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HomeMy WebLinkAbout2017-2073.Policy.18-08-24 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2017-2073 UNION#17-19 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Policy) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Mona Staples Canadian Union of Public Employees Counsel FOR THE EMPLOYER Greg Bullen Workplace Safety and Insurance Board Counsel HEARING July 27, 2018 - 2 - Preliminary Decision [1] The Union filed a grievance on April 24, 2017 claiming that the Employer (or the “WSIB”) had modified the Senior Financial Accountant position such that it should no longer remain outside the bargaining unit, and further, that the Employer had failed to notify the Union about the changes that had been made to the position. By way of remedy, the Union seeks to have this position included in the CUPE bargaining unit, and to be compensated with union dues for all hours worked in the position since the date the job was modified. [2] The Employer challenges the timeliness of the filing of the grievance, and argues as a preliminary matter that the grievance should be dismissed. It also asserts that, in any event, the job has not been changed in any substantive way, and as such should remain as an excluded position. [3] This decision addresses the timeliness issue. The Employer and the Union each called one witness on this issue. [4] Lisa Dymond testified for the Employer. She is currently the Director of Employee and Labour Relations at the WSIB. Prior to taking this position, from November 2013 to May 2014 she was a Human Resources Business Partner. [5] Under Article 1.01 of the parties’ collective agreement they have agreed that CUPE is the exclusive bargaining agent for all WSIB employees “save and except persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act or by virtue of the criteria set out in Appendix 4”. [6] In Article 1.02 the parties noted some specific jobs which are excluded from the bargaining unit. [7] In 2004 the parties had reached a Memorandum of Agreement regarding “Inclusions/Exclusions” from the bargaining unit, and had attached an Appendix A to that Memorandum that listed all current non-bargaining unit (“NBU”) positions and their incumbents, as well as an Appendix B which contained a list of all current bargaining unit positions and their incumbents. They agreed that these lists would be used for Article 1 purposes. [8] Article 1.04 states that: The following does not constitute Article 1 modification: - A title change without job content change - An increase in complement of positions currently in the non-bargaining unit, and/or - Changes in reporting without job content modification or alteration in authority. [9] Article 1.05 outlines the Employer’s obligations and process to be followed if the WSIB intends to create a new job or to modify an existing job, whether it be a - 3 - classified or unclassified position, and if the job is to be excluded from the bargaining unit. For the purposes of this preliminary motion, it is not necessary to outline the details of the process. Suffice it to say that in such instances the Employer has undertaken to provide to Union representatives, by email or other written communication method, the job description and/or an explanation sheet in accordance with Appendix 4. [10] Ms. Dymond testified that when a new job is created, or an existing one is amended, the Union is provided with the job description, an Appendix 4 form, and an organizational chart if one is requested and is available. [11] An Appendix 4 form is titled “RECOGNITION (Inclusion/Exclusion)”, and contains information that includes the job title, the expected number of positions, the salary grade, the exemption criteria number, the division, and the date sent. The form also has text that advises the Union that the attached job description represents a new non-bargaining unit job, a modified non-bargaining unit job, or a current bargaining unit position that is to be excluded from the bargaining unit, and seeks to explain the modifications to the job description, and to provide the reasons for the exclusion. [12] A member of the Human Resources team sends Tony Dinardo, the CUPE representative who is responsible for the bargaining unit inclusions and exclusions, an email and the relevant documents. The Union responds in writing to either agree, or ask for a meeting in accordance with Article 1, or disagree with the exclusion. [13] In 2014 the WSIB undertook an NBU Compensation Review. It hired Mercer to conduct the Review, with the intention of ensuring that the WSIB’s compensation system was aligned with pay equity, was comparable to the external market, and that the system was simplified. Following that process, of which the Union was aware, all NBU jobs were documented in a new template, and then each job was evaluated. The end result was that in the course of the job evaluations, the WSIB went from having 43 different NBU salary grades to 15. A new job evaluation system is now used, and all the NBU jobs that were reviewed are posted on the WSIB’s CONNEX internal communication system for any WSIB employee, or the Union, to access. [14] The Senior Financial Accountant position, like all other NBU positions, was reviewed and evaluated in the NBU Compensation Review process. Since the review process was one of job evaluation, the Employer did not give the Union notice of specific changes to the format of the job descriptions in accordance with Article 1. In its view the work being done in each job was not changing. The Union was however made aware of the job evaluation process, and on November 22, 2014 Ms. Dymond advised the Union that process had been completed, that all job descriptions were being revised, and that if the Union had any questions, it should contact her, or the Director of Compensation. According to Ms. Dymond, the Union did not ask for the 273 NBU job descriptions at that time. - 4 - [15] In cross-examination Ms. Dymond admitted she had not been in her current position in 2013 when the Union was told what the NBU Compensation Review was going to entail. According to the Union, it was told that the job descriptions were being re-formatted, but that the jobs would not be changing. However, Ms. Dymond maintained that she had never told the Union that none of the jobs would be changed, and she conceded that she never told the Union later that any of the jobs had changed. [16] As already outlined, in 2004 the parties had agreed on a list of NBU jobs, and that was apparently the last time that a job description for the Senior Financial Accountant may have been considered. After the Union filed this grievance in April 2017, Ms. Dymond began to discuss with other managers how they would be able to marshal evidence regarding what the job entailed in 2004 compared to the job in 2017. They realized that it would be difficult to call witnesses from that period, or even to show how, if at all, the job had changed by 2014, when the NBU Compensation Review was conducted. While this was hearsay evidence, the Employer was permitted to adduce it in an effort to establish at this preliminary stage that it would be prejudiced if the grievance was allowed to proceed. [17] Tony Dinardo testified for the Union. He has worked at the WSIB since 1990, and has held the Treasurer position on the union executive since January 2004. Since 2004, he has also been the CUPE lead for the Article 1 portfolio, and oversees anything related to Article 1 issues. [18] Prior to 2010 the Union was notified of any new or modified NBU positions, or any NBU job postings, through a Lotus Notes-based email system. The Union would receive a message about a new job being created, modified, or posted, and would also receive a copy of the job description, and a rationale for why the job should be excluded from the bargaining unit, using the Appendix 4 form. The Union would then review, and respond by email as to whether it agreed to the exclusion, or wanted a meeting with Human Resources to continue the conversation about why the Employer wanted the position to be excluded. [19] Around 2010 or 2011 the process changed when the Employer moved to using Outlook for its email system. At that point the Union would still receive email notification of new NBU jobs being created, or existing NBU jobs being modified, but it stopped getting automatic notification of when NBU jobs were posted. The Union therefore relied on the Employer to advise it that a job was being modified, as it had no other way of knowing that for NBU jobs. It is supposed to receive notification of all changes to an NBU job description, whether there are substantive changes or not, as that is what the Union needs to assess. [20] In or around March 2017 the Union became aware of changes in the Senior Financial Accountant position when it received disclosure of that job description in the course of another arbitration. It received a job description from 1997, and one from 2014. Mr. Dinardo conducted a review of the two and was of the view that there had been changes in the duties of the position. He suspected that the changes had been made during the 2014 NBU Foundation Review. - 5 - [21] I note that both Ms. Dymond and Mr. Dinardo referred to the NBU Compensation Review, and the NBU Foundation Review. It is not clear whether these are the same process, but it appeared the names were being used interchangeably. For my purposes at this juncture, it does not appear that much turns on this. [22] According to Mr. Dinardo, the Union had been told by the then-Director of Labour Relations and the Director of Benefits that the job descriptions would be put in a different format as part of the NBU Compensation Review process, and that there was not going to be any job content change. The Union was advised at that time that the Review was to ensure that jobs were being paid at the rates that they should be, and it was also to be a pay equity review. [23] Mr. Dinardo testified that without notice from the Employer, and the Employer following the collective agreement process in Article, 1, it would be very difficult for the Union to know when changes had been made to any of the 273 NBU job descriptions. He noted that while the Union has access to the current NBU job descriptions on the WSIB intranet, it has no access to the previous job descriptions for those positions. With respect to the Senior Financial Accountant job, Mr. Dinardo had never received any Article 1 notification of changes to the job description, and only became aware of changes when he saw the current and old job descriptions in 2017 in the course of another arbitration. [24] The Union also has no access to any old job description that it may have received through the old Lotus Notes system, as that system has been archived, and is no longer available to the Union. Only if the Union specifically requests an old job description can it now get one from the Employer. As Mr. Dinardo had been advised that there had been no job changes in the course of the NBU Foundation Review, he had had no cause to request to see all or any of the job descriptions. [25] Although Mr. Dinardo became the Union’s Treasurer in 2004, which was when the 2004 MOA was signed, he had not been part of the process that led to the signing of that document. His predecessor, Tony Jazinski, had been involved in negotiating the MOA, and saw it through to completion. Mr. Dinardo had no access to anything that Mr. Jazinski may have received in that period. ARGUMENTS [26] The Employer states that there are two issues to be addressed regarding the delay in the Union filing a grievance regarding alleged changes to the Senior Financial Accountant position. The first is that there has been an inordinate delay in the filing of the grievance, and that the grievance should therefore be dismissed on that basis. The second is that if the grievance is permitted to proceed, the remedy should be limited to commencing from 10 days before the grievance was filed. Counsel for the Employer indicated the latter issue could be addressed later should the grievance be permitted to proceed. - 6 - [27] According to the Employer the job description changed on November 24, 2014, and the grievance was filed on April 24, 2017. The Union was aware of the Review, it had access to all the job descriptions, and it would have had all the previous job descriptions from 2004. As well, it can request any and all job descriptions any time it wishes. It did not do so for any of the jobs involved in the NBU Compensation Review. The Employer argues that the grievance crystallized in November 2014, so that filing a grievance two and a half years later makes it untimely under Article 12 of the collective agreement. It urges me to find that this is not a continuing grievance, and to find that the Union has provided no compelling explanation for the delay. [28] The Employer states that it is severely prejudiced by the Union’s failure to file a timely grievance as it claims it has to try to call evidence regarding the job in question from 14 years ago. It will have difficulty in locating witnesses to show the job comparisons between 2004 and 2014. It concedes that it may have been difficult even in 2014 to have got such evidence, but posits that it is even more difficult three years later. [29] As such, the Employer asks that the grievance be dismissed for undue delay. [30] The Union argues that it was never told by the Employer that the job duties of the Senior Financial Accountant had changed, and indeed, it had been told that the job duties of all the NBU jobs that were reviewed in 2013-14 had not changed. As such, it could not have known in November 2014 that the job duties of this particular job had changed, and it had no reason to request an old or new job description. [31] The Union points out that it has always had to rely on the Employer to advise it, whether under the Lotus Notes system, or under the current system, when there are changes to an NBU job description. Until recently, the Union had always trusted the Employer to give it such notification. [32] In this instance, the Union posits that the issue only crystallized when, in the course of receiving production in another arbitration, it was provided with both an old and a 2014 job description for the Senior Financial Accountant position. Thereafter, the Union filed a grievance after noticing that there had been changes made to the old job description, changes which in its view were not simple formatting changes as it had been advised were the result of the NBU Compensation Review in 2014. [33] The Union argues in the alternative that the issue raised here is in the nature of a continuing grievance because every month that the Senior Financial Accountant position remains outside the bargaining unit, when it should be included, is a month for which the Union has not received union dues. [34] Although the Employer did not specifically make a laches argument, it relied on some laches case law. As such, in response, the Union noted that the situation here does not meet the test for a finding of laches. The Union would have to have been aware that changes had been made to the Senior Financial - 7 - Accountant position, and to have, through its actions, clearly and unambiguously acquiesced to letting the changes go unchallenged. In this instance, on the evidence, the Union argues it was not aware that there had been changes to the position, so it could not have acquiesced. [35] Regarding the Employer’s assertion that it is prejudiced by the delay in the filing of the grievance, the Union states that since the Employer position is that the job duties have not changed, there can be no prejudice. [36] The Union asserts that it would be unreasonable to find that it should have reviewed the approximately 300 NBU positions in 2014 when it had been told that there were only formatting changes, and no changes to the job duties, and when it had not received any Article 1 notice from the Employer of modifications to the job duties. In addition, the Union had no access to the old job descriptions, so it had no way to have done a comparative review. [37] It argues that the motion to dismiss on the basis of the alleged untimeliness of the grievance should be denied. DECISION [38] For the reasons to follow, in my view the grievance is timely because the Union could not have known that the Employer had changed the job duties of the Senior Financial Accountant until it received both an old and a current job description in early 2017, and was able to make a comparison. In the event that I am incorrect in that assessment, for the reasons to follow, I find that this is a continuing grievance, and as such, the Employer’s motion to dismiss the grievance on the basis that it is untimely is denied. [39] In essence the Employer is relying on the equitable doctrine of laches, in that it asserts that the Union knew of the changes in NBU job descriptions in 2014, and it took no action until 2017, thereby prejudicing the WSIB’s ability to call evidence in respect of the alleged changes in duties of the job in question. [40] In Extendicare (Canada) Inc., Falconbridge v. O.N.A., 2004 CarswellOnt 6393 (Harris), quoting from Halsbury (14 Hals., 3rd. ed., p 641) the arbitrator outlined the main considerations for the application of the doctrine of laches as: (1) Acquiescence on the plaintiff’s part, and (2) any change of position that has occurred on the defendant’s part. Acquiescence is described as assent after the violation has been completed, and the plaintiff has become aware of it. The lapse of time and delay are most material in the consideration of the facts. (At para. 15) [41] Quoting from the decision in Toronto Parking Authority v. C.U.P.E. Local 43 (1974), 5 L.A.C. (2d) 150 (Adell), it was noted that “acquiescence requires more than knowledge of a state of facts. It also requires the realization that those facts constitute a violation of a legal right. One cannot be charged with effective acquiescence in the breach of a right unless he was shown to be aware of the right or unless the circumstances are such as to justify the conclusion that he - 8 - must have been aware of it.” (at para. 16 of the Extendicare (Canada) Inc., Falconbridge, cited above). [42] On the evidence before me in this case, I am satisfied that while the Union was aware that the Employer had undertaken the NBU Compensation Review in 2014, to its knowledge, based on what it had been told by the then-Director of Labour Relations and the Director of Benefits, the NBU job descriptions would be put in a different format as part of the Review process, and there was not going to be any job content change. In any event, and despite the established practice and collective agreement provisions regarding notification to the Union, it is clear that if there were job content changes made in the course of the Review, the Union was not notified of any at that juncture. Furthermore, after the completion of the Review, the Union was not provided with any notifications of changes in job descriptions of the sort that it has historically received. [43] According to the Employer’s evidence through Ms. Dymond, since the Review process was one of job evaluation, the Employer did not give the Union notice of specific changes to the format of the job descriptions in accordance with Article 1, because in its view the work being done in each job was not changing. On November 22, 2014 Ms. Dymond advised the Union that the Review process had been completed, and that all job descriptions were being revised. Nothing at that time would have alerted the Union to what it now contends: that the job duties of the Senior Financial Accountant have changed. [44] I agree with the majority of the board of arbitration in Georgian College of Applied Arts & Technology v. O.P.S.E.U., 1997 CarswellOnt 6301 (Schiff), wherein they stated as follows: 26. We see problems with this analysis. It rests on the assumption that a party union as an organization and the leadership of the union always knows, or ought to know, precisely how the party employer is acting to implement every provision of the agreement and know, or ought to know, what action relates to which provisions. More than that, the analysis assumes that, with knowledge, the union and the leadership assess or at least always should assess the fit between the action and the particular provisions. As we see it, the ordinary understandings of the labour relations world lead to different conclusions. Employers commonly have various full-time personnel charged with implementing the employer’s side of the agreement. Human relations, benefits and accounting departments are what we have in mind. Contrast local unions. The leaders are amateurs elected from the employees in the bargaining unit for fixed terms. While some may take on the jobs full-time during the term, often not. Professional representative from the umbrella district or national union give help. But even they will not supply to the local union the resources or expertise to keep a constant eye on everything the employer and its specialized departments are doing. The local union cannot check everything against what the agreement says. It must, for the most part, trust that the employer is doing things right and wait for complaints of the contrary as they come in from rank and file employees. These serve to focus the union’s attention and resources. Once considered, the complaints may issue out as formal grievances to inform the employer that its action in some respect is challenged under the agreement. To use a couple of similes, the party union is not like a police department sending out constables on patrol looking for - 9 - lawbreakers to charge. It is more like a fire department: the firemen wait in the station for the calls and then go to put out the fires as, when and where they are reported. 27. So, even if a union’s leadership knows that an employer acts in a certain way – and has so acted for a long time – the union may have no idea whether or not the action violates some provision of the agreement. Usually the silence is not an implied message that the union is content the agreement is being honoured or that the union does not care about a violation. Silence is often and simply a message that no one has yet complained to the union. It is a message that those in authority in the union have not yet compared the specifics of what the employer is doing to what the agreement demands. [45] On the facts before me, I find that that the Union could not be found to have acquiesced to the alleged changes in job duties. At best, the Union had been advised that the format of the job descriptions had been changed, but it was also told that the job duties had not been changed. [46] It was not until in the course of another grievance arbitration in 2017 that the Union received both a 1997 and a 2014 job description for the Senior Financial Accountant position, and upon review of those documents, it came to the view that the job duties had changed to the point that the job should be included in the bargaining unit. Whether that is in fact the case remains to be litigated. However, it is the timing that is important. There is no dispute that after it received the 2017 documentation, the Union filed a grievance that would be timely. [47] Since I cannot find that the Union had knowledge of the alleged changes in the job duties of the position in question in November 2014, I cannot find that it acquiesced to the position remaining outside the bargaining unit. It is therefore unnecessary to address the prejudice issue. [48] In the circumstances, I cannot find that the doctrine of laches has any application to the facts before me, and the Employer’s motion to dismiss the grievance on the basis that it is untimely is hereby denied. [49] In the event that I am incorrect in my finding regarding the timeliness of the filing of the grievance, I now turn to the Union’s alternative argument that this is a continuing grievance. For the reasons to follow, I find that it is a continuing grievance. [50] In U.G.C.W., Local 246 v. Dominion Glass Co., 1972 CarswellOnt 1509 (Reville), the board of arbitration considered the nature of a continuing grievance. Having reviewed the jurisprudence before it, the majority of the arbitration board stated: 8. Be that as it may, the awards above mentioned indicate that the only grievances which have been considered by boards of arbitration to be continuing grievances and to represent continuing violations of a collective agreement, concern either the payment of money, or conduct which gives rise to damages, or failure of the company to deduct and remit to the union appropriate union - 10 - dues, in other words, failure to observe the check off provisions of the collective agreement. This is not to say that there may not be other situations which may be considered as continuing violations of a collective agreement, and indeed such other situations have been considered in this manner by American arbitrators. … … 10. A grievance contending that a particular job should be included in the bargaining unit was held to be a continuing grievance and the delay of two and one-half years did not prevent it from being considered. See Republic Steel Corp. (1958), United Steelworkers Bulletin 7:4711 (Stashower). 11. These awards are, of course, not binding on this board, though they are entitled to careful consideration, at least on the logic and reasonableness of the particular awards. Unfortunately, the full awards are not available to this board, nor is the particular contract language on which the awards were founded, nevertheless, some principles emerge from a consideration of both the Canadian and American awards above cited, which appear to be as follows: (1) the grievance to be a continuing one, must involve repetitive breaches of the collective agreement and not be simply a single and isolated breach of the collective agreement. The damage complained of must be of a recurring kind and nature. Continuing grievances are usually (though not always) repeated violations of the collective agreement, involving the non-payment of money or benefits to individual employees or to the union, or conversely, the inflicting of damage on a recurring basis on the company by employees and the union withholding their services illegally. The board hastens to add that its analysis of a continuing grievance or a continuing violation of a collective agreement is by no means comprehensive or exhaustive. … [51] This decision was ultimately upheld by the Ontario Court of Appeal in U.G.C.W., Local 246 v. Dominion Glass Co. , 1973 CarswellOnt 893. It is noteworthy that in 1958 an arbitration board found a grievance regarding the inclusion of a job in the bargaining unit to be a continuing grievance, and that a two and a half year delay in filing such a grievance was not found to cause the dismissal of that grievance (at para. 10 of the excerpt above). [52] In Health Sciences North and CUPE, Local 1623 (CC2013-300), 2015 CarswellOnt 12623 (Nairn), the union was seeking the inclusion of an IT position in the bargaining unit, and was seeking the payment of past union dues for that position. The employer had made a laches and timeliness argument and the union contended that it was a continuing grievance. The grievance was ultimately dismissed on the basis of laches, however, the arbitrator found that the grievance was in the nature of a continuing grievance, and would have been timely in that respect. Arbitrator Nairn wrote as follows: 83. A failure to remit dues and/or apply the terms of the collective agreement to a position that has been treated as excluded from the bargaining unit are arguably the consequences of the improper exclusion of the position from the bargaining unit. However, the better arbitral approach in my view is one that recognizes that while the improper exclusion of a position or employee from the bargaining unit constitutes the most fundamental breach of the collective agreement, each failure to remit dues or otherwise apply the collective agreement terms to an improperly excluded position or employee constitutes a - 11 - secondary but additional or repeated violation that also supports the filing of a grievance. There are other limits on a union’s ability to pursue a grievance and opportunities to limit remedy that contribute to the appropriateness of treating such grievances as continuing in order to deal with the merits of the claim. [53] This is a grievance alleging that a position that is currently excluded from the bargaining unit should have been included in the bargaining unit based on the job duties. The Union grieves that at least since 2014, when the job description was last formally changed, the position has been improperly excluded, and that it should have been receiving union dues for the position since that juncture. I find that since this is a grievance that is in part about the non-payment of union dues for a position that is allegedly one that should be included in the bargaining unit, that it is a continuing grievance, and as such it is timely. Whether or not the Union is entitled to union dues back to 2014 is a separate matter which can be argued at the end of this case. [54] For all of the reasons outlined above, I find the grievance is timely, and should proceed to be heard on its merits. [55] I remain seized. Dated at Toronto, Ontario this 24th day of August, 2018. “Gail Misra” Gail Misra, Arbitrator