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HomeMy WebLinkAbout1987-2285.Brousseau.88-08-29.’ EMPLOY6SOELA CO”mNNE DE L’ONT.4RIO CPMMISSION DE REGLEMENT DES GRIEFS 2285187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Randall Brousseau) and The Crown in Right of Ontario (Ministry of Natural Resources) Before: J.H. Devlin ‘Vice Chairman T. Kearney Member D. Montrose Member Fdr the Grievor: A. Ryder COUllSel Gowling & Hendenon Barristers and Solicitors For the Employer: M. Furanna Coordinator Staff Relations Ministry of Natural Resourcei Hearing: May 6, 1988 The Grievor, Randall Brousseau, is one of 19 seasonal employees in the Forest Management Section of the Ministry's North Bay District. Mr. Brousseau is classified 'as a Resource Technician II ("R.T. 11") and there is no dispute that at the time of the grievance in October of 1987, he had completed his probationary period. The essence of the Grievor's complaint is that while other seasonal employees in the R.T. II classification were offered extensions of their contracts .in the i987/88 season, the Griev,or was offered a new'contract at a lower rate of pay. The material facts are not n dispute. Since the I spring of 1981, the Grievor has worked in the classification off R.T. II' and prior to the summer of 1982, his duties involved assisting in the implementation of forest management projects. In the summer of 1982,'the Grievor was approved by the Ministry to scale softwood timber and the following summer, he received similar approval for hardwood timber. Scaling is a process which involves'measuring &own timber and in order to perform this work, it is necessary to be licenced by the province and trained : and approved by the Ministry.. Since 1983, the Grievor has performed scaling and forest management duties, with scaling accounting for the majority of his work. ._ The Ministry's fiscal year is from April 1 to Mar& 31 and since being classified as an R.T. II, the Grievor has performed his work.under contract. The work is cyclical in 2 nature and the season begins with tree planting in the spring. The Grievor generally begins work in April ore May and in some years, his initial contract has expired in September or October but extensions have been granted which have varied in duration. One year, the Grievor's contract extended from May to December and there are also instances in which the Grievor has worked under contract for some pe.riod in January and February. In the summer of 1985, language was introduced in the collective agreement dealing with the rights of seasonal : ..- employees. As a result of the introduction of this language, Robert Brunette, a Forest Operations Manager in the North Bay District, and the Grievor's immediate Supervisor, was instructed to establish an organizational structure and positions for seasonal employees in the Forest Management Section. Prior to this time, Mr. Brunette'testified that no positions existed and that the Grievorand other employees in the Section simply worked in the classification of R.T. II. As a result of the directive received, Mr. Brunette testified that he and the 'previous'Forest Management Supervisor collaborated to develop an organizational.-chart. Position specifications were also prepared, taking into account the geographic needs of the Section and the skills required~. Of particular relevance to Mr. Brousseau's grievance are two 'ications in the R.T. II classification, both of which specif report to Mr. Brunette and both of.which are entitled Forest 3 Technician. One of the specifications is coded #4&l and the other, #47. The two specifications have a 'number of duties in common which involve assisting in the implementation of forest management projects. In both cases, the specifications indicate that these duties account for approximately 40% of~the incumbent's time. In position #47, 55% of the incumbent's.time involves ..i scaling Crown timber and Mr. Brunette testified that. this is the real focus of then job, There is no dispute that this work must be performed by a licenced Scaler approved by the Ministry and, for this reason, Mr. Brunette testified that the Grie.vor was ass is gned to the position in which he is a single incumbent. Apart from assisting in the implementation of forest --?..-_ management projects, the.incumbent of position it48 is invoived in implementing management plans and other duties as assigned. Although the job specification for this position also provides that scaling may be required, this refers to scaling by an employee who has not been approved by the Ministry.and must be performed under the supervision of<an approved Scaler. During the 1987/88 season, there were six employees assigned to position #48 and Mr. Brunette,testified that none of them had been approved by.the Ministry to scale Crown timber. 4 'In 1987, the Grievor's contract commenced on April 21st and expired on October 2nd. Thereafter, the Grievor was offered work in the position of Forest Ranger, which is in the R.T. I classification and pursuant to a new contract, he worked .~ from October 5 to October 27, 1987.~ Five employees assigned to position #48, on the other hand, were given exte~nsions of their original contracts and worked for a similar period. There is no dispute that the Grievor was qualif.ied to perform the duties which theses employees performed and that the Grievor had a greater number of hours to his credit than did those to whom extensions were granted. The Grievor outlined, in some detail, the nature of the work which he performed during October of 1987. He testified that, for the most part, the duties are contained on position specification #4a, although some also appear on position specification #47. In many cases, the Grievor testified that he performed duties similar to those performed by employees whose contracts were extended. Mr. Brunette, on the other hand, testified that the Grievor worked as a Forest Ranger in the classification of R.T. I and was a‘member of a crew which was supervised by employees assigned to position 848.. Subsequent to~october 2, 1987, Mr. Brunette ~testified that the Ministry had no further need for scaling duties (apart ~from work which could be performed by a member of the classified .service) but that there was a nee.d.fqr certain ~duties of position 5 #4S relating to forest management projects and for the sake of continuity, those who had been performing this work prior to : October 2nd, were permitted to continue. It would appear, however, that the Grievor had been involved in regeneration surveys prior to the expiry of his initial contract and that this type of work continued to be performed subsequent to October 2nd. In any event, Mr. Brunette testified that there waSno need for an additional employee.and that to allow the Grievor to. perform ~ the work would have involved him bumping into position #48. Mr. Brunette expressed the view that there are no bumping rights provided to seasonal employees in the collective agreement. The following provisions of the collective agreement and .the. Crown Employees Collective Bargaining Act are relevant to the determination of Mr. Brousseau's grievance. II . . . COLLECTIVE AGREEMENT-' SEASONAL EMPLOYEES PROBATIONARY PERIOD 3.18 The probationary $eriod for a seasonal employee shall be two (2) full periods of seasonal employment of at: least eight.(a) consecutive'~weeks each, worked in consecutive. years in the same position in .the same ministry. 3.19.2 A seasonal employee will lose his se~niority when: (d) he is unavailable for or declines an offer for re-employment as provided in Section 3.20 (Job Security)... 6 JOB SECURITY 3.20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. 3.20.2 Where -the Employer reduces the number of seasonal employees prior to the expiry date of employment specified in the contracts of~employment, seasonal employees in the same position shall be laid off in reverse order of seniority. CROWN EMPLOYEES COLLECTIVE: BARGAINING ACT 18.(l) Every collective agreement shall be deemed to provide that.it is the exclusive. function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b)~ merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining 'agent, and ‘such matters will not be the subject. of colJ.,e.Gtive bargaining nor come within the jurisdiction of a board. II . . . 7 The issue, then, is whether Mr. Brousseau was entitled to an extension of his contract beyond October 2, 1987. In addressing this issue, it is necessary to consider a number of preliminary objections advanced by the Employer upon which the Board. reserved its decision at the hearing. In this respect, it was the initial submission of Ms. Furanna that the Board is without jurisdiction to entertain Mr. Brousseau's grievance because the grievance relates to the assignment of work and the way ,in which the Employer organizes its work force which are exclusive functions of management within s. 1 8(l) of the Crown Employees Collective Barcaining Act. Secondly, Ms. Furanna contended that the issue raised in the grievance involves the non-renewal of a contract of employment which is not amenable to review by the Board: OPSEU (Maurice -;-& Cascagnette) and The Crown in Right of Ontario (Ministry of Health) G.S.B. File_No. 1246/85. Thirdly, Ms. Furanna submitted that the provisions of the collective agreement do not provide seasonal employees with any right to extensions to their individual contracts of employment and .e by the for this reason, the matter is also 'not reviewab Board. ~,, In our view, the objections advanced by~Ms. Furanna'do not provide an appropriate bas~is upon which to determine the grievance as a preliminary matter. The subsections of Article 3 of the collective agreements, which a are set out above, afford certain rights to se~asonal I I employees and the nature of these rights must be assessed in determining whether Mr. Brouss~eau. is entitled to the relief which he claims. Whether or not the grievance involves the application of Article 3 or involves the exercise of management rights, is, therefore, a matter for the merits.. The final preliminary issue raised by Ms. Furanna involved an objection to the arbitrability of Mr. Brousseau's grievance on the grounds of timeliness. Ms. Furanna conceded, however, that this objection was not'raised until the hearing and in these circumstances, it must be deemed to have been waived by the Employer. As indicated at the outset, there is no dispute that the Grievor had completed his probationary period prior to the filing of his grievance and, in accordance with Article 3.20.1 of-the collective agreement, he.was entitled to be offered employment in his former position in the following season on the basis of seniority. The Grievor was, of course, offered employment in the X987/88 season and worked pursuant tp a con.tract from April 21 to October 2, 1987. The issue, however, is whether Article 3.20.1 entitled the Grievor to work in the position of Forest Technician . as submitted by the Union, or whether the position to which the Grievor'srights attached was that of Forest Technician,~.Code-t47 as contended by the Employer., 9 In our view, the position advanced by the Employer on..this issue is the correct one. Although positions #47 and 848 have a number of common duties relating to the ~implementation of forest management projects, 55% of an employee's time in position #47 is devoted to scaling for which a licence and approval by the Ministry is required.' While the Grievor has obtained such approval, the incumbents of position #48 have not, and thus, we find that there is a valid and legitimate'basis for distinguishing between the two positions. Were the submission of the Union to prevail and the former position refer simply to Forest Technician, the Employer might well find itself compelled to offer scaling work to an employee who was not qualified to perform the work but who was entitled to.it by virtue of his seniority.. Being unqualified for the work, the.seasonal e,mployee might then be forced to decline the offer of 'employment as a consequence of which he would lose his seniority in accordance with Article 3.19.:2(d) of the collective agreement. In all the circumstances, therefore, we find that the former position in which Mr. Brousseau was entitled to be offered employment, was position 847. It was the submission of Mr. Ryder, pn behalf of the Union, that "season" in Article 3.20.1 must be interpreted to refer to the entire period during the'.year when work is performed and,-for this reason, Mr. j :~ Brpusseau was entitled to.,the,work in question. Were this not the case, Mr. Ryder contended that the Employer could simply manipulate the length of the season by c 10 varying the term of the employee's contract of employment. In this case, however, there is no basis for concluding that the Employer acted improperly or set the term of Mr. Brousseau's contract with a view to depriving him of his rights in accordance with the provisions of the collective agreement. Moreover, Article 3.20.1 does not simply provide that seasonal employees are entitled to be offered employment on the basis of seniority but instead their rights are tied to employment in "their former positions". In this case, we have found that the Grievor was entitled to be offered work in position #47 and that, in fact, he worked pursuant to that job specification until October 2, l987. After this date, the Employer had no further requirement for scaling duties to be performed by a seasonal employee. Although there is no dispute that the Grievor was qualified to perform the work which was performed by employees .i..‘ assigned to position #48 subsequent to October 2, 1987, once again, this' is not the basis upon which seasonal employees are entitled to be offered employment. -In addition, even if the Employer could be required to reassign employees during this season 'in the manner suggested by the .Union , the Grievor has 'never formally occupied position 848 and, i-n our view, hue cannot rely on work performed prior to the establishment of.the positions in issue. Once again, therefore, it is position $47 rather than, position f48 which is the former position in which the Grievor was entitled to be offered employment within the meaning of Article 3.20.1 of the collective agreement. 11 Although. Article 3.20.2 addresses a situation in which the Employer reduces the number of seasonal employees, this applies only to reductions which occur prior to the expiry date specified in the cqntracts of employment and reiates only to the manner in which seasonal employees in the same position are to be laid off. This Article, therefore, has. no application to the circumstances of this case, nor is there any other provision of the collective agreement which would heave entitled Mr. Brousseau to displace emp loyees .in pos i tion #48 during October of 1987. The final issue to be addreksed relates to the work actually performed by’the Grievor between October 2nd and October 27th. In our view, the evidence is not. sufficient. to conclude .that Mr. Brousseau worked beyond the scope of-the position of Forest Ranger so as to be entitled to the rate of pay of the R.T. II classification. In the result, and for the reasons set out, the grievance of ~Mr. Brousseau is hereby dismissed. : cy.- DATED AT TORONTO this 29th day of August , 1988. Jane ii..Devlin, Chairman T. Kearney, Member D. Montrose, Member