HomeMy WebLinkAbout2009-0437.Cotter.14-10-09 DecisionCrown Employees
Grievance
Settlement Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2009-0437
UNION# 2009-0217-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cotter) Union
- and -
The Crown in Right of Ontario
(Niagara Parks Commission) Employer
BEFORE David R. Williamson Vice-Chair
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Ian Campbell
Fasken Martineau DuMoulin LLP
Counsel
HEARING June 10 and September 18, 2014
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DECISION
[1] Ms. Colleen Cotter was employed by the Niagara Parks Commission and worked as a
regular full-time Level 5 employee at its Tim Hortons operation where she carried out the duties
of counter help and baker. On January 30, 2009, she received notice that her position was to
become surplus effective the end of the business day on February 20, 2009. On February 16,
2009, Ms. Cotter filed a complaint in accordance with the provisions of Article 13.01 of the
collective agreement and set forth her view that her position ought not to have been surplused as
more hours are worked in this position during the summer than in the winter, and that as Tim
Hortons is open year-round they still need a baker. On March 2, 2009 Ms. Cotter filed a
grievance alleging unjust loss of her position and sought full redress. The grievance remained
unresolved and came to be heard at arbitration on June 10, 2014, at which time the parties
proceeded by way of an Agreed Statement of Facts and the viva voce evidence of Ms. Cotter.
[2] The evidence shows that Ms. Cotter’s position was one of a number of bargaining unit
and management positions at the Niagara Parks Commission that were either eliminated, down-
sized, or made surplus due to a downturn in business brought about by a series of economic
factors adversely affecting the volume of tourism in the Niagara region, particularly by tourists
from the United States. These factors included a strong Canadian dollar, a weakening U.S.
economy, rising fuel costs, new passport requirements, and border delays.
[3] The evidence demonstrates that in assessing its operations in late 2008, the Employer
determined that changes were needed at its Tim Hortons store. In this regard the decision was
made to reduce store hours and cut by approximately half the number of goods to be baked on
site each day. Ms. Cotter was a seasonal employee for many years before assuming a regular
full-time position in the Employer’s Food Services Department in 1999. Her seniorit y date is
May 24, 1979. Ms. Cotter was one of two regular full-time employees whose positions were
declared surplus in early 2009. The other employee’s seniority date was July 31, 1978. This
other employee exercised her bumping rights into a full-time sales clerk position and remains in
that role to this day. Following the elimination of these two full-time bargaining unit positions,
there are no longer any full-time bargaining unit positions at the Tim Hortons operation and the
required work is done by seasonal workers. Data entered into evidence show the total number of
hours worked by seasonal employees in the counter staff / baker role for each year since 2009 are
less than the hours that would be worked by one regular full-time employee.
[4] It is the testimony of Ms. Cotter that during her time as a regular full-time employee the
Tim Hortons store was open 364 days a year and that as it was a requirement of Tim Hortons that
no baked product was older than eight hours she did two bakes a day. Ms. Cotter testified that
the reason she filed her grievance is that her job was taken away from her with the store
remaining to be open for 364 days a year and with someone still having to do the baking work
and counter duties.
[5] On February 5, 2009, Ms. Cotter informed the Employer that she wished to exercise her
seniority rights under Article 10.02 of the collective agreement and bump into the full-time
position of Janitor at the Victoria Park Restaurant. This request was approved by the Employer
on February 6, 2009, with the assignment to commence on February 28, 2009. On February 11,
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2009, Ms. Cotter informed the employer that she wished to cancel this bumping request and that,
instead, she wished to exercise her seniority rights under Article 10.02(b) of the collective
agreement and bump into a Seasonal Pantry Worker position at Elements Restaurant. This
request was granted and Ms. Cotter commenced work in this position on April 19, 2009, and
continues to work in this position with her employment governed by Part B of the collective
agreement that relates to seasonal employees. From the last day of her regular employment on
February 20, 2009, to the start of her new position at Elements Restaurant on April 19, 2009, Ms.
Cotter worked the available hours as a seasonal employee at Tim Hortons.
[6] It is the position of the Union that it is unjust that a business operation that continues to
be open 364 days a year and which was once staffed by both regular full-time and seasonal
employees is now staffed only by seasonal employees, with the result that regular full-time
employees who have much seniority are the ones who suffer and have to move to other jobs.
The Union submits that such an outcome is contrary to the spirit and intent of the collective
agreement which provides a series of protections for regular full-time seniority employees and is
not about facilitating the conversion of full-time jobs into seasonal jobs through an exercise of
management rights. The Union submits further that, while the employer has certain retained
management rights, in order to preserve the integrity of the agreement between the parties and
maintain the protection of seniority rights, the collective agreement should be read as a whole
with its various express provisions and implied protections. The Union seeks that the grievance
be granted with the matter of quantum to be left to the parties to address and with the arbitrator
to remain seized. In support of its submission the Union made reference to Re Canadian
National Railway Co. and Canadian Telecommunications Union Division No. 43 of the United
Telegraph Workers et al. (1976), 10 O.R. (2d) 389 (Ontario Court of Appeal), and to Re
Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1983), 10
L.A.C. (3d) 1 (P. Picher).
[7] It is the position of the Employer that the collective agreement sets out the rights of
management and provides for a process to be followed when there is a lay-off or a position is
found to be surplus. It is the submission of the Employer that this lay-off process has been
properly followed and submits that it is indeed telling that the Union has not referred to any
specific provision in the collective agreement that it contends has been breached. It submits
further that it has acted in a non-arbitrary and good faith manner to manage the business in
accordance with its management rights to respond to a fall-off in business due to adverse
economic conditions and that both management and bargaining unit staff have been negatively
impacted. One result of the changes made is that there are no longer enough hours for a regular
full-time position at its Tim Hortons facility and that while there is still baking and counter
service work being done it is much reduced from before and Ms. Cotter elected not to take the
seasonal position at Tim Hortons. For all the foregoing reasons the Employer seeks that the
grievance of Ms. Cotter be dismissed. In support of its submission the Employer made reference
to Re Hamilton Public Library and CUPE, Local 932 (2011-12) (2013), 238 L.A.C. (4th) 116
(Surdykowski); Re United Parcel Service Canada Ltd. and Teamsters Union, Local 141 (1981),
29 L.A.C. (2d) 202 (Burkett); and to Re Yoke’s Supermarket Ltd. and U.F.C.W., Local 864
(1994), 43 L.A.C. (4th) 327 (Outhouse).
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[8] Relevant provisions of the collective agreement are set out below:
ARTICLE 3: MANAGEMENT FUNCTIONS
3.01 The Union acknowledges that, except as specifically modified elsewhere in this Agreement,
it is the exclusive function of the Employer to:
(a) Maintain order, discipline and efficiency;
(b) Hire, discharge, transfer, classify, promote, demote, assign, layoff, recall, schedule and
suspend or otherwise discipline employees, subject to the right of an employee to lodge
a grievance in the manner and to the extent hereinafter provided;
(c) Make, enforce and revise from time to time rules and regulations relating to discipline
and the general conduct of an employee.
(d) Manage the enterprise in which the Employer is engaged and without restricting the
generality of the foregoing, the right to plan their operations, direct the work force,
determine the number of personnel required from time to time, the number and location
of offices and facilities, the services to be performed and the methods, procedures and
equipment to be used in connection therewith;
(e) Establish schedules of work, the extension, limitation, curtailment or cessation of
operations and exercise all other rights and responsibilities of management.
ARTICLE 10: SENIORITY
10.02(a) When the Employer decides the circumstances require a reduction of personnel and
where the qualifications of the employees for the job concerned are relatively equal, the
seniority of the employees shall apply. Employees with more seniority will have the
right to displace employees with less seniority in the same classification or a
classification with a lower maximum salary provided that the Employer determines that
the surplus employee is qualified to perform the work of the displaced employee.
Upon receiving a layoff notice, an employee who wishes to exercise his/her seniority
may do so providing he/she notifies the Human Resources Department in writing of
his/her intent to exercise his/her seniority within seventy-two (72) hours of receiving
the notification of layoff.
10.02(b) Where a full time employee is permanently laid off and is unable to exercise his/her
seniority to displace another full time employee, he/she may exercise seniority to
displace a seasonal position at an equal or lesser classification and where the full time
employee is qualified to perform the duties of the position. It is understood that an
employee who exercises this option shall only be covered by the terms and conditions
of Part B of the Collective Agreement. The employee’s seniority date shall be carried
over to the seasonal position and entitlements under Part B will be based on the
employee’s length of service as a fulltime employee (e.g. 4%, 5%, or 6% vacation
pay).
[9] The evidence, the provisions of the collective agreement, and the submissions of the
parties have all been carefully considered. On January 30, 2009, Ms Cotter received the
unfortunate news that due to economic forces impacting the employer’s operations her position
at the Tim Horton’s store was to become surplus as of the end of the business day of February
20, 2009. Ms. Cotter’s position was one of a number of positions either eliminated, down-sized,
or made surplus by the Employer at that time and included both bargaining unit employees and
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management employees. A review of the Agreed Statement of Facts and the associated exhibits
appended thereto clearly demonstrate the Employer was acting in response to a significant
downturn in tourism and visitors to the Niagara area caused by major economic changes on
several fronts, and it must be found that the Employer was not acting in a capricious manner or
without a bona fide reason for making the changes that it did to its complement of employees.
[10] In declaring Ms. Cotter’s position to be surplus, the Employer acted inside the scope of
the management functions set out in Article 3 of the collective agreement. Additionally, it must
be found that when it notified Ms. Cotter that her position was to be surplus, the Employer
respected the provisions of Article 10 of the collective agreement pertaining to seniority both in
advising her of her bumping choices and acting on her decision. While the evidence
demonstrates that baking and counter work continue to be done at the Tim Horton’s store where
Ms. Cotter previously worked, the data in the Agreed Statement of Facts make clear that the
hours worked are insufficient for there to be a regular fulltime position.
[11] The instant matter is not a case where the Employer has acted under its management
rights but contrary to other implied or express provisions of the collective agreement. As such,
this case can be contrasted with the Re Canadian National Railway Co. case to which reference
was made by the Union. In that case the Ontario Court of Appeal endorsed the approach that
looked to the terms of the collective agreement as a whole where no specific provision of the
contract dealt directly with the matter in issue, and where there was present a management rights
clause that specifically recognized it was management’s exclusive function to manage its
business and direct the working force in a manner not contrary to the collective agreement. This
is not the situation in the instant case. Here the parties have specifically agreed in Article 10
upon the precise steps to be followed in the circumstances of a layoff of a regular full-time
employee. Article 10 deals directly with Ms. Cotter’s situation, and the Employer followed its
provisions.
[12] Accordingly, and for all the foregoing reasons, it must be found that the Employer did not
act in bad faith in declaring Ms. Cotter’s position to be surplus but did so for sound business
reasons, and it is further found that the subsequent steps taken by the Employer were in
accordance with the specific provisions of the collective agreement.
[13] As such, the grievance of Ms. Cotter must be denied.
Dated at Toronto, Ontario this 9th day of October, 2014.
David R. Williamson, Vice-Chair