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HomeMy WebLinkAboutLaframboise Group 19-07-16Between: In the Matter of an Arbitration Broadspectrum -and- (The "Employer") Ontario Public Service Employees Union, Local 602 (The "Union") Re: Laframboise Group Grievance Arbitrator: Brian Sheehan Appearances: For the Employer: For the Union: Jim McKeown — Counsel Dan Hales — Grievance Officer Hearing conducted in Sault Ste. Marie on June 21, 2019 This Award concerns a November 1, 2017 group grievance filed by four Seasonal Patrol Maintenance Technicians (Bobby Mathieu, James Haythorne, Mike Hooey and Richard Laframboise) employed by the Employer. As is often the case in modern-day labour arbitration in Ontario, the parties, before the commencement of the proceeding, engaged in mediation efforts in an attempt to resolve the grievance. During the course of that mediation, Mr. Laframboise, the "lead" grievor, decided he no longer wanted to participate in the proceeding as he was not pleased by the position adopted by the Employer during mediation. Ultimately, the mediation efforts of the parties were unsuccessful. At the commencement of the formal hearing, Mr. Hales, on behalf of the Union, requested that the matter be adjourned; asserting the absence of Mr. Laframboise resulted in him being without an individual to provide him with instructions as to how to proceed. The Union's adjournment request was denied. Arbitration is designed to be an expeditious process wherein unnecessary delays are to be avoided. Accordingly, adjournments are only generally granted if compelling reasons exist that are associated with the request. In the case at hand, there were no such compelling reasons, and to adjourn the matter would have unduly delayed the proceeding; resulting in both parties incurring additional unnecessary costs. The facts associated with the grievance are essentially not in dispute. The Employer has a contractual relationship with the Ontario Ministry of Transportation (MOT) to maintain provincial highways in the Sault Ste. Marie and Kenora "Project Areas" over the winter season. The grievors are employed as Seasonal Patrol Maintenance Technicians (SPMT)s and are hired annually for the winter season, which generally runs from towards the end of October to April of the following year. Typically, a SPMT is recalled to employment by way of a letter from the Employer. Prior to commencing work for the season, the SPMTs have a day of training with the MOT. The day of training has traditionally been contiguous to the first day of active work for the SPMTs; which effectively was the day of the commencement of the contract between the Employer and the MOT. In early October 2017, the four grievors were recalled back to work effective October 12, 2017, which was the day of the MOT training. Initially, the MOT training had been tentatively scheduled to take place on October 19, 2017, but in early August 2017 the MOT advised the Employer that the facilitator conducting the training would only be available in the Sault Ste. Marie area on October 12. According to the Employer, October 12 was the closest day to October 21 that the MOT training could be scheduled. Following the completion of the one-day training from the MOT, the grievors Mathieu, Haythorne, and Hooey did not work again until October 21; while Mr. Laframboise did not recommence working with the Employer until October 22. The reason that the Employer only scheduled the grievors to commence working as of those dates was that under the Employer's contract with the MOT, the Employer did not have any work for the SPMTs to perform that could not be taken care of by the full-time Patrol Maintenance Technicians (PMTs). 2 The Relevant Provisions of the Collective Agreement Article 1 — Recognition (PFT, PPT, SE, FXT, ST) 1.1 The Employer recognizes the Union as the sole Collective Bargaining Agent for covered individuals employed in the Province of Ontario within the AMC Project areas known as the 2011-09 Kenora and 2010- 06 Sault Ste. Marie Projects who are engaged in the Patrol Maintenance Technician ("PMT") and Operator roles and which constitute the Bargaining Unit. At the time the Employer contracts work at a new location or adds a new job classification, either party may give notice to the other to meet in order to discuss voluntary recognition of the individuals at the new location or in the new job classification. 1.5 Employee Definitions. 1.5.1 Full-time Employees (PFT) are those employees who work on a full-time basis for a minimum of forty (40) hours per week. 1.5.2 Part-time Employees (PPT) are those employees who are regularly scheduled to work less than forty (40) hours per week; it is understood there is no guarantee of minimum hours of work. 1.5.3 Seasonal Employees (SE) are those employees who work for a period of at least eight (8) consecutive weeks in a recurring full-time position on an annual basis. Article 2 — Management Rights (PFT, PPT, SE, FXT, ST) 2.1 Under this Agreement, the following shall be vested exclusively in the Employer; the right and authority to manage the business and direct the work force, including the right to hire and lay-off, appoint, assign, and direct employees; evaluate and classify positions; determine job qualification, skill levels and 3 competencies of employees; discipline, suspend or terminate employees for just cause; determine organizational structure, evaluate the performance of employees; determine staffing levels and hours of work; the right to introduce new and modified work methods and materials; the location of the workplace; the kinds and locations of equipment; the merit system; training and development opportunities; and create, change or delete reasonable rules and regulations. It is agreed that these rights are subject to the provisions of this Collective Agreement. Article 10— HOURS OF WORK (PFT, PPT, SE, FXT, ST) 10.6 OPERATORS Full time equipment operators will work a minimum of forty (40) hours per week and will be paid overtime upon reaching the threshold of forty-eight (48) hours per week. Seasonal Equipment Operators will be guaranteed a minimum number of hours per week as indicated below and will be paid on an "on-call" rate of one dollar and forty cents ($1.40) and beginning July 1, 2018 one dollar and fifty cents ($1.50) per hour based on the "on-call" schedule. Actual payment of any "on-call" payments will be paid each bi- weekly pay cycle. Minimum number of hours per project: Sault Ste. Marie Project 25 hrs./week Kenora Project 15 hrs./week The Parties agreed to meet and confer as to whether there is a need to temporarily or permanently increase the guaranteed minimum number of hours in any particular location within each project. The Respective Submissions of the Parties The Union's primary argument is that a combined reading of Article 1.5.1 and Article 1.5.3 of the collective agreement establishes that it was the parties' intention that 4 the grievors were entitled to a minimum of 40 hours of work scheduled per week. Further to this point, it was submitted that Article 1.5.3 defines Seasonal Employees as Full-time employees; with Article 1.5.1 stipulating that Full-time employees work a minimum of 40 hours per week. Accordingly, by implication, Seasonal Employees as Full-time employees are guaranteed a minimum of 40 hours of work per week. The Union further submitted that an employee is recalled back to work by the employer with the understanding that the employer has available work for the employee to perform. In this regard, Mr. Hales asserted it was inherently unfair for the Employer to have recalled the grievors to work to then immediately lay them off thereafter. The Employer, in the Union's view, had ostensibly acted in bad faith by not advising the grievors that they would not be scheduled to work for over a week after the one day of MOT training that took place on October 12, 2017. In the alternative, Mr. Hales asserted that the Employer, by its consistent practice of having ongoing work for the SPMTs immediately effective the date of their recall to employment, (the day of their MOT training) had made a representation to the Union that such a practice would remain in place. It was further submitted the Union relied on that representation to its detriment by not seeking a guaranteed hours of work provision applicable to the SPMT position. Accordingly, it was asserted that the doctrine of estoppel was relevant in the case at hand; such that, the decision of the Employer not to provide the grievors ongoing work after October 12, 2017 was in violation of the collective agreement. 5 In support of its submissions, the Union relied upon the following authorities: Kawartha-Haliburton Children's Aid Society and Ontario Public Service Employees Union, Local 334 (2010) 103 C.L.A.S. 205 (Knopf); Sorbara Development Group Inc. and Labourers' International Union, Local 183 (2015) 122 C.L.A.S. 359 (Surdykowski); Center Manufacturing Inc. and CAW-Canada, Local 222 (1999) 81 L.A.C. (4th) 281 (Knopf); Bruce Power LP and Society of Enerey Professionals (2017) 285 L.A.C. (4th) 205 (Surdykowski). The Employer asserted that a review of the collective agreement plainly establishes that there was no violation of the collective agreement whatsoever with respect to its utilization of the grievors during the relevant time period. Moreover, it was postulated that the actions of the Employer were entirely consistent with and in furtherance of its rights to manage its operations. Mr. McKeown, on behalf of the Employer, asserted there is no guaranteed hours of work wording under the collective agreement applicable to the SPMT position. In the Employer's view, Article 1.5.1 and Article 1.5.3 are not guaranteed hours of work provisions; but rather, those provisions are intended to define the different type of employees under the collective agreement, given that not all terms of the collective agreement apply across the board to all employees. Accordingly, the purpose of Article 1.5.3 is simply to confirm that Seasonal Employees for the purpose of certain provisions of the collective agreement are to be viewed as Full-time as opposed to Part-time employees. 6 More significantly, the Employer submitted that in contrast to the SPMT position, the collective agreement at Article 10.6 expressly sets out certain guarantees regarding minimum hours of work applicable to Seasonal Equipment Operators. Accordingly, the parties had indisputably turned their minds to provide certain Seasonal Employees with a guaranteed number of hours of work per week but decided not to extend any such express guarantee to the incumbents in the SPMT position. As to the Union's estoppel argument, the Employer asserted there is not sufficient evidence to establish that any sort of representation was made by the Employer through its practice that could be construed as a guarantee of hours of work for the SPMTs in question. More importantly, it was asserted that the jurisprudence confirms when an employer practice relates to a subject matter that is not expressly set out in the collective agreement, then it is incumbent upon the union to provide evidence of a written or oral representation made by the employer confirming that the practice would remain in place. It was submitted that in the case at hand the Union indisputably failed to satisfy its evidentiary onus of establishing any such representation on the part of the Employer. In support of its submissions, the Employer relied upon the following authorities: Air-Care Ltd. and United Steel Workers of America [1974] 49 D.L.R. (3d) 467; John Noble Home and Service Employees International Union, Local 1 [2014] 0.L.A.A. No. 420 (McNamee); Ontario Power Generation Inc. and LIUNA, Ontario Provincial District Council (2013) 233 L.A.C. (4th) 250 (Anderson); County of Simcoe and Canadian Union of Public Employees, Local 5820.01 (2010) 195 L.A.C. (4th) 249 (Johnston); Cavendish Appetizers and United Food and Commercial Workers Union, Local 175 & 663 (2017) 7 278 L.A.C. (4th) 422 (Nyman); Dynamic Closures (1995) Ltd. and United Steelworkers of America, Local 13292-03 (1998) 52 C.L.A.S. 260 (Dumoulin); Prince Foods L.P. and United Food and Commercial Workers Canada, Local 175 [2012] 0.L.A.A. No. 70 (Marcotte); Sears Canada Inc. and United Steelworkers (2011) 213 L.A.C. (4th) 106 (Knopf); Coca-Cola Bottling Co. and United Food and Commercial Workers International Union, Local 175 (2003) 118 L.A.C. (4th) 124 (Marcotte); The Chronicle Journal and Communications Energy and Paperworkers Union of Canada, Local 191 (2003) 117 L.A.C. (4th) 385 (Surdykowski); Sysco Central Ontario Inc. and Teamsters, Local 419 (2013) 232 L.A.C. (4th) 326 (Davie). Decision Upon reviewing the facts in conjunction with the submissions of the parties and the referenced authorities, it is determined that the Employer did not violate the collective agreement with respect to the manner in which the grievors were scheduled to work during the relevant time period. Analysis At one level, the frustration of the grievors is understandable. Traditionally when they were recalled back to work, they would generally commence working 40 hours per week. It is also appreciated that the grievors may have been inconvenienced by being called back to work on October 12, only to be scheduled to work on an ongoing basis as of October 21, or in the case of Mr. Laframboise October 22. (It has to be emphasized that it can only be inferred that the grievors were inconvenienced or adversely affected, 8 as the Union was not in a position to call evidence on this point given the absence of the "lead" grievor). Additionally, it could be argued that the Employer could have been more transparent with the grievors with respect to their recall on October 12, by advising the employees that they would not be subsequently scheduled to work until either October 21 0r22. Those points noted, an arbitrator does not have the overarching jurisdiction to inquire as to what is "fair", or necessarily assess whether the Employer could have adopted a different approach. An arbitrator's role is to determine whether the relevant facts give rise to a violation of the collective agreement and to issue the appropriate relief to remedy any violation found. Turning to the relevant wording of the collective agreement, arbitral jurisprudence generally suggests, as Arbitrator Davie stipulated in Svsco Central Ontario Inc., supra, that "clear and specific language is required in a collective agreement in order for an arbitrator to conclude that there is a guarantee of hours of work". There is no such clear and specific language in the parties' collective agreement guaranteeing SMPTs a minimum number of hours of work per week. Further to this point, it is my view that Article 1.5.3. is a definitional provision simply identifying Seasonal Employees as Full- time employees; and it does not constitute a minimum guaranteed hours of work provision. In contrast, Article 10.6 expressly sets out such a minimum guarantee of hours of work applicable to Seasonal Equipment Operators. The absence of similar language 9 with respect to the SPMT position also lends strong support to the assessment that it was not the intention of the parties that a minimum guaranteed number of hours of work would be applicable to the SPMT position. As to the estoppel argument raised by the Union, the first difficulty for the Union with respect to that argument is the absence of substantive evidence confirming the nature of the practice that is being relied upon to claim that a representation was made by the Employer to the Union. Arguably more importantly, there is merit to the Employer's argument that if the practice being relied upon is untethered to a provision of the collective agreement, there is a need for evidence of an overt representation being made by the Employer, either verbally or in writing to the Union, that said practice would remain in effect. This view was captured by Arbitrator Surdykowski in Chronicle Journal, supra: Where there is a practice in the workplace that is not related or referable to a specific provision in the collective agreement that is where it relates at most to the exercise of management rights reserved to the employer within a management rights clause written or implied in the collective agreement the mere existence of a practice however lengthy without more will not be a sufficient basis for an estoppel. Regardless of the length of a practice the mere fact that the employer has chosen to exercise a management right in a particular way will not by itself freeze that practice or transform it into a collective agreement right such that the employer cannot unilaterally alter that practicejn these circumstances there is no representation inherent in the practice. There must be an additional clear and specific representation that the employer will maintain the practice in circumstances where the union either sought to bargain the matter or the issue was raised in circumstances where the union would have had an opportunity to bargain the matter that the union in fact relied upon. Where nothing like this has occurred that is where the practice is not inconsistent or at odds with a term of the collective agreement and the matter has never come up in bargaining mere silence at the bargaining table will not constitute a representation because silence is not enough to the matter within the collective agreement regime. It requires a representation made within the context of the legal 10 relationship between the parties (i.e. the collective agreement) to accomplish that result. Further to the above, the mere fact that the Employer previously had been successful in arranging for the MOT day of training to abut the effective start date for the SPMTs is not sufficient, in itself, to establish that the Employer had made a representation to the Union that such scheduling would always take place. Related to this point, it is noted that the evidence suggests that typically SPMTs would not be recalled until the latter part of October. That is, the anomaly in 2017 was that the MOT training took place earlier in the month than was traditionally the case, and there was no significant alteration in terms of the start date for the grievors with respect to the actual performance of their SPMT duties. In conclusion, there is no collective agreement language that was violated by the Employer with respect to the hours of work that were not provided to the grievors for the period from October 13 to October 20, 2017. Additionally, the Union's estoppel argument is not accepted in light of the relevant facts. Accordingly, the grievance is, hereby, dismissed. This Award is issued in Mississauga this 16th day of July 2019. Brian Sheehan 11