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HomeMy WebLinkAbout1992-2853.Beauvalet et al.95-04-28 ,,~, ...-: ;t .;. - r f4.. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ON TA RIO 1111 GRIEVANCE CpMMISSION DE j SETTLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-7396 GSB # 2853/92, 384/93, 617/93, 620/93, 729/93, 955/93, 1906/93, 2638/93, 1358/93, 2635/93, 2636/93, 2637/93, 220/94, 380/94, 716/94, 928/94 OPSEU # MTR-U658, 930430-930432, 930434-930440, 93B633, 93B634, 93B636-93B638, 93B641, 93B724-93B727, 93B815, MTR-U761, MCTR-U798, 940296, 940297, 940298, MCTR-tJ842, 940357-940361, 940439, 940709, 94G003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ,THE GRIEVANCE SETTLEXBNT BOARD BETWEEN OPSEU (Beauva1et et a1) \ Grievor - and - The Crown in Right of Ontario (Ministry of Touris~ & Recreation) Employer BEFORE O. Gray Vice-Chairperson ; FOR THE I. Roland GRIEVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THE c. Slater I EMPLOYER Senior Counsel Legal Services Branch Management Board Secretariat HEARING January 10, 1994 February 21, 1994 ) October 3, 1994 February 8, 9, 13, 14, 1995 v- I '-.. March 7, 27, 29, 31, 1995 \ - ~ . "' .~ " Decision These unIon and indIvid~al gnevances concern the employer's calculatIons of the semonty of seasonal employees at Upper Canada Village in MornsbJg, ~ . I Ontano, and Its deCISIon not to recall certain of those employees to work dunng the 1993 and 1994 seasons. Some of these grievances first came on for hearing bn January 10, 1994 before a panel ofwmch I was chair Those grievances were cdn- solidated WIth others on February 8, 1995, by which time heanngs of the gnJv- - ances were proceedmg before me as sole arbitrator Cumulatively, the gnevandes allege failure to properly calculate seniority under subsection 3.20 1 of ArticlJ 3 of the collective agreement, failure to recall employees to theIr "former POSItiO+" m accordance WIth subsection 3.21 1, failure to reduce the number of seasonal employees in a pOSItion m accordance WIth senionty contrary to subs~c- I tIon 3.21.2, Improper assignment of bargaimng unIt work to management, dis- cnmInatIon contrary to Article A.l 1, discnmination contrary to Article A. 1.2 ahd failure to pay salary In the course of the hearing, the parties agreed that grievor Donald Whelan should have been recalled in 1993 to a Mamtenance Mechamc I positI~m . . I m place of Delbert Nelson, and that gnevor Eleanor SmIth should have been Fe- called m 1993 to a merchandIsing clerk position in the village store When thby adVIsed me of those agreements on February 8, 1995, the parties had not ~et worked out and agreed upon the precise remedial consequences, and asked that I remam seIsed WIth the gnevances of those indIviduals agaInst the possiblli~y that I would have to determine those remedial matters if the parties were una~le to resolve them. The partIes also agreed that, from and afterFebruary 8, 1995, the hearing before me should focus on a subset of the Issues raised by the gnevances then ~e- fore me, leaVIng the other issues to be determined in subsequent hearings, If nJc- essary That subset of Issues concerned the/ right to recall in 1993 of thrbe gnevors - Dyanne Beauvalet, David Fornataro and Hazel Prunner - who we~e not recalled m 1993 and who seek recall in the 1995 season. Some time afteJ I I was told of tms agreement, there was a dispute about whether the matters to be t~ 4. 2 - addressed In tms phase of heanngsIncluded the allegatIOns of dISCnmInatIOn made In grievances filed by Ms Beauvalet and Mr Fornataro I rUled that those ( - '-. allegations would not be consIdered in tms phase. The parties' 1992-931 collective agreement provides that. - \ 3.18 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full.time position in \. the unclassified servic~ in a ministry For purposes of this definition ( full.time means a minimum of thirty-six and ohe.quarter (36-114) or / forty (40) hours per week, as applicable. 3.19 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 co~secutive years in the same position in the same ministry \ 3.201 A seasonal employee's seniority within a ministry will accumulate upon completion of his probationary period and shall include: (a) all hours worked as a seasonal employee at the straight-time rate; ) (b) periods of authorized paid leave in accordance with Section 3.32, Attendance Credits and Sick Leave. 3.21 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 3.212 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 Most references to them In the collective agreement describe these provisions as sections and subsectIOns of ArtIcle 3, and I will use that nomenclature here The Issues to be determined In this phase are: ) . whether and to what extent the hours included in a seasonal em- \ ployee's seniority under subsectIon 3.20 1 Include hours worked on a holiday (as defined In ArtIcle 48) when the h6liday IS the employee's regularly scheduled work day; . whether the hours included in a seasonal employee's senionty under subsection 3.20 1 Include perIods of authorized paid bereavement leave taken pursuant to section 331, and, . WIth respect to each of the gnevors Dyanne Beauvalet, David Foma- .~ taro and Hazel Prunner, whether In 1993 there was a "former POSItiOn" I ~ t.' / ,. 3 of that grievor to which he or she ought to have been recallec;i that year pursuant to subsection 3 21 1 Subsection 3.20.1 Holiday Houn I The employer says that the only hours Included In a seasonal employee's senionty credit under the language of subsection 3.20 1 are those described in clauses (a) and (b) of the subsectiop. Hours worked must fall wIthIn clause (a) With exceptIOns not matenal here, section 330 provides that when a season employee is reqUIred to work on a holiday as defined In Article 48, "he shall be paId two (2) times hIs basic hourly rate for all hours worked" In addition to the h.ohday pay to which he'or she would otherwIse have been entitled. The employer says that "hours worked at the straIght time rate" means hours for which pay 'I IS calculated at the straIght time rate - hohday work hours paId at two times the baSIC hourly rate are not "hours worked at the straight time rate" and, so, do not fall within clause (a) -- The union argues that the words "at the straight-time rate" do not modIfy the words "hours worked" which precede It In clause (a) but, rather, modify the word "accumulate" In the opening words of subsection 3.20 1, indicating the rate at whIch hours worked accumulate for semority purposes. It submits that sub- se~tion 3.20 1 should be interpreted as including all "regularly scheduled" hours. I The unIon says that "regularly scheduled" hours for this purpose are the mini- mum 361/.. or 40 (as apphcable) hours referred to In the definitIOn of seasonal worker as a full-time worker In section 3 18 The union says that all 36% or 40 (as applicable) regular hours should count toward an employee's semority, whether some of them fall on a holiday or not. The only prior GSB deCISIon CIted by eIther party on this pOint was a con- sent order in GSB FIle 0724/90, whIch Incorporated the followmg mmutes of set- tlement apparently signed on October 9, 1990 by representatives of the union and the employer' The parties agree to the following terms as full and final settlement of the above. noted grievance which alleges violation of the Collective Agreement related to the accumulatioQ of seniority of seasonal employees. ,~ , /l / 4 1 For the purposes of accumulating seniority credit under Article 3.19 1 the Union and the Employer agree that the words .. all hours worked as a seasonal hour at straight time rate DO NOT INCLUDE. (a) any overtime hours; (b) any hours worked on a holiday (as defined in Article 48), unless the poliday is a regularly scheduled work day in which case seniority credit will be given only for the hours actually worked,1exclusive of any overtime hours; (c) hours worked by Schedule 6 seasonal employees for which the employee is entitled to take equivalent time off (as defined iri Article 3.22.4) or to receive payment at one and one-half times the basic hourly rate (as per Article 3.22.5). 2. The effective date of this Memorandum of Settlement is the date of signing. 3. The Union and the Employer agree to ask the Grievance Settlement Board to make this Memorandum of Settlement an order of the Board. 4. OPSEU agrees to withdraw the grievance. I The collectIve agreement In effect at the time was the 1989-91 agreement. The reference in paragraph 1 to "Artide 3 19 1" appears to be a typographIcal error' the quoted words appeared in subsection 3.20 1 of that collective agreement, which IS Identical in language to subsection 3.20 1 of the 1992-93 agreement. Both partIes agree that thes~ pr9visIons of the October 1990 minutes of settlement in File 0724/90 ("the 1990 settlement") affected only the hours to be added to an employee's semority credIt from and after October 9, 1990, and not the semonty credIt accumulated up to that date. They agree that seniority cred- its accumulated up tOlOctober 9, 1990 must still be calculated in accordance WIth the ongmallanguage of subsectIon 3.20 1. In other words, the 1990 settlement IS not an agreement aQout what subsection 3.20 1 means and has always meant, ) but an amendment to the subsectIon with only prospective affect. It is not appar- ent whether the 1990 settlement has effect beyond January 1, 1992, the effective date of the 1992-93 collective agreement, but I am told-that for the gnevors whose recall rights are in issue in thIs phase it makes no dIfference whether It does or not. "' The material question, then, is what the above-quoted language of sub- section 3.20 1 meant before the 1990 settlement waS made. Although counsel agreed that the 1990 settlement does not purport to settle that question directly, each of them inVIted me to Infer from its language that the parties thought the subsection had the meaning for whIch he contended. I do not accept eIther of their submissions In that regard. Once it is conceded that the settlement was In- - ~ \ 5 - j. I - tended to have only prospective elfect, It cannot be supposed to reflect agreement about the pre-settlement meamng of the subsection. As to each of the sorts of hours addressed In the settlement, one party may have thought the settlement c continued the existing rule about those hours while the other thought it changed the rule It IS clear that the unamended words of subsection 3.20 1 cannot mean exactly what paragraph 1 of the 1990 settlement says. The subsection makes no express distinction between "regularly" scheduled hours and other hours worked. If, as the union argues, the words "at the straight time rate" in clause (a) of sub- section 3.20 1 do not modify the words "hours worked", then all hours worked must count, including overtime hours, whether'they are "regularly scheduled" hours or not. If the words "at the straight time rate" do modify the words "hours worked", as the employer ar~ues, then no hours worked at a double time rate on a hohday can c01lIlt, whether they are "regularly scheduled" hours or not. Subsection 3.20 1 expresses two dIstinct thoughts in language separated by the conjunction "and" that semority "wIll accumulate " after the probation period IS completed, and that semority' "shall include " the time penods iden- tified in clauses (a) and (b) The word "accumulate" is part of the. thought ex- pressed before the conjunction, the words "at the straIght-time rate" are part of the thought expressed after the conjunction. The words that follow the word "hours" in clause (a) modify that word, IdentIfying the "hours" to be added. The I modifying word "worked" adequately expresses the concept that these are real hours, not notional hours - nothing further was needed to SIgnify that they were to be added to semority at a "rate" of ,one hour for each hour worked. When used In the phrase "straight-time rate", the word "rate" ordInanly refers to a rate of pay It comfortably bears that meamng In this context. For these reasons, I am persuaded that the interpretation for whIch the employer contends 18 the correct one except for the period to which the partIes'-1990 settlement applies, the only "hours worked" that are to be added to a seasonal employee's semonty under subsection 3.20 1 are those hours worked as a seasonal employee for which the employee was paId at his or her straIght-time rate. rIt I I 4. 6 - Bereavement Leave 0 On the plain language of subsection 3.20 1, the only hours not worked which are to be included in a seasonal employee's semority are "periods of authorized paid leave in accordance wIth Section 332, .Attendance Credits and ~ Sick Leave" Bereavement leave IS proVIded for In sectIOn 3 31, and not section 3 32 Clearly, periods of bereavement leave are not to be 'included in a seasonal employee's seniority under this language. In a document entitled "General Information" prOVIded to seasonal em- ployees at Upper Canada Village at a meeting in 1987 or 1988, the employer told those employees that A seasonal employee's seniority will accumulate upon completion of his/her probationary period and shall include: 1 (a) all hours worked as a seasonal employee at the straight time rate; and (b) periods of authorized paid leave. ~ This IS roughly the language of subsection 3.20 1, but WIthout the qualifymg / words "in accordance WIth Section 3 32, Attendance Credits and Sick Leave" m clause (b) A SImIlarly unqualified representation appears .later In the docume~t. Further, It appears that the employer included periods of bereavement leave in calculating the seniority figures which the union has challenged in these proceed- Ings. The employer argues, however, that those hours should be excluded in the '\ (re)calculation of seniority called for in these proceedings. The union argues that the employer is estopped from asking that subsec- tion 3201 be applied so as to exclude periods of bereavement leave from the cal- culation of seniority, because It made the above-mentioned representatIOns 10 1987 or 1988 The union cited Brown and Beatty, CanadUln Labour Arb~tratU)n (3d) at ~2:2210 and ~2.2220 with respect to the doctrine of estoppel and Its ap- plication. The employer submits that the doctrine of estoppel cannot apply here because there is no evidence that those representations induced the union (or anyone) to act in a way which would be to its (or theIr) detriment if subsection 3.20 1 is now applied in strict accordance WIth its terms, citing Northover, 2279/93 (DIssanayake) Proof of detrimental reliance IS essential to the success of an estoppel ar- gument. There is no evidence before me of detnmental reliance by the union on , ~ ) '7 ~ the representations mentIOned.. Even If detnmental rehance by an employee IS a sufficient -basis for an estoppel in the absence of detrImental reliance by the 'un- '" Ion (a proposition which the board rejected In Northover), there is no eVidence that any employee so acted In relIance on the employer's representation that it would now be ineqUItable to calculate hIs or her senionty In accordance with the terms of subsection 3 20 1 Accordingly, the estoppel argument fails. I find that perIods of bereave- ment leave are not to be Included In calculating semonty for the affected sea- sonal employees. Subsection 3.211 Meaning Again, subsection 3.21.1 prOVIdes that I 3.211 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 Gnevors Beauvalet, Fomataro and Prunner all completed their probationary penods well before the 1993 season. They were not recalled that season. The re~ maImng issue In this phase is whether, as to each of those grievors, there was in ~- 1993 a "former posItion" of that grievor to which he or she ought to have been re- called that year pursuant to subsectIon 3.21 1 For e~se of reference, a position whIch a seasonal employee claims is a "former pOSItiOn" to whIch he or she should have been recalled will be referred to as a "target position." The meamngs of "position" and "former position" m SImIlarly worded pro- t, VISIOns of previous agreements had been considered in several GSB decisions be- fore the parties entered Into the 1992-93 collective agreement. W Furmss, 602/86 (Slone), Brousseau, 2285/87 (Devlin), Munro and Boden, 677/88 (Fraser), Qrv~lle D Sm~th, 2315/87 (Dissanayake), G. Genery, 1468/85 (Fraser), Kauffeldt, 771/89 (Wilson) and Anderson, 471/86 (Roberts) Those decisions came to these conclusIons . The posItion in which an employee completes his or her probationary penod mfiy not be a seasonal employee's only "former position." Any A , , ( J.4 8 posItion which the employee "formally occupIed, by a formal appoint- ment under the Pubhc Service Act" is a "former posItion" for pur- l poses of subsectIon 3 20 2 G Genery ) \ . A target -POSItIon WIth essentIally the same functions as a-seasonal employee's preVIOUS posItion IS that employee's "former pOSItion" even If the functions of the target pOSItIon are to be performed elsewhere than at the locatIon at whIch the employee performed them In the previous pOSItion. W Furmss, Kauffeldt. . Job titles are not determinative, and minor variations in the Job duties between a previous position arid a target position will not prevent the I latter from being a "former posItion", but It is insufficient that the preVIOUS and target pOSItions fall WIthin the same classification. Or- v~lle D Sm~th. ......., ~ . I t is not enough for there to be an overlap of some functIOns of the tar- '1 get and previous pOSItions, there must be a substantial correspondence / In all of their core functions: Anderson, Brousseau and Munro and Boden. Subsection 3.21 1 provides a consIderably narrower right to Job secunty than IS afforded to classified employees under Article 24 of the collective agree- ment. The test under subsection 3.21 lIS not whether the employee claIming the nght to recall to a position could easily learn to perform all the functions of that pOSItion, nor even whether the employee IS presently capable of performing all . those functions WIthout traImng The test IS whether the target pOSItion z.s the employee's former position, a test which is satisfied only If the target pOSItIOn and a previous position of the employee are substantially similar If there IS a matenal difference in the job functions involved or skills required in the two po- SItiOns being compared, then the two positions are not substantially simIlar for I the purpose of this test. If, for example, the functions of position A Include all the functions of posItion B plus another matenal function not reqUIred in pOSItion B, then POSItiOns A and B are not substantially SImIlar, even though the functions of position 13 are "included" in position A ThIs is so when position B is the previ- ous position and position A is the target position. It is also so when position A is ) I .~~ - 9 t: the previous posItIOn and pOSItion B, consIstmg of functIOns Included In A, is the target position. The latter pOint IS clearly Illustrated by the decIsIon In Munro and Boden. In that case, a seasonal employee preVIously employed as a General Resource TechmcIan claImed anght to recall to one or other of two other POSItiOns. One of the two was a pOSItion called Resource Techmcian Foreman. The board. found, at \ page 23 of the decision, that "a General Resource Technicia~ can do everything a l Resource Techmcian Foreman can do, but the reverse is not true, because the GRT position has a number of more complex dutIes, and requites greater skills and knowledge" The board also found that "the principal duties and core content of the General Resource TechmcIan pOSItion are substantially more complex and involved that [SIC] those of the Resource TechniCIan Foreman, and the two jobs are not substantially SImIlar, notWIthstanding the inclUSIOn of the functions of one Job In the other" On that baSIS it rejected the claIm that the pOSItion of Re- source TechmcIan Foreman was a former position of someone preVIously em- ployed as a General Resource Techmcian. Application --- Tw:ning to the facts of this case, Upper Canada Village IS a living re- creation of an Ontano VIllage of the 1860s. It IS operated by the St. Lawrence Parks CommISSIon. There are a number of historical buildings In the village Some represent homes. Others represent commercial establishments. During the village's operating season, employees wearing period clothing perform in and around those buildings the activities that woUld have been performed there in the 1860s. Logs are cut into boards in the sawmIll, bread is baked 10 the bakery, shoes are made in the shoemaker's shop, furniture is made In the cabinet maker's shop, and so on. Women in the homes prepare meals in period-fashIon, knIt, embroider, qwlt, make rugs, preserve meat, chum mIlk and launder and Iron clothing In addition to performing these penod functions, these employees also explain the functions to visitors and describe how they fit Into the economIC structure of OntarIO in the 1860's. They thus "ulterpret" for VIsitors the VIllage and the activities they perform in it. They may also be called upon from time to time to describe and explain skilled actiVItIes of o~hers whIch they do not or can- not themselves perfoqn, draWing on theIr generic interpreter skIlls. There are -"1' , ,1\ 10 I also persons employed In the VIllage who do not perform the role of a 19th cen- tury VIllager. Those In museum cleaner positions, of whom gnevor Hazel Prun- ner was one, fall Into that category ) Dyanne Beauvalet ./ Ms Beauvalet's seasonal appointments In 1992 and pnor years were to a position called "Domestic Weaver' or, sometimes, Just "Weaver" 1 A 1986 position specification for thIs position describes its purpo~e as To interpret textile production in a domestic setting in the mid. 19th century by spinning, dyeing, weaving and all related operation [sic], reproduction of 19th century textiles; to act as custodian of the artifacts, reproductions, buildings and properties of Upper Canada Village. The speCIficatIOn's detaIled list of dutIes and responsibIhties of the positIon con- templates that an Incumbent wIll spend 95% of her tIme "interpreting domestic textile production" by prepanng fibres for weaVIng, weaving and otherwise pro- dUCing textiles USing 19th century methods and "achieVIng In all forms 'of inter- pretation the standards estabhshed for an interpreter' Acting as custodian is saId to conStitute the other 5% of the time spent In this position. I Had I accepted theumon's proposed Interpretation Of subsection 3.20 1, Ms. Beauvalet would have been found to have more seniority than Betty McRob- erts, who was recalled as a Domestic Weaver In 1993 Given my findings with the respect to the meaning of subsection 3.20 1, however, there was no seasonal em- '- ployee Junior to Ms. Beauvalet employed In the 1993 In a pOSItion entitled Do- mestic Weaver, nor in any position In which weaving skills were required or used. , I The un,ion's alternative argument on Ms. Beauvalet's behalf is that she ought to have heen recalled in 1993 to the Domestic Interpreter pOSItion occupied that year by Carol Darling, who had less senionty than Ms. Beauvalet. Testi- mony was adduced through Ms. Beauvalet and others about her work in and be- l Ms. BeauvaIet also had putatively non. seasonal appointments to contracts to cover time spent at pre-season orientation sessidns and, in 1992, to a position of tour guide for a period after the regular operation of the village ceased. One of the matters which appeared to be in dispute in these proceedings at the outset was whether these putatively non. seasonal ap- pointments ought to have been treated as part of the contiguous seasonal appointment for seniority purposes. That issue was not argued at the conclusion of this phase, however ~ --- ------- ~ \ ) 11 t fore 1992, in support of the proposition that there was a chJmge In her dutIes af- ter 1986 (when the posItion descnptIOn for Domestic Weaver was written), as a result of increased integratIOn of the Interpretation of special skills into the pres- entation of hfe as it was in the 1860's. while performing the role of a weaver who was part of a domestic household, either at a farm or in the VIllage proper, she was called upon to and did perform all or nearly all of the functions whIch Do- mestic Interpreters performed In those locations In addition to performmg weaver functIOns of the sort described in the Domestic Weaver positIon specifi- cation. I accept that 10 the years ImmedIately pnor. to the 1993 season, Ms Beauvalet performed functions simIlar to those of a Dome,stic Interpreter In addItion to the functIOns contemplated by the DomestIC Weaver pOSItion specifi- cation and that, as a result, that position speCIfication does not accurately de- scribe all the duties she performed in those years or the percentage of time spent on each. The unIon argues WIthout cha]lenge, and I agree, that the functions ac- tually performed by an employee must be taken mto account In determining the nature of his or her "former position" or positions when applying subsection 3.21 1 see Munro and Boden at page 11. I do not accept the union's submission that the grievor's employment OSCIllated back and forth between two distinct po- sitions, one consIsting of dutIes described In the 1986 position- descnptIOn and one consistmg of duties not included in that descriptIon, nor Its submIssion that she was simultaneously employed In two dIstinct pOSItions In my VIew, she was employed in a Single pOSItion comprising all of the duties she was expected to and dId perform. Interpreting domestic textile production as described in the Domestic Weaver position specification was throughout a central function of that single position. The other functions she performed followed naturally from the greater integration of that function into the presentation of a VIllage of the 1860's. The weaver she portrayed helped others with housework, but spent a , substantial part of her time on activities related to textile production. I do not need to resolve the parties' dispute about whether there were one or more matenal functions of a Domestic Interpreter which Ms. Beauvalet dId not perform. Even If there were not, Ms. Beauvalet is still in the same position as the gnevors In Munro and Boden. Interpreting domestic textile production was a substantIal part of her previous position, but not of the pOSItion of the target ./ I':" 14 12 Domestic Interpreter posItIon. Accordingly, the two pOSItIOns were not substan- tially similar, and the posItion of DomestIc Interpreter occupied by Carol Darling ( In 1993 was not a former positIon of Ms. Beauvalet's for purposes of subsection \ 3.211 ) Damd Fornataro Mr Fornataro was emp,loyed as an interpreter at Upper Canada Village In each season from 1986 to 1992, inclusive. Each year his job description and actual Job functions focused on the village's sawmilL No seasonal employee junior , to Mr Fornataro was employed in the sawmill in the 1993 season. Three sea- sonal employees junior to Mr Fornataro were employed In POSItiOns called "Ttades Interpreter" in that season. The umon's argument on Mr Fornataro's behalf IS that he should have been recalled that year to one of those pOSltIOns. Mr Fornataro was first 'employed at Upper Canada Village in 1986 as an "Interpreter 1 - Industrial." He returned in 1987 as an "Interpreter 2 - Sawmill." In 1988 he progressed to the level of "Interpreter 3 - Sawmilf', at which he re- mained In 1989 He advanced to "Interpreter 4 - Sawmill" In ,1990 His contracts for 1991 and 1992 describe his position as "Interpreter I Sawmill", and indicate that his pay rate is comparable to that of the ArtIsan 1 class, which IS the pay rate assigned to employees at the Interpreter 4 level.)Advancement through the Interpreter pay levels to the Interpreter 4 level recognized the grievoi,s acquisi- tion of historical knowledge, both about 1860's sawmills and generally as to life In Ontano in the 1860's, as well as skills as a sawmill worker \ T~e position specification for Interpreter 4 - Sawmill describes the posi- tion's purpose this way. To interpret the business of saw milling and the lifestyle of a worker in the mill, to perform related duties during the off~season for the purpose of maintaining and repairing existing buildings on site; and to act as custodian of the artifacts, buildings' and properties of Upper Canada Village. N.B. Off season work may be offered as budget considerations allow but is not a guaranteed part of the job. I That pOSItion specification contemplates that 65% percent of the time of the In- terpreter 4 - Sawmill will b~ spent on the following: Interprets under general supervision of the mill operator the business of saw milling by performing such tasks as: - bringing logs into the mill, .... ,. ~,. 13 fr - setting logs on the carriage and positioning them for sawing; - repositioning logs to produce-boards and sawn timbers of the required thickness; removing and grading boards for quality' - filing and setting saw blades on a regular basi,s; - assisting' with the daily maintenance of the milling equipment; - operating the mill in the absence of the mill operator' ( ~ cleaning the building as may be required for the interpretive programme; - assisting with the timber framing programme by preparing sawn materials and performing manual tasks; - achieving in all forms of interpretation the standards established for an interpreter of this level (see criteria for Interpretation Level IV); By contrast, the posItIOn speCIfication for the pOSItion of Trades Inter- I preter IV describes the purpose of that position as To provide relief and back-up to artisans in the trade shops during their absence; to assist the tinsmith, cabinetmaker shoe'maker baker or storekeeper in the presentation of their building and trade to obtain on site training opportunities in the aforementioned trades at this level. That position specification contemplate,s that 90% percent of the time of the Trades Interpreter IV will be spent on the following: Under the' general supervision of the Manager Industrial Programming, interprets the work & life of a ,tradesman's assistant or apprentice by' - undertaking semi-skilled instruction of the tradesmen, - assisting the tradesmen in the production of reproduction items such as bread, furniture, tinware. shoes, etc. (as det,ailed in Duties and related tasks Interpreter IV General Store, Bakery Cabinet Maker's Assistant, Tinsmith, Shoe Maker); - using mid. 19th century hand tools, machines and equipment (as detailed in Duties and -related tasks Interpreter IV General Store, Bakery, Cabinet Maker's Assistant, Tinsmith, Shoe Maker); Many sites In the VIllage need to have at least one person present throughout the hours that the village was open to visitors, even if only as a cus- todIan to protect that site and its artifacts. It was often necessary to take some- one normaliy employed 10 one area and locate them temporarily in another to prOVIde the necessary coverage dunng other employees' breaks, meals, meetings, Illnesses and so on. When there were not enough Trades InterpreteI:s to prOVIde reli~f In the 4 or 5 trades or areas on whIch their POSItiOns focused, employees from other areas would be asked to provide relief where persons in those trades \ work. Dunng the 7 seasons he was employed as an interpreter in the sawmIll, -- ----- - --- ~ 14, " .~ - 14 - Mr Fornataro was asked to and dId on numerous occasions proVIde break and other relief for other employees in varIOUS locations in the VIllage, mcluding 10' catIOns at whIch Trades Interpreters ordinanly worked and provided rehef. On those occasions he generally dId no more tha~ act as custodian and provide visi- - tors with such verbal interpretatIOn as he could. He dId not perform the full range of phYSIcal actiVItIes that would be performed by the employees he re- . J placed, nor (generally speaking) the full range of functions that might have been performed by Trades Interpreters when providing relief. I There were two occasions during his 7 seasons at Upper Canada Village when Mr Fomataro was offered and took several days' training in another trades area - once in the shoemaker's ishop and once In the bakeI1 There was also a 6 week penod In 1991 when Mr Fornataro's duties had to be modIfied to accommodate a repetitive strain injury which prevented his performing his regular dutIes In the sawmIll. During that period he was stationed in and per- \, formed some basic work In various locations, including the general store, black- smIth's shop and the, cabinet maker's shop, as well as other locations outside the ambit of the Trades Interpreter position specificatIOn. I \ i ! The employer presented unchallenged evidence that those employed as Trades Interpreters were expected to develop and had developed modest skIlls In more than one of the tinsmith, cabinetmaker, shoemaker and baker trades, and in-depth skIll in at least one. Each of the three persons who returned in 1993 as a Trades Interpreter possessed and was expected to use trade skills beyond those which were possessed by or required of Mr Fornataro prior to 1993 Ha'VIng re- gard to the functions Trades Interpreters were required to perform in 1993, their pOSItions were substantially different from the Interpreter Sawmill position in which grievor Fornataro had previously been employed, in that material func- 1 . tions performed in the target pOSItion had not been performed by the grievor and material functions of the grievor's previous position were not required of or per- formed in the tar~t position. \ One of the unIon's arguments is that 10 determining whether the Trades Interpreter pOSItion was a "former position" of Mr Fornataro I should Ignore the skilled functions actually performed at the relevant time by incumbents at the Interpreter IV level (skills that, for the most part, they had learned on the job) and consider instead whaf would have been expected of someone entering the (" ,~ / (. 15 'f-.! " posItIOn at a lower, entry level (as the Incumbents had some years before) I am not persuaded that one should Ignore functIOns actually performed In a target pOSItion at the relevant time when determImng whether It IS a grievor's "former posItion", unless the functions are Immaterial or it is shown that the require- ment for them was contrived In order to defeat the gnevor's nghts Even if one treats an entry level Trades Interpreter pOSItion as the target position, however, it seems to me that the work performed by an employee in that notional position are sufficiently different from the (primanly sawmIll) work of the grievor's for- mer pOSition that the two are substantially different. For these reasons, I am not persuaded that in 1993 someone junIor to ( Mr Fornataro occupIed any position which could be described as a former posi- tion to which he was entitled to be recalled. "- Hazel Prunner Hazel Prunner was employed as a Museum Cleaner in seasonS prior to 1993 Whether calculated as I have found it must be or as the union argued it should be, her seniority was shghtly less than that of Pat Amell, who was the most Junior of those recalled as a Museum Cleaner 111 1993 The union's argu- ment on her behalf is that she should have been recalled to do the work per- formed by Kimberley Mark in 1993 KImberley Mark was a student employed in a position entitled "Student Cleaner" In 1993 The employer argued that that position was not substantially SImilar to Ms Prunner's former position. It also argued that the pOSItion was not one to whIch the gnevor could have recall nghts, because students are excluded from the bargaining unit covered by the collective agreement and the positions they occupy would therefore be beyond the ambIt of that agreement. The 1993 positio~ specification for the Museum Cleaner position describes It this way' Purpose of position To provide specialized housekeeping and basic conservation services in historic furnished buildings; and to keep a daily check on the conditions and location of artifacts. - ,. -~ ~ ~, L ) '" 16 " Duties and related tasks / 1 Provides basic conservation and housekeeping services by performing duties such as: '\ 65% sweeping, dust mopping, damp sopping floors and porches in historic ) - houses; - cleaning inside walls, windows, woodwork using approved methods which will not damage wallpaper wood or plaster or 'ultra-violet film on windows; - spot cleaning and vacuuming floors, rugs drapes, etc., checking for signs of insects, wear or other deterioration, and reporting same to ,I supervisor' - dusting and polishing irreplaceable artifacts first considering the nature and condition of the objects, watching closely for signs of I deterioration and reporting same to supervisol' replacing the artifacts exactly as previously displayed; I - being especially careful in following directions in the use of proper cleaning agents and methods; ~ I - attending in-house workshops on cleaning techniques as \ recommended by the Canadian Conservation Institute; Parks Canada I and others. - checking on a daily basis for theft, vandalism, missing or broken artifacts, and reporting same to supervisor, or an weekends to duty officer; - bringing any maintenance items to the attention of the supervisor' - opening and closing windows, switching onJoff lights, locking doors in historic buildings; - being conscious at all tines of preservation of museum artifacts and furnishings while doing the daily cleaning duties; - assisting Registrar in inventorying artifacts in storage; and in keeping storage areas organized and cleaned; - complying with all Occupational Health and Safety policies and procedures or the work place; - ensuring that WHMIS documentation is an location for products in use; - installing UN filters in windows 01' on lights; - winterizing collection areas, covering furnishings, windows, carpets etc., with tyvek, packing up artifacts, textiles etc., in boxes. 2. Performs laundry and-other related duties such as: 35% - washing~and ironing period costumes, curtains, linens, bedding, etc. i.e. 500 aprons, 300 shirts and pants, 400 oven mitts; - washing cleaning materials (i.e. 140 dozen dust cloths appropriately treated, 600 terry towels, 200 rags); - washing and ironing shop coats for 'approximately 12 people; - operating an automatic washing machine, or hand stashing original textiles as required; t~ \ fr - 17 - following washing procedures and policies in the use of detergents/soaps etc. - hanging all wash on an outside clothesline to dry' / I Skills and knowledge required to perfonnjob-at fuUworking level Basic knowledge ,of cleaning eqUIpment, materials and methods; willingness to learn materials used, methods prescribed, and tools employed in museum cleaning and to embrace standards set; ability to learn basic conservation practices; (it is expected that this would be accomplished after two years of ,J practical experience in museum cleaning). Good physical ability' attendance at in house workshop in "Guidelines for safe handling and housekeeping" and other training sessions which will be provided by the Registrar of Collections. Although it was prepared after the last season In whIch Ms. Prunner was em- ployed as a Museum Cleaner, she testIfied- that thIs position descrIption accu- rately described the work she had done in the years up to and including 1992 The pOSItion speCIfication for the Student Cleaner position occupied by Ms. Marks in 1992 and 1993 describes it thIs way' Purpose of posit~on To assist the Senior Cleaner and seasonal cleaners in providing a cleaning service in public and staff lavatories, village store, administration, security and service buildings in the The [sic} St. Lawrence Parks Commission. Duties and related tasks 1 Provides a cleaning service by performing duties such as: 85% - assisting senior cleaner and seasonal cleaners to vacuum, sweep, mop, wax, strip oil and scrub floors in public, administrative and staff ) I buildings using power cleanIng equipment, if necessary; - assisting senior cleaner and seasonal cleaners in cleaning walls, ceilings, office office [sic} furniture, windows, etc. (window cleaning includes heights-of 15 feet or more); - cleaning public and staff lavatories and ensuring adequate supplies are available and a tidy atomsphere [sic) exists. 2. Performs other related duties such as: 15% - manually moving and lifting furnishings and equipment; - reporting defective equipment and maintenance to senior cleaner or maintenance personnel, - - reporting thefeand damage to senior cleaner- J - as assigned Skills and knowledge required to perfonnjob at full working level " Good knowledge of general cleaning and good physical condition with willingness to work at heights of 15 feet or more. Good communication skills in order to understand and carry out verbal and written instructions. / -~ ---- --- ~J. '. ~ - 18 The eVIdence discloses that there are and have for years been two groups of seasonal employees employed as cleaners by the St. Lawrence Parks Commis- SIOn at and around Upper Canada VIllage. They are referred to as "Museum Cleaners" and "Commercial Cleaners" Since 1989, both posItions have been paid \ at the rate associated with the Cleaner II class. Generally speakIng, in the rele- vant period the Museum Cleaners cleaned historical bUIldings and their contents (and did laundry), and the Commercial Cleaners cleanednon-histoncal build- Ings public washrooms, service buildings and offices associated with the opera- I tions of the village. The Commercial Cleaners also occasionally cleaned the traf- I fic areas of hIstorical bUIldings In which there were no histoncal artIfacts or his- I toncal artIfacts were out of reach. I I Ms Prunner testified that apart from her work with historical artifacts, ""\ the cleamng she did was SImilar to the cleaning done by the Commercial Clean- ers The CommercIal Cleaners did not do laundry 10 1993 or prior years. It was part of their job to stnp floors, seal floors, clean light fIXtures, remove garbage and unload supplies. Those were not duties of Museum Cleaners, and Ms. Prun- ner acknowledged that she did not perform those dutIes. \ j Each year the Museum Cleaners received pre-season training in the con- servation practices and special cleaning methods to be used in caring for the various hIstorical artifacts. They/also participated in the same pre-season orien- tation as the Interpreters. Although they used modem cleamng tools, use of the tools was adapted to the special task of cleaniIlg artIfacts. For example, while Commercial Cleaners would use heavy duty vacuum cleaners, the museum cleaners used less powerful ones with a screen over tpe suction tool which will be In contact with antique fabncs, so that the fabncs are not damaged. In addItion to training in these cleaning methods, Museum Cleaners were gIven training In the handling of historical artifacts generally, and in the examination of artifacts In order to recognize and report on Insect attack and other forms of damage. The employer submits that the duties relating to cleaning and preserva- tion of historical artifacts are a material distinction between Ms. Prunner's pre- vious Museum Cleaner position and the Commercial Cleaner pOSItions, of which Ms. Mark's 1993 position was a student version. The union invites me to con- clude that those duties do not make the Museum Cleaner position materially dif- I ~'" f- 19 I ferent from the CommercIal Cleaner or Student Cleaner positions because, It says, they were also performed by students wIthout any particular training It IS common ground that a student named Ken Casselman was employed In the village for the bulk of the season In each of the years 1991 to 1994 inclu- 1 sive, and that his duties included landscape related functions, including picking up garbage, around the outside of historical buildings. Ms. Prunner testified that In 1992 Mr Casselman spent part of each day dOing "the same cleaning" she dId In hIstoncal buildmgs, and that he would have handled the artifacts she had handled When It was put to her that any intenor cleamng he dId would have been under the superviSIon of a Museum Cleaner she saId that that was not so, that he worked In the bUIldings alone. She was not asked whether her assertIon that Mr Casselman "would" handle artifacts was based on actual opservation or \ merely reflected a belIef based on his haVIng been in buildings which contained artifacts Her statement that he was alone and unsupervised when working in the buildmgs leaves me in some doubt on that point, when I weIgh her testimony against that of Mr Porter Christopher Porter is the member of management who was in charge of the cleaning functIOn (among others) from 1991 on. He testified that while Mr Casselman would have swept th~ outside ramps and steps of historical buildings, he dId no cleaning Inside historical buildings In 1992 He acknowl- edged that Mr Casselman cleaned the traffic areas of historical buildings in the 1993 season, but said he did not clean the museum areas where artifacts were located; He saId It was never part ofMr Casselman's dutIes to clean artIfacts or perform any of the other artifact conservatIon functions performed by Museum Cleaners. Mr Porter may have been mistaken about whether Mr Casselman's cleaning of intenor traffic areas began in 1993 or 1992, but his testimony about whether Mr Casselman was expected or directed by management to clean or otherwIse deal with .artifacts was uncontradIcted. Even if Mr Casselman did clean, handle or otherwise deal with artifacts, there is no evidence that man- agement eIth~r ,directed him to do so or was aware that he did. As a result, the evidence with respect to Mr Casselman does not support an argument that the Museum Cleaners' artIfact conserv~tion functions were an immaterial part of theIr duties becaUse management required or permitted the performance of those functions by untrained persons. ~ ,., ( " ~ ) 20 - Mr Porter acknowledged that another student, Jennifer AllIson, worked with artifacts in the 1993 season as assistant to the Registrar, checking on the artifacts and maintaining records of them. In the 1994 season she returned as a "Student Museum Cleaner/CollectIOns AsSIstant," WIth duties which included ( some cleamng of artifacts under the supervision of Museum Cleaners. The posi- tIon speCIfication for that positIon contemplates that an incumbent wIll receive traImng in conservation methods In additIon to relevant past experience or edu- cation. The union did not argue strongly that the testimony with respect to Ms. I Allison's employment demonstrates that artifact conservation and cleaning was an immatenal feature of Ms. Prunner's former pOSItion of Museum Cleaner, and I find It does not. / I am not persuaded that the dutIes and responsibilities of Ms. Marks'~- Student Cleaner pOSItIon in 1993 were substantially SImilar to the duties of Ms. Prunner's previous position. Artifact cleaning and conservation functions were a substantial and material part of her former pOSItion, but form no part of - ) the target position. Ms. Prunner's claim that she ought to have been recalled in 1993 fails for that reason. Accordingly, It is unnecessary for me to determine whether the fact that the target position was filled by a student put it beyond the reach of a claim under ArtIcle 3.21.1 by a seasonal employee whose previous po- SItion was otherwISe substantIally similar Disposition In summary, I fi!ld and declare that 1) the only hours worked which are to be added to a seasonal employee's senio~ty under the language of subsection 3.20 1 of the 1992-93 col- lective agreement are those hours worked as a seasonal employee for which the employee was paId at his or her regular, straIght-time rate, so (except during the period affected by the settlement 10 Board File 0724/90) hours worked on a holIday at a premIum rate are. not in- cluded even If those hours were part of the employee's regular sched- ule, L , ---- ~~---- i, " .' I 21- 2) penods of bereavement leave are not to be I~cluded in calculating the seniority of the affected seasonal employees under the lang\Ul.ge of ) , subsection 3 20 1 of the 1992-93 collective agreement, - " 3) the Domestic Interpreter posItion occupied by Carol Darling In 1993 is - not a posItion to which Dyanne Beauvalet was entitled to be re~lled \ that year pursuant to subsection 3 21.1 of the collective agreement, 4) the Trades Interpreter positions occupied by Denis Savage and two others in 1993 were not positions to which David Fomataro was enti- tled to be recalled that year pursuant to subsection 3.211 of the col- lective agreement, and, 5) the cleaner position occupied by Kimberley Mark in 1993 was not a position to which Hazel Prunner was entitled to be recalled that year pursuant to subsection 3.21.1 of the collective agreement. J I remain seised with all issues in these grievances which are not resolved by these findings. The grievances may be rescheduled f()r hearing at the request of either party to deal with any of the remaining issues. which the parties are not able to resolve themselves. Dated at Toronto this 28th day of April, 1995 , Owen V Gray, Vice- ~ -