GSB# 1773/02
UNION# 2002-0726-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Lisa Compagnone Counsel Management Board Secretariat
HEARING
June 11, 2003.
AWARD
This grievance arises as a result of the Employer filling a vacancy for the position of Conservation Officer in its Ignace office in September 2002. The position was not posted; no competition was held.
The employer asserts that under the terms of Article 6.1.2 of the collective agreement, it was permitted to fill this vacancy without posting or holding a fresh competition. The Union disputes the applicability of Article 6.1.2 in the circumstances of this case. Article 6.1.2 reads:
Notwithstanding Article 6.1.1 [the requirement to post a vacancy] above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position provided that a competition was held during the previous twelve (12) months. The Employer in these circumstances, is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position.
There are no outstanding individual grievances extant in relation to the facts which gave rise to this Union grievance. Further, the relief the Union seeks in this case is essentially declaratory in nature.
No viva voce evidence was presented. Rather, the parties filed and relied upon an Agreed Statement of Facts and a number of related documents which were marked as exhibits on consent. The agreed facts are as follows (the exhibits, referred to by Tab numbers, are not reproduced here):
The Union filed a grievance attached at Tab 1, which is presently before the Grievance Settlement Board.
The Union grieved the decision of the Ministry of Natural Resources to fill the Conservation Officer position in the Ignace office without a posting or competition. The Union alleged a breach of Ministry policy and Article 2 and Article 6.
In or about February 1, 2002 the Ministry of Natural Resources posted a vacancy for a Conservation Officer position in the Ignace office in the Dryden District [see attached posting at Tab 2 and job description at Tab 3]. Interviews were held in or about March 11, 2002.
On or about March 13, 2002 the Employer offered the Conservation Officer position in the Ignace office to Mr. Humberstone the successful candidate [see attached letter at Tab 4]. Mr. Humberstone was previously the Enforcement Supervisor, Lake Ontario Unit.
The Ontario Public Service strike and the ratification of a new collective agreement occurred shortly after the competition and filling of the Conservation Officer position in the Ignace Office.
Shortly after the strike Mr. Humberstone reported to the position of Conservation Officer in Ignace and he started in the position on or about May 14, 2002.
After the posting for the Conservation Officer position in the Ignace Office there was a vacancy for a Conservation Officer position in the Dryden Office. The Dryden District consists of offices in Dryden, Ignace, and a Fire Centre Complex in Dryden. Conservation Officers work out of the offices in Dryden and Ignace, and not the Fire Centre Complex.
Mr. Humberstone requested a lateral transfer to the position in the Dryden Office. The Union did not consent to the request. It is the Union’s position that its inability to consent to the request was due to the fact that a previous request for a lateral transfer to the Dryden office was denied.
In or about June 26, 2002 the Employer posted a vacancy for a Conservation Officer position in the Dryden office in the Dryden District. The revised posting clarified the location of the position, this revision was as a result of questions raised by bargaining unit members [see original posting attached at Tab 5, revised posting at Tab 6, and job description at Tab 7].
In or about August 15, 2002 Mr. Humberstone was one of three applicants interviewed for the Conservation Officer position in the Dryden Office.
In or about August 22, 2002, the Ministry of Natural Resources advised the Local Union President that Mr. Humberstone was the successful candidate for the Conservation Officer position in the Dryden Office. The Ministry of Natural Resources also advised that the Employer was considering relying on article 6.1.2 to fill the vacancy for a Conservation Officer in the Ignace office created by the departure of Mr. Humberstone.
In a letter dated September 4, 2002 the Ministry of the Natural Resources confirmed to the Local Union President that it would rely on article 6.1.2 to fill the vacancy for the position of Conservation Officer in the Ignace Office. It also advised that it would rely on the results of the competition held for the Dryden Conservation Officer position, as this was the most recent competition [see article 6.1.2 of the existing collective agreement at Tab 8, and the letter at Tab 9].
As a result of the last round of negotiation article 6.1.2 was amended [see article 6.1.2 of the previous collective agreement at Tab 10 and related interpretive bulletin at Tab 11].
On or about September 24, 2002 the Ministry of Natural Resources announced that a candidate in the competition for the position of Conservation Officer in the Dryden Office would fill the vacancy for the Conservation Officer position in the Ignace Office [see attached e-mail at Tab 12].
Thus, in their most essential form, the facts, for the purposes of this decision, appear to be as follows.
A competition was held for the position of Conservation Officer in the Dryden office of the Dryden region. The successful applicant in that competition previously held the position of Conservation Officer in the Ignace office of the Dryden Region. Consequently, the Ignace position became vacant as a result of his departure to Dryden. In the following month the Employer announced that it would and did fill the vacant position with a candidate from the recently held Dryden competition. It did so in purported reliance on Article 6.1.2.
Union position
The Union advances a number of arguments in support of its position. However, its principal contention relates to the meaning of the words "similar vacancy or new position" found in Article 6.1.2. Perhaps borrowing on a real estate truism, the Union argues that location is such a central and pivotal element of any position or vacancy, that vacancies or new positions in different locations can or should not be viewed as similar.
In arriving at that conclusion the Union points to both the collective agreement and the jurisprudence.
I am asked not to consider Article 6.1.2 in isolation but rather in the context in which it appears. Particular emphasis was placed on the Articles which precede and follow it. For ease of reference I set out those three articles:
6.1.1 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. Where practicable, notices of vacancies shall be posted either electronically or on bulletin boards and, upon request, shall be provided in large-sized print or Braille where the posting location has the capacity to do so.
6.1.2 Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position provided that a competition was held during the previous twelve (12) months. The Employer in these circumstances, is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position.
6.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, and the hours of work schedule set out in Articles UN2 and COR 2, (Hours of Work). Where a position is posted within the Ontario Public Service, the internal notice of vacancy shall also state the work location where the position currently exists, that the position is represented by the Union and the particular bargaining unit which contains the position.
Articles 6.1.1 and 6.2 were described as creating mandatory obligations on the Employer. Article 6.1.2, however, provides the Employer with a discretion, in limited appropriate circumstances, to avoid what is otherwise the mandatory obligation to advertise a position and to thereby invite fresh applications to be considered.
And while, as the Employer clearly commented in response, Article 6.1.2 undoubtedly provides an exemption from other obligations, the other provisions of the collective agreement should still be considered in amplifying the meaning of the word "vacancy" as used in Article 6.1.2
In that regard Article 6.2 requires that the notice of vacancy "state the work location". Thus, the parties have identified location has an essential element of any vacancy. Different vacancies, however otherwise they may appear to be similar, should not be viewed as such if they are in respect of different work locations.
An analogous argument was advanced in respect of the word "position". Relying on certain dictionary definitions proffered in the case of Re CFRN-TV and Communication, Energy and Paperworkers Union of Canada (1977), 1997 CanLII 25031 (CA LA), 69 L.A.C. (4th) 37 (Elliott), a similar approach is urged to conclude that location or place is a central element of any position.
The Union also advances a compelling argument about the potential practical consequences of any acceptance of the Employer's position in this case.
The logical extension of the Employer's interpretation of the collective agreement would permit it to rely on the results of a geographically limited competition held in one corner of the province to fill a vacancy which might arise up to a year later in an opposite corner without posting the job or giving interested local employees the opportunity to apply.
Should the Employer follow such a course of action, the Union will undoubtedly feel an obligation to advise its members to apply for all vacancies or new positions in which they have any potential interest regardless of location. Employees would then feel compelled to apply for positions in which they had no actual interest only to preserve their entitlement to consideration in subsequent vacancies which might arise in more suitable locations.
Such a result potentially threatens to unduly complicate and protract the job competition process under the collective agreement.
In the face of all these considerations, the Union urges me to conclude that the Employer is not entitled to rely on Article 6.1.2 where the prior competition upon which it purports to rely was in respect of a posting related to a different location.
It should be noted that the Union’s focus was deliberately narrow in this case. While it argued forcefully that a similar vacancy simply cannot be one at a different location, it did not found its or any alternative argument on an assessment of relative degrees of proximity as a factor in determining whether a vacancy or new position is similar. In other words, apart from suggesting a blanket prohibition, it did not begin to examine the relationship, if any, between geographic proximity and similarity. Similarly, while the Union obviously disputed its availability, no alternative issues pertaining to the manner in which the Employer exercised its discretion were raised.
Employer position
For its part, the Employer advances a number of arguments to dispute the Union’s suggested interpretation of the collective agreement.
First, the Employer notes its essential agreement that Article 6.1.2 represents an exception or an exemption from otherwise mandatory provisions of the collective agreement requiring the posting of vacant or new positions. But where the Employer is otherwise entitled to rely on that exemption, the provisions of Articles 6.1.1 or 6.2 are not applicable and should therefore not be relied upon to interpret the meaning of "similar vacancy or new position" in Article 6.1.2.
It was also suggested that to import “location” into the concept of vacancy or position would undermine the utility of the lateral transfer provisions of the collective agreement (see Article 6.6.1.). If the collective agreement requirement that a lateral transfer can only occur between 2 identical positions is interpreted in the same fashion the Union urges for Article 6.1.2, then lateral transfers would be restricted to positions at the same location, a result unlikely to be consistent with the parties’ intentions.
The Employer, however, relies most heavily on the recent amendments to the collective agreement which resulted in the current version of Article 6.1.2
For ease of reference, I set out the current and previous versions of the article. Apart from the change from six months to twelve months (the time within which the previous competition must have been held), the changes to the article consist of deletions (the words deleted in the current version are emphasized in the previous one):
6.1.2 (previous version):
Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position in the same classification at the worksite from which the vacancy originates provided that competition was held during the previous six months. The Employer may utilize this provision to fill a vacancy or vacancies at the worksite(s) from which the vacancy or vacancies originate, regardless of the worksite of the applicant. The Employer in these circumstances, is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position.
6.1.2 (current version):
Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position provided that competition was held during the previous twelve (12) months. The Employer in these circumstances, is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position.
Consideration of these two versions of Article 6.1.2 leads the Employer to assert that while the Union may have the right argument, it clearly has the wrong collective agreement.
In other words, the interpretation the Union urges may well have been the correct one under the terms of the prior agreement – indeed the Employer's own interpretive bulletin indicates its concurrence that under the predecessor provision the exemption from posting requirements applied only when "the similar vacancy or new position is in the same classification and at the same worksite as the original competition". However, that interpretation of the predecessor provision is grounded on some or all of the very words (the ones underlined above) which the parties have now agreed to delete from the collective agreement.
Since the Union asks me to conclude that Article 6.1.2 is only available when the similar vacancy or new position occurs in the same worksite, the Employer submits that the Union is, in effect, asking that I return to the collective agreement from which those very words were deleted.
With respect to the possible practical difficulties associated with its interpretation, the Employer raised a number of points.
First, while it may be true that the Union's "doomsday scenario" (e.g. the filling of a Cornwall vacancy on the basis of a previous Kenora competition) is a theoretical possibility, the likelihood that the Employer would conduct itself in such a fashion is slim. In that regard, the Employer acknowledged that it must exercise its discretion under Article 6.1.2 in a reasonable fashion. And in contemplating factors which might be considered in assessing that standard of conduct, it might well be that location could be such a factor – I was reminded that the two vacancies in question in this case were in the same classification and not at opposite ends of the province but rather were within the same geographic district (some 100 kilometres apart).
Article 6.1.2 provides the Employer with the administrative flexibility to avoid "redundant" competitions e.g. where it is anticipated that the same pool of applicants would apply in any new competition.
In any event, these were factors which might be considered in determining whether the Employer had exercised its discretion reasonably and the Union has not argued any improper exercise of discretion in this case. The Union's argument has been restricted to a challenge to the availability of Article 6.1.2 in circumstances where subsequent vacancies or new positions are in different locations.
Union reply
In response to the Employer's urging that I not return deleted words to the collective agreement, the Union advances an alternate explanation for the meaning and significance of the recent collective agreement change. It refers to a decision of this Board in an earlier Union grievance, 1405/00 (McKechnie). That case considered aspects of the predecessor version of Article 6.1.2. In particular, the issue between the parties was whether reliance on Article 6.1.2 could result in a non-bargaining unit employee being offered a vacancy or new position. The Board accepted the Employer's view and determined that nothing in Article 6.1.2 precluded such a result.
The Union now argues that if one is searching for an explanation for the recent amendments to the collective agreement, one needs look no further than the McKechnie award. The parties sought to reverse the result in that award and effected that goal by agreeing to delete from the collective agreement the language which had supported the conclusion in that decision.
Decision
For the reasons which follow, I am persuaded that the Employer's interpretation i.e. that the availability of Article 6.1.2 is not restricted to cases where a vacancy or new position arises in the same classification and the same worksite, is correct and that this grievance must therefore be dismissed.
Essentially, I am asked to select between competing interpretations of Article 6.1.2. There is very little evidence before me to assist in that determination. I am presented with some evidence of negotiating history in the form of the predecessor provision of the collective agreement. I am not, however, provided with any other direct evidence that would assist in disclosing the shared intention of the parties in negotiating the recent changes.
The Union refers to the McKechnie award to posit an explanation for the recent language changes.
I have reviewed the McKechnie award and have found it curious that it may be difficult to reconcile some of the facts set out in the main body of the award with those set out in the Agreed Statement of Facts appended to the award (in particular in relation to whether Article 6.1.2 had been applied in lieu of a fresh competition or as part of the initial job competition process and also in relation to the precise status of the employee who had been successful in the Article 6.1.2 process).
Notwithstanding this digression, I accept, as did the parties before me, that the issue in the McKechnie case was whether the application of Article 6.1.2 could result in the assignment of a position to a non-bargaining unit employee.
Union counsel contends that it was to reverse the Grievance Settlement Board's positive answer to that question that the recent amendments were made. I note in that I have no other evidence of negotiating history to support the invitation to make that inferential leap.
It is not necessary for me to come to any conclusion as to whether the Union (or the parties) either intended or have succeeded in reversing the result in the McKechnie decision. But even assuming that to be the case, I fail to see how that provides a complete explanation for the changes the parties made to the language of the collective agreement.
In coming to the conclusion that he did, Vice-Chair McKechnie (at p. 7) pointed to a very specific portion of Article 6.1.2 as supporting his conclusion:
The Union’s argument is rejected based on the clear language of Article 6.1.2 of the agreement. The important sentence for the instant grievance is as follows: "the Employer may utilize this provision to fill a vacancy or vacancies at the worksite(s) from which the vacancy or vacancies originate, regardless of the worksite of the applicant.
[emphasis added in original]
Given the portion identified as the operative provision supporting his conclusion, it is reasonable to accept that the parties (assuming they wished to reverse that result) might seek to delete at least the emphasized words and perhaps even the entire sentence in which they are found.
However, no specific reference was made in the McKechnie decision to the earlier portion of the first sentence of the former Article 6.1.2, i.e. "in the same classification at the worksite from which the vacancy originates". And there was certainly no suggestion in the award that those words contributed in any fashion to the conclusion in that case.
Thus, having regard to the words themselves and to the lack of any reference to them in the McKechnie award, I am not persuaded that their removal was or could have been to effect the purpose of reversing the McKechnie award.
The phrase which was deleted from the first sentence of Article 6.1.2 is clearly and on its face the phrase which limited the application of Article 6.1.2 to similar vacancies and new positions in the same classification and worksite (a limitation which the Employer acknowledged in its interpretive documents to apply to the predecessor language). There is nothing else in the language of the Article (current or predecessor) which explicitly so limits its application.
But what then am I to infer from its deletion? Or, to put the question somewhat differently, ought I to accept an interpretation of the current language which restores it (at least in part) to its prior version and requires me to effectively return the deleted words to the Article? I think not.
I am satisfied that (at least one) impact of the changes to Article 6.1.2 is that the application of the Article is no longer restricted to subsequent vacancies or new positions in the same classification at the worksite where the original competition was held. The subsequent vacancy must, of course, be "similar". However, while the parties may not have provided me with all of the tools necessary to articulate a timeless and comprehensive definition of “similar vacancies or new positions”, I am not persuaded that its use establishes or connotes any inflexible rule or necessary interpretation of the collective agreement restricting the application of Article 6.1.2 to cases involving only subsequent vacancies or new positions at the same location as the prior competition.
My conclusion in this regard should be not taken to suggest that I am unconcerned about the practical consequences argument raised by the Union. However, I note again that no challenge was mounted in this case to the manner in which the Employer exercised its discretion. Neither was it suggested, apart from the simple lack of identical location, that the Ignace vacancy was not similar to the one in Dryden. Such (or similar) issues may have to be considered further in future cases.
The Employer clearly argued that the provision in question provides it with a tool for administrative efficiency to limit what it may view as the unnecessary proliferation of job competitions and their associated processes. The Union has perhaps put the Employer on notice that a vigorous application and liberal interpretation of the breadth of Employer discretion under the article may well generate something other than administrative efficiency. It would clearly be in the interest of both parties to avoid such a result. And in circumstances where the Employer has acknowledged its obligation to exercise its discretion reasonably, the Employer may wish to take the opportunity to consider the general parameters of that exercise. Indeed, now that the “Posting Exemption” provisions of the Employer’s interpretive bulletin has been overtaken, it may wish to consider revising that bulletin or providing some other indication to the Union of how it intends to exercise its discretion under the article. That would provide further clarity around the Employer’s position and would also permit the Union a meaningful opportunity to determine what general advice it might feel compelled to provide its members and, in particular, whether or not the doomsday scenario discussed earlier is itself doomed to remain forever theoretical.
For all of the foregoing reasons, the grievance is hereby dismissed.
Dated at Toronto this 25th day of June 2003.