HomeMy WebLinkAbout2006-2594.Ross et al.07-12-20 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2006-2594
UNION# 2006-0499-0091
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Rosset al.)
Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFOREVice-Chair
Bram Herlich
FOR THE UNION Val Patrick
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Allison Renton
Counsel
Liquor Control Board of Ontario
HEARING November 20, 2007.
2
Decision
This is a group grievance to which some 35 bargaining unit employees have affixed
their names. The union complains that the employer failed to post the vacant position of
warehouse foreperson which, despite its title, is a bargaining unit position. The employer
agrees that the position was not posted. However, it asserts ? and the parties argued this
as the central issue in the case ? that there was no vacancy giving rise to any obligation to
post under the collective agreement.
The provision relied upon by the union is the following:
21.4 (a) (i) If a new job classification within the bargaining unit is created, or
a permanent vacancy occurs in an existing job classification,
before inviting applications from persons not employed by the
Employer, or employees who are outside the bargaining unit, the
Employer will post within the geographic area as specified, notice
of such new job or vacancy for a period of ten (10) working days
during which employees within such area may apply?
(The agreement goes on to provide that seniority will be the determining factor in
promotions of qualified employees.)
The basic facts are not seriously in dispute. Some of the more intricate details were,
however, the subject of widely conflicting testimony.
Rolly Marleau, who testified on behalf of the union, has been a bargaining unit
employee for more than 25 years. For some 6 years or so, culminating in October 2006,
he occupied the position of foreperson on the night (sometimes referred to as the ?PM?)
shift which runs from 4 p.m. to midnight at the employer?s Ottawa warehouse. Sometime
in August 2006, Mr. Marleau, of his own volition, requested to be reassigned to the day
shift in the lower rated classification of warehouse worker. That reassignment was
effected in early October 2006. In its aftermath the employer determined there was no
operational need to fill the position of foreperson on the night shift and the position was
consequently not posted. Some (the precise extent is in dispute) of the duties formerly
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performed by Mr. Marleau have subsequently been performed by the night shift
supervisor, a member of the employer?s management team.
The night shift at the Ottawa warehouse is a significantly scaled down version of
the daytime operation. While numbers are subject to seasonal variations, the range of
employees on duty is approximately 8-15 compared with 55-60 on days. On days there
are currently two bargaining unit forepersons (the employer pointed out that there had
previously been three and that when the complement was reduced to two, following a
retirement, no grievance similar to the instant one resulted). Until Mr. Marleau?s
departure there was only one on nights; now there is none.
The bulk of the evidence regarding the duties performed by the foreperson on the
night shift came from Mr. Marleau. We also heard the evidence of John Crupi, manager
of the Ottawa warehouse, although, given his infrequent attendance at the warehouse
during the shift in question, his ability to testify on a first-hand basis as to the precise
duties actually performed by Mr. Marleau was somewhat limited. And, as will be seen,
there was, although by no means to the same extent, a similar frailty in the evidence of
Grant Beasley, who for much of the relevant period, was the shift supervisor on nights
and Mr. Marleau?s direct supervisor. We also heard from Nelson Ross, the President of
the local union. Mr. Ross has worked in the warehouse on nights for significant periods
both before and after Mr. Marleau?s re-assignment. His description of Mr. Marleau?s
duties was consistent with the latter?s and he also testified, without significant
contradiction, that the supervisory duties formerly being performed by Mr. Marleau have
now been taken up by the night shift supervisor.
The foreperson duties, as performed by Mr. Marleau, included two broad
components which may be described as supervisory and operational.
In the former category, Mr. Marleau would be responsible for monitoring the flow
of work within the warehouse and, if necessary, reassigning the immediate tasks of other
bargaining unit employees. The initial assignment of work at the beginning of a shift
would come from the shift supervisor, who would maintain the ultimate control and
responsibility for the warehouse operations during the shift. However, the shift supervisor
4
was rarely in the warehouse for the full duration of the shift. In his absence and to a lesser
extent even during his presence, Mr. Beasley viewed Mr. Marleau as his second eyes and
ears in the warehouse. He also acknowledged that, in his absence, Mr. Marleau was
?running the place?. It is difficult to ascertain the precise number of hours Mr. Beasley
typically spent in the warehouse during the night shift ? as he put it, he ?bounced around
a lot? and ?worked a lot of 10 a.m. to 6 p.m.?, i.e. departing two hours into the shift. He
sometimes worked fewer hours on the shift ? although it seems he was generally there for
its start. On other occasions he worked until 8 p.m. or later, sometimes to the very end of
the shift at midnight. Based on the evidence before me, a precise number is impossible to
determine, but I am satisfied that Mr. Beasley typically worked anywhere from 2-4 hours
during the night shift.
I am also satisfied that when the two gentlemen were both in attendance at the
warehouse they, generally speaking, shared the responsibility for monitoring and
directing the flow of work. The ultimate responsibility was always Mr. Beasley?s even
though Mr. Marleau may, effectively, have been in charge much of the time.
While there was some overlap in the duties performed by the foreperson and the
supervisor when both were at work together, there were obligations and responsibilities,
many of them clearly managerial in nature, which fell to Mr. Beasley alone. For example,
it was clear that Mr. Beasley, though he was free to seek input from Mr. Marleau, was the
person who prepared and issued performance appraisals and discipline, including Notices
of Impending Discipline (?NOID?s) (Mr. Marleau?s evidence of an occasion on which he
thought he issued a NOID is likely mistaken but, in any event, singular). In addition, Mr.
Beasley testified as to the duties he performed in his office when he was not on the
warehouse floor. These included work related email correspondence and telephone calls
as well as other office duties, such as maintaining and updating shipping and receiving
totals and productivity reports. For convenience, I will refer to all of these tasks, none of
which was performed by Mr. Marleau, as the ?managerial duties?. I am satisfied that Mr.
Beasley spent at least 50% of his time on the night shift attending to these managerial
duties.
5
I have described the second of the two broad components of Mr. Marleau?s duties
as ?operational?; the union representative used the well-known industrial shorthand of
working ?on the tools?. Under this general heading, the work Mr. Marleau performed
may have been indistinguishable from those of other, lower rated, bargaining unit
employees. It consisted essentially of helping out in the loading and unloading of
deliveries at the warehouse and other hands-on tasks associated with those deliveries.
When engaged in that fashion, Mr. Marleau would have been likely to be operating a
forklift truck. (I note that other bargaining unit employees were also certified, authorized
and expected to operate forklift trucks as part of their duties. The supervisor is not.)
The most, if not the only, significant area of factual dispute between the parties
relates to the relative proportion Mr. Marleau?s ?supervisory? and ?operational? duties.
Employer witnesses testified that operating the forklift was a daily occurrence for Mr.
Marleau, though certainly not for the entire duration of a shift. Mr. Beasley estimated the
proportion of operational to supervisory time to be in the range of three to one. For his
part, Mr. Marleau testified that while he had formerly operated the forklift more
frequently, in recent years he spent little, if any, time doing so. His precise assessment of
the amount of time spent ?on the tools? was somewhat elusive ? he vacillated from
complete denial to acknowledging there were in fact times he performed operational
duties. Although his inconsistent assessment leads me to question the value of his
evidence on the point, I am also concerned that the estimates offered by witnesses who
were virtually never or only present on the shift for part of the time may be inaccurately
inflated. I do not mean to suggest that any of the witnesses deliberately attempted to
mislead the Board, merely, that, as is often the case with competing time estimates, the
truth lies somewhere between the versions offered. As will be seen, it does not appear to
me that anything turns on a precise delineation of the ?supervisory? versus ?operational?
hours worked by Mr. Marleau. However, in any event I am satisfied that, on average
during his tenure in the position, Mr. Marleau spent at least 10-20% of his time
performing operational functions.
When Mr. Marleau vacated the position, the employer turned its mind to whether
there was a vacancy to be filled. Its determination was in the negative and was
influenced, at least in part, by the decision to insure that there was always a managerial
6
presence in the warehouse, i.e. that Mr. Beasley, or his successor as the night shift
warehouse supervisor, would, in future, be in attendance at the warehouse for all hours of
the night shift.
In the result, it would appear that the supervisory duties formerly performed by Mr.
Marleau have been taken up by the night shift supervisor. The evidence was less clear on
the fate of the ?operational? work formerly performed by Mr. Marleau. The parties
agreed that no layoff resulted from these changes and that, at least to that extent,
bargaining unit integrity was not compromised; similarly, there was no evidence of any
increased hours or workload of other bargaining unit employees as a result of the
changes. Thus, it would appear that the operational duties formerly performed by Mr.
Marleau were simply absorbed into the existing duties of other bargaining unit personnel.
The union?s argument is simple and straightforward. It concedes on the one hand
(perhaps unnecessarily) that the employer cannot be required to fill a vacancy. But, it
continues, the employer has in fact opted to do so in the present case. Essentially, the
union argues that the night shift supervisor is now doing the job formerly done by the
foreperson. There has been no substantial change in the job, other than who is doing it
and, perhaps on that basis alone, the assignment of a bargaining unit job to a supervisor
excluded from the bargaining unit is improper. Further, and in any event, the employer
has filled the vacancy without regard to its collective agreement obligations.
For its part, the employer?s position was equally direct. First, it points out that this
is not a grievance about the propriety of a manager doing bargaining unit work. Indeed,
there is no specific collective agreement provision relied upon in that regard ? and for
good reason ? the collective agreement simply does not address that issue.
The employer relies on what it asserted to be an established line of case law to
support its right to determine that a vacancy did not exist in the instant case. And, as it
had legitimate bona fide operational reasons to support its decision in that regard, its
determination ought not to be interfered with.
7
For the reasons which now follow, I have come to the conclusion that the
grievance must be dismissed.
First, there is no basis for the union?s initial argument. I note that the union
conceded, as a general proposition, that there was no impropriety in the foreperson and
the supervisor performing the same duties while both were on shift together. And that, of
course, is consistent with what the evidence demonstrates, i.e. that the supervisory work
performed by Mr. Marleau was never in the exclusive domain of the bargaining unit.
Rather, those duties overlapped with the duties performed by the night shift supervisor,
when he was at work. Thus, there is nothing, per se, improper in the supervisor
continuing to perform those duties, and, subject to what follows, even doing so to an
increased extent (by virtue of working more hours on the shift).
While it is true that nothing in the collective agreement explicitly addresses the
issue of supervisors doing bargaining unit work, the union has pointed to two cases (Re
Health Labour Relations Association (Cancer Control Agency of B.C.) and British
Columbia Nurses? Union (1988), 3 L.A.C. (4th) 35 (Hope); and Re Giant Yellowknife
Mines Ltd. And Canadian Association of Smelter & Allied Workers, Local 4 (1990), 16
L.A.C. (4) 413 (Bird)), where the lack of such explicit collective agreement language did
not prevent the granting of a remedy. But the facts in those cases were very different and
quite exceptional. Essentially, in both cases, all of the duties of a number of identical
bargaining unit positions were transferred to establish newly created positions which the
employer then purported to exclude from the bargaining unit. Those extreme facts ? the
effective elimination of an entire classification concurrent with the establishment of a
new excluded classification whose duties are indistinguishable from the eliminated
bargaining unit classification ? are simply not the constellation of facts before me.
The employer did not choose to eliminate or layoff all the incumbents in a
particular classification. Mr. Marleau chose to move to a different job. And even after his
departure the classification continues to be populated, albeit on different shifts and
locations. And most significantly, while the supervisory duties formerly performed by
Mr. Marleau may well have been taken up by the supervisor, that does not mean, as will
8
become clear, that the duties formerly performed by Mr Marleau are indistinguishable
from those now performed by the supervisor.
This case is more properly addressed on the footing advanced by the employer,
and the principal question to be addressed is whether there was a vacancy.
The employer submitted that the case law is well settled and pointed to a series of
arbitral awards including Re United Brewery Workers, Local 800, and Loblaw
Groceterias Co. Ltd. (1967), 18 L.A.C. 420 (Weatherill); Re Polymer Corp. Ltd. and Oil
Chemical and Atomic Workers, Local 9-14 (1974), 5 L.A.C. (2d) 344 (Rayner); Re
Pilkington Brothers Canada Ltd. and United Glass & Ceramic Workers (1976), 13
L.A.C. (2d) 287 (Burkett); Re Town of Lincoln and Canadian Union of Public
Employees, Local 1287 (2000), 85 L.A.C. (4th) 144 (Verity);and Re Humpty Dumpty
Foods Ltd. and Teamsters Union, Local 647 (1990), 15 L.A.C. (4th) 18 (Dissanayake).
There is no doubt that the arbitral jurisprudence is replete with awards dealing with
the general issue of when there is a vacancy (typically triggering other collective
agreement obligations, such as posting). It is less clear to me that the case law
consistently speaks in a uniform voice, particularly with respect to the width of the berth
arbitrators are prepared to permit employers making a determination as to the existence
of the vacancy. Some of the early cases appear to have conferred considerable discretion
on the employer and deferred to its exercise in the determination of whether a vacancy
exists. For example, in the Loblawcase, the arbitrator offered the following (at p. 423):
Whether or not work is required in any particular classification and
at any given store, is, in my opinion, a matter for the company to
determine. When the company does determine that work is to be done in a
particular classification, and there is no employee in that classification,
then a vacancy, whether temporary or permanent, exists.
Other cases appear to have been less deferential to the employer determination and
have posited a test which is much more objective in its nature. For example, in the
Pilkington case, arbitrator Burkett referred to earlier authorities including the Loblaw
decision and went on to qualify the issue as follows (at p. 291):
9
The right of the company to unilaterally decide if work exists in a
classification sufficient to create a vacancy is not, however, an unqualified
right. First, it must withstand an examination of the company?s practice.
An employer cannot, on the one hand, assert that there is no vacancy and
on the other, require the work of the classification to be done to an extent
as would establish that there is a ?job of work to be done?.
And in comments apposite to the case at hand, the arbitrator went on (at page 253)
to cite the following comments of Professor Adams [citation omitted]:
?the concept of a job vacancy would appear to require the existence
of an amount of work that could occupy an individual for at least the
majority if not all of a working day.
and then continued:
In the Horton Steel Work Ltd. Case [citation omitted] the arbitrator makes
reference to the fact that a job vacancy exists in circumstances where the
work of the job is being done for a ?full shift each day?, either by one
person or by a number of persons. In that case the evidence supports a
finding that the job was being done for four hours per day and the board
found that, ?so long as the job is being done only to that limited amount of
time the Board cannot make a finding that the company was clearly wrong
in its opinion that the amount of work did not justify the filling of the
vacancy.?
These two awards alone may suggest a range between according considerable
deference to the employer?s determination and evaluating that determination to ascertain
whether or not, on the basis of certain objective factors, it is correct.
While I may prefer the latter approach, I need not make any firm determination in
that regard since, even applying that more rigorous standard to the employer?s
determination, I am persuaded that there was no vacancy in the instant case.
In my view, the amount of work formerly done by the foreperson, now being done
by the supervisor, does not amount to a job of work to be done.
10
The supervisor?s work can be seen as falling into 2 categories: the work during the
2-4 hours the supervisor was always on shift and the work performed during the
additional 4-6 hours which the supervisor is now working to complete the full shift. In the
former category, the supervisor was always performing duties similar those performed by
the foreperson and I am not persuaded that there has been any significant increase in the
extent of the performance of those duties. In the aftermath of Mr. Marleau?s departure
from the foreperson position, the supervisor has performed the duties associated with
monitoring the workflow and, where necessary, reassigning employees based on
operational exigencies. But there is also a whole range of tasks, referred to earlier as the
managerial duties, which the supervisor has always performed and continues to perform,
now throughout the entire shift. Thus, at its highest, the supervisor is spending 50% of 4-
6 hours of each shift performing work formerly done by the foreperson. This does not
amount to ?a job of work to be done? as described in the cases referred to earlier.
It is difficult to pinpoint, with complete accuracy, the ultimate fate of all of the
work previously performed by the foreperson. It may be that the identification of 10-20%
of that work as operational is, as the employer?s evidence suggested, unduly
conservative. It may also be that the supervisor, to the extent that he performs work
previously done by the foreperson, is able to do that work more efficiently. In any event,
I am satisfied that the work previously performed by the foreperson and now being done
by the supervisor does not amount to a job of work to be done.
For the sake of completion and to the extent it properly enters into consideration,
there can be no impugning of the employer?s motives in this case. It clearly had
legitimate operational concerns guiding its work assignment. The decision to insure a
consistent management presence on the night shift is entirely defensible. In so doing, it
had the supervisor perform not only the duties unique to his position, but also some
additional duties which have, historically, been performed by both the supervisor and the
foreperson. The resulting performance of work does not result in any vacancy in a job of
work to be done.
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In light of the foregoing, the grievance is hereby dismissed.
th
Dated at Toronto this 20 day of December 2007.
Bram Herlich, Vice-Chair