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HomeMy WebLinkAbout1999-1254.Pilon et al.01-11-05 Decision ~~~ o~~o EA1PLOYES DE L4 COURONNE _QJ_L i~~~~~~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GS8#1254/99, 1409/99, 1802/99, 1803/99, 0258/00, 0448/00, 1194/00, 1291/00, 1486/00, 1537/00 Unlon#998960, 99F025, 008060, 008061,008062, 00A370, 008216, 00C131, 008408, 018042, 018043, 018044, 018054 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo re THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (PIlon et al) Gnevor - and - The Crown In RIght of Ontano (MInIstry of Commumty and SOCIal ServIces) Employer -and- AMAPCEO Intervenor BEFORE RIchard Brown Vice-Chair FOR THE GRIEVOR DavId Wnght Counsel Ryder, Wnght, BlaIr and Doyle FOR THE EMPLOYER Stephen Patterson Counsel Legal ServIces Branch Management Board Secretanat FOR THE INTERVENOR Mark Wnght Counsel Sack Goldblatt MItchell BarrIsters & Sohcltors HEARING July 4, 2000, September 25,2001 and October 15,2001 2 Each of the gnevances consohdated m tlus proceedmg contends the Mmlstry Improperly surplussed one or more employees classIfied as a Parental Support Worker (PSW) In an attempt to mmnnlze the tnne devoted to heanng eVIdence, the partIes agreed to present legal argument based upon the facts alleged by the UnIon whIch are contamed m AppendIx "A" to tlus decIsIOn My only task at tlus stage IS to detennme whether such facts would constItute przmae facle proof of a vIOlatIOn of the collectIve agreement I PSW's worked m the MinIstry's local offices TheIr pnmary functIOn was to reduce the cost of benefits paId to welfare recIpIents by recovenng mOnIes to whIch they were entItled by way of spousal support or chIld support The welfare beneficIanes wIth whom PSW's worked were sole-support parents or dIsabled persons ThIS work occurred under the auspIces of the Famzly Benefits Act (FBA) The FBA was repealed along wlth the General Welfare Act whIch had been admmlstered by mUnIclpahtIes These two pIeces of legIslatIOn were replaced by the Ontarzo Dlsabllzty Support Program Act (ODSP A), admmlstered by the Mmlstry, and the Ontarzo Works Act, admmlstered by mUnIcIpal dehvery agents Under the new legIslatIve framework, dIsabled persons rem am wIth the JunsdlctIOn of the MinIstry but sole-support parent's fall under the JunsdlctIOn of mUnIcIpal dehvery agents The mtroductIOn of a new welfare regIme dId not change the substantIve law concernmg the relatIOnslup between welfare benefits and support payments The Mmlstry reqUIres mUnIclpahtIes to employ FamIly 3 Support Workers (FSW's) who work wIth smgle parents and do the same tasks as PSW's dId. The ODSP A also provIdes for the appomtment of FSW's wltlun the Mmlstry At least some PSW's were appomted as FSW's by the MinIstry dunng the transItIOnal penod between the old and new legIslatIve regImes, but all PSW's and FSW's were surplussed when the files of sole-support parent were transferred to mUnIclpahtIes To some extent, the functIOns prevIOusly performed by PSW's are now carrIed out by people holdmg other posItIOns wltlun the Mmlstry Some of the work bemg done relates to closed cases mvolvmg sole-support parents The rest of the work bemg done concerns ongomg matters related to dIsabled persons--l e matters whIch pre-date the ODSPA Work ansmg from new matters under the ODSP A IS bemg allowed to accumulate pendmg a decIsIOn on how It wIll be perfonned. In relatIOn to all of the work currently bemg done, the set of dutIes prevIOusly perfonned by PSW' s have been dIvIded mto three parts and each part has been assIgned to a dIfferent component of the Mmlstry The three components are (1) the Legal ServIces Branch m Toronto, (2) the Ontano Works Support ServIces Arrangements (OWSAS) Office also m Toronto, and (3) local offices In tenns of the percentage of tune PSW's devoted to these dutIes, the largest component of theIr functIOns went to the Legal ServIces Branch and the smallest component remams m the local offices OPSEU alleges all famIly court work was done by PSW' s Accordmg to tlus allegatIOn, PSW's spent between 35% to 40% of theIr tune m court, excludmg tune they devoted to prepanng for court appearances All such work IS now done by lawyers who are not part of OPSEU' s bargammg UnIt 4 Employees at the OWSAS Office fall wltlun the AMAPCEO bargammg UnIt They prepare affidavIts, process assIgnments, arrange reImbursements to welfare recIpIents and confinn whether support IS owed to the government These functIOns prevIOusly were carned out by PSW's The remammg tasks formerly done by PSW's are now bemg performed by other staff m local offices Customer ServIce RepresentatIves (CSR's) are completmg fonns relatmg to assIgnments, dIrectIOns and requests for reImbursement Income Support SpecIalIsts (ISS's) are gathenng mfonnatIOn for the Legal ServIces Branch Income Support Managers (ISM's) are slgnmg assIgnments and dIrectIOns on behalf of the Mmlstry CSR's and ISS's are OPSEU members, whereas ISM's are excluded from the bargammg UnIt In tlus proceedmg, OPSEU makes no claIm to the work whIch has been transferred to mUnIcIpal delIvery agents The claIm asserted relates to work bemg done by Mmlstry staff wltlun the bargammg UnIt, work bemg performed by Mmlstry staff outsIde the bargammg UnIt, and work whIch has accumulated. OPSEU contends the number ofPSW's reqUIred to perfonn all such work should not have been surplussed. Instead, they should have been desIgnated as FSW's and allowed to contmue to perform the tasks they had done m the past The arguments advanced by counsel for OPSEU are threefold. (1) the layoff ofPSW's contravened artIcle 20 of the collectIve agreement mterpreted wIth reference to sectIOn 22(4) of the Puhlzc Servlce Act (PSA), (2) the transfer of work outsIde the bargammg UnIt contravened an ImplIed term of the collectIve agreement protectmg the work of the UnIt, and (3) allowmg work to accumulate whIle PSW's were laId off was an Improper 5 exerCIse of management nghts The detaIls of these arguments are summanzed below as are the detaIls of the opposmg arguments presented by the Mmlstry Except where mdlcated, AMAPCEO agreed wIth the posItIOn taken by the Mimstry II OPSEU contends the layoff ofPSW's contravened artIcle 20 of the 1999- 2001 collectIve agreement, mterpreted m accordance wIth s 22(4) of the PSA ArtIcle 20 regulates the manner m whIch a lay-off IS Implemented wIthout expressly saymg when employees may be laId off In tlus respect, artIcle 20 dIffers from the prevIOUS artIcle 24 whIch stated a layoff may occur for one of four reasons "shortage of work or funds or the abohtIOn of a posItIOn or other matenal change m orgamzatIOn " OPSEU submIts the omISSIOn of tlus language from the extant agreement affects no substantIve legal change because sectIOn 22(4) of the P SA contams precIsely the same 11lnltatIOns on when a layoff may occur ThIS sectIOn states A deputy mmlster may release from employment m accordance wIth the regulatIOns any pubhc servant where he or she consIders It necessary by reason of shortage of fund~ or work or the abolztzon of a posltzon or other matenal change Tn organzzatzon (emphasIs added) OPSEU submIts the layoff ofPSW's m the CIrcumstances oftlus case was Improper because none of the grounds specIfied m sectIOn 22(4) eXIsted. F or the purpose of tlus proceedmg, the Mmlstry does not dIspute OPSEU's contentIOn that a layoff under artIcle 20 IS pennltted only on one of the grounds specIfied m sectIOn 22(4) Accordmg to the Mmlstry, the layoff of PSW's was proper because It resulted from "the abohtIOn of a posItIOn or other matenal change m organIzatIOn " 6 The two decIsIOns of tlus Board offenng the greatest gUIdance about the apphcatIOn of sectIOn 22(4) to the mstant case are OPSEU (Skznner) and Mlnzstry of Industry and Tourzsm (Elhs), GSB FIle No 226/79, decIsIOn dated November 20, 1981 and OPSEU (Babb et al) and Mlnzstry of Communzty and Soczal Servlces (WIlson), GSB FIle No 1173/88, decIsIOn dated August 8, 1990 In Skznner, the gnevor was an Industnal Development Officer wIth the Mmlstry of Industry and Tounsm He had worked exclusIvely wIth the film mdustry and appears to have been the only person workmg wIth that mdustry When the Mmlstry decIded no longer to employ mdustry specIahsts, the gnevor was transferred to ItS Small Busmess Development Branch where he retamed the same classIficatIOn but dId no film work. What happened to tlus work IS described m the followmg passage from the decIsIOn ApproxImately 30% of one person's tune m the Industnal Development Branch was devoted to provldmg mdustnal promotIOn servIces for the film mdustry, and the remammg 70% of the work prevIOusly done by Mr Skmner was accounted for as follows (a) Some of It was no longer done (b) A sIgnIficant part of It has been assIgned to the Mmlstry's foreIgn office (c) Another sIgnIficant part of It IS bemg perfonned m the field offices outsIde Toronto, and (d) Some of the work IS now bemg perfonned by the AssIstant Deputy Mmlster or the Deputy Mmlster themselves (page 2) As film dutIes whIch had consumed 30% ofMr Skmner's tune were assIgned to another employee m the Industnal Development Branch, as a sIgnIficant portIOn of the gnevor's work went to the foreIgn office, as another sIgnIficant portIOn went to field offices, and as some was assumed 7 by the Deputy and AssIstant Deputy, the most likely mference IS that the total amount of film work whIch contmued to be performed by someone wltlun the pubhc serVIce amounted to most of the gnevor's prevIOUS Job Even though most of Mr Skmner's dutIes contmued to be done, the umon hmlted It'S claIm to the 30% bemg perfonned m the Industnal Development Branch after the reorgamzatIOn WhIle obJectmg to the reassIgnment oftlus work wIthout aJob postmg, the umon conceded the gnevor's old posItIOn had been abohshed Mr Skmner's reassIgnment was precIpItated by the abolztzon ofhlS old 'posltzon ' and the creatIOn of new posItIOns m the Industry Development Branch, and the employer faIled to follow the postmg reqUIrements m respect of those new posItIOns (page 5, emphasIs added) Allowmg the gnevance m Skznner, VIce-ChaIr EllIS agreed wIth the umon that the reorgamzatIOn entaIled the abohtIOn of the gnevor's old posItIOn and the creatIOn of a new one whIch management was obhged to post ThIS decIsIOn was upheld by the DIvIsIOnal Court m an unreported decIsIOn dated May 19,1983 As noted by counsel for OPSEU m tlus case, the central questIOn m Skznner was whether a new posItIOn had been created, not whether an old one had been abohshed. Nonetheless, If the reorgamzatIOn of film dutIes created a new posItIOn whIch should have been posted, lOgIC dIctates tlus rearrangement also abohshed an old posItIOn, otherwIse the number of posItIOns would have mcreased even though the total aInount of work dId not Indeed, OPSEU m Skznner Imphcltly acknowledged tlus logIcal connectIOn by submlttmg the gnevor's old posItIOn had been elllnmated by 8 the reorganIZatIOn creatIng the new posItIOn upon whIch he wanted to bId. Apparently acceptIng the unIon's argument, Mr EllIS wrote [T]he Employer, faced wIth the organIzatIOnal necessIty of e/zmznatzng all posltzons In the fonner Industry Branch and re- deploYIng staff, elected not to comply wIth a process of postIng all new posItIOns (page 6, emphasIs added) The gnevors In Babb had been employed In the ORFUS UnIt of the MInIstry of CommunIty and SOCIal ServIces, recovenng overpayments made under the FBA They receIved surplus notIces when ORFUS was slated to be closed. Two tasks prevIOusly done by these employees were to be assIgned to the MinIstry's dlstnct offices One of these tasks had occupIed the gnevors for almost an hour a day The tune they had spent dOIng the other task IS not recorded In the decIsIOn The "largest portIOn" (page 6) of the gnevors work was to be transferred to Central CollectIve ServIces (CSS) In the MInIstry of Government ServIces The most reasonable understandIng of these facts IS that the dutIes beIng transferred to CSS had occupIed the gnevors throughout a maJonty of theIr workIng hours ThIS work would be done at CSS USIng "a few greater SkIP tracIng faclhtIes and a dIfferent computer program" (page 18) than had been used at ORFUS VIce-ChaIr WIlson held tlus mInor change In procedures and technology dId not "change the posItIOns" (page 18) In dIspute He treated the decIsIOn In Skznner as saYIng a posItIOn had been abohshed In that case Based upon tlus understandIng of Skznner, whIch I VIew as correct, Mr WIlson concluded the gnevors before hun had no entItlement to the two tasks whIch were to be reassIgned to dlstnct offices In the Skznner case, the Board found that the old posltzon had been abo/zshed when a maSSIve reorganIzatIOn occurred. The Skznner decIsIOn was In my VIew correct It may be In the case of those 9 functIOns that passed down to Dlstnct Offices the posItIOns dId not rem am a unIfied collectIOn of functIOns It does not appear on tlus eVIdence that they dId. (pages 16 and 17, emphasIs added) Mr WIlson took a dIfferent VIew of the gnevors' claIm to the work bemg transferred from ORFUS to CSS whIch had consumed most of theIr tune Ruhng the mere transfer of tlus work from one organIzatIOnal UnIt to another would not defeat the gnevors' claIm to It, he wrote We also see from the Skznner decIsIOn that when posltzons are broken up, new posltzons are created and old posltzons are abo/zshed But zn our case we do not know whether the posltzons are bezng broken up or not because we do not know untIl the functIOns are placed m CSS m the MinIstry of Consumer ServIces It may ultlmately be that as the functzons arrzve zn CSS they wlll be d,5,persed or there may be fewer posItIOn left and we wIll bet a Skznner set of facts But on thIS eVIdence, It IS premature to decIde (page 18, emphasIs added) In thIS passage, Mr WIlson mdlcated the employer would be entItled to surplus the gnevors If the bundle of dutIes bemg transferred from ORFUS to CSS was spht mto pIeces, WIth only a relatIvely small pIece assIgned to each posItIOn, but not If the bundle remamed mtact as a smgle assIgnment If the bundle of dutIes remamed mtact, the gnevors would be entItled to follow It to CSS The pnnclples estabhshed m these two cases provIde some gUIdance m evaluatmg the arguments advanced m the case at hand. At thIS stage, I restnct my analysIs to the Issue of whether the posItIOns of PSW' s have been abohshed wlthm the meanmg of sectIOn 22(4) Only If the employer falls on thIS front wIll there be any need to consIder the cntenon of "other matenal change m organIZatIOn", a cntenon whIch IS more dIfficult to fathom Accordmg to the employer, the gnevors' posItIOns were abohshed when the dutIes formerly done by them were dIvIded among other 10 employees Counsel for OPSEU contended these posItIOns have not been abohshed, because all of the functIOns of PSW' s contInue to be perfonned wltlun the pubhc servIce ThIS contentIOn IS not supported by the decIsIOns revIewed above The decIsIOns In Skznner and Babb demonstrate In some CIrcumstances a posItIOn can be abohshed even though ItS functIOns are shared between two or more organIZatIOn UnIts and contInue to be performed. In Skznner, the Board concluded the gnevor's old posItIOn had been elllnInated, despIte most of Ius dutIes beIng shared among several components of Ius mInIstry LikewIse, the Board zn Babb IndIcated the gnevors' posItIOns would be elllnInated If theIr bundle of dutIes were broken up upon transfer from ORFUS to CSS, despIte the fact that all of theIr work remaIned wltlun the bargaInIng UnIt In short, these cases IndIcate that the pubhc servIce ceasIng to perfonn the contested work was not a necessary condItIOn for the gnevors beIng laId off In accordance wIth s 22(4) ThIS conclusIOn IS entIrely consIstent WIth the general pnnclples wIdely apphed by arbItrators OPSEU contended PSW's are entItled to claIm all of theIr fonner dutIes because they are stIll beIng perfonned somewhere In the pubhc servIce If tlus contentIOn IS correct, the employer would be precluded from reorganIZIng ItS operatIOns by dIVIdIng tlus set of dutIes among three of ItS components There IS a large body of arbItral case law holdIng management retaInS the nght to make tlus sort of change, actIng In good faIth, unless such reorganIZatIOn IS clearly prohibIted by the collectIve agreement or the general law The case law IS summanzed by Brown and Beatty In Canadzan Labour Arbltratzon [M]anagement may also perceIve a need to reorganIze the procedures and methods of perfonnIng work wltlun the bargaInIng UnIt As a general presumptIOn, arbItrators have taken the VIew that where the 11 reorganIZatIOn IS not contrary to the general law , where It IS done m good faIth, and where It does not contravene clear prohlbltzons zn the agreement, management IS free to reorganIze the work procedures and methods wltlun the bargammg UnIt as It reqUIres And tlus IS so whether the assIgnment of work IS wltlun a Job classIficatIOn or crosses classIficatIOn or departmental hnes Moreover, tlus presumptIOn wIll prevaIl regardless of whether the reorganIZatIOn takes the fonn of creatmg new classIficatIOns, dlscontmumg old classIficatIOns, or sphttmg and reorganIzmg classIficatIOns and departments However, many provlszons of the collectlve agreement, whzle not prohlbltzng reorganzzatzon as such, wlll bear upon and affect the changes made Agam, m these cIrcumstances, the prOVISIOns relatmg to transfer, lay-off and recall and Job postmg may come mto play As well, reorganIZatIOn may be constramed by the wage structure Taken together, these prOVlszons may fetter management's abllzty to effect such changes by reqUlrzng that a certazn wage rate be pazd or certazn procedures be followed Thus, whIle m the former mstance an employee mIght claIm that he IS entItled to be reclassIfied or paId a hIgher wage, m the latter CIrcumstance the gnevance usually states that the employer's conduct created a vacancy or otherwIse brought the senIonty prOVISIOns mto play, reqUInng the employer to assIgn the Job m questIOn to the gnevor (5 2000, emphasIs added) In short, absent a clear prohibItIOn agamst reorganIzatIOn, arbItrators have held an employer may reorganIze ItS operatIOn, so long the reorganIZatIOn IS carned out m accordance wIth senIonty nghts and procedural reqUIrements ansmg from the collectIve agreement How do the pnnclples revIewed by Brown and Beatty apply to the case at hand? There IS no allegatIOn the Mmlstry acted m bad faIth when Implementmg the reorganIZatIOn Concedmg thIS change would been proper IfPSW's had not been surplussed as a result, OPSEU submItted the layoff contravened sectIOn 22(4) Even If "abohtIOn of a posItIOn" were the only ground upon whIch the employer sought to JustIfy the layoff, sectIOn 22(4) 12 would not preclude a reorganIZatIOn cuhnmatmg m employees bemg laId off The employer's contentIOn that tlus sort of organIzatIOnal change entaIls "the abohtIOn a of posItIOn" IS based upon an mterpretatIOn of these words whIch IS at least as reasonable as the constructIOn underlymg the unIon's opposmg submIssIOn For tlus reason, I conclude the collectIve agreement does not clearly prohibIt the threefold dIvIsIOn ofPSW functIOns, notwlthstandmg the resultmg layoff As submItted by AMAPCEO, tlus sort of change has "all of the hallmarks of bemg a tYPIcal exerCIse of management nghts " The next questIOn to be addressed IS whether the gnevor's were entItled to follow part of theIr work wltlun the new organIzatIOnal structure The decIsIOns m Skznner and Babb mdlcate a relevant factor m makmg tlus detennmatIOn IS the SIze of each of the parts mto whIch the full set of PSW dutIes have been spht In Skznner, most of the gnevor's functIOns contmued to be perfonned but were dIvIded among four components of Ius mmlstry The largest part appears to have been those dutIes whIch had consumed 30% of Ius tune and were reassIgned to the Industnal Development Branch The decIsIOn m Skznner demonstrates that an employee's posItIOn IS abohshed when ItS dutIes are dIstributed among others and no one receIves more than 30% of them The facts m Skznner stand m stark contrast to one of the scenanos addressed by the Board m Babb The functIOns to whIch the Babb gnevors had devoted most of theIr tune were to be transferred from ORFUS to CSS, but no decIsIOn had been made yet as to how these functIOns would be dlstnbuted wltlun the CSS workforce Addressmg the possibIlIty that tlus bundle of dutIes would rem am mtact after the transfer, the Board held m tlus scenano the gnevors' posItIOns would contmue to eXIst ThIS conclusIOn dId 13 not mean they would be entItled to reclaIm all of theIr fonner work Rather, the Board mdlcated they would be entItled to claIm the largest portIOn of theIr dutIes at CSS Beanng m mmd the decIsIOns m Skznner and Babb, I conclude an assIgnment compnsed of dutIes to whIch an employee devoted less than 50% of her tune IS one to whIch she has no entItlement Below the threshold of 50%, the dIfference between the new assIgnment and the employee's fonner Job outweIghs the sunIlanty, and the extent of the dIfference mdlcates the old posItIOn has been abohshed and a new one created. SImple mathematIcs dIctates the 50% threshold cannot be surpassed by more than one of the three parts mto whIch the dutIes of PSW' s have been dIvIded. The famIly court work assIgned to the Legal ServIces branch IS the only one whIch mIght exceed tlus threshold, because It IS stated to be the largest of the three OPSEU contends PSW's were m court 35% to 40% of the tune and spent addItIOnal tune prepanng for court appearances As the tune consumed by preparatIOn was not estImated, the total tune allegedly devoted to court work could be more than 50% or less Havmg saId that less than 50% IS not enough to found a gnevance, I do not mean to suggest 51 % IS necessanly enough The hne falls somewhere m the range between 50% and 100% In the absence of any allegatIOn that famIly court work falls m that zone, I ref ram from offenng a more preCIse ruhng at tlus stage The percentage of tune PSW's devoted to famIly court work IS not the only factor beanng upon the vahdlty of theIr claIm to tlus work under sectIOn 22(4) Based upon the premIse that the legal work formerly done by PSW's was the most demandmg part of theIr posItIOn, m tenns of skIll and 14 responslblhty, employer counsel submItted a posItIOn compnsed exclusIvely of legal work would be quahtatIvely dIfferent than the one they held Any substantIal quahtatIve dIfference m dutIes of the sort alleged would be relevant m detennmmg whether the posItIOns held by PSW's contmued to eXIst However, the decIsIOn m Babb shows that a mmor change m procedure or technology IS not relevant As acknowledged by all concerned, another relevant factor would be any overlap m the functIOns ofPSW's and mmlstry lawyers before the reorgamzatIOn Notmg some PSW's worked m local offices outsIde Toronto, whereas the Legal ServIces Branch IS based m that CIty, employer counsel submItted locatIOn also IS a relevant factor I was referred to OPSEU and Mlnzstry of Health (Kennedy), GSB FIle No 665/81 where the employer planned to move the head office of the Ontano HospItal Insurance Plan from Toronto to Kmgston Most of the employees affected wIshed to remam m Toronto The Mmlstry announced ItS mtentIOn to treat anyone who refused aJob m Kmgston as havmg abandoned theIr posItIOns Contendmg the sItuatIOn of these employees would constItute a layoff, OPSEU argued that the relocatIOn of the head office "wIll result not m a transfer of posItIOns but m theIr abohtIOn and m the creatIOn of new posItIOns m Kmgston" (page 4) The Board agreed because of the dIstance between Toronto and Kmgston As the collectIve agreement under whIch the Mlnzstry of Health case was decIded had no prOVISIOn analogous to AppendIx 13 of the current agreement, entItled "RelocatIOn of an OperatIOn Beyond a 40 KIlometre Radms", I reserve any ruhng on the apphcatIOn of tlus decIsIOn to the facts at hand pendmg argument on the relevance of AppendIx 13 15 What has been decIded about the apphcatIOn of sectIOn 22(4) m tlus case, and what remams to be decIded, can be bnefly summanzed I have concluded tlus sectIOn does not preclude the employer from dlvldmg the work of PSW' s among three components of the Mmlstry and does not confer upon the gnevors any entItlement to the relatIvely small part of theIr dutIes assIgned to others m local offices or to the OWSAS Office Whether sectIOn 22( 4) entItles the gnevors to follow the largest part of theIr dutIes to the Legal ServIces Office remams to be detennmed. EntItlement to tlus work depends upon whether It occupIed the gnevors more than 50% of the tune and, If so, may also depend upon the SIze of the margm by whIch the 50% threshold IS exceeded. EntItlement to tlus work may also depend upon two other factors (1) any quahtatIve dIfference between the full set of PS W dutIes and the subset transferred to the Legal ServIces Branch, and (2) any overlap m the work ofPSW and mmlstry lawyers before the reorganIZatIOn For those gnevors employed as PSW's outsIde Toronto, the apphcatIOn of the Mlnzstry of Health decIsIOn and AppendIx 13 must be consIdered. As noted above, my analysIs has been hmlted to "the abohtIOn of posItIOn" as one of the grounds for layoff under sectIOn 22(4) If the conclusIOn IS reached that the layoff of PSW' s was not permItted on tlus ground, the even more ambIguous ground of "other matenal change m organIZatIOn" remams to be consIdered. III Much of the contested work IS now bemg performed outsIde the bargammg UnIt represented by OPSEU The UnIon contends the transfer ofPSW work to the Legal ServIces Branch, the OWSAS Office, and managers m local 16 offices contravened an Imphed term of the collectIve agreement whIch protects the work of the bargammg umt Counsel for OPSEU rehes upon two decIsIOns Irwzn Toy Llmlted and Unzted Steelworkers of Amerzca (1982),6 L.A.C (3rd) 328 (Burkett), and North West Company Inc and Retazl, Wholesale & Department Store Unwn (1996),57 L.A.C (4th) 158 In both of these cases, the umon objected to a supervIsor performmg work of the bargammg umt In Irwzn Toy, a number of foremen performed the sort of work done by employees represented by the umon Mr Burkett mterpreted the collectIve agreement as contammg an Imphed term protectmg the work of the bargammg umt He wrote We start by observmg the absence of an express restnctIOn upon the assIgnment of bargammg umt work IS not dIsposItIve The language of most collectIve agreements whIch sets out the classIficatIOns covered by the agreement, creates semonty and recall nghts and estabhshes Job postmg procedures, gIves nse to an Imphed restnctIOn upon a company's nght to assIgn bargammg umt work to superVIsors ThIS Imphed restnctIOn has been umversally recogmzed by arbItrators The recogmtIOn of thIS Imphed restnctIOn forms a part of the arbItral backdrop agamst whIch collectIve agreements are negotIated and agamst whIch they must be mterpreted. (pages 333 and 334) ThIS passage speaks only of supervIsors but It IS ImmedIately followed by a quotatIOn from an unreported award by the same arbItrator, Becker Mzlk Co and Teamsters, decIsIOn dated August 7, 1980, mdlcatmg the same legal framework apphes more expansIvely to "non-bargammg umt employees, mcludmg supervIsors" Turnmg to the questIOn of how much bargammg umt work a supervIsor may perform wIthout contravenmg the collectIve agreement, ArbItrator Burkett wrote 17 When reference IS had to the basIs of the Imphed restnctIOn upon management's nght to assIgn bargaInIng UnIt work to supervIsors we are of the VIew that the amount of bargaInIng UnIt work assIgned to a supervIsor necessary to tngger the Imphed restnctIOn must be very close to, If not, an amount whIch would occupy a bargaInIng UnIt employee for a full shIft on an ongoIng basIs The Imphed restnctIOn flows from the clauses In the collectIve agreement deahng wIth senIonty, Job postIng and lay-off and recall These clauses gIve nse to nghts In connectIOn wIth Job bIddIng, bumpIng and recall In respect of certaIn Jobs or Job vacanCIes These nghts, however, can only be exercIsed In respect of Jobs whIch would occupy a bargaInIng UnIt employee for most If not all of a full shIft It follows that If the Imphed restnctIOn flows from a balancIng of management's nght to assIgn bargaInIng UnIt work to superVIsors and the employee's nght to claIm a Job, the amount of work In Issue must be sufficIent to tngger the exerCIse of the employee's Job bIddIng, bumpIng or recall nghts (page 335) Mr Burkett then consIdered the apphcatIOn of tlus standard to the facts before hun The eVIdence dIscloses therefore that [a total of] from four to five hours of tow-motor work IS beIng done on the day ShIft by three non- bargaInIng UnIt employees Can an employer aVOId the obhgatIOn to recall an employee on lay-off by assIgnIng the tasks nonnally performed by that employee among a number of supervIsors? As far as I am aware, the Issue has not been dealt wIth In any of the reported cases and the answer IS by no means clear If we start from the Imphed restnctIOn upon an employer's nght to assIgn bargaInIng UnIt work to a foreman or supervIsor, It IS dIfficult to ratIOnahze how It mIght be that an employer IS restncted from assIgnIng a full bargaInIng UnIt Job to one supervIsor but IS permItted to spread the work of a bargaInIng UnIt Job among a number of supervIsors However, Ifwe start by recognIZIng the nght of management, unless expressly restncted, to organIze the work place, IncludIng the nght to spread the dutIes of a classIficatIOn among a number of other classIficatIOns It IS equally dIfficult to ratIOnahze how It mIght be that management IS prevented, for busIness 18 reasons, from spreadmg the work of a classIficatIOn among a number of superVIsors I do not have to decIde the Issue m tlus case where, on the eVIdence, the amount of tow-motor work whIch IS bemg done by supervIsors IS about one-half a ShIft or slIghtly m excess of one-half a ShIft and where there IS no eVIdence to suggest that tow-motor operators, when used by the company, are actIvely engaged for other than the full eIght-hour ShIft In CIrcumstances where there eXIsts about one-half of a tow-motor operator's Job, the recall nghts of bargammg umt employees on lay-off are not tnggered as would reqUIre a board of arbItratIOn to balance the nght of the company to assIgn work as It sees fit and the nght of employee on lay-off to recall when work IS aVaIlable There IS no oblIgatIOn upon the company to recall a tow-motor operator who would be Idle for three or four hours per ShIft (pages 336 and 337) In North West Co , ArbItrator Freedman ruled the employer had contravened the agreement by allowmg the store manager to do bargammg umt work five or SIX hours a day He also held the collectIve agreement contamed an ImplIed term nnposmg restnctIOns on the assIgnment of such work to "non-umt members" (page 168) Notmg these two awards mvolved a foreman or manager, counsel for the employer contended they have no applIcatIOn to non-umt employees who are not managenal ThIS contentIOn IS dIsputed by the umon and IS not endorsed by counsel for AMAPCEO It flIes m the face of a large body of arbItral precedent summanzed by Brown and Beatty m Canadzan Labour Arbltratzon Havmg dIscussed the ImplIed restnctIOn on the performance of bargammg umt work by supervIsors, these authors noted a snndar restnctIOn applIes to other employees outsIde the umt ArbItrators have followed a snndar approach wIth respect to employees other than supervIsory personnel who are excluded from the collectIve agreement (5 1400) 19 Based upon the numerous awards cIted by Brown and Beatty, I have no hesItatIOn m concludmg the collectIve agreement at hand contams an 1mphed restnctIOn on the performance of bargammg UnIt work by all employees outsIde the bargammg UnIt, regardless of whether they have managenal responsib1htIes The detennmatIOn of whether tlus restnctIOn has been vIOlated m the case at hand must aWaIt further factual stIpulatIOns or eVIdence and further argument At least some of the factors to be consIdered when deahng wIth managers are addressed m Irwzn Toy and North West Co Brown and Beatty have summanzed the factors consIdered by arbItrators when deahng wIth other excluded employees Thus, generally employmg a quantItatIve analysIs, where the work IS necessanly mC1dental, or where the work assIgned was no more than 15 to 20% of the [non-unIt] employee's dutIes, It was held not to be sufficIent to bnng the assIgnee mto the bargammg UnIt SImIlarly, where there IS an overlap between the dutIes performed by two dIfferent bargammg UnIts, It would be more dIfficult to demonstrate that a reorganIZatIOn resultmg m a ShIft of some work from one bargammg UnIt to another vIOlated the collectIve agreement? Conversely, If the assIgned dutIes represented a substantIal amount or greater proportIOn of [the non-UnIt employee's] work, or took up one- thIrd of the employee's workmg hours, m excess of 50%, or 90% of the employee's tnne, the OpposIte conclusIOn was reached. However, m these cIrcumstances, arbItrators have also had regard to the quahty and the nature of the work, as well as to the quantIty assIgned, m assessmg the Impact of the assIgnment upon the bargammg UnIt For example, where the quantIty of work perfonned was small and reqUIred a lesser skIll content, an assIgnment from a mamtenance UnIt to a productIOn bargammg UnIt was held not to be contrary to the collectIve agreement Indeed, one arbItrator has suggested that the quahty or skIll content of the work ought to be the sole cntenon m detennmmg whether or not the assIgnment brought the employee mto the UnIt (5 1400) 20 In short, the relevant factors mclude the quantIty of work m dIspute, the quahty of that work and whether the dutIes regularly assIgned to members of the bargammg umt overlap the regular dutIes of the other employees concerned. IV There remams to be consIdered work whIch has accumulated smce the gnevors were laId off OPSEU and the employer have Jomed Issue as to whether the decIsIOn to backlog tlus work was a proper exerCIse of management nghts AMAPCEO takes no posItIOn on tlus matter In OPSEU (Boulet) and Mlnzstry ofCommunzty and Soczal Servlces, GSB FIle No 1189/99, decIsIOn dated August 8, 2000, I consIdered the scope of arbItral reVIew of management decIsIOns Employer counsel rehes upon the followmg passage from Unzted Parcel Servlce and Teamsters Unzon (1981), 29 L.A.C (2d) 202 (Burkett) In our VIew the employer '51 declszon makzng should be assessed agaznst the requlrement to act for buszness reasons and the reqUlrement not to szngle out any employee or group of employees for speczal treatment whlch cannot be Justified zn terms of real benefit to the employer When the partIes agree that such matters as classIficatIOn, quahficatIOn, demotIOn, transfers and the scheduhng of vacatIOns are to be m the dIscretIOn of management, they do so m the knowledge that management's decIsIOns m these areas wIll be made m management's self-mterest, may adversely affect md1v1dual employees, and/or may not Impact on all employees equally However, It IS not contemplated as part of the bargam that the employer wIll exerCIse Ius authonty m these areas for reasons unrelated to the bettennent of Ius busmess or to smgle out employees for the type of specIal treatment described. If the 21 employer acts m tlus manner, the results of Ius actIOns, as they affect the bargammg umt generally or md1v1duals w1tlun the bargammg umt, may be found to be beyond the scope of Ius authonty under the collectIve agreement (page 213, emphasIs added) In my VIew, the approach outhned by ArbItrator Burkett m Unzted Parcel Servlces IS not dIfferent m substance from the one followed by tlus Board m two decIsIOns cIted by counsel for the umon (1) OPSEU and Mlnzstry of Natural Resources (Bousquet), FIle No 51/90, dated March 1, 1991 (Gorsky), and (2) OPSEU and Mlnzstry of Government Servlces (McIntosh), FIle No 3027/92, dated December 15,1993 (D1ssanayake) In McIntosh, Mr D1ssanayake cIted wIth approval two passages from the Board's very lengthy and unammous decIsIOn m Bousquet The first passage reads as follows Thus the slgmficant fact reqUIred to place a lun1tatIOn on the unfettered exerCIse of a management nght IS the eXIstence of a prOVISIOn m the collectIve agreement whIch would eIther be negated or unduly hm1ted by the partIcular apphcatIOn of such a nght As noted above, If It could be demonstrated that the Employer had d1scnmmated agamst the Gnevor m denymg hun trammg and development opportumtIes wIth a VIew to undennmmg Ius advancement opportumtIes under artIcle 4, then ItS actIOns could not be saId to have been carned out m good faIth, for genuzne government purposes There IS notlung m the collectIve agreement that reqUIres the employer to consIder the advancement opportumtIes of employees However, It cannot use ItS management nghts to under s 18(1) of the Act m a way whIch would amount to a deliberate attempt to mterfere wIth an employee's nght to compete for a promotIOn The employer cannot deliberately tIlt the field wIth a VIew to prefernng one employee over another However, where m good faIth and for genume government purposes an employee IS demed a trammg or development opportumty, where the demal1s not founded upon a deliberate attempt to undennme the employee's opportumtIes for promotIOn, the 22 deCISIOn wIll not be mterfered wIth (pages 35 and 36, emphasIs added) The second passage from Bousquet states All of the cases emphasIze that m cases mvolvmg the exerCIse of managenal dIscretIOn, the Board wIll hesItate to substItute ItS VIew for that of the employer so long as certam mmllnum tests are met These mclude the reqUIrement that the declszon be a genuzne one related to the management of the undertakzng and not a dIsgUIsed means of aclllevmg llnpenn1ssible ends based on d1scnmmatIOn or other grounds unrelated to the makmg of genume management decIsIOns. The facts consldered zn makzng the declszon must be relevant to legltlmate government purposes Also, m makmg ItS deCIsIOn management, provIded It has acted m good faIth, as above descnbed, need not be correct (pages 63 and 64, emphasIs added) How does the ruhng m Bousquet apply to the facts at hand? As noted by counsel for the UllIon, If the employer has vIOlated the collectIve agreement by faIhng to post Jobs, the gnevors' nghts under artIcle 6 are affected m the sense that they would not have lost theIr employment If such Jobs had been posted and awarded to them Usmg the language of Bousquet, I conclude management's determmatIOn of ODSP workloads would be open to challenge If It was not "genume" m the sense that It was not "related to the management of the undertakmg" The standard to be apphed IS not whether the decIsIOn was "correct", but rather whether It was made on grounds "relevant to legItImate government purposes" In other words, what matters IS the nature of the reasons underlymg the decIsIOn and not whether those reasons are of sufficIent weIght to make the decIsIOn appear sound m the eyes of an adjudIcator The sufficIency of the reasons IS for the employer to determme (pages 10 to 12) Accordmg to Boulet, an Improper exercIse of management nghts IS compnsed of two elements (1) actIOn not m pursUIt of a legItImate 23 government obJectIve, and (2) a curtaIlment of nghts under the collectIve agreement resultmg from such Improper actIOn As to the first element, OPSEU alleged the mOnIes recovered by PSW's on behalf of the MinIstry exceeded the cost of employmg them Based upon tlus factual assertIOn, counsel for OPSEU submItted the decIsIOn to allow work to accumulate undennmes the accomphshment of the government objectIve of conservmg pubhc funds If the facts alleged are true, the UnIon would have presented a przma facle case that the MinIstry dId not act m pursUIt of a legItImate objectIve The employer would then be called upon to explam ItS conduct As to the second element of the Boulet standard, the gnevors wIll meet It only If theIr nghts under the collectIve agreement have been negated or hm1ted by the Impugned management conduct If the employer has backlogged work for an IllegItImate purpose, the gnevors' enjoyment of nghts under the collectIve agreement would not be adversely affected unless they would have contmued as PSW's but for the pursUIt of an Improper objectIve In other words, dec1dmg whether the gnevors' nghts have been curtaIled reqUIres a detennmatIOn of whether the collectIve agreement permItted the employer to assIgn the contested work eIther to other employees or to people outsIde the pubhc serVIce rather than to PSW's 24 Dated at Toronto, tlus 5th day of November, 2001 RIchard M. Brown, VIce-ChaIr 25 APPENDIX A ~ ~~ ':=. 0 If8IIII ~m:mrl" _ , " .. '.o,:~ - 11I&III"NBff., ,'1::;.:", '~~ 1> - " ',.. '-.' ,0 , m-.-Jt''illii ~ IlWiQftlJ\ ~ 1::..1Jo ,. ~ -...~ .. ":""-.. l~. i , .1:,.l:jD~ WJ~.~'~.Jl:li~~ 1JIIf1.... Lo o , ~ ., 1lIIerUh1__~\IltI' Ii! ~lj_fatlJd:4Pa'f_ ...,. ~ ~.--,_.,-~ L _'....,. ,," O=<'_'o~_ ,,. -. ~-~~.~ ~ ,..!~.. " '.,;,' ;.... , . ~. . _. - ~. : ~ .:..~. ,":,. .~ ~ ~"J .~ ~ _.>. '. ._ -~~ ~.....~. .'.'~i..'~.~... ". ,..~ ... =. ~.."~"......,.: V'~'~ · Ir~I_..tI.171.J_""4II.. '1_ _1ItI . .1. _ .. __ ... . ... . __ ... .' __ ~ .,.. ~ .., ......_ . ,. ... .. ..' ..,,_.......... -,'..,M , ..~ "'i~:,. _ ': "'. :'-' ...'.',,^-".,,~ . -".'" lIIAIJIM MJBf~'I'''~~''~,emI __JIfJM'I_i & ~. ~...-": , -~ _.. l .~ ' "L- ';" ..~ "" ," is: ~~__- ~ . 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