HomeMy WebLinkAboutMurrell 06-06-15
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IN THE MATTER OF AN ARBITRATION UNDER SECTION 48 OF
THE LABOUR RELATIONS ACT, 1995 (as amended)
BETWEEN
Ontario Public Service Employees Union (lithe union")
AND
Complex Services Inc. c.o.b. Casino Niagara
("the employer" or "the Casino")
And in the matter of the grievance of Rose Murrell, who contends that she
has been discriminated against and denied certain work opportunities
because of her trade union sympathies.
BEFORE:
R.O. MacDowell
Judith Rundle
Ed Seymour
( Chair)
(Employer Nominee)
(Union Nominee)
APPEARANCES:
For the Union:
Mitch Bevan
Rose Murrell
(Union Representative)
For the Employer:
Paul Pingue
Richard Paris
Ken Conhiser
(Counsel)
A hearing in this matter was held in Niagara Falls on April 13, 2006.
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AWARD
I - What this case is about
This arbitration proceeding arises from the grievance of Rose Murrell,
("the grievor") who claims that she has been "discriminated against" and penalized by
her employer, because of her participation in the affairs of her union. The union asserts
that the grievor has been improperly denied the opportunity to work as a "temporary shift
supervisor" - a work assignment that has been routinely given to the grievor in the past,
but was later withheld from her when the employer found out that she had attended a
union convention, and was seen wearing a "union T-Shirt". Ms. Murrell's gnevance was
filed on May 1, 2005, and reads as follows:
I grieve that the employer has violated, but not limited to article
3.0 of the collective agreement and any other relevant legislation
when I was discriminated against due to my association and
involvement with my union.
As will be seen: the grievance invokes the protections ofthe collective agreement, as well
as those that may be found in "any other relevant legislation".
*
The employer denies that it has acted improperly, and argues, variously,
that the grievor's claim is not "arbitrable", and that, in any event, the conduct complained
of does not constitute a breach of the collective agreement.
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The provisions of the collective agreement to which reference will be
made are as follows (emphasis added):
ARTICLE 2 REGOGNITION
2.02 Shift Supervisors
(a) With the employee's agreement, he or she may be asked to fill
the role of Shift Supervisor on a temporary basis. The employee
will not lose seniority while working outside the bargaining unit.
(b) It is agreed that where an employee has agreed to act outside
the bargaining unit as a Shift Supervisor the Employer will ensure
that this person is identifiable as a Supervisor to employees in the
bargaining unit.
LETTER OF UNDERSTANDING # 1
At negotiations the issue of the temporary Shift Supervisors
imposing discipline on bargaining unit members was discussed.
The Employer indicated that, while it could not limit its
Supervisory role, it recognized the issues that could potentially
arise if these individuals impose discipline.
ARTICLE 3 NO HARASSMENT / DISCRIMINATION
3.01 The Employer, Union and employees agree that there
will be no intimidation, harassment, discrimination, interference,
restraint or coercion exercised or practiced by their
representatives because of membership or non-membership in the
Union, or because of activity or lack of activity in the Union.
3.02 The Employer, Union and employees agree that they
all have rights and obligations under the Ontario Human Rights
Code.
ARTICLE 4 - MANAGEMENT RIGHTS
4.01 The Union recognizes and acknowledges that the
management of the operation by the Employer and the direction
of the working forces are fixed with the Employer and that all
rights heretofore exercised by the Employer or inherent in the
employer not expressly contracted away by a specific provision of
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this Af!reement are retained by the Employer. Without restricting
the generality of the foregoing, the Union acknowledges that it is
the exclusive function ofthe Employer to:
(a) maintain order, discipline and efficiency;
(b) hire, assign, direct, promote, demote, classify, transfer, layoff,
recall and to suspend, discharge or otherwise discipline
employees for cause in accordance with this Agreement sub;ect to
the right of the emplovees to grieve to the extent and manner
provided herein if the provisions of this Af!reement are violated in
the exercise of these rights:
(c) discipline or discharge probationary employees, provided such
action is not motivated solely by bad faith and recognizing that
such discipline or discharge is not subject to the
grievance/arbitration procedure set out in this Agreement, except
where such bad faith can be proven;
(d) determine the nature and kind of business conducted by the
Employer, the methods and techniques of work, the schedules of
work, to make a studies of and to institute changes in jobs and job
assignments and job classifications, the extension, limitation
curtailment or cessation of operations;
( e) make enforce and alter from time to time reasonable policies,
rules and regulations to be observed by the employees, which
policies rules and regulations shall not be inconsistent with the
provisions of this collective agreement. All changes in human
resources and employment related policies, rules and regulations
must first be provided to the Union prior to implementation;
(f) have jurisdiction over all operations, buildings, facilities and
equipment and all decisions related to same;
(g) generally manage and operate the activities of the Employer.
[emphasis added]
For completeness, it may also be useful to record the following sections of
the Labour Relations Act, which, we think, can be usefully read together with Article
3.01 of the collective agreement:
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5. Every person is free to join a trade union of the
person's own choice and to participate in its lawful
activities. 1995, c. 1, Sched. A, s. 5.
72. No employer, employers' organization or person
acting on behalf of an employer or an employers'
organization,
(a) shall refuse to employ or to continue to employ a
person, or discriminate against a person in regard to
employment or any term or condition of employment
because the person was or is a member of a trade union
or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of
employment or propose the imposition of any condition
in a contract of employment that seeks to restrain an
employee or a person seeking employment from
becoming a member of a trade union or exercising any
other rights any obligations under this Act. 1995, c. 1,
Sched. A, s. 76. under this Act; or
(c) shall seek by threat of dismissal, or by any other
kind of threat, or by the imposition of a pecuniary or
other penalty, or by any other means to compel an
employee to become or refrain from becoming or to
continue to be or to cease to be a member or officer or
representative of a trade union or to cease to exercise
any other rights under this Act. 1995, c. 1, Sched. A,
s.72.
76. No person, trade union or employers' organization
shall seek by intimidation or coercion to compel any
person to become or refrain from becoming or to
continue to be or to cease to be a member of a trade
union or of an employers' organization or to refrain
from exercising any other rights under this Act or from
performing any obligations under this Act.
In our view, we are entitled to refer to these statutory provisions because
of section 48(12)(j) of Labour Relations Act, [as interpreted by the Supreme Court of
Canada in Parry Sound (District) Social Services Administration Board v. Ontario Public
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Employees Union, Local 324 [2003] 2 S.C.R. 157]; and, in our opinion, they help to
establish the "general legal context" for the case before us. So does section 56 ofthe Act,
which makes it clear that a "collective agreement" is to be read "subject to and for the
purposes of' the legislation.
These sections of the statute form part of the irreducible framework of
statutory rights with which the collective agreement must be congruent; and, in our view,
they also help to illuminate the way in which we should approach the application of
Article 3 - a stand-alone clause which, as will be seen, largely parallels the employee
protections that already exist, by virtue of the statute, and which makes those protections
enforceable at arbitration.
II - Background
The union is the bargaining agent for a number of "security employees"
who work at the employer's casino, in Niagara Falls, Ontario. The grievor is a security
officer and a member of the bargaining unit represented by the union. The grievor has
been an employee of "Casino Niagara" for approximately 8 Yz years.
The gnevor IS one of a number of bargaining unit members who
sometimes perform the role of "temporary shift supervisor" - a position that is outside
the bargaining unit, but is mentioned in Article 2.02 of the collective agreement (see
above), and is routinely filled by bargaining unit employees. As the job title suggests: the
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"temporary shift supervisors" are bargaining unit employees who take over, from time to
time, on a temporary basis, when the regular shift supervisors are unavailable. Moreover,
employees working as a "temporary shift supervisor" earn a premium over their regular
wage rate; so that, from this perspective, this is a desirable work assignment.
The role of "temporary shift supervisor" is performed on an as-needed
basis, by so-called "duals" (the parties' own terminology): bargaining unit employees
who have obtained an additional licence from the Alcohol and Gaming Commission, that
entitles them to act as a "supervisor". The extra licence - known as a "key licence" - is
necessary to perform such supervisory functions, even on a temporary basis.
There is no dispute that the position of "temporary shift supervisor" is
something of an anomaly in this work setting. It is outside the constellation of positions
covered by the collective agreement, but it is nevertheless regularly filled by bargaining
unit employees ("duals"), who are offered the job, from time to time, when regular
supervisors are absent; moreover, when a bargaining unit employee is acting as a
"temporary shift supervisor", s/he continues to accumulate seniority, as if s/he were still
in the bargaining unit. Bargaining unit employees face no "seniority penalty" if they
accept these temporary supervisory assignments, and they retain their rights in respect of
their regular positions in the bargaining unit, even though they may work from time to
time outside the bargaining unit. The ambiguity is also reflected in Letter of
Understanding #1, reproduced above (although there is no evidence that the "issues"
hinted at in Letter of Understanding #1 have ever actually materialized).
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Be that as it may, it is evident that the employer's practice has some
advantages for both parties; and no one seems to have pressed for a definitive
determination of the "status" of these individuals under the Labour Relations Act (see
sections 1(3) and 114 of the Act). From the employer's perspective, the "duals" form a
pool of capable employees from which it can draw to fill in gaps when regular
supervisory personnel are not available - allowing the employer to operate with a
"leaner" complement of permanent supervisors, than might otherwise be the case. From
the employees' perspective, the position of "temporary shift supervisor" is a remunerative
work assignment, as well as an opportunity to get some useful "supervisory" experience.
Both sides benefit, when these positions are offered to bargaining unit
members - as has been the employer's practice, and is expressly contemplated by Article
2.02 of the collective agreement.
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The grievor is a "dual", who holds a "key licence", and has worked as a
temporary supervisor on a number of occasions in the past. There is no assertion that her
performance as a "temporary shift supervisor" has been unsatisfactory in any way. Her
problems only arose in early 2005, when the employer decided that her apparent union
sympathies were inconsistent with the role of a temporary shift supervisor.
The grievor holds no union office. Nor is there any evidence that she has
been particularly active in union affairs. However, in the spring of 2005 she attended an
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OPSEU convention, as an "observer"; and, on one occasion, on her day off, she was
observed by management, wearing aT-Shirt with the union logo on it.
As a result of these observations, the grievor was called to a meeting with
Ken Conhiser, the security manager. Mr. Conhiser expressed concern about the grievor's
union sympathies, and suggested that, in his opinion, such activities were inconsistent
with her being a "dual", or performing the role of temporary shift supervisor. Mr.
Conhiser said that, in consequence, her "dualing" would be put "on the back burner",
until the grievor decided what she wanted to do.
Mr. Conhiser's version of this meeting is found in his memo of May 9,
2005, wherein he wrote:
During the meeting I held with Officer Murrell on April 19, 2005
I informed her that I felt there was a potential conflict of interest
in her serving as a Dual Shift Supervisor due to the recent
increase in her Union involvement. I went on to suggest to her
that. if that was the direction she wished to pursue, then I
encouraged it fully. I indicated to her that I would not take steps
to have her key license removed, but would simply refrain from
scheduling her as a Dual Shift Supervisor for the time being. Her
response was that if I was going to do that she would prefer that I
take her Dual status away completely. Officer Murrell
subsequently submitted her formal resignation from the Dual
Shift Supervisor role on April 22, 2005. [emphasis added]
The "union involvement" mentioned in the memo was the wearing of the
T Shirt and attendance at the union convention - although it is not clear how the employer
became aware of the latter. The reference to having her "key licence removed", is a
reference to the licence issued by the Alcohol & Gaming Commission.
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The memo makes it clear that as a result of the grievor's "union
involvement", she would no longer be scheduled to work as a temporary supervisor. The
memo also raises the spectre that the employer would take steps to have the grievor's
"key licence" removed.
The grievor was upset by her employer's reaction to what, (as the union
describes it) was merely an effort to learn a little more about her union. The grievor saw
no conflict between her interest in the union, and her performance as a temporary shift
supervisor; yet she was being presented with a choice: if she did not abandon such
activity she would not be scheduled to work in that temporary supervisory capacity, and
the employer would take steps to have her key licence rescinded. The grievor felt that, in
the circumstances, she had no alternative but to "resign" from being a "dual"; and on
April 22 she wrote the following memo, explaining her position:
Due to the fact that my resignation from the dual rate supervisor
position will be reflected in my personnel file, I thought it would
be in my best interest to put in an official resignation. I want to
make it clear that the decision to resign was not done so willingly
(sic). Management believed that there was a "conflict of interest"
due to the fact that I attended an OPSEU convention and, on my
day off, wore an OPSEU shirt to complete my shift bid. It should
be noted that as of this time and any time prior I have held no
position in OPSEU other than a basic card-carrying member (as
are all duals). However management thought it would be best to
put my dualing position on the back burner until further notice. I
advised the management that I disagreed with the decision and
would not be satisfied being put on the back burner as I felt it was
punitive. I then offered my resignation as I felt there was no other
alternative. Pro union should not and does not necessarily imply
anti-management. I worked well with both.
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III - The Position of the Parties
The employer emphasizes that the position of "temporary shift supervisor"
is outside the bargaining unit. There are no provisions in the collective agreement
regulating the allocation of these jobs (as there are for bargaining unit jobs via the job
posting provisions), and bargaining unit employees have no negotiated "right" to such
work assignments. Nor, the employer argues, does the collective agreement apply to the
employees who hold these positions, when they hold them.
As the employer sees it, therefore, the right to make these work
assignments remains the exclusive prerogative of the employer - an unreviewable
discretion, preserved pursuant to Article 4 of the collective agreement, and mentioned, as
well, (i.e. as a discretion) in Article 2.02. In the employer's submission, a board of
arbitration has no "jurisdiction" with respect to this area of managerial decision-making,
and, any disputes about the allocation of these non-bargaining unit positions are simply
not "arbitrable".
The employer acknowledges (without conceding) that the Ontario Labour
Relations Board might have the authority to scrutinize the situation under the unfair
labour practice provisions of the Labour Relations Act; but in the employer's submission,
an arbitrator does not. The employer maintains that Article 3 does not prevent a
differentiation between employees who are covered by the collective agreement and
employees who are not -- which, the employer says, is what is happening here.
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With respect to the facts, the employer submits that there has, in any
event, been no concrete, adverse consequences for the grievor - who, in fact, pre-empted
any employer action in this regard, by tendering her "resignation". Counsel submits that
there was, at most, an employer expression of concern about an apparent "conflict of
interest"; and that there were no actual steps taken to act on that concern. Instead, the
grievor resigned. Moreover, in the employer's submission, there has been no interference
with, or infringement of, any of the grievor's rights as an employee in the bargaining
unit. Her rights under the collective agreement, or as a bargaining unit employee, are not
impaired in any way by what has happened here - however, it is characterized; and in the
employer's submission, she has no "rights" in respect of positions outside the bargaining
unit, or beyond the scope of the collective agreement.
The employer submits that grievor's rights are defined and circumscribed
by the collective agreement, and that, insofar as such rights are concerned, she remains in
the same position as before. There has been no adverse affect to any actual "right" that
the grievor has, by virtue of her membership in the union or the bargaining unit
represented by the union. Nor has she been inappropriately penalized.
We were referred to the following arbitration awards, which were said to
support the employer's position that the collective agreement could not be applied to
positions outside the bargaining unit, or to the managerial discretion to appoint people to
such positions: Re Interlink Freight Services and Transportation Communications Union
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(1996) 55 L.A.C. (4th) 289 (Picher); and Re Ontario Lottery and Gaming Corporation
and OPSEU [2005] a.L.A.A. No. 370 (Knopf).
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The union's position can also be summarized quite simply.
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The union does not quarrel with the employer's starting point: that there is
a general discretion to assign temporary supervisory positions to whomever the employer
chooses, in accordance with whatever criteria the employer chooses. The union concedes
that these jobs are not like those that are covered by the collective agreement and
regulated by the job posting provisions of the collective agreement. Accordingly, the
union concedes that the employer has a large degree of discretion with respect to these
positions; and, that such discretion is recognized in Article 2 itself, which contemplates
that an employee "mav be asked to fill the role of Shift Supervisor on a temporary
basis...".
However, in the union's submission, when exercising that discretion, the
employer is not entitled to discriminate between bargaining unit members on the basis of
their trade union sympathies, or take into account whether the employee does or does not
support the union, or to disadvantage an employee because s/he has indicated his/her
support for the union. Nor is the employer entitled to "penalize" employees, or deny them
advantageous work opportunities, because they have expressed an interest in their union.
And in the union's submission, that is what has happened here: "but for" the grievor's
expressed interest in the affairs of her union, she would have continued to be assigned to
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these remunerative work opportunities, as she had been in the past: the only reason she
was denied these work opportunities, is her modest showing of interest in the union.
The union says that the message to employees is clear: "choose sides"; and
if you do show any support for the union at all (even the rather modest showing of
interest that the grievor has in this case), then you will not get the beneficial exercise of
any employer discretions.
In the union's submission, it is a clear message to employees: not to
engage in the very activities that are purportedly protected by both the statute and Article
3 of the collective agreement.
The union points out that while the position under review is "outside" the
bargaining unit, Article 2 of the collective agreement specifically contemplates that
bargaining unit employees will be offered, and will occupy, such positions from time to
time (as they have done, in practice); and also that employees in that position will
continue to accumulate seniority and maintain their bargaining unit status. The employees
in question do not sever their "connection" with the bargaining unit when they are
working temporarily outside the bargaining unit; and, in fact, for some purposes, they are
treated as if they are still in the unit, in the expectation that they will return to the
bargaining unit, after their temporary stint as a supervisor is over. Yet the grievor was
told that such remunerative positions would not be open to her, so long as she evidenced
an interest in her union. She was told that her assignment to such jobs would be put "on
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the back burner" while the employer considered whether to seek rescission of her key
licence.
As the union sees it, the grievor was given a choice: she must abandon her
interest in the union and forego her participation in the lawful activities of the union, or
she would not have access to these desirable work opportunities; and in the union's
submission, Article 3 prevents the employer from penalizing an employee in this way, or
from taking her union views into account.
Put simply: the umon says that "management rights" (spelled out in
Article 4 of the collective agreement and more generally), are constrained by the "no-
discrimation" provisions in Article 3.01 and Article 3.02 of the collective agreement; and
that the employer is no more entitled to take union sympathy into account, than race,
creed, age, or sex etc. - the factors mentioned in Article 3.02, via a reference to the
Ontario Human Rights Code. Accordingly, while the employer has a discretion under
Article 4 and Article 2 to offer these plum positions to employees in the bargaining unit,
it cannot exclude union supporters from consideration. It cannot apply Article 2.02 as if
it read, in effect: ".......he or she may be asked to fill the role of Shift Supervisor on a
temporary basis provided that s/he has not expressed any interest in the union, or
engaged in any lawful union activities......".
In the union's submission the employer's actions in the instant case are a
breach of both the collective agreement and the Labour Relations Act. The union seeks a
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declaration that the employer has acted unlawfully, together with compensation for the
grievor's lost work opportunities.
In support of the union's position we were referred to the following
arbitration decisions, in which arbitrators considered whether employer conduct was
tainted by "anti-union animus", and was therefore unlawful or illegitimate: Re Horizon
Operations (Canada) Ltd. and CEP, Local 2000 (Jaeger Grievance), (2000) 93 L.A.C.
(4th) 47 (Starkman); Re Toronto Star & Toronto Newpaper Guild, (1977), 15 L.C.C.
(2nd) 326 (Beck); Re Prince Foods Inc. and UFCW Local 175 (Brisbois Grievance),
(2004) 131 L.C.C.(4th) 418 (Starkman); Re Alberta Hospital Ponoka and A. U.P.E. Local
42 (1994) 46 L.C.C. (4th) 231 (Ponack); Re Toronto Public Library Board and CUPE
Local 1996 (1984), 17 L.A.C. (3rd) 22 (Kates); and Re OPSEU and Crown in Right of
Ontario (Lumley Grievance) - a decision of the Ontario Grievance Settlement Board,
released on August 24, 1992 (Gorsky).
Those decisions not only consider the impact of provisions such as Article
3, but they also typically examine the relationship between the collective agreement and
the relevant statutory scheme (the Labour Relations Act or its equivalent). And they hold,
generally, that the framework of statutory rights, should inform the interpretation or
application of similar provisions found in the collective agreement - a position that the
union also advances in the instant case.
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IV - Discussion and Disposition
In our view, there is no doubt that the grievor's claim is "arbitrable" -
which is to say, that an arbitrator has "jurisdiction" to consider her grievance, and to
grant her a remedy if the employer has acted illegally. The Parry Sound case (cited
above) stands for proposition that an employer's broad "management rights" to run the
business, must nevertheless be exercised in accordance with external employment law;
and if they are not, then an arbitrator may give an aggrieved employee a remedy
(arbitrator Knopf makes the same point, in Ontario Lottery and Gaming Corporation, at
paragraph 18). Moreover, an arbitrator has that authority, even if (as was the case in
Parry Sound) the complaint would not otherwise be "arbitrable", looking at the collective
agreement alone.
On that basis alone, we think that grievor's case is "arbitrable" - even
though it might also be something that could be raised as an "unfair labour practice"
allegation, before the Ontario Labour Relations Board (see Valdi Inc. [1980] OLRB Rep.
August 1254, where then Chairman George Adams confirms that unfair labour practice
allegations can be dealt with either by an arbitrator, or by the Board itself).
However, quite apart from the decision in Parry Sound, (see also: McLeod
v. Egan [1975] S.C.R. 517) it appears to us that Article 3 of the collective agreement
provides an independent "contractual" foundation for challenging the employer's actions.
Because, as we have already noted, Article 3 largely parallels the unfair labour practice
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provisions of the Labour Relations Act. Moreover, it prohibits the employer, inter alia,
from "discriminating" against employees because of their lawful trade union activity, or
from "interfering" with such lawful union activity - or, in our view, from applying
economic pressure with a view to inducing employees to forego their union activity.
Article 3, it will be recalled, is entitled "No Harassment/No
Discrimination", and reads as follows:
3.01 The Employer, Union and employees agree that there will
be no intimidation, harassment, discrimination, interference,
restraint or coercion exercised or practiced by their
representatives because of membership or non-membership in the
Union, or because of activity or lack of activity in the Union.
In our opinion, Article 3 is a "stand alone" contractual prohibition, that is
not dependent upon the substantive rights spelled out elsewhere in the agreement or in
any governing legislation; and in our view, the clause clearly supplements those other
rights. It is neither derivative nor redundant; but rather provides an independent standard
to which the named parties must adhere in their dealings with each other. Moreover,
insofar as "management rights" are concerned, it is worth recalling that Article 4 not only
contains a listing of those "management rights", but also states that their exercise
(including the right to "promote") must conform to the provisions of the collective
agreement - one of which is Article 3.
Superficially, then, there is no obvious reason why Article 3 should not
constrain the exercise of management rights under Article 40r the exercise of discretion
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mentioned in Article 2.02(a); and linguistically, that is the way the two clauses "read",
when considered together.
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We do not think that there is any doubt that the employer's conduct in this
case is "discriminatory" in the ordinary sense of that word, or that such "discrimination"
is based upon the kind of activity that is addressed, and ostensibly protected, by Article 3.
The employer is drawing an invidious distinction between those
employees who support the union, and those employees who do not; and the employer is
barring union sympathisers from remunerative work opportunities, that are openly
offered to other employees who choose not to reveal or display their interest in the union.
It is plain, in other words, that the grievor is being overtly disadvantaged
because she has showed a modest interest in the affairs of her union; and that she was
being asked to choose between the remunerative work opportunities that she had enjoyed
in the past, and any overt manifestation of "union support" - even away from the work
place, and on her own time.
Indeed, it seems to us that the employer's conduct speaks for itself: it is
overtly "discriminatory" on a prohibited ground, and it cannot but inhibit lawful union
activity. It carries with it unavoidable consequences that the employer could not only
foresee, but that it must be taken to have intended. And it is a 'message' that the other
employees are unlikely to miss.
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*
It seems to us, therefore, that prima facie, the situation falls within both
the language of Article 3, and the "mischief' to which that provision was directed.
*
The employer's pnmary argument for this particular form of
discrimination, is that the undertakings found in Article 3 cannot apply to the selection of
"temporary supervisors", because such positions (and the persons who hold them) are
outside the bargaining unit (at least when they hold them); and that to read Article 3 in
the open-ended way in which it is written, would extend the reach of the collective
agreement into areas, and to persons, where it was never intended to apply.
Or put differently: because the collective agreement may not apply to
these bargaining unit employees, while they are in the role of "temporary supervisor", it
cannot apply to the selection process (as between bargaining unit members) by which
union members obtain such excluded positions.
Or put differently still: that the employer is entitled to "discriminate" etc.
against bargaining unit employees, because of their trade union sympathies, provided that
the subject matter of the discrimination pertains to a position beyond the reach of the
agreement.
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However, in our opinion, such a narrow reading of Article 3 is inconsistent
with both its content and its context -- as well as with the protections found in the Labour
Relations Act, with which the collective agreement should be congruent.
*
We might begin by observing that there is nothing in the language of
Article 3 itself, that limits its application in any way; and its linguistic structure (it applies
to the union, and to the employer, and to the employees) suggests a liberal rather than a
narrow interpretation. It is a general undertaking by all parties affected by the collective
agreement, that their behaviour will not be animated by this particular form of
"discrimination" .
Article 3 says, clearly and simply, that "... there will be no...
discrimination..." on any of the prohibited grounds; and in light of that undertaking, we
do not think that we should lightly conclude that what the parties really meant, was that
there can be some forms of discrimination after all.
Article 3 is a simple and specific prohibition on particular kinds of
conduct, motivated by an identifiable and specified consideration (union activity) -- not
unlike the prohibitions found in the Human Rights Code, which are echoed in Article
3.02 of the collective agreement. Such prohibition is not limited or conditional in any
way; and, if anything, the juxtaposition with the broad management rights clause,
suggests that Article 3 is intended to limit these very rights (including, be it noted right to
"promote" employees to whom the collective agreement applies). Because Article 4
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itself, recognizes that the right to hire, assign, direct, promote, demote, classify, transfer,
layoff,... etc., is vested in management then goes on to say that those rights must be
exercised in a manner that does not collide with the other provisions of the agreement -
one of which is Article 3.
Could the employer say, with impunity: "we will not promote black
people to the position of temporary supervisor"? Clearly not; and in our view, the
undertakings found in Article 3 stand on the same foundation: the employer has
undertaken that its behaviour in respect of employees in the bargaining unit, will not be
influenced by their participation in union activities, which, as it happens, are also
protected by the Labour Relations Act. Moreover, in our opinion, reading the clause in
this way, is also more consistent with the general law (especially in light of the decision
in Parry Sound), than the narrow and parsimonious interpretation urged upon us by the
employer.
It is true that there is no "right" to be promoted to the position of
temporary supervisor. There is no "right" to free parking either. But that does not mean
that the employer could offer free parking to union opponents but not to union supporters;
nor having offered such privileges to employees, generally, could the employer then
remove them, selectively, if an employee demonstrates her "disloyalty" by supporting a
union: which, we repeat, is a legally protected statutory right, that is also protected by the
agreement in Article 3.
22
We do not think that it is open to an employer to penalize or reward
employees in this way; nor does the employer have a free hand to "discriminate" just
because there is no collective agreement provision regulating the particular form in which
such reward, or penalty, or discrimination may take. Because, the agreement says, quite
simply, that there is to be no such discrimination.
In our opinion, therefore, Article 3 is clear on its face and means what it
says: III its dealings with bargaining unit employees, the employer will not harass,
intimidate, coerce or discriminate against those employees because of their activity or
lack of activity in the union. The agreement neither defines nor restricts the means by
which such harassment, discrimination, interference etc. may be accomplished. What it
does say, is that the proscribed activities can be subject to grievance and remedy,
however they arise.
In our view, it does not matter that the discriminatory policy or behaviour
involves something that is not a negotiated 'right' under the collective agreement. It is
sufficient if it is a established privilege which bargaining unit employees enjoy - and
which in the instant case, of course, is specifically contemplated by Article 2.
It important to recognize that the distinction that the employer seeks to
make in this case is not a general one, between bargaining unit employees and individuals
excluded from the bargaining unit, (which was the situation before Arbitrator Knopf in
the Ontario Lottery and Gaming Corporation case), but rather between bargaining unit
23
~
members themselves: advantaging those who forsake their statutorily protected right to
engage in lawful trade union activity, and disadvantaging those who, like the grievor,
show some modest interest in the affairs of their trade union. Nor did the situation before
arbitrator Knopf have the "statutory overlay" that the instant case has. And to this extent
the case before us is distinguishable.
However, to the extent that paragraphs 18 and 22 of the Ontario Lottery
Corporations decision might be read as limiting the reach of Article 3, to positions within
the bargaining unit, we simply do not agree with such statements and decline to follow
them; nor, interestingly was there any arbitral or other convincing support for this
particular proposition - which, in any event, is not easy to square with either the language
of Article 3 (which is not so restricted), or with the statutory foundation of arbitral
authority confirmed in Parry Sound.
It may be that the employer need not treat bargaining unit employees in
the same way as non-bargaining unit employees, in respect of positions outside the
bargaining unit (the complaint before Arbitrator Knopf); however, we do not think that
the employer is entitled to distinguish between bargaining unit employees, on the basis of
their trade union sympathies.
Moreover, even the alleged "bright line distinction" between "bargaining
unit employees" on the one hand, and "non-bargaining unit employees" on the other, is
blurred in this case, because the position of temporary supervisor is routinely populated
24
by bargaining unit members who retain their bargaining unit rights and their bargaining
unit status while engaged in this temporary assignment, (i.e. they do not "quit" the
bargaining unit or the company's employ when they take a temporary position as a shift
supervisor). These employees return to their former jobs in the bargaining unit when they
are finished with their temporary assignments, and they even continue to accumulate
seniority as if they were still in the bargaining unit. This is not, in any sense, a permanent
position, where the operational considerations might be a little different.
To be clear: one can conceive of certain types of "union activity" which,
while lawful and protected, would nevertheless demonstrably interfere with the
performance of an employee's assigned duties; and it is also conceivable (at least
hypothetically) that, in some circumstances, union sympathies, per se, might have that
effect (for example: if a misplaced sense of "union solidarity" prevented an employee
from telling the truth about the misdeeds of his coworkers). Neither of these situations is
"neutral" from the employer's perspective; and in some circumstances, the application of
Article 3 might well call for a "balancing exercise" of the kind described by Arbitrator
Beck, in the Toronto Star case:
The basic principle is that laid down by Laskin in A. V Roe that
has been quoted above. Put simply, it is that the demands of a
particular job, come ahead of authorized union activities. This is
not for one moment to say that a company may arbitrarily - or
even artificially - conclude that an employee's job demands are
incompatible with his union activities. The particular facts must
clearly demonstrate the incompatibility and as the Massey
Ferguson case makes clear, a company may certainly not leap to
the a priori conclusion that that the requirements of a particular
job would be affected by the demands of union activity. It is
unquestionably, perhaps unfortunately, true that there will always
be some conflict between the demands of union activity and the
25
P'
i'>,
demands of the particular job and there must be a legitimate
attempt by both parties to balance of those demands. What the
union may not do is insist that the demands of union activity
come first and the demands of a particular job comes second. Just
as clearly, a company may not under the guise of putting the
demands of a job first, discriminate against an employee for union
activity in a sense of making it difficult if not impossible for him
to carryon legitimate union activity because he knows that certain
jobs or promotional prospects will be foreclosed to him because
of such activity. To repeat, there must be a reasonable balance
between employer and employee.
What Arbitrator Beck is getting at, we think, is that the right to engage in
lawful umon activity may sometimes conflict with the legitimate interests of the
employer, and thus may sometimes be legitimately taken into account by that employer,
in the way that it conducts its affairs. The suggestion is that what might otherwise appear
to be "invidious discrimination", should not be so regarded, (or, what amounts to the
same thing, would not occasion a remedy), when there is a bona fide and compelling
business reason for limiting, or responding to, a purported exercise of protected employee
rights. That proposition was endorsed by Courts and tribunals in cases such as Canadian
Broadcasting Corp. v. Canada Labour Relations Board (1995) 121 D.L.R. (4th) 385
S.c.c.), affirming 92 D.L.R. (4th) 316 (F.C.C) [where the Courts determined that it was
improper for an employer to require an employee to abandon his union office, because
there was no compelling business reason to justify such requirement - suggesting that the
situation might be different if there was]; and we think that, in appropriate circumstances,
it is an approach that arbitrators may adopt as well (both in respect of whether there is
"discrimination", and whether it warrants a remedy).
26
..
~ .
In other words, not all distinctions, or employer responses to employee
union activity may result in invidious "discrimination" of the kind prohibited by Article
3, and/or the various statutes which recognize and protect the same interests. There may
be circumstances where an employer is permitted to differentiate or to respond, even
though that response may affect the exercise of a protected right.
However, where, as here, the employer's conduct is so obviously and
overtly discriminatory, and on a prohibited ground, there is, at the very least, a significant
onus on the employer to demonstrate why its actions are objectively necessary from a
business point of view - which is to say, that in balancing competing concerns, there is a
demonstrable and compelling business interest which must be given preference over the
employee's statutorily and contractually protected right (rather like the "bona fide
occupational qualification defence", which can 'justify" or "excuse" distinctions on a
prohibited ground under the Human Rights Code).
And in the instant case, the evidence does not demonstrate that at all; nor
is it a reasonable (let alone likely) inference from the modest union activities in which the
grievor has been engaged.
*
For the foregoing reasons, we find that the employer has contravened
Article 3 of the collective agreement. In our view, the employer was not, in this setting,
entitled to take into account the grievor's trade union activities, or to put her access to
these work assignments "on the back burner" because she engaged in those activities, or
27
to threaten to have the grievor's key licence removed for going to a union convention, or
wearing a union T Shirt.
In our opinion, the employer was prohibited from distinguishing between
bargaining unit employees in this way, and from taking such union activity into account.
It was obliged to exercise its discretion without reference to the employee's union
activity, and it breached the collective agreement, when it improperly took those
activities into account.
IV - Remedy
In the ordinary course, the purpose of a remedy is to put the aggrieved
employee in the position that s/he would have been in, had there been no breach of the
collective agreement (or a statute, as the case may be). However, that objective is
complicated, in the instant case, by the grievor's purported "resignation" (i.e. the
withdrawal of her standing request to be considered for the role of temporary shift
supervisor), in response to (1) the employer's dictum that her union sympathies were
incompatible with continued access to the position of temporary shift supervisor, and (2)
the equally clear indication that such position would be denied to her, if she persisted in
such displays of union sympathy (attending union meetings, wearing a union T-shirt).
However, in our opinion, that "resignation" was not "voluntary" in any
real sense (as the grievor's memo demonstrates); nor, for the reasons outlined above, do
28
we think that the employer was entitled to put the grievor to that choice. Moreover, there
is nothing to suggest that the employer would have relented, and it did not in fact relent,
in the face of Ms. Murrell's grievance challenging its decision.. On the contrary, both the
manager's memo and the employer's later actions, and the position advanced by the
employer in this case, all suggest that the grievor's behaviour, as seen by the employer,
was going to preclude her from holding these positions - despite that fact that she had
done so in the past. There was nothing hypothetical about it. And of course, the grievor's
response to the situation was entirely reasonable: she filed a grievance, putting the
employer on notice of the challenge, and seeking an affirmative determination of her
rights - both contractual, and, as she put it in her grievance "under any relevant
legislation" .
In the circumstances, we think that the grievor was entitled to be put in the
position that she would have been in, had there been no controversy about her union
activity.
She is entitled to be compensated for the loss of work opportunities that
would have come to her, but for the improper considerations, that were taken into account
by her employer.
We do not know what that compensation might amount to, or how often
the grievor would have been offered such assignments, "but for" the events described
above. However, we think that the grievor is entitled to be compensated for the difference
29
between what she earned in her regular position, and what she would likely have earned,
if she had continued to be eligible for these auxiliary assignments - which is to say, if she
had not been precluded contrary to Article 3.
No doubt that loss is somewhat speculative, but it is not, for that reason
alone, unrecoverable; because there is no reason to believe that - but for the events
described above - the grievor would not have been offered such positions at all, or that
she would have been offered them less frequently than was the case in the past.
So in our view, the grievor has clearly sustained some financial loss, and
the potential difficulty in calculating such loss, does not mean that there should be no
compensation at all.
We decline to speculate at this point on how the grievor's compensation
might be structured or accomplished.. It suffices to day that this Board will simply remain
seized in the event that the parties are unable to agree upon the way in which the
grievor's economic losses can be made good.
VI - Concluding Observations
We have had the opportunity to consider our colleague's dissent; and in
view of the concerns expressed therein, we think that it may be useful to reiterate certain
of the observations explored above.
30
First of all, as we have noted at page 8 of the Award: there has been no
determination by the OLRB that temporary supervisors exercise "managerial functions"
within the meaning of section 1 (3) (b) of the Labour Relations Act, such that they cease
to be "employees" within the meaning of the Act, and cease to be protected by the Act;
moreover, since that determination depends upon the "opinion of the Board" [the OLRB],
it is not one for us to make. Nor do we have any evidence at all about what the
"temporary supervisors" actually "do" - and even the parties' Letter of Understanding is
ambiguous in that regard (".. .issues.. ..could potentially arise... ").
Thus, while the employer may well regard the "temporary supervisors" as
part of the "management team", we do not know what that means, concretely; we cannot
say that they are "manageriaf' within the meaning of Labour Relations Act; and, in the
circumstances, it is our opinion that the Barbara Jarvis case has no application to the
situation (the facts and argument) presented to us.
All that we are prepared to say therefore (and this is not in dispute), is that
the individuals occupying the position of "temporary supervisor" are outside the
bargaining unit, while they are in that position; and we have approached the case on that
basis. We do not and cannot decide that they are also beyond the ambit of the statute.
Where we differ with our colleague is on whether the employer has an
unfettered discretion to select among bargaining unit employees for these plum positions,
and to reject from consideration any employee who has indicated sympathy or support for
31
the union. And for the reasons outlined above, it is our view that the employer cannot
disqualify employees on that basis; for to do so, contravenes Article 3 of the Agreement.
Dated at Toronto, this 15th day of June 2006.
R.O. MacDowell, for the majority
I agree
"Ed Seymour"
I dissent
"Judith Rundle"
[see dissent attached]
32
DISSENT OF J. A. RUNDLE
I have had an opportunity to carefully review the Arbitrator's award in this matter and
must disagree with his conclusions.
The facts are simple and yet not set out plainly in the Award.
1. The grievance is a personal grievance filed by Rose Murrel1.
2. Ms. Murrell held two distinct positions with the Employer:
(1) OPSEU-represented Security Officer; and
(2) Non-represented temporary Security Shift Supervisor.
3. The Shift Supervisor and Temporary Shift Supervisor position
are both management positions that are excluded from the
bargaining unit, in Article 2.01 and 2.02, and the Parties have
agreed that both are beyond the scope of the recognition clause.
4. In line with this, Arbitrator MacDowell wrote in a previous
Award between these parties: "Indeed the recognition section
of the agreement had been specifically modified, during the
course of bargaining, to make it clear that the Temporary
Shift Supervisors were outside the bargaining unit, and
outside the ambit of the collective agreement." He went on
stating, "Accepting, as we do, that such employees are outside
the ambit of the collective agreement and are not covered by the
collective agreement at all.. .". (March 29, 2005). Also
Mr. Seymour, Union Nominee in the present case, and in the
March 29,2005 award noted above, wrote along the same lines:
The parties are agreed that there is only one employee job
classification in the bargaining unit i.e. Security Officer; all other
are excluded. There is only one other job, and that is Shift
Supervisor, a management position. On occasion, bargaining
unit members move to an "Acting" Shift Supervisor's position
on a temporary basis, and while in that capacity they have the
authority to discipline. He further stated: Shift Supervisors,
whether full time or acting up, are not in the bargaining unit.
Temporary Shift Supervisors assume the full responsibilities
of Shift Supervisor, including the right to discipline.
[emphasis added]
5. In Letter of Understanding #1, the parties have expressly
reserved the right of a Temporary Shift Supervisor to discipline
members of the bargaining unit, i.e. those that occupy positions
included in OPSEU's representation rights and duty to represent
under Section 74 of the Labour Relations Act, 1995, 8.0. 1995, c.l,
as amended (the "Act").
6. The Employer believed - through no improper means nor is
there any suggestion of improper means - that Ms. Murrell was
increasing her level of activity in union involvement.
7. The Employer indicated this change has raised a potential
conflict of interest in her performance as a Temporary Shift
Supervisor.
8. The Employer informed Ms. Murrell that it would not be
scheduling her as a Temporary Shift Supervisor while she made
a choice of whether she wished to pursue this direction of being
more active in the Union, or the direction of supervision in the
role of Temporary Shift Supervisor.
~
"
9. The Employer informed Ms. Murrell that in her bargaining unit
capacity as a Security Officer she had a right to be active in the
Union and it did not wish to interfere with that right.
10. The collective agreement does not contain any language on the
selection or use of Temporary Shift Supervisors nor does it
establish or require any rate of pay. The role is offered as the
employer wishes and accepted, or not accepted, by the employee.
The employee cannot c01Ult on being asked to perform that role.
11. Ms Murrell grieves that she has been improperly denied the
opportunity to work as a Shift Supervisor.
Characterization of the Matter In Dispute
This is a grievance regarding the scope of management's right to select candidates to
temporarily fill a position outside the bargaining unit. Arbitrator MacDowell's charaterization
ignores the basic fact that the position Ms. Murrell seeks to continue doing, is not within the
scope of the collective agreement. In Arbitrator MacDowell's decision Article 2 is therefore
converted into an "exercise of a management discretion" and, through the expansive
interpretation of Article 3, management's choice of whom it will ask of Bargaining Unit members
to fill the role of Temporary Shift Supervisor, is constrained.
It is common in the interpretation of collective agreements to forget that the
jurisdiction of arbitration boards is tied to the positions encompassed within its scope. This case
involves the interpretation of the rights of an individual who normally occupies a position within
the agreement, to be asked to perform in the excluded position of supervising those doing the
work of the bargaining unit.
f
.,
There are legions of cases that emphasize the importance of avoiding conflict of
interest between those exercising managerial powers over bargaining unit positions and those in
positions performing the work of the bargaining unit. The absence of such conflict is the
hallmark of good labour relations. It is not good for bargaining unit members to have
management interference in their interests as members, neither is it good for management to be
tainted with union interests. The breakdown of this division of interest is what Sections 5, 72 and
76 of the Act seeks to avoid.
Jurisdiction
Arbitrator MacDowell's decision with respect to the Board's jurisdiction is based on
two interrelated arguments. He relies on the Supreme Court decision in Parry Sound to gain
jurisdiction over management decision-making and to incorporate the Labour Relations Act into
the Collective Agreement; he also relies on the language of Article 3, to support his incorporation
of portions of this Act by reference.
With respect, he misconstrues Parry Sound. In that case there was no dispute that the
position of the probationary employee was within the Bargaining Unit, what was at issue was the
application of the statutes within the unit. Arbitrator MacDowell has not made a clear
determination on how the employer's relationship with one of its temporary managerial staff is
subject to his review. Indeed, Arbitrator MacDowell's comments at the bottom of page 7 of the
majority award regarding Sections 1(3) and 114 of the Labour Relations Act are totally
gratuitous. The comments have nothing to do with anything - the parties have agreed that the
position - Temporary Shift Supervisor, is outside the Bargaining Unit and therefore, part of the
management team. [emphasis added]
J
..
t.
,t,
It is indisputable that the Parry Sound case allows an Arbitrator to consider labour and
employment legislation whether contained in the Agreement or not. The case does not however
extend jurisdiction over those statutes generally but over the application of those statutes in direct
relationship to the collective agreement from which his jurisdictions spawned. The Parry Sound
decision does not grant Arbitrators the right to take jurisdiction where there is otherwise none. In
fact the decision states:
19. As La Forest J. noted in Dayco, supra, at p. 251, the collective
agreement is the "foundation" of a grievance arbitrator's jurisdiction.
Absent a violation of the collective agreement, a grievance arbitrator
has no jurisdiction over a dispute; if the alleged misconduct does not
constitute a violation of the collective agreement, there is no basis on which
to conclude that a dispute is arbitrable.
20. In the present case, the parties are in agreement that the express
provisions of the collective agreement in question impose no fetters on the
employer's right to discharge a probationary employee. The Union,
however, submits that s. 5(1) of the Human Rights Code is implicit in the
collective agreement between the parties. If this is the case, there is no doubt
that the discriminatory discharge of a probationary employee is arbitrable.
Under s. 5(1), every person has a right to equal treatment with respect to
employment without discrimination. Ms. O'Brien's grievance - that she was
discharged for discriminatory reasons - falls squarely within s. 5(1) of the
Human Rights Code. If s. 5(1) is implicit in the collective agreement
between the parties, the grievance falls squarely within the ambit of the
collective agreement as well. But if s.5(1) of the Human Rights Code is
not incorporated into the collective agreement between the parties, it is
i
'l
,
'"
equally obvious that the discriminatory discharge of a probationary
employee is not arbitrable.
55. For the foregoing reasons, the Board was correct to conclude that the
substantive rights and obligations of the Human Rights Code are
incorporated into each collective agreement over which an arbitrator has
jurisdiction. Because of this interpretation, an alleged violation of the
Human Rights Code constitutes an alleged violation of the collective
agreement, and falls squarely within the Board's jurisdiction. Accordingly,
there is no reason to interfere with the Board's finding that the subject matter
of Ms. O'Brien's grievance is arbitrable. The Board's fmding that the
discriminatory discharge of a probationary employee is arbitrable is not
patently unreasonable. [emphasis added]
In Parry Sound the Court concluded that an arbitrator, in considering the treatment of
an employee covered by a collective agreement, could incorporate the statute. The Court did not
extend the scope of the collective agreement's recognition to managerial or other excluded
positions, That is what Arbitrator MacDowell purports to do. As the Chair states at page 16 of
his Award, Parry Sound stands for the proposition that an employer's broad "management rights"
must be exercised in accordance with external employment law. It does not, however, provide a
right for managers, supervisors, foreman and others outside the bargaining unit to grieve and
arbitrate breaches of external employment law.
Arbitrator Knopf, in considering remarkably similar collective agreement language
between the OPSEU as the representative of Security Officers and the Windsor Racetrack Slots
wrote as follows:
(
"
.,
~-~ .
There is no general authority over discrimination allegations against this
Employer. For example, ifit were alleged that this employer failed to award
a non-bargaining unit position to an excluded employee because of her
family status, sex or even pro-union sympathies, a board of arbitration would
have no authority to adjudicate the case. This is because the board of
arbitration's jurisdiction is derived only from matters that fall within
the scope of the collective agreement. Those allegations involve non-
bargaining unit positions and personnel, thereby they escape the
jurisdictional reach of arbitration.
[emphasis added]
In his Award, Arbitrator MacDowell calls this case distinct, noting that the
discriminatory behaviour alleged in that case was between bargaining unit personnel and those
excluded from the unit and was not discrimination amongst the bargaining unit members
themselves. Yet he misses the point - the employer in our case did not make any distinction
amongst bargaining unit members but made a distinction amongst its excluded management team.
Ms. Murrell is using the Union's grievance procedure to complain about her treatment as a
temporary member of the management team.
At page 18 of the Award it notes that the collective agreement governs "the named
parties in their dealings with each other" and yet Ms. Murrell was not acting in her capacity as an
employee of a named party nor was the employer speaking to her as an employee of a named
party. This was a discussion among "excluded persons" in connection with their duties in
"excluded positions" and cannot be reviewable.
In his conclusion the Arbitrator summarized the Employer's position as follows: It
believes it is entitled to "discriminate" etc. against bargaining unit employees, because of their