OPSEU (Pilon et al) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 2001 CanLII 25777

GSB#1254/99, 1409/99, 1802/99, 1803/99, 0258/00,

0448/00, 1194/00, 1291/00, 1486/00, 1537/00

Union#99B960, 99F025, 00B060, 00B061, 00B062, 00A370, 00B216,

00C131, 00B408, 01B042, 01B043, 01B044, 01B054

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

Between

OPSEU (Pilon et al)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

-and-

AMAPCEO

Intervenor

BEFORE Richard Brown Vice-Chair

FOR THE GRIEVOR David Wright Counsel Ryder, Wright, Blair and Doyle

FOR THE EMPLOYER Stephen Patterson

Legal Services Branch

Management Board Secretariat

FOR THE INTERVENOR Mark Wright Counsel Sack Goldblatt Mitchell Barristers & Solicitors

HEARING July 4, 2000, September 25, 2001 and October 15, 2001.

Each of the grievances consolidated in this proceeding contends the Ministry improperly surplussed one or more employees classified as a Parental Support Worker (PSW). In an attempt to minimize the time devoted to hearing evidence, the parties agreed to present legal argument based upon the facts alleged by the union which are contained in Appendix “A” to this decision. My only task at this stage is to determine whether such facts would constitute primae facie proof of a violation of the collective agreement.

I

PSW’s worked in the Ministry’s local offices. Their primary function was to reduce the cost of benefits paid to welfare recipients by recovering monies to which they were entitled by way of spousal support or child support. The welfare beneficiaries with whom PSW’s worked were sole-support parents or disabled persons. This work occurred under the auspices of the Family Benefits Act (FBA).

The FBA was repealed along with the General Welfare Act which had been administered by municipalities. These two pieces of legislation were replaced by the Ontario Disability Support Program Act (ODSPA), administered by the Ministry, and the Ontario Works Act, administered by municipal delivery agents. Under the new legislative framework, disabled persons remain with the jurisdiction of the Ministry but sole-support parent’s fall under the jurisdiction of municipal delivery agents.

The introduction of a new welfare regime did not change the substantive law concerning the relationship between welfare benefits and support payments. The Ministry requires municipalities to employ Family Support Workers (FSW’s) who work with single parents and do the same tasks as PSW’s did. The ODSPA also provides for the appointment of FSW’s within the Ministry. At least some PSW’s were appointed as FSW’s by the Ministry during the transitional period 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 municipalities.

To some extent, the functions previously performed by PSW’s are now carried out by people holding other positions within the Ministry. Some of the work being done relates to closed cases involving sole-support parents. The rest of the work being done concerns ongoing matters related to disabled persons--i.e. matters which pre-date the ODSPA. Work arising from new matters under the ODSPA is being allowed to accumulate pending a decision on how it will be performed.

In relation to all of the work currently being done, the set of duties previously performed by PSW’s have been divided into three parts and each part has been assigned to a different component of the Ministry. The three components are: (1) the Legal Services Branch in Toronto; (2) the Ontario Works Support Services Arrangements (OWSAS) Office also in Toronto; and (3) local offices. In terms of the percentage of time PSW’s devoted to these duties, the largest component of their functions went to the Legal Services Branch and the smallest component remains in the local offices.

OPSEU alleges all family court work was done by PSW’s. According to this allegation, PSW’s spent between 35% to 40% of their time in court, excluding time they devoted to preparing for court appearances. All such work is now done by lawyers who are not part of OPSEU’s bargaining unit.

Employees at the OWSAS Office fall within the AMAPCEO bargaining unit. They prepare affidavits, process assignments, arrange reimbursements to welfare recipients and confirm whether support is owed to the government. These functions previously were carried out by PSW’s.

The remaining tasks formerly done by PSW’s are now being performed by other staff in local offices. Customer Service Representatives (CSR’s) are completing forms relating to assignments, directions and requests for reimbursement. Income Support Specialists (ISS’s) are gathering information for the Legal Services Branch. Income Support Managers (ISM’s) are signing assignments and directions on behalf of the Ministry. CSR’s and ISS’s are OPSEU members, whereas ISM’s are excluded from the bargaining unit.

In this proceeding, OPSEU makes no claim to the work which has been transferred to municipal delivery agents. The claim asserted relates to work being done by Ministry staff within the bargaining unit, work being performed by Ministry staff outside the bargaining unit, and work which has accumulated. OPSEU contends the number of PSW’s required to perform all such work should not have been surplussed. Instead, they should have been designated as FSW’s and allowed to continue to perform the tasks they had done in the past.

The arguments advanced by counsel for OPSEU are threefold: (1) the layoff of PSW’s contravened article 20 of the collective agreement interpreted with reference to section 22(4) of the Public Service Act (PSA); (2) the transfer of work outside the bargaining unit contravened an implied term of the collective agreement protecting the work of the unit; and (3) allowing work to accumulate while PSW’s were laid off was an improper exercise of management rights. The details of these arguments are summarized below as are the details of the opposing arguments presented by the Ministry. Except where indicated, AMAPCEO agreed with the position taken by the Ministry.

II

OPSEU contends the layoff of PSW’s contravened article 20 of the 1999-2001 collective agreement, interpreted in accordance with s. 22(4) of the PSA. Article 20 regulates the manner in which a lay-off is implemented without expressly saying when employees may be laid off. In this 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 abolition of a position or other material change in organization.” OPSEU submits the omission of this language from the extant agreement affects no substantive legal change because section 22(4) of the PSA contains precisely the same limitations on when a layoff may occur. This section states:

A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of funds or work or the abolition of a position or other material change in organization. (emphasis added)

OPSEU submits the layoff of PSW’s in the circumstances of this case was improper because none of the grounds specified in section 22(4) existed.

For the purpose of this proceeding, the Ministry does not dispute OPSEU’s contention that a layoff under article 20 is permitted only on one of the grounds specified in section 22(4). According to the Ministry, the layoff of PSW’s was proper because it resulted from “the abolition of a position or other material change in organization.”

The two decisions of this Board offering the greatest guidance about the application of section 22(4) to the instant case are OPSEU (Skinner) and Ministry of Industry and Tourism (Ellis), GSB File No. 226/79, decision dated November 20, 1981 and OPSEU (Babb et al) and Ministry of Community and Social Services (Wilson), GSB File No. 1173/88, decision dated August 8, 1990.

In Skinner, the grievor was an Industrial Development Officer with the Ministry of Industry and Tourism. He had worked exclusively with the film industry and appears to have been the only person working with that industry. When the Ministry decided no longer to employ industry specialists, the grievor was transferred to its Small Business Development Branch where he retained the same classification but did no film work. What happened to this work is described in the following passage from the decision:

Approximately 30% of one person’s time in the Industrial Development Branch was devoted to providing industrial promotion services for the film industry, and the remaining 70% of the work previously done by Mr. Skinner was accounted for as follows:

(a) Some of it was no longer done.

(b) A significant part of it has been assigned to the Ministry’s foreign office.

(c) Another significant part of it is being performed in the field offices outside Toronto, and

(d) Some of the work is now being performed by the Assistant Deputy Minister or the Deputy Minister themselves. (page 2)

As film duties which had consumed 30% of Mr. Skinner’s time were assigned to another employee in the Industrial Development Branch, as a significant portion of the grievor’s work went to the foreign office, as another significant portion went to field offices, and as some was assumed by the Deputy and Assistant Deputy, the most likely inference is that the total amount of film work which continued to be performed by someone within the public service amounted to most of the grievor’s previous job.

Even though most of Mr. Skinner’s duties continued to be done, the union limited it’s claim to the 30% being performed in the Industrial Development Branch after the reorganization. While objecting to the reassignment of this work without a job posting, the union conceded the grievor’s old position had been abolished:

Mr. Skinner’s reassignment was precipitated by the abolition of his old ‘position’ and the creation of new positions in the Industry Development Branch, and the employer failed to follow the posting requirements ... in respect of those new positions. (page 5; emphasis added)

Allowing the grievance in Skinner, Vice-Chair Ellis agreed with the union that the reorganization entailed the abolition of the grievor’s old position and the creation of a new one which management was obliged to post. This decision was upheld by the Divisional Court in an unreported decision dated May 19, 1983.

As noted by counsel for OPSEU in this case, the central question in Skinner was whether a new position had been created, not whether an old one had been abolished. Nonetheless, if the reorganization of film duties created a new position which should have been posted, logic dictates this rearrangement also abolished an old position, otherwise the number of positions would have increased even though the total amount of work did not. Indeed, OPSEU in Skinner implicitly acknowledged this logical connection by submitting the grievor’s old position had been eliminated by 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 eliminating all positions in the former Industry Branch and re-deploying staff, ... elected not to comply with ... a ... process of posting all new positions. (page 6; emphasis added)

The grievors in Babb had been employed in the ORFUS Unit of the Ministry of Community and Social Services, recovering 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 district offices. One of these tasks had occupied the grievors for almost an hour a day. The time they had spent doing the other task is not recorded in the decision. The “largest portion” (page 6) of the grievors 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 grievors throughout a majority of their working hours. This work would be done at CSS using “a few greater skip tracing facilities and a different computer program” (page 18) than had been used at ORFUS.

Vice-Chair Wilson held this minor change in procedures and technology did not “change the positions” (page 18) in dispute. He treated the decision in Skinner as saying a position had been abolished in that case. Based upon this understanding of Skinner, which I view as correct, Mr. Wilson concluded the grievors before him had no entitlement to the two tasks which were to be reassigned to district offices:

In the Skinner case, the Board found that the old position had been abolished when a massive reorganization occurred. ... The Skinner decision was in my view correct. ... It may be in the case of those functions that passed down to District Offices the positions did not remain a unified collection of functions. It does not appear on this evidence that they did. (pages 16 and 17; emphasis added)

Mr. Wilson took a different view of the grievors’ claim to the work being transferred from ORFUS to CSS which had consumed most of their time. Ruling the mere transfer of this work from one organizational unit to another would not defeat the grievors’ claim to it, he wrote:

We also see from the Skinner decision that when positions are broken up, new positions are created and old positions are abolished. But in our case ... we do not know whether the positions are being broken up or not because we do not know until the functions are placed in CSS in the Ministry of Consumer Services. It may ultimately be that as the functions arrive in CSS they will be dispersed or there may be fewer position left and we will bet a Skinner set of facts. But on this evidence, it is premature to decide. (page 18; emphasis added)

In this passage, Mr. Wilson indicated the employer would be entitled to surplus the grievors if the bundle of duties being transferred from ORFUS to CSS was split into pieces, with only a relatively small piece assigned to each position, but not if the bundle remained intact as a single assignment. If the bundle of duties remained intact, the grievors would be entitled to follow it to CSS.

The principles established in these two cases provide some guidance in evaluating the arguments advanced in the case at hand. At this stage, I restrict my analysis to the issue of whether the positions of PSW’s have been abolished within the meaning of section 22(4). Only if the employer fails on this front will there be any need to consider the criterion of “other material change in organization”, a criterion which is more difficult to fathom.

According to the employer, the grievors’ positions were abolished when the duties formerly done by them were divided among other employees. Counsel for OPSEU contended these positions have not been abolished, because all of the functions of PSW’s continue to be performed within the public service. This contention is not supported by the decisions reviewed above. The decisions in Skinner and Babb demonstrate in some circumstances a position can be abolished even though its functions are shared between two or more organization units and continue to be performed. In Skinner, the Board concluded the grievor’s old position had been eliminated, despite most of his duties being shared among several components of his ministry. Likewise, the Board in Babb indicated the grievors’ positions would be eliminated if their bundle of duties were broken up upon transfer from ORFUS to CSS, despite the fact that all of their work remained within the bargaining unit. In short, these cases indicate that the public service ceasing to perform the contested work was not a necessary condition for the grievors being laid off in accordance with s. 22(4).

This conclusion is entirely consistent with the general principles widely applied by arbitrators. OPSEU contended PSW’s are entitled to claim all of their former duties because they are still being performed somewhere in the public service. If this contention is correct, the employer would be precluded from reorganizing its operations by dividing this set of duties among three of its components. There is a large body of arbitral case law holding management retains the right to make this 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 summarized by Brown and Beatty in Canadian Labour Arbitration:

[M]anagement may also perceive a need to reorganize the procedures and methods of performing work within the bargaining unit. As a general presumption, arbitrators have taken the view that where the reorganization is not contrary to the general law, where it is done in good faith, and where it does not contravene clear prohibitions in the agreement, management is free ...to reorganize the work procedures and methods within the bargaining unit as it requires. And this is so whether the assignment of work is ... within a job classification or crosses classification or departmental lines. Moreover, this presumption will prevail regardless of whether the reorganization takes the form of creating new classifications, discontinuing old classifications, or splitting and reorganizing classifications and departments ...

However, many provisions of the collective agreement, while not prohibiting reorganization as such, will bear upon and affect the changes made. Again, in these circumstances, the provisions relating to transfer, lay-off and recall and job posting may come into play ... As well, reorganization may be constrained by the wage structure. ... Taken together, these provisions may fetter management's ability to effect such changes by requiring that a certain wage rate be paid or certain procedures be followed. Thus, while in the former instance an employee might claim that he is entitled to be reclassified or paid a higher wage, in the latter circumstance the grievance usually states that the employer's conduct created a vacancy or otherwise brought the seniority provisions into play, requiring the employer to assign the job in question to the grievor. (5:2000; emphasis added)

In short, absent a clear prohibition against reorganization, arbitrators have held an employer may reorganize its operation, so long the reorganization is carried out in accordance with seniority rights and procedural requirements arising from the collective agreement.

How do the principles reviewed by Brown and Beatty apply to the case at hand? There is no allegation the Ministry acted in bad faith when implementing the reorganization. Conceding this change would been proper if PSW’s had not been surplussed as a result, OPSEU submitted the layoff contravened section 22(4). Even if “abolition of a position” were the only ground upon which the employer sought to justify the layoff, section 22(4) would not preclude a reorganization culminating in employees being laid off. The employer’s contention that this sort of organizational change entails “the abolition a of position” is based upon an interpretation of these words which is at least as reasonable as the construction underlying the union’s opposing submission. For this reason, I conclude the collective agreement does not clearly prohibit the threefold division of PSW functions, notwithstanding the resulting layoff. As submitted by AMAPCEO, this sort of change has “all of the hallmarks of being a typical exercise of management rights.”

The next question to be addressed is whether the grievor’s were entitled to follow part of their work within the new organizational structure. The decisions in Skinner and Babb indicate a relevant factor in making this determination is the size of each of the parts into which the full set of PSW duties have been split. In Skinner, most of the grievor’s functions continued to be performed but were divided among four components of his ministry. The largest part appears to have been those duties which had consumed 30% of his time and were reassigned to the Industrial Development Branch. The decision in Skinner demonstrates that an employee’s position is abolished when its duties are distributed among others and no one receives more than 30% of them. The facts in Skinner stand in stark contrast to one of the scenarios addressed by the Board in Babb. The functions to which the Babb grievors had devoted most of their time were to be transferred from ORFUS to CSS, but no decision had been made yet as to how these functions would be distributed within the CSS workforce. Addressing the possibility that this bundle of duties would remain intact after the transfer, the Board held in this scenario the grievors’ positions would continue to exist. This conclusion did not mean they would be entitled to reclaim all of their former work. Rather, the Board indicated they would be entitled to claim the largest portion of their duties at CSS.

Bearing in mind the decisions in Skinner and Babb, I conclude an assignment comprised of duties to which an employee devoted less than 50% of her time is one to which she has no entitlement. Below the threshold of 50%, the difference between the new assignment and the employee’s former job outweighs the similarity, and the extent of the difference indicates the old position has been abolished and a new one created. Simple mathematics dictates the 50% threshold cannot be surpassed by more than one of the three parts into 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 this threshold, because it is stated to be the largest of the three. OPSEU contends PSW’s were in court 35% to 40% of the time and spent additional time preparing for court appearances. As the time consumed by preparation was not estimated, the total time allegedly devoted to court work could be more than 50% or less.

Having said that less than 50% is not enough to found a grievance, I do not mean to suggest 51% is necessarily enough. The line falls somewhere in the range between 50% and 100%. In the absence of any allegation that family court work falls in that zone, I refrain from offering a more precise ruling at this stage.

The percentage of time PSW’s devoted to family court work is not the only factor bearing upon the validity of their claim to this work under section 22(4). Based upon the premise that the legal work formerly done by PSW’s was the most demanding part of their position, in terms of skill and responsibility, employer counsel submitted a position comprised exclusively of legal work would be qualitatively different than the one they held. Any substantial qualitative difference in duties of the sort alleged would be relevant in determining whether the positions held by PSW’s continued to exist. However, the decision in Babb shows that a minor change in procedure or technology is not relevant. As acknowledged by all concerned, another relevant factor would be any overlap in the functions of PSW’s and ministry lawyers before the reorganization.

Noting some PSW’s worked in local offices outside Toronto, whereas the Legal Services Branch is based in that city, employer counsel submitted location also is a relevant factor. I was referred to OPSEU and Ministry of Health (Kennedy), GSB File No. 665/81 where the employer planned to move the head office of the Ontario Hospital Insurance Plan from Toronto to Kingston. Most of the employees affected wished to remain in Toronto. The Ministry announced its intention to treat anyone who refused a job in Kingston as having abandoned their positions. Contending the situation of these employees would constitute a layoff, OPSEU argued that the relocation of the head office “will result not in a transfer of positions but in their abolition and in the creation of new positions in Kingston” (page 4). The Board agreed because of the distance between Toronto and Kingston. As the collective agreement under which the Ministry 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 Radius”, I reserve any ruling on the application of this decision to the facts at hand pending argument on the relevance of Appendix 13.

What has been decided about the application of section 22(4) in this case, and what remains to be decided, can be briefly summarized. I have concluded this section does not preclude the employer from dividing the work of PSW’s among three components of the Ministry and does not confer upon the grievors any entitlement to the relatively small part of their duties assigned to others in local offices or to the OWSAS Office. Whether section 22(4) entitles the grievors to follow the largest part of their duties to the Legal Services Office remains to be determined. Entitlement to this work depends upon whether it occupied the grievors more than 50% of the time and, if so, may also depend upon the size of the margin by which the 50% threshold is exceeded. Entitlement to this work may also depend upon two other factors: (1) any qualitative difference between the full set of PSW duties and the subset transferred to the Legal Services Branch; and (2) any overlap in the work of PSW and ministry lawyers before the reorganization. For those grievors employed as PSW’s outside Toronto, the application of the Ministry of Health decision and Appendix 13 must be considered. As noted above, my analysis has been limited to “the abolition 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 this ground, the even more ambiguous ground of “other material change in organization” remains to be considered.

III

Much of the contested work is now being performed outside the bargaining unit represented by OPSEU. The union contends the transfer of PSW work to the Legal Services Branch, the OWSAS Office, and managers in local offices contravened an implied term of the collective agreement which protects the work of the bargaining unit.

Counsel for OPSEU relies upon two decisions: Irwin Toy Limited and United Steelworkers of America (1982), 1982 CanLII 5093 (ON LA), 6 L.A.C. (3rd) 328 (Burkett); and North West Company Inc. and Retail, Wholesale & Department Store Union (1996), 1996 CanLII 20424 (MB LA), 57 L.A.C. (4th) 158. In both of these cases, the union objected to a supervisor performing work of the bargaining unit.

In Irwin Toy, a number of foremen performed the sort of work done by employees represented by the union. Mr. Burkett interpreted the collective agreement as containing an implied term protecting the work of the bargaining unit. He wrote:

We start by observing the absence of an express restriction upon the assignment of bargaining unit work is not dispositive. The language of most collective agreements which sets out the classifications covered by the agreement, creates seniority and recall rights and establishes job posting procedures, gives rise to an implied restriction upon a company's right to assign bargaining unit work to supervisors. This implied restriction has been universally recognized by arbitrators. The recognition of this implied restriction forms a part of the arbitral backdrop against which collective agreements are negotiated and against which they must be interpreted. (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 Milk Co. and Teamsters, decision dated August 7, 1980, indicating the same legal framework applies more expansively to “non-bargaining unit employees, including supervisors.”

Turning to the question of how much bargaining unit work a supervisor may perform without contravening the collective agreement, Arbitrator Burkett wrote:

When reference is had to the basis of the implied restriction upon management's right 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 trigger the implied restriction 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 implied restriction flows from the clauses in the collective agreement dealing with seniority, job posting and lay-off and recall. These clauses give rise to rights in connection with job bidding, bumping and recall in respect of certain jobs or job vacancies. These rights, 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 implied restriction flows from a balancing of management's right to assign bargaining unit work to supervisors and the employee's right to claim a job, the amount of work in issue must be sufficient to trigger the exercise of the employee's job bidding, bumping or recall rights.

(page 335)

Mr. Burkett then considered the application of this standard to the facts before him:

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 obligation to recall an employee on lay-off by assigning the tasks normally 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 implied restriction upon an employer's right to assign bargaining unit work to a foreman or supervisor, it is difficult to rationalize how it might be that an employer is restricted 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, if we start by recognizing the right of management, unless expressly restricted, to organize the work place, including the right to spread the duties of a classification among a number of other classifications ... it is equally difficult to rationalize how it might be that management is prevented, for business reasons, from spreading the work of a classification among a number of supervisors.

I do not have to decide the issue in this case where, on the evidence, the amount of tow-motor work which is being done by supervisors is about one-half a shift or slightly in 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 rights of bargaining unit employees on lay-off are not triggered as would require a board of arbitration to balance the right of the company to assign work as it sees fit and the right 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 allowing the store manager to do bargaining unit work five or six hours a day. He also held the collective agreement contained an implied term imposing restrictions on the assignment of such work to “non-unit members” (page 168).

Noting these two awards involved a foreman or manager, counsel for the employer contended they have no application to non-unit employees who are not managerial. This contention is disputed by the union and is not endorsed by counsel for AMAPCEO. It flies in the face of a large body of arbitral precedent summarized by Brown and Beatty in Canadian Labour Arbitration. Having discussed the implied restriction on the performance of bargaining unit work by supervisors, these authors noted a similar restriction applies to other employees outside the unit:

Arbitrators have followed a similar approach with respect to employees other than supervisory personnel who are excluded from the collective agreement. (5:1400)

Based upon the numerous awards cited by Brown and Beatty, I have no hesitation in concluding the collective agreement at hand contains an implied restriction on the performance of bargaining unit work by all employees outside the bargaining unit, regardless of whether they have managerial responsibilities.

The determination of whether this restriction has been violated in the case at hand must await further factual stipulations or evidence and further argument. At least some of the factors to be considered when dealing with managers are addressed in Irwin Toy and North West Co. Brown and Beatty have summarized the factors considered by arbitrators when dealing with other excluded employees:

Thus, generally employing a quantitative analysis, where the work is necessarily incidental, 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 bring the assignee into the bargaining unit. ... Similarly, where there is an overlap between the duties performed by two different bargaining units, it would be more difficult to demonstrate that a reorganization resulting in a shift of some work from one bargaining 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 working hours, in excess of 50%, or 90% of the employee's time, the opposite conclusion was reached. However, in these circumstances, arbitrators have also had regard to the quality and the nature of the work, as well as to the quantity assigned, in assessing the impact of the assignment upon the bargaining unit. For example, where the quantity of work performed was small and required a lesser skill content, an assignment from a maintenance unit to a production bargaining unit was held not to be contrary to the collective agreement. Indeed, one arbitrator has suggested that the quality or skill content of the work ought to be the sole criterion in determining whether or not the assignment brought the employee into the unit. (5:1400)

In short, the relevant factors include the quantity of work in dispute, the quality of that work and whether the duties regularly assigned to members of the bargaining unit overlap the regular duties of the other employees concerned.

IV

There remains to be considered work which has accumulated since the grievors were laid off. OPSEU and the employer have joined issue as to whether the decision to backlog this work was a proper exercise of management rights. AMAPCEO takes no position on this matter.

In OPSEU (Boulet) and Ministry of Community and Social Services, GSB File No. 1189/99, decision dated August 8, 2000, I considered the scope of arbitral review of management decisions:

Employer counsel relies upon the following passage from United Parcel Service and Teamsters Union (1981), 1981 CanLII 4389 (ON LA), 29 L.A.C. (2d) 202 (Burkett):

In our view the employer’s decision making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management, they do so in the knowledge that management’s decisions in these areas will be made in management’s self-interest, may adversely affect individual employees, and/or may not impact on all employees equally. However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described. If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective agreement. (page 213; emphasis added)

In my view, the approach outlined by Arbitrator Burkett in United Parcel Services is not different in substance from the one followed by this Board in two decisions cited by counsel for the union: (1) OPSEU and Ministry of Natural Resources (Bousquet), File No. 51/90, dated March 1, 1991 (Gorsky); and (2) OPSEU and Ministry of Government Services (McIntosh), File. No. 3027/92, dated December 15, 1993 (Dissanayake). In McIntosh, Mr. Dissanayake cited with approval two passages from the Board’s very lengthy and unanimous decision in Bousquet. The first passage reads as follows:

Thus the significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by the particular application of such a right...

As noted above, if it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the employer to consider the advancement opportunities of employees. However, it cannot use its management rights to under s. 18(1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion. The employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded upon a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with. (pages 35 and 36; emphasis added)

The second passage from Bousquet states:

All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer so long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct. (pages 63 and 64; emphasis added)

How does the ruling in Bousquet apply to the facts at hand? As noted by counsel for the union, if the employer has violated the collective agreement by failing to post jobs, the grievors’ rights under article 6 are affected in the sense that they would not have lost their employment if such jobs had been posted and awarded to them. Using the language of Bousquet, I conclude management’s determination of ODSP workloads would be open to challenge if it was not “genuine” in the sense that it was not “related to the management of the undertaking”. The standard to be applied 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 underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine. (pages 10 to 12)

According to Boulet, an improper exercise of management rights is comprised of two elements: (1) action not in pursuit of a legitimate government objective; and (2) a curtailment of rights under the collective agreement resulting 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 employing them. Based upon this factual assertion, counsel for OPSEU submitted the decision to allow work to accumulate undermines the accomplishment of the government objective of conserving public funds. If the facts alleged are true, the union would have presented a prima facie case that the Ministry did not act in pursuit of a legitimate objective. The employer would then be called upon to explain its conduct.

As to the second element of the Boulet standard, the grievors will meet it only if their rights under the collective agreement have been negated or limited by the impugned management conduct. If the employer has backlogged work for an illegitimate purpose, the grievors’ enjoyment of rights under the collective agreement would not be adversely affected unless they would have continued as PSW’s but for the pursuit of an improper objective. In other words, deciding whether the grievors’ rights have been curtailed requires a determination of whether the collective agreement permitted the employer to assign the contested work either to other employees or to people outside the public service rather than to PSW’s.

Dated at Toronto, this 5th day of November, 2001.