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Home My WebLink About1989-0771.Kauffeldt.90-10-25 ONTARIO EMPLOYES DE LA COURONNE ~...~,,"'"- ~ CROWN EMP£OYEES DEL'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES~I'~ SUITE 2~00. TORONTO. ONTARrO~ MSG IZ8 TELEnOdE/TELEPhOnE~ (~61 326-~388 180, RUE DUNDAS OUEST, ,BUREAU 2100, TORONTO (ONTARIO), MSG ~Z8 FAC~IM~LE/T~COP~E .~ ~6) 325-r396 771/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RG]%INING ACT BefOre THE GRIEVANCE SETTLEMENT BO]%RD BETWEEN OPSEU (Kauffeldt) Grievor - and- The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: T. Wilson Vice-Chairperson T. Traves Member I. Cowan Member FOR THE H. Law GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE P. Thorup EMPLOYER counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: February 6, 1990 898799 GSB771 / 89 D~CISIO# Wayne Kauffetdt is a Forest Technician and had been employed on a seasonal basis since 1984. In 1989, he grieved that he had not been offered his ~or~er position in that season on the basis of his seniority. He relies on Article 3.20.1 of %he Collective Agreement. The Ministry, however, contends that there was no opening i__n his former position an~ ~hat there is before us a major issue in terms of the seasonal employee's right to re-employment under 3.20.1. It was decided on ~he ~-irst day of hearing that the most junior seasonal employee in the relevant area should ~ given notice and Mr. G. Page, k~ing that person, attended on the next day of hearinq and was per~ltted %o participate aa a Third Party Intervenor. The relev~t provisions of the Collective Agreement are found in Article 3 ~d specifically 3.16 - 3.20.3. For our present purposes, I set out 3.16, 3.17, 3.18, 3.19.1 a~d 3.20. 3.16 Sections 3.17 to 3.35 apply only to seasonal employees. 3.17 A seasonal employee is an employee a99olnted for a period of at least eight {8) consecutive weeks to an annually recurring full-time poslt~on in the unclassified service in a ministry. For purposes o~ this definition full-time means a m/nimum of thirty-six and one-c~/arter (36%) or ~or~y (40) hours per week as applicable. P~TION 3.18 ~e pro~tional~ period for a seasonal e~loy~e shall be two (2) full periods of seasonal e~lo%~ent of at leas% eight (8) consecutive weeks each, worked in consecutive years in 'the same position in the same ministry. SENIORITY 3.19.1 A seasonal employee's seniority within a ministry will accumulate upon completion of his probationary period and shall include~ (a) all hours worked as a seasonal employee at the straight-time rate; (b) periods of authorized paid leave in accordance with Section 3.31, Attendance Credits and Sick Leave. [3.19.2 omitted] JOB S~3RIT~ 3.20. ! Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. 3.20.2 Where the Employer reduces the number of seasonal employees prior to the expiry date of employment specified in the contracts of employment, seasonal employees in the same position shall be laid off in reverse order of seniority. 3.20.3 A seasonal employee is responsible for advising his ministry, in the manner established by his ministry, of his current phone number and address and is responsible for the accuracy and completeness of the information provided. The grievor at the time of his grievance had accumulated 5896 hours of seniority all at Palmer Rapids base which is in Pembroke District in the AlGonquin Region. Palmer Rapids is a satellite of the Pembroke office. Dacre was another satellite of Pembroke and Counsel agreed that the work at all three sites' by Forest Technicians was substantially the same. On May 1, 1989, management at Pembroke recalled Forest Technicians for Pembroke and Dacre, but not for Palmer Rapids. This involved three persons with less seniority than the grievor. The Ministry argues that Dacre and Pembroke were not the grievor's "previous position." The starting point for the dispute between the parties is the decision written by Mr. Slone in Furniss and Ministry of Natural Resources (GSB 602/86). In that case, the grievor claimed he had completed the probationary period set out in Section 3.18. The precise question was whether or not the grievor had satisfied the requirement of working "at least eight consecutive weeks each, worked in consecutive years in the same position in the same Ministry." He had worked during the summer months of 1983, 1984 and 1985 as a Park Warden but he worked in a different region in each of the three years as follows: (1) 1983 - Sibbald Point Provincial Park, Maple District, Central Region; (2) 1984 - Kakabeka Falls Provincial Park, Thunder Bay District, North Central Region; (3) 1985 - Algonquin Provincial Park, Algonquin District, Algonquin Region. In each park, the grievor had a different supervisor and manager. At page 5 of the Decision, Mr. Slone states: "We must decide what the word "position" means in Articles 3.18 and 3.20.1." The employer argued the "position" meant a specific location within a specific organizational branch, where duties are performed that may be similar to duties performed in other "positions." The Union argued that Sections 3.18 and 3.20.1 were intended to give limited job security for seasonal employees and therefore "position" should be given a definition consistent withsome meaningful rights. Addressing the probationary issue, Mr. Slone writes at page 7~ "..~Since the purpose of a probationary period is to have a long enough opportunity to observe the performance of a candidate, it does not necessarily follow that the employee must be performing throughout that period of time in the same location. It would give the employer a sufficient opportunity to assess the suitability of a candidate" so long as he is performing essentially the sa~e lob, and so long as the appraisals of the employee's performance were conduced by someone in a. good position to observe that performance." "From the point of view of the employees, it seems most fair for seniority rights to begin to build upon completion, of a number of years performing a particular job function within a ministry, as opposed to a narrower experience that is geographically based. My view is re- enforced by the provisions of 3.19.1, which provides that senioritywill accumulate on the basis of all hours worked as a seasonal employee within the ministry. The seniority itself is not based upon the number of hours worked in a particular position. Thus, when it comes to recall, the choice between two candidates for a given position will be based upon their overall seniority within the ministry. So, in a situation where two former employees working in precisely the same location are vying for the smme position in that location, it is the candidate with the most overall seniority who is entitled to the job. As such, it would be artificial and contrary to the intention of this part of the Collective Agreement to withhold this limited measure of job security from someone and consider him still probationary merely because he had moved around geographically and never touched ground in the same place for more than one season." Mr. Slone also ruled in the words in 3.18 "the same position in the same ministry." There may be the same position in various ministries but seniority accumulates only "on a ministry-wide basis." The Board found for the grievor and concluded at pages 10 - 11: "We do not suggest that in every case, the "position" is equivalent to a particular job title. A title is nothing more than a title, although it provides some evidence that the substance of a particular ]ob is similar to the substance of another job bearing the same title. In many cases there will be little doubt as to question as to whether or not the substance of a job and the nature of the duties are sufficiently similar to be considered the same position." One of the principal arguments raised by the Ministry is that if Section 3.20. I is not restricted to location, the Provision will have a disastrous effect on the Ministry and its seasonal employees. In support of this argument, the Ministry gave evidence through Paul Strassburg. At the time of the hearing he had been the District Manager of the Lindsay District for three years; prior to that he was the District Manager of Terrace Bay for seven and a half years and before that had served as District Park Supervisor and Park Superintendent at a number of parks. Mr. Strassburg testified that there are eight regions with 47 districts. Most of the districts have sub-offices or work centres which could be provincial parks, fish hatcheries, firework centres, fishery assessment work localities, research centres, etc. In the 47 districts, there are about 250 sublocations. The Ministry employs about 4,000 seasonal employees. The province has designated about 125 parks and employs aDout ~00 Forestry Technicians, there being about four to ten in each district. The Forestry Technicians plant trees, improve stands of trees, prepare sites and do pruning. There are a wide variety of starting a~d finishing times for positions with the s~ume titles. This is due to the different climatic conditions across the province: in southern Ontario tree planting can begin as early as March while it does not begin until May or ! June in northern Ontario. Another ~actor is budget; and there are lower work requirements in some areas. These factors occur in all the program areas, i.e. fisheries, parks, etc. The park season is longer in the south, some .being even year round. Often budgets are not known until a week or two before start-up time. Hiring is done On a local basis. Seniority lists are kept only in the district or at best on a regional basis. In the experience of this witness, many seasonal employees have other jobs on farms or may do seasonal work with another ministry in the winter. Most have homes near the location of their seasonal work a~d may have a spouse who also works in the area. He filed documents at the hearing (Exhibits 10A and B) to show varied start times. He believed that even a district-wide call-back would create chaos. One of the reasons for the short call back notice was that the budget year is April 1 - March 3l. The Ministry adduced a previous grievance in evidence which was the reverse of the present situation. Through what turned out to be an administrative error the grievor was not recalled to his ow~ location in the next season while other employees from another centre which was closed down were transferred in. The Union steward apparently argued that recall rights were restricted to the work centre. Mr. Thorup ~or the Ministry informed us that the Ministry at first argued that it could t:'~n$~er employees, but upon discovering that it had made an ad~inistrative error in ralculating the seniority, it decided to make a deal with the Union on the ~r:e'.'~,¢e. The Minutes of Settlement were filed. They do not tell us anything. I do not find this whole thing of any assistance. Firstly, a settlement is not as such a precedent. Only another decision of the Grievance Settlement Board is a precedent. Secondly, the facts in this case are so inconclusive that the result does not in reality represent anything other than the resolution of the specific grievance. Thirdly, 1%{oufd be extremely hesitant to accept the position taken on a grievance in an isolated local issue resolved essentially as I understand it by the local people as estopping anyone at the provincial level before this Board. The Union argues that the issue in the Kauffeldt grievance before the Board was already decided by the Furniss case. According to the Union . ~r. Slone specifically said that he was interpreting Sections 3.18 and 3.20.1. The focus of the case however was how does he get past probation, i.e. acquire recall rights. In the Union's view, the reasoning of Mr. Slone uses a wide geographical area. The object is to prevent the defeat of seniority rights. In the alternative, the Union argues that if Furniss does not give the authoritative interpretation for Section 3.20.1, then a reading of the Collective Agreement as a whole leads to an interpretation similar to that given to Section 3.'lS by Mr. Slone in Furniss. Seasonal employee is defined in 3.17: it is a position i_~n a ministry and is annually recurring. "Position" means substantially similar duties rather tha~ mere title (as Mr. $1one stated in Furniss). Seniority under 3.19.1 accumulates only within one ministry. There is nothing in Article 3 to indicate that the meaning of "position" changes in meaning in each section. Mr. Law for the Union replies that the Ministry's argument that the Union's approach would make seniority and recall province-wide is wrong; in any event it is not an issue for the Board in this case to decide and indeed it is not even feasible since there are no province-wide lists. Furthermore, the sam__~e location test would impose even greater hardships where recall would turn on which side of the road an employee Worked on. It would also render merit increase under 3.21.3 an administrative nightmare. In the end it may all have to be worked out on an ad hoc basis. ~r. Thorup for the ~inistry argues %hat the word "position" in each section has a meaning relating to that particular section. He argues that Furniss was dealing only with 3.18. He disputes that there is any administrative problem with that approach and that indeed each employee travels %~ith his own employment record. Classified employees have rights of 40 Km under Article 24; the effect of the Union's argument would be to give seasonal employees greater rights tha~ classified staff. The Union at the interest arbitration chaired by Mr. Swan (Decision dated May 23, 1985) had sought that all unclassified staff obtain all the benefits of the classified staff on a pro ratabasis. Instead, Mr. Swan awarded the current language. Mr. Thorup submitted that that language did not give them province-wide recall rights. Furthermore, such has not been the practice and Furniss cannot be applied. In support oX the proposition that contract language must be given an interpretation that does not fly in the face of common sense, the Minis{ry referred the Board to Sealy [Western} Ltd. and Upholsterers' International Union, Local 34, (1985) 20 L.A.C. {3d) 45. Administrative practicalities ought to be a factor, see: International Paints {CanadalLtd.., Ontario Division and United Steelworkers, Local 1~209, {1985) 19 L.A.C. (3d) 94 at D. 97. In the grievor's case, he never worked at the other locations for which he now claims recall rights. The Union drew to our attention the Board's decision in Munro and Boden and Ministrv of Natural Resources (GSB 677/88 Decision 11 Sept. 1989). Both grievors had acquired seniority under Section 3.18 and both of them as seasonal employees were working at the classification of Resource Technician 2 IRT2). Both grieved that more junior RT2s had been given positions fcr which they claimed rights under 3.20.1, namely as Resource Technician Gypsy ~oth and Research Technician Firemen. The grlevors were given contracts as General Resource Technician in the same season but they were of shorter duration than the other two positions. At page 10 the Board concluded that if Section 3.20.1 applied then the grievors would have been entitled to the longer contracts. That being so the Board asked whether those positions were the same as or similar to the former positions of the grievors. ~r. Fraser in answering that question wrote at pages 10 - 11: There was little dispute between the parties about the standard of review we are required to apply in this respect. First, the answer to the question posed is not to be found in the class allocation. A classification is broader, may include a number of positions, and accordingly is not determinative of this issue (see, for example, Smith, {2315/87). Neither is the position title definitive. A title is just a title, and the issue is "whether or not the substance of the )ob and the nature of the duties are sufficiently similar to be considered the same position" (see Furniss, (602/86), at p. 11). Another way to put the sa~e issue is to ask whether the duties of the two positions compared, are "substantially similar" (see, for example, Saunders, (275/86), and Nielsen, (1985/87). The question is one accordingly of fact, and the test is one of substantial or sufficient similarity. The Board then went on to compare the duties of the General Reseurce Technician with those of RT Gypsy Moth and RT Foreman. It concluded that %hey were not substantially similar. It is interesting to note that Ms. Munro had in fact performed the duties of a Resource Technician Foreman in the Tweed District during her first year with the Ministry and in her second year was a General Resource Technician - those two seasons having been counted together to. form her probationary period under 3.18. At page 22, the Board writes: We conclude that the ~linistry viewed the two positions as the "same position" for the purpose of probation under. Article 3.18. However, that %~as for a specific purpose under a specific article, and we cannot find as a consequence that the two positions are substantially similar for the purposes of the application of the phrase "former positions" under Article 3.20.1. To sum uD at this point, it is clear that the Resource Technician Foreman's duties are included in the General Resource Technician's duties, but that does not make them substantially the same. There must be some equivalence between the core or mean duties of each position, to reach that conclusion .... After comparing the two position, the Board concluded at page 23; We have. little difficulty in concluding on the basis of this evidence that the principal duties and cote'content of the General Resource Technician position are substantially'more complex and involved that those of the Resource Technician Foreman, and the two jobs are not substantially similar, notwithstanding the inclusion of the functions of one job in the other, and notwithstanding the acceptability of Ms. Munro's Work as a foreman for the purpose of satisfyingthe probationary period in Article 3.18. ~lr. Law for the Union argues that the effect of the decision is that an employee has multiple rights of recall. ~r. Thorup disagrees and says that Boden is dealing only with local seniority. I have carefully read the other two authorities referred to in Boden, namely Saunders andNielsen. Saunders deals with Section 3.18 as it relates to recall under 3.20.1. 'Nielsen deals with Section 3.20.2. All three cases use a comparison of the ft~nctions of the positions in question to see if they are the same or substantially similar. All agree with Furniss that job title and of course position classification are not determinative. None makes any reference to location as being a specific factor though both Nielsen and Boden make casual reference to the District. All of these cases have used a functional analysis of the wo~d "position." }.~r. Slone was asked in Furniss to consider Sections 5 and 24 of the Collective Agreement by way of comparison and he approached that gingerly. Mr. Law pointed out and I agree that the rights under Section 24 are not restricted to 40 Km when both parties consent. We also know that lay-off in relation to Section 24 can occur when the job is transferred from Toronto to Kingston, see: Union Grievance and Ministry of Health (GSB 665/81) [The OHIP case]. Similarly a functional analysis of "position" is used under Section 24: see OHIP case and Babb and Ministrv of Community & Social Services (GSB 1173/88). The Employer itself chose the wording which appears in Article 3 since Mr. Swan adopted with modifications (not germane to this dis_'usslon) the submissions of the Employer at the interest arbitration. Mr. Thorup is correct that province-wide recall rights would indeed be a Frankenstein's ~nster but it is a fictitious monster. I am satisfied that the "former positions" in 3.20.1 do not refer, and, indeed, functionally could not at the sa~e time refer to the former position in Tweed as well as in Windsor or Tht~der Bay. ~Ir ?~ru[> argued that if we do not find it restricted to a specific location, ~e ~;'~" '~>en up a vast number of grievances comparable to the classification Gr~-_~. ~.~. , .:~ea. I do not find that convincing and I am not sure it is even relevant. ~;- t~aYe already seen that this Board has articulated a functional analysis under Article 3 with respect to different position titles to deter~ine whether they have the same or substantially the same job functions. This is also occurring under Article 24 and, as I pointed out in Babb, under Article 4. Nor could it be otherwise. "Former positions" or "same positions" are ter~s in labour relations, not scholasticism or theology. 'If the Board fails in its effort to work out practical rules to, guide the parties in meeting day to day needs, they will have to return to the negotiating table and do it themselves. I a~ satisfied that the Board is on the right track and has correctly approached the interpretation of"position" i.e. on a functional basis. Location, as the OHIP case indicates under Article 24 is one factor to be considered. I believe that is also true of 3.20.1. If the parties or Mr. Swan for that matter had intended the words "former positions in the following season" to be restricted to exactly the same location, it could easily have been included and I am satisfied that in fact that is not the intention of 3.20.1. Those points are sufficient to answer the immediate grievance. The Union also argues discrimination but I need not address that. At the begir~%ing the parties agreed that the jobs in question involved substantially similar work and there is no reason to believe that the difference in location between Palmer Springs and the other two places involved any significant difference. Accordingly, the grievance is allowed and the grievor is to be appropriately compensated both in terms of lost wages and seniority. This panel ~ill remain seised to determine any issues encountered in the implementation of this decision. DA~ at Toronto this 25t~y of October , 1990. Thomas H. W~lson, Vice-Chairperson T. Traves Member "! DTKKFTq? {Dt~aent attached) I. Cowan Member OPSEU (KAUFELDT) MINISTRY OF NATURAL RESOURCES (G.S.B.) 771/89 I have carefully read the decision of the majority and have concluded that I must, with respect dissent from the conclusion that for the purpose of Article 3.20, the word "position" means a collection of substantially similar duties irrespective of the location at which they may be performed. Having effectively broadened the definition to cover two substantially similar positions in adjoirning sub offices within the Pembroke District, how then can it be argued that seniority and recall rights are not District, Region or even Province wide? There is no doubt that work carried out by Forest Technicians in a great number, if not all forty seven districts, is substantially similar. No doubt the same situation prevails for seasonal employees in fish hatcheries, parks, fire protection, fish & wildlife conservation and other areas of the Ministries activities. It is not difficult to imagine a situation in which an employee with extensive seniority and located in Thunder Bay might decide for personal reasons that relocation of his family to Tweed would be desirable move. If there existed a position in Tweed where the duties were substantially similar to those he had performed'in Thunder Bay and if the Tweed position were to be staffed earlier than the Thunder Bay position, could the Thunder Bay employee successflly grieve the Ministries failure to offer the Tweed position to him assuming his seniority to be greater than that of the employee to whom the position was offered? In the view of this member Management's concern regarding the necessity for District, Regional or Provincial seniority lists is not unrealistic, nor is this concern for the potentially disruptive effects on seasonal employees unreasonable. On cannot reasonably argue against a decision which confers meaningful security to seasonal employees which is, no doubt the entire purpose of article 3.16 - 3.20 or against the results in the specific circumstances of this case since we are dealing with adjacent sub offices within a surge district. However, I believe the decision creates the potential for administrative chaos and disruption of seasonal employees. In the result I would have denied the grievance and left it to the parties to re-negotiate these articles in a manner which might better meet the needs of both e~ployer and employees. I. Cowan October 10, 1990