HomeMy WebLinkAbout2018-0110.Union.19-09-25 DecisionCrown Employees
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GSB# 2018-0110
UNION# 2018-0603-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Alex Zamfir
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Omar Shahab
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 12, 2019
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DECISION
[1] The Board is seized with a policy grievance dated March 8, 2018. It reads:
1. The Union grieves that the Employer violated, and continues to violate,
Collective Agreement Articles 2 (“Management Rights”), 20
(“Employment Stability”), and 32 (“Seasonal Employees”) and any other
relevant articles and legislation by failing to recall the BIO2 seasonal
position in December 2017 (and thereafter) and by redistributing the
work, within the same work unit, to four (4) BIO1s, at a lower pay rate.
[2] At the commencement of the hearing employer counsel raised two preliminary
motions: first that the union’s particulars to not make out a prima facie case for the
alleged violations of the collective agreement, and second that the grievance was
untimely. (hereinafter “no prima facie case motion”). Following discussion, the
parties agreed to proceed only with the first motion, and to hold the timeliness
motion in abeyance for the time being.
[3] The union’s particulars are as follows:
1. The Ministry of Natural Resources and Forestry (hereafter, “the Employer”)
has traditionally employed, since at least 2009, six (6) seasonal employees
in the Ontario Forest Research and Monitoring Section located in Sault Ste.
Marie.
2. One of the seasonal employees, the BIO2 “Far North Specialist” is attached to
the Forest Soil and Water Research Program is typically recalled to work under
Article 32.5 of the Collective Agreement in or around December of a given
year.
a. The typical seasonal duration is approximately 40-42 weeks, and lasts
from December of a given year to September of the following year.
3. In November 2017, the Employer failed to recall Benoit Hamel, a seasonal BIO2
“Far North Specialist” under Article 32.5 on December 4, 2017.
4. Simultaneously, the Employer had employed four (4) individuals in the position
of Biologist 1 (“BIO1”) also attached to the Forest Soil and Water Research
Program at the Ontario Forest Research and Monitoring Section located in Sault
Ste. Marie, as Fixed-Term Employees.
5. The Employer redistributed the work traditionally performed by Benoit Hamel to
the four BIO1 positions.
6. The Employer sent Benoit Hamel a Seasonal Recall Offer of Employment in
January 2018.
7. Mr. Benoit accepted the Seasonal Recall Offer of Employment.
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8. Subsequently, the Employer provided notice to the Union on March 26, 2018, that
the Employer would be eliminating the Seasonal BIO2 position most recently held
by Benoit Hamel.
9. Past practice has been to move seasonal employees to other programs, and treat
all seasonal employees the same in terms of contract length. While some
seasonal employees have resigned from the workplace in the last ten years, no
seasonal employee has been laid off.
10. Simultaneously, the Em ployer had continued to employ the Fixed-Term BIO1
employees and students, who performed the same work traditionally performed
by Benoit Hamel in his position of a Seasonal BIO2.
a. These Fixed-Term BIOIs were junior to Mr. Benoit Hamel.
Employer Submissions
[4] Counsel submitted that while the employer would be disputing many of the facts
asserted in the union’s particulars, for purposes of this motion the Board may
assume the facts asserted to be true.
[5] I note that counsel made submissions relating to the violation of article 20 alleged
in the grievance. Those need not be considered because the union advised that
it was no longer relying on article 20.
[6] Employer counsel made two alternate submissions in support of the motion. First,
it was argued that the union’s grievance would require the Board to compare and
assess the work Mr. Hamel would have performed as a Biologist 2 had he been
recalled in December 2017, and then determine whether the work performed by
lower rated Biologist 1 employees was Biologist 2 work which Mr. Hamel would
have performed. The Board would be required in effect to determine whether or
not employees in one job classification were performing duties of a higher
classification. The union is in effect alleging that the employer assigned Biologist
2 work to Biologist 1s. This, submitted counsel, is in substance a classification
grievance over which the Board has no jurisdiction as a result of s. 52(1) of the
Crown Employees Collective Bargaining Act. Counsel submitted that the Board
should find the grievance to be inarbitrable and dismiss it.
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[7] Counsel pointed out that the union has not asserted bad faith and submitted in
the alternative that the union is not entitled to allege a “free standing” violation of
article 2 (management rights) in the absence of an allegation that the employer’s
exercise of management rights resulted in a violation of a substantive right under
the collective agreement. I need not consider these submissions either because
the union agreed with the above legal principles. Union counsel clarified that the
union was asserting that the employer, by exercising its management right to
organize the workplace and assign work as it did, contravened article 32.5.1.1. of
the collective agreement.
[8] Employer counsel reviewed article 32 and submitted that there is nothing in that
provision that requires the employer to recall seasonal employees on any
particular date or time of year. Nor does it stipulate that “a season” for recall
purposes must be for a particular duration. Counsel submitted that, in the
absence of bad faith the employer is entitled in any event to redistribute the work
Mr. Hamel had performed in the past seasons to Biologist 1s, because there is no
restriction of that management right in the collective agreement. The Board is not
entitled to review that exercise for reasonableness or fairness.
[9] Counsel submitted that where the parties intended to place time restrictions on
the employer’s exercise of management rights, they have set those out explicitly.
He pointed out that article 32.2.1 specifies that “a seasonal employee is an
employee appointed for a period of at least eight (8) consecutive weeks …”and
article 32.3.1 states that the probationary period for a seasonal employee “shall
be two (2) full periods of seasonal employment of at least eight (8) consecutive
weeks each”. If the parties intended that recall of seasonal employees must
happen at a particular time or for a particular duration, they would have negotiated
language to that effect. In the absence of any time or duration restriction in the
collective agreement, the employer was entitled to recall Mr. Hamel for a shorter
seasonal work period as it did.
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[10] Counsel also noted that the union has not raised an estoppel argument.
Therefore, the fact that Mr. Hamel had been recalled in the month of December
in the past year did not obligate the employer to continue to do so for the 2017-18
season.
Union submissions
[11] Union counsel noted that this is a union policy grievance alleging that the
employer’s purported exercise of its management right to organize work violated
or abridged rights under article 32.5.1.1. There should be no doubt that the union
is entitled to grieve an alleged violation of a substantive right under the collective
agreement.
[12] Counsel submitted that article 32.5 is about seniority, job security and the integrity
of the bargaining unit. It allows seasonal employees continuity of employment by
exercising their seniority. The allegation is that this right has been denied by the
employer’s decision to assign work Mr. Hamel would have done to employees
who occupied lower classified positions, and had less seniority than Mr. Hamel.
The union is not asking the Board to analyse whether the duties in the positions
of Biologist 1 and Biologist 2 are the same. Nor is it seeking the alteration of the
classification of any position. The core issue raised by the grievance is the
employer’s failure to recall a senior seasonal employee as required by article 32.5,
to the same work he had traditionally performed in the past. Therefore the
grievance is not a disguised classification grievance and not barred by the Crown
Employees Collective Bargaining Act.
[13] Counsel pointed out that the employer has agreed that for the purposes of this
motion the Board may assume that the work in question was seasonal work, and
that if the employer had not decided to redistribute the work in question to the
Biologist 1s, Mr. Hamel would have performed that work. Therefore, but for the
employer’s decision, Mr. Hamel would have been recalled to perform that work.
He submitted that the availability of that seasonal work means that the position
existed and therefore, Mr. Hamel, as the more senior employee, was entitled to
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be recalled to that position. For the past six seasons he had worked in “the same
position” within the meaning of article 32.5.1.1. The “same position” was
available, and Mr. Hamel was entitled under article 32.5.1.1 to be offered the
position, “in the following season on the basis of seniority”. Citing case law, he
submitted that whether the work performed by the Biologists 1 was the “position”
Mr. Hamel had occupied in the past years is not dependent on any label or title
attached to the work by the employer. It depends on whether the work was the
same as the work Mr. Hamel had performed in the previous season. To be the
same work, the duties need not be identical as in prior year. Minor differences do
not matter as long as the work is substantially the same.
[14] Union counsel submitted that to defend against the no prima-facie case motion,
the union does not have to prove the alleged violation on a balance of
probabilities. The bar is placed lower than in a hearing on the merits of the
grievance. It must only satisfy the Board that the particulars are capable of
establishing a violation, if proved on a balance of probabilities. Particularly
considering that the instant grievance is about seniority, one of the most important
rights employees have under a collective agreement, the Board should dismiss
the motion, and make its decision after all of the evidence is heard.
[15] In reply, employer counsel reiterated that the undisputable fact is that there is
nothing in the collective agreement that requires that the season to which an
employee is recalled must be of the same duration as in prior years. The duration
of a season may differ year to year depending on operational requirements.
Counsel submitted that the union has not pointed to any arbitral authority to
support a proposition that an employer, in the exercise of its management right,
is not entitled to take work away from one employee and distribute it to others,
provided it is not done in bad faith. Counsel pointed out that all of the work the
grievor would have performed was not given to another employee. It was broken
up and distributed among four other employees. Once the work was broken up,
a position no longer existed to which Mr. Hamel could claim recall rights.
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DECISION
[16] I note that while employer counsel advised that he would only be proceeding with
the no prima-facie case motion, and purported to present two alternate arguments
in support of that motion, in reality he argued two very distinct preliminary motions.
The first, that the grievance was in effect a classification grievance, and that the
Board lacked jurisdiction over it. His alternate submission was distinct, claiming
that the union’s particulars do not disclose a prima-facie case, and should
therefore be dismissed. I deal with the two motions separately. Both counsel
submitted numerous authorities. However, I will not refer to all of them since the
legal principles are not in dispute. Each case has been determined on the
application of the legal principles to the particular facts.
[17] Is the grievance a classification grievance?
I repeat and adopt what the Board wrote at p. 10 of the decision in Re Dobroff et
al, 2003-0905 etc. (Dissanayake):
In all of the cases cited to me where the Board had declined jurisdiction on
the grounds that the grievances were in substance classification grievances,
the Board found that it had to, in order to dispose of the grievances,
determine whether or not the grievors’ positions were properly classified
considering the work they were performing. In Re Aitken, 678/87 (Gorsky)
“classification grievances” were said to be “grievances that can only be
decided if the Board must first render a decision with respect to the proper
classification of a grievor at some point in time”. In the cases where the
Board declined jurisdiction the Board found that to be the case.
[18] The union made it clear that its allegation is that in the purported exercise of its
management right to organize work, the employer violated article 32.5.1.1.
Employer counsel referred to a number of authorities for the proposition that in
the absence of bad faith, employers have a broad discretion to reorganize and re-
distribute work. He pointed out that the union has not presented any authority to
contradict those cases. I agree that article 2 confers on the employer the right, to
“determine organization, staffing levels, work methods” among other rights.
However, specific rights negotiated in the collective agreement must prevail over
that general statement of management rights. Quite apart from that basic rule of
interpretation, in the instant collective agreement, article 2 itself explicitly provides
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that those rights “are subject only to the provisions of this central collective
agreement …” Therefore, if employer action or inaction is contrary to any
provision of the collective agreement, - in this case article 32.5.1.1 – it would not
be an exercise of management rights protected by article 2.
[19] Article 32.5.1.1 reads:
Season employees who have completed their probationary period shall only
be offered employment in the same position in the following season on the
basis of seniority.
Article 32.5.1.2 provides that “If the same position is no longer available, the
Employer may offer the employee another position within forty (4) kilometres”. It
is agreed that Mr. Hamel had completed his probationary period and had more
seniority than the four employees who performed the work. Therefore, to
establish a violation of article 32.5.1.1, the union would have to satisfy the Board
that “the same position” existed at the relevant time. If it did, the employer would
have been required to offer that position to Mr. Hamel who had more seniority.
[20] Therefore, the question is whether the Board would be required to analyse and
compare the duties and responsibilities of Biologist 1 and Biologist 2 positions. I
have no hesitation in finding that the Board does not have to engage in any such
exercise to determine the merits of the instant policy grievance. In my view, the
classification of the four employees is not in any way material to the disposition of
the grievance. It would have made no difference if the four employees who
performed the work were also Biologist 2s. Since they had less seniority than Mr.
Hamel, if the “same position” existed within the meaning of article 32.5.1.1, Mr.
Hamel would have been entitled to be recalled to that position. Thus, I would not
be required to go through the exercise of comparing the duties and responsibilities
of two classifications. The issue is whether the “same position” which Mr. Hamel
had in the previous season existed, regardless of whether that work could be
characterized as Biologist 1 work, Biologist 2 work, or something else. The critical
issue is whether the work was the “same”, not whether the work was in the same
classification. Whether work was the same as in the previous season is a factual
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issue to be determined on the basis of evidence relating to the nature of the work
Mr. Hamel had performed in the past season as compared to the work performed
by the Biologist 1s. The classification of that work is irrelevant. Therefore, the
Employer’s objection to the Board’s jurisdiction is dismissed.
No prima-facie case Motion
[21] The parties agreed that the test that applies in motions of this type is that set out
in Re Couture et al, 2008-3329 (Dissanayake). There the Board described the
test as follows at para 6: “…a prima-facie motion would succeed if the facts
asserted in support of a grievance, if accepted as true, are not capable of
establishing the elements necessary to substantiate the violation alleged”. In light
of the analysis and findings above, the element of article 32.5.1.1 that remains in
dispute is whether the work performed by the four Biologist 1s comes within the
term “same position” in the article.
[22] Employer counsel submitted that in the absence of an estoppel, the employer was
not required to recall Mr. Hamel in December, just because he had been recalled
in December in previous seasons, and that the length of each season could vary
depending on the employer’s needs at the particular time. I agree. If operational
needs dictate that the work in the position an employee held in one season is
required only for a shorter period in the following season, the employer would not
be required by article 32.5.1.1 to recall the employee for the same duration as in
the previous season.
[23] However, I do not agree that because article 32.5.1.1 does not explicitly stipulate
a particular length of the recall, as long as the employee is recalled for any period
of time the employer is compliant with its obligation. That would be an unduly
narrow and unreasonable interpretation of the article which would deny the
seniority rights contemplated in the article. For example, the employer could recall
the senior employee for a few days, even though the work of “the same position”
is required for a longer period. This would defeat the purpose of article 32.5.1.1.
The parties would not have intended that.
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[24] Therefore, the issue is the meaning of “same position”. The parties advised that
they were unable to find any decisions interpreting that term in article 32.5.1.1.
However, they did present prior decisions of this Board considering the meaning
of the term “former position” in the predecessor article in the collective agreement
(hereinafter “the predecessor provision”). It read:
3.20.1 Seasonal employees who have completed their probationary
period shall be offered employment in their former positions in the
following season on the basis of seniority.
The parties did not argue that the change of the language from “former” to “same”
to be of significance for the present purposes. I find that to be of no significance.
Therefore, that case law remains relevant and instructive.
[25] In interpreting the term “same position” the Board must recognize that article
32.5.1.1, at least in part, is intended to give priority and a measure of job security
to senior seasonal employees. In interpreting “former position” in the predecessor
provision, the Board in Re Anderson, 471/86 (Roberts) wrote as follows at pp. 13-
14 about the importance of seniority:
There seems to be little dispute that, in general, seniority rights constitute
“one of the most important and far-reaching benefits which the trade union
movement has been able to secure for its members by virtue of the
collective bargaining procedure” Tung-Sol of Canada Ltd. (1964), 15 L.A.C.
161, 162 (Reville). In recognition of this, the Grievance Settlement Board
has adopted the view laid down by judge Reville in the foregoing case that
“an employee’s seniority should only be affected by very clear language in
the collective agreement … and … arbitrators should construe the
collective agreement with the utmost strictness whenever it is contended
that an employee’s seniority has been forfeited, truncated or abridged
under the relevant sections of the collective agreement”.
Citing prior decisions, Vice-Chair Roberts observed that these principles have
been applied by the Board in cases under article 3.20.1, the predecessor to article
32.5.1.1.
[26] With those principles in mind, I turn to the issue of whether the particulars of the
union are capable of establishing that the “same position” Mr. Hamel had
performed in the prior seasons existed at the relevant time. In Re Furniss 602/86
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(Slone) the Board was required to determine whether the grievor had completed
the probationary period by working two full periods of seasonal employment of at
least eight consecutive weeks each in the “same position” in the same ministry,
which was a pre-requisite for recall rights under the predecessor provision. In
interpreting “same position”, the Board at p. 10-11 wrote:
We do not suggest that in every case, the “position” is equivalent to a
particular job title. A title is nothing more than a title, although it provides
some evidence that the substance of another job is similar to the substance
of another job bearing the same title. In many cases there will be little doubt
as to what is a position; in other cases, it will be a factual question as to
whether or not the substance of a job and the nature of the duties are
sufficiently similar to be considered the same position.
[27] Re Kaufffeldt, 771/89 (Wilson) was also a case under the predecessor provision.
The Board referred to the above noted excerpt from Re Furniss and a number of
other decisions of the Board, and wrote at pp. 10-11:
I have carefully read the other two authorities referred to in Boden, namely
Saunders and Nielson. Saunders deals with Section 3.18 as it relates to
recall under 3.2.01. Nielsen deals with Section 3.20.2. All three cases use
a comparison of the functions of the positions in question to see if they are
the same or substantially similar. All agree with Furniss that job title and of
course position classification are not determinative.
[28] In Re Orville D. Smith 2315/87 (Dissanayake), another case under the
predecessor provision, at pp. 8-9 the Board wrote:
While we agree with the Furniss decision that the position need not be in
the same location, we would add that it is also not necessary that for article
3.20.1. to apply the duties and responsibilities in the positions be identical.
There may be numerous business and practical reasons why the duties
and responsibilities in a position may change somewhat from year to year.
If the Board adopts a test requiring identical duties, seasonal employees
may be denied their seniority and recall rights unreasonably simply
because of some minor changes in duties in the position. The reasoning
of the Board in Furniss in rejecting the “same location” requirement is
equally applicable here.
At p. 10 the Board wrote:
In determining whether a position is the grievor’s former position some
latitude must be allowed for minor differences. In our view the appropriate
test is whether or not the substance of the duties and responsibilities are
sufficiently similar. This of course will be a question of fact in each case.
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[29] In its particulars, the union does not use the words “same” to describe the work it
asserts was performed by the employees with less seniority. However, at para 5
it asserts that “The employer redistributed the work traditionally performed by
Benoit Hamel to the four BIO 1 positions”. That in my view, is another way of
stating that the work was the same. Taken together with the submissions made,
there is no doubt in my mind that the assertion was that the same work Mr. Hamel
had performed in the past seasons existed and was performed by other
employees who had less seniority.
[30] The arbitral authorities reviewed above makes it clear that “same position” (in
those cases “former position”) is not a reference to a job title or classification. As
stated in Re Orville B. Smith (supra) the appropriate test is whether or not the
substance of the duties and responsibilities are sufficiently similar.
[31] The union’s particulars, that the work in question was the work Mr. Hamel had
traditionally performed, if assumed to be true, is capable of meeting the test in Re
Orville B. Smith. Therefore, the particulars would be capable of establishing that
element necessary to substantiate the alleged violation of article 32.5.1.1 and
satisfies the test in Re Couture (supra). It follows that the employer’s motion fails,
and I so find.
[32] In summary, the employer’s motion objecting to the Board’s jurisdiction to hear
the policy grievance, as well as its motion that the union’s particulars do not
establish a prima-facie case fail. The Board remains seized to deal with all
outstanding issues in relation to the grievance.
Dated at Toronto, Ontario this 25th day of September, 2019.
“Nimal Dissanayake”
______________________
Nimal Dissanayake, Arbitrator