HomeMy WebLinkAbout1989-0613.Union.90-08-13 CROWN EMPLOYEES DE L 'ONTARtO
GRIEVANCE COMMISSION DE
SETTLEMENT R~GLEMENT
BOARD DES GRIEFS
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613/89
IN THE MATTER OF A/I ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Uni6n Grievance)
Grievor
- and -.
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
- and -
BEFORE: M.R. Gorsky Vice-Chairperson I. Thomson Member
D. Walkinshaw Member
FOR THE D. Wright
GRIEVOR: Counsel
Ryder, Whitaker, Wright &
Chapman
Barristers & Solicitors
FOR THE I. Werker
EMPLOYER: Counsel
Fraser & Beatty
Barristers & Solicitors
HEARING: November 17, 1989
February 15, 16, 1990
DECISION
The employees affected by this policy grievance were
seasonal, unclassified staff, employed by the Ministry of Natural
Resources at the Thunder Bay Forest Nursery. They held the
position of Nursery Worker and were engaged in performing a variety
of tasks associated with the employer's Thunder Bay seedling
transplant operation, which was carried on at the Nursery. It was
the position taken on behalf of the employer that as a result of
a number of changes in the operation ' brought about by
mechanization, along with a marked reduction in the number of trees
planted, and because of certain budget cons iderations, the
employees were notified that their positions .would no longer be
filled and were being abol£shed as at April 13, 1989. That is,
their positions as seasonal, unclassified e~ployees would not be
filled in carrying out the 1989 Work Program.
Although a great deal of evidence was adduced .... to
establish these facts, counsel for the employer did not attempt to
refute the evidence by the union which demonstrated that even after
the reduction in the operation, there was still sufficient work
available to furnish the employees, in question with enough seedling
work to bring them within the designation of seasonal,
unclassified, Crown empioyees.
The fundamental difference between the parties relates
to the interpretation of .Article 3.20.1 of the Collective
Agreement, which is as follows:
"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."
Counsel for the union viewed that Article as vesting in
persons who had attained the status of seasonat~ unclassified
staff, the right to be recalle~, in subsequent years, in accordance
with their seniority to' similar seasonal work to that which they
had performed and with prio'rity over persons who were only
unclassified staff. What was said to trigger ,the right of recall
was the mere existence of sufficient work to furnish the threshold
amount of work (eight consecutive, weeks). On this basis, it.was
submitted that the employer had violated the provisions of Article
3.20.1, in failing to recall the affected employees for the 1989
Work Program.
Although in the grievance for~ the allegation is that
there has been a violation of Article 3.17 of the Collective
Agreement,_there was no dispute that the violation alleged and
dealt with by the parties was of Article 3.20.1.
Counsel for the union argued that the employer.could not
defeat these employees' vested right of recall by artificially
·
depleting the available work by entering into a number of contracts
for a part of the work in question with outside contractors.
Counsel for the union submitted that while the work retained by the
employer was insufficient to furnish the employees with eight
consecutive weeks of work, the work was there, and should not have
been contracted out in derogation of the employees' rights under
article 3~20.1.
Counsel for the union submitted that if the employer
could, with impunity, contract out much of the disputed work, the
rights acquired by the seasonal, unc-lassified staff affected by
this grievance were so fragile-as to be dependent on the whim of
the employer. That is: any time the employer chose to, it could
make the provisions of Article-3.20.1 effectively meaningless by
electing to contract out work so that the persons who had performed
it as seasonal,~unclassified staff would now lose that status even
though they would, as-was the case here, continue to perform the
work, but now with a different status: as employees of a
contractor. Those who continued-to do some of the work for the
employer for less than eight weeks, would be employed as
unclassified staff For the balance of the period they would be
employees of'the contractors.
In addition to Article 3.20.1, the following articles
relating to seasonal employees were referred to:.
3.17 A seasonal employee is an employee
appointed for a period of at least eight (8)
consecutive weeks ~o an annually recurring
full-time position in the unclassified
service in a ministry. For the purpose of
this definition full-time means a minimum of
thirty-six and one-quarter (36 1/4) or £orty
(40) hours per week, as applicable.
3.18 The probationary period for a seasonal
employee shall be two (2) full periods of
seasonal employment of at least eight (8)
consecutive weeks each, worked in consecutive
years in the same position in the same
ministry. .~
3.19.1 A seasonal employee's seniority within the
-ministry will accumulate upon completion of
his probationary period and shall include:
(a) all hours worked as a seasonal employee
atthe straight-time rate;
(b) 'periods of authorized paid leave in
accordance with Section 3.31, Attendance
Credits and Sick Leave.
3.19.2 A seasonal employee will lose his seniority
when: ...
(d) he is unavailable for or declines an
offer for re-employment as provided in
Section 3.20 (Job Security) .
It was acknowledged that the articles in question came
into effect on January 1, 1986 and by the date of the grievance
each of the employees affected had accumulated seniority rights
under Article 3.19.1 and recall rights under Article 3.20.1.
- 4 -
It was agreed that during the 1988 Work Program, the
employees worked as seasonal employees for the employer from April-
7 to June 17, 1988, being for a period of eleven weeks and that
they also worked for the Ministry for some period during
September, 1988. In addition, the employees worked ~or a private
contractor of the employer (KBM Forestry Consultants Inc.) on. two
projects, from June 20 to July 7, 1988, for a period of three
weeks and from October 11 to November 4, 1988, for a period of
four weeks. As a result of the abolition of the employees'
positions~ they would, if they performed work for the employer,
have no seniority and no recall rights as they would when they
were seasonal employees.
For the majority of the employees, none of whom-worked
for eight consecutive weeks for the employer during the 1989 Work
Program, their work for the Min%stry totalled six weeks. For the
balance of the 1989 Work Program, the employees worked for private
contractors at'the nursery and the total number of weeks that they
worked was about the same as it was in 1988. The work performed
by them in 1989" remained essentially the same as it was in
previous years.
The private contractors had entered into._.collective.
agreements with the union under the terms of which the employees
were paid the Same wage rates with only minor differences in
benefits. The essential difference for the employees was that
they had lost their seniority .rights and their'rights under the
job security provisions pertaining to seasonal employees.
The union did not dispute the right of the employer to
contract oUt work but it did dispute the scope of that right. It
was the position of the union that contracting out was not an
Unfettered right but was limited by the terms of Article 3.20.1~
It was the position of the union that the right to contract out
was subject to the employer demonstrating that there was a
legitimate government/business objective or purpose to be
fulfilled by the contracting out and that the right could not be
exercised arbitrarily or capriciously. Counsel for the union
claimed that there was no legitimate government/business
objective, that there was no cost saving to the employer and that
the only change was the distribution of the work between the
contractor and the employer.
Counsel for the union argued that .the rights of the
employees, as seasonal employees under Article 3.20.1, were
similar to the job security rights of classified employees under
Article 24 of the Collective Agreement.
Counsel for the 'employer indicated that he Was in substantial
agreement with the recitation of the facts given by union counsel.
.It was the position of the employer that it h~d an
unfettered statutory right to do what it did by virtue of the
provisions of section 18(1) (a) of the Crown Employees' Collective
Bar~ainin~ Act, R.S.O., 1980, c. 108:
18(1) (a) 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; . .
CounSel. for the employer raised further objections to
arbitrability, claiming that the grievance was more properly an
individual grievance which the Board had no jurisdiction to
entertain, there being no provision with respect to group
grievances found in the Collective Agreement, there being only
reference to individual grievances (Article 27.2.1)~. Counsel for
the employer submitted that the union does not possess the same
flexibility as individual employees in bringing grievances and he
referred to section 18 (2) of the Crown Employees Collective
Bargaining Act, which furnishes employees with additional rights
-- 7
to grieve beyond the rights granted under the Collective
Agreement.
Nevertheless, counsel for the employer indicated that he
was prepared to meet the union case on its. merits but that a prima
faci~ case must first be established. That is, the union must
first establish that the employer acted in bad faith in purposely
structuring its 1989 Work Program so as to avoid the provisions of
the'Collective Agreement and that the evidentiary burden on-the
employer did not arise until a prima facie case had been made.
did no~ understand the union's case on the merits to be as
characterized by counsel for the employer. The union's case would
place a burden on the employer beyond that of merely demonstrating
good faith.
The Thunder Bay Nursery is part of the Thunder Bay
District which is a Branch of the Division known as the North
Central Region of the Department of Natural Resources. Of the
several Branches of the employer, there are units carrying out
specialized funCtions. The Thunder Bay District is concerned with
production of a certain number of trees and the nursery is a part
of the Thunder Bay District with its own specialized function.
There are five Districts within the North Central Region, and
Thunder Bay is the only District with a nursery. The Branches.
furnish guidance, direction and funding to the five Districts in
the North Central Region.
The Regional Forester establishes the forest management
program (objectives and tarqets) which includes that for the.
Nursery. The targets established are passed down through the
District· Manager of the Thunder Bay District to the Nursery
Superintendent. The Regional Forester determines the number of
trees that are to be produced with the money that is made
available. In the Thunder Bay District the chain of command
within the Nursery commences with the Nursery Superintendent~
through to the Operations Manager, then to the Production
Coordinator, and then through to Nursery Operations Technicians
and Nursery Technicians. Although the Regional Forester
determines the number of tree~ to be planted and grown and where
money is to be spent within his jurisdiction, he has no contro~
over the amount of money whicb is made available for these
purposes.
Within the actual physical layout Tof the Thunder Bay
Nursery, there are a number of divisions referred to as
compartments and the compartments are divided into nursery beds
and the nursery beds are divided into groves. A number of
discrete functions are carried out at the Nursery. These are:
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1.~ The spring harvest, which is the first operation of
the season, which starts around the third week of
April, depending on when the frost is out of the
ground. The trees are then shipped to the
districts for planting.
2. The spring transplant involves the transplanting of
overwintered stock. This stock has been lifted and
harvested during the~previous October and is stored
.~'" in'a frozen state over the winter. The process is
-- carried out through the use of a Holland
· transplanter.~ T'~e stock is taken out of cold
storage,, thawed, delivered to contractors at the
freezer, j as well as there being deliveries to the
field. The stock is then transplanted into the
ground and allowed to grow to meet client
standards.
3. The Castle and Cools transplant (known as "C and
C") is a greenhouse transplant.~ Under the original
system of propagation, seeds were planted in the
ground in one of the compartments outside and
shaded through the~ use of a ten-foot Section of
snow fence which is placed on top. The resulting
growth is permitted to grow for from one and one
half to two years. This system was regarded as
'unreliable, as seedlings were exposed to the
- 10 -
weather, insects and pathogens. The alternative C
and C transplant was developed and a greenhoUSe ·
transplant was employed using the C and C method to
improve reliability and achieve cost efficiencies.
The goal is also to produce better trees for
clients with greater flexibility. The C and C
transplant has three crops. The first is in March
and is finished by the first part of June. The
crops are-then placed in the field after two years.
The June to August crop is placed in cold frames
and tended to the middle of November. The'August
crop is placed in the greenhouse until the middle
of December.' The June and August crops are placed
in boxes, frozen and stored over the winter.
4. The summer lift transplant takes place in the third
week of June and is a contracted function. The two
~elements of the function are the lifting and
transplanting using the Holland transplanter and is
limited to black spruce.
5. Weeding and shading.
6. Shipping loaded trees.
7. Tending of the crop: fertilizing, irrigation and.
pest control.
- 11 -
'i
8. Growing of the C and C crop in the greenhouse.
Ron Sherwin, the Operations Manager under the Nursery
Superintendent, R. Klapprat of the' Thunder Bay Forest Nursery
Section, testified that as a result of the C and C program, .there
has been a substantial improvement in the time it-takes to produce
trees. He stated that through the use of the greenhouse
production method a tree ready for harvesting is produced in two
rather than three years with the tree being .of the same quality
and.with the greater assurance of meeting production targets.
Mr. Sherwin also testified that another aspect of the C
and C program involves the use of a mechanical transplanter which
transplants the C and C grown Seedlings. ordinarily,
traDs~lanting would requir~ ten people on one shift. With the
mechanical transplanter only two manual workers are required along
with an operator ~or the machine. At the greenhouse, three or
four manual workers load trays into cartridges and these are
delivered from the greenhouse to the field where the transplanting
takes place. According to Mr. Sherwin, the C and C transplanter
will transplant approximately five times as many trees in an eight
hour shift as the Holland transplanter, employing approximately
the same number of people. According to Mr. Sherwin, it was for
this reason that the employer no longer.required the same number
of people to carry out the transplanting operation. In addition,
- 12 -
only one C and C transplanter is required as part of the C and C
program. Under the former transplanting Program, five Holland.
transplanters were required to plant the same number of trees.
Mr. Sherwin described the C and C program as a concept
which is slowly evolving. He anticipated that as part of the 1990
Work .Program there wo~ld be no summer lift transplant program,
tlhat program to be replaced with the C and C transPlant program. ,
Exhibit ~umber 7 is a document showing' nursery
activities for the 1988/1989/1990 fiscal years. In 1988 the
employer carried out the C and C transplant and spring transplant
work, with contractors performing the spring harvest and summer
lift/transplant. In. 1989, th~ only work carried out by the
employer was the C and C transplant, with contractors carrying out
~he spring harvest, spring transplant and summer lift/transplant
Exhibit Number 8 is a graph showing the total production
of trees at the Thunder Bay Forest Nursery for the years 1986 to
1992, with the figures for 1990-91 and 1991-92 being projections.
The figures for 1985-86 are 11 million trees; 1986/87, 21 million
trees; 1987/88, 17 million trees; 1988-89, 21 million trees; 1989-
90, 14~'million trees~ 1990-91, 12.6 million trees; and' 1991~92,
12.6 million trees.
Exhibit Number 9 is a graph showing the total of all
transplanted seedlings at the Thunder Bay Forest Nursery. The
total represents all transplanted seedlings utilizing all methods
and operations: barefoot and C and C. In 1987, the total was 24
million; in 1988, 16.5 million; 1989, 17 million, with the.
projection for 1990 and 1991.being for a slight increase. Exhibit
Number 9 shows that the bareroot transplantation has dropped
dramatically while the C and C transplantation has risen equally
dramatically.
With the reduction in loses through the use of the C and
C system, fewer trees have to be planted tQ achieve the same
results.
Exhibit Number 10 is a graph showing the compartments
and production of the Thunder Bay Forest Nursery. .One hundred
compartments were 'in production in 1987 and the projection for
1990 was 72.
Exhibit Number 11 is a memorandum,~ dated March 31, 1989,
to W.H. Therriault, District Manager of the Thunder Bay District
from G.P. Elliott, Regional Director of the North Central Region.
The~memorandum indicates that the target levels for the Thunder
Bay Nursery were being reduced because of shortfalls in funding
during the 1988-89 operating season; the transfer of some 3.6
million planting stock from the Crown to the F.M.A. Program which
now makes the F.M.A. holders responsible for requesting ~this
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stock; and the reduction in nursery stock production on a' ~.·,J
province-wide bas~s as outlined in the A.B.M. guidelines for
northern Ontario.
Exhibit Number 12 is a five year forecast for bareroot
stock production targets which discloses the reduced amount of
work to be performed at the Nursery..
After Mr. Sherwin receive~ Exhibit Number 11, steps were
taken to reduce 'the Nursery operation through a Work plan. The
work plan showed estimated cost of carrying out the operations at
the Nursery to achieve production goals. Planning is completed in
the year preceeding the .anticipated work plan. For example, the
plan for the 1990-91 program wo~ld be initiated around the end of
July of the previous year.
Exhibit Number 13 is the work plan for the Thunder Bay
Forest Nursery for 1989-90, which is dated 88/11/10. The w6r~
plan divides the work into projects such as administration,
·
barefoot ship, C and C March,· and crop tending 'In d~veloping the
work plan, the projects are listed and the amounts allocated are
subtracted unt~!..there is no further funding available. When this
happens, a particular project will not be proceeded with unless it
is possible to obtain additional funding.
The planning process starts at the end of July of the
preceeding year, and the approval process starts with the
District, then is sent to the Region and, finally, to-Management
Board of Cabinet. The amount of money obtained for the carrying
out of the Work Plan limits 'the commitments that can be made to
individual projects.
As a result of the decisions made in the Job Plan, the
positions of the fourteen nursery workers were abolished. This
was said to be as a result of the combination of limited funding
which lead to the reduction in production and because of the
change in production methods brought about by the further
development of the C and C program. Of the fourteen employees
affected by the decision, some were offered Group 2 employment,
being for a period less than eight consecutive weeks. The
decision was made by Mr. Sherwin along with the. Project
Coordinator and the Propagation Coordinator. He discussed with
them how many people would be needed and the length of time they
would be needed. At that meeting, Mr. Sherwin considered a
memorandum (Exhibit No. 3) concerning unclassified staff, issued
by R.M. Monzon, Assistant Deputy Minister, Administration for the
employer, which is as follows:
I would like to ensure that a Ministry-wide
approach, which is fair and equitable, is applied
in the identification or creation of. seasonal
positions. By means of this memorandum, I would
like to clarify this approach, ensuring the
treatment accorded seasonal employees is consistent
and reasonable.
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Seasonal positions should be identified in such a
way to provide the individual with the optimum
benefits and Working conditions possible. For·
example, if several short term seasonal positions
(e.g. u~der 8 wks - 4 mths.) could be combined to
create a longer seasonal job (i.e., 4 - 11 mths.)
every reasonable effort should be taken to do so.
This would enable the seasonal employee to
participate in the public service pension plan and
enjoy additional insurance coverage and benefits,
not otherwise applicable to unclassified staff or
short-term seasons.
Services which are similar and 'seasonally
concurrent would be adaptable to this policy and
combinations of jobs (e.g., Fire Crew Leader/Timber
Technician/Forest Technician) is encouraged in such
cases. Naturally there will be situations where
job combinations are impossible or impractical.
For example, situations involving different
geographic locations or wide disparity in
classifications would not lend themselves to this
practice.
I would also urge you to take a careful look at
· past recruitment practices with a view to
identifying jobs in such a way as t~ not
significantly alter these practices; as a large
number of seasonal employees have come to rely on
employment with this Ministry for their livelihood.
The major thrust of these changes to the Collective
o
Agreement is to secure for these employees, rights
to on-going employment and enhanced benefits. In
the establishment of seasonal positions we clearly
~need to protect the Ministry's right to recruit
employees and assign work but we should also be
trying to live up to both the letter and the intent
of the Collective Agreement.
I urge you to discuss circumstances particular to
your situation with your Regional/Main office
Personnel Officer or with staff of the Personnel
Policy & Staff Relations Section. We will assist
you in ·any way we can to ensure that both the
ministry and ministry's employees receive· the
fairest treatment possible.".
His·aim was to keep persons, such as the employees affected by the
grievance, at work as long as possible.
- 17 -
The essential position of the union was that there was
little change in the number of 'weeks worked in 1989 by the
fourteen employees affected by ·this grievance. The change was
said to be in who the .employees worked for: more weeks for
contractors, fewer weeks for the employer. The result was that
the employees were no longer seasonal, unclassified employees.
The union argued that the provisions of Article 3 of the
Collective Agreement, especially Article 3.20.1, impliedly placed
a limitation on the power of the employer to contract out work at
the nursery. Counsel fo~ ~he union stated .that the employer must
show some legitimat~ business/government purpose, has been
accomplished by the contracting out and that failure ·tv interpret
the Collective Agreement as having such a limitation makes the
employees' rights under Article 3 empty ones. The guarantee would
only exist 'if the employer chose to honour it.
As has already been indicated, counsel for the employer
raised a number of objections as to arbitrability. Additional
grounds raised, in favour of the employer's position that the
grievance was not arbitrable were based on the provisions of
section 22(4) of the Public Service Act R.S.O., 1980, c.418, as
amended. That article states:
A Deputy Minister may release from employment in
accordance with the regulations any public servant
where he considers it necessary by reason of
shortage of work or funds or the abolition of a
position or other material change in organization.
Counsel for the employer also argued that the .employees in
question had no rights under the Collective Agreement because of
the provisions of section 9 of the Public Service Act :
A person who is appointed to position in the public
service for .a specified period ceases to be a
public servant at the expiration of that period.
It was submitted that the affected employees were no longer public
servants after the end of the specified period of their employment
in 1988, and were, therefore, no longer Crown employees and had no
further, rights under the Collective Agreement~
Relying on the right to contract out under section
18(1) (a) of the Crown Employees Collective Bargaininq Act, counsel
for the employer stated that such a right, having been granted by
statute, was not subject to any test of fairness, however that
term is defined, and that the employer had an untrammelled right
to contract out which could not be reviewed by this Board.
Counsel for the employer further argued that even if the
grievance is arbitrable and if the employer's decision to contract
out was subject to a business/government purposes test, as argued
by counsel for the union, none of which was acknowledged, then
such a test had been met as the decision to contract out was based
- 19 -
on a change in the way in which the work at the nursery was to be
perforra~d and because the budget for the "nursery necessitated
contracting out in order to be able to fulfil the mandate of the
nurseryl This, it was suggested, represented a legitimate
business/government purpose. If such a duty of fairness was
imposed on the employer, counsel for the employer stated that it
had been met.
Without deciding if the grievance is arbitrable or
whether, if it is arbitrable, there is any duty of fairness
imposed on the employer 'in deciding whether to contract out, I
will address, on the merits, the arguments raised by counsel for
the. union about whether the employer had satisfied the business/
government purposes test.
The application of the "leg%timate business purposes"
test {which I take to be the 'same as the test referred to by
counsel for the union as the business/government test) enunciated
by this Board in Buick, 64/79 at p. 8, was elaborated upon in
DaCosta, 570/84 (Samuels), at pp. 11-12:
This is not to say that an arbitrator can
substitute his or her decision for that of
management. It is management's right to make the
decision. But in making the decision, management
must engage in a real exercise of managing the
undertaking. The decision must be made in the
interest of the undertaking, rather than to further
some other ends, such as discrimination against
people of a particular, color or race. One way of
expressing this is to say that the decision must
- 20 -
not be arbitrary, but must be made in good faith
and without discrimination'. Management must take
into account relevant factors in coming to its
decision, and must not base its decision on factors
unconnected with legitimate business purposes. If
this is done, then the decision cannot be
questioned .... HOwever it is put, the essential
idea is that an arbitrator is not to ask whether or
not management was correct in its decision.
Management has the right to make the wrong decision
but management's decision-making must be an honest
exercise in managing the undertaking, and no more.
As I understand Mr. Samuels, he does not state that the
employer's decision will be incapable of review by an arbitrator
just because it is made in good faith. Reading his statement in
its entirety, it is clear ~hat the emPloyer must take intc
consideration all relevant factors pertaining to the government/
business aspects which touch on the decision. When thi's has been
done, and where it has been shown that the decision was made in
good faith and was not affected by irrelevant factors, the test
will have been satisfied.
On the facts of the case before us, the employer had to
act within budget constraints which limited the amount of salary
available for employees. .The employer had no~,~control over the
budget allocation, nor does this Board. The process of developing
the. Nursery program for 1989 took into consideration such relevant
factors as the technical changes in the Qay in which~ trees were
grown, especially those .brought about by the ongoing C and C
program, as well as the budgetary reduction, the change in the mix
of trees that were to be grown and the need to meet as much of the
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nursery ' s production plan as possible, given the budget
constraints.
Cathy Patreau, one of~the fourteen affected employees,
acknowledged that there was no personal animus directed against
the employees. I would find that the employer in its decision
making made "an honest exercise in managing the undertaking
..... "as defined by Mr. Samuels in the'DaCosta case. I could
not find that the employer took into consideration "factors
unconnected with legitimate business purposes". That is, it was
not apparent that its Work Program for the 1989 season at the
Nursery was aimed only at redUcing the number of seasonal,
6nclassified employees such as the fourteen employees affected by
~its .decision. AS ~Mr. Samuels stated in the DaCosta case, the'
employer is not required to arrive at the correct decision.. Other
possibilities might have saved at least some of the positions.
There may have been other relevant factors which were not
considered which, if considered, might have saved some positions.
It was not shown that there were such relevant factors· which the
employer ought to have been aware of.
I would only add'to Mr.. Samuels' statement that if all
'of the relevant factors are considered and the irrelevant factors
are not considered, or, if considered, were not part of the
effective decision, and if the employer behaved in good faith, 'its
decision will stand provided that it is one that could be
- 22 -
reasonably arrived at on the facts. Where a reasonable management
.could not have arrived at such a conclusion on the relevant facts .
before it, a question of whether the decision was made in good
faith arises. We are not faced with such a situation here.
Therefore, dealing with the union's submissions on their
merits, we find that the employer has satisfied the business/
government purposes test that was raised by counsel for'the union
and the grievance would fail on its merits.
In so deciding, it is unnecessary to deal with the
preliminary objections.referred to.
Dated at Toronto, Ontario, this 13th day of August 1990.
~" M.R. Gorsky, Vice-Chairperson
" I DISSENT" (D~s~nt attached
I. Thomson Member
D. WalKinghaw ~ . Member
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---! ECE]VED
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CR OWN EMPL O Y£ES.
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D'issent by Union Nominee T, Thomson GRiEVANCE SETTLE,~EN
BOARD
RE: 613/89 OPSEU (Union Grievance) and The Crown in Right of
Ontario (Ministry of Natural ReSources)
I do not agree with the majority that the employer has satisfied
the business/government.purposes,test.
At page 21, the majority states that "the employer had to act
within budget constraints which limited the amount of ·salary
available for employees. The employer had no control o~er the
~budget allocation'...." I disagree with this conclusion.
I agree that the Nursery has no control over its budget. The
budget is developed at a higher level within, the Ministry.
However, the Nursery is a section of the Ministry of Natural
Resources. Since the Ministry allocates the amount of money
available to the Nursery and they are the employer, the employer
controls the budget. The Nursery is only' a small part of the
whole.
Money allocated to the Nursery wasdesignated as either "salary"
dollar~ or "other" dollar~. The evidence showed that while there
was insufficient amounts in the "salary" budget·to pay for the work
to. be done, there'was sufficent funds in the "other" budget to
allow contractors to be hired to do the work.
What the employer failed to show is any legitimate business or
governmental purpose for the allocating of the funds to the "other"
budget as opposed to the "salary" budget. There was no evidence
that there was any advantage to the employer in using contractors
instead of employees. In fact the evidence showed that if anything
this route was more expensive. On the evidence we heard, it
certainly did not save the Nursery any money.
I would find that the employer failed to meet the required test and
would haYe allowed the grievance.
Respectfully Submitted