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HomeMy WebLinkAbout2004-0851.Zamostny et al.06-08-14 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-0851 2004-0852,2004-0853 2004-0854 2004-0855 UNION# OLB220/04 OLB221/04 OLB222/04 OLB223/04 OLB224/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Zamostny et al ) Union - and - The Crown In Right of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Joseph D CarrIer Vice-Chair FOR THE UNION Larry SteInberg Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER AlIson Renton Counsel LIqUor Control Board of Ontano HEARING October 19 2004 February 1 & 23 and July 5 2006 2 DeCISIon I released an Intenm decIsIOn In thIS matter on or about October 28 2004 There, I clanfied that the matter Involved the umlateral transfer as Mr Roland Anstett, a 'C' Level Manager from the Northern RegIOn to a sImIlar posItIOn In the Western RegIOn whIch had been vacated by the retIrement of another 'C' Level Manager The matter was adJ ourned pendIng exchange of partIculars between the partIes as well as advIce by Mr Anstett concernIng the posItIOn he mIght take wIth respect to hIS nghts pursuant to the Human Rights Code In the award whIch follows, I have agaIn bnefly outlIned the Issues as well as developments between the partIes and Mr Anstett concermng theIr respectIve posItIOns and the process Developments SInce the release of my earlIer decIsIOn, Mr SteInberg on behalf of the Umon has clanfied that he no longer Intends to rely upon past practIce or estoppel to support the Umon's posItIOn. Instead, he clanfied the Umon's posItIOn to the effect that where semonty nghts of employees conflIcted wIth management nghts, as In the case at hand, semonty nghts should take precedence Further If that was not the case, then management must exerCIse ItS nghts In a fair and reasonable manner That, he asserted, was not done In the case at hand. With respect to Mr Anstett, although he retaIned counsel, the Human RIghts Issue was deferred pendIng an ImtIal decIsIOn as to whether or not hIS transfer to the open posItIOn constItuted a vIOlatIOn of the collectIve agreement In the first Instance If not, It would be unnecessary for hIm to pursue hIS nghts under the Code to remaIn In the posItIOn. AccordIngly Mr Anstett In 3 consultatIOn wIth hIS counsel determIned that It was unnecessary to have counsel present. He therefore carrIed on a watchIng bnef of the proceedIngs as set out In thIS award. The Issues Revisited In May of 2004 the Employer umlaterally transferred or assIgned Mr Roland Anstett, a 'C' Level Manager from ItS Southampton RetaIl Store In the Northern RegIOn of the ProvInce to a vacancy In the same Job at ItS Walkerton Store In the Western RegIOn. The vacancy had been occasIOned by the retIrement ofMr CharlIe Bagnatto the prevIOUS Store Manager It IS the Umon's posItIOn In thIS arbItratIOn that the transfer ofMr Anstett from the Northern RegIOn to the Western RegIOn was Improper Rather the Employer was oblIged pursuant to the terms of the collectIve agreement to post a vacancy In the Western RegIOn. Its faIlure to do so had the effect of dIsenfranchISIng several employees In the Western RegIOn In lower classIficatIOns who could otherwIse have exercIsed theIr semonty nghts wIthIn that RegIOn to bId the posted vacancy To clanfy the Issue the partIes have dIvIded the ProVInce Into geographIc postIng areas for the purpose of postIng and bIddIng of vacanCIes In the case of'C' Level Managers, by specIal agreement, those areas are much broader They are compnsed, sImply of the four regIOns of the ProvInce, north, south, east and west. When a vacancy occurs wIthIn a geographIc area, or as In thIS case, wIthIn a RegIOn, the vacancy IS tYPIcally posted and a protocol applIes whIch essentIally gIves preferentIal treatment to semor qualIfied employees wIthIn that area. Consequently the transfer ofMr Anstett elImInated the postIng opportumty wIthIn the Western RegIOn. Of course, the vacancy left In the Northern RegIOn by Mr Anstett's transfer was posted 4 by the Employer however employees wIthIn the Western RegIOn had lIttle chance of a successful bId SInce those workIng wIthIn the Northern RegIOn would take precedence The Umon advances ItS claim on the basIs that the Employer has vIOlated the clear terms of the collectIve agreement by faIlIng to post a vacancy In the Western RegIOn. More precIsely Mr SteInberg argued for the Umon that semonty nghts of employees are among the most Important aspects of collectIve agreements Where correspondIng management nghts Impact upon the same subJect matter those management nghts should be subJugated to the nghts of the employees More specIfically In thIS case, employees have semonty nghts entItlIng them to bId vacanCIes WIthIn theIr RegIOn. Management may have a nght to transfer employees Into such vacanCIes however those management nghts must be balanced agaInst the semonty nghts of employees and In thIS case must gIve way to those nghts of employees whIch have been etched Into the partIes contract. AlternatIvely Mr SteInberg took the posItIOn that If the management nght to transfer Mr Anstett was found to prevaIl, then the transfer Itself, In the cIrcumstances, was an unreasonable and arbItrary exerCIse of management nghts whIch should, therefore, be rescInded. By way of remedy he asked that the transfer ofMr Anstett be set aSIde, that the Level 'C' Manager posItIOn be posted wIthIn the Western RegIOn and a competItIOn held In accordance wIth the provIsIOns of the collectIve agreement. I should remaIn seIzed to determIne damages to be awarded to the successful candIdate Ms AlIson Renton, for the Employer takes the posItIOn that the transfer ofMr Anstett was not only a valId exerCIse of management nghts, but that employee semonty nghts dId not anse here wIthIn the Western RegIOn. The transfer of Mr Anstett was of a 'C' Level Manager to another 'C' Level Manager posItIOn, that IS, one WIthIn the same classIficatIOn. Transfers of 'C' Level Managers to other 'C' Level posItIOns, whether wIthIn or wIthout a RegIOn, are not governed by 5 the provIsIOns of the collectIve agreement nor do they gIve nse postIng reqUIrements The ultImate vacancy whIch dId occur In the Northern RegIOn folloWIng the transfer ofMr Anstett was posted In accordance wIth the provIsIOns of the collectIve agreement and semonty nghts of employees wIthIn that RegIOn were duly honoured. With respect to the Umon's alternatIve argument, Ms Renton took the posItIOn that the exerCIse of transfer nghts or for that matter any management nght was revIewable only Insofar as It was arbItrary or made In bad faith, It was not subJect to the addItIOnal reqUIrement that It be reasonable In any event, It was her posItIOn that the transfer ofMr Anstett was effected for purposes whIch were not only bona fide but reasonable It IS clear from thIS outlIne that Mr Anstett has a sIgmficant stake In the outcome of these proceedIngs The partIes were careful to see that he was notIfied that he was entItled to appear and partIcIpate Insofar as hIS Interests mIght anse In consequence, Mr Anstett dId appear and, at the onset, wIth counsel In the person ofMr Ryan Persad as counsel On behalf of Mr Anstett, Mr Persad advanced the posItIOn that, If for any of the reasons presented by the Umon, Mr Anstett was not entItled to retaIn the 'C' Level Manager posItIOn In Walkerton, hIS clIent was entItled to retaIn the posItIOn as an accommodatIOn of hIS medIcal handIcap pursuant to the Human Rights Code of Ontario The partIes agreed that the Issue WIth respect to the Human Rights Code could be deferred untIl a findIng was made for or agaInst the Umon wIth respect to the need to post the posItIOn In the Western RegIOn. In the event of such a findIng, Mr Anstett would be entItled to pursue hIS claim to accommodatIOn In the posItIOn In precedence to semonty nghts of other employees In the RegIOn. In the cIrcumstances, Mr Persad chose not to attend the proceedIngs unless and untIl that Issue needed to be dealt wIth. In the meantIme Mr Anstett took a watchIng bnef over the proceedIngs as they developed. 6 The CollectIve Agreement SInce the matter at thIS stage of proceedIngs turns on the InterpretatIOn and applIcatIOn of va no us provIsIOns of the collectIve agreement, what follows IS an outlIne of those provIsIOns whIch counsel referred to dunng theIr respectIve presentatIOns 1 ArtIcle 1 l(c) - thIS provIsIOn sets out the tYPIcal nghts of management to run the operatIOn IncludIng the nght to "hire dismiss transfer classifY asslg11, appoint, promote demote layoff determine the number location and class of employees and all other rights and responsibilities not specifically modified elseyt,here in this ag1'eement. The Employer agrees that these functions yt, ill be exercised in a manner consistent yt, ith the provisions of this ag1'eement. " 2 ArtIcle 5 IS headed "Job Secunty" and describes among other thIngs the protectIOns afforded to the employees by reason of theIr semonty In the event of layoff It also defines "work areas" and refers to "geographIc postIng areas" whIch are relevant to layoff and promotIOns wIthIn the bargaInIng umt. These geographIc postIng areas are not specIfically IdentIfied In the collectIve agreement; however the provIsIOn makes It clear that they are fixed areas whIch may not be altered dunng the currency of the collectIve agreement wIthout the concurrence of the Umon. 3 ArtIcle 21 - the headIng of thIS ArtIcle IS "AssIgnments and Job PostIngs" It IS thIS provIsIOn whIch oblIges the Employer to post vacanCIes and pursuant to whIch employees nghts to promotIOns by reason of theIr semonty anses PartIcularly relevant are the folloWIng provIsIOns whIch I have duplIcated In whole or In part dependIng on the nature of the provIsIOn ArtIcle 21 4(a)(i) If a new job classification within the bargaining unit is created, or a permanent vacanc, occurs in an existing classification, before inviting applications from persons not emploved b, the Emplover or emplovees who are outside of the bargaining unit, the Emplover will post within the geographic area as specified, notice of such new job or vacanc, for a period of ten (10) working davs during which emplovees within such area ma, apph The notice shall stipulate qualifications, classification, salan range, department and location concerned. /I Article 21 4(b )(i) For the purpose of 4.rticle 215(a) a promotion shall he deemed to include' (i) The assignment of a permanent full-time emplovee to another permanent full-time position in a class with a higher maximum salan rate than the class of his. her former position /I Article 21 5(a) Where emplovees are being considered for promotion, seniorit], will be the determining factor provided that the emplovee is qualified to perform the work. /I Article 219 It is agreed that vacancies in the positions of C "'tore Alanager and 4. "'tore 4.ssistant shall be posted in accordance with the provisions of the Collective 4.greement. The Emplover filrther agrees not to transfer 4. '>tore 4.ssistants to C '>tore Alanager positions or vice-versa. 7 4 Salary and ClaSSIficatIOn Schedule Under thIS headIng are lIsted the vanous classIficatIOn codes, class tItles and wage rates whIch pertaIn dunng the currency of the collectIve agreement. WithIn that lIst are classIficatIOns for "LIqUor Store Manager 3 and LIqUor Store Manager 1 WithIn the LIqUor Store Manager 3 posItIOn are the posItIOns of "A Store AssIstant and 'C' Store Manager" The two posItIOns rank equally wIthIn the same managenal classIficatIOn. AddItIOnally wIthIn the classIficatIOn of LIqUor Store Manager 1 there IS only one posItIOn and that IS for a 'D' Store Manager The partIes stIpulated that the Managers of smaller stores such as 'C' Stores and 'D' Stores fall wIthIn the bargaInIng umt but are at dIfferent wage levels from each other the Manager 3 posItIOn beIng hIgher than the Manager 1 posItIOn Of course, Managers of stores larger than 'C' Level are excluded from the bargaInIng umt whereas the AssIstant Managers wIthIn those stores are Included such as the 'A' Store AssIstant who falls wIthIn the same classIficatIOn as the 'C' Store Manager 5 The Letter of Agreement concernIng 'C' and 'D' Store Managers Annexed to the collectIve agreement and formIng part of It IS a postIng protocol regardIng the fillIng of 'C' and 'D' Store managenal vacanCIes Whereas In the case of other classIficatIOns WIthIn the collectIve agreement, the geographIc PostIng areas are descnbed In ArtIcle 5 there are only 4 PostIng Areas for 'C' and 'D' Store Managers Those Areas are the North, South, East and West RegIOns of the ProVInce The Introductory provIsIOns of the letter of agreement read as follows /IRe CD '>tore Alanager Geographical Posting 4.rea The Parties agree that the following shall apph for the posting of 'e' and 'D' '>tore Alanager vacancies. 1 The first geographic posting area for 'e' and 'D' '>tore Alanager vacancies will he the store's region and open to permanent emplovees onh Permanent full-time emplovees will he considered hefore permanent part-time emplovees. 2 If the position is not filled, the next geographic posting area will be the province and open to permanent emplovees onh Permanent fit/I-time emplovees will be considered before permanent part-time emplovees 1/ The Back2round and Evidence Re2ardin2 the Transfer of Mr. Roland Anstett As I have descnbed at the onset of thIS award, It was the transfer of Mr Roland Anstett from the Southampton, Ontano store to the posItIOn vacated through the retIrement of Mr CharlIe Bagnatto from the Walkerton Store In the Western RegIOn whIch precIpItated the gnevance at hand. A number of employees who worked In the Western RegIOn and for whom the 'C' Store Managenal posItIOn would have constItuted a promotIOn consIdered themselves dIsenfranchIsed 8 by reason ofMr Anstett's transfer However It wIll be unnecessary to reVIew much of the eVIdence receIved from the Umon concernIng past practIce of the partIes InvolVIng transfers across geographIcal boundanes ThIS IS the result of the Umon's havIng wIthdrawn on a wIthout preJudIce basIs ItS relIance upon those practIces Furthermore, as IndIcated earlIer the Umon dId not Intend to pursue any allegatIOns of bad faith concermng the Employer's transfer ofMr Anstett from the Northern RegIOn to the Western RegIOn. In the cIrcumstances, there remaIn only two sIgmficant Issues to be determIned 6 Whether or not the Employer vIOlated the collectIve agreement when It faIled to post a 'C' Level managenal posItIOn In the Western RegIOn upon the retIrement of Mr Charles Bagnatto ImplIcIt In thIS Issue IS the determInatIOn as to whether or not the transfer of Mr Anstett to fill "vacancy" In the Western RegIOn truncated the gnevor's semonty nghts to bId vacanCIes WIthIn theIr own regIOn. 7 In the event the Employer's management nghts to transfer Mr Anstett across regIOnal boundanes was sustaIned, the Umon challenged the transfer on the basIs that It was an unreasonable and arbItrary exerCIse of those nghts In the CIrcumstances here SInce the Umon IS not purSUIng the Issue concernIng past practIce I do not propose to reVIew Mr John Coones testImony In any detaIl On the other hand, hIS eVIdence cannot be totally dIsregarded. Mr Coones, as a result of the merger of the former LIqUor Board Employees Umon wIth OPSEU IS now the LIqUor Board DIVISIOn Chairman as opposed to the PresIdent of the former Umon. He gave sIgmficant testImony regardIng the partIes' current approach and concern wIth respect to transfers of employees between geographIcal areas NeIther the Umon nor the Employer favours such lateral transfers of employees Into eqUIvalent classIficatIOns across geographIcal boundanes As In the case at hand, they usurp the normal progressIOn and postIng opportumtIes In the area to whIch the transfer takes place Consequently a screemng process InvolvIng a number of condItIOns IS tYPIcally Imposed before such a transfer wIll be consIdered or ultImately allowed. I do not propose to examIne In any further detaIl or reach any conclusIOns wIth respect to those practIces In thIS award, however I thought It ImperatIve to 9 remark upon the Umon's concerns wIth, but, cooperatIOn In such transfers where there are exceptIOnal CIrcumstances ThIS bnngs me to a consIderatIOn of the testImony of Mr Jim Turner the DIrector of the Western RegIOn workIng In the Board's London office It was pnmanly Mr Turner's decIsIOn to approve the transfer ofMr Anstett from hIS 'C' Manager posItIOn In the Northern RegIOn to the 'C' Manager posItIOn In the Western RegIOn. Mr Turner explaIned that he dId not belIeve there was any specIfic protocol In the collectIve agreement to deal wIth such transfers Furthermore, the Employer was reluctant to Implement lateral transfers of thIS nature SInce they tYPIcally result In a roadblock to advancement for other employees who work wIthIn the geographIc area to whIch the co-employee IS transferred. In the CIrcumstances the Company has establIshed ItS own cntena or factors for consIderatIOn upon receIpt of these requests Mr Anstett's Northern RegIOn DIrector Mr Dean Marshall, outlIned these consIderatIOns to Mr Anstett In a letter of February 24 2004 as follows l/4.s this is not the first occasion whereh, vou have requested a similar transfer 1 will nevertheless reiterate some of the kn issues regarding transfer requests. Transfers are inhihited h, concerns from emplovees in the receiving district area who ma, regard a transferred emplovee as creating a roadblock for their own opportunities for advancement. 4.s a result, transfer requests are reviewed individuall, and a decision is based on numerous factors, including (a) the existence of a vacanGJ, in the area (b) satisfacton past performance (c) the merits of each individual case, specificalh the reason for the request supported b, satisfacton documentation Your written submission of Februan 2 2004 indicates that vour request is based upon medical reasons. You have also indicated that vou are willing to provide a medical certificate upon request. In order to give mn further consideration to vour request, the LCEO requires supporting medical documentation relative to vour health condition. Of greater relevance is not so much confirmation of a diagnosis hut how if at all, this relocation could henefit vour health concerns and provide suhstantive proof as to this prognosis. 1/ Mr Marshall clanfied that the InformatIOn would have to be passed on to Mr Turner the DIrector of the Western RegIOn and Included a "Release and MedIcal DIsclosure" form for completIOn by Mr Anstett. He also noted that Mr Anstett's employment record IncludIng 10 performance appraisals, attendance records, dIscIplIne records and semonty mIght also be revIewed In the Western RegIOn. A letter was forthcomIng from Mr Anstett's physIcIan whereIn the doctor outlIned several medIcal condItIOns suffered by Mr Anstett as well as provIdIng InfOrmatIOn as to medIcatIOns he was currently takIng to control those condItIOns wIth a caveat that there was the possIbIlIty of the addItIOn of a further sIgmficant medIcatIOn In the near future AddItIOnally the doctor referred to the gnevor's pnmary role as the co-ordInator of support and care for hIS aIlIng mother who had "a sIgmficant chromc medIcal condItIOn" and had been "gIven a gnm prognosIs WIth the expectatIOn that her lIfe span would be measured In months rather than years" The doctor advanced the VIew that psychologIcal and emotIOnal stress could contnbute to worsemng of the gnevor's condItIOns The letter went on as follows I/This has seemed to be the case for AIr 4.nstett in the past and it is his view that working both closer to his home and to his ailing mother would decrease his overall stress levels especialh in the winter months when driving conditions ma, be more difficult. 1 believe this is a reasonable view and expect a relocation ma, indeed improve his conditions. 1/ Mr Turner dId not approve the ongInal applIcatIOn from Mr Anstett. He dId not consIder that the shorter dIstance between Mr Anstett's home and the Walkerton Store as opposed to the Store In the Northern RegIOn was sIgmficant enough to JustIfy the transfer In short, he dId not feel that the compassIOnate grounds based on medIcal reasons were sufficIently compellIng to JustIfy the transfer Subsequent to the reJectIOn whIch took place In and about March 17 2004 Mr Turner dId approve the transfer near In the end of Apnl folloWIng an absence by Mr Anstett for medIcal reasons whIch he understood to have Included some form of surgery Before approvIng the 11 transfer Mr Turner receIved a subsequent report from Mr Anstett's physIcIan. That report dated Apnl 14 2004 from whIch I have deleted reference to Mr Anstett's specIfic medIcal condItIOns read as follows I/This letter is to reinforce the letter of Al arch 4 2004 with regard to Roland 4.nstett and a potential joh relocation. It is 11n stated opinion that a joh relocation closer to home would henefit AIr 4.nstett's health with regards to [ ] which would in turn, reduces his risk of [ ] 4.s vou ma, he aware, his AIother has recenth passed awa, which has left Roland with the responsihilin as Guardianfor his vounger sister who has had (a medical condition) since birth, and requires extra support and supervision. 1/ In hIS testImony Mr Turner agreed that the medIcal OpInIOn regardIng Mr Anstett's condItIOns was not sIgmficantly dIfferent than the earlIer OpInIOn. Indeed, he had expected somethIng further regardIng Mr Anstett's surgery Be that as It may and, although he had no medIcal eVIdence to connect the surgery wIth a heIghtened need to relocate, Mr Turner felt that the occaSIOn of the surgery together wIth the paSSIng ofMr Anstett's mother and hIS new role and responsIbIlIty as guardIan for hIS handIcapped sIster had created a scenano InvolvIng potentIal stress on Mr Anstett whIch was more compellIng than had been the case earlIer In the cIrcumstances, he decIded to approve the transfer In consequence, he advIsed Mr Anstett by letter to return temporanly to hIS regular posItIOn In Southampton on Apnl 26th folloWIng hIS absence for medIcal reasons His transfer to Walkerton as 'C' Store Manager classIfied at the LIqUor Store Manager 3 Level, would be effectIve Monday May 3 2004 The Meanin2 of the Collective A2reement Insofar as It IS possIble, I wIll restnct my remarks to the InterpretatIOn and applIcatIOn of the collectIve agreement provIsIOns Insofar as they Impact upon the managenal 'C' posItIOn, however SInce provIsIOns dealIng wIth the managenal posItIOns refer back to the general semonty provIsIOns of the collectIve agreement, they cannot be read In total IsolatIOn. In any event, my specIfic findIngs whIch follow should be read narrowly so as not to Impact upon 12 practIces of the partIes WIth respect to other classIficatIOns of employees covered by the collectIve agreement. The first Issue IS whether or not the clear language of the collectIve agreement InhIbIts the Employer from transferrIng a 'C' Manager employee across geographIc boundanes, In thIS case from the Northern RegIOn to the Western RegIOn. For the reasons whIch follow I am of the VIew that the lateral transfer of a 'C' Level Manager to an IdentIcal posItIOn In another RegIOn does not constItute In and of Itself a vIOlatIOn of the collectIve agreement. It IS Indeed unfortunate that, as a result of the transfer ofMr Anstett In thIS case employees wIthIn the reCeIVIng RegIOn were depnved of an opportumty for promotIOn to that posItIOn, however the opportumty was not totally lost to the bargaInIng umt rather employees In the Northern RegIOn were able to take advantage of the vacancy left there by Mr Anstett. ArtIcle 21 4 does reqUIre the postIng of vacanCIes however the vacanCIes to be posted are those "In an eXIstIng Job classIficatIOn" There IS no other defimtIOn of vacancy In the collectIve agreement. In the cIrcumstances, If the Employer Intended to maIntaIn ItS then current complement of'C' Manager posItIOn folloWIng the retIrement ofMr Bagnatto It was Indeed oblIged to post a vacancy In that J ob classIficatIOn. It dId Indeed post a vacancy In that classIficatIOn to re-establIsh the complement; however It dId so only after havIng transferred Mr Anstett to the Western RegIOn. ArtIcle 21 4 on ItS face does not state that the vacancy to be posted must be sItuated at the locatIOn or store whIch was vacated. It does, however reqUIre postIng "wIthIn the geographIc area as specIfied" Furthermore, the provIsIOn stIpulates that dunng the postIng penod "employees wIthIn such area may apply" It seems clear that employees wIthIn a geographIc postIng area are entItled to preferentIal treatment wIth respect to vacanCIes posted wIthIn theIr work area. However what IS not so clear IS whether the reference 13 to the "geographIc area as specIfied" means the geographIc area chosen by the Employer to declare the vacancy or the geographIc area whereIn the vacancy occurred In the first Instance To put It more clearly In reference to the case at hand, does the "geographIc area as specIfied" mean 1 The geographIc area compnsed of the Western RegIOn from whIch Mr Bagnatto retIred leavIng a vacancy In the 'C' Manager posItIOn, or 2 The geographIc area as specIfied In the notIce ultImately posted by the Employer In the Northern RegIOn. Mr SteInberg for the Umon argued strenuously that the vacancy to be posted was the ongInal vacancy wIthIn the Western RegIOn. Furthermore "employees wIthIn such area may apply" for the vacancy ArtIcle 21 5(a) then prescnbes that semonty would be the determInIng factor from among those beIng consIdered for promotIOn to that vacancy Mr Anstett would not have qualIfied as a candIdate Mr SteInberg argued that, even If management retaIns the nght to transfer employees laterally wIthIn the same classIficatIOn, the exerCIse of that nght must gIve way to the semonty nghts of employees wIthIn the geographIc area of the vacancy FInally In the case of a 'C' Store Manager vacancy the relevant geographIc area was the Western RegIOn where the ongInal vacancy occurred as provIded for In the partIes Letter of Agreement respectIng 'C' Store Managers etc In summary Mr SteInberg argued that the nghts of management are stated wIthIn the management nghts provIsIOn to be exercIsed In a manner consIstent WIth the provIsIOns of the agreement. In thIS Instance management's nght to transfer employees from one geographIc area to another are lImIted by the express provIsIOns referred to In ArtIcle 21 and, In thIS case, the Letter of Agreement respectIng 'C' Store Managers 14 In support of hIS posItIOn Mr SteInberg referred me to the folloWIng authontIes 1 Brown and Beatty Canadian Labour Arbitration (3rd EdItIOn) paragraph 60000 2 Lakeport Beverages v Teamsters, Local 938 (2005) D .L.R. (4th) 10 3 Falconbndge Ltd. and CanadIan Umon of Mine Mill & Smelter Workers, Local 598 (1991) 21 C.L.AS 500 (KIlgour) 4 Elementary Teachers' FederatIOn of Ontano and F W T AO Support Staff Assn. (1999) 56 C.L.AS 56 (Marcotte) 5 Bradson MercantIle Inc and US W.A (2000) 59 C.L AS 340 (Brown) 6 Calgary Laboratory ServIces and H.S.AA (2000) 62 C.L AS 335 (SmIth) 7 Costal Commumty CredIt Umon and Office and Techmcal Employees Umon, Local 15 (2001) 66 C.L.AS 286 (BlasIna) 8 HamIlton-Wentworth (RegIOnal MumcIpalIty) PolIce ServIces Board and HamIlton- Wentworth PolIce Assn. (2002) 105 L.AC (4th) 139 (Snow) 9 Fredncton (CIty) and I.AF.F Local 1053 (2002) 77 C.L AS 127 (Gorman) Ms AlIson Renton for the Employer countered than In spIte of the postIng areas, arbItral Junsprudence tYPIcally recogmzes the Employer's nght to transfer employees laterally wIthIn the same classIficatIOn. Further although the InItial vacancy occurred In the Western RegIOn, there was no specIfic fetter In the collectIve agreement upon the Employer's nght to make lateral transfers To Imply such a restnctIOn on management would be to create employee nghts and language whIch do not specIfically appear In the contract. AddItIOnally ArtIcle 21 9 restnctIng lateral transfers between 'C' Managers and 'A' Store AssIstants makes It clear that such transfers wIthIn eIther of those desIgnatIOns are normal management functIOns whIch do not gIve nse to or Impact upon employees semonty nghts or the postIng of vacanCIes 15 Ms Renton referred to the folloWIng cases wIth respect to thIS first Issue 1 Ontano Worker Board's Employees Umon v Ontano (LIqUor Control Board) (Gnevance Settlement Board) (Miller Gnevance) March 31 2005 (GSB File #2003-1631) (Reva DevIns) 2 Lettuce ServIew LImIted PartnershIp v UF C W Locall000A [2001] O.L AA No 738 (G T SurdykowskI) As IndIcated at the InCeptIOn of thIS dIscussIOn, It IS my VIew that the Employer's posItIOn must prevaIl Regardless of whIch of the two meamngs one gIves to the words "the geographIc area as specIfied" wIthIn ArtIcle 21 4(a)(i) ArtIcle 21 9 deals specIfically and exclusIvely wIth the LIqUor Store Manager 3 classIficatIOn whIch Includes only the 'A' Store AssIstant and 'C' Store Manager desIgnatIOns That provIsIOn specIfically lImIts the Employer's nght to transfer wIthIn the classIficatIOn between those two desIgnated posItIOns Clearly wIthout that language the partIes contemplated that the Employer was free to transfer laterally wIthIn that classIficatIOn between those two desIgnatIOns or more Importantly WIthIn eIther one of them In effect, ArtIcle 21 9 recogmzes those two desIgnated posItIOns as two separate classIficatIOns for postIng purposes and, at the same tIme, InhIbIts management transfers across those two posItIOns Conversely the nght to transfer wIthIn eIther of those two desIgnated posItIOns IS not InhIbIted by thIS provIsIOn. More Importantly the very eXIstence of the provIsIOn confirms the usual nght of management to transfer wIthIn the Managenal 3 Class wIthout the need to post. Without specIfic language to the contrary a fetter on the Employer's nght to transfer wIthIn eIther one of those desIgnatIOns wIthout the necessIty of postIng cannot be ImplIed. AccordIngly the eXIstence of a form of geographIc postIng and bIddIng nghts set out In ArtIcle 21 4(a)(i) (in effect sImIlar to departmental semonty wIthIn an Industnal settIng) IS not sufficIent In and of Itself to Impede the Employer's nght to effect lateral transfers wIthIn eIther the 'C' Manager posItIOn or the 'A' Store AssIstant posItIOn wIthout the need to post a vacancy 16 In the cIrcumstances, I conclude that the Employer pursuant to the provIsIOns of thIS collectIve agreement may effect lateral transfers of 'C' Store Level Managers both wIthIn or across regIOnal boundanes The need to post the vacancy wIthIn the classIficatIOn stIll pertaIns so long as the Employer reqUIres an addItIOnal 'C' Level Manager However the determInatIOn as to the RegIOn In whIch the vacancy IS to be posted wIll be dependent upon the needs of the operatIOn after any such transfers have taken place More specIfically WIth respect to the case at hand, subJect to a reVIew of the exercIse of the Employer's dIscretIOn In transferrIng Mr Anstett from the Northern to the Western RegIOn, there IS no specIfic provIsIOn In thIS collectIve agreement InhIbItIng that lateral transfer There was no need to post a vacancy In the Western RegIOn. There remaInS to be addressed the Umon's posItIOn that the exerCIse of management nghts to transfer Mr Anstett was Inappropnate The 2nd Issue - The Appropriateness of the Transfer Mr SteInberg argued that, In eXerCISIng hIS dIscretIOn, Mr Turner acted unreasonably ImtIally he had turned down Mr Anstett's request based upon the InfOrmatIOn that was then before hIm. The subsequent medIcal eVIdence provIded no further sIgmficant InsIght or change wIth respect to Mr Anstett's condItIOn. AccordIngly there was no good reason for Mr Turner to have revIsed hIS decIsIOn to approve the transfer With respect to the oblIgatIOn on management to act reasonably In eXerCISIng ItS nghts Mr SteInberg referred me to the folloWIng cases 1 Zehrs Markets and UF C W Lac 1977 (Gruosso) (1996) 61 LAC (4th) 25 (Newman) 2 Ontano PublIc ServIce Employees Umon V Ontano (Mimstry of Commumty FamIly and ChIldren's ServIces) (Ashley Gnevance) [2003] 0 G S.RA No 128 (Abramsky) 3 Ontano LIqUor Control Boards Employees' Umon V Ontano (LIqUor Control Board (Attendance ReVIew Gnevance) [2004] 0 G S.B A No 2 (DIssanayake) 17 4 Meadow Park NursIng Home and ServIce Employees InternatIOnal Umon, Local 220 (1983) 9 L.AC (3rd) 137 (Swan) Ms Renton took the posItIOn that, although the medIcal eVIdence was not sIgmficantly dIfferent from the first to the second Instance, there had occurred sIgmficant changes In CIrcumstance affectIng Mr Anstett whIch Mr Turner JustIfiably took Into consIderatIOn. That or those changes Involved the death ofMr Anstett's mother and hIS famIly oblIgatIOn to assume the pnmary responsIbIlIty for hIS dIsabled sIster's well beIng. In the cIrcumstances, hIS ultImate decIsIOn was not arbItrary or affected In bad faith. Indeed, he took on the whole task reluctantly because of ItS potentIal Impact upon employees In the Western RegIOn. UltImately hIS decIsIOn was made for bona fide reasons Whether an arbItrator mIght come to the same conclusIOn In sImIlar cIrcumstances IS Irrelevant. An arbItrator ought not to SubstItute ItS decIsIOn In such matters for that of management. Furthermore, the appropnate test IS not one of reasonableness but of bona fides Here the Umon wIthdrew ItS challenge to the Employer's actIOn based on bad faith. In the cIrcumstances, management's decIsIOn should be allowed to stand. As to the appropnate test, Ms Renton referred to the folloWIng two cases 1 Ontano (LIqUor Control Board) v Ontano LIqUor Control Boards Employees' Umon (M's Gnevance) July 9 1992 (R. J Roberts) GSB FIle No 727/91 2 Re Stelco Inc and Us. WA. Local 1005 [1994], 17 O.R. (3d) 218 (Ontano DIvIsIOnal Court) I have consIdered the submIssIOns of the partIes WIth respect to the appropnate test to be applIed wIth respect to the Employer's exerCIse of ItS managements nghts In thIS case In my VIew whether one espouses the VIews expressed by Vice-Chair DIssanayake In hIS decIsIOn InvolvIng thIS Employer and the predecessor Ontario Liquor Board Employees' Union, or that descnbed 18 by the Ontano DIvIsIOnal Court In the Stelco Inc case, I am satIsfied that I ought not to Interfere wIth Mr Turner's decIsIOn. The test IS descnbed as follows In the DIssanayake award at paragraph 18 I/In light of the two Court of 4.ppeal decisions, the most sensihle approach, and the one that 1 suhscrihe to is that taken in Re AIeadow Park 'vursing Home (supra) The state of the law following the Toronto Police Com'rs and Printing Industries court decisions, as 1 read them, ma, he summarized as follows. 4.n arhitrator has no jurisdiction to import into a collective agreement a general dun on an emplover to exercise management rights reasonabh However if on an application of the general law of implied terms in contract, the implication arises from the collective agreement itself that a particular management right must be exercised reasonabh the arbitrator is bound to make that implication since it arises from the collective agreement negotiated b, the parties, from which the arbitrator draws his or her jurisdiction. ,,'uch an implied dun ma, arise from a specific provision of the collective agreement, or from a reading of the agreement as a whole in a labour relations context. 1/ And the test In the DIvISIOnal Court deCISIOn on page 13 of the QUIcklaw publIcatIOn reads as follows Read in context, 1 am satisfied that Tarnopolsh J 4.. was simph affirming that management was required to act in a bona fide fashion when exercising a discretion under one provision of the collective agreement which might create a conflict with or undermine rights conferred b, some other provision in the agreement. 1 do not read his words as suggesting that a decision made b, management in good faith could nevertheless be challenged and struck down as unreasonable simph hecause it had the effect of conflicting with or undermining some other right in the agreement. In 11n view such a principle would have a chilling, ifnot crippling effect upon management's ahilin to conduct the affairs of the compmn 1/ NeIther of those quotatIOns appear to Impose on management a stnct duty to act reasonably In eXerCISIng ItS management nghts Even If the deCISIOn to transfer brought Into playa possIble conflIct WIth the employee's semonty nghts under ArtIcle 21 4 whIch I have found It dId not, It IS not clear that there would anse a duty to act reasonably pursuant to eIther of those two tests prevIOusly outlIned. However If the duty dId anse, I am satIsfied that Mr Turner's deCISIOn was bona fide, not made In bad faith nor was It unreasonable based upon the InformatIOn whIch was proVIded to hIm. WhIle one mIght have preferred a change In the medIcal prognosIs for Mr Anstett hImself to have preCIpItated a change In Mr Turner's deCISIOn, there were other developments IncludIng the death ofMr Anstett's mother and hIS famIlIal oblIgatIOns WIth respect to hIS SIster whIch were legItImate consIderatIOns The doctor vIewed these elements as 19 IncreasIng the stressors In Mr Anstett's lIfe In the CIrcumstances, It was not unreasonable for Mr Turner to reVIsIt hIS earlIer decIsIon and alter the ultImate deCISIon to effect the transfer WhIle hIS decISIon mIght not have been the correct one In the VIew of others, such decISIons are dIscretIOnary and need not pass so ngId a test as one of correctness Mr Turner's decIsIon even If subJected to a test of reasonableness was not wIthout ment. In conclusIOn, Mr Turner's decIsIOn to transfer Mr Anstett was neIther arbItrary nor If subJect to such a test, unreasonable In all the CIrcumstances, the gnevance IS dIsmIssed. DATED at Toronto thIS 14th day of August, 2006