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HomeMy WebLinkAbout1991-0727.M.92-07-09ONTARIO EMPLOY&DELACO”RONNE CROWNEMPL0”EE.s DEL’ONTAR,O GRIEVANCE SETTLEMENT CPMMISSION DE REGLEMENT BOARD DES GRIEFS IN TEE RATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINEN ACT Before TSIE GRIEVANCE BETTLEMBNT BOARD BETWEEN OLBEU (M) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: J. Roberts Vice-Chairperson J. Carruthers Member " D. Daugharty Member FOR THE GRIEVOR C. Flood Counsel Koskie & Minsky Barristers & Solicitors FOR THE EMPLOYER S. Gleave Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING October 1, 1991 February 17, 20, 1992 March 2, 3, 1992 AWARD I This arbitration involves a very sensitive area: compassionate transfers of LCBO employees between regions. It is a sensitive 'area because: (1) nothing in the Collective Agreement compels the LCBO to make any compassionate transfers. The LCBO may choose to make a compassionate transfer in the exercise of its managements rights; (2) the readiness of management to choose to make a compassionate transfer is inhibited by the potent.ial for morale problems among employees in the transferee region, who may regard the transferred employee as creating a clog upon their own chances for advancement; and,, (3) if a transfer between regions is made to a higher level position, it likely will be regarded as foreclosing a promotional vacancy and may raise the spectre of ;a claim of violation of the Collective Agreement, which provides for promotion within regions. " We recognise that the foregoing inhibitions may alread:y chill the readiness of management to make compassionate transfers in appropriate cases, and we are disinclined to issue an arbitral award that would further chill management's interest in making inter-regionai compassionate transfers, in appropriate cases. At the same time, however, we also recognize'that once management chooses to make a compassionate transfer, it must exercise its management right in a good faith manner. This implies that in addition to attempting to accommodate the factors that inhibit management's readiness to make such transfers, management must also 2 not be indifferent to the impact of its actions upon the employee being transferred. II In the present case, two issues were essentially presented for resolution by this panel. These were: (1) whether the challenge in the grievance to a two-year freeze upon application for promotion was inarbitrable because it was out of time; and, (2) whether the transfer as a whole was made in a good faith, etc., .exercise of management's' right. For reasons that follow, we conclude that the part of the grievance relating to the two-year freeze was inarbitrable and that the remaining aspects of the transfer were accomplished in accordance with the requisite standards of good- faith. As a result, the grievance must be dismissed. It seems that in mid-1987, the grievor applied for compassionate transfer out of the region of the LCBO in which he' was then working. At the time, he had a physician's certificate of disability from his doctor and was in receipt of sick leave benefits under the Collective Agreement. III 3 Prior to going off on sick leave, the grievor had occupied a position near the top of the hierarchy, or pyramid, of bargaining unit employees -- that of A Store Assistant Manager. After .' initially indicating in correspondence that he would accept a demotion to achieve an inter-regional transfer, the grievor insisted to Mr. Ron Flett, the Vice-President of the Retail Division of the LCBO, that all he was interested in having Mr. Flett search out in other regions were A Store Assistant positions. The grievor agreed in his testimony that from mid-1987 to early 1988 the understanding between him and Mr. Flett was that the latter would seek to transfer him to an A Store Assistant position in another region. The grievor said that he indicated to Mr. Flett that because he was a senior employee of the LCBO, he did not want to step down. He wanted a lateral transfer to an A Store in another region. Mr. Flett, he said, did not have any problem with this request. He .said that he would look after it. From Mr; Flett's responses, the \ grievor testified, he inferred that Mr. Flett would offer him-the next available position as an A Store Assistant in another area. It should be said that at this point, the grievor was not interested in being relocated to just any other region of the LCBO. He had in mind a particular geographical area of Ontario, which comprised parts of two regions. 4 Mr. Flett testified that his discussions with the grievor were .quite open and frank. He said that he was "pretty realistic" in telling the grievor that the prospects for placing him in an A Store Assistant position in his preferred area were relatively remote. Nevertheless, it seems, the grievor was content to have the area of search -- both geographically and position-wise -- '. restricted In this way. Meanwhile, the grievor continued on sick leave benefits. Mr. Flett contacted the two regional directors responsible.for stores in the geographic area indicated by the grievor. He explained the circumstances and said that a compassionate transfer had been granted in principle, assuming that an A Store Assistant Manager position could be found. Shortly thereafter, the regional directors responded to Mr. Flett that there were no such vacancies in their regions. He then asked them to take a closer look and keep him. informed. The grievor contacted Mr. Flett either by telephone or in person from time-to-time.to see how the search was progressing. While Mr. Flett had emphasized to the grievor that the possibility of finding a vacancy for a Store Assistant Manager was remote, he did not specifically advise the grievor that he had been instructed by the Executive Director's Committee of the LCBO' in October, 1987, to review four assistant manager vacancies that then existed in the whole of Ontario to determine whether the jobs were 5 needed. This move was apparently in response to c,ertain recommendations. of a Royal Commission indicating that some larger LCBO stores may not require assistant managers. In about late January, 1988, the grievor decid,ed t’0 investigate possibilities for transfer to geographic areas other than the one he initially specified. In a letter to Mr. Flett he indicated that his claim for long-term disability benefits (known as LTIP) had not been accepted .and this meant that his sick benefits would run out on February 23, 1988. He said, "Hopefully a move can be made by at least the middle of April. This would give you another‘two months." The grievor testified that at about this time, it was understood between him and Mr. Flett that the search would also be broadened to include positions as C or D managers. These were positions that were only a few step Ibelow that of ,an A store manager'on the pay scale. In support of this, it was pointed that several of the places that the grievor referred to in his letter to Mr. Flett, above, had C and D stores in them. Mr. Flett, however, disputed this assertion. He said that up until April 7, 1988, he understood in all of his contacts with the grievor that the latter was interested only in a position as an A Store Assistant Manager. Moreover, he,said, in every community 6 that the grievor mentioned in the above matter, there was always an A store. On this point; we prefer Mr. Flett's version of events. Continuing on, Mr. Flett said that this was what 'made's telephone call from the grievor on Aprii 7, 1988 so significant to him that he made his own written note of it. It was in this conversation, Mr. Flett said, that the grievor indicated for the first time that he would take a demotion in order to secure a -position in another region. He said that after receiving this telephone call and making his note, he recalled giving the note to his secretary and saying to her, Wow we cando something." Shortly after the April 7 .telephone call, Mr. Flett received a confirming letter from the grievor in which he requested a Clerk 3 position in one of four different cities. Either shortly before or after he received this letter -- it is not clear from the evidence -- Mr. Flett offered the grievor a position as a.B Store Assistant Manager in a city that the grievor had not mentioned. The grievor turned this position down for personal reasons. A week or two later, Mr. Flett came up with a Clerk 3 position in one of the cities that the grievor 'had mentioned in his letter. Eventually, this was accepted. On May 18, 1988,.Mr. Flett wrote the grievor a letter confirming his request to be reclassified to the.maximum salary level of a Clerk 3 and also confirming that the grievor had agreed __ 7 that he "will not apply for a promotion to any job posting [in the new region] for a period [of] two years." The grievor was re.ferred to the responsible regional director and Mr. Flett expressed his ."sincere hope that the relocation will serve 'to resolve your personal problems." The grievor testified that he had been reluctant to accept a demotion .to the Clerk 3 level because it constituted a four-step drop from near the top of the bargaining unit pyramid to the very bottom. He said that he thought that he did not have any choice because he needed the money and had.to ,go back to work. As for the two-year freeze on applying for a promotion, the grievor said it was explained to him by the regional director that this was standard practice when an employee transferred from one region to another, particularly in light of a previous case that had resulted in considerable controversy. Mr. Flett said that he attempted to clear the way for the grievor's transfer by calling the President of the Union and attempting to get him involved. He took this precaution, he said, because technically, transferring the grievor to a Clerk 3 position without posting it could be construed as a violation of the Collective Agreement. The President of the Union, however, declined to become involved. 8 In some respects, this experience mirrored that of the grievor with the Union. The grievor said that he was unhappy about.being demoted and having his chances for promotion frozen for two years. He believed that the latter, in particular, was a violation of his seniority rights under the Collective Agreement. He.said that he did not grieve the freeze, however, because he had previously talked to the Union and the President had told him that the entire matter was between himself and Mr. Fletti The Union, he said he was advised, was not going to get involved. Mr. Flett said that, as far as he was concerned, the saga of the grievor's compassionate transfer ended when the latter accepted the Clerk 3 position. And so it seemed, but only for a while. The grievor endured the two-year freeze and on July 16, 1990 was promoted to an A,Store.Assistant position in another city. Finding the position not to his liking, he returned to the Clerk 3 job from which he had departed, apparently intent upon waiting for a more appropriate opportunity. Then, in February 1991, an A Store Assistant Manager position came open in the same city; however, it was not posted. It was filled by transferring an A Store Assistant Manager from a surplus position within the region according to an attrition plan instituted by the LCBO. 9 Thereafter, around April 20, 1991, the grievor attended a Union meeting in which he was shown a document which purported to set forth a number of B and C Store Assistant positions that were available throughout Ontario in the period June 6, 1987 to June 6, 1988. The grievor was very interested. He said that if he had been offered some of those positions at the time he was off work, he certainly would have considered them. He wrote up his grievance that same evening and filed it on April 24, 1991. The document that the grievor was shown had been generated by the Union and not the Company, so the Company was requested to furnish evidence upon the matter. This led to the introduction of two Company documents and a further examination of Mr.. Flett. Mr. Flett testified that the Company did not have any equivalent to the comput.eri,zed record that had been shown to the grievor. He said that the sole source of his information regarding available openings would have been his regional directors, and he relied upon them to convey this information to him in theirweekly conference calls. The documentation provided by the LCBO -- one document typed and the other hand-written -- purported,to summarise the vacancies that were posted and filled by the LCBO in the period July, I987 to May, 1988. They showed, inter alia, that on March 28, 1988,, W. R. Scott was recommended to fill a vacancy as a C Store Manager in Strathroy, and on May 9, 1988, was appointed to the position; on an 10 undisclosed date, B. Grogan was'recommended to fill a position as a C Store Manager in Sauble Beach and was appointed to the position on May 2, 1988; on June 28, 1988, R. Franks was recommended for a position as a D Store.Manager in Paisley, Ontario, and on August 1, 1988, was appointed to the position; and on June 28, '1988 R. Anstett was recommended for a position as a D Store Manager in Mildmay and on July 18, 1988, was appointed to the position. Mr.. Flett reiterated on-cross-examination that none of this information was before him when he offered the Clerk 3 position to the grievor and none of these positions was offered to the grievor. IV tie turn first to the preliminary objection to the arbitrability of that part of the grievance relating. to the two- year freeze period. It was submitted on behalf of the grievor that this aspect of the grievance was not untimely because it was not until the evening upon which the grievor wrote out his grievance that he became aware that he had rights under the Collective Agreement that the freeze period infringed. In support of this submission, counsel for the Union referred to Article 27.3 (a)(i) of the Collecti ve Agreement, which reads, in pertinent part, as follows: 27.3 (a) * ,; _ 11 STAGE 1' fcomplaint Stase) (i) An employee who has a complaint or a difference shall discuss the complaint or difference with his supervisor, as designated by the Employers, within ten (10) days of the employee first becoming aware Of the circumstances giving rise to the complaint or difference. The wording of this provision, it was submitted, haci been interpreted by the Grievance Settlement Board to mean that the ten- day time limit did not begin to run until the employee became aware that he or she had a right under the Collective Agreement that was being infringed. On this question, counsel for the Union referred the panel to Re Gordon and The Crown in Riaht of Ontario (Liauor Control Board of Ontario) (1990), G.S.B. 848189 (Dissanayake). In that case, the learned arbitrator concluded, inter, that the wording of. Article 27.3 (a)(i) meant that a subjective test of the employee's awareness had to be applied before the clock could start to run. He said: Before an employee can be said to have become aware of "the circumstances giving rise to the complaint or diffarence" under article 27.3 (a)(i), he or she must be aware of b&h the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the parties, by alluding to the employee's awareness, have intended to introduce a subjective test. . . . m. at p. 15. According to the criteria established in this award, there must be a showing that the employee was aware of the existence of a right 12 under the Collective Agreement and a factual basis arguably contravening that right before the clock could start to run. In vigorous submissions in response to the position put forward by the Union, counsel for the LCBO argued that the Gordon case was wrongly decided. We were.referred in this regard to & Clements and the Crown in Riaht of Ontario (Liauor Control Board of Ontario (1981), 28 L.A.C. (2d) 289 (Prichard) and Re Fanshawe Colleqe.of Applied Arts and Technolosv and 'Ontario Public Service Emolovees Union (1991), unpublished award (Swan). We do not deem it necessary, however, to make a finding upon the submissions of counsel for the LCBO regarding'the Gordon award. In the present case, both of the criteria set forth in the Gordon award were more than satisfied in the evidence.' In his own testimony upon cross-examination, the grievor said that when he was subjected to the two-year freeze period, he felt that it.was a violation of his seniority rights. This showed said that the grievor's state of awareness met both prongs of the Gordon test. He was aware of both the existence of his seniority rights and,a freeze period that he though violated that right. Moreover, the grievor also furnished in his testimony on cross-examination the reason why he did not grieve the two-year freeze period when it was imposed. It was not because he was unaware of his 'rights. It was because, as he said, he had 13 previously talked to the Union when he first began seeking a compassionate transfer and they said they were not going to. get involved. Moreover, he added, he needed a job in order to get back to work. Whatever may be said of the merits of the grievor's stated reasons for foregoing his right to grieve the freeze period, it seems indisputable that he consciously set aside this option. When he took this step, the clock started to run and it is now far too late to raise the matter in a grievance proceeding. Accordingly, the preliminary objection must be upheld. We will not consider the appropriateness of imposing the freeze period in dealing with the merits of the case. V We have already reviewed at the, outset of this award the sensitivity of the area in which the present dispute takes place. It is an area criss-crossed by competing interests, some of which set employee against employee. It is an area where both Union and Employer must tread with caution. Given this, we have little wonder at the reluctance of the Union to be drawn into the process leading to the gr ever's compassionate transfer. . 14 At the hearing, both parties essentially agreed that,. having decided to make a compassionate transfer in the grievor's case, it was incumbent upon management to do so in a good faith manner.' See Re Municibalitv of Metrooolitan Toronto and Canadian Union of Public Emnlovees, Local 43 (1991), 19 L.A.C. 4th 287, at 293-4 (Davis); and, Re Bouscuet and Ministrv of National Resources (1991), G.S.B. #541/90, at,pp. 69-70 (Gorsky). Essentially, it was submitted on behalf of the grievor that management's right to effect a compassionate transfer in the present case was not exercised in good faith because it was exercised with only the interests of the LCBO in mind and indifference to the interests of the grievor. In support of 'this contention, counsel for the Union pointed to three alleged deficiencies that, he submi~tted, appeared in the evidence. They were as follows: (1) the failure of Mr. Flett to share with the grievor in October, 1987, his knowledge that management had decided 1 Counsel for the Ministry also directed some remarks toward the fact that the management rights clause herein appears in a statute, the Crown Employees Collective Bargaining Act. It was suggested that given this, it might be more appropriate to confine our consideration to the question whether there was a valid exercise of statutory authority,. as defined in the area of administrative law. we, however, decline this invitation. In our view, it would be inappropriate to ignore the labour. relations context of the Crown Employees Collective Bargaining Act tihich, in our view, strongly suggests that the exercise of management rights be reviewed according to the accepted labour relations standard of good faith. 15 in response to an adverse Royal Commission Reptort to review all A store assistant vacancies to determine whether they needed to be filled and to refrain from filling them where possible; (2) the failure of Mr. Flett to take steps throughout the course of the search to clarify with the grievor whether he would take less than an A store assistant poeiition; 'and, (3) the failure of Mr. Flett to make a systematic search to determine the availability of all relevant positions, so as to ensure the transfer of the grievor into the highest available one. Had these steps been taken, counsel for the Union submitted, the grievor would not have been pushed to the point of desperati:on and hence forced to agree to drop from the top of the bargaining unit pyramid to i&very bottom. I Counsel for the Ministry, on the other hand, regarded the position of the Union as more‘of an invitation to this panel to apply a standard of reasonableness in its review of management's actions rather than the more limited standard of good faith. Moreover, he submitted, Mr. Flett conducted the search according to criteria upon which the grievor was insistent even in the face of warnings from Mr. Flett that the prospects for placing the grievor in an A store assistant position in the geographic areas of his choice were relatively remote. In these circumstances, it was submitted, it was not incumbent upon Mr. Flett to go father and reveal confidential management decisions to the grievor to substantiate his warning. At all times, it was submitted, Mr. i 16 Flett acted in good faith with the grievor and kept to the promises that he made to him. We agree. In reviewing the actions of Mr. Flett in performing the search we cannot ignore the fact that this was's gratuitous- effort on behalf of management to accommodate the grievor. Nothing in statute or the Collective Agreement obligated management to lift one finger to grant the grievor's wish. Indeed, there were substantial disincentives to becoming involved. Agreeing to make an inter-regional compassionate transfer was like volunteering to negotiate a mine field for the sake of another. The act itself belies any claim of indifference t.o the interests of the employee. We find that Mr. Flett negotiated this mine field well. His conduct fell'squarely within the bounds of good faith. Having warned the grievor of the remoteness of the possibfIi.ty of obtaining a position as an A store assistant, he was not required to go further and reveal confidential information to the grievor. Having been met with insistence by the grievor upon being transferred to an A store assistant position in specified geographic areas, he was not required to lay out before the grievor other lower rated positions to determine whether the grievor would take them. Finally, Mr. Flett was entitled to rely upon his usual sources of information regarding the availability of relevant positions, his regional directors. The bounds of good faith do not 17 stretch so far as to require more heroic efforts, such as undertaking a systematic survey of job postings in each store. In dealing with the compassionate transfer of the-grievor to another region, Mr. Flett was entitled to take into account all relevant interests: those of the grievor, those of management, those of the Union, and those of other employees. On the record, it is evident that Mr. Flett considered these interests in all good faith and acted accordingly. In reaching this conclusion, we have reached the limit of our jurisdiction. It is not for a board of arbitration to review the exercise of a management right for correctness or reasonableness, nor to substitute our judgment for that of the decision maker. The grievance is dismissed. 2 i ’ DATED in Toronto, Ontario, this 9th 1992. 18 day of July, I ‘*I Dissent” (dissent attached) J. Carruthers, Union Member r I DISSBWT RE: OLBEU.(M) and Liquor Control Board of Ontario RE: G.S.B. NO. 727191 I have read the.draft award and cannot agree with the decision and therefore dissent for the following reasons: In approaching this case, it is important.to remember that.the compassionate transfer served not only the interests of the G,rievor but also the interests of the L.C.B.O.. The situation in which the Grievor was working involved a potential threat to customers, property and fellow staff of the LiC.B.0.. Tn assessing the Employer's actions, it is therefore important to remember that the Employer was not transferring the Grievor merely as a favour to him but also to serve its own interest. With this in mind, the Grievor's interest in beingtrans.ferred to a particular geographical area was not selfishness but in fact served .both his interests and the interests of the Employer - reducing the potential threat to both himself and the L.C.B.O.. The ultimate consequence of the transfer, and its associated conditions, for the Grievor,. were amongst the most powerful imaginable under a seniority based Collective Agreement - the loss of a senior position and a restriction of the rights associated with accumulated seniority; Because of the significance of these effects, the Employer should have been more open in advising the Grievor of the consequences of the various criteria he imposed on .the compassionate transfer. It is obvious that the Grievor was dependent upon the Employer, and specifically dependent upon Mr. Flett. Given this dependence, the Employer owed a duty to the Grievor to advise him of the relevant circumstances affecti.ng the success of the search. In failing to do so, the Employer breached this duty, a duty which arises in the concept of good faith and fair dealing.' Although the Employer may not have beenobliged to reveal all the confidential information affecting the search, surely it had a duty to at least advise the Grievor that certain his criteria were, counterproductive to his desire to return to the work force. The Union's involvement in this process is somewhat of a red herring. Clearly, a compassionate transfer is a function of. management rights - an area in which, under the Collective Agreement and the Crown Employees Collective Bargaining Act, the Union has a limited. role. Accordingly, the Union's limited involvement and interest reflects the source of the Employer's authority to compassionately transfer - it does not serve as proof of good faith on the part of the Employer. -2- The Majority's analysis of the Employer's search efforts misconceives the nature of good faith. Good faith is not a grudging performance of the minimal standard required. Rather, it is an exercise of one's own efforts with genuine consideration for the interest of others who may be so affected. The fact remains that potential job openings were available and were not revealed to the Grievor. It is not a complete answer to say that the responsible official of the Employer was not aware of these options. I would also find that the grievance was timely, inthat it was not until the Grievor was aware that the Employer's efforts departed from the standard of good faith set out above that the factual basis of a grievance arose. This is the factual basis that is relevant under the Gordon test. I would have allowed the grievance. Signed, p-@-v< v James Carruthers