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HomeMy WebLinkAboutUnion 18-07-10IN THE MATTER OF AN ARBITRATION BETWEEN: Community Living Meaford and OPSEU (Union Grievance re: Management Rights, Numerous Individual Grievances) Before: William Kaplan Sole Arbitrator Appearances For the Employer: Paul Young Filion Wakely Thorup Angeletti Barristers & Solicitors For the Union: Val Patrick Grievance Officer OPSEU The matters in dispute proceeded to a mediation in Owen Sound on May 9, 2017 and to a hearing on March 15 and July 6, 2018. Introduction This case concerns a March 11, 2016 union grievance and a number of individual grievances. In brief, the union asserts a violation of the Purpose provision, the Management Rights clause and the Posting article of the collective agreement. It is the union's submission that collective agreement was violated because a large number of Counsellor 2's had their work location and hours changed (not in total, but in distribution). For its part, the employer submits that no provision of the collective agreement has been breached. The case proceeded to a mediation in Owen Sound on May 9, 2017 and then to a hearing in March and July 2018. All. of the potentially affected incumbents were notified of the proceedings and invited to fully participate. Some additional background is in order. Community Living Meaford (hereafter "the employer") is a not for profit association that provides day and residential services and support in all aspects of daily living to disabled adults (and their families). The predominant classification, and the one affected by this dispute, is Counsellor 2. In general, Counsellor 2's obtain their positions through direct hire, or by posting, once already employed. For years, all initial appointment letters have indicated that the employer "retains the right to reassign you to other departments or programs, locations or comparable positions, and to change your reporting relationship." The union is often copied on these letters. Moreover, in the case of all postings, again for years, it has been made clear that while the particular position in the posting has a specific location, the "right to reassign to another location or assignment is maintained." All employees, including union stewards, receive copies of all postings. z In March 2016, the employer moved many, if not most, Counsellor 2's from their existing work locations to different work locations. The overall complement remained the same. No one gained any hours and no one lost any hours. It is this moving of people (hereafter "the redeployment") that led first to an OLRB complaint (which was withdrawn) and then to the grievances. The Evidence Deb Powell, an extremely well-regarded and long -service Counsellor 2 and local union president, testified on behalf of the union. She spoke about how the Spring 2016 redeployment affected her. In brief, Ms. Powell described what happened as follows: "They took the job I posted into and put someone else, a junior employee, into my job and then put me in a job I didn't want at a different location." Ms. Powell went from working in the Day Program, with its regular hours, to working in a Group Home. The classification might be the same, but the duties, she testified, were completely different, as was the location and the hours. Another union member, Ms. Glenna Clark, also testified about the impact of the change in job location on her. She went from an overnight job at one location to an overnight job at another location. Leanne Reuber, the Community Support Manger, gave evidence about the deployment. The proximate cause was a direction from the Ministry to close the woodworking shop. That meant the incumbent Counsellor 2 had to be redeployed.. The employer was also at the time, concerned about a number of staff morale issues. Ms. Reuber identified a number of those issues and also referred to other factors influencing the redeployment including employee complaints about equitable distribution of work. Management had also come to the conclusion that there was a need to move people because they were either facing professional challenges or because it just made sense given specific skills and abilities. There were two interests at play here: those of particular counsellors, and those of the clients. The purpose was achieving the best fit. Ms. Reuber described the mapping exercise she went through, making the previously mentioned point that no one lost or gained hours and that no employee was laid off or hired. The complement remained exactly the same. The position description for the Counsellor 2 encompassed all of the work that was being performed: no new duties were added to that description and none removed. Ms. Reuber also testified that the union has never, at least until this case, filed any grievance or complaint about management reserving to itself the right to reassign in hire letters or in postings. Union Argument In the unions submission, the Purpose provision of the collective agreement provided an important framework for the consideration and resolution of this dispute. It mandated the "equitable disposition of grievances" together with the maintenance of "fair and reasonable working conditions." What that meant, applied to this case, was that it was improper for the employer to arbitrarily and without any Justification, move people from posted positions - positions they had obtained using their seniority - to other positions without any business justification. whatsoever. It was not "reasonable" to deprive people of their jobs. On this basis alone, the union argued, the grievances should be allowed. 4 The union also asserted that the Management Rights clause had been violated. Management could only make "reasonable rules... policies and practices" and what had occurred was anything other than reasonable. The job posting provision was also at issue because it demonstrated that employees posted for jobs at particular locations and once they had used their seniority to obtain those positions the employer could not unilaterally, and without any justification whatsoever, deprive them of their jobs. The employer was, in effect, asserting, "we can just take you off your job and move you anywhere we want." This was not about a business justification, union counsel argued, "it was about an employer deciding to ignore the collective agreement to make some people happy." While the union was not alleging bad faith, what management had done, was, the union asserted, entirely "whimsical." The fact that specific jobs at particular locations belonged to an individual was made manifest by other provisions in the collective agreement. For example, the collective agreement specifically set out an individual's time-limited right to return to her old job should she not like a job she obtained on a posting. It did so because the parties recognized it was "her job." All of this established, in the union's view, that management was in violation of the collective agreement through its infringement of employees' seniority interests. To the extent there was any need to move people, the employer should have invoked the lay-off provisions so that those vital interests could be maintained. In the union's view, the grievances should be allowed, the redeployment undone (except where the parties agreed otherwise) and all affected employees paid $1000 in damages — to send a message to the employer that this kind of behavior will not be 5 tolerated. The union asked that I remain. seized with respect to the implementation of this award. Employer Argument In the employer's submission, the union could not, and had not, pointed to any violation of the collective agreement. This was not a posting case. There was no vacancy. There were no new jobs. This was not a layoff case. No one lost their job or lost their hours. This was not a right to return to a previous position. case. This case was all about the employer deciding for legitimate business reasons — occasioned by a Ministry directive, together with concerns about staff morale and the best allocation of Counsellor 2's to serve the clients — to redeploy individuals where they were best suited. Turning to the collective agreement provisions said to have been breached, employer counsel noted that the authorities were uniform that purpose provisions do not create substantive rights. Even if this one did, there was no evidence of violation. The Management Rights clause at issue here was extremely broad and specifically reserved to the employer the right to do exactly what it did. While the posting provisions had absolutely nothing to do with this case. The union had conceded that it was not alleging bad faith. Management took the position that the facts established nothing but good faith. It was significant, employer counsel argued, that the union did not even challenge any of its evidence about the business justification. No questions were asked in cross- examination and no reply evidence was led. The business justification rationale was completely uncontradicted. It was, in any event, clear and compelling and buttressed by a number of exhibits. The employer asked that all of the grievances be dismissed. Decision Having carefully considered the evidence and arguments of the parties, together with the authorities that were submitted, I am led to conclude that all of the grievances must be dismissed. As a preliminary observation, the union has not established any violation of the collective agreement. The Purpose provision is not engaged., while the Management Rights clause is extremely broad and specifically reserves to the employer, in any event, the right to "assign," "transfer" determine "hours of work" and "location." It is hard to see how the Posting article comes into play. There was no vacancy and therefore no posting. The fact that a posting referred to hours or location does not, in any event and as elaborated below, restrict the employer form moving employees from their posted positions. The posting provision clearly requires a posting to set out location and hours, but that does not mean that once the position is obtained that neither its location or hours can be changed. Context does matter, and the context here evidences the repeated assertion of management's right to redeploy within the classification. Nevertheless, in the union's view, the employer is prohibited from changing hours and location. That is at the crux of its case. However, the case law indicates that absent specific language to the contrary — and there is none here — an employer is free to move employees between "jobs" within. a classification so long as it does so in good faith. 7 It should be noted that this case is not about the unilateral employer conflation or arnalgamation of two distinct classifications. There is only one classification at issue here with a broad position description encompassing all of the work performed by Counsellor 2's no matter where assigned. In its submissions, the union asserted that there was no business justification whatsoever for the personnel movements. Ms. Reuber clearly set out the business justification — and her evidence went unchallenged. Indeed, it was actually corroborated to some extent by the union witnesses_ Ms. Powell acknowledged that there was "bickering" among the staff, presuwnably connected in some way to the employer's observations about morale problems. In terms of Ms. Clark, there were some professional issues at her existing location: one particularly problematic client. It is hard to fault management for its interest in a personnel change, for the good of Ms. Clark and the client. There is no evidence of the employer acting to favour specific individuals or proceeding in a whimsical or arbitrary fashion. Obviously, as a best practice, employers should consult with employees, and the union, before and during a redeployment. Employees have, after all, bid into specific locations, together with their hours of work, because those jobs were, to those individuals, preferential. However, if the union wishes to legally restrict an employer from changing hours and moving locations within a classification to establish a proprietary right to a specific site with specific hours, it will, the authorities establish, need to so through collective bargaining. F.1 Accordingly, and for the foregoing .reasons, the grievance is dismissed. DATED at Toronto this 10- day of July 2018. „William Kaplan„ William Kaplan, Sole Arbitrator