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HomeMy WebLinkAbout1992-3735.Rosenberger&Lynch.96-01-11 ~ .. ,,' t ..\ j t4. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO i!: ~" r 1111 GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG IZ8 FACSIMilE /TELltCOPIE (416) 326-1396 GSB # 3735/92, 2509/91, 1143/93, 1303/93, 1240/93, 1344/93, 951/93, 2968/92, 2065/92, 1042/92, 1800/93, 608A/93, 608B/93, 1216/93, 26/93 .'f.~'.~~TL OPSEU # 93A945, 92A047, 93F325, 93F524, 93F486, 93F539, 93F209, 93A044, 92G354, 92E431, 93F835-7, 930789, 930790, 93F390, 930023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMEN~ BOARD BETWEEN ~ ,OPSEU (Rosenberger/Lynch) Grievor - and - The Crown in Right of ontario (Niagara Parks Commission) Employer / BEFORE: M Gorsky Vice-Chairperson r J Carruthers Member F Collict Member ~ FOR THE R Blair, P Munt-Madill, I Landesberg-Lewis GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors - i FOR THE C Riggs, J Smale EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING December 13, 1993 July 27, 28, 1994 August 16, 1994 June 9, 23, 1995 September 6, 1995 I 'l){ I , . ,'fi,: i /'" ~I \',t.' r . 'J . Decision There are four grievances before the Board, two each filed by I the Grievors Jacqueline Lynch and Linda Rosenberger, and it was agreed that this panel of the Board would hear all of them It was further agreed that the Union would present its evidence first with respect to all of the grievances, and that the consequences of doing so in relation to the placement of the burden of proof would be left for argument Both Grievors were, at all material times, seasonal employees of the Employer, the Niagara Parks Commission (the "Commission" and the "Employer") Exhibit 1, filed by Ms Lynch on March 22, 1993, and Exhibit 2, filed by Ms Rosenberger on March 3, 1993 contain the same ,statement of grievance and settlement desired Statement of grievance \ I grieve that I have been dismissed without just cause, Settlement desired That I be reinstated to my former position without loss of pay benefits or any other entitlement accruing under the collective agreement with full retro-activity [sic] on all monies with interest and seniority ~ < ! Exhibit 3, filed by Ms Lynch on April 5; 1993, .and Exhibit 4 filed by Ms Rosenberger filed on April 14, 1993 contain the same statement of grievance and settlement desired Statement of grievance \ ., ~ (! . 2 -< Jobs are being filled in a discriminatory manner by people with less seniority and I have unjustly not been recalled Settlement desired To be reinstated immediately without loss of pay, benefits or any other entitlement accruing under the collective agreement with full retro-activity [sic] on all monies with interest and seniority ~ Ms Lynch's and Ms Rosenberger's seniority as a seasonal employees at the Distribution Centre, being the wholesale distribution centre operated by the Commission, are, respectively, March 28, 1988, and February 12, 1990 It was the usual practice for the Grievors, as seasonal employees, to be notified of their being offered seasonal employment by the Co~ission in January or early February of each year They regarded themselves as not having been offered employment as seasonal employee~ for the 1993 season \ and this gave rise to their filing the above noted grievances In the Union's opening statement it was indicated that it would establish that there were persons with less seniority than the Grievors working in their former positions at the relevant times In closing argument, this claim was expanded to assert that the Employer had in bad faith brought a number of regular emloyees into the Distribution Centre so that the Grievors would not have to be recalled in 1993 In the alternative it was claimed that the Grievors, if they were not entitled to be recalled to their positions as Distribution Centre Workers, ought to have been " f\ . 3 offered other seasonal employment with the Commission and that employees with less seniority and persons with no attachment to the bargaining unit were hired by the Commission in bad faith to perform jobs the Grievors could have performed Because of the seasonal nature of the Commision's operations, a large number of its employees are seasonal (approximately 500) In the case of the Grievors, their working season was from approximately February to July of each year because of the nature of the work that they performed at the Distribution Centre, which involved tagging, re-packaging, shipping and ticketing items ofered for sale at stores operated by the Commission during the high season The first set of grievances filed by the Grievors claiming unjust dismissal were filed when they realized that they would not be recalled to their previous positions as Distribution Centre Workers during the 1993 season The second set of grievances were filed when they became aware that other employees had been hired into positions at the Park for which they were qualified It was 1 noted that the Grievors were long term seasonal emploiees of the Commission, with Ms Lynch having commenced her seasonal employment in 1980 and Ms ,Rosenbe~ger in 1986 It was agreed that there are a number of departments within the Commission, some of them being identified as 1\ . 4 Administration Retail Operations Food Services Horticulture Planning and Development Engineering/Attractions Public Relations and Advertising Accounting Police Within departments there are units Some of the reasons given by the Commission for what transpired in the cases before us are related to the fact that the Distribution Centre, which is within the Retail Operations department, has increasingly been experiencing a reduction in the volume of work required to be performed by Distribution Centre Workers This was a result of a realignment of the method of processing goods, so that ticketing is no longer performed by I Distribution Centre Workers but by the manufacturers, and because of a general decl ine in business over the last few years No significant issue was taken with the description of the reason for the decrease in work required within the Distribution Centre '- ---- I~. ,~ ,. ) 5 An employee whose position might be adversely affected by the decisions in the cases before us, Randy Ralph, was given written notice of the hearing, of his rig~t to attend, make submissions and be represented, but he did hot attend any of the hearings \ There were five witnesses who testified over a period of (seven days Allegations of bad faith were made by the Union as well as allegations that some members of management had evidenced a blatant anti-union animus directed at the Grievors It was suggested by counsel for the Union that we had to consider a large volume of evidence and if we did so it would become apparent that management had breached a number of the Grievors' rights' and that the grievances should be allowed We have, accordingly, gone to some pains in reviewing the evidence in this decision - Evidence of Ms. Lynch Ms Lynch testified as follows 1 She worked for the Employer for approximately 12 iyears, and during that time received approximately seven performance evaluations, which were uniformly favorable 2 In September of 1980 she worked for approximately two months as a car attendant at the Maid of the Mist Incline Railway \ '\ 6 . where her duties included assisting people into the cars As an attendant she was responsible for insuring that people remained in their seats so as to avoid injury and to assist them from the cars to the Maid of the Mist Boat Ride 3 For the next four seasons (1981 to 1984) she was a shift supervisor at the Maid of the Mist Incline Railway As the Upper Operator she had the responsibility for running the cars safely from the Upper Booth Her responsibilities also included motivating staff, scheduling, reporting mechanical failures and keeping a log book of daily operations In 1983 the seasonal Manager of the Maid of the Mist Incline Railway became ill and she filled his position on an acting basis As part of her responsibilities she completed timecards, evaluations of staff and was on-call duri~g operating hours should the need arise She also opened and closed the operation with keys furnished to her, set the alarm with a key when she closed the booth, communinicated with the Park Police and carried out staff training involving safety requirements < 4 She did not work for the Commission in 1985 o~ 1986 for "personal reasons, " and returned to work in 1987 at the People Mover system where she was involved in package tour sales and performed information duties in connection with her other responsibilities Most of her duties involved selling People Mover passes, operating the cash register and preparing '. f ') . 7 the cash float She worked independently in the booth while performing her various functions She completed her 1987 assignment as a seasonal employee at the People Mover in October At that time she approached perSOnS in the Personnel Unit of the Administration Department and requested work that would.enable. her to work only during the day Her request was granted and she was transferred to the Distribution Centre It' was her understanding that once the transfer took place it would be permanent because she had completed a permanent~ transfer form at the time she made her request and set out her reason for making it, which related to her child care responsibilities 5 In the 1988 season she started to work at the Distribution Centre at the beginning of March During the season (which she identified as January to June) employees at the Distribution Centre work full-time hours, following which there are lay- offs Laid-off employees work on a part-time, on-call, basis, usually until the end of August She identified the duties of Distribution Centre Workers as being unpacking and inspecting merchandise, ticketing (pricing), filling out purchase orders, accounting for stock, stocking shelves, picking stock from shelves to fill orders for other stores and shipping 6 During the 1988 season, she was approached about a month after her transfer, by John Roach, an Assistant Manager at the ----- -.- -- \ . 8 Distribution Centre and informed that her transfer was not permanent and that she had actually been flborrowed" from People Mover, and that she would have to return there when ) People Mover opened for the season or she would be without a job ~ 7 ( Ms Lynch took issue with this description of her status, ( contending that she had been informed earlier that her l transfer was permanent, and she could not understand why she was now being told that it wasn't j 8 She was laid-off about the month of January, 1989, and the difference between herself and management relating to her status as a seaosnal employee in the Distribution Centre remained unresolved Accordingly, she was unsure at the end of /' her first season at the Distribution Centre whether she still had a job to return to there for the 1989 season 9 She next heard from the Employer later in January of 1989, when she was advised that she would be recalled to work for , that As she had not received i concrete season any communication as to which department she was part of for recall purposes, she communicated with Personnel and asked whether she was still an employee and if so, of which department She was informed that she was regarded as being ~- - - \ , 'l . 9 permanently attached as a seasonal employee to the Distribution Centre 10 She then calied Bob Pidzamecky, the Manager of the Distribution Centre, to find out when she might be recalled to work for the 1989 season He informed her that she was not on his recall list She advised him th{:lt she had called v Personnel, and they had informed her that she was on the list ( She then called Debbie Whitehouse, the then Head of Human Resources for the Commission, to find out if there were any reasons why "any employee" such as herself would not be recalled to the Distribution Centre Ms Whitehouse is supposed to have replied "You would normally be recalled to your last place of employment, unless you had had a poor evaluation " Ms Lynch added that her evaluations were uniformly good and therefore concluded that she ought to be recalled as a Distribution Centre Worker 11 Shortly thereafter, Mr Pidzamecky recalled Ms Lynch to work as a Distibution Centre Worker ! 12 Ms Lynch was recalled to work in the Distribution Centre for the 1990 season towards the end of February, adding that she lost a month from the normal season that she expected to work ----.. --.-. -- ( \ . 10 13 In 1991 she was again recalled to the Distribution Centre - this time sometime in the, month of March She added that she regarded her recall as taking place later every season, which she attributed to her being "down in the seniority list " I 14 She referred to Exhibit 7, which is a policy grievance filed by the Union on January 17, 1991 (the filing of which she had been involved with to the knowlege of ma~agement), where an / allegation was made that managers were performing bargaining unit work, as a result of which the hours of work available to bargaining unit personnel were reduced The Union regarded the managers to be performing regular bargaining unit work on the floor in the same way as it was performed by bargaining unit employees She stated that she had arranged meetings with the local executive in order to have them settle upon the means of forwarding the grievance and resolving it She also encouraged \ rank and file bargaining unit members to attend these meetings in order to express their concerns 15 She was involved as a Union activitist in connection with a , , 1990 classification grievance filed- by her Alt:!hough her grievance was one similar to a number of other classification \ grievances filed on the basis of improper classification, she was more outspoken in pursuing the matters in dispute with the Employer ~ I . 11 16 In ~991 she filed another classification grievance As in the case of the 1990 grievance, a number of other employees similarly situated, including Ms Rosenberger, filed grievances The position of the Grievors was that they were performing the same work as other regular employees but were being paid less 17 In 1991 she was in the "forefront" of a group of Distribution Centre employees who filed a petition to abolish a management policy that required bargaining unit personnel to sign a paper attached to a clipboard on the supervisor's desk., klong with the date and their name, when going to and returning from the washroom During coffee and lunch breaks, she circulated a hand-written petition that she had been instrumental in I preparing to fellow employees with a view to having them sign I it I j 18 She gave the signed petition to Kate McArdle, a Union steward, and asked her to deliver it to Mr Pidzamecky She stated that Mr Pidzamecky would have been aware who prepared the petition L as he WaS familiar with the handwriting of employees becclUse \ of a system in place which enabled the Employer to know which employee had made an error in shelving boxes identified with the product description and number She added that her handwriting was "allover the building" and was well known to management i " ) 12 . 19 After the petition was filed, Mr Pidzamecky called a meeting of the Distribution Centre staff to discuss some of the concerns expressed in the p~tition, where Ms Ly:qch was the spokesperson for the affected employees She stated that Mr Pidzamecky was "openly angry" at the meeting, when she explained how "indignant and humiliated" the staff were at having to complete and sign the sheet 20 She stated that the discussion went "back and forth," with Mr Pidzamecky expressing his support for the new pol i cy as he fel,t there was a good reason for it In the course of the discussion he was said to have addressed Ms Lynch in an angry tone of voice and told her to sit down and be quiet and let others speak At that point other employees addressed the /" meeting and Mr Pidzamecky appeared to be somewhat calmer, but he became upset, once as-ain, by a comment made by Ms Rosenberger relating to "women's biological functions " Before Ms Rosenberger completed her comments, Mr Pidzamecky was said to have "cut her off " f - i 21 Ms Lynch stated that there was another concern expressed at the meeting by affected employees that the time spent in the washroom might be calculated at ,the end of the week and deducted ~rom their paychecks \ ------ - , . 13 22 The meeting ended with jreveryone venting their feelings " The policy was abolished by management shortly after the meeting At that time Ms Lynch's fellow workers complimented her on the wording of the petition - almost all of them having signed it 23 She also referred to her Union activity in support of pay equity 24 She referred to a number of incidents where management was "cracking down on talking and laughing," when she complained about management's behavior to the local Union executive \ \ 25 She also voiced a number of other concerns relating to the workplace to management in 1991 or 1992 On reflection she said that she thought it was in 1991 Because she was aware of \ "- an upcoming inspection that was to take place, she approached the local's J executive with a list of health and safety concerns, including a problem with "wobbly ladders,! exposed fluorescent light bulbs over employees' heads, unclean bathrooms and poor air circulation " Referring tolthe latter indicated \ experiencing concern, she that employees were drowsiness and headaches 26 She approached Dave Farinasci, who was the head of Health and Safety to inspect some of the matters noted During the . 14 I inspection Mr Pidzamecky and Rob Atkins (the Union President) She pointed out the wobbly ladders 1 were present that staff had been using, which ladders were said to "rock and wobble " She expressed her concern because employees had to proceed up the ladders to stock boxes "high up" and were unable to hang on to hand rails with their hands full Mr Farinasci agreed with her concerns, made a note of them, which he placed in his briefcase Mr Farinasci proceeded up the ladder and rocked back and forth and then stated that the problem might be caused by the uneveness of the floor 27 After the examination of the ladder, the inspection tour ~, continued to the other side of the building At one point Ms Lynch went to the womens' washroom When she came out, she observed the other persons continuing with the inspection of the washroom ,Mr Atkins asked Ms Lynch if the washroom was clean enough for her She did not reply but looked down at the floor and avoided answering the question because she thought that he did not appreciate that he was singling her out of all the other employees to be the one to complain, and this embarrassed her -- , - 28 She was also involved in a seniority grievance in 1992 and r.eferred to Exhibit 8, which is the minutes of settlement with respect to it This grievance concerned her claim that she had improperly been deprived of a year's seniority when Mr , . 15 Pidzamecky, ~s above noted, told her that he did not regard her as being a member of the Distribution Centre seasonal staff 29 Another employee, Josephine (Josie) Wallis, joined in the settlement because it affected her seniority placement, as she had been hired after Ms Lynch was transferred to the Distribution Centre Ms Lynch's greater seniority in relation to Ms Wallis is acknowledged in Exhibit 9, being an agreed to listing of seniority in the Distribution Centre with respect to seasonal workers Exhibit 9 is dated June 8, 1992, and Ms Lynch stated that she did not work as a seasonal employee in the Distribution Centre after the 1992 season She returned to her seasonal position at the Distribution Centre approximately at the end of February or the middle of March of that year She believed that it was at that time that four regular sales clerks, who had no previous experience there, were introduced into the Distribution Centre She believed that the. regular sales clerks had previously worked in gift shops ,for the Commission at various locations in the Park She said she was familiar with all of them, and each of them had to be trained to work in the Distribution Centre When Ms Lynch commenced work during the 1992 season, there were still some duties that these employees could not properly perform until they received further training . 16 30 At that time seasonal employees at the Distribution Centre were informed by management that animosity directed against the newly introduced regular employees would not be tolerated Ms Lynch acknowledged that there was some resentment directep at those employees because they had taken "our jobs and were paid more money " Notwithstanding her feelings, her working relationship with them was good, and site worked "one'-on-one j with a couple of them " She understood from the regular / employees that they did not wish to work at the Distribution Centre but were there because they had been transfe~red She identified the employees as Elizabeth Caruso, who had worked at the Table Rock gift shop; Terry Colic, who had worked at the Aero Car; and Asima Ahmed who had worked at the Maid of the Mist Plaza and Tracey O'Brien who had also worked at the Maid of the Mist Plaza In each case they had worked at a gift shop op~rated by the Commission Ms Lynch believed that each I of them could have worked at four or five gift shops that were open at that time and need not have been transferred to the Distribution Centre It was her impression that sales clerks at the gift shops were not laid-off until the shops closed at the end of the season She stated that regular s~les clerks were "funneled into" Table Rock, being one of the large shops operated by the Commission that was open on a year-round basis Notwithstanding the introduction of the regular sales cle~ks into the Distribution Centre, Ms Lynch was laid-off in 1992 around the time that she was usually laid-off She later ~-- . 17 clarified her evidence to say that she lost almost two months out of the season in 1992 "Our season was shorter," referring to those employees on the seniority list (Exhibit 9) from herself down 31 Referring to the regular employees above referred to., she stated that she did not know how many of them or which ones worked in the Distribution Centre in 1993 What information she had she obtained through seasonal workers in the /' Distribution Centre with whom she had worked previously 32 She received a "card" from the Commission when she returned for the 1992 season This was because she was an employee ) with over five years' seniority entitled to paid holidays and 40 per cent off purchases ~ ( 33 At the end of the 1992 season she had greater seniority than Josie Wallis, Randy Ralph the D C Driver and Ed kuchar, the D C Forklift Driver f 34 In 1992, Mr Ralph was a part~time driver of the ~an used by the Distribution Centre He went out on deliveries two to thre!= times a week and the rest of the time worked at the Distribution Centre where he performed "pretty much" the same work as Ms Lynch did as a D C Worker . 18 35 She has driven a van, being her personal vehicle, held a Class G license, and was also able to drive an automobile and; a pickup truck 36 She was contacted at the end of February 1993 by Jerry Taylor, a supervisor at the Distribution Centre, and informed that "things there were slowll and he recommended that she go to Personnel in order to have her name placed on the surplus list 37 She asked Mr Taylor if she was going to be recalled to the ," Distribution Centre Ilat all" and he replied "I'll keep you posted " " 38 When asked who "ended up in [her] position during the 1:993 ( season," she responded that Josie wallis, Randy Ralph and the r "full-time girls from the gift shop" except for Elizabeth Caruso (who did not return) worked at the Distribution Centre, and emphasized that Ms Wallis and Mr Ralph had less seniority than she did It was her understanding that Ms Wallis had been given a clerical pos,ition which had not been offered to her In her view Ms Wallis was no more qualified than herself for that job She was friend~ with Ms W~llis, who called her at the end of March 1993, after she found out that she (Ms Lynch) was not going to be recalled to the Distribution Centre Ms Wallis said that she was not certain I - . 19 if she would be able to perform the clerical job, but that she needed it and hqd taken a refresher course to prepare her for the typing time' test that she had to pass She told Ms Lynch that she failed the test "miserably" the first time and went back to try it again and also failed She managed to pass the test the third time she took it and was given the job 39 In 1993, Ms Lynch went to the Human :Rights Committee for assistance and was advised that Mr Ralph had been called back to work in his previous position as D C Driver \ 40 -She referred to Exhibit 10, being art updated version, as at April 12, 1994, of the seniority list with respect to seasonal bargaining unit staff in Retail Operations ~ 41 According to Ms Lynch, there were 40 to 50 seasonal employees in Retail Operations during the 1993 season who had less I seniority than she had and who occupied positions for which she was qualified She stated that she was qualified to work ) as a cashier, car loader and upper operator She also referred to the horseshoe incline jOb (which shl:, felt: she could "possibly perform" because of previous experience she had at the Maid of the Mist incline) and to the Distribution Centre 1 '" 20 42 She identified a number of positions that she was quali~ied to perform and had experience in after August 19, 1987, which included Distribution Centre Worker, car loader, shift supervisor for sales clerks, cashier at the Distribution Centre and elevator operator 43 She received some offers of employment from the Commission for the 1993 season She referred to a phone call she received sometime in mid June of 1993 from Barb Arndt, the then head of Human Resources, who had replaced Ms Whitehouse, with respect to a part-time secretarial position at the School of Horticulture When she receiv~d the call she was informed that it was a temporary assignment to be worked days and was i enthusiastic at the prospect of working there She attempted ~ to contact a Union representative (Ms Rakich the Chief Steward) but was only able to reach her the next day Just after she hung up the phone after speaking to Ms Rakich, Ms Arndt caJ,.led her again and stated "abruptly" that she expected to have received a call from Ms Lynch i'earlier" as to whether she wished to accept the offer Ms Lynch asked Ms Arndt for I time to arrange a meeting with her-Union representative to discuss the job offer I 44 Ms Arndt was said to have replied that she needed to have the position filled immediately because the person who previously held the job was on sick leave Ms Arndt also I . 21 , informed Ms Lynch that if she was interested in the job, she was to arrange to come in in order to take a timed typing test Ms Lynch continued to request more time before making a decision so that she could meet with a Union representative She added, that she felt that the 24 hours a week work. schedule for the job might be insufficient to meet her needs Ms Arndt is supposed to then have asked her if she was proficient in WordPerfect and Lotus (also being requirements for the joq), and she replied that she was not 45 Ms Arndt then informed Ms Lynch tllat she appeared to be unqualified for the position "anyway " Ms Arndt is then supposed to have asked Ms Lynch to call her office later and arrange for a meeting to discuss the kinds of positions that she was qualified 'for 46 A meeting was arranged, at which time a discussion took place about Ms Lynch's qualifications and her work history The meeting was unproductive, and, Ms Lynch stated that her situation was not advanced as a result of it At that time she , ( stated that she rather than Josie Wallis or Randy R~lph should be working at the Distribution Centre Ms Arndt was said to have responded that she did not have any power to place Ms Lynch in the Distribution Centre, and added that this was because Roy Woodrow, the Director of Retail, was "like a ( brick wall 11 She then informed Ms Lynch that she had no . 22 chance of returning to the Distribution Centre during the 1993 season 47 There was some further discussion about the possibility of Ms Lynch working elsewhere, an example being at one of the shops operated by the Commission Ms Lynch asked Ms Arndt if she would have to work shifts, weekends and holidays if she accepted such a job, and Ms Arndt replied that this would be the case Ms Lynch then asked if it would be possible for her to get one day of f every weekend along with a Friday or a ( Monday, so as to be able to spend more time with her family She informed Ms Arndt that she needed some reasonably clear indication when a job would start and whether it would call for weekend work, because she had to make arrangements for ,child care She clarified her position by telling Ms Arndt that she would need a "couple of weeks" to arrange for child care She added that her child care problems were most acute when school was out She noted that she, would also require someone to look after her child if she had to work nights and/or week~nds She stated that Ms Arndt did not respond to her concerns, although she appeared to be "friendly " Ms Lynch added that Ms Arndt had, at some point during the course of their conversation, stated that, "She would be pissed off if she were me " r ) . 23 48 Ms Lynch then requested that Ms Arndt to notify a Union Grievance Officer in writing of future job offers that might be made, and Ms Arndt is supposed to have replied "Fine II 49 Ms Lynch stated that she was offered another position by Ms Arndt, in the course of a telephone conversation, a week or a week and a half after the above noted meeting The position was as a cashier or sales clerk at the Table Rock gift shop, the days off being Tuesday and Wednesday Ms Lynch was informed that she would have to start the job by Thursday, the : conversation taking place on a Monday afternoon SO Ms Lynch was .surprised that Ms Arndt had called/her directly and she felt "angry " This was because she expected Ms Arndt to call a Union Grievance Officer about any jobs made available to her Ms Lynch stated that because of the short notice she was unable to make child care arrangements and was unable to consider starting the job on the day specified She ,) then reminded Ms Arndt that she needed a "couple of weeks" to arrange for child care, and unless such time was made I available to her she would be unable to accept the job Ms Lynch described herself as being "frantic" at that time and she called her Union representative asking how she could be expected to start a job in two days Although she needed the job, she couldn't accept it because of her child care needs \ ( She felt that Ms Arndt understood her problem and the need \., - . 24 for two weeks' lead time before she started a job and was distressed when instead of doing what she appeared agreeable to doing, she "did the opposite" 51 She was unable to accept the position, for the reasons above stated, and did not speak to Ms Arndt again Any communication on her behalf was by a Union representative The job that had been offered to her as a sales clerk at the Table Rock gift shop was given to Sonia Delaney Ms Lynch stated that she was friendly with Ms Delaney, who called her in July of 1993 to inform her that she had been given the sales clerk position at the Table Rock gift shop which was to commence in September It was Ms Lynch's understanding that Ms Delaney I had some weekends off, based on her examination of a copy of the work schedule that Ms Delaney had given her 52 Ms Lynch was of the view that the fact that she had filed grievances represented a "big part" in her not being recalled I She regarded her not being recalled as being based on a negative animus against her held by management She added that ( in her relationship with management "Everything was a hassel for me " She stated that her ongoing and well known Union I involvement (some of which is described above) had apparently ~ had a adverse affect on her being recalled by the Commission for the 1993 season She added that she had been involved in a number of issues, stating that she was "on her seventh '~ . 25 grievance, now," and "did not think that they [management] wanted me " She believed that her not been recalled was as a result of management regarding her as a "trouble maker, II and was for the purpose of punishing her and as an object lesson to other seasonal employees who stood up for their rights 53 In cross-examination, Ms Lynch acknowledged that she had seen Exhibit 9, being the seniority list for seasonal D'istribution Centre employe~s, dated June 8, ..1992, when she worked as a seasonal employee at the Distribution Centre She also acknowledged that as a result of a settlement of her seniority grievance a change was made to show her having greater seniority than Ms Wallis, so that she was ranked 12 on the seniority list, with Ms Wallis ranking 13 54 She indicated that except for the change effected in her seniority ranking and seniority date, placing her above Ms Wallis, the remainder of Exhibit 9 was accurate She added, that this was the case to her "knowledge," and that she was "not aware of any other errors " I 55 Further in cross-examination, she acknowledged that the employees above her on the seniority list (Exhibit 9), being those ranked from 1 to 11, were entitled to be recalled to the Distribution Centre as Distribution Centre workers in preference to herself because of their greater seniority ) ,- . 26 56 She indicated that her "argument" with Exhibit 9 related to the fact that Ms Wallis was recalled for the 1993 season as a Distribution Centre Worker and she (Ms Lynch) was not 57 Further in cross-examination, Ms Lynch stated that during the 1991 and 1992 seasons, when she worked at the Distribution \) Centre, her duties involved unpacking, sending products for sale, breaking down quantities of product, which was the same work that Ms Wallis performed at that time 58 She acknowledged that in 1993 the job given to Ms Wallis did not involve the same type of work that she had performed before, as it included a significant clerical component However, she insisted that she should have been offered that - position in preference to Ms Wallis and should have been given notice that the job w,as available and the opportunity to demonstrate that she could carry out the duties and responsibilities of the clerical aspect of the position, with particular reference to the time typing tes~ Ms Lynch stated that if she had been given notice of the existence of the position, she could have taken a six week course Jhich would have enabled her to pass the time typing test, adding that she did have some typing skills In response to further questioning in cross-examination as to whether she had the skills and experience to perform the clerical job given to Ms Wallis, she responded that she did not know for certain but -- . 27 she would have "appreciated the opportunity Josie had " She ( , was particularly upset about the fact that Ms Wallis had apparently been given a certain amount of time to prepare for the time t'yping test, which opportunity was not afforded her She added that she did not feel that Ms Wallis was any more ! qualified than herself for the clerical position Ms Lynch referred to the opportunity given to her to apply for a clerical position at the Horticultural Centre, and the fact that she was given no time to prepare for a time typing test for that position 59 She acknowledged that there was more involved in the clerical position at the Horticultural Centre, where the incumbent had to be familiar with WordPerfect and Lotus When she learned , that she would have to have the latter two skills, she felt that it was not worth pursuing that position because she was unqualified for it Nevertheless, she felt that she was not treated the same as Ms Wallis In her case, she was given two or three days' notice to accept the position, whereas Ms .J Walli-s was "given time" She felt that the two positions were , different, as the only qualification for the clerical position at the Distribution Centre was that the incumbent be able to I type 50 words a minute She felt that her clerical experience in 1993 was similar to that of Ms Wallis, adding that she had 1 had 'some clerical experience when working at the Maid of the I ,- Mist, and she felt that her work history demonstrated that she . 28 was willing to work in new areas She acknowledged that she had never held a purely clerical position previously while working for the Commission or for anyone el~e 60 In cross-examination, Ms Lynch stated that after her conversation withMs Arndt relating to the clerical position at the Horticultural Centre, she had a meeting (on June 22, 1993) with Ms Arndt and Ms Millie Rakich At that time Ms Arndt mentioned a number of possible jobs that the Grievor might perform that were not then available but which "might come up " No jOb was offered to her at that time, but a general discussion took piace with respect to jobs that might come up, and she particularly recalled the possibility of a sales position becoming available At that time Ms Lynch again emphasized her need to settle the question of day care before she could agree to accept another job She emphasized that on June 22, 1993 the operations of the Commission were "in full swing, " and were operating on a seven-day-a-week basis In her view it was not unusual for employees at the Commission to work on a "Monday to Friday job," although she acknowledged that restaurants and attractions operated on at ) seven-day-a-week schedule 61 In further response to a question put to her in cross- examination as to whether she endeavored to make child care arrangements after the June 22nd, 1993 meeting so as to be . 29 prepared to accept a position offered to her~ she replied that she did not do so because she regarded her prospects for being given a job as being "slim" By that time she had been out of work for a year and needed a reasonable period of time to "check out" child care providers 62 About two weeks after the June 22nd meeting, she received a telephone call from Ms Arndt (around July 5, 1993) with '. respect to a possible position She told Ms Arndt that it was unreasonable to expect her to keep "someone on the line for babysitting" in the possible hope that a job would become available She said that she felt "good" about receiving a "possible" job but was "angry" because she did not receive sufficient notice and because the job did not allow for weekends off She was also angry because she wished Ms Arndt to call a Union grievance officer, in accordance with her previous instructions Nothing was resolved as a result of this conversation She believed that Ms Arndt had an obligation to obtain a job for her, that she should have been on her "side," and felt that she had been "unfairly removed I from (her] old job" as a Distribution Centre Work~r At the \ same time, if Ms Arndt had given her a sufficient amount of notice, she would have been in a position to to satisfy her child care needs and accept other jobs that might have been offered to her \ . 30 63 It was put to Ms Lynch in cross-examination that it was unfair of her to expect the Commission to "wait around during the busy season n She did not agree and responded that from her perspective it was unreasonable for the Commission to expect her to commit herself to taking a job when she didn't have anyone available to look after her child when she was at work She stated 'that she had made inquiries of her "son's girlfriend" about providing child care services but received a negative response She was asked whether she had considered \ making short-term arrangements for child care unt'il more permanent arrangements could be made She replied that she would not consider leaving her child with someone under a te~porary arrangement She added that she was insistent that Ms Arndt not communicate directly with her concerning possible job offers but with a grievance officer It was her view that at the "second stage" of her grievances she (Ms Lynch) did not have "personal control" of the matter, and \ management should deal with a Union representative She also stated that she wished all further communication to be ih writing because she had previously been "disappointed" in her dealings with management and wished to have something more concrete to rely on concerning management's position She was dissatisfied with the way that she had been treated by management and was of the view that what was being offered to her was the "opposite of what (she] wanted," which was a job at the Distribution Centre Specifically, she felt that she --------- --- --- - --- --.. -- ------~--~ ----..---- - - . 31 should have been offered Ms Wallis's job She emphasized that she felt pressured by Ms Arndt and regarded the other jobs being offered as affording her insufficient notice to e~able her to make necessary personnel arrangements and to have a full discussion of any offer with her family 64 Further in cross-examination she was asked whe~her it was her - position that the Employer should not have had regular employees performing the same work as herself as a seasonal employee at the Distribution Centre She responded that she regarded the actions of the Employer in bringing in regular employees, as above described, which resulted in her not being recalled in 1993, as having been taken with a view to getting rid of "certain people," including herself She felt that she had been "pinpointed" by management because of her past Union activities She added that "unfortunately people below [herself] suffered also II She regarded the Employer's ultimate goal as being to later replace the regular employees with seasonal employees and, through this device, be rid of her ;. ; 65 She did not dispute that Exhibit 11, which is the letter of interpretation regarding seniority and job security for season~l Distribution Centre Workers was agreed to betweeI} the parties, although it was neither signed nor dated i / - " . 32 Nevertheless, she indicated that she did not agree with it and, therefore, did not sign it -I 66 In cross-examination, she acknowledged that after she filed her grievance with respect to her ranking on Exhibit 9, the the matter was settled in accordance with her view of where she should have been placed on the list She acknowledged that as a result of her grievance all the other employees at the ~ Distribution Centre were granted seniority in the same manner as she had been 67 In cross-examination, she was asked if she had ever filed a grievance with respect to her allegations that she was being discriminated aga:i;nst because of her Union activities She / replied that she had been very active with respect to a number of matters in 1990, 1991 and 1992 that she classified under '\ I the heading of "Union activities," but had not then realized that she was being discriminated against because of them In retrospect she realized that a number of negative things happened to her as she became noticeably more active in Union activities, and that from the time that she commenced to work at the Distribution Centre things got progressively worse No formal grievance was filed by her until 1993 based on management's anti-union animus directed against her because she did not have a specific complaint that she could relate to management's response to her Union activities until then She / --- - \ . 33 elaborated on her answers by saying that she did not raise any matters with the Union in 1988 with respect to her perceptions of management animus directed against her because of her Union activities but did raise them in 1991 and 1992 Her earlier grievances did not relate to management's behavior towards her because of her Union activities but were specifically related to other issues Nevertheless, she concluded that management's treatment of her had, for Some time, been affected by a negative animus because of her high profile as a Union activist I 68 Exhibits 1 and 3, being the grievances with respect to her before the Board were drafted by M~ Rakich, who was the Chief Steward at the time Ms Lynch acknowledged that there was no ref~rence in the two grievances to her having been discriminated against because of her Union activities In response to further questions asked in cross-examination she acknowledged that she had always discussed her concerns about the Employer's negative response to her Union activities with Ms Rakich but did not know how to word her grievances to set ~ out such concerns She did not think about appropri!te wording for the grievances, and added that Ms Rakich had consulted with the Regional Union representative, Alan Edge, who suggested th~ wording to be used in framing the grievances She specifically noted that the words in Exhibit 3 "Jobs are being filled in a discriminatory manner" were included by him ( - -~ - 34 . She had previously spoken to Mr Edge about her being discriminated against because of her Union activities 69 Further in cross-examination, she expanded upon her claim that she was being discriminated against because of her Union /. activities by stating that those seasonal employees who had worked in the Distribution Centre, who had less seniority than she had, and who were also not recalled for the 1993 season ,-- may not have beep discriminated against because of their Union activities with the exception of Ms Rosenberger, and it was not her intention to assert that this was the case 70 She referred to the Commision's "policy" whereby a seasonal employee who was not recalled for any part of a season lost hiS/her seniority and his/her recall rights In addition, if a seasonal employee transferred to another department, he/she would have no recall rights to the his/her previous -~ department 71 She added that every Distribution Centre Worker shown on Exhibit 9 with a seniority rank~ng less than hers ~ad not been recalled to the Distribution Centre in 1993, with the exception of Randy Ralph and Josephine Wallis Ms Delaney Qbtained a job outside of the Distribution Centre She added that Barbara Caldwell (rank 15), Hope Little (rank 17) and Sheila Cameron (rank 18) "found" jobs elsewhere ----.-.. - . 35 72 At the close of her cross-examination she stated that some I \ Distribution Centre Workers had been offered and accepted jobs elsewhere within the Park in 1993 and were a,ble to retain their seniority This accommodation offered other employees was not offered to hersel f , which she attributed to the Employer's animus against her because of her Union activities \ 73 In re-examination, Ms Lynch stated that if she had had the same time given to Ms Wallis to qualify for the clerk ' s position at the Distribution Centre (approximately two months) , she could have passed the time typing test A two month period would have given her an opportunity to register for a typing course and practice her typing As evidence of her sincerity, Ms Lynch stated that when Ms Wallis told her that she had been offered the clerical position, she (Ms Lynch) commenced practicing her typing in preparation for a ~ test She obtained a book on typing from the library, which she used in her preparation < 75 Further in re-examination, she clarified an answer that she had given in cross-examination and stated that she had not decided that she was unable to perform the clerical position at the Horticultural Centre but it was Ms Arndt who informed her that she was not qualified for that job She added that when it became clear that she would have to have WordPerfect . 36 and Lotus skills, there was no purpose in her pursuing that position because there was insufficient time for her to acquire computer skills be.fore the job was to commence 76 Further in re~examination, she stated that even though she preferred to work only straight day shifts, she would have accepted variable shifts if given a reasonable length of time to make child care arrangements She noted that she had worked shifts at the Maid Of the Mist for a period of five years and had arranged for private day care at that time 77 She also not~d that if she wished to withdraw her child from day care it would be necessary to give the day care establishment two weeks' advance notice, as otherwise she would have to pay child care expenses until her child's space could be filled While working at the Distribution Centre she requested Mr Pidzamecky to give her two weeks' notice before any lay-off, which he did This accomodation enabled her to avoid the payment of unnecessary child care expenses that would otherwise have accrued She had also requested Jerry Taylor to give her adequate notice ot an impending recall so as to enable her to make necessary child care arrangements She contrasted this situation with the offers made by Ms Arndt that would have given her only a few days to accept and report for work --- --- -- . 37 78 Furthe~ in re-examination, Ms Lynch indicated that she regarded her activities in the Union to have accelerated in 1990 Prior to 1990 she had attended Union meetings, but becam~, more active during that year Although she was not a steward, she said that she performed many of the duties of the D C steward "without the title " She advised employees in the Distribution Centre with respect to their problems with the Employer and endeavored to "steer them in the right direction " 79 In re-examination, she reviewed her Union activities in 1991 that she believed contributed to the Employer reacting negatively towards her She referred to her role in the creation of a petition which raised certain health and safety issues She stated that I "felt good" when the grievance she that was filed was successful However she now feels that she "lost" because of the subsequent effect that her)actions had ~ on her not being recalled to ,the Distribution Centre 80 In re-examination, Ms Lynch referred to Exhibits 11 and 12 ) She stated that Exhibit 12 was prepared at the !request of Debbie Whitehouse 81 In 1992 she was approached by Bob Pidzamecky and was told that she would not be paid for the Easter holiday She then checked her employment records after calling Personnel and was ~ ~ . 38 satisfied that her correct seniority at the Distribution Centre was March 28, 1988 She then requested that she be paid for the holiday Personnel was said to have called Payroll, cmd she was informed that Payroll would see that she was paid for the holiday She proceeded to work the next day and approachedMr Pidzamecky and informed him of her correct seniority date He was said-to have insisted that she had been borrowed for the first year of her employment at the Distribution Centre and that "he would decide when a person becomes a permanent staff member" at the Distribution Centre Kate McArdle, a Union steward proceeded to Mr Piqzamecky's office at his request where the matter was discussed without Ms Lynch being present Ms McArdle then advised Ms Lynch what had taken place at the meeting and what Mr Pidzametky's position was It is this incident that led to the filing of the the seniority grievance above referred to She added that Exhibit 12 was a Union draft which was prepared with a view to resolving Ms Lynch's seniority complaint and that it was prepared prior to her grievance being filed She believed that Exhibit 12 had been given to Debbie Whitehouse by herself and Sonia Delaney -, ! Evidence of Ms. Rosenberaer Ms Rosenberger testified as follows I - \ . 39 1 She was hired by the Commission on June 23, 1986, and first worked as a counter person at the Victoria Park restaurant She referred to her responsibilities with respect to the preparation and ordering of ~ot and cold foods and serving "busloads" of customers, filling the beer refrigerator with beer and wine and filling coffee machines etc She worked during the 1986 season to the end of 1987 2 She worked full-time hours until approximately October of 1986 The rest of the year she worked part-time until she was-/ laid-off In 1987 she also worked as a counter person at the Victoria Park restaurant ~ 3 In 1988 she worked part~time at the Victoria Park restaurant from January to May She then moved to the Kingsbridge Park ) confectionary stand where she worked until September Occasionally during that time she was called back to work at the Victoria Park restaurant as a counter supervisor While at Kingsbridge Park she was a cashier, short order cook, stock person and counter person She worked full-time hours from the , I end of the Labor Day weekend until approximately itheend of the year I 4 In 1989 she returned t6 work at the Victoria Park restaurant in January and worked there part-time to May From May to -~-- . 40 September she worked at the Kingsbridge Park facility performing the same functions as she had in 1988 5 She wished to "better" herself by seeking another position and submitted an application to transfer to the People Mover in September of 1989 however she was unsuccessful inqbtaining a transfer 6 She submitted another transfer request on January 16, 1990, in this case to the Distribution Centre as a Worker When her / request was accepted she commenced working there on February , 12, 1990 At the Distribution Centre she checked purchase orders with respect to incoming stock, and performed ticketing functions in the same way as described by Ms Lynch She worked from February 12th to the beginning of July of 1990 when she was laid-off for two weeks She was recalled as a part-time employee at the end of August She understood that her transfer to the Distribution Centre was permanent, based on conversations with Mr Pidzamecky 7 She returned to the Distribution Centre on a par4-time basis in January of 1991 and worked full-time hours from May to July of that year When she was not recalled to work in 1992, she went to the Distribution Centre and spoke to Messrs Pidzamecky and Roach She was informed by them that merchandise was coming in rather "slowly" and that they had . 41 all the people they needed at that time She was also informed by Mr Pidzamecky that much of the merchandise that had previously been ticketed by Workers at the Distribution Centre was now arriving already ticketed She asked whether she might be recalled to work and was told "Not at this time " 8 She continued to attend at the Distribution Centre in order to discuss her employment prospect~ with Mr Pidzamecky in the hope that work might be made available for her She also went into the work areas at the Distribution Centre where she concluded that there was actually a "lot of work" to be performed because she could see a large quantity of merchandise on the tables 9 Mr Pidzamecky told her (around the end of March 1992) that she was not going to be called back to the Distribution Centre for that year She was not satisfied with the situation and went to see Ms Whitehouse at the Human Resources office and explain her dilemma Ms Whitehouse said that she would see what she could do for her, and her name was placed on the surplus list around the middle of April 1992 She ~gain spoke to Ms Whitehouse, who repeated that she would see what she could do for her Ms Whitehouse later called her and offered her a janitorial position, a dishwasher's position and a position at the bus garage, which latter position she accepted - . 42 . 10 As in the case of Ms Lynch, Ms Rosenberger frequently stated that she could not see why she had not been recalled to the Distribution Centre in 1993 as a D C Worker, and it was clear that that was the position that would have been most suitable to them 11 The bus garage position she held in 1992 was a temporary one, and she referred to Exl:1ibit 13, being the seasonal service contract relating to that position At the bus garage she vacuum cleaned buses, tractors and trailers, cleaned windows, performed dusting, polishing, cleaned all rubber outside the buses, tractors and trailers, checked the override to make sure the brakes were on, and performed other related duties 12 She found the work at the bus garage very physically taxing and "difficult to deal with," but continued to work there until the end of August, 1992 when she injured herself (cracked ribs) while cleaning the rear windows of a trailer As a result of the injury she received Work~rs' Compensation benefits ~ ! 13 She was not recalled to work in 1993, although the Employer was made aware that she was physically able to do so She attended at Human Resources and at the Distribution Centre At Human Resources she furnished information that she was able . 43 and ready to return to work and that she held a drivers / licence She spoke to an employee (M,ary) and thought that she also spoke to Ms Whitehouse Their responses to her requests for work was said to be non-committal "That's fine" 14 In January of 1993 she went to the Distribution Centre and spoke to Messrs Pidzamecky and Roach, requesting that she be recalled to work there Mr Pidzamecky asked her if she had ) worked there in 1992 and she replied that she had not and reminded him that he had informed her there was insufficient work for her to be recalled that year He then told her "Well Linda, if you didn't work here last year then you're out the door " She stated that she had no idea why he would make such a statement 15 She was asked if she knew why she had not been recalled to the "*', bus garage in 1993 and answered "They didn't want me there," attributing this information to Bob Mc I 1 veen the Assistant General Manager of the Commission Such a statement was said ,-, to have been made on August 11, 1993 She addec;i that Mr i McIlveen did not say why she was not wanted at the bus garage 16 She received a telephone call from Human Resources (Mary) in \ July of 1993 and was offered a janitorial position She stated that she did not accept it because she 'had no experience in that kind of work She then asked Mary if there was any work \ . 44 available for her in a position where she had experience Mary replied that none was available and that that was the only job that the Commission had to offer her at that time When Ms Rosenberger informed Mary that she had no experience in janitorial work, Mary is to have said " I'll take that as a refusal " Ms Rosenberger then repeated her statement that she had no experience in janitorial work and Mary said "Goodbye " 17 Ms Rosenberger believed that a number of employees had been hired to work in the Park in 1993 who had less seniority than herself and that some of them performed work that she was qualified to do 18 Her seniority date at the Distribution Centre as a D C Worker is February 12, 1990 She is shown as employee ranked No 19, being the ,last employee on the list (Exhibit 9) 19 She referred to a number of employees who had less seniority than she had whose };)ositions she could fill Christine Helmeczi (counter, cashier) i Rachel Benson (counter) ; Karen f Moore (cashier) ; Melissa Bishop I (co~nter, cashier!) 20 She also referred to certain employees in Retail Operations who had less seniority than she had and who were recalled in 1993 to positions she could perform Mary Jane Mann ( sales ~~- - l . ( 45 clerk) ; Jane Wickabrod (cashier) ; and Susan Kohinski ( cashier) 21 When she first started to work at the Distri,bution Centre she did "not feel [she] had any problems" with management However, a few weeks after she started Mr Pidzamecky asked her if she minded if he went over to Human Resources at Oak Hall to check over her records because he was "getting negative feedback from Victoria Park " Ms Rosenberger said that she had no objections to him doing so, but asked him what his- problem was He is supposed to have replied that he received a call from someone in Victoria Park informing him that she had a-habit of coming in to wbrk late ahd taking time off work "and so on " Ms Rosenberger informed him that she had never had any problems with respect to lateness or attendance She testified that she had excellent "performance appraisals" and that Mr Pidzamecky gave no specific examples of the general complaints that he referred to 22 She was concerned with Mr Pidzamecky's statements and took them up with him at the lunch break on the day wheh he raised them, however, she found his responses unhelpful "He really did not answer me " She added that Mr Pidzamecky did not I raise this matter again r . 46 23 She spoke to Mr Pidzamecky again in March of 1990, at a meeting in his office after being summon~d there by Mr Roach who told her that Mr Pidzamecky wanted to speak to her When she entered the office she asked Mr Pidzamecky if there was a problem with her work and he replied that there was not He t,hen asked her if she was "happy" at the Distribution Centre and she replied that she was and asked him "What seems to be the problem?" Mr Pidzamecky replied "If there were was a problem would you tell John [Roach] or myself?" Ms I Rosenberger replied "If it had anything to do with management - yes; if/not - no " 24 Mr Pidzamecky then said to her "If I touched you on the shoulder you could have me charged with sexual harassment " Ms Rosenberger responded "I don't think so " Mr Pidzamecky is thert said to have stated "I want you to know my position I can hire and fire whomever I choose " 25 Ms Rosenberger stated that at the time she felt that her "job was threatened," and asked Mr Pidzamecky "Does this mean f that I'm fired?" Mr Pidzamecky answered "No - I tiust wanted you to know my position " Ms Rosenberger stated that she then said "I am very well aware of your position -,will that be all?" Mr Pidzamecky is then said to have responded that there was nothing further that he wished to say -./ . 47 26 Ms Rosenberger stated that there were other things said during that conversation, but she could not recall them, as they did not "pertain" to the Distribution Centre and she did not "pay attention" She had no idea why Mr Pidzamecky said what he did to her, as she, as far as she knew, had no work related problems 27 She referred to another meeting with Mr Pidzamecky held around April of 1990 In attendance, in addition to herself and Mr Pidzamecky, was a supervisor, Jerry Taylor The meeting was said to be about a co-worker who drove to work " with Ms Rosenberger when she worked at Victoria Park Apparently this situation continued, and the co-worker went "back and forth to work" with her from around the time Ms Rosenberger started to work for the Commission Because of \ "circumstances," she did not wish to continue to pick up the fellow worker because she (Ms Rosenberger) did not wish to be late for work Mr Pidzamecky askedMs Rosenberger whether she and the co-worker were friends Ms Rosenberger stated that they were not friends outside of work Mr Pid-zamecky is 1 said to have asked Ms Rosenberger "She doesn't ride to work with you any more?" Ms Rosenberger replied that she did_not Sl;1e then said to him "What is this all about? I'm not responsible for what other people say or do I'm responsible for my own actions " She then asked him if "that was all" and he responded "Yes " She had no idea why she had been called ~ ~-_._--_._.- - ---..- --- --- -- . 48 to the office on that occasion and added that she was "upset" as a result of what had transpired there and felt "harassed " She believed that "a lot carne back with [her] from Victoria Park " She added that when she was at Victoria Park she had brought up a number of health and safety issues relating to clutter, including clutter in the dishwashing area, and on the way to the elevator where food was transported Her concerns ) were raised with supervisors at Victoria Park whom she advised that the situation created an unsafe work environment She had also informed supervision at Victoria Park that a cart had been left behind the stearn table apd that grease had not been cleaned from the floor At that time she was accused by two supervisors at Victoria Park, identified as Sherril Edy and , "Cita" of "causing trouble " The two supervisors were said to have labelled her, in an unflattering way, as the "Union woman " 28 Spe also referred to her high profile involvement, in 1991, in the washroom petition and classification grievance issues, above referred to She added that she withdrew her classification grievance in August I she was of 1991 because afraid of losing her job if she did not do so, because it was well-known that she supported the Union position in that case ) and was a Union activist in connection with the washroom issue, where she had vociferously presented the employees' position at a meeting held to discuss the issue She had _. _n _ - - -...- ~ . 49 openly stated that 90 per cent of the women at the Distrib,ution Centre required extra time in the washroom at certain times She stated that Mr Dick, on behal f of the Commission, appeared to be a II little upset with me " She added that II I believe he was not amused " \ 29 Prior to the commencement of Ms Rosenberger's cross- examination, the parties agreed to certain facts I 1 The Maid Of The Mist gift shop closed on ,or about October 20, 1991 and opened on April 11, 1992 In late that gift shop \ and 2 1992 closed on October 25, reopened on April 9, 1993 3 The Aero Car booth closed on or aqout November 1, 1991 a~d reopened on May 27, 1992 ; ( 4 In 1992 the Aero Car booth closed on November 14 and reopened on May 5, 1993 ( i 5 II Low" season staffing would have involved three or four employees 6 During the winter months the manager would be the sole employee of the Aero Car booth -- -- - ------ --- ---..-- . 50 7 In connection with several regular employees named during the evidence given by Ms Lynch, the parties agreed that Tracy '- I O'Brien was regularly employed at the Maid Of The Mist gift shop and was employed at the Distribution Centre from November 5, 1991 until April 1, 1992 8 In 1993 Ms O'Br:i,.en worked at the Distribution Centre from January 11, to April 2 9 Asima Ahmed, one of the four full-time employees referred to in Ms Lynch's testimony, was regularly employed at the Maid Of The Mist and was employed at the Distribution Centre from November 5, 1991 to April 6, 1992 10 In 1993, Ms Ahmed was employed at the Distribution Centre from January 4th to May 21st 11 Another of the employees referred to, Terry Colic, was regularly employed at the Aero Car and was employed at the Distribution Centre from November 6, , 1991 to May 14, 1992 She was also employed at the Distribution Centre from January 6, 1993 to May 13, 1993 . 51 12 Elizabeth Caruso, one of the/four regular employees, was usually employed at Table Rock and worked at the Distribution Centre from February 1992 to May 14, 1992 I Mr Riggs, counsel for the Commission, although he agreed with the accuracy of the above facts, did not agree that they had any relevance to the determination of the issues before us 30 In cross-examination, Ms Rosenberger agreed that she had worked in 1992 in the People Mover area She acknowledged that she had gone to the Distribution Centre to speak to Mr I Pidzamecky who) informed her that business activities were slow ~ there and that he had all the employees that he needed at the time and did not require extra help She stated that she went to see him on several occasions (twice .a month) and also went into the work areas of the Distribution Centre on one occasion and observed many "other people working whom she hadn't seen before " She also noticed that there seemed to be a lot of I work to be done She questioned Mr Pidzamecky about the situation and was informed that most of the merchandise coming 1 in to the Centre was already ticketed and therefo!re no extra help was needed at that time to perform the ticketing function She continued to pursue the matter and approached Debbie Whitehouse f0r assistance in finding work for herself , / f . 52 31 She responded to a question put to her in crosS-examination by emphatically stating that in her view she should have been recalled to work at the Distribution Centre in 1992 She / stated that she was "in retail" but instead was placed in "transportation " 32 In cross-examination, Exhibit 9 was put to her and she agreed that her placement as the last person on the seniority list among the Distribution Centre Workers was correct She also acknowledged that a number. of employees with greater seniority than her, as shown on the list, did not work at the Distribution Centre in 1993 33 She acknowledged that at the end of July 1993 she was offered a janitorial position by "Mary" of Human Resources, but reiterated her position that she had never performed that kind of work in the past, and took the position that she could not ~ be regarded as having turned down a job offer for that position because she could not likely perform jt based on her past expeience She differentiated between refusing a job offer and indicating that she could not do the woik required because of lack of experience She acknowledged that she could have learned to perform the janitorial job if she had been given time to do so as well as some training She also acknowledged that when she worked at the bus garage in 1992 some of her dutie~ were of a janitorial nature When it was - - -~ -- -- - - ------- . 53 put to her, in cross-examination, that many of the duties that she performed at the bus garage II sounded janitorial," she responded that she could have performed many different kinds of work if she was "properly trained " 34 When pressed further in cross-examination, after stating, once \ again, that she did not accept the janitorial job because it represented "something that she had not done before," She 'maintained that she did not view the job that she performed in the bus garage as being in any way "janitorial II 35 She acknowledged that she had requested that the Commission's Human Resources Department communicate with the Union and not with herself should the Employer wish to suggest alternative job possibilities for her in 1993 Whenever representatives of the 'Employer called her, she in turn called Ms Rakich If Ms Rakich was unavailable, she called Lester Yearwood a Union representative in Toronto because she wished to have the J benefit of his advice as to what she should do with any option given her f ! 36 Further in cross-examination, she acknowledged that Debbie Whitehouse~ had informed her that she could work at the people Mover in 1993 AI,though she agreed to the suggestion, she could not recall the date when she was given that information -- - , . 54 37 She stated that her decision not to work at the People Mover in 1993 was based on the excessive physical demands of that (" job She acknowledged, that she could perform the work, but indicated that it was "very hard" work - 38 It was put to her in cross-examination that she had indicated that she was not willing to work in food services She apparently related the question to the circumstances that existed in November of 1989 when certain family matters and advice received from the R C M P caused her to conclude that she should maintain a "low profile " The reference to advice received from theR C M P was not elaborated upon She added I that she found it "very stressful" to work with the public 39 It was put to her in cross-examination that Ms Whitehouse had offered her a jOb in 1992 as a short order cook, which work would not require her to deal with the public She answered that she could no~ recall. if she had received such an offer She added that by 1993 she was able to work with the public but preferred to work at the Distribution Centre , I i 40 She denied that either herself or the Union had made it difficult for the Employer to find her a job iq 1993 . 41 She repeated her earlier assertions that her not being recalled to the Distribution Centre in 1993 was a form of I J I ,/ '- . 'I . 55 retaliation for her Union activities Referring again to the washroom incident, she acknowledged that other employees were involved ill protesting the Employer's actions She also agreed that a number of other employees were active in the classification grievance referred to by her ! , 1 '42 It waS put to her in cross-examination that Mr Pidzamecky had just returned from a seminar on sexual harassment at the time of the March 1990 incident, when he told her that she could charge him with sexual harassment if he put his hand on her shoulder, and that his statement could be viewed in that context She agreed that the meeting could have been proximate to the seminar referred to However, she rejected the suggestion put to her that Mr Pidzamecky's comment did not \ suggest that he had done "anything wrong," and stated that she was surprised at his comments because she had no idea what ! bearing they had on'her work at the Distribution Centre 43 It was suggested to her that at that time employees, including herself, were called into Mr Pidzamecky's offiC'e in small - I groups to go over what kind of conduct amounted to sexual harassment Ms Rosenberger stated that as far as she was concerned she had not been called in for that purpose, as she was alone at the time However, she agreed, when it was p~t to . her, that Jerry Taylor was also there She had earlier identified Jerry Taylor as a supervisor, but clarified this by ---- . 56 " saying in addition being supervisor he that to a was a bargaining unit employee When pressed further as to Mr Taylor's status, she stated that he may have been a supervisor at the time but she was not sure if that was the case 44 \ It was put to Ms Rosenberger that none of the earlier conduct identified by her, that she now considered as having caused the Employer to behave in a discriminatory manner toward her refusing \ hire in subject of by to her 1993, was the a grievance at a time proximate to a specific incident She stated that her inaction at the time was as a result of a statement made to her by a Manager ,at Victoria Park whose first name was Hilda Ms Rosenberger could not remember the manager's last name but thought it might be Weisel In 1989 "Hilda" was supposed Co have told her that any employee who filed a..grievance would no longer be an employee Based on her perceptions of an anti..,union animus displayed by representatives of management, it was this threat that dissuaded her from filing a grievance when each instance of that animus was manifested - ! i 45 A number of questions were asked of Ms Rosenberger, in re- examination, to establish her understanding of the janitorial , work that she would be called upon to perform in the position offered to her in 1993, and the relationship between that work and the work she had done at the bus garage She understood - ---.- --- - . 57 the janitorial job to involve cleaning toilets, floors, mirrors, sinks and "whatever debris" was left by the public She compared this work with her work at the' bus garage of cleaning windows, vacuum cleaning, polishing, cleaning rubber with "Armorall" and checking overrides She regarded the two ( jobs as being lltotally different " 46 In re-examination, she stated that she had a two week training period for the work she was to perform at the bus garage but had not been informed that she would be furnished with any (~ training period for the janitorial position 47 In re-examination, she stated that it was only in 1989 that (. . She never indicated, she was unable to work 1n food serv1ces after that year, that she would be unable to work in food services and could have done so in 1993 She had had no discussion concerning working in food services in 1992 with '\ any member of management 48 In re-examination, she again referred to the meeting with Mr i Pidzameckyat which time sexual harassment was discussed and stated that she felt she was being personally "centred out" by him As far as she was aware , no other employees from the Distribution Centre were called into his office and asked the kind of questions that were put to her She reiterated that ~ she had no idea what the purpose of the meeting was and, when j (' ------------ I I . 58 she was called in, assumed that it was because she was thought to have done "something wrong" and that Mr Pidzamecky was not satisfied with her work She added that she had no idea why Jerry Taylor was in the office at the time ) I Evidence of Mildred (Millie) Rakich Ms Rakich was called on behalf of the Union and testified as follows 1 She is a seasonal employee and has wor~ed for the Commission for seven years and has been a Union officer for approximately four years At the time o~ the grievance she was the Chief Steward for the Local 2 In 1988-1989 she worked at the Maid of the Mist In 1989, when renovations commenced at the Maid of the Mist, she commenced to work at the Princess Elizabeth building When the } Commission started to demolish that building, she and other employees were moved to the Table Rock facility (around f Thanksgiving of 1989) She remained at Table Rolck, and on August 23, 1990 moved to the new Maid of the Mist building which had not yet opened for business She worked there as a cleaner and performed stocking and other duties to get the facility ready for the opening which took place around Labour Day She worked at the Maid of the Mist until inventory taking ---- ----- --~ -- - . 59 time on October 28, 29 and 30, 1990 She was then laid-off for two weeks Upon being recalled she worked until April of 1991 3 She worked until about the end of October 1991, when the Maid of the Mist building closed for the winter \ 4 In the spring (April) of 1992 she was called back to work and worked until the end of October when she was lai(j-off for the entire winter She recalled that the building was open "for a while" on weekends only, but was not called in to work at that time She added that she had heard that the Manager of the Maid of the Mist was working there during the week in case any tours came by, at which time he would let them in "because business was slow " 5 Around Christmas of 1992 she understood that the Maid of the Mist building closed because of lack of business She was called back to work around April of 1993 and worked to September 18, 1993 From September 18, 1993 to the present' she has worked at Table Rock t ! 6 In her capacity as Chief Steward she attends Employee Employer Relations Committee meetings She also attends second stage grievance meetings, where she is responsible for processing the grievance on behalf of the Union -.-.-.- ~ - . 60 7 She stated that atE ERe meetings issues affecting the Union and the Employer are discussed, and she gave, as an example, problems that may arise where employees are not given their coffee breaks There is an expectation that an effort will be made by the members of the Committee to clear up such problems Other matters discussed at meetings include washroom breaks, when employees on lay-off may be returned to work and matters relating to job postings 8 Grievances were sometimes discussed at E ERe meetings 9 Ms Rakich's testified that seasonal employees remained on the seniority list and were entitled to be recalled until such time as they were not recalled for an entire season The Union was concerned about how the Employer viewed the status of both Grievors in 1993 I' 10 The Board ruled that it would hear evidence with respect to the discussion at the B B R C meetings with respect to the Grievors f l 11 Ms Rakich referred to a meeting held in approximately March of 1993 where a discussion took place relating to certain issues, one of which related to the status of laid-off ~ employees The President of the Union, Mr Atkin, asked Debbie Whitehouse what the Employer was going to do about employees ---- \ - . 61 who we~e laid-off and were not recalled to work Ms Whitehouse is supposed to have replied, "in a casual tone of voice," that the Employer could, if it wished to""keep them on the street " She then added, 1 ooking at Mr Atkin "Couldn't I Rob?" Mr Atkin is supposed to have replied "I guess you can " 12 Ms Rakich stated that she was "shocked" by Ms Whitehouse's statement and asked "Why would you want to?" adding that she knew the employees were good employees with good wor~ retords and were "longstanding employees who the Employer should be pleased to have in it's employ" Ms Rakich indicated that there were other loacations in the Park where those employees could be placed 13 Ms Rakich, along with Ms Rosenberger, met with Ms Whitehouse I discuss Rosenberger's on March 17, 1993 to Ms I employment status She made notes of the meeting two or three days afterwards, and relied on them as an aid to refreshing her memory at the hearing , ! , 14 The meeting was called after Ms Rosenberger received a letter from Mr McIlveen (Assistant to the General Manager) on March 9, 1993 The Union wished to determine the status of Ms . Rosenberger, and an appointment was made with Ms Whitehouse - ( for that' purpose . 62 15 At the meeting Ms Rosenberger stated that Mr Pidzamecky had told her that she was n out the door n Ms Whitehouse indicated that she ~as unaware of such a statement having been made Ms Rakichthen stated that this would probably have been pointed .\ out at the stage two meeting if one had been held At this r point Ms Whitehouse was said to have appeared to be a "bit angry" and to have said "that was then and this is now " Ms Rakich then addressed Ms Whitehous and stated that she found it strange that there had been no second stage meeting and it was n~cessary to now talk aboutMs Rosenb~rger , being "out the door" and trying to find out about her status 16 In response to a question as to whether there was a discussion about placing Ms Rosenberger on the surplus list or on the transfer list, Ms Rakich replied that Ms Whitehouse said that Ms ,Rosenberger was already on the surplus list Ms Rakich asked to see the surplus list and was told that she could not do so She then asked how many people were on that list "One - two - ten?" She wanted to know where Ms Rosenberger was in order to assess whether she wa~ likely to receive a job offer Ms Whitehouse is supposed to have stated that some people called the surplus list "B S " and that a meeting with respect to it was "nothing but a wasteland " Ms Whitehouse was also said to have stated that the surplus list was none of the Union's business, and added that the reason ----- - - ~- & . 63 for maintaini:ng a surplus list was because the Employer wished to find alternative positions for certain long term "good employees," if possible 17 Ms Whitehouse is supposed to have added that she would have to consider the transfer list first and noted that Ms Rosenberger had put in for a transfer to go to another department Ms Rakich asked Ms Whitehouse if she could. see the transfer request which had been prepared in December of 1992 Ms Whitehouse was said to have arranged for one of the employees in her office to bring it'in Ms Rakich stated that Ms Rosenberger's transfer application was reviewed at the meeting and noted that among the list of jobs Ms Rosenberger had entered were counter, cashier pantry, counter in the food services department Ms Whitehouse-is supposed to have said that whoever was handling the surplus list in the Human Resources department would have to consider the transfer list first Ms Whitehouse also explained that disabled employees would have to be considered for jobs to accommodate their disability after which other employees on the trapsfer list I would have to be considered before going to the surplus list 18 Ms Whitehouse then asked Ms Rosenberger if she would consider taking a jOb at the bus garage if it was offered to her Ms Rosenberger replied that this might be "a little / _un ________ __ , . 64 difficult," but if that was all that was available then she would accept it 19 Ms Whitehouse said that she would speak to Bob Pidzamecky and get back to Ms Rosenberger to inform her if, in fact, there was no more work for her at the Distribution Centre The last comment made by Ms Whitehouse at ttie meeting was "that Ms .. \ Rosenberger and other g~rls l~ke her should go out and start looking for other work" Ms Rakich stated that she found this comment "disturbing " ( 20 Ms Rakich was asked if there were any discussions with Bob McIlveen at a meeting in March concerning Ms Rosenberger's status Ms Rakich stated that such discussion took place at an E ERe meeting At that time the the subject of placing Rosenberger's ,name on the seniority list arose This was in the context of trying to get the seniority lists "in proper 'order of seniority " Ms Rakich noted that Ms Rosenberger had' been placed on the transportation list and was upset because she (Ms Rosenberger) had only a temporary transfer to the bus f 1 garage and should be on the retail sales seniority list because she was from the Distribution Centre The Union thought that she should be returned to the Distribution Centre which "would place her on the retail list " Ms Rakich stated that she raised her concern with Mr McIlveen as well as with others at the meeting Mr McIlveen was supposed to have j - - . 65 replied "Maybe you wouldn't want her on there " He is supposed to have added "Maybe she should be on ,the transportation list because the Distribution Centre would probably close down " Mr McIlveen stated that he had "plans for [Ms Rosenberger] " He was asked by Ms Rakich what those plans were, and he replied "I just have got plans for her," ( without any further explanation The discussion went "back and forth" as to whether Ms Rosenberger should be on the transportation or retail seniority lists, with Ms Rakich l taking the posit~on that she should be on the retail list, adding that she "made this clear to everyone " 2:). Ms Rakich referred to a meeting held either on June 22 or 29~ 1993 (it appears that it was on June 22nd) , between herself, Barbara Arndt and Ms Lynch This meeting was said to have been held for the purpose of examining Ms '-.. Lynch's employment status and of exa~ining what jobs she could do and what jobs she could be considered for within the Park 22 She stated that when she arrived at the meeting wit~ Ms Lynch there was a good deal of discussion as to who was resppnsible for calling it Ms Arndt, who stated that the meeting had been called by Ms Lynch, was said to have appeared to be a "little bit upset" when Ms Lynch said that she (Ms Arnd t ) had called the meeting Ms Rakich testified that she then stated that whoever called the meeting, at this point the - -.- -- -~- . 66 Union wished to know if there were any job offers to be made, as it would like to have "some work fo~ (Ms Lynch] to do " Ms Arndt indicated that there were, no job offers available at that time and that it would be an good idea to talk about the kinds of work that Ms Lynch could do and had experience in ~ performing Ms Lynch is supposed to have said that she was "a little bit upset" and felt that management didn't want her, referring specifically to management at the D C centre Ms Lynch stated that she did not know why management did not want her at the D C centre as she was a good worker and felt that she should~have been recalled there She asked Ms Arndt if she,could help her out in that respect Ms Arndt is said to have then tilted her chair toward the wall and said that talking to Ms Lync~ was "like talking to a brick wall " Ms Rakich, based on what she described as "those comments," took Ms Arndt to mean that there was no hope of Ms Lynch being recalled to the Distribution Centre Ms Arndt said that Mr Woodrow, to whom Mr Pidzamecky reported, could do what he I wanted to do and no one could stop him Ms Lynch then stated that in her view she should still be at the Distribution Centre 1 23 A discussion then took place. (1 ) concerning other possible positions that Ms Lynch could fill based on her qualifications; and (2) about her long work history for the Commission where she had pe.rf'ormed many other jobs, and (3) - ---- ---- - .- - . 67 about her belief that there was still a place for her in the ) Park I 24 Ms Lynch was also supposed to have informed Ms Arndt that if she was offered a job she would need around two weeks to arrange for child care Ms Lynch added that the reaSon why she wished to work at the Distribution Centre was to have more time with her family and she asked that she be given Friday and Saturday or Sunday and Monday off for this purpose As Ms I Lynch spoke, she was said to be visibly upset and frustrated Ms Arndt then said that she had "sat in Jackie's [Ms Lynch's] chair before as well as that of [Ms Rakich] " She then told Ms Lynch that if she were her, she would "really be pissed off" It was not too long after that that Ms Lynch was said to have stated that she was "used to the lifestyle" that she had led when she wrked at the Distribution Centre She particularlz referred to the benefits to her family life based on her work schedule when she worked there, and she emphasized that she felt that she should be "back there " j 25 Referen~e was made to Exhibit la, being an updated version of the Retail Operation Seniority List, dated April 12, 1994, wi th respect to seasonal bargaining unit staff Ms Rakich stated that it represented an updated version of an earlier seniority list that had been agreed to between the parties in the fall of 1993 She stated that she had been involved in the -~--~--- ------ . ~ 68 preparation of the earlier list and that the parties met and agreed to a jointly prepared seniority list Before agreeing to the final list, there were various drafts prepared In response to a question as to whether the April 1994 list was agreed to by the part~es, Ms Rakich stated that she could not agree with the suggestion "one hundred percent " She agreed \ ' that the names of the Grievors did not appear on that list 26 Ms Rakich was asked if she was part of a group made up of the Union executive (with herself being present as Chief Steward) , which met with the Employer's representatives to pregare the seniority list in the fall of 1993, which led to an agreement - being entered into She replied that she recalled discussions with respect to the preparation of such a list 27 She was asked whether the Union entered into such an agreement in the fall of 1993 without the concurrence of herself and replied in the affirmative She acknowledged that the Union had executed the document but that she had not agreed with the list She acknowledged that three members of the Union l executive (President, Vice-Presic;lent, and Secretary) had executed the agreement, but added that she did not give her "okay " In response to the suggestion made to her, in cross- ) examination, she that one of the "things" that she disagreed with in the 1993 seniority list was the absence of the Grievors from it -~-~-~ . . 69 28 Ms Rakich was asked whether Ms Lynch "turned down the [1993] offers" on her advice Her answer was not fully responsive She stated that Ms Lynch asked her for advice before deciding to accept or reject any position offered to her She then stated that this may have been the case Ms Lynch had asked for advice concerning a j,ob offer for a position at the School of Horticulture for 24 to 25 hours a week,and added that Ms Lynch was concerned that 24 hours a week would not be sufficient to place her within the bargaining unit Ms Rakich then said that she believed that Ms Lynch may have raised this concern When asked if it was she who had raised this concern, she'answered that it was a possibility, but she could not recall whether this was the case 29 She also believed that Ms Lynch had been offered a job as a sales clerk at Table Rock She had advised Ms Lynch that she ( could take the job if she wanted to, but Ms Lynch stated that she couldn't because she wa's not able to arrange for .p.ay care ) before the job was scheduled to begin f ! 30 She was asked if she had encouraged Ms Lynch to accept the job, and replied that she did so subject to Ms Lynch being able to arrange for day care She acknowledged that it was sensible to encourage Ms Lynch to accept the job and to take steps to arrang~ for day care / . 70 ;31 She was asked, in cross-examination, if she attended a meeting on the 22nd or 29th of June, 1993 wi th Ms Arndt, and she \ responded that she had done so She was' then asked how she was able to recollect dates in a particular week and not able to recall other dates She responded "What dates?" She was prompted by being told that it was the date when the final. agreement on the seniority list was entered into She replied that she could not recall that date because she might not have been present at that meeting 32 In response to a question asked in cross-examination, she stated that the sales clerk job at Table Rock might have been offere? to Ms Lynch at the meeting of the 22nd or 29th of June 1993 33 In cross-examination, Ms Rakich was asked whether one of the purposes of the June 22nd meeting was to allow Ms Arndt to discuss with Ms Lynch what the Commission might be able to do to get her a job in the Park Ms Rakich did not respond directly to the question but stated that Ms Arndt had , discussed the status of three employees ( From her answer we took it that she was referring to the Grievors and Sonia Delaney When pressed further as to whether the sales clerk job, above referred to, was discussed at the meeting, Ms Rakich replied that it could have been, as Ms Lynch had experience in sales ___m_____ _ ------- ---- ---- - -- ---- --- '.., . 71 34 When pressed further as to whether a sales clerk job had been \ offered to Ms Lynch, Ms Rakich replied that it had been 35 Further in cross-examination, it was put to Ms Rakich that Ms Lynch, at the noted meeting of June 22, had indicated that she would attempt to obtain day care for her child i~ order to be able to accept the job and that she would need two weeks to do so Ms Rakich did not answer this question It was then suggested to her that it would have been a good idea for Ms Lynch to arrange for day care in order to be able to accept the job Ms Rakich replied that it would have been, but she expected the Employer to be more "understanding" and wait for an employee to complete arrangements for day care before requiring her to report for work She added that another employee had been gi ve'n three months to accept a position because of a medical condition 36 Ms Raki ch was asked whether she had discussions with Ms Rosenberger in order to give her advice concerning any jobs I ( that might be offered to her by the Commission i~ 1993 She replied that she was not "sure" whether this had happened 37 She was -, asked whether she had given any advice to Ms Rosenberger in connection with the People Mover job that had been offered to her She replied that she could not recall / \ --- -- -- ~'S;;...1 . 72 whether this had happened, adding "she may not have been able to get in touch with me " 38 She was asked whether she had been asked for advice by Ms Rosenberger in connection with the janitorial position offered to her She stated that she had not been - although she couched her answer in terms that she did not "think" that she had then been asked for advice She then added that Ms Rosenberger had spoken to the 0 P S E U grievance officer, Lester Yearwood, in connection with the janitorial position, but did not know what advice Mr Yearwood had given her 39 In cross-examination, Ms Rakich was asked whethe~ she di sagreed wi th the statements with respect to seniority of ~ seasonal employees in the Distribution Centre set out in Exhibit 9 Shse stated that she was not involved with the preparation of Exhibit 9, although she had seen it on a few occasions She was asked whether she was suggesting that Exhibit 9 was inaccurate and answered that she did not know whether this was the case , I 1 Evidence of Deborah Whitehouse - Deborah Whitehouse testified on behal f of the Employer, as follows ~- --= ~-- ,,';';",__.. r -,- --- -- - - -- -- -. - -- - ~ I . 73 1 At the time she testified, she was Director of the School of Horticulture and Botanical Gardens operated by the Commission From February of 1988 to May 1, 1993 she had been Director of Human Resources for the Commi~sion In that capacity she was respons~ble for the administration of the collectiv,e agreement, including representing the Employer in connection with grievances filed by the Union or by employees 2 She desc+ibed the Distribution Centre as being a warehouse for merchandise sold in the Park's retail operations The Distribution ~entre operated throughout the year, having its peak periods between January ~nd June, with business tapering off in July and AU,gust in 'ipreparation for the busiest - season " 3 She referred to Exhibit 9, which shows that there were three basic positions in the Distribution Centre D C Worker, D C Forklift and D C Driver D C Workers are responsible for unpacking merchandise and checking it against rece~ving slips I when it arrives at the Centre and for properly storing it in I assigned locations At time~ when retail operations require merchandise, D C Workers pick, pack and prepare it for distribution to vario~s stores in the Park ;' . 74 4 Prior to the preparation of Exhibit 9, there was no formal mechanism for determining the order of seniority of seasonal employees in the Distribution Centre for the purpose of returning them to work after the end of a season Even though there was a provision in the collective agreement -dealing with returning seasonal employees to their positions in the work unit on the basis of seniority, it had been left to the part-ies to determine how this provision would operate When a number of complaints were raised in connection with practices that had arisen, discussions took place between the Employer and the Union where a number of concerns were raised relating to the interpretation of the relevant article, but no agreement was arrived at that resolved the-differences Ms Whitehouse met with the Vice-President of the Local and a Steward for the Distribution Centre (she did not say, nor was she asked, if this was Ms Rakich) , and based on input from 1 employees and management Exhibit 11 was produced to deal with the outstanding issue of seniority for recall purposes at the Distribution Centre The seniority list that was developed (~xhibit 9) was correct, except for the fact that it originally placed Ms Wallis, incorrectly, above MS Lynch This error was later corrected 5 She described the process that was followed for staffing seasonal workers at the Distribution Centre in the 1993 season In preparation for the season, employees on Exhibit 9 -~~ ~ . 75 were recalled to their positions in order of ~eniO:rity The only employees recalled to the Distribution Centre who had less seniority than Ms Lynch were Edward. Kuchar, who was recalled ~s the,D C Forklift operator and Randy Ralph who was - recalled as the D C Driver As far as .she knew, Mr Kuchar was the only person trained for the D C Forklift job, and Mr Ralph was the only person tr~ined for the D C D:r;iver job 6 Ms Whit~h9use also testified that Ms Wallis was ,not recalled to a D C Worker position in 1993 but was offen:;!d a secretarial job (Secretary for the Distribition Centre) for --- that season which positioin had come open because of the incumbent being on maternity leave According to Ms Whitehouse, MS Wallis had both the training and qualifications required for the position In hel;' original - applic~tion for employmept Ms Wallis had indicated that she wished to work in a secretarial position and that she was able to perform the duties of such a position ( 7 Ms Lynch- had iIJ,dicated that she had neither training nor , j experience in the secretaial/clerical area, ~nd this was consistent with Ms Whitehouse's understanding 8 Ms Whitehouse testified as to how some regular employees of the Commission were transferred to the Distribution Centre \ ,-' / prior to the commencement of the ~993 season She referred to c:- I . 76 a number of events which occurred and which impacted on the decision being made The Commission had decided that it would undertake a number of major capital projects and devised a plan as to when they would take place The planning of these projects resulted in th~ closure of some key revenue producing operations Examples given were the Maid of the Mist Plaza and Table Rock She also referred to a construction strike which delayed the opening of certain facilities and to a general decline in business revemues apart from the closings 9 The effect of these events was that there was insufficient wOrk for regular employees The Commission decided to ask for volunteers affected by the above events who would be willing to take temporary assignments elsewhere As a result four retail sales clerks were placed at the Distribution Centre J There was evidence based on their job descriptions and their work experience that they were able to perform stock duties By requesting volunteers it was hopeq that no regular ! employees would have to be "bumped" or moved against their - will Ms Whitehouse stated that according to her f understanding this was the first time in the history of the Commission (since 1885) that regular employees faced a shortage of work As a result of volunteers "coming, forward," they were transferred to the Distribution Centre I -- ) " - '--- . 77 , 10 The above events impacted on seasonal workers at the Distribution Centre In the result, because of their J,.esser seniority, Ms Lynch and Ms Rosenberger were not recalled to the Distribution Centre in 1993 11 In March of 1993, when it was clear to Ms Whitehouse that Ms Rosenberger would not be recalled to the Distribution Centre; she met with her and Ms Rakich, with Ms Rakich speaking on behalf of Ms Rosenberger At that time Ms Rosenberger refused to speak to her directly but would only communicate wi~h her through a Union representative Ms Rosenberger then rejected an offer to work as a cleaner in the bus garage 12 Previous to the meeting of March, 1993, Ms Rosenberger had informed Ms White~ouse of the places where she would work, and had indicated that she would not work in food services or in any position where there was direct contact with the- general public At that time, Ms Rosenberger was also said to have indicated that she required work that involved only "light duties " - ! J 13 Ms Whitehouse also testified thi:?-t her successor, Barbara Arndt, had made an offer of a janitorial position to Ms Rosenberger She added that when she (Ms Whitehouse) occupied the position taken oyer by Ms Arndt, there was no job available for Ms Rosenberger '" . 78 14 Ms Whitehouse stated that although there was no provision in the collective agreement, in 1993, with respect to a surplus list, such a l-ist was kept by the Employer with respect to - seasonal employees for whom there was no work in their previous work unit She said that she endeavoured to assist "good employees " Although the surplus list was kept primarily for the purposes of the Commission, it tried to be fair and to offer employees on it work rather than appoint "new applicants " Her evidence was that the list was maint~ined, not because it had to be under the collective agreement, but as a purely voluntary measure She said that the list was maintained as a "matter of fairness" so that employees wi th previous service would be considered before hiring persons from the outside She emphasized the word "considered " '\ \ 15 She stated that the Commission had a legal obligation to first find work for regular employees, there being no similar obligation in the case of seasonal employees, although from her evidence she seemed to recognize a moral ol:higation of some sort 16 On the surplus list there were notes concerning the kinds of jobs that a seasonal employee would accept, the rate of pay expected and the jobs the employee was qualified for I ) I -~_. ~ ~ . 79 17 She stated that she had a meeting with Ms Lynch in March of 1993 with Ms Rakich being present, the meeting being described as one similar to the one held in the same month involving Ms Rosenbe~ger There were no jobs available for Ms Lynch at that time - 18 During the noted March 1993 meetings she endeavoured to explain all of the relevant facts pertaining to their cases to the Grievors and asked them to be patient She informed Ms Lynch, Ms Rosenberger and Ms Rakich that things might change around Mother's Day, when it was expected that business might "pick up " Unfortunately business did not pick up and the .- Commis~ion experienced a "difficult year " 1- 19 In response to a question as to whether she spoke with Ms Lynch during the summer of 1993, she indicated that there was a s~cond stage grievance meeting in May of 1993, which she attended on behalf of the Employer along with Ms Arndt 20 In cross-examination, Ms Whitehouse stated that it was her ! responsibility ("the buck stopped wit'h me") to reca~l seasonal employees with the assistance of affected managers at the work locations, and that she had this responsibility for several years prior to 1993 She clarified her answer by stating that she had frequent contact with individual managers of work areas in connection with lay-off, recall and placement Her . 80 further explanation was that her involvement was, for the most 1 part, restricted to administratively overseeing the process, especially when a problem arose Although she received employee contracts etc , frequently emp'loyees would be back at work before she would see them That is, the decision had already been made to recall an employee, and the decision had been implemented before the contractual documents were completed 21 In the case of newly hired seasonal employees, she would see the contracts after the manager had made the decision to hire 22 In cross-examination, Ms Whitehouse referred to the fact that the last performance appraisal given to Ms Rosenberger when she worked at the People Mover garag~ stated that the Manager of the cleaning staff at that location indicated that Ms Rosenberger should not be re-hired Ms Whitehouse stated that she informed the Manager that there was no valid reason for not re-hiring Ms Rosenberger (The Manager of the cleaning staff was identified as June Cornell ) Ms Cornell was said to f have told Ms Whitehouse that she did not recommend re-hiring Ms Rosenberger because she was concerned that she (Ms Rosenberger) might injure herself because she found the job to be physically taxing Ms Whitehouse indicated that she was not willing to accept the Manager's statement that Ms Rosenberg not be rehired because Ms Rosenberger had not been ,\ . 81 invited to comment on it Ms Whitehouse added that the Grievor- was not re-hired at the garage "especially in the light of her injury, " and that was the "long and short of it " The Manager was said to have been under the impression that - Ms Rosenberger needed work confined to "light duties," which precluded her working in the garage Ms Rosenberger is supposed to have later confirmed that this was the case 23 Subsequently, the, date not being given, Ms Rosenberger is supposed to have stated that she was capable of doing work which did not involve only light duties Reference was made to the fact that Ms Rosenberger -had previously suffered an injury involving c~acked ribs when working at the People Move-r garage After Ms Rosenberger recovered from her injury, she is supposed to have advised Ms Cornell that she did not wish to work at the People Mover garage Ms Whitehouse referred ~o a grievance that was filed but furnished no detalls with respect to it i 24 FU,rther in cross-examination, Ms Whitehouse stated that on 1 the basis of her Gommunications - with Ms ~osenberger (including communications with Ms Rakich on her behalf) , she concluded that' Ms Rosenberger only wished to accept "lighter work " " i . 82 25 Although Ms Whitehouse recalled seeing! a doctor's note with respect to Ms Rosenberger, she could not recall whether it I indicated that she should only be given "lighter work " 26 Ms. Whitehouse acknowledged that in the spring of 1993 Ms I Rosenberger was physically able to perform not only the work of a Distribution Centre Worker but work which would have included work in the garage at the People Mover 27 Ms Whitehouse stated that she wished to assist Ms I Rosenberger to obtain emploYment as a seasonal employee- in some capacity in the hope that she would eventually be able to I I secure emploYment at the Distribution Centre, where she clearly wished to work 28 Further in cross-examination, Ms Whitehouse stated that it was in 1989 that Ms Rosenberger informed her that she did not wish to work in food services or with the public However, she acknowledged that during the March, 1993 meeting when' she met with Ms Rosenberger and Ms Rakich to discuss Ms of I Rosenberger's status, she was aware a transfer request, dated December 3, 1992, where Ms Rosenberger had indicated that she would work in the pantry, as a cashier and as a counter employee ~--- --~ , . 83 29 It was put to Ms Whi,tehouse in cross-examination ,that Ms Rosenberger had, in fact, worked with the publi,c as a c~shier after 1989, when she was supposed to have indicated that she did not wish to do so Ms Whitehouse said that she could not recall whe~her this was the case . 30 Ms. Whitehouse was also asked whether she was aware that Ms Rosenberger had worked during the latter part of the season in 1990 (September and October) as an evening cashier at the Rapids View Station, where she was required to sell tickets for the People Mover system Ms Whitehouse coul~ not recall whether this was the case 31 Ms Whitehouse was shown Exhibit 15, being a "seasonal performance appraisal" dated October 12, 1990, with respect to Ms Rosenberger, who was sho\<Tn to be a "PM cashier" at the Rapids View location and where her performance at the end of her service on that job was shown ,to be "first rate" -- 32 Ms Whitehouse stated that she did not suggest a cashier -. position for Ms Rosenberger in -1993 becaus~ none was .- available at that time or because other persons with long~r service with the Commission would have to be offered that work first As of the March, 1993 meeting, there were no cashier positions available Ms Whitehouse added that there were almost no jobs of any kind available for anyone at that time . 84 33 Ms Whitehouse stated that shortly after the meeting in March of 1993 involving herself, Ms Rosenberger and Ms Rakich, the Commission and the Union were waiting for the outcome of an , arbitration involving a number of matters including seniority, I the status of surplus employees and transfer rights Ms Whitehouse stated that the Union was successful. in that arbitration We bel ieve she was referring to the interest arbitration to be referred to below In the result, if the Union position was accepted, the Commission would be required to follow the "public service system " Because the decision was rendered in April of 1993 , discussions concerning its implementation were begt:!.n towards the end of that month, inclulding a discussion as to how and when to set up '! interpretation meetings " Ms Whitehouse did not participate in those meetings because she was leaving her then position with Human Resource~ Apparently the differences between the parties remained unresolved 34 In response to a question in cross-examination concerning the treatment of employees on the surplus list, Ms i Whitehouse J stated that where a seasonal employee did not work for a period of one year (where the employee "missed a season") such employee was considered to have ceased emploYment with the Commission This conclusion was arrived at by her from statements said to be found in the handbook dealing with .- . 85 seasonal employees (This handbook was not filed as an exhibit and does not form part of the collective agreement ) I 35 The surplus list referred to by Ms Whitehouse was maintained by an employee referred to as the "seasonal staffing clerk," and it was hoped that through its use work could be found for seasonal employees who were not returned to their work units 36 It was Ms Whitehouse's view that under the provisions of the collective agreement in effect at the material time, the Employer had no obligation to seasonal employees except to bring them back to the work unit to which they were. attached in the previous season, provided work was available for them In the case of the Grievors, this was said to be the Distribution Centre 37 It was Ms Whitehouse's understanding that Ms Ros.enberger had put in a request for transfer because she did not like working in People Mover The first time that Ms Whitehouse became aware that Ms Rosenberger was agreeable to being transferred to a position other than the Distribution Centre was in December of 1992 when she indicated that she would work in food services and was willing to-work in a situation where she had to have contact with the public Nevertheless, Ms Rosenberger continued to indicate a decided preference to work at the Distribution Centre as a Distribution Centre Worker - . 86 38 Ms Whitehouse indicated that in 1993 she did not feel any constraint about placing Ms Rosenberger in a food services position or one where she would have to serve the public 39 She stated that the name s of both Ms Rosenberger and Ms Lynch were on the surplus list, but she did not retain a copy of it When she left her position with Human Resources on May 1, 1993, the surplus list was still in existence She added that the list contained a lot of "hand-written notes " She stated that a typewritten copy had been created by a clerk and herself and was "put together " 40 In reply to a question as to whether managers or department heads were aware of the existence of the list and her expectations with respect to it, she replied "NOt to the list per se " In reply to a question as to whether managers or department heads were aware of the practice employed in utilizing surplus employees, she replied that some were and some were not A manager who phoned indicating that he/she needed! an employee for a position would ueilize Ms Whitehouse' s offic~ as a "placement service" If an employee; s name was on the surplus list, Ms Whitehouse's department _would include that name for consideration by the manager or department head along with "possiblell outside candidates Along with the names, relevant information was furnished She . . 87 added that managers usually wished to consider more than one candidate for a position and that this is howMs Rosenberger "wound up at the People Mover garage" in 1992 Ms Whitehouse stated that she "hoped11 that a manager would give preference to employees on the surplus list 41 Ms Whitehouse referred to Exhibit 16, which is a document filed by the Union, entitled "Surplus Seasonal Staff," which is dated March 26, 1993 It sets out the names of employees, their department, number of seasons worked, jobs held at the Commission and special skills or restrictions At tached to the list are the names of a number of other employees, which list ( i~ in handwriting containing the name and phone number, department, location, date started, date finished and physical limitations with respect to the employees and another column for "position sent out for " Ms Whitehouse stated that managers were given the information contained on the lists She. acknowledged that the information might not be accurate in all cases, and also acknowledged that Ms LYnch had worked for more than three seasons and that Ms Rosenbergerthad worked , for fewer than seven, contrary to what is recorden on Exhibit 16 She also acknowledged that both Ms Lynch and Ms Rosenberger had held positions other than the ones shown for - them on the list She emphasized that her role in connection with the list was "purely administrative, 11 and said that she did not intervene in cases where persons were hired 110ff the ~ . 88 street" i,n preference to those on the surplus list she did not "go behind the list," which she regarded ,to be a "matter I of routine " She regarded the decision as to which person I I I would be chosen for a position as being one to be made by the I : I relevant manager She referred to a "couple of cases" where I she "questioned" the manager's decision where persons had been I I hired "off the street" and where persons on the list appeared to have had the relevant qualifications She stated that in a I I few cases where the manager's decision was questioned, they ! \ had "played ball " From her answers we took it that if she could not disuade a manager from hiring a person, the manager's decision would stand I I 42 Sh~ stated that in 1992 a few people off the surplus list were ! placed but did not recall whether this was also the case in 1993 43 In cross-examination Ms Whitehouse was shown Exhibit 10, being the seniority list of seasonal bargaining unit staff, for retail operations, updated to April 12, 1994 She was ( asked whether from March 27, 1993 to -May 1, 1993 trlree persons were hired "from the street " After examining the list she stated that this appeared to be the case She did not recall being involved in the hiring of those persons -~--- ~ . 89 44 Ms Whitehouse was referred to the names of certain employees shown of Exhibit 10 Yvette Tokarski, whose seniority date is shown as March 22nd, 1993, and whose position is shown as sales clerk at Table Rock; Ian Caughey, whose seniority date is shown as April 22, 1993, identified as an elevator operator at the 'Maid of the Mist retail; and Scott Leslie, whose seniority date is shown as April 25, 1993 and is identified as a sales clerk and elevator operator at the Maid of the Mist retail These hirings appear to have taken place when Ms Whitehouse was the manager of Human Resources for the Employer She stated that the persons on the list could be persons who were formerly employed as students but stateq that she had no information concerning them 45 She stated that the Managers at that time were Carol Brown, at Table Rock, David McKay, at Maid of the Mist and Roy Woodrow, 'Director of Retail Operations 46 She stated that she was aware of the grievance filed by Ms Lynch concerning her placement on the seniority list for all seasonal Distribution Centre employees (Exhibit 9) i as was the manager of the Distribution Centre 47 Ms Whitehouse was also aware that Ms Lynch was involved in the petition requiring employees to sign on a clipboard when they wished to go to the washroom, as was Mr Pidzamecky She I I . 90 was also aware that Ms Rosenberger had signed the petition 48 She was aware of the classification grievances filed by both Grievors, above referred and, to the best of her knowledge, Mr Pidzamecky was also aware of them 49 Decisions to hire in the Distribution Centre were made by Mr 1 Pidzamecky in consultation with his supervisor, Mr Woodrow 50 Ms Whitehouse stated that for the 1993 season the deci~ion to hire or recall employees was made by the managers in the various areas and not "practically" by herself There was no "detailed" consultation with her by the managers "in most cases" concerning decisions to hire 51 In response to a question as to 'whether she was involved in the administration of the typing test for Ms Wallis in the Distribution Certtra office, Ms Whitehouse replied that she was not, and that this was the responsibility of the head secretary 1 - ! 52 Ms Whitehouse stated that it was not unusual for an applicant to be given more than one opportunity to pass a typing test in recognition of the fact that people are frequently nervous when taking tests __.~.u_.. --- - - - - - - - . 91 53 In the spring of 1993 she spoke to Bob McIlveen, her supervisor, who was the assi1stant to the General Manager of the Commission, about recalling the Grievors Evidence of Barbara Arndt Ms Arndt was called by the Employer and testified, as follows '- 1 She has been employed by the Commission since May 2, 1993, as itf? :pirector of Human Resources, which po'sition she held at the tim~ she gave her evidence It was only when she became Director of Human Resources that she was made aware of the ~ emploYment "statistics" relating to Ms Lynch and Ms Rosenperger Shortly after she commenced her new pos;i.tion, she was involved in the second stage grievance meeting relating to th~ Grievor's grievances At that time, shes~ggested to the Grievors that they contact her in order to discuss emploYment opportupities, however neither of the~ did so 2 On June 16, 1993, Ms Arndt called Ms Lynch qoncerning an availabJ,.e position as a part-time secretary-typist at the - ! School of Horticulture after receiving a call trom Ms Whitehouse T4e position became available because M~ Whitehouse's secretary was on an indefinite leave of absence because of illness After Ms Arndt brought up Ms Lynch's name, Ms Whitehouse asked her to call Ms Lynch to see if she had typing skills sufficient to pass the typing test and ) . 92 whether she had the other qualifications required for the position, which included WordPerfect and LotUs 3 Ms Arndt called Ms Lynch about the position at 2 40 P m on June 16, 1993, when Ms Lynch indicated that she was unable to make a decision with respect to accepting it without first speaking to her Union representative, and said that she would get back to Ms Arndt after doing so 4 Because Ms Whitehouse was said to be. "getting anxious," Ms Arndt again called Ms Lynch on June 17, 1993 at 3 25 P m to find out if she had any interest in the position Ms Lynch was said to have stated that she did not think that she could pass the typing test and was not prepared to take it and that she did not have WordPerfect and Lotus skills Ms Arndt then told Ms Lynch that she would "bypass her," and suggested that J she and Ms Rakich attend on her to discuss job opportunities that might become available 5 On June 22, 1993, Ms Arndt met in her office with Ms Lynch ! and Ms Rakich At the meeting Ms Lynch was said do have said that she wanted "nothing more nor less than what she had before," being her Distribution Centre Worker job, and th.at she coul~ not understand why she had not been recalled to that jOb Ms Arndt said that she explained that Ms Lynch had not been recalled to work at the Distribution Centre because . 93 additional workers were not needed and her seniority was insufficient to allow for her to be recalled " 6 During the meeting Ms / . Lynch stated that 'because of her famlly responsibilities she wanted a Monday to Friday day job Ms Arndt told Ms LYnch that it was highly unl~kely that she would be recalled to the Distribution Centre, considering the downturn in business She also observed that most seasonal ( jobs now required shift work, and that "in all probability" ~hose were the kinds of jobs that might oecome available for seasonal employees such as Ms Lynch 7 Ms Arndt stated that when the Commission receives information that seasonal jobs have become availa};lle, such notice is frequently as short as 24 hours This leaves little time .in which to find someone to fill a position She added that sometimes the notice is even "shorter " 8 At the meeting of June 22nd, Ms Arndt also explained to l'1s LYnch the difficulty faced by the Commission in filling seasonal positions on short notice - j 9 Ms Arndt next spoke to Ms Lynch over the telephone on July _5, 1993 She informed her, about 3 00 pm, about a sales clerk position that was available at the Table Rock retail operation, which position had to be filled "at. the latest" by . 94 the 8th of July Ms Arndt noted that the sales clerk position was paid at the same rate as the position formerly occupied by Ms Lynch at the Distribution Centre The sales clerk position involved shift work (includipg night work) as well as work on weekends - 10 Ms, Lynch informed Ms Arndt that she woulq have to call Ms Rakich to discuss the matter and would get back to her 11 Ms Arndt again spoke with Ms Lynch over the telephone on Jul y 6, 1993, around 3 00 pm, to make inquiries about her interest in the Table Rock position, but apparently no one was home Shortly after placing the call to Ms Lynch, Ms Arndt received a call from Ms Rakich Ms Rakich stated that she was calling on behalf of Ms Lynch to inform her that the position offered at Table Rock was not suitable During the conversation, Ms Rakich stated that in her view Ms Lynch's requirements for steady day work with weekends off should be accommodated She informed Ms Arndt that Ms Lynch did not want a job in any area iother than the Distribution Centre and jOb I did felt that the sales clerk suggested to her not accommodate her work scheduling requirements because of her family responsibilities Ms Rakich also informed Ms Arndt that if any more positions were going to be suggested for Ms LYnch in the future, communication should be directly with Mitch Bevan, a Union Grievance Offickr --._-~~ --_..~ ) . 95 12 Ms Arndt had no direct discussions withMs Rosenberger but directed one of her staff (a staffing clerk) to call her in connection with a position that became available The staff member, Mary Anello, called Ms Rosenberger about a janitor's position, on July 22 or 23, 1993, which Ms Rosenberger rejected At the same time Ms Rosenberger said that in the future all communication should be with either Lester Yearwood, another Grievance Officer with the Union, or Mr Bevan 13 Ms Arndt was asked whether any people were hired "off the s.treet" during the remainder of 1993 to perform any of the jobs discussed by her She replied that she could not recall whether this was the case, but she believed that there were a number of students who had worked for the Commission who were "promoted to adult positions " She added that the students had "been with us for a number of years" She also~stated that no students were "promoted" into the Distribution Centre "Things were pretty tight that year " f ! 14 Ms Arndt referred to Exhibit 17, being a notice to seasonal employees dated July 1993, which is as follows July 1993 NOTICE TO SEASONAL EMPLOYEES i ~. . 96 As a result of the Keller Arbitration Award, the Employee, Re~ations Committee consisting of both management and Union representing its have compiled Seniority Lists for Seasonal Employees The lists are by Department and will be posted in each work location for a period of two weeks during which any Employee who does not agree with 'his/her own seniority date may appeal in writing to the Employee Relations Committee outline the reasons for the appeal The Employee Relations Committee shall consider each appeal and then compile a final Seniority List The preliminary lists will be posted in the near future with explanatory notes outlining the procedure used in determining seniority dates Each Employee will be responsible for checking their own ~eniority date and filing an appeal should they have a dispute with the date as listed Anyone wishing more information regarding the Seniority Lists may contact any member of the Employee Relations Committee as outlined below Robert McIlveen Rob Atkin " Barbara Arndt Grant Carson Dave Morris Marie Stokes Mildred Rakich 15 The original of Exhibit 10, being the Seasonal Bargaining Unit Staff Seniority List for Retail Operations, was the list referred to in Exhibit 17 - 16 Ms Arndt also referred to Exhibit 18, being a memorandum of \ agreement between the Employer and the Union, dated September 15, ],.993, which is as follows I Re. Seasonal Seniority List '\ . 97 The ~ndividtials listed below have not been placed on the Seasonal Bargaining Unit Seniority List George .Blanchford jacqueline Lynch Elizabeth Murray Pe"ter Orr Linda Rosenberger The parties agree that placement OIl the Seniority List is subject to resolution of outstanding issues or where applicable, settlement of a grievance by the parties or d.ecision as rendered by the Grievance Settlement Board The placement of the Grievors on Exhibit 18 indicated that "- their ultimate placement (;m the seniority list would depend on the resolution of their grievances 17 Ms Arndt noted that Ms Rakich did not execute Exhibit 18, and could not say why she had not done so 18 Ms Arndt referred to the "shoulder season" being a period I of startup before theoperati.ons at the Park get "really busy " She stated that the shoulder season in most ~ocations commences around Easter, although some operations do not open until the May 24th weekend ~ i 19 She said that she was involved with the Grievors' cases and had discussions in an attempt to find alternative positions for them when it became clear that they would not be recalled to their positions at the Distribution Centre She . 98 was not involved in the decision o.f the Manager not to recall the Grievors to the Distribution Centre 20 It was put to Ms Arndt, in cross-examination, that she was aware that she was to communicate with Union representatives and not directly with Ms Lynch She acknowledged that she had "somewhat ignored" this direction and had spoken directly to Ms Lynch because of directions that she received from Mr McIlveen, who had indicated that in offering jobs ~o seasonal employees it was the employees who were to be communicated with and not the Union, even if a request to do so came from an employee 21 Although she had an administrative responsibility relating to the filling of jobs, the initial decision to fill a job was made by the appropriate manager 22 Ms Arndt stated that she reported all conversations that she had had with the Grievors or Ms Rakich to Mr McIlveen, who reiterated that "We are dealing with the employee " She f did not recall if she ever told Ms -Lynch or Ms Rakich of the instructions received from Mr McIlveen l' 23 Mr McIlveen had explained to her the basis for dealing with employees in cases where they were to be placed in positions other than the one they occupied during the previous season - . - 99 '--- "Our pol'icy is to deal with the employee and not with the Union 11 24 Ms Arndt indicated that she was aware of "restrictions" affecting Ms Lynch because of her child care obligations She informed Ms Lynch that she could only offer her jobs that were available even if they did not meet her child care and other .scheduling needs 25 Although Ms Arndt was not aware when the. sales clerk job offered to Ms Lynch on July 5th (with a commencement date of July 8th) was filled or by whom, she did recall that there was "som~ scrambling:" in order to fill the positiort by the target date It was put to her that the position was filled by Sonia Delaney in September of 1993 She disagreed with this statement She stated that although she could not remember the exact date waen the position was filled, it was filled during the week it was offered 26 Ms Arndt was referred to Exhibit 10, being the Seniority -( List for Seasonal Bargaining Unit Staff of the retail operations, where seven employees were shown with seniority \ from March 27, 1993 to May 21, 1993 27 Ms Arndt stated that every year at the end of October any student employed by the Commission who does not return to . 100 school is eligible for "adult status" commencing November 1 She stated that it was "quite possible that all of [the seven] students were eligible for adult status on November 1, 1992 " 28 She stated that it was likely that a number of the seven persons on the list worked "off and on through the winter" or were called back as early as March 27, 1993 and achieved "adult status" on the dates shown on the seniority list 29 Ms Arndt stated that Exhibit 10 came into existence as a result of an agreement between the Employee Relations Committee made up of four members of the bargaining unit and " three members of management The original seniority list was agreed to by representatives of the parties in late September of 1993 Union Submissions 1 I 1 The grievances arose out of the fact;. that at the !conclusion of the 1992 season neither of the Grievors were, from the \ perspective of the Union, given the opportunity that they were said to be entitled to to continue to work as seasonal employees for the Commission It was the Union's position that the evidence had demonstrated that both of them had I -- ~ . 101 exemplary work performance records and seniority sufficient to have them recalled to work It was the Union's further position that the evidence had demonstrated that other employees, with almost no attachment to the bargaining unit, - were given the opportunity to take up what should have been the places of the Grievors -- 2 Counsel for the Union stated In a case where seasonal employees with more seniority in the bargaining unit have been passed over for employees with no attachment to ~he bargaining unit, the question is Why did this happen? whatever the financial problems of the Employer and whatever tpe organizational changes effected by it 3 It was highly unusual for seasonal employees with seniority to be passed over for emploYment in an upcoming season in favour of employees with no attachment to the bargaining unit and with no rights under the collective agreement i I 4 The evidence had demonstrated that the Grievors ha~ I substantial visibility as_Union activists who had asserted their rights under the collective agreement vigorously and vocally in relation to a number of matters that affected the~ and other members in the bargaining unit The Grievors were said to have done so "at their peril II Counsel for the Union relied on evidence of their 'invoivement- including that I 102 ! . relating to the Grievors' involvement in the classification grievances above referred to as well as the incident where both of them had complained about a policy implemented that required employees at the Distribution Cente to sign before going to the washroom This requirement was the subject of discussion between management and affected employees where the Grievors' involvement in protes~ing management's action gave them a particularly high profile and which subjected them to comments evidencing a particularly anti-Union animus / 5 In order to, show the negative animus against the Grievors, which was said to have led to their having been discrimin~ted against in not hiring them for the 1993 season, the Union relied on the fact that Ms Lynch, in 1992, contested her placement on the only seniority list in existence at the time After ,she filed a grievance, she was placed in her proper position, one step higher on the list than when it was initially published in the summer of 1992 f~ . 6 After Ms Lynch contested her p~acement on the se~iority list she was never employed again by the Commission ;- 7 Ms Rosenberger, shortly after she had been employed at the Distribution Centre for the 1990 season, was subjected to an - "unusual" interview with Bob Pidzamecky, the Manager, I I I I - . 103 concerning her prior work record at Victoria Park This conversation took place after Ms Rosenberger contested the seniority list andMr Pidzamecky's actions were questioned in the light of the fact that Ms Rosenberger had had "nothing but positive appraisals" in the past 8 Counsel for the Union also questioned the conduct of Mr Pidzamecky in April or May of 1990, when he requested that Ms Rosenberger meet with him in his offlce and at the meeting questioned her about whether she was having any \ problems at work and if she was happy there At that time an unrelated issue dealing with what might consititute sexual harassment waS raised by Mr Pidzamecky, allegedly in the absence of any other employees or Union representation, the only other person being present was said to be.. Ms Rosenberger 9 Reliance was also had on the evidence of Ms Rosenberger that she had been told by Hilda Weizel, a supervisor at Victoria Park, that if she (Ms Rosenber~er) filed a 1 grievance she would not likely rema~n an employee I of the Commission 10 Reference was also made to a statement attributed to another bargaining unit employee, Donna White, that she had been told not to II second guess decisions of managers " ~ . 104 11 It was noted that no evidence was called from the managers who made the decisions not to recall the Grievors, the only evidence with respect to this matter being called from. senior Human Resources personnel on the "buck stops here" theory No evidence was called as to how the decision was ) made in the spring of 1993 that resulted in the Grievors not being recaJ,.led I 12 Reference was made to Exhibit 10 being the updated (to April of 1994) Seasonal Bargaining Unit Staff Seniority List for employees of the Commission, and to the fact that there were a number of other employees shown on this list for the first time in positions th~ Grievors could have filled 13 It was submitted that contrary to the suggestion of the Employer, Ms Rosenberger was both willing and capable of working in food services or in any position that requires contact with the public, but was not offered a job in those areas 14 It was submitted that the evidence demonstrated tnat the Commission had been put on notice by information contained in Ms Rosenberser's transfer request that she was prepared to work in those areas Therefore, the Employer knew that restrictions previoiusly placed by her no longer applied i~ . 105 the spring of 1993, yet continued to behave as if they still did 15 It was submitted that there was little evidence of any ~ngoing efforts on the part of the Commission to find the ~ - Grievors other work in 1993, after they were not recalled to the Distribution Centre Reference was made to a janitorial i position that was discussed with Ms Rosenberger and to a position outside the bargaining unit as a part-time Secretary at the School of Horticulture that was discussed with Ms Lynch, which position required computer skills that she did not possess and to a sales clerk job that was offered to Ms Lynch on "extremely ~hort notice " It was noted that Ms L~nch had child care responsibilities and had previously informed the Employer of them and of her need to spend time with her family It was submitted that she was not given time to make arrangements to accommodate her day care and other family obligations she was told on Monday to report for work on Thursday of\the same week f 16 Reference was made to a number of persons said tol have no attachment to the bargaining unit who had obtained seniority status with the Employer, as shown on Exhibit 10 17 Reference was also made to the case of Randy Ralph who was / employed at the Distribution Centre as the Distribution . 106 Centre Driver, who continued in that capacity in 1993 <: Reference was made to Ms Lynch's having greater seniority than Mr Ralph and to her evidence that she was capable of ~ performing the duties and responsibilities of that position and that she possessed the same licenses as Mr Ralph Reference was made to article 29 01 Where the qualifications are relatively equal, reasonable effort will be made to lay-off and recall employees to their positions on the basis of seniority within a work unit 18 Reference was made to evidence that there was a change in circumstances and volunteers were needed from the regular staff to move to the Distribution Centre while no attempt was made by the Employer to recognize the rights of senior seasonal employees under the collective agreement or to give them individual consideration in connection with their seniority rights 19 We were asked to view with suspicion the actions of the Employer that ~t claimed were benign and motivated by bona f'ide business consideration, ,especially in the light of the 1 evidence of the wide spread and long standing hostility directed by management against bargaining unit personnel involved in advancing the concerns of themselves and their "- fellow bargaining ~nit employees \ . 107 20 It was submitted that there was an insufficient explanation as to why no "serious effort" had been made to ensure that the Grievors were given emploYment in the Distrib~tion Centre or why they did not receive serious consideration for placement in other positions that they were said to be clearly able -to perform 21 It was submitted that the evidence had shown that "students coming in off the street" who hacl no seni,ority and who were not members of the bargaining unit were given jobs ln preference to the Grievors in 1993 We were asked to consider the, ,importance of the attachment to the bargaining unit 0": employees and of the adverse consequences -of the Employer'S actions on the principle of seniority (the "cornerstone of collectiva bargaining") that sets apart the collective bargaining relationship from tl1.e individual emplOYment relationship It was submitted that the question was begged as to why people with no attachment to the pargainingunit were, given jobs in 1993, f . at tbe same t~me as the Employer says that it was unable to furnish e~ployment I to the Grievors who had seniority and were capable 'of filling jobs that were available at the relevant time In the circumstances, we were asked to draw an inference that the statements made to Ms Rosenberge~ had a chilling effect, and that such statements made by members of management, although made sometime before 1993 continued to - ~ --- . 108 affect the conduct of the Employer in 1993 It was emphasized that the statements attributed to representatives of management were unrebutted It was also noted-that both Grievors were active in filing grievances and one of them had been told that employees who filed a grievances would not remain employees for long There was not only no evidence that the statement had not l::>een qlade" there was no evidence to demonstrate that it was a qualified statement 22 Reference was made to the statement by Mr Pidzamecky in 1990 that he could hire and fire whom he chose to Mr Pidzamecky did not testify, and there was no suggestion that the statement was not made or that it was other than an obvious threat There was no reason for the Board to decline to draw an inference that s~ch an attitude, which was - manifested both in 1989 and 1990, was not "behind" the decision not to place the Grievors in a job at the Park in 1993 The action of the 'Employer in not placing the Grievors in positions put them in t~e invidious position of having to "go cap in hand to the Employer" requesting "Can't you find us something?" -- ! 23 The Employer had compelled individual employees to deal with it directly and not through the Union, their recognized bargaining agent ~ . 109 24 Reference was made to Re Ottawa Citizen (1988) , 2 LAC 4th) 77 (R M Brown) at p 84, where the arbitrator stated The exi~tence of a discriminatory motive can seldom be proven by direct evidence More often the truth ~s found in the objective circumstances surrounding the impugned conduct, as the Ontario Labour Relations Board observed in Barrie Typographical Union No. 873 and Barrie Examiner, [1976] '1 Can L R B R 291 (Carter) When any form of discrimination is alleged, the burden of proof rests upon the party making the allegation Re Wire Rope Industries Ltd. and U. s. W.. Loc. 3910 (1983), 13 LAC (3d) 261 (Hope) , and Re Chrysler Corp. of Canada Ltd. (Windsor) and U.A.W. (1952), 4 LAC 1291 (Cross) The nature of this burden in discrimination cases was addressed, in Re Inglis Ltd. U.s.W. . Loc. 4487 (1978) , 17 LA C (2d) 380 (Beck) p 382 It is an accepted rule of ~vidence that where the facts c' lie particularly within the knowledge of one of the parties, very slight evidence may be enough to discharge the burden of proof resting on the opposite party This is particularly so where one of the parties possesses particular knowledge with respect to essential facts - in this case the reason for differential treatment This is not to say that the burden of proof is shifted It is rather to say that an onus of credible explanation is put on the party who I alone may have knowledge of the actual reasons for the particular conduct in question [' It was submitted that the approach taken in t_he Ottawa Citizen case was appropriate in this case and that the burden of presenting a "credible explanation," for the I Employer's failure to furnish the Grievors with jobs in 1993 rested upon it The Grievors had "clean records" and an attachment to the bargaining unit, and notwithstanding this . were not retained as employees in 1993 An explanation as to why they were not retained as employees should be advanced by the "people with direct knowledge " The E'\llployer ~-- ,- . 110 should have to explain how the Grievors found themselves in the situation that they were in in the spring of 1993 and why no other suitable alternative emploYment was made available to them when people with less seniority and attachment to the bargaining unit were given emploYment It was submitted that the burden on the Employ~r had not been discharged 25 We were asked to find that the Grievors ~ad been improperly denied emploYment to which they were entitled in the 1993 season 26 Accordingly, the grievances should be allowed and the Grievors reinstated on the effective date of their grievances or as at an appropriate time prior to that date, bearing in mind the relevant time limits We were asked to remain seized of the matter to deal with any differences that might arise between the parties if they are unable to agree 'on the speciflc nature of the relief to be afforded the Grievors and with respect to any amounts to be paid to them !' Employer's Submissions 1 Mr Riggs noted that the collective agreement distinguishes between regular and seasonal employees The provisions r- I ) . . 111 (Part A) with respect to regular employees comprise the I I first 18 pages of the collective agreement, with Part B, conunencing at p 19, dealing with seasonal employees such as ! the Grievors \ 2 It was noted that article 29 01 found at p 23 of the I collective agreement refers to the Employer being required to make a "reasonable effort" in the case of the lay-off and recall of employees "to their positions " In the case of ) seasonal employees this is the only article that makes reference to seniority ~ 3 The provisions of article 29 01 were contrasted with those of article 10 of the collective agreement relating to regular employees ARTICLE 10 - SENIORITY 10 01 An employee will be on probation until he/she has completed three (3) consecUtive ~onths of emplOYment with the Conunission Upon completion of such probation period, he/she shall acquire seniority in his/her trade and classification in the Department concerned Seniority thus acquired shall be exercisable with his/her grade and classification in the manner set out in this Article 10 02 When the Commission decides the circumstances require a reduction of personnel and where the qualifications of the employees for the job concerned are relatively equal, the seniority of the employees shall apply Employees with more seniority will have the right to displace employees with less seniority in the same cl.assificationor a \ I ,- . 112 classification with a lower maximum salary provided that the Commission determines that the surplus employee is qualified to perform the work of the displaced employee When the Commission decides to recall 'employees and where the qualifications are relatively equal, the seniority of the employees shall apply -- 4 The difference in the language found in the two articles was said to demonstrate that the rights of seasonal employees were limited by the provisions of article 29 01 5 The meaning to be given by the parties to art 29 01 is dealt with in Exhibit 11, being a letter of interpretation regarding seniority and job security for "seniority Distribution Centre workers" dated June 1992 Although the copy filed as Exhibit 11 contains neit~er the day in June of f 1992 when the document was executed nor the signatures of Messrs Pidzamecky and Woodrow on behalf, of the Employer, it was acknowledged by both parties that it represented the agreement between them ( 6 R~ference was made to para 1 of Exhibit 11 i Accumulation of Seniority ~ Seniority at the Distribution Centre shall be accumulated on the basis of consecutive seasons worked in a particular job, (e g , Distribution Centre Worker, Truck Driver, Fork Lift Operator) ( . 113 It was submitted that by agreeing to the provisions of para 1 of Exhibit 11, the parties had indicated that the seniority of seasonal workers ~t the Distribution Centre would be accumulated in relation to particular jobs that is wi thin "a work uni t .11 7 The recall of seasonal employees in the spring of 1993 was implemented in accordance with the collective agreement (which would include Exhibit 11) 8 Reference was made to Exhibit 9, being the memorandum with respect to the "Seniority" of seasonal employees at the Distribution Centre, which provides, in part / In reference to the letter of interpretation regarding seniority and jOb security for seasonal Distribution Centre employees dated June 1992, the following is a seniority list for current seasonal Distribution Centre emI:>loyees Anyone requesting a correction must do so, aloIfg with their reasons in writing to the manager of the; Distribution Centre within the posting period After such review, the list shall be established as correct ! 9 The list contains the names of all seasonal employees at the Distribution Centre and is broken down between the following work units D C Worker, D C Fork Lift, and D C Driver Mr 'Ralph was shown as the D C Driver and Ms Lynch and Ms Rosenberger were listed under the D C Worker category - . 114 10 The evidence demonstrated that the 1993 recall was carried out in accordance with the list (Exhibit 9) and that the collective agreement and letter of interpretation (Exhibit 11) disclosed an intention to apply seniority in accordance with work units 11 The evidence d~monstrated that in 1993 seasonal employees at the Distribution Centre were recalled to work in accordance , with the list set out in Exhibit 9, and there was no suggestion that people on the list were recalled out of ( order The evidence disclosed that a number of employees at the Distribution Centre, including the Grievors, were not recalled in 1993 as D C Workers because of their their lesser seniority There was no evidence to demonstrate that the Grievors had been singled out as employees not to be recalled They were simply part of a group of seasonal employees at the Distribution Centre who were not recalled because of their lesser seniority No more junior employees were given jobs at the Distribution Centre in the spring of 1993 in preference to the Grievors 1 , - I 12 Ip the case of Mr Ralph, he worked as the D C Driver and was not listed on the group of employees under the D C Worker category { . 115 13 In the ~ase of Josephine Wallis, who had less seniority than Ms Lynch" the evidence disclosed that she had been offered an opportunity to work in a secretarial/clerical position at the Distribution Centre for which she had both training and experience Although Ms Lynch had greater seniority than Ms Wallis, toe evidence disclosed that Ms Lynch did not have either the training or experience to fill the position, which position was not even on the seniority list used for recall purposes 14 What happened was that there was a recall in the spring of 1993 at the Distribution Centre in accordance with the Employer's business needs and in accordance with seniority in compliance with the provision of the collective agreement, including Exhibit 11, and with Exhibit 9 This was said to amount to "the end of it " 15 Not only did the Employer carry out its recal'l obligations for the 1993 season with respect to seasonal~employees at .- the Distribution Centre in accordance with its obfigations under the collective agreement, including Exhibitl 11, and with the seniority list (Exhibit 9), it went b~yond its obligations by offering jobs to the Grievors The Board ought not to speculate on the motivation for the Grievors , rejecting the job opportunit~es afforded them in 1993 Not only were the Grievors correctly treated in relation to , , . 116 their recall rights to the Distribution Centre, in 1993" but the Em~loyer made job offers to them in the 1993 season, which it was not obliged to do It was <<curious" that there was no explanation for the continuing lack of cooperation by I the Grievors in relation to the attempts of Ms Arndt and I i Ms Whitehjouse to provide them with other jobs I 16 Ms Rosenberger was offered a position in People Mover in t~e spring of 1993 which she could perform b~t which she rejected She was also off~red a janitor's position which she also turned down 17 Ms ./ Whitehouse testified that she understood that Ms Rosenberger was not interested in a position that "interfaced with the public " While the:;-e was no obligation / on the Employer to give offers of alternative emploYment to :.,.2 the Grievors when their seniority was insufficient to allow I them to be returned to work as D C Workers,. there was an obligation on their part to demonstrate flexibility and a , willingness to accept jobs that they could perform without 1 any loss of pay' 1 I . There was no acceptable exp anat10n as to why job offers made to the Greivors were rejected They could not reject offers of jobs made to them and then allege that the Employer had taken no steps to provide them with an opportunity to work . 117 18 Ms Whitehjouse had-offered Ms Lynch an opportunity to try fotaclerk's job but she said that she was not prepar~d to accept it 19 It may be that Ms Lynch was correct in stating that she was not in a position to accept the sales clerk job After the telephone call had been made in connection with that job, a meeting was arranged to discuss it on June 22, 1993 Ms Arndt testified that this was a legitimate job offer It was submitted that it was necessary to recognize that jobs frequently have to be filled quickly, and the Employer, in the circumstances, should not be faulted for failing to accomodate Ms LYnch by extending the time to report At the June 22nq meeting Ms Arndt informed Ms Lynch that ) ',~ placements in jobs frequently must be effected quickly The .J Employer waS not insensitive to Ms Lynch's child care for "tens of , difficulties 'but this is a problem thousands of people " It was again said to be "curious" that Ms Lynch had made no efforts to put her child care needs "in place" ~ knowing that she expected to go to work for the Commission in the spring of 1993 Ms Lynch was offered a j6b on the Monday and declined within 24 hours It was noted that she had until Thursday to start the jOb It was submitted that the evidence did not support the conclusion that the Commission did not try to assist the Grievors to obtain positions for the 1993 season - , . 118 20 In response to the submissions that theEInployer's actions in 1993 were tainted by the statements above referred to evidencing an anti-Union animus, all of which were made by 1990, it was submitted that the evidence could not support the "ludicrous assertion II The "discussions" relied upon by the Union had to be viewed in a context where neitner Ms Rosenberger nor Ms Lynch held Union office at the ~elevant times I 21 In response to the assertion that the Grievors were targeted because they had gone "out on a limb," this conclusion was said to be unsupported by the evidence because many other , bargaining unit personnel expressed the same concerns as they did in relation to the washroom and classification issues There was nothing unique about their respective roles in these events, and theirs was not a "leadership role " 22 No grievances were filed by either of the Grievors or the Union, nor were any other proceedings brought arising out of f the statements relied upon by the Union as expres~ing an anti-union animus and/or an animus against union activists . 23 An attempt at this time to rely on the earlier statements, was characterized as being in the nature of a "late blooming rose II There was said to be no rational link between the . 119 assertions made to the Grievors in 1989 and 1990, and earlier, and the incidents before us which occurred in 1993 I't was ,questioned how such earlier statements could be paid to have affected the conduct of the Employer in 1993 after the Grievors had already worked in 1991 and 1992 It was submitted that it was difficult to accept such an argument as was put ::eorward by the Union unless there was a "deep se~ted conspiracy" based on covering the tracks'of the conspirators by waiting until 1993 to act in furtherance of a goal formed in 1989 and 1990, and even earlier To accept such a conclusion ~ould be to set upon a course that "defies common sense " r 24 It was observed that the Ottawa Citizen case occurred in the context of an_organization campaig;n and contemporaneous discipline This was said to be a "traditional" case where there was a combination of two events in a context that permitted the drawing of an adverse inference This is not the case before us and no discipline had been meted out in th-iscase All that was done in the Ottawa Citizen case was { to make a general statement that haft been recogni!zed for years but that does not assist the Board in the determination of the issue before it in a recall situation c ~ - I 1 120 . I , I 25 This was not a casd where the Employer endeavoured to I justify its havingjrecalled employees out of seniority } sequence I I 26 There was no reference to a transfer list in the collective I agreement but, as Ms Whitehouse indicated, she endeavoured to give employees J~ opportunity to work when they wished to be transferred betJeen areas Ms Rosenberger requested to I work in areas wherJ there were no jobs The actions of the Employer in this rJgard were carried out on an "extra contractual basis" with a view to assisting employees to obtain alternative emploYment The attempts made by the Employer in this regard, being extra contractual, cou"ld not . 'h G' I I ass1st t e r1evor~ 27 In summary, it was submitted that 1 The collective agreement provisions with respect to I . recall had not been violated J 2 The Employer votuntarilY went beyond its cont~actual obligations to assist the Grievors, but the Grievors did not I - I "take-up" the offers of assistance 3 Accordingly, tht:: grievances should be dismissed I J , , . 121 Reply Submissions. Made On Behalf Of The Union 1 It was submitt~d that the Board ought not to focus on the fact that the Employer appeared to have complied with the recall provisions of the collective agreement That the Employer may have done so was said to be no answer to the previous suggestion made by the Union that the Board should have regard to the evidence which raises questions of the bona fides of the Employer in the exercise of a management right 2 Where the Employer exhausts the recall provisions of the - collective agreement and then leaves the Grievors "in the street" while it hires others off the street, such exercise of management rights is tainted with bad faith and represents improper conduct It is necessary- for the Board to carefully scrutinize the actions of management and see the Employer's actions for what they were an attempt to , punish the Grievors because of their being' protagonists, at various times, of a vigorous employee response in the face ( of ,a hostile man~gement - ! Discussion and Decision ..- - - I . 122 1 As should be clear from the recitation of the evidence, the facts surrounding the grieva~ces before us were fraught with mutual mistrust and antagonism, and the evidence was replete with instances where those factors precluded any real communication between the parties This is regrettable, under any circumstance, but for the Grievors it was particularly unfortunate because the security of seasonal employees was fragile 2 It may be that the Grievors, and perhaps Ms Rakich, were, not fully aware of their considerab~e vulnerability as seasonal employees with restricteq rights in comparison to regular employees Management, on t~e other hand, appears to have been aware of the situation and many of its actions are consistent wi,th such an understanding The la~ter conclusion is drawn from the ev~dence of Ms Whitenouse and Ms - ,Arndt ) 3 In any event, it is unQerstandable that the Grievors and Ms Rakich would feel uneasy in their dealings with management 1 and suspicious of its motives, given, the tenor of! the statements referred to The objectionable statements are indicative of an anti-union animus on the part of the ( speakers as well as of their disposition to punish bargaining unit members who availed themselves of certain of their rights under the collective agreement and under the . 123 Labour Relations Act in effect at the time The speakers of the offens~ve statements were members of management and we are satisfied that the statements attributed to them were made If they were not, this is a case where it would be expected that the allegations would by strenuously challenged Mr Riggs argued that even if the statements were made they could have no effect on the dertermination of the grievances before us, because the Grievors, in any event, must fail in their individual claims that they should have been recalled to the Dist~ibution Centre in 1993 That is, irrespective of whether management, for improper reasons, did not wish to recall them This was said to be ~ because their not being recalled ,during the 1993 season was solely a fupction of their lacking sufficient seniority to be recalled to their Distribution Centre Worker jobs in that year Insofar as a claim is being made on behalf of each of the Gtievors that, failing their being recalled to the Distribution Centre, they should have been placed in anothe~ pos~tion which they could perform, based on their seniority, Mr Riggs argUed that any negative animus on the part of r members of management, as above desc~ibed, could Aot assist the Union This was said to be because the Employer had no legal obligation to place the Grievors in an alternate position once they were not returned to their previous positions in the Dis~ribution Centre because they lacked sufficient seniority If he was wrong in his latter . 124 submission, Mr Riggs argued that the statements had been made too long ago to taint an action taken in 1993 4 It is not without significance that notwithstanding the statements referred to having been made, the Grievors were recalled to work in 1991 and 1992, and that after those offensive and threatening statements were made, they remained active in the Union, and claimed that their continuing activism was well known to management (although Mr Riggs suggested that they were not as prominent Union activists as they believed was the case) After considering the evidence, we conclude that while the Grievors' union activities were not as notorious as they believed, management viewed them as somewhat militant members in. support of their ow:q positions as well as those of the Union 5 Although the statement of the supervisor of the cleaning staff in the People Mover bus garage made in 1992 on Ms Rosenberger's performance review (recommending that she not f be rehired) caused us some concern, ~hat statement is consistent with the evidence that Ms Rosenberger found the job physically taxing, and her eviqence confirmed that this wa~ the case and she indicated she was reluctant t~ accept such a job .,..' . . 125 6 We believe that Ms Lynch and Ms Rosenberger were correct in their perceptions of the attitudes manifested by the statememts made to and directed at them concerning the attitude of the speakers toward the Union and employees who relied on their rights to engage in lawful activities as union members In the circumstances it was not unnatural for them t.o be suspic~ous when dealing with management Examining all of the evidence however, it is apparent that as offensive and threatening as were many of the statements relied upon, some the evidence relied upon could not support the conclusions we were asked to draw For example, Ms Rosenberger referred to statements made to her by Mr Pidzamecky .at a meeting held in 1990 as threatening and unwarranted When the entire evidence relating to the incident is reviewed, it would appear that some of Mr Pidzamecky's statement were capable of a different and mqre benign explanation It was the case, and Ms Rosenberger acknowledged this to so, that the meeting followed a seminar ) on the subject of sexual harassment Following the seminar meetings were held with small groups of employeeSt to discuss I the subject of sexual harassment When viewed in that context, and in the context of there being another person from the bargaining unit in the room, the incident takes on . a different meaning than the one suggested 'by the Union This, however, does not excuse the further offensive and unwarranted statement made by Mr Pidzamecky at the meeting, . . 126 that he coUld hire and fire as he chose In the context of Ms Rosenberger's Union activism, which Mr Pidzamecky appears to have been aware of, and based on his communications with management representatives at Victoria Park where Ms Rosenberger had worked, the statement represented a not so veiled threat to employees who were too active in support of th~ Union or of their rights under the collective agreement and the law Based on the other offensive and provocative statement above recorded in our review of the evidence, the Grievors' reading into management's actions the most negative connotation is understandable 7 In the circumstances, the Grievors demonstrated a good deal of fortitude in maintaining their relatively high profile as Union activists However, as much as we deprecate the offensive and threatening statements made by Mr Pidzamecky and others, in most cases, including the ones before us, the greater the distance in time between a statement made by a I member of management expressing anti-union animus and an f incident said to be related to such_statement., thle less will be its impact as evidence put forward in support of our finding that it had a significant effect in bringing about an impugned action This is especially so where the - grieving employee was, as were the Grievors in this case, recalled to work during two succeeding seasons (1991 and I . . 127 1992) Potential grievances or claims with respect to unfair labour practices do not improve with age The incidents, which are worthy of opprobrium, occurred in 1989 and 1990, and very likely before that time, and it would take some doing to convince us that there was a link between actions in 1993 and the earlier behaviours This is not to say that such a link could not be found in an appropriate case 8 The collective agreement provisions relevant for the purposes of the grievances before us are found in Exhibit 5, being the collective agreement between the parties expiring -, on December 31, 1989, but whose provisions affect the incidents before us It was not submitted that the provisions of the collective agreement that came into existence as a result of the Keller award as they relate to the security of seasonal employees applied to the grievances before us L ; 9 The provisions of the collective agreement with respect to i. regular employees are found in Part A and those wtth respect to seasonal employees are found in Part B The only provision with respect to job security for seasonal employees is article 29 01 Where the qualifications are equal, reasonable effort will be made to layoff and recall employees to l . 128 their positions on the basis of seniority within a work unit 10 The parties entered into a letter of interpretation regarding seniority and job security for seasonal Distribution Centre workers (Exhibit 11), dated June, 1992, referring to the above quoted article (29 01) In compliance with Exhibit 11, Exhibit 9 was prepared and, as corrected following a grievance filed by Ms Lynch, represented the seniority list to be applied in connection with lay-off and recall rights that applied to the Distribution Centre in 1993 11 The evidence disclosed that the Grievors were not recalled to their D C Worker positions for the 1993 season because they did not have sufficient seniority to permit this, based on the need for such employees at that time In the circumstances, the question of any anti-union animus directed against them becomes irrelevant We regard the agreement (Exhibit 11) to be binding on the Empioye~ and the Union, and hence on the Grievors, notwithstanding Ms J f Rakich's evident misgivings about it And we regard Exhibit 9, as amended, to be an accurate reflection of the seniority of seasonal employees in the Distribution Centre, notwithstanding Ms Rakich's reluctance to acknowledge its accuracy The question of animus is irrelevant unless it could be demonstrated that the Employer had deliberately set ) I - ! , . . 129 about to distort its requirements for staffing in the Distribution Centre for the 1993 season just to be rid of tlte Grievors 12 On the evidence, we are unable to find that this was the '" case To the extent that there was insufficient work to I allow for the Grievors being recalled to the Distribution Centre, this can be attributed to a decline in business and '.... a difference in the way in which the work of th~ Distribution Centre was carried out 13 To the extent that regular employees were brought into the Distr~bution Centre, perhaps depriving the Grievors of a job there during the 1993 season, such event ~annot be interpreted as being based on a plan developed by the Employers in -the nature of a conspiracy to prejudice the position of the Grievors '. to insure that they would Tha tis, not be recalled to the Distribution Centre There would have to be more cogent evidence prokbative of a conspirady before we could accept such an argument i - ! 14 In the result, whatever the animus of Mr Pidzamecky in 1993 against the Grievors, their not being recalled to Distribution Centre Worker positions during the 1993 season was a function of the operation of the agreement between the parties ~ , I "- 130 . 15 Assuming, without having to decide whether Mr Pidzamecky had changed his offensive earlier views by ,1993, he still could not have employed the Grievors in violation of the agreement between the parties The Grievors' seniority was insufficient to require that they be recalled in preference to any other employee who was recalled as a D C Worker There was insufficient evidence to prove that the four regular employees were brought into the Distribution Centre for other than a genuine business purpose 16 As far as the incumbent of the D C Driver position (Mr L Ralph) is concerned, as agreed by the parties, - that position was established as a separate area subject to separate recall provisions Accordingly, it is insufficient to establish that Ms Lynch could have performed theD C Driver job It is a separate position, even though parts of it are the same as that of the D C Worker job We also find that the jobs given to Ms Wallis and Ms Delaney/during the \ 1993 season did not fall within the provisions of Exhibit 11, and therefore the provisions of that Exhibit were not r violated -. I i 17 As can be seen from the evidence adduced ,concerning other positions that might have been available for the Grievors in 1993, and the attempts on the part of the Employer to find jobs fot- them, that process was no less fraught with mutual \ - ~ , . 131 mistrust than the one governed by Exhibit 11 The Grievors, with some cause, had little trust in the good faith of the Employer or its representatives in pursuing alternate employment opportunities for them The Grievors' mistrust was exacerbated by the fa.ct that the Employer continued to ignore there directions that the contact persons on their behalf be representatives of the Union (Messrs Yearwood and Bevan and perhaps Ms Rakich) 18 It ou~ht to have been evident to the Employer's representatvives that the Grievors' request made some sense in the circumstances in the light of the act that grievances had been filed, which involved claims that they had been unlawfully deprived of a job with the Commission during the-1993 season, either at the Distribution Centre or elswhere within the Park 19 An examination of the evidence concerning the efforts made by the representatives of the Employer (Ms Whitehouse and Ms Arndt and their staffs) to find alte'rnative emplOYment f for the Grievors after they were no~ recalled to the Distribution Centre discloses a commitment, albeit a rather small one, to achieving this purpose 20 There was a great deal of evidence from the representatives of the Employer intended to demonstrate its good faith in . I . 132 this regard, but after reviewing the evidence it appears to us that the ultimate decisions were left with the managers who wished to fill positions, and these decisions were rarely questioned What was initially pictured as a large commitment to seasonal employees not recalled to their work units was later admitted to be a somewhat pious hope dependent on the decision of individual managers who may 6r may not have known of Ms Arndt's and Ms Whitehouse's view that special consideration should be given to employees in the position of the Grievors 21 We also note the. evidence concerning the Grievors' willingness to accept' various kinds of emploYment which was only imperfectly understood by Ms Arndt and Ms Whitehouse It appears that they misunderstood what kind of work the Grievors could and would do at a time when it was clear that there was information available to them to clear up any misunderstanding Having heard the evidence given by them, we conclude that their actions were not motivated by bad faith considerations but by their imperfect search for jobs f for the Grievors The Grievors (and, perhaps Ms Rakich) believed that the Employer had an obligation under the collective agreement to find jobs with the Commisiion for employees such as themselves when they were not recalled to their work units This was not the case, and it was clear from the evidence of Ms Whitehouse andMs Arndt that they ( '! . 133 understood this to be the case Both of them testified that they viewed the surplus list as having been prepared for the purposes of the Employer - if its maintenance helped employees such as the Grievors, so much the better It is unfortunate that they did not make their position clearer to the Grievors 22 The difficulty faced by the Grievor is based on the fact that the so-called "surplus list" and the way it was utilized in securing jobs for seasonal employees who were not recalled to their former work units were not part of the collective agreement and did not represent a binding obligation on the part of the Employer 23 The evidence disclosed' that the managers who made the -} decisions to place a person in a job had the final say in doing so As noted,- it was not at all clear whether the managers were even aware of the alleged policy of the Employer to favour previously employed seasonal employees over new hires Information concerning persons who might be given a job was merely given to the managers who, !for J practical purposesr made the final decision 24 Because the process of keeping and managing surplus lists - represented a voluntary expedient on the part of the Employer, primarlily for its own purposes, it is not ~ I f r . 134 possible to enforce an obligation arising under it It was suggested, by counsel for the Union, that the evidence disclosed that the Employer had not administered the policy expressed by Ms Whitehouse in a reasonable manner and that, notwithstanding the fact that there was no right in employees to be placed in a position, the lack of reasonable administration of the program with respect to employees on the surplus list gave the Board jurisdiction to intervene 25 It was submitted that management's rights to manage the enterprise, even in the absence of a provision in the collective agreement imposing obligations upon it, precluded it from behaving in an unreasonable manner 26 However broad the duty of fairness in the administration of a collective agreement may be, including a duty to reasonably administer it, it is difficult to view such " obligation as encompassing a non-binding procedure undertaken by management in an endeavour to place seasonal employees who are not recalled to their previous position There was no suggestion o.f there bei.ng an estoppei in this case 27 We note that even under Exhibit 6, offers of emploYment and recall are with respect to an employee's former position in " ~ . 135 the Ilsame department" in the case of lay-off "in any year" 28 The status of seasonal employees, under the agreement before us, is such that they are entitled to management's making a "reasonable effort" to recall them "within a work unit " When they are not offered emploYment or recall to a work unit, they cease to the seasonal employees 29 In the absence of any jurisdiction to impose a duty of reasonable administration of the collective agreement in the case of empioyees such as the Grievors, there is no basis for finding a violation of the collective agreement In order for us to have been in a position to make such an order, the cOllective agreement would have had to have provided fOl;" a right in seasonal employees, when they were not offered a position within their previous work unit, that they be given an opportunity to accept other available positions that they are. capable of performing in preference to non-bargaining unit members in accordance with their seniority o. j 30 If the exercise of the management right had been carried out in bad faith not for a genuine business purpose but to punish the Grievors, our decision might have been different However, the evidence before us did not show that there was any position that the Grievors could perform that could have -.--- I /\0(, of . 136 -\ been offered to either of them which was given to another junior employee or to an employee "off the street" because of animus directed against either of the Grievors That is, i for a reason based on non-business considerations with the intention of punishing the Grievors 31 It was suggested by counsel for the Union that there was a burden on the Employer to show what positions were available ( to seasonal employees during the 1993 season and to justify why they were not offered to the Grievors in preference to junior employees or to persons "off the street," given the fact that such information would be peculiarly within the knowledge of management Given the nature of the grievances, it was up to the Union to tender evidence in support of its position that the Employer had acted in bad faith in the exercise of its management right (not affected , by the Grievors' recall rights under ~e collective ,- agreement and Exhibit 11) to hire or otherwise fill positions / 1 32 Given that there were approximately 500 seasonal !employees in the bargaining unit, there could be a chaotic result if management had to establish its good faith in administering the surplus list by showing what positlons were available during a season to employees in the position of the Grievors . and how anq to whom they were assigned every time an ) .; ~ {', .. . / 137 employee filed a grievance involving an allegation of bad faith in the administration of what would otherwise be an exclusive management right 33 This does not mean that the Union could not take measures to obtain disclosure of information concerning positions that were offered during the 1993 season to junior employees and persons "off the street," so as to enable it to demonstrate \ that some jobs were offered in circumstances that raised a prima facie cas~ that decisions were based on bad faith considerations For example that Mr Pidzamecky, or the other manag,ers who had made statements evidencing a negative animus against persons such as the Grievors, filled jobs during the 1993 season that might have b~en offered to the Grievors in circumstances that would enable the Board to ~..... conclude that the basis for the decisions was not relate~ to a genuine business purpose but to a desire to exclude them '( from consideration because they were perceived tjo':pe Union f activists 1 I I 34 rhere was no evidence before us to show that there were positions available in 1993 in a work area for which any of the managers who made the offensive and inapropr~ate statements was responsible, and which the Grievors could perform, so that w~ might consider whether-the actions of .. those managers were carried out in bad faith / ", t . 138 ,- 35 In denying the Grievances, we observe that they were filed -, in March and April of 1993, and we were bound to limit our consideration to evidence within the time frame imposed by when the grievances were filed, except to the extent that the parties, without objection, adduced evidence of events that took place after the relevant dates of the grievances Accordingly, we have neither dealt with the status of the Grievors after the dates the grievances were filed, except to the extent that this was made necessary by the way in which post-grievance evidence was adduced without objection Except to the limited extent noted, our decision cannot and does not deal with any post-grievance examples of alleged bad faith conduct' in the case of positions that might have been offereq to the Grievors during the period in 1993 that they remained seasonal employees for the purposes of recall 36 There w~re numerous occasions during this long case when the Board felt that there were opportunities for the parties to resolve ~heir differences in a reasonable way The antagonisms described above may have prevented such a resolution Because this decision may not end th~ matter, we urge the parties to consider our comments and make an effort to truly resolve the troublesome issues that gave rise to the ~rievances ", ~J I" . 139 . 37. We should also refer to the fact that the Grievors appear not to have fully appreciated the fact that management was under no obligation to find them a job when they were not recalled tq the Distribution Centre in 1993 They also appeared to be counting on a finding by the Board that they were entitled to be recalled to the Distribution Centre Th~ evidence disclosed that they, because of their apparent misaprehension with respect to the Employer's obligations, were not very receptive to the job .offers made to them, and were looking for accomodations which, whatever their merits in terms of abstract justice, were not owed to them as a matter of law, given the provisions of the collective agreement, and the normal exigiencies associated with ( filling positions that must be filled qickly The Grievors should also consider that the evidence did not establish the kind of broad conspiracy against them by management that they believed existed, and that not all of the actions . viewed by them as part of the conspiracy, were malign <' '\ ) \ \ I . 140 38 Bearing our comments in mind, and bearing in mind that the Grievors were longstanding excellent employees, we urge the parties to review their positions and attempt to resolve a dispute which, notwithstanding this decision, may continue to have an adverse effect on their ongoing relationship ( Dated at Toronto this 11 day of January, 1996. 7R'.-~ ~~ ~y MR Gorsky - Vice Chairperson ~~ ~J Carruthers - Member I~~ " . j .~. ~~c-j- F Colli _ - ~ember i ~ -- , \ 1 ( ) I