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HomeMy WebLinkAbout1996-0666.Lacroix.99-10-19 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L ,(}NTARlO GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 0666/96 OPSEU # 96B749 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Emplovees Umon (LacroIx) Grievor - and - The Crown 111 Right of Ontano (Mimsm of Transportation) Employer BEFORE Loretta Mikus Vice Charr FOR THE KnstIn Ehot GRIEVOR Counsel, Ehot, SmIth Barnsters & SohcItors FOR THE Chnstopher Jodhan EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARING April 19 1999 September 20 1999 The gnevor RIchard LacroIx, has been a seasonal employee WIth the Mimstry of TransportaTIon for the last 5 or 6 years, He was classIfied as a Highway EqUIpment Operator 2 but IDS major responsibIhty was as a snow plow operator He was staTIoned III the Rutter Yard, whIch IS apprmomately 40 kllometres south of Sudbury His contracts usually ran from November of one year to April of the next and provIded for 40 hours per week as well as generous overTIme opportumtIes, He was recalled to work each year under ArtIcle 3 of the 1992-1993 colleCTIve agreement whIch reads, III part, as follows 3 18 A seasonal emplovee IS an emplovee appo111ted for a penod of at least eIght (8) consecutive weeks to all aI111ualh recumng full-tune pOSItion 111 the unclassIfied servIce 111 a mImsm For purposes of thIS defimtIon full-time meaIIS a n1l111mum oftlllm-sIx and one-quarter (38-1/4) or fom (40) hours per week, as apphcable 3 19 The probatIonlm penod for a seasonal emplovee shall be two (2) full penods of seasonal emplOyment of at least eIght (8) consecutive weeks worked 111 consecutive vears 111 the same pOSItion 111 the SaIne n1l111sm 320 1 A seasonal emploveeos se111ont\ wItllln a n1l111sm will accwnulate upon completion of hIS probatIonlm penod and shall 111clude ( a) all hours worked as a seasonal emplovee at the straIght- time rate ( b) penods of authonzed paId leave 111 accordance WIth Section 3,32, AttendaIICe CredIts aIId SIck Leave 321 Seasonal emplovees who have completed theIr probatIonlm penod shall be offered emplovment 111 theIr former pOSItions 111 the follow111g season on the baSIS of se111ont\ There IS very httle III dispute on the events gIVIllg nse to thIs gnevance, The gnevor-s contract was not renewed for the 1995-96 season, However another employee, Gerald Burke, who had prevIOusly worked III the Killamey Yard, was gIven a contract at the Rutter Yard, wIDch the gnevor clrums should have been offered to hIm, The Rutter and Killamey Yards have always operated as separate work areas and the employees from one yard have never been aSSIgned to work at the other The Killamey 2 yard IS apprmomately 87 kllometres from Rutter and was consIdered to be too far away for a reasonable response tIme m an emergency In 1992, as a result of a government direcnon, the Killamey yard was amalgamated With the Rutter and Bntt yards, That IS to say the mImstry employees were reassIgned or surplus sed and the work contmued to be performed but by outsIde contractors, Rutter became the headquarters for the entIre area, At the same nme other amalgamanons of mamtenance yards were also takmg place and m all mstances the semonty lIsts were merged, In the mstant case, Mr Burke had worked as a Highway EqUIpment Operator 2 at the Killamey yard and had accumulated 3168 hours of semonty In 1993 he sIgned a seasonal contract and worked as a Highway General Foreman #1 from November 1993 to April of 1994 His Job ntle was Patrol Foreman and lns dunes mvolved only patrollIng the lnghways, He did no snow removal dunng that contract. The gnevor spoke to Mr Guy Oeullette, the DIstnct SupervISor who adVIsed hIm that one patrol posInon was to be elImmated but that he would still be recalled, He was told somenme later by Mr Oeullette that he would not be offered a contract for that season, When he discovered that Mr Burke had been offered a contract as a snow plow operator at the Rutter yard he filed thIS gnevance It was the gnevor-s opmlOn that Mr Burke had only 798 hours of semonty at the Rutter yard, wlnch was conSIderable less than hIS 3730 5 hours, 3 Ms, Ehot, counsel for the Umon, took the pOSITIOn that the term -former pOSITIOn- m ArtIcle 3.21 1 should be mterpreted to mclude locaTIon as well as pOSITIOn, OtherwIse, It was Said, semonty nghts for seasonal employees would have provmce-wIde apphcaTIon, whIch has never been the case Mr Burke-s former pOSITIOn of Highway EqUIpment Operator 2 at Killamey did not gIve hIm semonty nghts over the gnevor whose semonty was accumulated entIrely at the Rutter yard, The work at the Killarney and Rutter yards was never mtermmgled, the employees never worked at both yards, The semonty gamed at one yard should not have been credIted at another At the TIme of the renewal contract, the gnevor had 3730 5 hours at the Rutter yard as a Highway EqUIpment Operator 2 Mr Burke had 3168 hours semonty at Killarney as a Highway EqUIpment Operator 2 and 798 hours of semonty at the Ruttter yard as a Highway General Foreman 1 The gnevor should have been offered a contract before Mr Burke He asked to be reImbursed for all lost wages and benefits as a result of the Employer-s failure to offer hIm a contract for the 1995/96 season, Mr Jodhan, counsel for the Mimstry took the pOSITIOn that the collectIve agreement proVIdes for provmce-wIde semonty and that the Umon-s posItIOn that It IS TIed to the dUTIes of a pOSITIOn contradIcts that fundamental pnncIple, The Umon IS askmg for separate semonty hsts for each employee based on the Job they perform, Based on the proVISIons of the colleCTIve agreement, the Employer had no alternatIve but to offer the contract to the most semor employee The partIes rehed on several prevIOUS deCISIons of the GSB m support of theIr pOSITIOnS, In Ministry 4 of Health and OPSEU GSB # 665/81 (Kennedy), the Issue was whether the relocatIOn of OHIP employees from Toronto to Kmgston consTItuted a lay-off. Several employees dechned to move to Kingston and the Mimstry mtended to treat them as If they had abandoned theIr pOSITIOnS, The Dmon argued that there was a geographIcal component to the posItIOns that the partIes had acknowledged by the reference to Job locaTIons m the Job postmgs and the hmItaTIOn of 40 kilometers for assIgnments, The Board accepted the Dmon-s arguments and determmed that the employees who had dechned the Job offers m Kmgston had been effectIvely laid off, However m that case, the Board rehed m some measure on the fact that the employer had advertIzed the transfers to Kmgston as -Job offers- and refused to accept the argument that a failure to accept those Job offers meant the employees had abandoned theIr Jobs In Beattie et al and Ministry of Transportation GSB # 685/92, (Kaplan), the gnevors were seasonal hne pamters who claimed they should have been recalled to available pOSITIOnS m adjacent distncts when there was no work m theIr home areas, Accordmg to the facts m that case, semonty was calculated and mamtamed m mdIvIdual dIStnCtS and seasonal employees were lured based on partIcular distnct budgets, In that case the Dmon argued for a broad defimTIon of -pOSITIOn- m conSIderaTIon of the purpose of the proVISIon, whIch was to proVIde Job secunty for seasonal employees, The gnevor had worked m dIfferent parks over the years and the dutIes performed m those parks were, by and large, the same, The employer argued for a narrow reading of -pOSITIOn- It argued that the dutIes of a Park Warden at the Eastern Gate of a provmcIal park were not the same as the dutIes of a Park Warden at 5 the Western Gate In consldenng the submIssIons of the partIes, the Board referred to two GSB decIsIOns that had prevIously determmed the meanIng to be gIven to the word -pOSITIOn- In Kuiack et al GSB # 1263/89 (Dlssanayake), the Board was asked to mterpret a provISIon of the collectIve agreement whIch provIded that -where the Employer reduces the number of seasonal employees pnor to the expIry date of employment speCIfied m the contracts of employment, seasonal employees m the same pOSITIOn shall be laid off m reverse order of semonty- The employer m that case was seekmg a narrow apphcaTIon of semonty to pOSItIOns m the same geographIcal pOSItIOn, The Board held, at pages 13-14 In consldenng whether two pOSITIOnS are substanTIally SImilar geographIc locaTIon IS a cntenon to be conSIdered m additIOn to the cntena relatmg to dUTIes and responsibihtles, In partIcular cases there may be other relevant factors, such as common management control, whIch will mfluence a determmaTIon of whether two pOSITIOnS are the same In the present case, gIven the relaTIvely short dIstance between the two fire attack bases [119 kIlometres by road and 57 kIlometres as -the crow flles-], the fact that employees regularly go out to fight fires m both locaTIons regardless of theIr home base, the fact that both bases are managed and admmlstered by a smgle -headquarters- all mdicate a finding on the baSIS of a functIonal approach that the pOSITIOn at WhItney and Haliburton are the same for purposes of artIcle 3.21 1 Mr Thorup posed the hypotheTIcal SItuaTIOn of an employee m WhItney seekIng to bump mto a pOSITIOn m Kenora or Thunder Bay On tlns functIonal approach, It IS likely that m that SItuaTIOn the Board will conSIder the dIstance between WhItney and those locaTIons m consldenng whether the pOSITIOnS are the same For the same reason, the concerns expressed by Mr Thorup as to the possiblhty that an employee may lose hIS semonty under artIcle 3.20.2( a) because he refused an offer of reemployment m a distant locatIOn appeared to us to be unfounded, That IS because the Board IS unlikely to find such a pOSItIOn to be the employee-s former pOSItIOn under artIcle 3.20 1 6 In Kauffeldt GSB # 771/89 (Wilson), the Board held that the words -former pOSITIOn- should be mterpreted on a SImilar functIOnal baSIS and that locaTIon should be one factor to be conSIdered, That Board was saTIsfied that -former pOSItIOns m 3.201 do not refer and, mdeed, funcTIonally could not at the same TIme refer to the former pOSITIOn m Tweed as well as m Windsor or Thunder Bay It found that there was no eVIdence that the partIes mtended what IS now 3.21 1 to be restnctIvely apphed to speCIfic pOSItIOns, With those cases m mmd, ArbItrator Kaplan compared the Jobs at Issue before hIm, The gnevors m hIS case did not regularly work m other dIStrICtS and were not subject to the same control and direCTIon, They were assIgned to dUTIes and responsibihTIes exclUSIvely m theIr own dIstnct, The Board was not prepared to allow the gnevors to exerCIse semonty WIth respect to a pOSItIOn located 150 kllometres away It accepted the Umon-s assertIon m the case of the transfer ofOHIP Jobs to Kmgston that -on the baSIS of realIty and reasonableness, aJob m Kingston could not reahstIcally be VIewed as the same Job that prevIously eXIsted m Toronto- The Employer also referred thIs Board to a senes of cases that supported ItS mterpretaTIon, In the Genery and Ministry of Transportation GSB # 1468/85 (Fraser), the gnevor had been a seasonal employee for about ten years when hIs contract was not renewed for the 1985/86 wmter season, The partIes were agreed that the gnevor had more semonty than the three employees who had been offered 7 contracts for that season, The language of the collectIve agreement was the same as that before tlns Board and the gnevance reqUIred a defimtIOn of -former pOSItIon- The employer mterpreted the collectIve agreement as requmng an employee to complete ms/her probatIonary penod m one gIven pOSItIOn, that IS as a checker or as a snow plow helper but not m a combmatIOn of both, Only then did recall nghts vest. The umon argued that the gnevor had recall nghts to any pOSItIon he had held m the past. The Board rejected the employer-s argument that an employee would have to serve a new probatIOnary penod WIth each new pOSItIon, It held that -former pOSItIons- described m artIcle 3.20 1 (now 3.21 1) meant -any pOSItIon formally held m the past by a seasonal employee who has completed hIS or her probatIOnary penod, The Board m Paananen and Ministry of Natural Resources GSB # 1864/90 (Ratushny), accepted the Board-s deCISIon m Genery (supra) and declared that the gnevor WIth the greatest semonty should be gIven a preference for a seasonal pOSItIOn, One of the questIons asked of the Board m Beauvalet et al and Ministry of Tourism and Recreation, GSB # 2853/92 (0 Gray), was whether there was a -former pOSItIon- to wmch the gnevors ought to have been recalled pursuant to subsectIOn 3.21 1 In consIdenng that questIon, the Board stated, at page 7 The meanmgs of oposItIono and oformer posItIono 111 sImilarh worded proVISIons of preVIOUS agreements had been conSIdered 111 several GSB deCISIOns before the partIes entered 111tO the 1992-93 collective agreement: W Furness 602/86 (Slone) Brousseau, 2285/87 (Devhn) Munro and Boden 677/88 (Fraser) Orville D Smith, 2315/87 (DIssanavake), G Genen 1468/85 (Fraser) Kauffeldt 771/89 (Wilson) aIId Anderson, 471/86 (Roberts) Those deCISIOns came to these conclUSIOns - The pOSItion m whIch an emplovee completes hIS or her probatIon1ln penod may not be a seasonal emploveeos onh ofonller posItIono Any pOSItion 8 whIch the emplovee oformalh occupIed, by a formal appo111tment. under the Pubhc ServIce Act- IS a ofonner posItIono for purposes of subsectIOn 3,20,2 G Gener), - A target posItion WIth essentially the SaIne functions as a seasonal emploveeos prevIOUS posItion IS that emploveeos oformer posItIono even If the fWIctIons of the target posItion are to be perfonned elsewhere than at the location at whIch the emplovee performed them 111 the prevIOUS posItion, W Furness Kauffeldt - Job titles are not determ111atIve, and m1110r variations 111 the Job duties between a prevIOUS posItion aIId a target posItion will not prevent the latter from be111g a oformer posItIono but It IS 111sufficIent that the prevIOUS and target posItions fall wItllln the SaIne classIfication, Orville D Smith - It IS not enough for there to be an overlap of some functions of the target and prevIOUS posItions, there must be a substantial correspondence 111 all of theIr core functions Anderson, Brousseau aIId Munro and Boden The term -target posItIOn- m thIS case meant a posItIOn claimed by a seasonal employee to be a -former pOSITIOn- to whIch (s)he had recall nghts, The Board went on to say at page 8 The test IS whether the target posItion is tlIe emploveeos fonner posItion, a test whIch IS satisfied onh If the target posItion and a prevIOUS posItion of the emplovee are substantially sImilar If there IS a matenal dIfference 111 the Job fWIctIons 111volved or skills reqUIred 111 tlIe two posItIOns be111g compared, then the two posItions are not substantially sImilar for purposes of the test. As can be seen from these case, the phrase -former pOSITIOn- has been conSIdered by other panels of the GSB I accept ArbItrator Gray-s summary of the cases as an accurate analYSIS of them, Applymg those pnncIples to the mstant case, there IS no dIspute that the gnevor and Mr Burke worked for several years as Highway EqUIpment Operators for the Mimstry of TransportaTIon, Mr LacroIX accumulated 3730 5 hours at the Rutter yard and Mr Burke accumulated 3168 hours at the K1l1amey 9 yard, Until 1992, those two yards operated separately and the employees from one yard never worked at the other Indeed, the Killarney yard was consIdered to be too far away from the Rutter yard to allow cross-overs m assIgnments, LocatIOn IS a factor to be conSIdered m determImng how to apply the phrase -former pOSITIOn- In the CIrcumstances set out above, the Employer set up the parameters for the Jobs and determmed they were separate work SItes for all purposes, The semonty of Rutter yard would have been confined, m those CIrcumstances, to the actual Job SIte at Rutter yard, SImilarly seasonal employees at Killamey would have expected, and nghtly so, that the recall to work m the fall would be restncted to the seasonal workers at the Killamey yard, However m 1992 that changed, Those two yards, along With the Bntt yard, were amalgamated, The Rutter yard became the headquarters for all three and the Mimstry employees were redeployed or gIven surplus notIces, The separaTIon of the Rutter and Killamey yards no longer eXIsted, The semonty of employees at one yard was transferred to the other ObVIOusly that was the only fair method of deahng WIth long servIce seasonal employees, Mr Burke had performed the same dUTIes as a Highway EqUIpment Operator 2 as the gnevor for almost the same penod of TIme, It would have been mamfestly unfair to suggest he lose all of that semonty when the dUTIes of that pOSITIOn conTInued to be performed at the new headquarters, The collectIve agreement STIpulates that semonty for seasonal employees accumulates on the baSIS of all hours worked as a seasonal employee It does not state that semonty only accumulates m each pOSITIOn separately The Umon, m tlns case, IS seekmg a more restnCTIve defimTIon than the employer 10 was m the Genery case (supra) In that case the employer took that posItIOn that an employee had to complete a probatIOnary penod of two full pen ods of seasonal work m one pOSITIOn before any recall nghts vested, In tlns case the Umon would go further when It asks for a defimTIon that would reqUIre semonty to be lImIted to one posItIOn forever and not Just for the purposes of probaTIon, That IS not what the collectIve agreement proVIdes and would vIolate the very pnncIple of semonty m general, Therefore, Mr Burke, through vanous seasonal contract WIth the Mimstry of TransportaTIon, accumulated 3966 hours of semonty to the gnevor-s 3730 5 Mr Burke had more semonty and, accordmg to artIcle 3.21 1 was entItled to be recalled to the Highway EqUIpment Operator 2 pOSITIOn m preference to the gnevor The gnevance IS dismIssed, Dated at Toronto, thIS 19th day of October 1999 Loretta Mikus, Vice-Chair 11