other Senior Inspector, Mr. J. Rendell, i officially notified the Ministry of his intention to retire. I The evidence indicated that prior to this time, the Ministry i , had some idea that Mr. Rendell was going to retire but was unaware of precisely when. Because this 'retirement would leave the Ministry without any Senior Inspector at the Falstaff facility, it was ! I decided that a job competition ought to be instituted+ The posting I which was published for this competition narrowly limited the area' I of search to "staff at the Falstaff Avenue safety lanes only". ; was .a sufficiently-sized pool of potential applicants for a corn- : petition. He stated that. as a general rule, an area of search : should be big enough to attract at least three qualified and eligible people. From the five Vehicle Inspector l's at Falstaff, he ,testified, he identified at least three such potential applicants. : 5. -1 . . On cross-examination, Mr. Henderson.further testified that when this area of search was identified, management was . ' endeavoring to follow the ,policy of the Ministry with respect to such matters. In this regard, the Ontario Manual of Admin- istration provided, in pertinent part: .' AREA OF SEARCH 'Area of ~: Search" l'be area deemed necessary by management to attract eligible and qualffled candidstes for a vacancy. . l * Considerations ~in~Ba~ermlninq Area: The following shall be considered in determining a reason- able area of search: ., all relevant Acts, policies and procedures relating to staffing actions;, . rhe size of the candidate population required co identify not less than three qualified candidares; . the need to provide.career opportunities for civil- servants; . the need, when recruiting outside the civil service, to ensure that 'civil servants are given 'opportunities EO apply and to be considered; . the urgency and cost in satisfying the staffing needs of the ministry program. Essentially, the Manual made it clear that the Brea bf search -' was to be~defined in the subjective judgment of management, and set forth a number of criteria to be considered in making this determination. The Manual also provided that "only applicants ~thePdesiqnpt& area-of-search shall be considered." Central Region Drivers & Vehicles 5000 Yonge Street, Willowdale, Ontario M2N 6E9 case, however, there was a divergence from this instruction. I Mr. V. Williams, who had been assigned to the Highway Carrier / Section from Vehicle Inspection on June 18, ld04, was allowed to apply. This divergence was made pursuant to an apparent under- standing which had been reached between the Ministry and Mr. I Williams in the presence of K. Donahue, a Union Representative: It was confirmed, in pertinent part as follows: I Y. Uillianr5 10 Sandrifc Square Searboro, Ontmio MlE 6N6 June 20, 1564 ; I 'Da& Vorni '~. I I’tio;id’likr,to confirm rho rrsultr of our meeting of Junm / 10ch,. 1984’-&&infitg’pour r~arafgnment to the Highway Carrier , Section. 1. 6. I fffcctivo June lath, 1936, you arc reassigned to the I ilighvay Carrier Section. from Vohfclc 1nrpec:ion. at the I Highvay Carrier 2 level, in accordance with Section 24.2.1 of the Collrctfvr Agreemcnr.. . . Should a vacmcy’occur vithin the Vehicle Inspection' section in Central Region vithtn the ncxc 12 months, VC, will ensure you are #llg!bl* to apply to the pcsredl coe?e:i:icn.. - . Yours sincerely, , A.G. Sharp kanager kivers h Vohfcles Cen:ral Region Encl. CC: J. Henderson K. Donahue 0.P.S.E.U. As can be seen, Mr. Williams.was assured that he would be eligible to apply for any vacancy which occurred within the Vehicle In- spection Section in Central Region within the 12 monthsfollowing the.date of the letter. The grievor also applied for the position despite the fact that he then was outside the specified area of search. In due course, he was notified that he was'ineligible and '.. his application was returned to 'him. .He stated that this action angered him because he was aware that Mr. Williams had been allowed to apply from outside. Later, he found out that Mr. Williams did not proceed very far in the competition. He was denied an interview because~he did not . . meet the qualifications required for the job: Nevertheless, on.June 3 , .1985, the grievor filed the grievance leading to the present proceeding. In argument, counsel for the Union essentially attalcked the selection by management of such a narrow area of search i and its subsequent divergence therefrom in the specific case I of Mr. Williams.' The leading case in this area is Re Lavqin'e and Ministry of Transportation and Communications (19821, G.&B. No. 561/81 (Delisle). In that case, the Board said, in pertinent I part: I I We are satisfied here that the employer, given the task of managing public funds, promotes businesk efficiency by limiting the area of search and we see nothing in the Collective Agreement that in any; way limits that right. Counsel for the grievor : suggested that the ability in the employer to limit' the search held the seeds for the possibility of abuse in that the employer might, prior to posting, regard those who are eligible and then limit the area of search to ensure awarding the job to its preselected candidate. The short answer to that possibility I resides in the thought that then the employer would, be subject then to attack on the grounds of bad faith; in this case no allegation of bad faith was ; made nor evidence of the same led. . . . Id. at p. 6.; - It was concluded that because there was nothing in the collec+!ive agreement limiting management's right to determine the area of search, the jurisdiction of the board was limited to reviewing for bad faith that determination. I The facts of the present case do not disclose any , 1. Counsel for the Union did question the consideration of ' one other employee, Mr. Iqbal, but it seemed from the evidence that at the time that applications were called for in the post- ing, Mr. Iqbal was part of the Staff at the Falstaff faci,lity. . bad faith on the part of management when it limited the. area of search~to Falstaff and subsequently diverged from.this limitation in allowing Mr. Wilson to apply. This was not a case where the employer sought to abuse its discretion by gerrymandering the area of search to ensure that the grievor would be eliminated or that a preselected candidate would get the job. Indeed, on cross-examination, the- grievor insisted that he was not suggesting that-the Ministry set out to discrim- inate against him. He said that he did not know of any reason why the Ministry would want to do so. His main complaint was that Mr. Wilson, and outsider; wasallowed to apply in spite .of the limitation to Falstaff. The excep~tion made in favovr of Mr. Wilson, however, does not raise any inference of bad faith. This was made pursuant to an understanding which,.in good faith, a representative of the Ministry had reached with Mr. Wilson in the presence of a representative from the Union. While it may have been an inadvisable understanding and-one which did not bear an outright ~sanction from the Union ,-it fell far short of exemplifying bad faith. ,~. Moreover, the interests of the grievor cannot be said to have .been harmed by the exception which made for Mr. Wilson. Because he was considered to be unqualified for the position, Mr. Wilson never even was granted an interview. He was rejected at the pre-interview stage. It is more than evident that his inclusion in the field of applicants at the 1 pre-interview stage did not have any impact upon the outcome ! I of the selection procedure. This brings us to the second submission of couxel , 1 for the Union. It was submitted that the decision of management to limit the area of search to‘ Falstaff was reviewable for [ I more than mere,bad faith: it was reviewable for fairness and 1 equity. This submission essentially was based upon a general ! I statement in the Foreword to the Ontario Manual of Administration in which it was stated that the policies and procedures set ) forth therein will guide managers "in the fair and equitable 1 treatment of their personnel". These words, it was submitted ' 'I obligated management to determine the area of search in a fair' and equitable manner, and that it was not fair and equitable -- particularly to the grievor -- to limit it to Falstaff. , Assuming arquendo that it were possible for grievor: to oblige management to follow its own Manual of Administration, we would find that the requirements of the manual were followed to the letter in the present case. It is a basic canon of I construction that the more specific provisions of a document ; govern the more general. The manual contains within it specific provisions to be followed in defining the area of search. : These provisions were reproduced, in part, earlier in this I I award. The evidence indicated that management attempted to I follow these instructions in the instant competition and did, ! 11. in fact, determine that they were met by limiting the area of search to Falstaff. In particular, it was determined that Falstaff was sufficient to provide, as required, "not less than three qualified candidates". , But, in any event, it would be unusual for a management guide such as a Manual of Administration to act as the basis for any rights of grievors. These documents come from management and are meant for the guidance of managers. They are not 'negotiated with the Union in the manner of a collective agree- ment but are unilaterally imposed. Accordingly, in order to derive rights from a Manual of Administration, it would, it seems, be essential for a grievor to show that in his or her circumstances, management was estopped from diverging from the policies. and procedures set forth in its manual. In .the present case, the evidence fell short of estab- lishing any such estoppel. There was, for example, no evidence. to show that management intended to be legally bound by the pertinent provisions of its manual, in the sense of having represented to the Union by its words or actions that the Union could rely thereupon and not seek to protect the interests of its members in some other way. Likewise, there was no evidence to show that the grievor was lulled into a false sense of security by the words to which counsel for the~Union pointed. Indeed, it seemed from the evidence that he was not even aware of them. I 12. ; The grievance is dismissed. DATED at London, Ontario, this I 24th day of Sepcenb+, 1986 I I. &$omson Member I , /f~+&L& 'A. G. Stapleton I ember