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HomeMy WebLinkAbout1992-3735.Rosenberger&Lynch.96-01-11c . . ONTARIO CROWN EMPLOYEES EMPLOY& DE LA COURONNE DE L’ONTARIO GqlEVAkCE C~MMISSIONDE / SETTLEMENT REGLEMENT BOARD DES GRI-EFS .. 180 OUNOAS’STREEET WEST, SUITE 2100, TORONTO, ONTARIO. MS0 12; TEL?+~~NE/T~L&+I~NE: (41.6~ 326-1388 180, RUE OUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 128 FACSlMILE/T~L~COPlE : (416) 326-1396 GSB,# 3735/92, 2509/91, 1143/93, 1303/93, .1240;93, 1344/93; 951/93, .2968/92, 2065/92, 1042/92, 1800/93, ‘608A/93, 608B/93, 1216/93, 26/93, ,,,, gp@ . . . . +EU # 93A945, 92A047, 93F325, 93F524,.93F486, 93F539, 93F209; 93A044, 92G354, 92E431, 93F835-7, 93D789, 93.D790, .93F39Oi, 93.D023 THE BETWEEN / BEFORE: M.-Gorsky FOR THE' GRIEVOR FOR THE EMPLOYER HEARING IN-THE MATTER OF AN ARBITRATION Under i CROWN EMPLOYEES.COLLECTIVE BARGAINING ACT Before TIiE GRIEVANCE SETTLEMENT BOARD /,OPSEU (Rosenberger/Lynch) " _j - and - Grievor The Crown in Right df'ontario' (Ni,agara Pa-rks Commission) i Empioyer ,f -Vice-Chairperson 'J.. Carruthers Member F.. Collict Member 3 R. Blair, P.. Munt-Madill, I. Landesberg-dewis Counsel Ryder, Wright, Blair &'Doyle Barristers & Solicitors C. 'Riggs, J. Smale Counsel Hicks, Morley, Hamilton, Stewart, Storie 1 Barristers & Solicitors December 13, 1993. July .27, 28, 1994. August 16, 1994 J.une 9, 23, 1995 September 6, 1995 . Decision '- ;. i , .' There-are four grievances -before the Board, two each filed by the Grievors Jacqueline Lynch and,.Linda.Rosenberger, and it was agreed that this panel of the Board would hear all.of them. It was further agreed that the Union would present its evidence first with respect to all of the grievances, and that the consequences of t doing so in relati,on to the placement of the burden of proof would I be .left for'argument. / I ._.. Both'Grievors were, at al.1 material times; seasonal employees of the Employer, the Niagara Parks Commission (the "Commissionl' and the. "Employer") . Exhibit' 1, filed by Ms. Lynch on~March 22, 199.3, and Exhibit 2, filed by Ms. Rosenberger' 'on March 3, 1993 'contain the same statement of grievance and settlement desired: . Sta.tement of grievance: .. :. I .grieve'that I have been dismissed without just cause, '_ Settlement desired: 'That I be reinstated to my former position without,loss ,. < of pay benefits or any ‘other entit,lement accruing under the collective agreement with full retro-,activity _[sic] on all monies with interest and seniority.. I Exhibit 3; filed by Ms. Lynch on April 5, 1993, .and'Exhibit 4 filed by Ms.,. Rosenberger filed on April 14, 1993 contain the same , statement of grievance and settlement'desired: Statement of grievance: : Jobs are being filled in.a discriminatory manner by people with less seniority -and I have.unjustly not been recalled. Settlement desired: To be reinstated immediately. without“loss of pay, benefits or any other entitlement accruing under the collective agreement with full retro-activity [sic] on all monies with interest and seniority. -\ Ms. Lynch's and Ms. Rosenberger's seniority as a seasonal employees at the Distribution Centre, being the wholesale ,'distribution,centre operated by the Commission, are,*respectively, : March 28, 1988, and February 12, 1990. It was the usual practice for the Grievors, as seasonal employees, t-o be'.notified of their -being offered seasonal employment by the Commission in Januaryor -. early February of each year., They regarded themselves as not having , : been offered employment as seasonal employees for the 1993 season i and'this gave rise to their filing the above noted grievances? ‘. In the Union's opening statement it was indicated that it would establish that there were persons with less seniority than the Grievors working in their former. positions at the relevant , 1.. times. In closing;argument, this claim was expanded to iassert that i the Employer had in bad faith brought a number of regular emloyees into the Distribution Centre so that the Grievors would not have to be recal1ed.i.n 1993. In the alternative it was claimed that the Grievors, if 'they were not entitled to be recalled to their positions as Distribution Centre Workers, ought to have been offered other seasonal employment with the. Commission and' that employees with less seniority and persons with no'attachment to the bargaining unit were hired by the- Commission in bad faith to perform jobs the Grievors could have performed. : .Because of the seasonal nature of the Commision's operations, a large number of its employees are seasonal (app.roximately 500). In the case of the Grievors, their working season was from approximately February to July of each year because of the nature of the work that-they performed at the-Distribution Centre, which involved tagging, re-packaging,' shipping and ticketing items ofered i for sale at stores operated' by the' Commission during the high \ season. . The first set of grievances'filed by. the Grievors claiming : \ unjust dismissal'were filed when they realized that they would not be recalled to their previous positions as Distribution Centre Workers during the 1993 ‘season. The second set of grievances were filed when they became aware.that other employees had beenhired ' into positions at the Park for which -they wer,e qualifi,ed. It was noted that the Grievors were ,long term seasonal 'employees of the Commission, with Ms. Lynch having commenced her seasonal employment in 1980 and Ms . -Rosenberger in 1986. It'was agreed that there are a number of'departments within the Commission, some of them being identified as: , . : ._:. ‘_ .. , . : ’ ,: ’ : '4 . Administration ( : Retail Operations Food Services Horti.culture. Planning and Development Engineering/Attractions Public Relations and Advertising' '. ,' \ Accounting Police . . . . ,With$n departments there areunits; ' _-., ‘. “. ._ ,. ,. Some of the. reasons given by the Commission ‘for' ‘what transpired in the cases-before us'are-related to the fact that the .Distribution Centre, which is within the Retail Operations department, has increasingly been experiencing a redu.ction in- the ' volume of work required to be performed by Distribution Centre Workers. This was a result of a realignment of the method of processing.goods, so that ticketing is no longer performed by Distribution Centre Workers but.by the manufacturers, and.because of a general. decline in business over th,e last few years. No ' significant issue was taken with the description of the reason for the decrease in work required within the Distribution Centre. . *. .I _ \ \ ..- -* - ., : ‘,- “, * .’ ; ,J 5 '. An employee whose'position might-be adversely affected by the decisions in the cases before us, Randy Ralph, was given written notice of the hearing, of his right to attend, make submissions and be represented, but he did not attend any of the hearings. \ : There we're five witnesses who testified over a period ofcseven days. Allegations-of bad faith were made by,the Union as well as' allegations that some members of.management had evidenced a blatant anti-union animus directed at the Grievors. It was suggested by counsel for the Union that we had to consider a- large volume of evidence and if we did.so it would become apparent that management had breached a number of the Grievers' rights. and .tha.t the 'grievances should be allowed. We have, accordingly, gone to some '.pains in reviewing the'evidence in this decision. : Evidence of Ms. Lynch ' ‘*:. - Ms. Lynch testified as follows:. : 1: She worked for the Employer for approximately la'years, and, during that time received approximately seven'.performance evaluations, 'which were uniformly favorable. ,’ 2 .: In September of 1980 she worked for approximately two months as a car attendant at the Maid of the' Mist Incline Railway . I ’ ‘/ i . \' ,where her duties included assisting people into the cars. As an attendant she was responsible \for insuring that people. _ remained in their:seats so as to avoid injury and to assist them from the cars to the Maid of the Mist Boat Ride. 3. For the next four seasons (1981 to 1984) she was a shift supervisor at the Maid of the Mist Incline Railway. As the -.. Upper Operator she had the responsibility for running the cars . , safely from the Upper Booth. Her responsibilities also included motivating staff, scheduling, reporting mechanical . .failures and keeping,a log book of daily operations. In 1983 the seasonal Manager of the Maid of the Mist Incline Railway became -ill and she filled his position on an acting basis. As part of her responsibilities she completed timecards, evaluations of staff and was on-call durin,g operating hours should. the need, arise. She also opened -and closed the operation with.keys furnished to her, set the alarm with a key when she closed the booth, communinicated with the Park Police and carried.out staff training involving safety req&ements. I 4. She; did not- work for the Commissi-on in 1985 o& 1986 for' ' I "personal reasons;" and returned to work in 1987 at the People Mover system where she was involved in package tour I sales and performed information duties in connection with her other responsibilities., Most of her dut'ies involved,selling .i People Mover passes, operating the cash register and preparing ‘r / .‘5 - .- 7 ', the cash float. She wotked.independently in the booth while performing her various functions. She completed..her 1987 assignment as a seasonal employee 'at the People Mover in I October. At that time she approached persons in the Personnel Unit of the Administration Department and requested work that would.enable her to work only during the day, Her request was granted and she was transferred to the Distribution Centre. It was her understanding that once the transfer took place'it _I would be permanent .because she had completed a permanent! n transfer form atthe time she made her request and set out her . reason for making it, which related to' her 'child .‘care responsibilities. I 5 . . In the 1988 season she started to work at .the Distribution Centre at the beginning of March. During the season (which'she : identified as January to 'June) employees at the Distribution Centre work full-time hours, following which there are lay- offs-. Laid-off employees work on a part-time, on-call, basis, .- , usually until the end of August. She identified the, duties of _ Distribution Ce-ntre.Workers as being unpacking and inspecting , merchandise, ticketing (pricing), filling out purchase orders, accounting for stock, stocking. shelves, picking stock from shelves to fill orders for other'stores and shipping. '6. During the.1988 season, she was approached about a month after her transfer, by John Roach, an Assistant Manager at the Distribution Centre and informed that'her transfer was‘,not permanent and that she had actually been flborrokedll 'from "'People Mover, and that she would have to return there when I -I People Mover opened for the season or she would be without a job. --. 7. 'Ms. Lynch took issue pith- this description of her status, contending that she had been informed earlier that her transfer was permanent, and-she could not understand why she 'wasnow being told that it‘wasn't, '. 8. 'She was laid-off about the month of ‘January, 1989, and the > diff-erence. between ,herself and.management relating: to her status as a seaosnal employee in the Distribution .Centre remained unresolved. According.ly, she was unsure at the end of .---- her first season at the Distribution Centre whether she still had a job to returnit there for the 1989 ,season. - 9. She next hekd'from'the Employer later in January jof 1989, when she was advised that she would be recalled to work for , '> that season. As she had not --received any : concrete communication as to which department she was part. of for recall purposes, she communicated with Personnel and asked / 1. whether she was still an employee and 'if so, of which department. She was informed that she.was regarded as being , . r ‘, . 9 \ 10. She 'then calied Bob .Pidzamecky, the Manager of the 12. permanently attached Distribution. Centre. Distribution Centre, to find out when she might be recalled to as a seasonal employee to. the work for the 1989 season. He informed her that she was not on his 'recall list-. She advised him that she had called Personnel, and they had informed her-that she was on the list. She' then called Debbie Whitehouse, the then -Head of' Human Resources .for the Commission, to find out if there were any reasons why "any employee" such as ,herself would not'be : recalled to the. Distribution Centre. Ms. Whitehouse is supposed-to have rep.lied: "You would normally-be recalled to your last place of employment, 'unless you had had.aL poor evaluation."' 'Ms. Lynch added that her evaluations were i : uniformly good and therefore concluded that she ought to be recalled as a DistributionCentre Worker. Shortly thereafter, Mr. Pidzamecky recalled Ms. Lynch to work as a Distibution Centre Worker. I ! Ms. Lynch was.recalled to work- in the Distribution Centre for the 1990'season towards the end of February, adding that she losta month from the normal season that she expected to work. 13 14. 15. . _J 10 - In 1991 she wasagain recalled.to the Distribution.Centre - this time sometime'in the-month of March. She added that she regarded her recall as taking place later every season, which she attributed to her being "down in the seniority list." / She.referred to Exhibit 7, which is 61 policy grievance filed by the Union on January 17, 1991 (the fil-ing of which she had been involved with to the,knowlege of man.agement), where an, allegation was made that managers were performing‘bargainihg unit-work, as a result of 'which the hours of work available to bargaining unit personnel were reduced. The Union regarded the managers to be performing regular bargaining unit work on.the floor in the 'same way as it was performed by bargaining unit employees'. She stated that she had arranged meetings with the local executive in order to have them settle upon the means of forwarding the grievance and resolving it. She also encouraged rank and file bargaining unit members to attend these meetings in'order to express their doncerns.. .' : : ,' / She was involved as a Union activitist in connection with a , '1990 classification grievance filed- by. her; Alt!hough her grievance was one similak to a number of other classification grievances filed on,the basis of- improper classification, she was more outspoken in pursuing the matters in dispute with the Employer . ” _’ 6 11 y ; . . 16. In 1991 she filed another class.ification grievance. As in .the case of the 1990 grievance,. a .number of other employees similarly situated, including Ms. Rosenberger, filed grievances. The position of the Grievors was that they'were performing the same work as other regular employees but were being paid less. 17 ; In 1991 she.was in the llforefrontll- of a group of Distribution Centre-employees.who filed a petition to abolish a management : policy that reguired bargaining unit.personnel to sign a paper attached to a clipboard on the supervisor's desk., along with' i the date-and their name, when going to and returning from the .washroom. During coffee and lunch breaks, she circulated a -; hand-written petition that she had been instrumental in 1 .preparing to fellow employees with a view to having them sign it.' .' -1' 18. She gave the signed petition to Kate McArdle, a Union steward, . and asked her to deliver 'it to Mr. Pidzamecky. She stated that Mr. Pidzamecky would have been aware who prepared the petition L 1 as he was familiar with the handwriting of employ&es because of a system in place which enabled the Employer to know which employee had made an error in shelving boxes identified with the product description and number. She added that her handwriting was tlall over the building" and was well known to , management. ' I I r I : I r ?I 12 . , 19. After the petition'was filed, Mr. Pidzamecky called a meeting , of the Distribution Centre staff to discuss some .of the \. concerns expressed in the petition, where'&. Lynch was the / spokesperson for. the affected employees. She stated that Mr. Pidzamecky was "openly angry" at the.meeting, when she explained how "indignant and humiliated" the staff were'at -_ having to complete and sign the sheet. -. I 20. She stated that the discussion went "back and forth," with,Mr. I Pidzamecky expressing his support for the new policy as he I ' felt there was a good reason for it. In the course of the , , discussion3h,e was said to have addressed Ms. Lynch in an angry \ tone.of voice ,and told her to sit .down.and be quiet and let others. speak. I' At that point other employees addressed the meeting and Mr. Pidzamecky appeared to be'somewhat calmer, but L he became, upset, once again,.. by a comment made by Ms. Rosenberger.relatingto "women's biological functions." Before ,Ms. Rosenberger cpmpleted her comments, Mr. Pidzamecky was said to have "cut her ,off." : . . f . . \. . . . i 21. -Ms. Lynch stated that'there was another concern expressed at the meeting by affected employees: that the time spent in the , I washroom might be calculated at the end of the week and .deducted from their, paychecks. . I -. I ., . ‘,. 0 13 22. The meeting ended with l'everyone' venting their feelings." _ The policy was abolished by management. shortly after the meeting;. At'that time Ms. Lynch's fellow workers complimented her,on the wording of .the petition - almost all of them having i .' signed it.: / 23. 24. '25. She also referred to her Union activity in support of pay j . equity. She referred to a number of incidents .where management was "cracking down on-talking and laughing," .when she complained about management's behavior to the.local Union executive. “1 She also voiced a number of other concerns -relating to the workplace to.management in'1991 or 1992. On reflection she said that she thought it was in 1991. Because she was aware of an upcoming inspection that was to take.place, she approached the local's executive with a. list of health and 'safety I concerns, including a problem with "wobbly ladders,; exposed fluorescent light bulbs over employees', heads,.. unc;ean bathrooms and poor.air circulation.".. Referring to!the l$tter 'concern,- she indicated that Tmployees Gere experiencing drowsiness and headaches. I 26. She approached Dave Farinasci, who was'the head,of Health and' Safety to inspect .some of the matters noted. During the ' . 27. - 28. 14' -1 \. inspectionMr. Pidzamecky and Rob Atkins (the Union President) were.present. She pointed out the wobbly ladders that staff had been using, which ladders were said to "rock and wobble." She expressed her concern'because employees had to proceed up the ladders to stock boxes "high up" and were unable to hang \ on to hand rails with their hands full. Mr. Farinasci agreed with.her concerns, made a note of.them, which he placed'in his briefcase. Mr. Farinasci proceeded up the ladder and rocked back-and, forth and' then stated that the problem might be caused'by.the uneveness of the floor. __ After' the .exarqination of the ladder; the inspection tour . continuad to the-other side of the building. At one point Ms. Lynch went to the womens' washroom'. When she came out, she observed the-other persons continuing with the inspection ‘of, the.washroom.-.-Mr. Atkins asked Ms. Lynch if, the‘washrdoti tias clean‘enough'for her. She did not reply but looked-down at the fl'oorand avoided.answering the question because she thought. that he did not appreciate that he.was singling her ott of all the‘ other employees to 'be the one, to. complain, and this I embarrassed her. I , She was also involved in.a seniority grievance in 1992 and referred to Exhibit 8, which is the minutes of settlement with respect to it. This.grievance concerned her claim that she had improperly been deprived. of a year'ti sen-jority when .Mr. . . . . , 29 Pidzamecky, as above-noted, told her that 'he did not regard her as being a member of' the Distribution -Centre seasonal staff. -. Another. employee; Josephine (Josie) Wallis, j,oined in the settlement because it affected her seniority placement, as she had been hired after Ms. Lynch was t.ransferred to the Distribution Centre. Ms. Lynch's greater seniority in relation to Ms. Wallis is acknowledged in Exhibit 9, being an agreed to listing of.seniority.in the Distribution Centre with respect to seasonal workers; Exhibit 9 is dated June 8, 1992, and Ms. / ,Lynch stated tha; she did not work as a seasonal employee in .. 'the Distribution,Centre after the 1992 season. -She returned to her seasonal-position at the Distributioncentre approximately .at.:the end of-February or the middle of March of that year. She believed that it was at that time that -four regular sales clerks, who had no previous experience there, were introduced .L into the Distribution Centre. She believed that- the regular _ sales clerks. had 'previously worked in gift shops /for the : Commission at various locations in the Park. She said she was familiar with all of them, and each of them had to be trained to work in the Distribution Centre. When Ms. Lynch commenced work during the 1992 season, therewere still some duties that these employees could not properly performuntii they received further training. . 16 30. At that- time seasonal employees at the Distribution Centre were informed by management that animosity directed against the newly introduced regular employees would not be tolerated. ,' Ms. Lynch acknowledged that there was some resentment directed at those employees because they had taken "our jobs and-were .paid more money.'! Notwithstanding her feelings, her working relationship with them was good, and she worked "one-.on-one : with a couple of them." She understood from the regular . . employees'that they did not wish to'work at the Distribution / Centre but were'there because,they had been transferred. She, . identified the employees as Elizabeth Caruso, who had worked ' 'at the Table Rock gift shop; Terry Colic, who had worked at. the,Aero Car; and Asima Ahmed-who had worked at the Maid of.. the Mist Plaza and Tracey-O'Brien who ,had also worked at the Maid of the Mist Plaza. In each case they had worked'at'a g,ift _. shop operated by the Commission. Ms. Lynch believed that each ( of them could have worked at four or five gift shops that were ' open at.-that.time and need not have been transferred to the Distribution Centre.. It was her impression that sale's clerks'. /I .. i at the gift shops were not laid-off until the shops closed at ' I the end of.the.season. She ,stated that regular sailes clerks. ./ were "funneled into I1 Table Rock, being one of the large shops operated by the Commission that was open on a.year-round basis. Notwithstanding the introduction of the regular sales ,, clerks into the Distribution Centre, Ms. Lynch was laid-off in 1992 around the time that she was usually laid-off. She later ‘.. : I r i I . 17 clarified her evidence to say that she lost almost two months . out of the season in 1992: "Our season was shorter," referring to those employees on the seniority list (Exhibit '9) from herself down. i 31. Referrin,g -to the regular employees above referred to., she stated that sheydid not-know-how many of them or which ones worked in the' Distribution Centre in 1993. What information she' had she obtained through seasonal workers in the I J ,i Distribution Centre with whom she had worked previous-ly. . . _- 32.. She received a "card" from the Commission when she returned for the 1992 season. This was because she was an employee with over five years' seniority entitled to paid holidays and 40 per cent off purchases._ i 33. At the end of the 1992'season she had greater seniority than Josie Wallis, Randy Ralph the D.C.. .Driver and Ed Ruchar, the D.C. Forklift Driver. i ? _. , 34. In 1992, Mr. Ralph was a part-time driver of the ban used by the Distribution Centre. He went, out on deliveries two to three times a week and the rest of the time worked at the Distribution Centre where he performed l'pretty muchI the same work as Ms. Lynch did as a D.C. Worker. . 35. 36, She was contacted at.the end of February 1993 by Jerry Taylor; 37. 38. .: . * -_ : 18 ._ She has driven a van, being herpersonal vehicle., held a Class ' G licetise, and was also able to drive an. automobile and; a pickup truck: a supervisor at the Distribution Centre, and informed that "things there were slow" and he recommended that she go to i Personnel in order to have her name placed on the surplus list. She asked Mr. ‘Taylor if she was going to be recalled to the Distribution Centre "at all" and he replied: "I'll keep you posted." When asked who "ended up in [her] position'during the I993 . season," she responded: that Josie Wallis, Randy Ralph.and the r "full-time girls from the gift shop" except for Elizabeth Caruso '(who did not return) worked at the Distribution-Centre, -. and emphasized that Ms. .Wallis and Mr. .Ralph had less seniority than she -did.. It was her understanding that Ms. Wallis had been given a clerical position which had not been offered to her. In her-view Ms. Wallis was no more -qualified than herself for that job. She was friends with Ms. Wallis, who called her at the end of March 1993, after she found out that she (Ms. Lynch) was not going to be recalled to the Distribution Centre. Ms. Wallis said that she was not certain ‘. 3 9.1 40.: .__. 41.T : I. . _ r I , 19 if.she would be able to perform the'clerical job, but that she needed,it.and had taken a refresher‘course to prepare her for . the typing time test that she had to-pass. >'She'told Ms. Lynch that she failed the test "miserably".the first time &d went back to-try.it again and also failed.- She managed to pass the . Lest the third time she took it and was'given the job. In 1993, Ms. Lynch went to the: .Human Rights Committee 'for assistance and was advised that Mr: Ralph had-been called back to work in.his previous position‘as D.C. Driver. I .'. i : She.referred to Exhibit 19, being an updated version, as ,at April 12, 1994, of theseniority list with.respect.to seasonal bargaining unit.staff in Retail Operations. j , According to Ms. Lynch, there we.re 40 to 50 seasonal.employees in 'Retail Opera,tions during the 1993 season- who had less seniority than.she .had and who occupied positions for which '. : she was 'qualified. She stated that she was qual,ified to work ._- as a cashier, car loader and upper operator... She ,also I ' ,referred to .the horseshoe incline job, (which she. felt she could "possibly perform" because .of previous experience she had at the Maid of the.Mist incline) and to the Distribution Centre.