HomeMy WebLinkAbout1987-2285.Brousseau.88-08-29.’ EMPLOY6SOELA CO”mNNE DE L’ONT.4RIO
CPMMISSION DE
REGLEMENT
DES GRIEFS
2285187
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Randall Brousseau)
and
The Crown in Right of Ontario
(Ministry of Natural Resources)
Before: J.H. Devlin ‘Vice Chairman
T. Kearney Member
D. Montrose Member
Fdr the Grievor: A. Ryder
COUllSel
Gowling & Hendenon
Barristers and Solicitors
For the Employer: M. Furanna
Coordinator
Staff Relations
Ministry of Natural Resourcei
Hearing: May 6, 1988
The Grievor, Randall Brousseau, is one of 19 seasonal
employees in the Forest Management Section of the Ministry's
North Bay District. Mr. Brousseau is classified 'as a Resource
Technician II ("R.T. 11") and there is no dispute that at the
time of the grievance in October of 1987, he had completed his
probationary period. The essence of the Grievor's complaint is
that while other seasonal employees in the R.T. II classification
were offered extensions of their contracts .in the i987/88
season, the Griev,or was offered a new'contract at a lower rate of
pay.
The material facts are not n dispute. Since the
I
spring of 1981, the Grievor has worked in the classification off
R.T. II' and prior to the summer of 1982, his duties involved
assisting in the implementation of forest management projects.
In the summer of 1982,'the Grievor was approved by the Ministry
to scale softwood timber and the following summer, he received
similar approval for hardwood timber. Scaling is a process which
involves'measuring &own timber and in order to perform this
work, it is necessary to be licenced by the province and trained :
and approved by the Ministry.. Since 1983, the Grievor has
performed scaling and forest management duties, with scaling
accounting for the majority of his work. ._
The Ministry's fiscal year is from April 1 to Mar&
31 and since being classified as an R.T. II, the Grievor has
performed his work.under contract. The work is cyclical in
2
nature and the season begins with tree planting in the spring.
The Grievor generally begins work in April ore May and in some
years, his initial contract has expired in September or October
but extensions have been granted which have varied in duration.
One year, the Grievor's contract extended from May to December
and there are also instances in which the Grievor has worked
under contract for some pe.riod in January and February.
In the summer of 1985, language was introduced in the
collective agreement dealing with the rights of seasonal
: ..- employees. As a result of the introduction of this language,
Robert Brunette, a Forest Operations Manager in the North Bay
District, and the Grievor's immediate Supervisor, was instructed
to establish an organizational structure and positions for
seasonal employees in the Forest Management Section. Prior to
this time, Mr. Brunette'testified that no positions existed and
that the Grievorand other employees in the Section simply worked
in the classification of R.T. II.
As a result of the directive received, Mr. Brunette
testified that he and the 'previous'Forest Management Supervisor
collaborated to develop an organizational.-chart. Position
specifications were also prepared, taking into account the
geographic needs of the Section and the skills required~. Of
particular relevance to Mr. Brousseau's grievance are two
'ications in the R.T. II classification, both of which specif
report to Mr. Brunette and both of.which are entitled Forest
3
Technician. One of the specifications is coded #4&l and the
other, #47. The two specifications have a 'number of duties in
common which involve assisting in the implementation of forest
management projects. In both cases, the specifications indicate
that these duties account for approximately 40% of~the
incumbent's time.
In position #47, 55% of the incumbent's.time involves ..i
scaling Crown timber and Mr. Brunette testified that. this is the
real focus of then job, There is no dispute that this work must
be performed by a licenced Scaler approved by the Ministry and,
for this reason, Mr. Brunette testified that the Grie.vor was
ass is gned to the position in which he is a single incumbent.
Apart from assisting in the implementation of forest
--?..-_ management projects, the.incumbent of position it48 is invoived in
implementing management plans and other duties as assigned.
Although the job specification for this position also provides
that scaling may be required, this refers to scaling by an
employee who has not been approved by the Ministry.and must be
performed under the supervision of<an approved Scaler. During
the 1987/88 season, there were six employees assigned to position
#48 and Mr. Brunette,testified that none of them had been
approved by.the Ministry to scale Crown timber.
4
'In 1987, the Grievor's contract commenced on April
21st and expired on October 2nd. Thereafter, the Grievor was
offered work in the position of Forest Ranger, which is in the
R.T. I classification and pursuant to a new contract, he worked
.~ from October 5 to October 27, 1987.~ Five employees assigned to
position #48,
on the other hand, were given exte~nsions of their
original contracts and worked for a similar period. There is no
dispute that the Grievor was qualif.ied to perform the duties
which theses employees performed and that the Grievor had a
greater number of hours to his credit than did those to whom
extensions were granted.
The Grievor outlined, in some detail, the nature of
the work which he performed during October of 1987. He testified
that, for the most part, the duties are contained on position
specification #4a,
although some also appear on position
specification #47. In many cases, the Grievor testified that he
performed duties similar to those performed by employees whose
contracts were extended. Mr. Brunette, on the other hand,
testified that the Grievor worked as a Forest Ranger in the
classification of R.T. I and was a‘member of a crew which was
supervised by employees assigned to position 848..
Subsequent to~october 2, 1987, Mr. Brunette ~testified
that the Ministry had no further need for scaling duties (apart
~from work which could be performed by a member of the classified
.service) but that there was a nee.d.fqr certain ~duties of position
5
#4S relating to forest management projects and for the sake of
continuity, those who had been performing this work prior to :
October 2nd, were permitted to continue. It would appear,
however, that the Grievor had been involved in regeneration
surveys prior to the expiry of his initial contract and that this
type of work continued to be performed subsequent to October 2nd.
In any event, Mr. Brunette testified that there waSno need for
an additional employee.and that to allow the Grievor to. perform ~
the work would have involved him bumping into position #48. Mr.
Brunette expressed the view that there are no bumping rights
provided to seasonal employees in the collective agreement.
The following provisions of the collective agreement
and .the. Crown Employees Collective Bargaining Act are relevant to
the determination of Mr. Brousseau's grievance.
II
. . .
COLLECTIVE AGREEMENT-'
SEASONAL EMPLOYEES
PROBATIONARY PERIOD
3.18 The probationary $eriod for a seasonal
employee shall be two (2) full periods of
seasonal employment of at: least eight.(a)
consecutive'~weeks each, worked in
consecutive. years in the same position in
.the same ministry.
3.19.2 A seasonal employee will lose his
se~niority when:
(d) he is unavailable for or declines an offer for re-employment as provided
in Section 3.20 (Job Security)...
6
JOB SECURITY
3.20.1 Seasonal employees who have completed
their probationary period shall be
offered employment in their former
positions in the following season on the
basis of seniority.
3.20.2 Where -the Employer reduces the number of
seasonal employees prior to the expiry date of employment specified in the
contracts of~employment, seasonal
employees in the same position shall be
laid off in reverse order of seniority.
CROWN EMPLOYEES COLLECTIVE: BARGAINING ACT
18.(l) Every collective agreement shall be
deemed to provide that.it is the
exclusive. function of the employer to
manage, which function, without limiting
the generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement,
organization, assignment,
discipline, dismissal, suspension,
work methods and procedures, kinds
and locations of equipment and
classification of positions; and
(b)~ merit system, training and
development, appraisal and
superannuation, the governing principles of which are subject to
review by the employer with the
bargaining 'agent,
and ‘such matters will not be the subject.
of colJ.,e.Gtive bargaining nor come within
the jurisdiction of a board.
II . . .
7
The issue, then, is whether Mr. Brousseau was
entitled to an extension of his contract beyond October 2,
1987.
In addressing this issue, it is necessary to
consider a number of preliminary objections advanced by the
Employer upon which the Board. reserved its decision at the
hearing. In this respect, it was the initial submission of
Ms.
Furanna that the Board is without jurisdiction to
entertain Mr. Brousseau's grievance because the grievance
relates to the assignment of work and the way ,in which the
Employer organizes its work force which are exclusive
functions of management within s. 1 8(l) of the Crown
Employees Collective Barcaining Act. Secondly, Ms. Furanna
contended that the issue raised in the grievance involves
the non-renewal of a contract of employment which is not
amenable to review by the Board: OPSEU (Maurice -;-&
Cascagnette) and The Crown in Right of Ontario (Ministry of
Health) G.S.B. File_No. 1246/85. Thirdly, Ms. Furanna
submitted that the provisions of the collective agreement
do not provide seasonal employees with any right to
extensions to their individual contracts of employment and
.e by the for this reason, the matter is also 'not reviewab
Board. ~,,
In our view, the objections advanced by~Ms.
Furanna'do not provide an appropriate bas~is upon which to
determine the grievance as a preliminary matter. The
subsections of Article 3 of the collective agreements, which
a
are set out above, afford certain rights to se~asonal I
I employees and the nature of these rights must be assessed
in determining whether Mr. Brouss~eau. is entitled to the
relief which he claims. Whether or not the grievance
involves the application of Article 3 or involves the
exercise of management rights, is, therefore, a matter for
the merits..
The final preliminary issue raised by Ms. Furanna involved
an objection to the arbitrability of Mr. Brousseau's grievance on
the grounds of timeliness. Ms. Furanna conceded, however, that
this objection was not'raised until the hearing and in these
circumstances, it must be deemed to have been waived by the
Employer.
As indicated at the outset, there is no dispute that the
Grievor had completed his probationary period prior to the filing
of his grievance and, in accordance with Article 3.20.1 of-the
collective agreement, he.was entitled to be offered employment in
his former position in the following season on the basis of
seniority. The Grievor was, of course, offered employment in the
X987/88 season and worked pursuant tp a con.tract from April 21 to
October 2, 1987. The issue, however, is whether Article 3.20.1
entitled the Grievor to work in the position of Forest Technician .
as submitted by the Union, or whether the position to which the
Grievor'srights attached was that of Forest Technician,~.Code-t47
as contended by the Employer.,
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In our view, the position advanced by the Employer on..this
issue is the correct one. Although positions #47 and 848 have a
number of common duties relating to the ~implementation of forest
management projects, 55% of an employee's time in position #47 is
devoted to scaling for which a licence and approval by the
Ministry is required.' While the Grievor has obtained such
approval, the incumbents of position #48 have not, and thus, we
find that there is a valid and legitimate'basis for
distinguishing between the two positions. Were the submission of
the Union to prevail and the former position refer simply to
Forest Technician, the Employer might well find itself compelled
to offer scaling work to an employee who was not qualified to
perform the work but who was entitled to.it by virtue of his
seniority.. Being unqualified for the work, the.seasonal e,mployee
might then be forced to decline the offer of 'employment as a
consequence of which he would lose his seniority in accordance
with Article 3.19.:2(d) of the collective agreement. In all the
circumstances, therefore, we find that the former position in
which Mr. Brousseau was entitled to be offered employment, was
position 847.
It was the submission of Mr. Ryder, pn behalf of the
Union, that "season" in Article 3.20.1 must be interpreted to
refer to the entire period during the'.year when work is performed
and,-for this reason, Mr. j :~ Brpusseau was entitled to.,the,work in
question. Were this not the case, Mr. Ryder contended that the
Employer could simply manipulate the length of the season by
c
10
varying the term of the employee's contract of employment. In
this case, however, there is no basis for concluding that the
Employer acted improperly or set the term of Mr. Brousseau's
contract with a view to depriving him of his rights in accordance
with the provisions of the collective agreement. Moreover,
Article 3.20.1 does not simply provide that seasonal employees
are entitled to be offered employment on the basis of seniority
but instead their rights are tied to employment in "their former
positions". In this case, we have found that the Grievor was
entitled to be offered work in position #47 and that, in fact, he
worked pursuant to that job specification until October 2, l987.
After this date, the Employer had no further requirement for
scaling duties to be performed by a seasonal employee.
Although there is no dispute that the Grievor was
qualified to perform the work which was performed by employees .i..‘
assigned to position #48 subsequent to October 2, 1987, once
again, this' is not the basis upon which seasonal employees are
entitled to be offered employment. -In addition, even if the
Employer could be required to reassign employees during this
season 'in the manner suggested by the .Union , the Grievor has
'never formally occupied position 848 and, i-n our view, hue cannot
rely on work performed prior to the establishment of.the
positions in issue. Once again, therefore, it is position $47
rather than, position f48 which is the former position in which
the Grievor was entitled to be offered employment within the
meaning of Article 3.20.1 of the collective agreement.
11
Although. Article 3.20.2 addresses a situation in which the
Employer reduces the number of seasonal employees, this applies
only to reductions which occur prior to the expiry date specified
in the cqntracts of employment and reiates only to the manner in
which seasonal employees in the same position are to be laid off.
This Article, therefore, has. no application to the circumstances
of this case, nor is there any other provision of the collective
agreement which would heave entitled Mr. Brousseau to displace
emp loyees .in pos i tion #48 during October of 1987.
The final issue to be addreksed relates to the work
actually performed by’the Grievor between October 2nd and October
27th. In our view, the evidence is not. sufficient. to conclude
.that Mr. Brousseau worked beyond the scope of-the position of
Forest Ranger so as to be entitled to the rate of pay of the R.T.
II classification. In the result, and for the reasons set out,
the grievance of ~Mr. Brousseau is hereby dismissed.
: cy.-
DATED AT TORONTO this 29th day of August ,
1988.
Jane ii..Devlin, Chairman
T. Kearney, Member
D. Montrose, Member