HomeMy WebLinkAboutUnion 05-05-15
116977!!B73 fax 02:16:25p.m. 06-03-200:' ;¿/;¿",j
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In the Matter of an Arbitration
Between
Corporation of the County of Simcoe
Social Housing Division
(Hereinafter referred to as "the Employer")
And
Ontario Public Service Employees' Union
(Hereinafter referred to as "the Union")
Regarding: Union Grievance
Sole Arbitrator: Felicity D. Briggs
For the Union: Boris Bohuslawsky, Counsel
Elaine Arts
Mark Arsenault
For the Employer: Philip J. Wolfenden, Counsel
Peter Woloszansky
Leigh Anne Marley
Dave Levesque
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On August 14, 2003 there was a power outage in the vast majority of the
Province of Ontario. This policy grievance alleges that the Employer
improperly compensated clerical employees in the Social Housing Division
on the day following the onset of that power failure.
On August 19, 2003 the Employer issued the following memorandum to all
of its incumbent Unions, without prejudice:
The Corporation of the County of Simcoe is a public employer with
an obligation to continue to provide services to the public despite any
unforeseen events. The power outage on Thursday August 14, 2003
and Friday August 15,2004 was an unforeseen event that was beyond
the control of the Corporation.
With respect to an employee's compensation, the Corporation will
allow unionized employees who were not at work on Friday August
15, 203 to draw on accumulated vacation and/or sick credits, use of
lieu time or banked time credits (where available) or the use of a
floating hoIjday to maintain their regular pay for this day. Employees
who wish to take this day as an unpaid day may do so. Any
employees who have exhausted any of the above options will not be
paid for this day.
In accordance with the Ontario Employment Standards Act,
employees classified as summer students who were not at work on
Friday August 15,2003 shall not be paid for this day.
In the event of further rolling blackouts, either on an intermittent
basis or scheduled rotating basis, the Corporation may be required to
send staff home during these times. These above options will apply
for pay purposes in any such circumstances.
Employees who were on a scheduled vacation day for Friday August
15, 2003 are not eligible for any other fonD of compensation.
We thank you for your cooperation during this time and if you have
any questions regarding this infonnation please contact the Human
Resources Department.
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Later that same day another memo was issued to the representatives of all
the Unions. It read:
It has been brought to my attention that as a result of our existing
payroll prog~am, all unionized employees shall be paid for last the
(sic) Friday's August 15, 2003 absence. All adjustments to unionized
employees pay do (sic) occur within the following pay period of an
absence.
Therefore, it is imperative that you inform your unionized staff of the
Corporation's decision regarding Friday August 15, 2003 and receive
their directive regarding their compensation options. Please ensure
that these options are clearly noted on the next payroll sheets to be
submitted to Connie McIntyre, Payroll Specialist. If payroll is not
infonned of your unionized employee's compensation decisions,
payment for Friday August 15, 2003, shall not be forthcoming in the
next pay period.
We thank you for your cooperation during this time and if you have
any questions regarding this infonnation please contact the Human
Resources Department.
Individual employees in the Social and Children's Services division
recei ved a memo very similar to the first memo set out above dated August
15, 2003. Within that memo was a request to staff to "advise their
supervisor as to the option of their choice and adjustments will occur in the
next pay period.".
Not all employees were prepared to make an election as suggested by the
Employer. Indeed, on August 22, 2003, Terri MolTis, one of the clerical
staff covered by this grievance, wrote the following to her immediate
superVIsor:
I do not wish to make a choice as to how I will be paid for the State of
Emergency day I was forced to take off but as I won't be paid
otherwise I am choosing to use a sick day. For the record though, I
was not sick and was ready and willing to work but was told not to.
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Most of the facts were not in dispute. The power outage brought about a
decision by the Employer to continue its shutdown of many of its operations
on Friday August 15, 2003 while efforts were being made to restore power.
The Ontario Public Service Employees Union represents approximately
seven clerical employees including a receptionist and sixteen custodial staff
in the Social Housing Division of the County. Unlike the clerical staff, the
custodial employees assigned to government assisted apartment buildings
were required to work on August 15, 2003. Ms. Pauline Leuning, Manager
in the Housing Division, attempted to contact the staff including the
unionized clerical employees by telephone to advise that the office would be
closed on August 15, 2003. In addition to these phone calls the County
an-anged for a public service announcement to be issued by the local radio
station stating that the County's administrative and satellite offices were
closed due to the power outage.
The Union took no issue with the treatment of summer students or those
employees who were absent due to vacation. Indeed, only the compensation
of three of the clerical staff, Elaine Arts, Carol Runnings and Terry Morris
was in dispute. That is to say, it was the Union's position that the
Employer's failure to compensate these employees as in the normal course
was a violation of the collective agreement.
Ms. Leuning managed to reach Ms. Morris by telephone and told her not to
report for work. During that conversation Ms. Morris offered to inform Ms.
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Runnings of this directive given that she lives very close to Ms. Morris. Ms.
Runnings had heard the public service announcement in addition to her
conversation with Ms. Morris. However, Ms. Leuning was unable to reach
Ms. Arts by telephone and therefore Ms. Arts reported to work on the
morning of August 15, 2003. She was instructed to go home after an hour
by another manager and did so.
Ms. Arts lives in Penetang and for that reason she leaves for work fairly
early each morning. She testified that she attended at her office at Cedar
Point on August 15, 2003 having not been instructed otherwise. During the
hour that she was at the office she was busy answering the telephone. She
said the office itself was quite bright because of the many windows and that
would have allowed some clerical work to be performed such as the
assembly of packages, filing and returning telephone calls. None of this
work requires a computer. She was of the view that there was sufficient
work to keep the three clerks occupied for the entire day.
Ms. Arts did not recall who told her to go home after an hour but everyone
who was in the office left at the same time. She was compensated for one
hour's work on August 15, 2003. Ms. Arts also testified that there was a
practice in the workplace that allowed non unionized employees to take
time off work without loss of pay for matters such as medical appointments.
In cross-examination she conceded that she had a special arrangement with
the Employer during the winter months when it gets dark early that she
works through her lunch period and leaves early.
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It was not contested that no one worked on August 1 S, 2003 in the County
except for a Road Crew who attended to the cave in of a road, the
custodians and those employed at the Horne for the Aged.
It was an agreed fact that the non-unionized salaried employees were
compensated for August IS, 2003 as in the normal course. That is to say that
they were not obliged to make the same election as unionized employees. It
was understood that these non-unionized salaried employees are those who
get paid whether they work or not. It was further agreed that the only non-
unionized hourly employees work in the Homes for the Aged and they were
required to work throughout the power outage.
The County has nine collective agreements with various unions and none
require the options put forward by the Employer in its August 19, 2003
memo. Nevertheless, the Employer offered all employees of the County the
same options.
The relevant provisions of the collective agreement are as follows:
2.1 The Corporation of the County of Simcoe recognizes the Ontario
Public Service Employees Union as the sole and exclusive bargaining
agent for all employees of the Social Housing Division of the Social and
Children's Services Department of the Corporation of the County of
Simcoe employed in the County of Simcoe, save and except Co-
Ordinator, persons above the rank of Co-Ordinator, students employed
during the school vacation period, persons employed pursuant to special
programs, grants and subsidies and those persons known as Security
Tenants.
4.1 The Employer and the Union agree that there shall be no
intimidation, discrimination, interference, restraint or coercion exercised
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or practiced by either of them or their representatives or members
because of any employee's membership or non-membership in the
Union or because of any employee's activity or lack of activity in the
Union or because any employee exercises his rights under the Ontario
labour Relations Act.
6.1 The Union recognizes and acknowledges that the management of
the operations and the direction of the working force is fixed exclusively
with the Employer and without limiting the generality of the foregoing the
Union acknowledges that it is the exclusive function of the Employer to:
(b) select. hire. transfer, assign, direct, promote, demote, suspend,
classify, lay-off, recall or retire employees. . .-
(c) determine an employee's qualifications and suitability to perform
the work required.
(d) Operate and manage the delivery of its services in all respects in
accordance with the Employer's commitments, obligations and
responsibilities including the right to determine the number and
location of the Employer's establishments and their expansion or
curtailment, direction of the work force, schedules of operation,
number of shifts,services to be rendered, methods, processes and
means of operation, work procedures, quality and quantity standards,
kinds and locations of equipment. machinery and vehicles to be used
at any time, selection and use of materials required by the Employer,
determine job content, establishment of work or job assignments;
qualifications of an employee to perform any particular job; decide the
number of employees needed by the Employer at any particular time,
number of hours to be worked, starting and quitting times, decide on
the regular and overtime assignments of work; determine financial
policies, including general accounting procedures, use and public
relations.
6.2 The Employer agrees that it will not exercise its rights in a manner
inconsistent with the provisions of this Agreement.
17.1 The Union and the Employee shall be advised at least one month
prior to any notice of lay-off being given. During this time the Employer
agrees to meet with the Union to discuss means of avoiding the lay-off.
The Union shall be supplied with an updated seniority list at the time of
the initial lay-off notice. Where notice of lay-off is required the Employee
will be given notice or pay in lieu of notice in accordance with the
provisions of the Employment Standards Act.
17.2 Should it become necessary for the Employer to reduce staff the
Employer will first solicit voluntary lay-ofts from the affected
classifications. The Employer reserves the right to accept or reject a
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voluntary lay-off application. The terms of the voluntary lay-off shall be
as outlined in Article 17.08. Employees that ëJre terminated following a
voluntary lay-off shall have no recall rights.
17.3 In the event there are insufficient volunteers to accomplish the staff
reduction(s) the following sequential procedure will apply:
1) Temporary employees shall be the first to be laid off in the
affected classification(s). This provision shall not apply to a
temporary employee replacing a permanent employee on a leave of
absence or where the temporary employee is performing work that
no permanent employee is qualified or capable of performing.
2) Regular employees who have not completed their probationary
~ period shall be the next tobe laid off in the affected classification(s).
3) If following 1) and 2) above the required staff reductions(s) have
not been achieved then the Employer will identify the least senior
employee within the affected position as surplus.
4) The Employee identified as surplus in 3) above will have the
following options:
(a) to be considered for any permanent or temporary vacancies
that may exist, subject to the employee being qualified and
capable of performing the duties.
(b) elect not to be considered for any alternative positions and
work the remainder of their notice period.
(c) resign and receive the provisions of Article 17.08, where
applicable.
(d) the Employee may elect to displace an individual with less
seniority in an equal or lower classification, subject to the
employee being qualified and capable to perform the duties of
the position. Employees who wish to exercise their displacement
rights must indicate to do so in writing to the Housing Manager
within ten (10) working days of receiving their lay-off notice.
17.4 Employees that have been displaced as per Article 17.03, 4 (d)
may then consider the options outlined in Article 17.03, 4).
17.5 It is understood that a part-time employee may not displace a full-
time employee.
17.6 Employees who are laid off shall have their names placed on a
recall list for a maximum period of twelve (12) months. If during that
twelve (12) month period a vacancy is created within the bargaining unit
as per Article 16.03, those individuals on recall shall have the first
opportunity to be considered for the vacancy. Successful appointment to
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such a position will be based on seniority and meeting the minimum
requirements of the position.
17.7 Employees who are laid off shall have their names placed on a
recall list and shall be given at least five (5) days notice of recall.
17.8 (a) Where an employee has been laid off and his/her employment
is thereby subsequently terminated they will be entitled to severance pay
in accordance with and subject to the provisions of the Employment
Standards Act.
(b) An employee may elect, at any time during the recall period, to
terminate his/her employment and to receive severance.. pay in
accordancelNith (a) above, in which event the employee's name shall be
removed from the recall list and the Employer shall have no further
obligation with respect to that employee.
17.9 The parties agree that the employer will not cause a layoff as a
result of contracting out unless it can be demonstrated that contracting
out can reduce the Employer's cost to have the same work done by a
contractor. It is understood by the parties that when the Employer is
calculating the "in-house" cost of providing services, those calculations
will include, but not be limited to, the cost of benefits including pension
contributions, vacations and paid holidays, statutory contributions, the
cost of absenteeism and the Employer's cost of administration.
17.10 Where the Employer determines that an on-site capability is no
longer required on a site where accommodation is being provided to an
incumbent employee the following procedure shall be implemented:
In such event, the employee so affected shall be provided with six (6)
months notice of the change.
Nothing herein shall prevent the incumbent employee from advising
the Employer, in writing, at any time during the notice period that
he/she wishes to apply to remain in a Simcoe County Housing
Corporation building as a market tenant either in his/her existing
premises or any other available employer owned building upon the
expiration of the six month notice period. It is understood that
eligibility to remain in the unit or any other Simcoe County Housing
Corporation unit will be based on the incumbent's ability to qualify to
live in such a unit, as a market tenant, based on criteria established
for residency by the Employer.
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UNION SUBMISSIONS
It was the Union's submission that the first issue to be addressed is whether
the events of August 15, 2003 constituted a lay-off. The instant collective
agreement does not define lay-off. However, a review of the jurisprudence
reveals that arbitrators have taken a broad view that any fOnD of work
cessation that causes a reduction in the workforce is a lay-off. For example,
it has been held that a brief inteITUption of less than a full shift is a lay-off.
Further, even in those circumstances where the cause of the lay-off is
beyond the Employer's control, arbitrators have not found the work
cessation to be anything other than a lay-off. Indeed, if the parties meant to
restrict the meaning of lay-off to. include only those situations which are
totally within the Employer's control the language of the collective
agreement should so indicate. Some collective agreements have lay-off
provisions with express language allowing exceptions such as emergencies
or circumstances beyond the Employer's control. There is no such provision
in the instant collective agreement and therefore the three employees at
issue must be found to have been laid off Article 17 of the collective
agreement sets out the tenDS for lay-offs and in this case the Employer
failed to follow the appropriate protocol of laying off employees in reverse
order of their seniority. Indeed, there is no evidence that this Employer even
turned its mind to the relative seniority of employees or the availability of
work that these employees might have bumped into as set out in Article 17.
The obvious inference that can be drawn is that this Employer did not
consider August 15, 2003 to be a lay-off situation. It was the uncontradicted
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evidence of Ms. Arts was that there was work that she and the other two
clerical employees could have perfonned and therefore the grievance must
be upheld.
Mr. Bohuslawksy, for the Union, suggested that implicit in Article 17 is the
notion that the Employer cannot simply shut down the workplace as a matter
of administrative convenience. It should have turned its mind to what work
could have been done and al1owed the appropriate employees to do that
work in accordance with seniority. Article 17 presupposes the right of
employees to work in those instances where work is actually available. In
this regard, the Union relied upon Re Windsor Match Plate and Tool
Limited and CAW (Local 195) (August 3, 2004), unreported (Watters); Re
Anvil Mining Corp. Ltd. and United Steelworkers, Local 1051 (1975),
13 LA.C. (2d) 19 (1. Weiler); Re London Transit Commission and
Amalgamated Transit Union (1983), 10 L.A.C. (3d) 348 (Rayner); Re
Canadian Forest Products Ltd. and Industrial, Wood & Allied Workers
of Canada, Local 1-424 (1996),54 LA.C. (4th) 45 (Blasina); Scarborough
Truck Centre and International Association of Machinists and
Aerospace Workers Local Lodge 235 (December 9, 2003), unreported
(O'Neil); and Re Uniroc Manufacturing and United Steelworkers of
America (March I, 1994), unreported (Davie).
. The second issue for this Board to address is whether the Employer engaged
in bargaining with individual employees when it issued its August 20, 2003
memo to staff requesting individual election of the Employer's established
options. Of the three individuals at issue in this matter two elected sick
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leave while Ms. Arts had six hours pay deducted because she failed to make
her election. It was not the Union's assertion that the Employer acted in bad
faith. However, to bargain with individuals is contrary to article 2 of the
collective agreement and the provisions of the Ontario Labour Relations
Act. In offering the options it did the Employer reduced the overall
negotiated wage and benefit package and it did so without the Union's
consent. The Union did not agree to that sick leave, vacations or paid
holidays could be utilized for other than their expressly stated purposes.
This Board must find that the Employer cannot mix and match various
negotiated benefits to achieve a convenient administrative resolution. It
must be found that the Union's exclusive bargaining rights were offended
and therefore the "side deal" is a legal nullity and the results should be
declared invalid. In this regard the Union relied upon Re Loyalist College
of Applied Arts and Technology and OPSEU (March 6, 2003), 225
D.LR. (4th) 123 Ontario Court of Appeal (Laskin J. A.).
Finally, the Union suggested that the options put forward by the Employer
in its August 20, 2003 memo were discriminatory. Reference was made to
non-unionized unsalaried receiving the same options. However, there are no
such employees In this bargaining unit. Therefore, the appropriate
comparator group is the non union employees and the evidence revealed
that this group all received their regular pay. This differential treatment
based on union membership is contrary to article 4.01 of the collective
agreement. The Union relied upon Re Inglis Ltd. and United
Steelworkers, Local 4487 (1978), 17 LA.C. (2d) 280 (Beck).
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EMPLOYER SUBMISSIONS
The Employer asserted that the facts revealed that only those employees
whose work was absolutely necessary worked on August 15, 2003. At work
that day was a Road Crew attending to an acute problem, custodial workers
and those employed to care for those in the Home for the Aged. The power
outage involved most of the Province and was an emergency. For that
reason, the Premier asked that Employers do whatever they could to lessen
the immediate electrical needs. That is precisely what the Employer did in
this instance.
Mr. Wolfenden, for the Employer, submitted that the lay-off provisions of
th~ collective agreement could not be I:iP}Jlled)n_th~ !lJ.]ique_cirçurnstances of
this case. This was not a lay-off situation as contemplated by the collective
agreement and for that reason the Employer was not obliged to give notice
or allow employees to bump. Indeed, a review of Article 17 makes clear that
the parties have negotiated the terms for pennanent lay-off situations only.
Article 17.01 requires notice of one month to be given to the Union in the
event of a lay-off. Obviously, the Employer could not have given this
notice. If this notice could not be provided then there was no lay-off as that
term is utilized in this collective agreement. Article 17 refers to notice of
lay-off be in accordance with the Employment Standards Act. Section 55 of
the Act does not apply to temporary lay-offs. Therefore there is nothing that
obliges the Employer to give notice of a lay-off of a temporary nature.
Accordingly, it cannot be said that the Employer violated Article 17 of the
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collective agreement. It is important to recall this fact when reading the
jurisprudence as provided by the Union.
In the alternative, if Article 17.01 does apply to the instant matter this Board
should ask what this Employer could have done. It laid off all employees at
the Cedar Point operation and that closure was within the Employer's right
to detennine in accordance with Article 6.01 of the collective agreement.
Notwithstanding Ms. Arts' view that there was work that could have been
done, it was within the sole purview of the Employer to decide whether to
have employees perfonn work or to close the office given the unusual
circumstances of August 15, 2003. There is no guarantee of work.
In the further alternative, if this situation constituted a lay-off then it must
be found that no harm was done, contended the Employer. All of the
employees were laid off and therefore there was no remaining employees to
bump.
The Employer denied the Union's claim that it negotiated with individual
employees. In these circumstances it had already infonned its various
unions of the options and it was decided that it prudent to ask employees to
make their election in an effort to avoid all employees losing one day's pay.
It was conceded that the Union had the right to agree as to whether all
employees should be paid in some fashion for the day. Perhaps it can be said
that the Union should have been asked to make an election for employees.
However, the Employer's failure to communicate only with the unions does
not fall into the category of unilateral negotiations with employees. There
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was no alteration to the terms and provisions of employment. Further, the
Employer did not meet with employees in the intentional absence of the
Union.
Regarding the Union's assertion of discriminatory treatment of unionized
employees, the Employer asserted that all employees, other than salaried
employees, were treated the same and there was no evidence to substantiate
a claim of anti-union animus.
Mr. Wolfenden also suggested that there was evidence that the Employer
put its mind to alternative work given that there were some employees who
continued to work as usual while others were told not to report.
The Employer relied upon Re Quality Meat Group Ltd. and Teamsters,
Local 419 (January 28, 2004) unreported (Beck) which dealt specifically
with the same power outage.
In reply Mr. Bohuslawsky pointed the Board's attention to the fourth
sentence of Article 17.01 which contemplates "where notice of lay-off is
required". It is implied that there are instances where notice of lay-off is not
required and therefore the provision must apply to both temporary and long
term lay-offs. Simply put there is nothing in Article 17.01 that restricts its
provisions to long term lay-offs.
The Union submitted that generally it has no quarrel with the concept of no
guarantee of work. However, if a lay-off provision ensures a fair allocation
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of work on the basis of seniority and specifically precludes unilateral
decision making by an Employer. While the Employer contended that it was
justified in this instance, the jurisprudence suggests otherwise.
Finally it was asserted that there was no evidence regarding whether the
Employer put its mind to alternative work. Indeed, a negative inference can
be drawn from the employer's failure to caB evidence in this regard.
DECISION
I turn first to the issue of whether these unionized employees were
discriminated against based on their union membership when they were not
paid as in the normal course for August 15, 2003. It was the Union's
assertion that, because there were no non-unionized hourly paid employees
in the Social Housing Division, the appropriate comparator group is. the
salaried non union employees who were, in fact, paid for August 15, 2003.
After consideration I disagree. I cannot accept the Union's proposition that
because there were no non-unionized hourly employees within this Division
the appropriate comparison group is the salaried employees. The mere
absence of anyone in a category that would be an appropriate comparison
group does not allow the Union in this instance to latch upon a group whom,
it was agreed, "get paid whether they work or not". If there had been
evidence of non-unionized hourly paid employees receiving a day's pay for
August 15, 2003 as in the normal course and not being obliged to make the
same election as the three unionized employees at issue, my view of this
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would probably have been quite different. However, in these circumstances
I cannot agree that the grievors suffered discrimination.
The second matter for this Board to determine is whether the Employer
violated article 2.01 of the collective agreement when it issued its letter to
individual employees on August 20, 2003. The Union was clear that it was
not asserting bad faith in this regard and there certainly was no evidence of
any mala fides. Indeed, I accept the Employer's assertion that it issued the
memo of August 20, 2003 in an effort to ensure that all employees got some
form of compensation for August 14, 2002, in their next pay cheque.
However, that intention does not bring about a finding for the Employer in
this regard. I agree with the Union that vacation pay, floating paid holidays
and sick pay are monetary benefits which fonn part of the overall
compensation package it negotiates on behalf of its members. If these
. benefits were to be utilized for a purpose other than that considered in the
collective agreement, the Employer should have sought and obtained
consent from the Union.
On August 19, 2003, the General Manager of Human Resources sent a
memo to five Unions that set out the Employer's intention to allow
unionized employees varIOUS options with respect to altemati ve
compensation for August 15, 2003. The memo concluded by thanking the
Unions for their cooperation and invited questions regarding the
information. In-espective of whether one agreed with the content of that
memo it certainly was appropriate for the Employer to inform the Unions of
its intentions. Unfortunately, on the very next day the Social Services
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Administrator wrote directly to "all Social and Children's Services Staff'. It .
is interesting to note that this memo actually provided fewer options than
the August 19, 2003 memo from the Human Resources Manager in that it
failed to offer the use of "lieu time or bank credits (where available) or the
use of a floating holiday to maintain their regular pay for this day."
Therefore the list of options provided to the members of the Social and
Children's Services Division had the number of available options halved.
However, even if the list of options provided to the Social Services
bargaining unit members had been the same as those set out in the memo of
August 191\ 2003, I would not hesitate to find that this action violates the
Union's exclusive right to collectively bargain on behalf of its members. As
stated above, I accept that the August 20 2003 memo was intended to ensure
that employees did not see a reduction in their compensation for the period
at issue. However, the Employer should have dealt with the bargaining
agent and not the individual employees in this regard and its failure to do so
violated the collective agreement.
Finally, I turn to the matter of whether, as alleged by the Union, the three
clerical employees were improperly laid off. The Employer would have me
find that the lay-off provisions of the collective agreement could not be
applied in these peculiar circumstances where a state of emergency was
declared by the Premier of the Province of Ontario. In some collective
agreements there are clauses which limit the Employer's obligations with
respect to lay-off and recall when emergencies occur including Acts of God.
There is no such provision in the instant collective agreement. As said by
Arbitrator O'Neil in Re Scarborough Truck (supra), "there is no 'escape
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4169775873
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clause' for situations beyond the employer's control in this collective
agreement". Therefore I cannot agree with the Employer in this regard.
Indeed, according to Article 14.05, it is beyond my jurisdiction to read into
the collective agreement a restriction that the parties themselves did not
include.
The Employer also suggested in these circumstances it could not provide the
months' notice as contemplated in Article 17.01 of the collective agreement
and that inability coupled with the absence of a definition of lay-off must
lead this Board to find that there is no violation of the collective agreement.
In Re Anvil Mining (supra) Arbitrator Weiler was faced with having to
detennine whether sending home certain employees due to a power outage
constituted a lay-off. He reviewed a few earlier decisions at page 21 :
There is a long line of arbitration awards in which "lay-off" has been
defined as, "a period of being off ... work ". This definition which
appears in Websters Unabridged International Dictionary (2nd ed.) at p.
1403, was accepted by Mr. Justice Gale (as he then was) in Re UE. We,
Local 527, and Peterboro Lock Mfg. Co. Ltd. (1953), 5 LA.C 1617.
Likewise in Re Amalgamated Meat Cutters, Local 633, and Vaunclair
Purveyors Ltd. (1963), 13 LA.c. 369 (Arthurs), it was decided that "a
layoff must be regarded as any period during which employees are
required to cease working and includes being sent home from work as
little as fifteen minutes before the end of a regular working period ".
In Re UA. We; Local 439, 458, 636 and Massey-Ferguson Ltd. (1960),
11 LA. C. 33 (Lane), the Chairman stated that [at page 37):
...it would seem to us that a lay-off is complete when the company
notifies a workman that he will not be required either for a
definite period of time or for an indefinite period of time. In this
instance, there was a notification of these six workmen at least
that they would not be required for the second half of the shift. In
our opinion, this constitutes a lay-off unless the parties agreed to
some other definition of lay-off which is in the agreement itself or
which by implication of law can be read into the agreement.
18
tax 02:23:34 p.m. 06-03-2005 21/23
416977<5873
,
.....
Thus. where lay-off is not defined in the collective agreement, the term
should be understood according to its "normal meaning" which is "a
period of being off work ". However, even where there is no definition of
the term "lay-off" in the agreement, other provisions in the agreement
may clarify the meaning of the term as it ought to be applied ... "0'
The Union asked me to find that the Employer could not lay'-off these
grievors because there was some work could have been performed in an
office lit only by the sun and that the Employer did not even consider this
alternative. I am not convinced that, practically speaking, this work could
have been perfonned for an entire shift in these circumstances. The office
had no power and therefore no lighting and no air-conditioning or
ventilation. Further, the Employer sent home the managerial personnel and
in these circumstances I would have difficulty finding that the Employer
should have allowed the grievors to work.
However, that is not the end of the matter. I agree with counsel that there is
no actual definition of a lay-off in this collective agreement, nevertheless
the parties have utilized certain language to assist in this determination.
Article 17.02 speaks of instances when it is necessary for the Employer "to
reduce staff'. Article 17.03 contemplates accomplishing "staff
reduction(s)". "Staff reductions" are again specified in Article 17.03(3).
Given the language of the collective agreement and the general
jurisprudence in this regard, I am of the view that the present facts must be
found to be a lay-off. As a result of the circumstances the Employer found
itself in on August 14, 2002, it elected to lay-off the majority of the
bargaining unit, or in other words, reduce the majority of its staff.
19
4169f f~¡j("j Tax U;¿:;¿",j:::Jr p.m. Ub-U::!-;¿UU:' II (;¿3
'.
.
Moreover, I must find that the lay-off of these three grievors to be a
violation of Article 17. In this regard, the current facts are similar to those
found Re Uniroc (supra). Article 17 provides that where there is a
reduction in the staff notice is to be provided to the Union and to the
individuals. As in Re Uniroc (supra) there is nothing in the Article 17 that
notice is only required where the lay-off is "a planned or long-tenD lay-off'.
I found the reasoning of Arbitrator Davie at page 23 helpful wherein she
said:
To accept the employer's interpretation of this clear language would be
to read into Article 24.01 words which simply are not there. Neither the
words planned or antžcipated appear in Article 24.01. On its face the
Article applies to all lay-offs. In this regard I find it significant to note
that, unlike a great many other collective agreements, these parties have
not negotiated any provision regarding temporary lay-offs in their
collective agreement. Neither is there anything in the collective
agreement which specifies a temporal limit on the reduction in the
workforce before it will be considered to be a "lay-off" for purposes of
Article 24.01.
In the circumstances, 1 also cannot accept the submission that the length
of notice required under Article 24.01 indicates that the parties did not
intend that Article to apply to circumstances such as these. If the fact
that the required notice exceeds the length of the lay-off and therefore
exceeds the damage suffered by the grievors was the determinative
factor in deciding whether Article 24.01 applied, then any lay-off of
these three grievors which did not exceed eight weeks would not be
caught by the provisions of Article 24.01... .....
I adopt that reasoning and find that it applies equally in the facts of the
instant matter. Accordingly, I must find that the Employer violated the
collective agreement when it laid off the grievors on August 14, 2002
without the requisite notice found at Article 17.01.
20
4.16977.6873 fax 02:24:23 p.m. 06-03-2005 23/23
,
For all of those reasons, the grievance is upheld. I will remain seized in the
event that the parties have difficulty implementing this decision.
Dated in Toronto this 30th of May, 2005.
.
21