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HomeMy WebLinkAbout2018-1230.Martin.19-09-04 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 #2018-1230 Union #G-002-18-CC IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN International Association of Machinists and Aerospace Workers, District Lodge 78 (Martin) Union - and – The Crown in Right of Ontario (Metrolinx) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Ryan Newell Goldblatt Partners LLP Counsel FOR THE EMPLOYER Bonnea Channe Filion Wakely Thorup Angeletti LLP Counsel HEARING May 29 and June 28, 2019 - 2 - Decision [1] This is an individual grievance regarding the employer’s decision not to offer overtime opportunities to a particular classification of employees - the Customer Services Co-ordinator (CSC or Tier 3) - which is the classification in which the Grievor worked. On the first hearing day the parties made opening statements while at the same time addressing the union’s preliminary argument that part of the grievance had been allowed by the employer at the first stage of the grievance procedure when it acknowledged it had made an error in not offering the overtime. By award dated January 18, 2019 I allowed the union’s preliminary argument and directed that the only issue which need be decided is whether the Grievor is entitled to a remedy for the breach. This award determines that issue. [2] The employer operates the GO Transit commuter train system in the Greater Toronto Area. The union represents a bargaining unit of customer service employees who work out of offices in Toronto and Oakville. There are three “Tiers” of customer service employees: Tier 1 employees (Customer Contact Representatives (CCRs), the lowest paid; Tier 2 Customer Service Representatives (CSRs) being the next highest paid and Tier 3 being the highest paid. In general, Tier 1 and 2 employees deal directly with customers answering a variety of inquiries (through email, telephone etc.) about the Go system. Tier 3 employees deal indirectly with customers by, for example, making announcements on social media about issues and features of the system. [3] In December of 2017 the employer realized that it would be short Tier 1 employees on December 30 and 31 of that year. Accordingly, it asked Tier 1 employees whether they would like to work overtime. The response was insufficient to cover the need and the employer sought volunteers from the Tier 2 group, but not from the Tier 3 group. The union asserted that this was a violation of the collective agreement’s overtime provisions (Article 22) and the employer’s long-standing practice of offering Tier 1 overtime opportunities to both Tier 2 and 3 employees. - 3 - [4] The employer acknowledged that it once had a practice of offering overtime as the Union asserts but now takes the position that circumstances changed and it is no longer appropriate to offer Tier 1 overtime opportunities to Tier 3 employees in large measure because, for a variety of reasons, Tier 3 employees, like the Grievor, no longer have the skills to effectively perform the Tier 1 function. That assertion is disputed by the union. The employer’s position is succinctly stated in its step 2 response to the grievance: Metrolinx has not had a practice of offering CCR OT hours to CSCs and CSRs since at least 2014. In 2015 processes changed which made it unfeasible for CSCs to perform this work as they do not have the training to do so. As a result the grievance is denied. [5] At the hearing the employer appeared to acknowledge that a handful of employees who had recently been promoted directly from Tier 1 to Tier 3 would have the skill and ability to perform Tier 1 work. However, this concession does not apply to the Grievor who has long service as a Tier 3. [6] Obviously, the union and the Grievor have a different view of the ability of Tier 3 employees, particularly the Grievor, to perform Tier 1 work. The central focus of the hearing was for the union to demonstrate through evidence that the Grievor could perform the work in question. If it can do so, the Grievor is entitled to a remedy. If it cannot do so then the Grievor is not entitled to a remedy as it makes no sense for the employer to have the Grievor do work on an overtime basis which she is incapable of performing. In addition, there is a real issue about whether the Grievor would have accepted the overtime work in question had she been offered it. Background [7] The Grievor gave evidence about her work history with Metrolinx. She has been employed with the employer for 18 years starting out as a Tier 1 CCR which at - 4 - that time was an employee who gave information over the telephone to customers who called in with inquiries. She was a Tier 1 for approximately 7 years. She testified that she was aware of what Tier 1s do now and, in her view, the core aspects of the job have remained the same since she started which are to provide information to customers over the telephone or in writing (electronically or otherwise) about traveling on the GO Transit system. [8] She next worked as a Tier 2 CSR. In that role she handled customer inquiries that a Tier 1 was unable to answer. She only occupied that position for a short period before she was made a Tier 3. [9] She identified job descriptions for Tier 3 employees which were put into evidence. In fact, as a union steward at the time, she was involved in creating the job descriptions in 2013. Those job descriptions remained in place until October 2018, that is until after the events which gave rise to this grievance. Even so, in comparing the 2013 job description for Tier 3 employees with the 2018 Tier 3 job description it is apparent that there has been little substantive change. For example, even in the October 2018 job description one of the “Position Roles” is “Supports the Customer Care office to address customer relations issues, including responding to first and second level customer contact inquiries as required; including issues refunds and reviews customers transactional data to process service guarantees, and refunds and overrides”. Under the heading “Internal/External Contacts” is “Frequent contact with customers and other transit agencies to resolve customer issues and advise transit agencies of GO Transit service status”. This is largely Tier 1 and 2 work. [10] As a Tier 3 the Grievor provides service updates to the public over a variety of social media and other electronic platforms. She also, until sometime in 2015 or 2016, did Tier 1 and 2 work when required. In order to obtain information (such as about system delays) she is in frequent contact with other Go Transit departments. She may also assist Tier 1 employees with their work such as, for example, providing advice about system issues when they receive enquiries that - 5 - cannot be handled with the information at hand. She mostly works independently but occasionally her work is vetted by a manager. The Grievor is not on the usual Tier 1 and 2 email list and therefore did not receive the relevant email requesting Tier 1 overtime and likely only learned of it after the fact. [11] For most of the Grievor’s time with the employer the Tiers all worked in the same workspace or in the same building. However, the Tier 3s have since been moved to Oakville. However, that move took place in October 2018, again after the events giving rise to this grievance. Since the move, the Grievor’s direct customer contact has been reduced. [12] The Grievor gave evidence in support of her contention that she would have worked both of the overtime shifts that, in the union’s submission, should have been offered to her. [13] On May 12, 2016 (roughly a year and a half prior to the events giving rise to this grievance) the union’s business representative Kim Valliere wrote to a Metrolinx manager, Scott Wells, an email as follows: Hello Scott, As a follow up to our conversation yesterday, CSR’s will not perform CCR work outside their regular scheduled hours. Any extra hours/overtime planned or unplanned will be offered to the CSR’s and CSC’s as per the combined overtime/additional overtime roster, which is the process used. Mr. Wells responded on the same day as follows: This is correct Kim. Any extra hours/overtime that is required follows the rostering process as it has in the past. [14] The employer called Derick Taylor as its only witness to explain why it did not believe the Grievor had the necessary skills to perform Tier 1 work. Mr. Taylor - 6 - testified that he was employed as the Manager of Customer Care since May 1, 2017 and in that role had responsibility for Tier 1s and 2s. Seven supervisors in the contact centre on Bay Street and three other supervisors were his direct reports. At the time of his testimony he was no longer employed by Metrolinx, having left in March of 2019. [15] Mr. Taylor was very familiar with the job duties of Tiers 1 and 2 employees. He was also somewhat familiar with what Tier 3 employees do, but did not know the Grievor and had not supervised Tier 3 employees. He was aware that five to ten Tier 1 employees had been promoted to Tier 3 employees during his time at the employer and that many of those (three to five in his estimation) would certainly have been capable of taking Tier 1 calls. He was aware that many lower Tier employees eventually become Tier 3 employees, but had no direct knowledge of what the approximately 20 Tier 3 employees do. He also agreed there was no specific skill set that Tier 1 employees had that were beyond the capability of the Grievor, but thought it would have been impossible to bring the Grievor and other longer service Tier 3 employees up to speed in the time available to effectively perform Tier 1 work. [16] He also agreed that the employer’s explanations for why the Tier 3 employees could not do the Tier 1 work were arrived at after the fact. At the time he offered the overtime opportunity which is at issue in this grievance he did not know what the precise skill sets of Tier 3 employees were. He acknowledged that Tier 3 employees are paid substantially more than Tier 1 employees which reflects the disparity in complexity of the two jobs. [17] Mr. Taylor’s rationale for his conclusion that Tier 3 employees could not, on short notice do Tier 1 work at the required level of proficiency was, in the end, largely based on his assessment that Tier 3 employees could not effectively use the telephone system which was then in place. He testified that the telephone system had changed and so was different than the one the Grievor used when she worked at Tier 1 and 2. However, it also included features which allowed - 7 - management to restrict its use to receiving certain kinds of calls; this would commonly be done with a new employee. Moreover, Mr. Taylor was not aware that the Grievor had been trained on the new phone system at the time it was introduced in 2015, although he testified that in his view, she would have needed refresher training in any event. [18] Initially, the Employer took the position that the Grievor could not do Tier 1 work because she did not have a user code which would allow her to operate the telephone system. However, by the end of the hearing the employer had essentially conceded that the Grievor probably could have received an access code in a short time, before she would have needed it to perform her overtime shift. The Events Giving Rise to the Grievance [19] On Thursday December 21, 2017 the Tier 3 employees were offered planned overtime Tier 3 shifts for December 30, 2017 to January 5, 2017. Overtime shifts were offered on each of those dates. On Saturday December 23, 2017 the Grievor responded that she was requesting “Shift 1”. Shift 1 was an overtime shift on December 30, 2017 which started at midnight and ended at 8:30 a.m. On December 27, 2017 she wrote her manager an email confirming her selection which stated: “Just making sure you are aware that I only want Shift 1 ONLY. Thanks.” [All capitals in original]. Interestingly, on the roster form which sets out the employer’s overtime needs for Tier 3 there is a note: “NOTE: Any CSCs (Tier 3s) working overtime may be required to perform CSC, CSR, and/or CCR work as required”. [20] Later that same day the email which gave rise to this grievance was sent to the Tier 1 and 2 employees asking them if they wished to work unplanned Tier 1 overtime. The overtime coverage sought was for shifts on Saturday December 30, 2017 from 2:30 pm to 9:00 pm, Sunday from 9:30 am to 4:00 pm and Sunday - 8 - from 4:00 pm to 9:00 pm. The deadline for responding to the requests was Friday December 29 at 2:00 pm. [21] In examination in chief the Grievor claimed that she would have worked six hours of Tier 1 overtime on each of Saturday December 30 and Sunday December 31, 2017. She said that she would have done so based on her “personal needs”; she had no plans for New Years’ Eve. She in fact worked the Tier 3 midnight to 8:30 am overtime shift which is described above and was, of course, paid for that work. [22] The Grievor’s examination in chief covered two days. After, on the first hearing day, giving the testimony discussed above regarding her claim that she would have worked Tier 1 shifts had they been offered, she was asked again about the period in question on the second hearing day. She testified that she usually did not work the last week of December into January. She also noted that her regular work schedule was Tuesday to Friday nights on ten-hour shifts. She normally got Saturday, Sunday and Monday off. [23] Under cross examination, the Grievor acknowledged that her normal hours of work at the relevant time were 4:30 am to 3:00 pm inclusive of a one-half hour unpaid break. She testified that when she slept varied. On December 30 she worked the planned overtime shift which, as is noted above, started at midnight and ended at 8:30 am. The first shift that she claims she should have been offered would have started at 3:30pm (7 hours after her planned overtime shift finished) and ended at 9:00 pm (5.5 hours total). [24] The Grievor also agreed that initially she had requested two shifts of Tier 3 planned overtime. Shift 1 which she retained (as is set out in her email) and shift 7 which was to start at midnight on December 31 and end at 8:30 am. However, as her email indicates, she later changed her mind and requested shift 1 only. I am satisfied that at the time of her email (December 27 at 3:27 a.m.) she was no longer interested in working December 31 at midnight. - 9 - [25] Her claim that she was interested in working an afternoon shift the same day as she worked a midnight shift came under close scrutiny under cross examination. At a certain point she was asked about the two Tier 1 overtime shifts she claims to have wanted to work on Sunday December 31, 2017 -the 9:30 am to 4:00 pm shift and the 4:00 pm to 9:00pm shift. It was put to her that she would never have worked those shifts given her regular midnight schedule and the midnight overtime shift that she had already worked that weekend. She answered “that is an assumption” and then explained why she would have had sufficient rest to enable to work the overtime. Later she said something that I find to be telling. She said something to the effect that “if events change in [her] life which allow [her] to work an overtime shift then she should be afforded the opportunity to do so”. However, when questioned what events had changed in her life which caused her to want to work overtime on December 31 (albeit Tier 1 overtime at a different start time) when she had previously turned Tier 3 overtime down (after first requesting it) she did not have a coherent response. She seemed to be testifying that something had changed to make her think that she would have wanted the Tier 1 overtime, but it was never clear from her evidence what she was talking about. Decision [26] Following my first award the remaining issues in this case are whether the Grievor was qualified to perform Tier 1 work as of December 30/31, 2017 and if, so, is she entitled to a remedy for the shift(s) in question. [27] It a useful starting point to recall how this grievance became an issue. The employer had a long-standing practice, consistent with the collective agreement, of offering Tier 1 work to Tier 3 employees on an overtime basis when that work was available. The existence and continued application of the practice was confirmed by the employer in an email sent by Mr. Wells to the union (Ms. Valliere) in May of 2016. At that time the employer raised no concern about the ability of Tier 3’s to perform the Tier 1 work then or in the future despite the fact - 10 - that the Tier 3 employees had been geographically separated from the lower Tiers for some time and a new phone system had been installed in early 2015. [28] What it appears is that when Mr. Taylor became the supervisor of the Tier 1 and 2 employees, he was unaware of the overtime allocation practice, probably, in part, because Tier 1 overtime coverage was a relatively rare occurrence. Accordingly, he scheduled the overtime at issue without giving any thought to whether to offer it to Tier 3 employees. When the union filed this grievance, he acknowledged his error and then identified reasons why, in his view, it made no sense to offer the overtime to Tier 3s. He did so in the abstract, without any consideration of the Grievor’s actual qualifications and work history; in fact, he did not know who the Grievor was. [29] The clearest example of Mr. Taylor’s lack of understanding of the history of this issue was the response in both step 1 and 2 of the grievance procedure that in 2015 a new VOIP telephone system was introduced which made it unfeasible for Tier 3 employees to take Tier 1 calls as they did not have the training to do so. In fact, the Grievor had been trained when the new phone system was introduced. Moreover, no such concern was raised by Mr. Wells in 2016. In fact, on the evidence before me, there was nothing particularly complicated about the new telephone system. I am satisfied that the Grievor would have been proficient in the use of the system with only a short brushing up on the manual. [30] In addition, it appears that Mr. Taylor was simply wrong when he responded to the grievance that there was no practice of offering Tier 1 overtime hours to Tier 3s since “at least 2014” as there was documentary evidence of such overtime being offered to Tier 3s in August and September 2015. Again, this was after the new VOIP telephone system was introduced. [31] Had the Grievor been offered the overtime at the appropriate time there would have been time for her to review the materials and, undisputedly, obtain the necessary access code for her to use the system. Again, I emphasize, that Mr. - 11 - Wells did not identify this as a problem in 2016 and the fact that the employer could require the Tier 3s to do Tier 1 and 2 work is consistent with the job descriptions and the note on the overtime roster form. While time had passed, there was no particular reason identified why the Grievor could not have done the work and I am satisfied she could have. [32] That being said, and despite the fact that the Grievor should have been offered the overtime in question as she was capable of performing the work, I am not convinced, on a balance of probabilities, that she would have worked the overtime if offered it. Had she wanted to work more overtime on that weekend she could have worked the Tier 3 shifts being offered. Instead, she specifically rejected that work after initially asking for it. In doing so she made it abundantly clear that she wanted to work the Shift 1 “ONLY” which was what she did. [33] It is possible that the life circumstances that caused her on December 27 to write the email to her supervisor making it clear that she wanted shift 1 ONLY could have changed between that time and 11 hours later when the unplanned Tier 1 overtime was offered. However, the Grievor was unconvincing about what had changed and offered no real explanation other than speculation about what might have changed. I also think it unlikely in these circumstances that the Grievor would have worked a part shift on December 30. Her Tier 3 overtime shift that day ended at 8:30 am. The collective agreement provides that there must be eight consecutive hours of rest at some point between each day’s work assignments. Accordingly, the earliest time the Grievor could have started the Tier 1 3:30 pm to 9:00 pm overtime shift was 4:30 pm (something which the collective agreement appears to specifically provide for) which would have reduced the length of the shift to 4.5 hours. [34] Given that the Grievor had rejected working an overtime shift at her normal time on that day I am just not convinced in the circumstances that the Grievor would actually have chosen to work on the afternoon of that day, on short rest, for limited hours. What appears to be going on here largely is what the Grievor said - 12 - in her evidence under cross examination - that she should have been given the opportunity to decide whether to work the overtime if her circumstances changed. While I entirely agree with her, that does not mean that she is entitled to a monetary remedy for the employer’s failure to give that opportunity since I am not convinced her circumstances did change. It is unlikely on my assessment of the evidence that the Grievor would have agreed to work either of the Tier 1 shifts had they been offered (as they should have been). In these circumstances, the declaration of a violation of the collective agreement which the employer admitted to in the grievance procedure must suffice. [35] For all of the foregoing reasons I find that it would not be appropriate to order a monetary award for the employer’s breach of the collective agreement. Dated at Toronto, Ontario this 4th day of September, 2019. “Brian McLean” Brian McLean, Arbitrator