HomeMy WebLinkAboutUnion 13-07-02In the Matter of an Arbitration
Pursuant to the Ontario Labour Relations Act
Between:
TRANSFIELD SERVICES
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the Union)
Re: Job Posting Union Grievances: 2012-0735-0005, 2012-0705-0001, 2012-0725-005,
2012-0728-0001, 2012-0729-0003
A W A R D
PAULA KNOPF - ARBITRATOR
APPEARANCES:
For the Employer: Saeed Ganji, Project Manager
Sandra Morrison, Office Manager and Senior Human Resources
Manager
For the Union: Ed Holmes, Counsel
Brenda Wood, Staff Representative
Jennifer Roukkula, Regional Grievance Officer
The hearing of this matter was held in Thunder Bay, Ontario, on June 24, 2013.
This case concerns grievances alleging a failure to post several Patrol Maintenance
Technician Positions [P.M.T.P.s] in five different locations. The parties have agreed
that the grievances should be heard together. The Employer denies that there has
been any violation of the Collective Agreement and asserts a preliminary objection to
the timeliness of these grievances. The parties agreed that the objection should be
dealt with and a written decision rendered before any consideration is given to the
merits of the case.
There is no dispute about the facts that are relevant to the preliminary objection.
The Employer procured a contract with the Ministry of Transportation commencing June
1, 2012, to provide maintenance and improvements to the roadway in the Kenora area
of Ontario, Canada. Many Patrol Maintenance Technicians employed by the Ministry
prior to June 1st transferred employment to this Employer effective that date and others
were hired. The Union did not and does not object to the posting of P.M.T.P.s and/or
hires during that time period. The Union accepted the Employer’s assurances that it
could manage the workload with the number of P.M.T.P.s that were being engaged.
In November 2012, Ms. Brenda Wood, the Union’s staff representative for the area, was
conducting a series of meetings with the affected Locals. During these meetings, she
heard many complaints about excessive workload and overtime demands, as well as
health and safety concerns. This lead the Union to the belief that there was sufficient
workload to warrant filling more full-time P.M.T.P.s pursuant to the job posting
provisions of the Collective Agreement. By the end of that month, these grievances
were filed.
The relevant chronology is as follows:
• December 10, 2012 - Stage 2 Meeting is held1
• December 21, 2012 - Stage 2 meeting is held and the decision denying the
grievances is given in writing to the Union
1 No Stage One meeting was held because these are Union grievances.
2
• January 4, 2013 - the Union referred these grievances to arbitration
• January 8, 2013 - the Employer wrote to the Union asking for “the basis on which
the Union has requested referral of these grievances to arbitration since the filing
of the grievances was not done within the prescribed timeline.”
• January 27, 2013 - The Employer reasserts its objection to timeliness, but agrees
on a “without prejudice basis” to refer the question of timeliness to arbitration.
The relevant provisions of the Collective Agreement are:
ARTICLE 6 - POSTING AND FILLING OF VACANCIES OR
NEW POSITIONS
(RPT)
6.1.1 When a vacancy occurs in the Regular Service for a
bargaining unit position or a new regular 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.
. . .
ARTICLE 22 - GRIEVANCE PROCEDURE
. . .
22.13.1 Where any difference between the Employer and the
Union arises from the interpretation, application,
administration or alleged contravention of the
Agreement, the Union shall be entitled to file a
grievance at the second stage of the grievance
procedure provided it does so within thirty (30) days
following the occurrence or origination of the
circumstances giving rise to the grievance.
The Submissions of the Employer
The Employer argues that as of June 1, 2012, the number of P.M.T.P.s being filled was
evident to everyone. Therefore, the Employer asserts that the Collective Agreement
required the Union to file grievances regarding any complaints about such hiring within
30 days of June 1st. The Employer stressed that these grievances, filed late November,
3
were “well beyond” the 30 days prescribed by Article 22.13.1, and that the grievances
should therefore be dismissed on that basis.
The Submissions of the Union
The Union stressed that it acted “reasonably” in relying upon the Employer’s
assessment of the number of P.M.T.P.s required for the Ministry of Transportation
contract in June 2012. Further, the Union said it was also reasonable to take until
November of 2012 to come to the conclusion that the Employer could not safely or
adequately meet its obligations with the complement of staff being assigned to do the
existing work. Therefore, the Union argued that it filed timely Union grievances under
Article 22.13.1.
The Union presented three theories to justify the hearing of the grievances on their
merits:
1. The Union asserted that these are “continuing grievances,” thereby relieving
them from the fixed timelines set out for filing of complaints under the Collective
Agreement. Reliance was placed on the extract from Brown and Beatty,
Canadian Labour Arbitration, 2:3126. And, or in the alternative,
2. The Union asserted that this is an appropriate situation for granting relief against
a time limits in the Collective Agreement pursuant to the discretion available
under s. 48.16 of the Labour Relations Act. Reliance was placed upon Becker
Milk Company Limited and Teamsters Union, Local 647, [1978] 19 L.A.C. (2d)
217 (Burkett); and Greater Niagara General Hospital and O.N.A., [1981] 1 LAC
(3rd) 1 (Schiff). Further and, or in the alternative,
3. The Union argued that the Employer has waived its right to object to these
grievances on the basis of the timeliness. Reliance was placed on George
Brown College and OPSEU, Simone, December 29,1995 (Burkett); Centennial
College of Applied Arts and Technology and OPSEU, Glenville, October 17, 1997
(Schiff); O.P.S.E.U. (Feung/Anand) and Crown in Right of Ontario (Ministry of
Revenue), [1991] Grievance Settlement Board - Stewart, April 16, 1991; OPSEU
4
v. Ontario (Ministry of Community, Safety and Correctional Services), [2005]
Grievance Settlement Board - Herlich, April 4, 2005; OPSEU v. Ontario (Ministry
of Child and Youth Services)(Moody) [2012] Grievance Settlement Board - May
23, 2012 (Abramsky).
The Decision
For the reasons that follow, I have concluded that the grievances are timely. If I am
wrong about that, I have also concluded that this is an appropriate situation to relieve
against the time limits in the Collective Agreement. Therefore, there is no need to
address the issue of waiver.
First, given the nature of these grievances and the remedy sought, these are clearly
“continuing grievances.” The Union is not objecting to the hiring or the postings that did
occur prior to November 2012. The Union’s complaints arise out of what are alleged to
be excessive workloads in November 2012. A continuing grievance is one that arises
from repetitive actions or inactions that are alleged to violate the Collective Agreement,
such as failure to ensure a safe workplace, or improper calculations or crediting of
seniority. The improper assignment of work or failure to post when a vacancy exists
may also be considered as continuing grievances. The Union is alleging that as of
November 2012, there was sufficient workload to trigger the operation of Article 6.1.1 of
the Collective Agreement. No relief is being sought for a period before November 2012.
Therefore, since the grievances in this case concern the failure to post when available
work warrants the filling of vacancies, these grievances must be considered as
“continuing grievances.” As a result, nothing in the Collective Agreement prevents the
filing of the grievances on the basis of timelines. As Union continuing grievances, they
can be filed at any time within 30 days of the continuing alleged violations. That was
done in this case. Therefore the grievances are timely.
In the alternative, this must also be considered to be a case where it would be
appropriate to exercise an arbitrator’s discretion under s. 48.16 of the Labour Relations
Act. It provides:
5
Except where a collective agreement states that this subsection does not apply,
an arbitrator or arbitration board may extend the time for the taking of any step in
the grievance procedure under a collective agreement, despite the expiration of
the time, where the arbitrator or arbitration board is satisfied that there are
reasonable grounds for the extension and that the opposite party will not be
substantially prejudiced by the extension.
Relying on the analysis set out in the leading authorities of Becker Milk Company
Limited and Teamsters Union, Local 647 and Greater Niagara General Hospital and
O.N.A., supra, the following conclusions must be drawn:
• These grievances have considerable significance to the Union and the Employer.
They involve the interpretation and application of Article 6, management rights,
health and safety concerns and the respective rights of the parties relating to
workload and the complement of the bargaining unit. Therefore, they raise
serious issues and rights.
• The Union has adequately explained the reasons for the timing of the filing of the
grievances and cannot be held to be responsible for any kind of “delay.” On the
contrary, the Union acted responsibly throughout the Spring and Summer of
2012 by accepting the Employer’s assurances that it had hired a sufficient
workforce to meet demands. The Union did not file any grievances until it had
received and investigated several complaints and had calculated how many
more full-time positions might be warranted.
• The length of the alleged “delay” from June to November is neither insignificant
nor excessive. It was actually reasonable to wait the few months in a new
regime to see if the existing workforce could manage its workload. Therefore,
the period between June 1 and November 30th is excusable under these
circumstances.
• Finally, no prejudice has been alleged or demonstrated by the Employer. There
is no assertion of liability prior to November 2012, and all the evidence would
focus on the workload as of the time period relevant to when the grievances
were filed.
Therefore, even if the Employer is correct in asserting that the grievances should have
been filed within 30 days of June 1, 2012, a point that has not been accepted by this
6
arbitrator, relief against that time limit is available under s. 48.16 of the Labour Relations
Act when there are reasonable grounds for the extension of time and there is no
prejudice to the Employer. Both those conditions have been met in this case.
Therefore, this matter shall resume for a hearing of its merits on a date(s) convenient to
the parties. However, given the potential of a very complicated hearing involving many
witnesses and complex issues, I urge the parties to discuss the conduct of these
proceedings with the goal of focusing the issues and expediting the process. I am
available by way of conference call to assist in that discussion if requested.
Dated at Toronto this 2nd day of July 2013.
____________________________
Paula Knopf - Arbitrator