GSB#0206/02
UNION#OLB495/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Martinello)
Grievor
-and-
The Crown in Right of Ontario
Liquor Control Board of Ontario
Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Craig Flood
Counsel
Koskie Minsky
Barristers and Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING August 14, 2002.
DECISION
The grievor challenges her demotion from her position as a full-time customer service representative (“CSR”) to that of a casual CSR. The basis for that challenge is that the demotion is said, among other things, to constitute discriminatory treatment prohibited under the terms of the collective agreement and the Human Rights Code.
The merits of the grievance are not yet before me. The parties did, however, provide me with opening statements and the broad parameters of the case can be described as follows. My description (both with respect to the outline of the case and in relation to the preliminary issue dealt with in this award) is based on the facts as outlined by the parties which were largely uncontested and which I accept as true for the purposes of this decision.
The grievor was successful, as a result of a job competition, in securing the position of full-time CSR. She had previously and for some years been employed as a casual CSR working in locations (such as Beamsville and Grimsby) close to her home in Grassie. The full-time position, which she was offered and accepted, was an assignment to an employer store located in Fort Erie (in the range of an hour or more from her home).
In 1993 the grievor had sustained what the union described as a minor lower back injury during the course of her employment. She suffered a more serious lower back injury in the summer of 1999. During her tenure as a casual, the employer had taken steps to accommodate her resulting disability. However, within a matter of days of commencing the new full-time assignment, it became apparent to the grievor that she was physically incapable of tolerating the lengthy return drive between her home and the Fort Erie store. She advised the employer that she would not be able to return to her duties at the Fort Erie store. In view of that incapacity, the employer opted to return the grievor to her former casual CSR position at the Grimsby store.
It is that response which gave rise to the grievance.
At the first day of hearing, the parties engaged in settlement discussions which have, so far, proved unsuccessful. They did, however, raise and fully argue a preliminary matter.
The employer asserts that certain employees, who may potentially be affected by the outcome of the case, ought to receive notice of and be permitted to participate in these proceedings. The union argues that none of the individuals identified by the employer has the requisite interest to claim third party status with the corresponding rights to notice of and full participation in the hearing process.
There are, broadly speaking, two classes of employees the employer argues ought to receive notice of these proceedings. The first is those employees who participated in the job competition in which the grievor and two others were, ultimately, offered and accepted positions. The posting announced the availability of 3 full-time CSR positions within the area known as Metro Area ‘H’ which, I am told, corresponds to the Niagara Region and includes locations such as Grimsby, St. Catharines, Niagara on the Lake, Welland and Fort Erie. There was, however, no indication on the posting of the specific locations associated with the advertised jobs. At the conclusion of the job posting process, the employer offered positions in the three locations it had identified – St. Catharines, Niagara Falls and Fort Erie – to qualified applicants in the order of seniority. The senior applicant was offered the choice of Niagara Falls or Fort Erie. However, as she lives in St. Catharines, she requested to be assigned to a store in that location and her request was granted. The next senior applicant was off work at the time due to a medical condition with no foreseeable return to work date. She was advised that she would not be considered for any of the remaining positions. The next senior applicant was offered a choice of the remaining locations; she selected Niagara Falls. The next senior applicant was offered the one remaining position in Fort Erie; she declined, indicating she needed to work closer to home due to family concerns. It was then that the grievor, who was the fifth most senior applicant among those qualified for the position, was offered and accepted the Fort Erie assignment.
The employer asserts, at least to the extent the union may be seeking to displace any of the successful candidates from their positions, that those individuals ought to receive notice of these proceedings. Further, it argues that the employee who declined the Fort Erie position because of the difficulties associated with travel should also be permitted to participate in these proceedings.
The second class of employees asserted to be entitled to notice consists of the single individual who, subsequent to the grievor's demotion, was assigned to the Fort Erie position formerly and very briefly occupied by the grievor.
Generally speaking, the employer’s position that the identified individuals are entitled to notice is premised on the assertion that these individuals may potentially be adversely affected – indeed, may be displaced from their current positions – in the event the grievance is successful.
The union, however, has not been entirely precise in articulating the remedy it seeks from these proceedings. It asserts that the employer has failed to properly consider alternatives to accommodate the grievor’s disability. The grievor’s disability, it is said, precludes her from working in a location more than one half hour travel time away from her home. The employer has extensive resources and a multiplicity of locations which would meet those restrictions. It should be able to initiate accommodation efforts and successfully identify an alternative that would meet the grievor’s restrictions without causing undue hardship or disruption to other employees or to its own managerial prerogatives. The union has not, however, identified any specific location where the grievor ought to be assigned or any particular individual who ought to be displaced to effect that assignment.
In support of its position that none of the particular individuals identified by the employer is entitled to notice, the union referred me to two relatively recent cases: Re Orillia Soldiers’ Memorial Hospital and Ontario Nurses’ Association (1993), 1993 CanLII 16697 (ON LA), 34 L.A.C. (4th) 315 (Swan), final award affd. 69 A.C.W.S. (3d) 679 (Ont. Div.Ct.) and Re John Noble Home and Ontario Nurses’ Association, Local 102 (1994), 1994 CanLII 18664 (ON LA), 39 L.A.C. (4th) 324 (Mitchnick). Each of these cases dealt with grievors seeking to exercise collective agreement bumping rights in the context of a layoff. Both decisions deal with preliminary issues related to the rights of incumbent employees who could be affected were the grievors successful in their bids to exercise those bumping rights. The arbitrators in these cases each performed comprehensive reviews of the relevant legal authorities including the decisions of the Ontario Court of Appeal and the Supreme Court of Canada in the seminal cases of Re Bradley and Ottawa Professional Fire Fighters Assn. (1967), 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376, [1967] 2 O.R. 311, 67 C.L.L.C. para. 14,043 and Re Hoogendorn and Greening Metal Products & Screening Equipment Co. (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641, [1968] S.C.R. 30, 67 C.L.L.C. para. 14,064.
Those cases and their progeny have attempted to delineate the sometimes fine line between, on the one hand, recognizing the exclusive right of the union as bargaining agent to select which issues and legal interpretations it will or will not advance on behalf of its members and, on the other, maintaining fidelity to established principles of natural justice. They also recognize the desirability of maintaining the relatively informal and expeditious process generally associated with labour arbitration as compared to the civil litigation process.
In the Orillia case, Arbitrator Swan, writing for the majority of the board of arbitration, synthesized many of these considerations and offered the following to distinguish those cases which do from those cases which do not give rise to third party rights (at p. 328):
…In the first, where employees will be generally affected by an interpretation of the collective agreement which is binding upon all members of the bargaining unit, some of whom will be advantaged and others disadvantaged, there will be no right to standing. The second situation is where it is sought specifically to advantage one employee at the expense of another in an arbitration in such a way that the outcome will be binding upon the disadvantaged employee, but that employee’s interests will not have been represented before the arbitrator by the union, the statutory bargaining agent with an obligation to represent employees in the bargaining unit for which it is certified. In this latter case, the rights of an employee will have been adversely determined in a final and binding way, not subject to further challenge at the instance of the employee, without the employee having any representations made on his or her behalf. In such circumstances, the court says that the employee must be granted standing in order that there not be a denial of natural justice.
In coming to that conclusion Professor Swan had, in addition to the judicial authorities already mentioned, considered some more recent arbitration decisions including Re National Arts Centre Corp. and P.S.A.C. (1981), 1981 CanLII 4409 (ON LA), 30 L.A.C. (2d) 431 (Shime) and Re Queen Elizabeth Hospital and C.U.P.E. Loc. 1156 (1988), 1988 CanLII 9145 (ON LA), 2 L.A.C. (4th) 281 (Craven). The National Arts Centre award involves circumstances remarkably similar to aspects of the present case. The issue was whether the employee who had been promoted into the position left vacant by the grievor's demotion was entitled to standing in the arbitration proceeding challenging that demotion. Arbitrator Shime came to the following conclusion (at p. 435):
The employer also suggested that if the union were claiming reinstatement to the job that the incumbent should be notified of the hearing. However, any person in the bargaining unit promoted as a result of the grievor's wrongful demotion would only have a contingent right to the job. That right is subject to the grievor's overriding right to claim his job in the grievance arbitration process and the acceptance of a promotion, in those circumstances, is conditional on the employer's actions being sustained at arbitration. This is not a seniority promotion case where at one point in time the grievor(s) and the incumbent(s) may have stood on equal footing with equivalent rights to have the collective agreement interpreted and applied – the rights here were never equivalent because the incumbent's rights and the promotion were subject to the overriding right of the grievor to have this matter determined by arbitration.
If the employer is correct in its contention then in every discharge case the replacement or new hire would have the right to appear and all persons, who may have been promoted throughout the employer's organization as a result of the discharge, would also be entitled to appear. There are other situations where one might hypothesize the right of numerous employees to appear. In my view this would unduly complicate the arbitration process and it would also create rights which, in my view, go beyond the rights of employees to appear in seniority promotion cases which are quite distinguishable.
Without doubt, it is in job competition cases that affected employees are most often acknowledged to have third party rights. The Queen Elizabeth Hospital case involved a job competition and posited what may be viewed as a novel distinction affecting those rights. The arbitrator distinguished cases in which the collective agreement job competition language is of the "threshold" variety (e.g. senior qualified applicant gets the job) from those in which the collective agreement contemplates a "competition" (e.g. seniority is a factor only when the qualifications and abilities of applicants are relatively equal). The case suggests that in the "threshold" type cases incumbents do not have third party rights. That conclusion is premised on the assertion that in such cases junior employees do not stand on an "equal footing" with senior grievors. The issue to be decided in such cases is typically the "threshold" issue of whether or not the grievor possessed the requisite qualifications for the job, an issue in respect of which an incumbent can only be seen to be capable of making a very limited contribution, if any. The incumbent’s right to claim the job in question is thus viewed as contingent upon an issue which does not engage or require the participation of the incumbent to the same extent as would be the case where it is the relative abilities of the incumbent and the grievor which are directly at issue.
Returning to the Orillia case, Professor Swan determined that the employees the grievors were seeking to bump were fully entitled to notice of and the right to participate in the arbitration proceeding. That conclusion, in his view, was dictated by the nature of the relief sought by the union and the impact of the arbitrator's award should that relief be granted:
... Our order would be binding in law both on the successful grievor and on the nurse being displaced and laid off, and it would be final in the sense that, absent any jurisdictional error, it would be irreversible at anyone's instance. In our view, the principles described in the Bradley and Hoogendorn cases require us to grant standing to any employee who will be so affected by the proceedings before us, and to insist that the parties provide adequate notice of any continuation of the hearing to such persons of the nature of the jeopardy posed to their positions by the proceedings, and their rights to participate in the proceedings.
As the collective agreement language in that case was comparable to "threshold" type job competition language (the central issue being whether the grievors were qualified for the positions in question not how their qualifications compared to those of the incumbents), it is difficult to reconcile that conclusion with the decision in the Queen Elizabeth Hospital case. Indeed, and although efforts were made to distinguish the particular facts of that case, Professor Swan acknowledged that it does not squarely fit within the principles he enunciated.
The John Noble Home case, a unanimous decision of a panel chaired by arbitrator Mitchnick, also dealt with the rights of employees to participate in a hearing where those employees faced displacement in the event the grievors were permitted to exercise their bumping rights in the fashion sought by the grievance. That case included a further legal wrinkle, however, in that the union was arguing that the grievors ought to be permitted to "cobble together" full-time positions to bump into from the part-time positions occupied by the incumbents.
The Mitchnick panel reviewed many of the same authorities set out above (including the court decisions and the awards in the National Arts Centre and Queen Elizabeth Hospital cases). It is fair to perhaps suggest that the orientation expressed in this case is less receptive to the extension of third party rights. The board of arbitration observed as follows (at p. 336):
In this board's view, to extend the rights of individual members of the bargaining unit to intervene in arbitration proceedings unduly, out of an "abundance of caution", is not really a cautious approach at all. While, we recognize, this has in fact been the broad practice in the past, without any obvious evidence of the situation getting out of hand, nonetheless we agree with concerns raised by the association in this case that too lax an acceptance of this individual "right" creates the real potential for disruption. If the employer position be adopted, it would follow that any number of employees "affected" prejudicially by a contract administration decision made by the union that negotiated the contract would be entitled, each with his or her own lawyer, if they chose, to assume full party status. The impact of any such third party addition in cost and scheduling delay could be substantial, in a system that initially was intended, in replacing the courts, to be sensitive to both. The "downside" risk, therefore, is not an insignificant one, and particularly as collective bargaining expands its range of persons being organized, the chances of such disruption actually materializing become more prominent... If "directly affected" is in fact the test, the list of logical applications, as observed in the National Arts Centre case, is virtually limitless...
Having expressed the view that the approaches taken in the National Arts Centre and Queen Elizabeth Hospital cases were correct, the Board went on, after referring to the specific collective agreement language there under consideration, to conclude as follows (at p. 338):
As can be seen, this is barely even the normal "threshold" clause, since qualifications are not even mentioned. The clause on its face indicates, simply, that the senior-most nurses are entitled to be retained. Junior nurses in the bargaining unit, whatever their qualifications, cannot in any way be said from the commencement of the matter to be on an "equal footing" with the senior ones, and until the rights of those senior ones are determined, we agree that the junior nurses’ rights are of a "contingent" nature. There is in fact a form of "threshold" issue to be determined here, not the typical one of the senior employee’s qualifications, but as to whether or not this clause allows the senior laid off employee to exercise her bumping rights against more than one junior part-time nurse, in order to retain her original number of (full-time) hours. But that, in our view, is an issue that is properly dealt with between the trade union and the employer.
As already suggested, one may encounter some difficulty in fully reconciling the views expressed in the two cases referred to me. It might be suggested that the decision of the Mitchnick panel can be distinguished on the basis that it was decided in the context of what was described as the "threshold" issue of whether a senior laid off employee can exercise bumping rights against more than one junior employee. Indeed, while it declined to find that any party apart from the union and the employer had a right to participate in the proceedings, at least at that stage, it did not preclude the possibility of entertaining such arguments at a later stage in the proceedings. But while that may serve to permit the two decisions to sit more comfortably together, there can be no mistaking the fact that contrary views were expressed at least with respect to the extent to which the decision in the Queen Elizabeth Hospital case is good law.
In any event, I do not find it necessary for the purposes of this case to fully reconcile the existing jurisprudential tensions. For even accepting what may be the more liberal view expressed in the Orillia case, I am satisfied that none of the individuals identified by the employer in the instant case is entitled to notice of these proceedings or to full rights of participation.
Insofar as the individual employee who assumed the grievor’s position subsequent to her demotion is concerned, the case is, in all material respects, virtually indistinguishable from the National Arts Centre case. There is no basis upon which the individual and the grievor can be said to be on "equal footing". If the grievor’s demotion was contrary to the collective agreement, there was not or ought not to have been any position for the incumbent to fill. Any rights the incumbent may have to the position are contingent upon the grievor having properly been removed from it. In that respect, the situation is difficult to distinguish from a discharge case. And none of the parties, to their credit, suggested that third party rights would arise in the context of a discharge case.
But further, in a point which is common to all of the individuals the employer asserts are entitled to notice, neither is it the object of the grievance to displace the current incumbent(s) from the positions they currently hold.
The positions filled through the job posting process (including the one "re-filled" subsequent to the grievor's demotion) are all in locations said to be beyond the scope of the grievor's ability to travel. Thus, whatever relief the union may ultimately be seeking it will not include the assignment of the grievor to the positions currently occupied by the individuals the employer asserts ought to be entitled to notice. In fairness to the employer and as already indicated, the union was less than precise in articulating the specific relief being sought. It will undoubtedly argue that the employer ought to have gone to greater lengths to attempt to accommodate the grievor's disability. It will clearly not argue, however, that the grievor ought to be assigned to a position outside of her physical limitations. This is not to say that, if the grievance is successful, there can be no possible impact on the individuals identified by the employer. Indeed, the union has indicated that among the options which might be pursued would be the exercise of the employer's right to transfer employees in such a fashion so as to accommodate the grievor and to facilitate her full-time assignment to a more suitable location. Depending upon how the employer might choose to exercise that right to transfer employees, it is possible that the individuals it has identified may ultimately and at least indirectly be affected. Should that result obtain, there is no reason immediately apparent to me why any of those incumbents would be precluded from filing a grievance in respect of their treatment (I say nothing, of course, about the merits of or the basis in the collective agreement for any such grievances). But it is neither the clear object of the present grievance nor a necessary consequence of its success that any of the incumbents identified by the employer be displaced from the positions they currently hold. And in those circumstances, I am not satisfied that those incumbents are therefore entitled to notice or the right to participate in these proceedings.
Finally, I note that the employer argued that the individual who turned down the Fort Erie position because of the inconvenience associated with the travel requirements should also be provided with notice of this hearing. Although the point was not argued forcefully or in great detail, it was undoubtedly rooted in some conception of equity: if the grievor is permitted to retain a full-time position despite her difficulty with the travel associated, some sort of equivalent opportunity ought to be afforded to the employee who turned the job down on a similar basis. Of course, and as the union points out, the basis of the grievance is that the grievor's inability to travel is because of a handicap. It is not at all clear that the other employee’s travel difficulties were in any sense equivalent. But quite apart from that, there is no indication that the other employee ever filed a grievance or otherwise complained about the job competition process. That would have been the appropriate place to raise any such concerns. She apparently chose not to grieve and it is less than apparent to me why she should be permitted to pursue that claim through the proxy of third party participant in the instant proceedings.
In view of all of the above, I am satisfied that none of the individuals identified by the employer is entitled to notice of these proceedings or entitled to full rights to participate in them.
The hearing in this matter will continue as previously scheduled.
Dated at Toronto this 9th day of September 2002.