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HomeMy WebLinkAbout1992-0685.Beattie et al.95-05-02 ~~ (") ,- ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~, , 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLElVIENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 685/92 OPSEU # ,92 C65 3 -9 2 C6 5 6 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Be~ore THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Beattie et al) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: W Kaplan Vice-Chairperson M Lyons Member D Halpert Member ,FOR THE J Monger GRIEVOR Counsel Gowling, Strathy & ijenderson Barristers & Solicitors FOR THE M Failes EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors FOR THE D Howard THIRD PARTIES G Doucette HEARING June 17, 1993 August 30 1994 March 2, 1995 \ I -" -" -.- ---. ._.- -- .....-...-., -- Jf; \ 2 ., ! Introduction ! This case concerns four grievances filed by Anthony Beattie, Marc Lachance, Michael Flanagan and Brent Rosenblath, all of whom are seasonal employees of the Ministry of Transport, and all of whom grieve that the employer failed to recall them to employment as line painters in the summer of 1992 \ A t issue in this case is the proper interpretation of ArtiCle 3 21 1 which I provides Seasonal employee~ who have completed their probationary period shall be offered employment in their former positions in the fpllowing season on the basis of seniority For reasons which will become obvious, these grievances raised the possibility of third party rights. The two potentially affected third parties were notified of these proceedings - and of their right to participate - and attended the proceedings While there was some suggestion that the grievors and third parties had somewhat different responsibilities, we are satisfied that the grievors and the third parties were all seasonal ! employees engaged in highway painting The basic issue raised in this ca'se is not in dispute. The grievors all .~ worked in the Kingston District The two third parties were assigned to the Port Hope District. During the summer of 1 992, the work that was normally assigned to the grievors in the Kingston District was, for reasons that are not at all relevant to these proceedings, performed by classified \ employees. I The grievors, and their union, take the position that the grievorS should, in these circumstances" have been recalled to any available positions in any of the adjacent districts. The only positions in adjacent districts occupied by persons with less seniority than any of the grievors ~~Ii. -- I 3 " - ~ were the two positions- which were held by the third parties in the Port Hope District. Port Hope, it should be noted~ is in the Ministry's Central ; Region, while Kingston is in the Ministry's Eastern Region, Port Hope and 1 Kingston are approximately 1 50 kilometres apart, When the Ministry determined that the grievor's services were not required in the summer of 1992, it did not consider recalling them to positions in adjacent districts held by seasonal employees with less seniority Both of the third parties have significantly less seniority than any of the grievors By and large, these employees perform the same job, and are paid centrally from headquarters in Toronto from information supplied by the particular districts. Seniority, however, is calculated and maintained in the individual districts, and seasonal employees are hired based on particul9r district budgets A procedure exists for the transferring of budgets so that the crew from one district can do highway painting in another While paint I crews must obviously travel throughout a district, they begin and end each week by reporting to district headquarters, and are supervised by management in their district, Moreover, the amount of work, if any, that they receive is dependent on district budgets Kingston is the headquarters 9f the Kingston District, while Port Hope is the headquarters of the Port Hope District, The Union's Case While the grievors all worked out of the Kingston District, it was the ~ union's position that they were called upon, from time to time, to work in certain adjacent districts including those of Port Hope, Huntsville, Bancroft and' Ottawa There was no dispute between the parties that the grievors did periodically work in the Bancroft District. Bancroft did not, unlike 0 . ----; '< 4 ( ~ ., either the Kingston or Port. Hope districts, haVe any permanent employees f assigned to zone paint crews, As a result, the highways in that district were painted by crews from several adjacent districts including crews from Kingston Given the size of the different districts, it is not uncommon for paint crews to be on the road for several days at a time, According to Mr Beattie, he had, along with the other grievors, been , assigned to crews given the responsibility to paint highways in both the Port Hope and Huntsville districts. A map was introduced into evidence, and Mr Beattie pointed to short sections of highway that he had previously painted in these two districts, He told the Board that the crew on which he worked annually painted a short stretch of highway running northeast and northwest out of Fenelon Falls into the Bancroft District. Along with the other grievors, Mr Beattie would, he testified, be called upon to paint an even snorter stretch of highway in the southeastern part of the Huntsville District. In both cases, the work was generally incidental to work being performed in the Bancroft District. Mr Beattie testified that this work would be assigned by 'his supervisor and would be recorded in various Ministry documents, In cross-examination, Mr Beattie agreed that no matter where he worked, , he always reported for work at Kingston headquarters, except when working in the Bancroft District when he would sometimes go to the Bancroft office The work crew to which Mr Beattie was assigned was directed by Mr Donnie Mack. Mr Mack was responsible for all of the paperwork, and Mr Beattie agreed that Mr Mack would be fully familiar with out-of-district painting activities. Mr Beattie agreed that it was \ possible, although he could not recall, that once, in the 1980s,r the Kingston crew was assigned ( -- 5 ~ - some. work in the Port Hope District because of an equipment breakdown in that district. He insist~d, however, that whatever the reason was for the assignment of work on that particular occasion, he could recall annually painting the two highways running north from Fenelon Falls in the Port Hope District The Employer's Case Mr Mack testified on behalf of the employer He is a member of the bargaining unit, and he told the Board that he had been on the paint crew since 1976 He was also, between 1989 and 1992, the lead hand. According to Mr Mack, the paint crew did not annually paint the stretch of highway in the Port Hope District identified by Mr Beattie running north from Fenelon Falls Once, many years ago, the crew painted some Port Hope District highway because of an equipment breakdown in that district, Mr Mack's - crew did, for a few years, paint a stretch of highway running alongside the border between the Bancroft and Huntsville Districts. He had no recollection, however, of any crew with which he was involved ever doing significant painting in the Huntsville District, Mr Mack was responsible for . the crew's paperwork, and testified that he was aware exactly where the painting took place At one time or another, all of the grievors were on his crew \ One of the third parties, Mr Doucette, testified that since 1989 Port Hope painting crews have been painting the stretch of highway identified by Mr Beatty as having been painted by him. Port Hope crews would also paint in Bancroft. They would never paint in either Kingston or Huntsville -- ..... t ,J J ~ 6 B Union Argument In the union's submission, the question that had to be determined in this \ case was what meaning should be given to the word "position" found in Article 3 21 1 In Furniss 602/86 (Slone) the grievor, a seasonal emRloyee, claimed that he had completed his probationary period and was, therefore, entitled to recall The issue to be determined in that case was whether the , grievor had \satisfied the requirement of having worked, "at least eight consecutive weeks each, worked in consecutive years in the same position in the same Ministry" The grievor had worked the requisite number of weeks, but had done so in different provincial parks. The parties agreed that the duties performed in these different parks were, by and large, the same i The employer, in Furniss. argued that the word "position" should be - narrowly defined to a particular job, A Park Warden's position in at the Eastern Gate of Algonquin Park, was not the same, the employer suggested, as a Park WardeQ's position at the Western Gate of Algonquin Park. The union argued that the word should be broadly defined bearing in mind the purpose of the provision, namely the creation of limited job security for seasonal employees \ In reaching its decision, the Board noted that the purpose of the probationary period was to give the employer an opportunity to assess prospective permanent employees, The Board also observed that the term "position" was not a "term of art," but was used in different ways in \ different sections of the collective agreement. Ultimately~ the Board concluded that seniority rights should begin to build upon the completion of a number of years performing a particular job function within a Ministry, as >--.'- s(, 7 , ;; opposed to a narrower experience that was geographically based. Applying this. test, the Board in Furniss concluded the grievor .had worked in the same position, and so found that he had completed his probationary period The provision of the collective agreement at issue in the instant case was considered by the Board in Kauffeldt 771/89 (Wilson) Foliowing an analysis of several other decisions including Furniss, Vice,:,Chair Wilson concluded that had the parties intended the words "former position" to be restricted to a specific job in a specific geographical location, they could have said so, and since they did not "I am satisfied that in fact that is not / the intention of 3 20 1 [now 3 21 1 ](at 12) , In Kuiack et al 1263/89 (Dissanayake) the Board was required to interpret article 3 21 20f the collective agree~ent which provides that "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" (emphasis ours) There was no doubt, in the Kuiack et al case, that the positions at issue were the same An issue arose because the positions were located at two different geographical locations in adjacent districts, The employer argued that only positions in the same geographical I location could 'be consiQered to be the same for the purposes of this - position, Any other interpretation, employer counsel suggested, would lead to the creation of province-wide bumping rights, which the parties clearly did not intend While giving the word "position" a broad interpretation for the purpose of determining probationary status made some sense, the employer in Kuiack et al argued that it made no sense to broadly interpret this position when bumping rights were in issue ,-- , \ .~ ) , 8 J \ The Board, aftef considering these submissions, held In considering whether two positions are substantially 'similar geographic location is a criterion to be considered in addition to the criteria relating to duties and responsibilities. In particular cases there may be other relevant factors, such as common management control, which will influence a determination of whether two positions are the same ) In the present case, given the relatively short distance between the two fire attack bases [11 9 kilometres by road and 57 kilometres as "the crow flies"], the -fact that employees regularly go out to fight fires in both locations regardless of their home base, the fact that both bases are managed and administered by a single "headquarters", all dictate a finding on the basis of a functional approach that the positions at Whitney and Haliburton are. the ,same for purposes of article 3 21 2 Mr Thorup posed the hypothetical situation of an employee in Whitney seeking to bump into a position in Kenora or Thunder Bay On this functional approach, it is likely that in that situation the Board will consider the distance between Whitney and thoSe locations in considering whether the positions are the same For the same reason, the concerns expressed by Mr Thorup as to the possibility that an employee may lose his seniority under article 3 20 2(a) because he refused an offer of reemployment in a distant location appeared to us to be unfounded This is because the Board is unlikely to find such a position to be the employee's former position under article 320 1 (at 13-14) Accordingly, the Board found in Kuiack et al that the geographically separated positions were the same for the purpose of exercising bumping rights .,..,--',_,~ r' , 'I.. ~ j 9 I ~ In the instant case, the evidence established that the ,two jobs were functionally the same, and there was, union counsel argued, other eVidence indicating that the grievors had, in fact, previously worked in the Port Hope District, Port Hope and Kingston were marginally further apart than the two geographic locations in Kuiack et at However, given the importance of seniority, and this whole line of cases, the union took the position that the grievors had been denied their due. Counsel noted that there was only one zone paint crew in the Kingston District, and that crew was the only one employing seasonal labour in the Eastern Region. Counsel, therefore, took the position, that the only way that the seniority interests of the grievors could receive meaningful recognition was through an interpretation that - allowed the grievors to, at the very least, assert their seniority against \ more junior employees in adjacent areas. Not only was there evidence indicating that the grievors had previously worked in the Port Hope District, it was also significant that the grievors and the third parties had worked in the Bancroft District, This intermingling of responsibilities demonstrated that the district lines were, to some considerable extent, drawn in sand, Counsel also pointed out that I there was no evidence of any administrative difficulties, either real or feared, ~ in allowing employees to assert seniority in adjacent areas Indeed, there was evidence that employees from the Central Region, Port Hope District, were called upon to do work in the Eastern Region, Bancroft District There was, very simply, union counsel concluded, no evidence that affording seniority protection would result in chaos. Indeed, there was no evidence that the employer lacked the administrative capacity to identify relevant / I (-- 1(0 ,J, positions in adjoining areas and then to consid.er whether those positions were appropriate for senior employees The employer, counsel noted referring to article 24 of the collective agreement, had a great deal of experience in casting a wide net in attempting to find vacant positions for surplused employees, and so could have done so in the instant case Couf;lsel pointed out that traveling great distances was part and parcel of the grievors' job given the wide area in which road paInting took place There was, counsel suggested, no reason why the grievors should be required to live close to Kingston headquarters. At the very least, counsel argued, the employer should have considered job opportunities in the adjacent districts, Employer Argument '- ) Employer counsel began his submissions by referring to the offers of - employment given to each of the grievors: the offers clearly stated that_ - \ they were being offered particular positions wi/thin the Kingston District and Eastern Region. Referring to the principles set out in the Kuiack et al and other awards, ,counsel did not contest the fact that the jobs at issue in the instant case were functionally the same What distinguished this case, 1 however, in the employer's view, was the distance between the two positions, and the differences in the management of the work, ( Counsel observed that the nature of the work in this case involved travel , \ over large distances and that it was "two-edged sword" for the union to argue that the grievors should have been allowed to bump employees who , worked out of a headquarters 1 50 kilometres away He noted, furthermore, that! the organizational structure of the work in the instant case was quite 1 different from that in Kuiack et al. There were different budgets, different supervisors and, on the evidence, the work was confined to particular \ 8" -... 11 ~, districts, It Was also worth bearing in mind, in the employer's view, that full..time seniority employees were, absent the ~onsent of the parties, limited to reassignment on layoff within 40 kilometres of their home position, but that the union was asserting in this case that seasonal employe'es should be able to bump other seasonal employees located 1 50 kilometres away Inasmuch as the~ parties could be said to have evidenced an intention of what constituted a reasonable commute, counsel took the position that 40 kilometres was the maximum that one could normally expect. Commuting from Kingston to Port Hope, counsel noted, would take at least three hours a day It was also il11portant to recognize, counsel argued, that the Furniss case was about a different collective agreement provision, and it was one that concerned a probationary employee Geographical location was, however, was recognized as a factor to be considered in one of the cases that considered Article 3 21 1 Kauffeldt. And geographic location was also recognized as an important factor in Kuiack et al Employer counsel noted that the distances between the positions at issue in the instant case were significant, ~nd in that regard referred to Union Grievance 665/81 (Kennedy) In that case, the Board held, in the context of the transfer of OHIP Headquarters from Toronto to Kingston, that the Kingston job, even if identical to the position held in Toronto, was not the same job as the one in Toronto In conclusion, employer counsel did not dispute the importance of seniority rights What he argued, however, was that the parties have, in this particular case, provided for those seniority rights to be exercised within the Kingston District, In 1992, none of the grievors were required - -..... J, 12 * However, it was quite conceivable that one or two of them might have been \ needed and, in that situation seniority would clearly .have prevailed In the employer's subtnissio,n, management had, no obligation to 10bk beyond the Kingston District, and counsel asked that all four grievances be dismissed ) Union Reply \ In reply, union counsel argued that it did not make sense, given that the grievors were the only seasonal line painting employees in the Eastern Region, to say that they could exercise their seniority against each other ) The only way that their seniority rights could be made meaningful, in the union's submission, was ,by finding a group of junior employees to exercise those rights against. In this case, that meant the seasonal employees in the , ~ adjacent district of Port Hope The work of the grievors and third parties was functionally the same, and counsel argued that these were not cases for a hard and fast rule, rather what was required was an examination of particular facts and the development of an appropriate ad hoc approach In I support of that position, counsel cited the award of Vice-Chair Dissanayake in Kuiack\ et al (at 1 4) Counsel also urged the Board not to give too much stock to the employer's assertion that reference in one part of the I collective agreement to 40 kilometres indicated \ an agreement by the \ parties that this distance constituted an acceptable commute Pointing out that that provision applied to classified employees only, counsel argued that it had no applicability to the instant case Ciassified employees had elaborate remedies when facing layoff The situation of seasonal J employees was much different. They were limited to Article 2 21 1 And for the reasons already given, counsel again urged the Board to, find that the ) grievors were in 1992, pursuant to that provision, entitled to displace junior employees in Port Hope - L -" 13 ~ Decision Having carefully considered the evidence and arguments of the parties, 'we I are of the view that the grievances should be dismissed At the outset it should be noted that the Board in Furniss was not specifically called upon to interpret the same provision at issue in this case Although the Vice-Chair in that matter indicated in his reasons for \ decision that he was interpreting the predecessor provision to article 3 21 1, there is, in fact, no evidence in the reasons for decision that he did so Carefully examined, it is clear that that case simply interprets the provision of the collective agreement setting out the probationary periods of seasonal employees Accordingly, the award is not of great use to us in I reaching our reasons for decision - Much more useful is the Board's decision in Kauffeldt where it held that the words "former position" should be interpreted on a functional basis, and that location is one factor that could be taken into account. Of particular relevance to the instant case, Vice-Chair Wilson in Kauffeldt observed that "I am satisfied that the 'former positions' in 3 20 1 do not refer, and, indeed, functionalry could not at the same time refer to the former position in Tweed as well as in WindsQr or Thunder Bay" (at 11 ) However, the Board in Kauffeldt also found that there was no evidence that the parties intended what is now article 3 21 1 to be restrictively interpreted and confined to specific positions, After applying a functional analysis approach, the Board in Kauffeldt held that that the jobs were the same, and that the difference ) in location of, the positions was insignificant. Similarly in Kuiack et aI, the Board determined that geographical location '-'~ - ___~..__6__ ----"..._..~,. -- --- '\ ~ ;.. 14 ) ~ was an issue to be taken into account in determining the layoff order of seasonal employees, A number of senior firefighter employees based at one location, were laid off ahead of more junior firefighter employees based at another location The Board looked at the distance between the two positions, as well as a number of other factual matters unique to that particular case, and .determined that the positions were, for the purposes of ) layoff, the same Looking at the collective agreement as a whole, it is absolutely clear that the word "position" does not have a single meaning, but is used in different places in different ways, It is not, as stated in one of the earlier awards, a "term of art." In general, words in collective agreements, like words in statutes, should be given the same meaning However, it is clear in reviewing this collective agreement that the parties have not assigned a uniform meaning to the word "position" In some cases, the word will be construed broadly,such as Furniss: while in others, such as in determing the rights of employees returning from maternity leave, the word has been construed narrowly (see Young 566/92) In this case, we find that the\ positions, while functionally the same in terms of duties and responSibilities, are not the same for' the purpose of the application of article 3 21 1 ( After examining the two positions in the instant case, and doing so adopting a functional approach, we find that the positions are not the same and so do not, therefore, constitute the grievors' "former position" as set out in article 3 21\ 1 Unlike the situation in Kuiack et aI, the grievors in this case did not regularly work in other districts (except, of course, the Bancroft \ District), nor were they subject to the same direction and control The '1 .. -" .- ~. '-' . -- - .----" -- ... -"- .. --. - __._h. . .~ ~ ,.--.._.. ".,. ___.'.__' ._. -- -"..._"'.~. --.- ._-'._~-_..-.... .- ~" ", -'"" 15 ~ grievors reported to supervisors in their district, were directed in their district, and their seniority was calculated in their district, Moreover, the Kingston District budget determined what work, if any, they would perfdrm While it is true enough that the grievors would work in the Bancroft District, that factor does not assist us in determining, given the unique circumstances of the assignment of that work, what recall rights they might have to work in the Port Hope District. What evidence we have indicates that they were confined to duties and responsibilities in their own district and in the Bancroft District. Whatever painting they might have once done in the Port Hope District was, we find on the evidence before us, exceptional and de minimis, Obviously, seniority rights cannot be exercised in a vacuum. However, we are not prepared to find, in the particular circumstances of this case, that the grievor's seniority rights are properly exercised with respect to a position located 150 kilometres away Vice-Chair Wilson indicated as much in the Kauffeldt case Union counsel may be correct in asserting that the parties have not, in the collective agreement, evidenced any intention with respect to the reasonable maximum commute for a seasonal employee That being said, we have no doubt whatsoever that had we been called upon to consider whether any of the grievors had forfeited their seniority under article 3 20 2(a)(iv) for refusing the Port Hope job, we would have found that the two positions are not the same Although dealing with the rights \ of classified employees, l!nion Grievance, cited above, provides general support for this conclusion As the union argued in that case, "on the basis of reality and reasonableness a Job in Kingston could not realistically be viewed as the same job that, previously existed in Toronto" (at 13) In the instant case, we reach this same conclusion, - ---..~ --". ,- '-''--- ,_.. ---_..__...._~- ._~._~.,-,,-,' -......---. .-.--" -- .- \ .~ I \ 16 :" Accordingly, and for the foregoing reasons, the grievances are dismissed 2nd day of May, 1995 ~I I I ( , I - l v \ I -