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HomeMy WebLinkAbout1989-1263.Kuiack et al.91-12-18 ONTARIO EMPLOYES DE LA COURONNE ~. .'... . CROWN EMPLOYEES DE L'ONTARIO " GRIEVANCE C,OMMISSION DE SE'I'rLEMENT REGLEMENT BOARD DES GRIEFS tSO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE.. (416) 326- ~388 ~80, RUE DUNDAS OUEST, BUREAU 2~, TORONTO (ONTARIO). MSG ~Z8 FACSIMtLE/T~COmE : (4 ~6~ 326- ~3~ ' 1263/89 IN THE MATTER OF ANARBITI~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Beffore THE GRIEVANCE SETTLEHENT BOARD BETWEEN OPSEU (Kuiack et al) Grievor - and - The Crown in Right of Ontario (Ministry of.Natural Resources) Employer BEFORE: N. Dissanayake Vice-Chairperson J. C. Laniel Member D. Halpert Member FOR THE H. Law GRIEVOR Grievance Officer Ontario Public Service Employees Union ~OR THE P. ThoruP EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING February I1, 1991 2 DECISION The Board was seized with six similarly worded individual grievances. At the outset the Board was advised that the grievance of Pat Shalla had been withdrawn. The remaining grievors, Terry Kuiack, Philip Luckasavitch, Charlie McGuey, Bob Norris and Ken Johnson were employed in 1989 by the Ministry of Natural Resources as seasonal employees in the Ministry's fire fighting programme. This programme is provincially administered out of Sault St. Marie. For purposes of administration the Province is divided into 8 regions, which in turn are divided into 48 districts. The grievor's work Location was the Whitney fire attack base~ in the Algonquin Park DistrAct of the aigonquin Region. The grievors were among nine fire crew members deployed out of the Whitney fire attack base. Another fire attack base deploying similar fire crews is located in Haliburton, situated in the Minden District which is also part of the Algonquin Region. The Minden and Algonquin Park districts are located adjacent to. each other. The evidence is that the Whitney and Haliburton fire Attack bases are situated about 119 kilometres apart by road and 57 kilometres "as the crow flies". Each of the fire attack bases, employs a Senior Fire Technician, who is a member of management and is in charge of three fire crews. Each fire crew consists of a fire crew leader who is- a classified, employee, and two seasonal · employees who serve as fire crew members. The Senior Fire Technicians from Haliburton and Whitney fire attack bases report to the Fire Operations Manager, Mr. Tom Russell, whose office is located in Haliburton in the Minden District. The evidence is that the Haliburton and Whitney fire attack bases together comprise the Minden Fire M~nagement Area, which is administered by Mr. Russell's office in Haliburton. It is common ground that ·while the fire crews at Haliburton and Whitney attack bases are primarily responsible for fighting fires in their own districts, they are routinely assigned to fight fires in other districts, and sometimes even other regions within the province. The evidence is that the fire fighting seasons varied in length among various fire attack bases. The season begins early and ends later in Haliburton than in Whitney. Mr. Russell gave many reasons for this difference. As a general rule the. more southerly the · area the longer the fire season. Haliburton is located to the South of Whitney. More importantly, the Haliburton area is more heavily populated and the Ministry has agreements with some 14 municipalities for assisting their voluntary fire departments. The Whitney area mostly consists of the Algonquin Provincial Park area. It is not as heavily populated and most of the fire fighting requirements arise during the warm months, when camping in the park is at its peak. Mr.~Russell testified that often the fire fighting season in any given base can end earlier than anticipated because of climatic conditions and budgetary considerations. When an employee is hired at the start of the season, the contract is made for the longest anticipated duration. If the season had to end earlier at any base the employment of the seasonal employees at that base is terminated prior to the expiry date specified in their contracts. Mr. Russell testified ~hat when this happened the Ministry had no practice of considering. whether those employees whose contracts were terminated prematurely had'a right to exercise their seniority to bump into positions at other fire attack bases. The grievors, who were employed at the Whitney fire attack base for the 1989 season had an expiry date of September 30, 1989 specified in their contracts. However, on August 21, 1989, all the seasonal employees at Whitney fire attack base were notified that their services would not be required beyond September 1, .1989. Subsequently the termination date was extended to September 8, 1989. 5 The grievors claim that they were improperly laid off prior to. the expiry of their contracts. The allegation is that since employees at the Haliburton fire attack base continued to work beyond September 8, 1989, those grievors who had greater seniority .should have been allowed to bump Haliburton employees with less seniority, for the remainder of their contract period. ' These grievances involve an interpretation of the collective agreement. In thi~ decision we will attempt to interpret the collective agreement 'in the context ~of the foregoing facts before us. In so doing we will consider the jurisprudence cited to us by theparties. The parties did not appear to be agreed as to which' of the grievors might be entitled to any remedy if their~grievances succeed. In the circumstances, we will simply interpret the collective agreement and remain seiZed and permit the parties to attempt to work out a remedy if the grievances are upheld. Articles 3.17 to 3.36 of the collective agreement apply only to seasonal employees. For the present purposes'the following provisions are relevant: DEFINITION 3.18 A s~asonat employee is an employee aPPointed for a period of at least eight (8) consecutive weeks to an annually recurring' full-time position in the unclassified service in a ministry. For purposes of this .definition full-time means a minimum of thirty-six and one-quarter (36 1/4) or. forty (40) hours per week as applicable. PROBATION PERIOD 3.19 Thei probationary, period for a seasonal 'employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position in the same ministry. SENIORITY 3.20.1 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 ~he straight-time rate; (b) periods 'of authorized paid leave in accordance with Section 3.31, Attendance Credits and Sick Leage. 3.20.2(a) A seasonal employee will lose his seniority when: (iv) he is unavailable for or declines an offer for re-employment as provided in section 3.20 (job security) 'JOB SECURITY 3.21.1 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. 3.21.2 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. 7 3.21.3 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 focal point of this dispute is article 3.21.2. It is common ground that the grievors are seasonal employees who have completed their probation and that they are entitled to rely on the job security provided by articles 3.21.1 to The evidence establishes beyond doubt that the grievors had employment contract~, that the contracts specified expiry dates and that the grievors' employment ceased p~ior to those specified expiry dates. Thus, despite Mr. Russell's evidence that the expir~ dates were specified only for reasons of administrative convenience and to "save on the paper work", the fact remains that the grievors were employed under contracts for specified periods and that they were laid-off prior to the specified expiry dates. To that extent, article 3.21.2 applies to the grievors. The real dispute between the parties is as to the scope of the term "same position" in article 3.21.2. According to the union, the fire crew member positions at the Whitney fire attack base from which the grievors were laid-off, and the 8 fire crew member positions at the Haliburton fire attack base which continued, are the "same" for purposes of article 3.21.2. If the union is correct, it follows that the employer must consider the fire crew members at Whitney and Haliburton bases as a single group occupying the same position, and therefore should have complied with article 3.21.2 by laying off in reverse order of seniority. The result would be, if any of the grievors had sufficient seniority, they would have been entitled to bump into positions at Haliburton, displacing any Haliburton employees with less seniority for the remaining period of the grievors' employment contract. The parties appear to be agreed that in determining the "sameness" of positions for purposes of article 3.21.2, two criteria are relevant, that is, (a) the nature of the duties and responsibilities of the positions and (b) the.geographical location of the positions. Counsel for the employer led some evidence as to certain differences Detween the duties and responsibilities of fire crew members at Whitney and at Haliburton. In Re Nielsen, 1985/87 (Watters) the Board held that for positions to be the "same" within the meaning of article 3.20.2 (now 3.21.2) they had to be "substantially similar". In applying this substantially similar test, the Board compared the core functions of the positions in question; examined the extent of overlap of duties; and also considered whether an incumbent in one position would require 9 a significant period ~f training to be able to perform the duties and responsibilities of the other. The employer did not press with any degree of conviction its argument that the Whitney and Haliburton positions are not substantially similar in their duties, and responsibilities. We agree with the criteria of "substantial similarity" in Re Nielsonl On. applying those criteria, the only conclusion we can reach is that the Whitney and Haliburton positions are ~substantially similar, because the differences· to the extent any existed were insignificant. Thus the dispute narrows down to the issue of geographic location. Counsel for the employer submits that for two ~ositions to·be the "same"-'for purposes' of article 3.21.2, they must be located in the same fire attack~ base. In his view even if the duties and·responsibilities are identical a fire crew member position located in Haliburton is not the "same" as a similar·position located in Whitney. The thrust of the employer's argument is that if "same position" is interpreted as extending beyond positions within a specific location (fire attack base), it would lead to · chaos. Mr·. Thorup illustrated this by stating that if an employee from Whitney can exercise his seniority to bump into fire crew positions in Kenora or Thunder Bay, it will set in 10 motion a mass dislocation of the Ministry's seasonal workforce engaged in fire fighting. Mr. Thorup-accepts as correct the interpretation of the phrase-"same position" in article 3.18.1 (now 3.19.1) in Ee Furniss, 602/86 (Slone) to the effect that for purposes of completing the probation period a seasonal employee need not have worked at the same location for the specified period of probation. He agrees that for the purposes of calculating the probation period such a broad interpretation makes sense. However, he submits that the same meaning is inappropriate for the term "same position" when.used for the purpose of granting bumping rights. In Re Kauffeldt,. 771/89 (Wilson) the' Board .was considering whether a seasonal employee's right to be recalled to "his former position" under article 3.20.1 (now 3.21.1), is limited to positions in a specific location. That case concerned Forestry Technician positions within the Ministry of Natural Resources. Apart from that difference, the facts are remarkably similar to the facts before us. For the purpose of administering the Ministry's Tree Planting programme there, the province was divided into a number of districts which in turn were sub-divided' into work centres. Like here, the various locations there had a wide variety of 11 starting and finishing times for positions with the same title. The parties in that case were represented by the same counsel that appeared before us. Therefore, it is not surprising that the submissions we heard were almost a carbon- copy of the submission presented to the Kanffeldt Danel. The Board, wi~h the management member dissenting, rejected all of the employer's arguments and did not accept the suggestion that "position" in article 3.20.1 was limited to a specific location. At the same time, the Board did not find that the recall rights under article 3.20.1 are province-wide., Indeed, the Board suggested that it is not so. At pp. 11-12 the Board stated: Mr. Thorup is correct that proVince-wide' recall rights would indeed be a Frankenstein's ~onster 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 same time refer to the former position in Tweed as well as in Windsor or Thunder Bay. Mr. Thorup argued that if we do not find it restricted to a specific location, we will open up a vast number of grievances comparable to -the classification grievance area. I do not find that convincing and I am not sure it is even relevant. We have already seen that this Board has articulated a functional analysis under Article 3 with respect to different position titles to determine 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 terms in labour relations, not scolasticism 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 am 12 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. We do not see why the foregoing reasoning in interpreting recall rights under article 3.21.1 is not appropriate in interpreting the Seniority rights in a lay-off situation in article 3.21.2. We disagree with Mr. Thorup that the only choices in interpreting the article is to find that positions are either province-wide or limited to a location. The grievors have laid claim to certain p6si~ions in Haliburton. The Board's mandate is to decide whether those'positions are "same positions" within the meaning of article 3.21.2. F~r a position to be the "same", they must be substantially similar. See Re Nielse~.(su__qp_F_~). In considering whether two positions are substantially similar geographic location is a criterion to be considered in addition to the criteria relating to duties and responsibilities considered in R__e Nielson and listed supra at pp.8-9. In particular cases there may be other relevant factors, such as common management control, which will influence a determination whether two positions are the same. 13 In the present case, given the releatively short distance between the two fire attack bases, the fact that employees regularly go out to fight fires in both locations regardless of their home base, the fact that both bases are managed and administered bya single "headquarters", all dictate a finding on the basis of a functional approach that the positions at Whitney and. Haliburton are the same for purposes of article 3.21.2. Mr. Thorup posed the hypothetical situation of an employee in Whitney seeking to bump into a position in Kenora or Thunder Bay. On this functional approach, it is likely that in that situation the Board will consider the distance between Whitney and those locations in considering whether the positions are the same'.. For the same reason, the.concerns expressed by Mr. Thorup as to the possibility that an employee may lose his seniority under article 3.20.2(a) because he refused an offer of re- employment in a distant location appear to us to be unfounded. This is because, .the Board is unlikely to find such a position to be the emPloyee's'former position under article 3.20.1. We have no difficulty understanding the employer's desire for a clear rule as to what is meant by the "same position", which can be applied in.every case. As Mr. Thorup put it "If it is not restricted to a specific location the employer must know whether it is limited to 50, 100 or 200 klms or whether 14 it is limited to the fire management area, district or r'egion". We agree that Such aclear rule is highly desirable not only from the employer's perspective but also from that of the union and the employees. It will also make this Board's task much easier. However, it is not the role of this Board to make rules for the parties. The whole idea of collective bargaining is that the parties themselves make the r~les that govern their conduct. Where the parties have negotiated a ~ule that is vague the Board can only apply such a rule to the best of its ability to each case on an ad hoc basis. If the Board's ad hoc decisions do not provide a useful and clear guideline to the parties, the solution, as 'the Board stated~in Re Kauffeldt, is. to negotiate more'clear and precise rules.. Until that is done the Board will have no choice but to decide grievances under the seasonal employees' job security provisions on an ad hoc basis. It follows from the foregoing that the Board finds that the Haliburton positions in question are "same positions" for the purposes of article 3.21.2. Accordingly, the employer was obligated to lay-off in reverse order of seniority when it decided to reduce the number of seasonal employees prior to the expiry date 'specified in the contracts. In that the employer ~failed to do so, it was-in contravention of article 3.21.2, and we so declare. 15 We leave it to the parties to attempt to work out what remedies, if any, flow to each of the grievors as a result of the contravention. In the event the parties are unable to agree on that, we remain seized to deal with the same. Dated this 18th day of December, 1991 at Hamilton, Ontario N. Dissanayake Vice-Chairperson Member ',! Dissent" (dissent attached) D. Halpert Member DISSENT OF D. HALFERT, GSB 1263/89, KUIACK et al ~ have read the decision of the majority and, with respect, I must dissent. I offer the following ~ea~ons for my dissent. !. GSB 771/89, which is substantially similar is fundamentally wrong in its conctusion~ in my opinion. I agree with the ~issent of ~. cowen of that panel. The majority In that award asse~t that the ~angusge does not mean the whole prov~nce, but don't provide an alternative. It is left to th~ parties to r~negotiate or clarify the meaning of the language. 2. It is clear that th~ language In question, Art. 3.21.2 is ambiguous as it relates to the circumstances of this case. In that eyenL, Lh~ hoard shn~;ld cnn~ider past practice a~ a~ aid to thc interpretation. In this regard, ~their former position" has always m~ant where the Individual last worked. 3. Ii it does not mean where the employee last worked, where, then, does it mean? If the question is not clearly answered, the result confusion and more grievances. There is no clear middle ground, means either local or within the ministry. 4. Arbitrator Slone tn Furniss (602/86) attempts to defin~ 'position' for seasonal employees. He concludes that the word 'position' has different meanipg In different contexts. It needs to be interpreted in the context of past practice and what is reasonable in the circumstances. 5. '[J~e language in Art. 3.21.2 was not meant to be disruptive or 'to dislodge people, but to provide a sensible measure of protection. The outcome of this majority award Is to provide an environment which not predicable to the parties and goes beyond what, in my opinloB, was the ~ntent. 6. To interpret the language one way for layoff and another way foZ zecall is not consistent or fair. The employees cannot have It both ways, and to recall on the'basis ~ this award could have a substantial affect on seasonal employees. This issue has already been ~eferre~ back to the parties without an interpretation which gl. yes clear guidance. It is unfortunate this panel chose not to give the clear direction w~ich is needed. I would have denied the grievance on the basi~ that forme~ ~osltion D. HALPERT, MEMBER. DEC. 13, ]991