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HomeMy WebLinkAboutDarch 21-07-30 In the matter of an Arbitration Between: Ontario Public Service Employees Union, Local 493 and Northern Cables Grievance of Josh Darch Andrew Tremayne, arbitrator Appearances: Emily Cumbaa for the union Todd Stafford for the employer Hearing held on June 1, 2021 by videoconference Award issued on July 30, 2021 at Ottawa, Ontario 2 Background and Introduction 1. In January 2020, the employer posted a position of Fork Truck Operator for its Prescott plant. The union filed a grievance on behalf of Josh Darch, a Wiremill/Utility/Fork Truck Operator at the time of the posting. The union complains that Mr. Darch’s duties and responsibilities were the same as the requirements for the Fork Truck Operator and that he was the incumbent to the position. As a result, the employer should not have posted the position of Fork Truck Operator but should have awarded it to Mr. Darch. 2. The employer denies the grievance and says that the position of Fork Truck Operator was a new position with different duties and a different wage rate than the Wiremill/Utility/Fork Truck Operator position occupied by Mr. Darch, and that it was required to post the position. 3. The issue to be decided is whether the Fork Truck Operator position is a new position that had to be posted or whether Mr. Darch is entitled to the position because he occupied a similar position. At the time of the hearing, Mr. Darch no longer worked for Northern Cables, having resigned from his employment there in mid- 2020. 4. Mr. Darch testified at the hearing on behalf of the union, and Mr. Stafford testified on behalf of the employer. Most of the relevant facts are not in dispute and can be summarized briefly. 5. Mr. Darch was hired in 2012 as a production worker and machine operator, working at the employer’s Prescott plant. There were three 8-hour shifts each weekday, and the plant was closed on weekends. 6. In 2014, the company posted the position of Wiremill/Utility/Fork Truck Operator. Mr. Darch applied and was successful. The fork truck work consisted mostly of loading and unloading transport. He was also asked to run the machines sometimes as needed. The schedule for this position was Monday to Friday, 7:00 am to 3:30 pm. 7. Sometime in 2017, the plant moved to a 7-day schedule with two 12-hour shifts each day. More of the same Wiremill/Utility/Fork Truck Operator positions were added. Mr. Darch would do shipping and receiving during the day, and when his supervisor left, which was usually around 3:00 pm, Mr. Darch would usually run machines in the plant, setting them up or helping others. By this time, he was a skilled machine operator who knew how to run every machine in the plant, and he was fast 3 and productive. Mr. Darch worked 7 days every two weeks, in pairs of days, including every other weekend. This schedule was ideal for him and his family. 8. In early 2000, the company posted the position of Fork Truck Operator. Mr. Darch was told it would be an 8-hour weekday position. He thought it was the same position that he had been in from 2014 – 2017, although the wage rate for the Fork Truck Operator position was less than his current rate. He expressed interest but was told that he would have to apply for it. He did so but was told that someone with more seniority was successful. 9. When the Fork Truck Operator position was filled, Mr. Darch was moved to a different schedule, which was a 12-hour rotation. He was not able to schedule daycare, and sleeping was very difficult. He went on leave during the pandemic and then found other work with straight days and reasonable wages, so he resigned from Northern Cables. 10. Mr. Stafford testified that as production has increased at the Prescott plant, the company’s needs have evolved. Mr. Darch started as a machine operator. Eventually, there was a partial demand for someone to operate a fork truck, and a new hybrid position was created: the Wiremill/Utility/Fork Truck Operator. The wage rate remained at the machine operator rate. This was the position that Mr. Darch occupied starting in 2014, and it was a hybrid position because the company did not need a full-time dedicated Fork Truck Operator. 11. Eventually, there were four employees in this hybrid position, one on each shift. In 2000, the amount of shipping and receiving at the Prescott plant had become so great that the company needed someone in a dedicated Fork Truck Operator role. The Fork Truck Operator position does not require the skills of a machine operator. There is a separate wage rate in the Collective Agreement for the Fork Truck Operator, and it is less than the rate for the hybrid position. The Fork Truck Operator position was posted, and all of the applicants, including Mr. Darch, had similar skills and abilities, so the position went to the most senior applicant (not Mr. Darch) as required by the Collective Agreement. 12. Mr. Stafford adds that none of the four hybrid positions were eliminated. When Mr. Darch resigned from Northern Cables, the hybrid position that he had occupied was filled. 13. The union argues that the Fork Truck Operator position was not new, and Mr. Darch was entitled to it because he was the incumbent. Since 2014, his duties have included operating the fork truck. His schedule changed in 2017, and more of the 4 same positions as his were added. The Fork Truck Operator position was simply a change in the job title, and more than just a rearrangement of existing duties is required before a position is considered new and the employer must post it. 14. The employer submits that Mr. Darch was hired as a machine operator and then took on a hybrid position which included some duties operating the fork truck. He continued to operate machines in the plant, setting them up and assisting other operators as required when he was not operating the fork truck. The new Fork Truck Operator position in the Prescott plant did not include the requirement to operate machines in the plant and had a lower rate of pay. After the new position was added, the hybrid positions remained. 15. It is generally accepted that a new position is created when the duties or tasks that make up the position have not been previously performed or when an existing bundle of duties is changed fundamentally so that the position becomes a qualitatively new and different job (Health Sciences North/horizon/Santé-Nord v. Ontario Nurses’ Association, 2019 CanLII 93501 (ON LA) (Steinberg) and the cases cited therein.). 16. Article 12 of the parties’ Collective Agreement regarding job vacancies is as follows: 12. 01 A Permanent vacancy as used in this Agreement shall be deemed to mean a full- time vacancy which the Employer desires to fill and which arises as a result of: i) the death, discharge, retirement or resignation of an employee; or ii) the creation of a new full-time bargaining unit job by the Employer. 12. 02 In filling permanent job vacancies, promotions, transfers, layoffs and recalls the following factors shall be considered: a) skills, productivity and qualifications; b) efficiency and reliability Seniority shall govern on the occasion of a transfer or promotion provided however that the senior employee has qualifications equal to or better than that of other employees. For the purposes of the Collective Agreement qualifications shall be defined as an employee’ s present ability, education, productivity, experience, potential and past performance. 5 17. The issue to be decided is whether the position of Fork Truck Operator for the Prescott plant that the employer desired to fill was a “new full-time bargaining unit job,” thus triggering the posting requirement in the parties’ Collective Agreement. Having carefully considered the evidence and the parties’ submissions, I find that the position was a qualitatively different position from the hybrid Wiremill/Utility/Fork Truck Operator position that the grievor occupied until he resigned. 18. There are two very significant differences in the positions. First, the Fork Truck Operator position did not include the machine operator duties. These duties were a material part of the hybrid position. They require specialized training and Mr. Darch highlighted his ability to operate nearly every machine in the plant and his productivity. Operating a fork truck requires different training. Second, and perhaps more importantly, the Fork Truck Operator position attracts a different, lower wage rate than the hybrid position. The wage rate for a position is an essential term and condition of employment, and the union has the exclusive right to bargain wage rates on behalf of bargaining unit members. 19. Finally, the difference in the two positions is highlighted by the fact that even after the new Fork Truck Operator was filled, the hybrid positions remained. Disposition 20. I have carefully reviewed the evidence and considered the parties’ submissions, and for all of the reasons set out above, I find that the employer’s decision to post the Fork Truck Operator (Prescott) position In January 2020 was not contrary to the parties’ Collective Agreement. As a result, the grievance is dismissed. Signed at Ottawa, Ontario on July 30, 2021 Andrew Tremayne