GSB# 0573/99, 1254/99, 1409/99, 1802/99, 1803/99, 0199/00, 0258/00, 0448/00, 1194/00, 1291/00, 1486/00, 1537/00, 0386/02

UNION# 99B661, 99B960, 99F025, 00B060, 00B061, 00B062, 00B157, 00A370, 00B216, 00C131, 00B408, 01B042, 01B043, 01B044, 01B054, 02B351

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pilon et al.)

Grievor

• and -

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

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Stephen Patterson Associate Director, Labour Practice Group Management Board Secretariat

HEARING

February 3, 4, 5 & 18 and April 16, 2003.

DECISION

These grievances contend the Ministry improperly laid off employees in the classification of Parental Support Worker (PSW). Some of the work done by PSWs was transferred to lawyers in the Ministry’s legal services branch. The union contends the reassignment of these duties contravened an implied term of the collective agreement, protecting the work of the bargaining unit, and also resulted in an improper layoff. The Ministry ceased providing some services performed by PSWs. The termination of these services is challenged by the union as an impermissible exercise of management rights.

I

The grievances arose against the backdrop of a reorganization of the Ontario welfare system implemented in 1998 and 1999 and described in my first interim decision dated November 5, 2001:

PSWs 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 PSWs 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The FBA was repealed along with the General Welfare Act which had been administered by municipalities.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 parents 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 (FSWs) who work with single parents and do the same tasks as PSWs did. The ODSPA also provides for the appointment of FSWs within the Ministry. At least some PSWs were appointed as FSWs by the Ministry during the transitional period between the old and new legislative regimes, but all PSWs and FSWs were surplussed when the files of sole-support parent were transferred to municipalities. (pages 3 and 4)

The current legislative framework still requires welfare recipients to make “reasonable efforts” to obtain any form of income to which they are entitled, including child or spousal support, and allows the Ministry to reduce their welfare benefits by the amount of income which they receive or could have received if reasonable efforts had been made.

PSWs assisted welfare clients to make arrangements for spousal or child support by negotiating agreements, obtaining family court orders, and responding to applications in the same level of court to reduce support payments. Where an entitlement to support had been assigned to the Ministry by a client, and the payor sought to reduce or rescind arrears in family court, PSWs defended the Ministry’s interest. They never appeared in superior court proceedings.

II

The work transferred from PSWs to lawyers in the legal services branch is defending the Ministry’s interest in arrears of support payments assigned to it by disabled clients. PSWs performed this function in both provincial family court and unified family court. These court appearances and the preparation for them consumed a relatively small portion of the working hours of PSWs. Before the reorganization of the welfare system, lawyers from the legal services branch defended arrears in superior court proceedings, but they did not appear in family court.

Cindy Crandall is team leader for the seven lawyers in the family law group at the legal services branch in Toronto. She testified since late 1999 three lawyers in her group have defended the Ministry’s interest in arrears for all family court cases heard in Toronto and Brampton, some such cases heard in Milton and a very small number of cases heard in Oakville and Orangeville. All remaining family court work in the province has been assigned to outside counsel. Asked in cross-examination about the amount of time spent by Ministry lawyers defending arrears, Ms. Crandall conceded the number of full-time-equivalent positions devoted to this work increased from two in 1998 to four in early 2003 when she testified. She did not suggest any part of the increase from two to four was attributable to growth in the volume of superior court work.

Based upon Ms. Crandall’s concession, counsel for the union contended the transfer of family court work from PSWs to the legal services branch entailed enough work for two employees. When I asked employer counsel about this factual contention, he declined to agree with it but said he would not be making “lengthy submissions” on the point. During his subsequent argument, he made no mention of how many legal positions were created by the transfer of family court work. Accordingly, I conclude the transfer did increase the compliment of lawyers by two.

II

The union contended the transfer of family court work from PSWs to the legal services branch contravenes an implied contractual prohibition against the assignment of bargaining-unit work to employees outside the unit. In the first interim decision, I addressed this argument in a preliminary manner, concluding the agreement at hand contained such an implied term and listing the criteria to be weighed in determining whether it had been violated:

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)

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:

Arbitrators have followed a similar approach with respect to employees other than supervisory personnel who are excluded from the collective agreement 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 his [i.e. 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. (pages 17 to 20)

The parties disagree as to how each of the three criteria identified in this preliminary ruling--i.e. quantity of work, quality of work and overlap of duties--applies to the facts at hand.

As to the quantity of work criterion, union counsel notes the amount of arrears work in family court transferred from PSWs to three lawyers in the legal services branch is sufficient to occupy two of them on a full-time basis, whereas employer counsel notes this type of work consumed a very small part of the working hours of each PSW. In the passage quoted above, Brown and Beatty focus upon the time devoted to the contested work by those outside the bargaining unit. Arbitrator Burkett in Irwin Toy adopted much the same focus, suggesting there would be a breach of the collective agreement if the amount of bargaining unit work assigned to a supervisor was sufficient to occupy an employee in the unit on a full-time basis. He came to this conclusion because the purpose of the implied term protecting the work of the unit is to ensure an employee’s job security, based upon seniority rights under the collective agreement, is not undercut by transferring work outside the unit. I agree with his analysis. As the amount of work transferred to the legal services branch is sufficient to occupy two people, this factor weighs in favour of finding the collective agreement has been violated.

As to the quality of work criterion, union counsel notes there is no evidence indicating PSWs lack the skills required to continue defending arrears in family court, whereas employer counsel notes lawyers in the legal services branch do not perform the vast majority of duties listed on the PSW position specification which counsel characterized as “providing support to clients.” In the absence of any evidence demonstrating a person called to the bar is better suited to defending arrears in family court than is a PSW, I see no management interest in transferring this work to lawyers which should over-ride the job security of members of the bargaining unit in the context of determining the precise scope of the implied term protecting the work of the unit.

The third criterion is overlap in duties. Union counsel describes the duties in issue as defending arrears in family court and notes this work was performed exclusively by PSWs until they were laid off. Describing the pertinent duties more broadly, as defending arrears in any level of court, employer counsel notes such work was done by both PSWs and lawyers before the reorganization of welfare services, even though these two types of employees appeared in different levels of court. In support of the narrower description, union counsel argued an overlap in duties is relevant only in a situation where it precludes separating the work done by one group from that done by the other. An example of such a scenario would be registered practical nurses and registered nurses both changing dressings for patients on a particular ward in a hospital. According to this line of argument, an overlap of this nature prevents both groups from claiming exclusive ownership of their common task because there would be no basis for assigning it to either. Counsel for the union contended the situation at hand is different because PSWs defended arrears in a different level of court than did lawyers. I agree. Until the reorganization of the welfare system, the defense of arrears in family court was exclusively the function of PSWs. The claim of bargaining unit employees to that work, as an enhancement to their job security, should not be diminished by the defense of arrears by lawyers in superior court by lawyers.

This analysis leads me to conclude the use of lawyers to defend arrears in family court contravenes the implied contractual prohibition against the assignment of bargaining-unit work to employees outside the unit. This work belongs to the union in the sense it must be done by members of the bargaining unit if it is done at all.

III

The employer contended the defense of arrears in family court does not belong to former PSWs in particular, even if it does belong to the union in general. The implied term of the collective agreement, protecting the work of the bargaining unit, allows the union to claim this work, but this term does not give one member of the bargaining unit a greater claim than any another. To found a claim on behalf of former PSWs, the union must rely upon the protection against layoff afforded to them by article 20 of the collective agreement.

This application of this article was discussed in a preliminary manner in the first interim decision:

OPSEU contends the layoff of PSWs 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 PSWs 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 PSWs 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. …

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 PSWs 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. …

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). …

The next question to be addressed is whether the grievors 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. (pages 6 to 14)

As the defense of arrears in family court constituted much less than 50% of the work of a PSW, article 20 does not entitle any of the grievors to follow this work to the legal services branch.

IV

PSWs assisted both disabled clients and single parents to secure and maintain arrangements for spousal or child support. As single parents are no longer the responsibility of the Ministry, the union makes no claim to work with them. Claiming PSWs should have been retained by the Ministry to assist disabled clients, the union contends the employer’s decision not to provide this service was an improper exercise of management rights.

Commencing in January of 1998, Charlotte Wheeler led the team mandated to develop an organizational structure for the Ontario Disability Support Program (ODSP). She testified the Ministry’s initial decision not to include PSWs in the staffing model was made before the enabling legislation was proclaimed in June of 1998. The transfer of files for single parents from the Ministry to municipal delivery agents occurred one agent at a time, beginning in the fall of 1998 and ending in late 1999. Before files were transferred to each delivery agent, the affected Ministry employees were required to decide whether they would seek employment with that agent. In the summer of 1999, the Ministry reviewed and affirmed the initial decision to eliminate the position of PSW, and all PSWs remaining in the employ of the Ministry received surplus notices. Ms. Wheeler testified these notices were issued in June of 1999. According to her, the review of the staffing model occurred before employees were notified of the impending lay off, but the briefing note produced in the course of the review suggests otherwise. The note is dated August 18, 1999 and says revising the staffing model to include PSWs “would impact on the entire surplussing exercise,” suggesting the note was written after surplus notices had been served.

In a memorandum dated March 8, 2000, ODSP managers were informed the Ministry was endeavouring to have Legal Aid Ontario fund legal assistance for clients seeking child support, and the mangers were directed “in the interim” to implement a six-month bring forward system” for clients who required assistance to obtain support. Ms. Wheeler testified that Legal Aid Ontario declined to assume this role.

Ms. Wheeler testified about the rationale for not including PSWs in the ODSP staffing model. During examination-in-chief, she said her initial instructions were to develop a structure which would render the reorganization of the welfare system “cost-neutral” in the sense the workforce would be reduced by a percentage equal to the percentage of the welfare caseload to be transferred to municipal delivery agents when they assumed responsibility for single parents. As single parents were estimated to be 40% of the caseload, the initial target for staff reduction was also 40%. Nonetheless, Ms. Wheeler recommended a staff reduction of only 34% to ensure the needs of disabled clients were met. This recommendation was accepted. All positions were reviewed in determining the new staffing structure for ODSP.

Ms. Wheeler described in examination-in-chief how her team reviewed the position of PSW. They estimated single parents made up only six per cent of the population of disabled clients who would remain the responsibility of the Ministry. As the current caseload of disabled clients across the province was approximately 200,000, the cohort of single parents with disabilities was estimated to be 12,000. Some of these 12,000 had support in pay, others had assigned their support entitlement to the Ministry, and still others were not required to pursue support. The remainder of the 12,000 were described by Ms. Wheeler as the “backlog” of disabled clients in need of assistance to secure support arrangements. As to new disabled clients, who would be added to the welfare rolls after the implementation of ODSP, it was assumed 80% of them would initially receive Ontario Works (OW) benefits from a municipal delivery agent before transferring to ODSP. (This assumption was based upon experience under the former welfare system, where 80% of Ministry clients under the Family Benefits Act (FBA) came from General Welfare (GW) administered by municipalities.) As municipal delivery agents were required to employ FSWs who would assist clients in obtaining child support while on OW, Ms. Wheeler’s team assumed most disabled clients coming from OW would have support arrangements in place when they entered ODSP. Based upon the “temporary nature” of work securing support for the backlog of single parents, and based upon the “small amount” of work foreseen in securing support for new clients entering ODSP, Ms. Wheeler recommended the Ministry not employ PSWs to assist disabled clients. Her recommendation was accepted and reflected in the ODSP staffing model approved by June of 1998.

Also during examination-in-chief, Ms. Wheeler testified the cost of employing PSWs had exceeded the amount of money collected by the Ministry as a result of support orders being assigned to it, including money collected under assignments not resulting from the work of PSWs.

In cross-examination, Ms. Wheeler admitted the population of disabled clients with support issues included not only single parents but also parents in blended families and childless clients with an entitlement to spousal support. However, she went on to say there was no statistical basis for determining the number of disabled clients in the latter two categories. Ms. Wheeler also conceded two of the predictions used in developing the staffing model turned out to be wrong. The reduction in the welfare case load, resulting from the transfer of single parents to municipal delivery agents, turned out not to be 40% as predicted but closer to 30%. The actual figure was known before PSWs received their surplus notices in June of 1999 but did not prompt any change in the staffing model. The prediction that 80% of ODSP clients would come from OW also proved to be erroneous. Only 60% actually have come from OW, but this trend did not emerge until late 1999 after PSWs had been surplussed.

The options for provision of services relating to family support in the ODSP were reviewed in the briefing note mentioned above. The relevant portion of the “background” section of the note states:

• Historically, the majority of the work for the provincial PSWs was generated by the sole support parent caseload. In December 1997, there were approximately 120 PSWs providing service to 83,000 sole support parent cases. As of the end of September, all the sole support cases on FBA will have been transferred to municipalities. …

• Within the ODSP caseload, there are 13,457 single parents with dependants. It is estimated that approximately 4,500 of the existing cases may require family support services (this number based on the 13.5% with support in pay and the additional 20% with assignments). Analysis to date predicts that under ODSP, there will be limited support activity once the SSP caseload is transferred to municipalities.

• For the 20% of applicants who apply directly for ODSP, it is estimated that less than 500 will have support issues each year. The job description of the Income Support Specialist (ISS) has been reviewed to ensure that the Ministry can provide some services related to support. The ISS will continue to complete declarations of support …

• There is also a potential workload in the backlog of ODSP cases who are singles with dependents and without support or assignments in place. It is estimated that approximately 62% of singles with dependents do not have any support or assignments. Based on the existing number of singles with dependents on ODSP, (13,457 cases), there is a potential that 8,843 cases could be pursued to establish support or assignments.

• Based on the projected caseload, it is estimated that if the family support function were to remain in the ODSP, approximately 24 positions would be needed to service the ODSP singles with dependants.

• 80% of all ODSP applications come through OW. Applicants in immediate financial need apply for OW and are referred to the DAU by OW. Once a person is deemed to be a person with a disability, ODSP staff reconfirm the financial eligibility of the applicant and grant ODSP income support. It is anticipated that during the time an applicant is pending adjudication, much of the family support intervention will be initiated and completed by the OW-FSWs.

• Program reviews will ensure that municipalities are meeting this requirement.

• Staff have reviewed the available options to determine a reasonable approach for the delivery of family support services. The cost effectiveness of the function is based on statistical information that combines GW/FBA and OW/ODSP data. This makes it difficult to concretely define the workload and potential cost implications of the FSW activities.

The briefing note goes on to review three options: (1) adding a FSW component to ODSP; (2) finding an outside service provider; and (3) leaving clients to pursue support on their own using existing services in the community. The “labour relations issues” entailed in the first option are summarized:

• Legal ramifications from provincial PSWs who took employment opportunities with municipalities because they were advised the family support function was not to be included in the ODSP staffing model.

• HRB would have to rescind surplus notices to all provincial PSWs.

• High potential for policy and individual grievances; cost of grievances is unknown.

The note ends with the following comparison of the labour relations issues involved in the three options:

• The highest potential for costly labour relations issues is to include the family support function within the ODSP. This option would impact on the entire surplussing exercise and could negatively impact existing Memorandums of Understandings with municipalities.

• The lowest potential for labour relations issues is to integrate existing family support services.

The background section of a draft version of this briefing note contained the following:

• There is also a potential workload in the backlog of ODSP cases who are sole support parents with dependents and without support or assignments in place. It is estimated that approximately 62% of SSPs do not have any support or assignments. Based on the existing number of singles with dependents on ODSP, (13,457 cases), there is a potential that 8,843 cases could be pursued to establish support or assignments. Based on the existing sole support caseload on ODSP, (13,457 cases), there is a potential that 8,843 cases could be pursued to establish support or assignments.

• The average support order is $2622 per year. Based on the potential workload, the Ministry could achieve a yearly savings of $17.5 million less the cost of recovering the funds if all these cases had a positive outcome. However based on the historic figures of 13.5% support in pay and 20% with assignments (33.5%), the more realistic savings would be $5.8 million minus the cost of recovery.

• MCSS lacks the statistical information to make concrete projections on the workload and the cost effectiveness of the FSW program. It is estimated that provision of FSW services to ODSP clients will cost approximately $2.5 million. However, the actual cost will depend on the total number of FSW s hired, the associated ODOE costs and whether the service is centralized or delivered regionally. The estimated savings will be approximately $1.13 million (this does not include the potential savings from the backlog or payments to FRO). (emphasis added)

The first bullet appears in the final note with only minor changes of wording, but the other two have no counterpart in the final note.

An e-mail from Jennifer Creagh to Charlotte Wheeler, dated July 29, 1999, indicates as of May 1999 18,459 ODSP clients were single-parents, 62% of whom (i.e. 11,500) had no support in pay or assignment, and states the support orders or agreements relating to the rest were for an average of $218.51 per month. Based on the assumption that one-third of the 11,500 single parents without support would succeed in obtaining the average level of support if offered assistance, Ms. Creagh calculated assisting them to do so would reduce welfare benefits by $10 million annually. She offered no rationale for assuming a success rate of one in three and provided no estimate of the cost of providing assistance. Ms Wheeler testified many of the 18,459 single parents mentioned by Ms. Creagh were improperly characterized as ODSP cases when they actually were single parents without a disability who had not yet been transferred to municipal delivery agents. In this regard Ms. Wheeler referred to an e-mail to her from Annie Lan, dated April 13, 1999, stating the number of single clients with children on ODSP as 11,344.

V

The role of arbitrators in reviewing management decisions was discussed in the interim award where I quoted from OPSEU (Boulet) and Ministry of Community and Social Services, GSB File No. 1189/99, decision dated August 8, 2000:

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 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)

In final argument, union counsel relied primarily upon a third passage from Bousquet stating a management decision must bear a rational relationship to the facts upon which it is based:

In commenting on the use of the term “unreasonable” in some earlier decisions of the Board dealing with the good faith exercise of the statutory right to release a probationary employee, the Board stated, in Shaw, at pp. 5-6:

While this term [unreasonable] is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him if we find that [the employer’s] assessment was "unreasonable" that the employee had not met the job requirements. Reasonableness in this context is a species of good faith. Whereas the phrase “bad faith” could encompass a release improperly motivated or maliciously intended, “unreasonableness” speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If, for example, there was simply no evidence that a probationary employee had not fulfilled or could not fulfil the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable exercise of authority. …

It is easy to brand as “irrational” any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a board of arbitration might have come to a different decision.

As also noted by the Board in Shaw, the rational relationship factor is nearly synonymous with reasonableness. And reasonableness, in the context of the case, is a species of good faith. In the case before us, in outlining the good faith obligations of the Employer, we include the further elements of reasonableness and a rational relationship between the facts leading to the making of the decision and the decision itself.

Where the Employer cannot be shown to have denied the Grievor's requests for reasons which are “improperly motivated or maliciously intended,” such as his being a francophone; for reasons prohibited by s.4 of the Human Rights Code; or because of a desire to impose disguised discipline, the Employer will have satisfied the first aspect of the good faith test identified in Shaw. …

Where there is some evidence permitting an objective assessment that the decision flowed logically from the facts, the Employer will have satisfied the second aspect of the good faith test (reasonableness). If the conclusion arrived at by an employer is one that is reasonably possible based on the last mentioned evidence, then the necessary rational relationship between the facts and the decision will exist. (pages 59 to 63; emphasis added)

Union counsel contends the Ministry’s decision not to utilize PSWs under ODSP is not objectively supported by the facts. Ms. Wheeler’s claim that PSWs had not “paid their freight” was said to be wrong because it was based exclusively on the amount of money collected by the Ministry from “deadbeats” and ignored money saved by the Ministry when support paid voluntarily led to a reduction in welfare benefits. Counsel for the union relies heavily upon the draft briefing note referring to a saving of $1.13 million; counsel also mentioned in passing the $10 million saving cited in Ms. Creagh’s e-mail. He suggested municipal delivery agents will fail to secure support arrangements for disabled clients moving from OW to ODSP, just as municipalities in the past did not secure support for welfare clients moving from GW to FBA. In addition, counsel contended the Ministry’s final decision in the summer of 1999 was flawed because it was based in part upon the labour-relations costs of admitting the decision initially made in early 1998 had been wrong.

Employer counsel argued the final briefing note did not attempt to determine whether PSWs would pay their freight under ODSP because it was not feasible to predict what would happen under the new welfare system based upon what had happened under the old one. In this regard, I was reminded that the briefing note acknowledges it was “difficult to concretely define the workload and potential cost implications of the FSW activities” based on “statistical information that combines GW/FBA and OW/ODSP data”. Counsel suggested the employer acted properly in designing a staffing model that would reduce staff in approximate proportion to the reduction in caseload achieved by transferring single parents to municipal delivery agents. In addition, employer counsel submitted taking labour relations factors into account when making decisions was good management.

The primary thrust of the union’s argument is that the decision not to employ PSWs was unreasonable because the cost of employing them would be less than the amount they would save for the Ministry by way of reduced welfare benefits paid to disabled clients. This argument discounts entirely the potential for FSWs employed by municipal delivery agents to achieve much of the savings which might otherwise be attained by PSWs in the employ of the Ministry. Both when the staffing model was designed in 1998 and when PSWs received surplus notices in 1999, the Ministry’s prediction, based on past experience, was that 80% of new disabled clients would transfer to ODSP from OW. Ms. Wheeler testified she expected most transferring clients would have their support issues addressed by municipal FSWs while on OW. This expectation is set out in the briefing note which also states: “Program review will ensure the municipalities are meeting this requirement.” Union counsel’s contention that municipal delivery agents will not provide the required service to new disabled clients is based upon the premise that municipalities failed to secure support for clients transferring from GW to FBA in the past. The flaw in this contention is that municipal delivery agents are now required to employ FSWs to serve single parents on OW, whereas single parents were not the responsibility of municipalities under GW in the past and there is no evidence to suggest they previously employed staff analogous to FSWs.

Disabled clients in the backlog transferring from FBA to ODSP, who lacked support arrangements, would not be assisted by municipal FSWs. However, the task of securing initial support arrangements for these backlog clients was temporary in nature and could not occupy PSWs on a permanent basis.

There was some ongoing support work for disabled clients that could not be accomplished by municipal FSWs serving only OW clients. This work included: (1) variations in support for disabled clients in the backlog transferring from FBA to ODSP who were never part of OW; (2) for the projected 80% of new clients transferring to ODSP from OW, variations arising after they transferred; and (3) for the projected 20% of new clients entering ODSP directly, both initial support arrangements and variations. As to new clients entering ODSP directly, the briefing note indicates staff would be directed to refer them to “existing community resources” for assistance with support issues. The note makes no mention of backlog clients or new clients coming from OW, but they too could be referred to existing community resources for help with variations. It was reasonable to assume these forms of assistance would achieve some part of the reduction in welfare benefits that could be obtained by PSWs.

Counsel for the union characterized the saving of $1.13 million mentioned in the draft briefing note as a net saving—i.e. the projected reduction in welfare benefits resulting from the provision of PSW services minus the estimated cost of providing those services. Ms. Wheeler was not asked whether this interpretation is correct. It is not the most plausible reading of the draft note which states: “The estimated savings will be approximately $1.13 million (this does not include the potential savings from the backlog or payments to FRO).” This sentence might be read as saying $1.13 million is the projected saving in welfare benefits resulting from the provision of PSW services to new ODSP clients—i.e. the gross saving before costs rather than the net saving after costs. When the reference to $1.13 million is read in the context of the three bullets quoted, this interpretation is more plausible than the one suggested by union counsel. The explicit exclusion of backlog clients in the third bullet indicates the figure of $1.13 million relates to new clients. Backlog clients are addressed in the first bullet; they appear also to be the subject of the second, where the words “these cases” seems to be a reference to the 8,843 backlog cases mentioned in the first. The second bullet says “savings would be $5.8 million minus the cost of recovery” (emphasis added), indicating the word “savings” is used in the context of the backlog to mean the reduction in welfare benefits before costs are deducted. If the “savings” of $1.13 million in the third bullet likewise represented the reduction in welfare benefits for new clients, this decrease would not warrant providing PSW services at the cost of $2.5 million estimated in the same bullet.

The accuracy of Ms. Creagh’s estimate that PSWs could produce a reduction of $10 million in welfare benefits for existing ODSP clients is put in doubt by Ms. Wheeler’s testimony that this estimate was based on a grossly overstated number of disabled single parents. Ms. Creagh dealt with the benefits of PSW services, but she made no attempt to quantify the cost of providing them. Most important of all, her e-mail deals exclusively with obtaining initial support arrangements for existing clients, work which was temporary in nature.

Union counsel also suggested the issues relating to labour relations mentioned in the briefing note should not have been considered by the Ministry in the summer of 1999 when the staffing model for ODSP was reassessed. The briefing note stated the revision of this model to include PSW services had a higher potential for labour disputes than other options and went on to say: “This option would impact on the entire surplussing exercise and could negatively impact existing Memorandums of Understandings with municipalities.” This passage indicates management was concerned about the labour-relations costs of revising the initial staffing model. That model had provided the basis for some very significant developments: decisions by employees in 1998 and 1999 about whether to take jobs with municipal delivery agents; and the issuance of layoff notices in the summer of 1999. The note raised concerns about abandoning a model upon which so much had been based. If these concerns had been the determining factor in the Ministry’s decision not to revise the staffing model, there would be an argument that the decision was an improper exercise of management rights.

The evidence falls short of proving, on the balance of probabilities, that labour-relations issues were the determining factor. The issues arising from developments in late 1998 and 1999, developments themselves based upon the initial staffing model, could not have had any impact on the design of that model in early 1998. The decision made at that time, not to include PSW services, was based entirely upon other factors. With one exception, none of those factors had changed significantly by the summer of 1999. The exception is the reduction in the welfare caseload, resulting from the transfer of single parents to municipal delivery agents, which turned out not to be 40% as predicted but closer to 30%. There is no evidence of a significant change in any of the factors relating specifically to PSW services which had formed the basis for the decision not to include such services in the initial staffing model.

The analysis set out above leads me to conclude there was a rational relationship between the decision not to include PSWs in ODSP and the facts upon which the decision was based. The decision was not an improper exercise of management rights.

VI

In summary, I have concluded:

1. The use of lawyers to defend arrears in family court contravenes the implied contractual prohibition against the assignment of bargaining-unit work to employees outside the unit;

2. Article 20 does not entitle any of the grievors to follow their work to the legal services branch; and

3. The Ministry’s decision to discontinue PSW services was not an improper exercise of management rights.

I remain seized to deal with any matters arising in the implementation of this award.

Dated at Toronto this 2nd day of June 2003.