GSB# 2001-1239

UNION# 2001-0603-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Derry)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Suneel Bahal Counsel Management Board Secretariat

HEARING

January 11, 2005.

Decision

The grievor is a Resource Technician 2 (“RT2”) in a position commonly referred to as a “crew boss”. He is a seasonal employee who, from roughly May to August of each season since 1998, has worked as a member (initially as an RP1 “crew member” and since 2001 as an RP2 “crew boss”) of one of a number of fire crews based at the Ranger Lake Initial Attack Fire Base, located approximately an hour and half north of Sault Ste. Marie.

In this grievance he claims that an assignment which consisted of travel outside of his sector (to Washington State) was improperly given to a junior employee. The parties agree that had it been made on the basis of seniority standing at the time, the assignment would have gone to the grievor. The parties also agree that had the assignment been made to the grievor he would have earned an additional 72 hours of pay at overtime rates (I was not provided with the precise computation resulting in this agreed figure. It appears clear, however, that it represents lost hours calculated on the basis of the number of hours of work associated with the Washington assignment less the regular (and perhaps other overtime hours) the grievor actually worked during the period of time which comprised the Washington assignment. And since the grievor did not “lose” any of his regular work time, this would explain why the parties’ agreement with respect to alleged lost hours is restricted to overtime hours.)

The employer advanced a preliminary objection which the parties addressed together with the merits of the case.

Essentially, the employer argues that, as there is no provision in the collective agreement which addresses the assignment of work (whether regular or overtime hours) in the context of the facts before me, the grievance, whether as a result of my lack of jurisdiction or on its merits, must fail.

The union firstly asserts that the subject of the grievance is not the alleged improper distribution of overtime hours, but rather the alleged improper assignment of work. Although it acknowledges that the “non-assignment” resulted in the loss of overtime work, it asserts that it was the failure to make the assignment (which included both regular and overtime hours) which constituted the breach of the collective agreement. The union also acknowledges that, in making the assignment, the employer was exercising its managerial right to “assign and direct employees” under Article 2.1 of the collective agreement. It claims, however, that the employer is obliged to exercise such right reasonably and that, in the circumstances of this case, it failed to do so by not assigning the work in question to the grievor on the basis of his seniority.

At the commencement of the hearing some efforts were made, unsuccessfully, to effect a mutually acceptable settlement of the matter. The hearing then proceeded. And although we heard viva voce evidence (subject to cross-examination) and full legal submissions (including the citation of much caselaw), the parties explicitly agreed that these proceedings were being conducted pursuant to Article 22.16 of the collective agreement, the Mediation/Arbitration Procedure. That provision of the collective agreement contemplates a procedure whereby some of the formal aspects normally associated with the traditional arbitration procedure give way to the interests of expedition. Thus, the parties were able to conclude their cases in a single day; the results of this decision, apart from otherwise disposing of the grievance, will have no precedential value (see Article 22.16.7) and, as discussed with counsel, my reasons in this decision will be concise.

Before outlining my conclusion, it is useful to elaborate briefly on the facts giving rise to the grievance.

At the time of the grievance, the distribution of “out of sector” work was subject to the terms of guidelines prepared and promulgated by Dave Bronson, Fire Operations Supervisor. Mr. Bronson is responsible for supervising the seven three-person crews (each composed of one RT1 crew member, one RT2 crew boss and one RT3 crew leader) which operate out of the Ranger Lake station during the fire season. The guidelines were established in consultation with the seven crew leaders and were not the subject of negotiation or agreement with the union. Mr. Bronson’s uncontradicted evidence was that the guidelines were understood through that consultation to be simply that – guidelines. He explicitly reserved the right to exercise his managerial prerogative notwithstanding the guidelines. In any event, to be clear, seniority plays absolutely no part in the guidelines. Out of sector work is distributed in a rotating fashion on a crew basis – the initial assignment is by lottery, subsequent assignments are ordered in a fashion which tends to equalize the hours worked by each crew.

The assignment in question, however, was not made pursuant to the terms of the guidelines. On Sunday August 19, 2001 an e-mail was sent to the Ranger Lake fire station as well as to a number of other Ministry stations. The communication came from the Fire Duty Officer on behalf of Mike Paquette who was the Regional Executive Manager, the person from whom Mr. Bronson would seek instruction as required. The e-mail outlined to each of the recipient stations the need to assemble 10 four-person crews (composed of 2 RP1s, 1 RP2 and 1 RP3) to be deployed to Washington State the following Tuesday morning. The Ranger Lake Station was to contribute one such four-person crew to the effort.

The e-mail indicated the parameters to govern the process to be followed in selecting a crew. First among the factors identified was that crews were to be made up of the “highest seniority staff”.

Mr. Bronson, on the Sunday that the e-mail was received at the Ranger Lake Station, was on his day off in Sault Ste. Marie. Upon being advised of the e-mail by the Sector Response Officer Agent on duty at Ranger Lake, Mr. Bronson set out for Ranger Lake to effect the assignment.

Upon his arrival, he had a telephone conversation with Mr. Paquette to discuss the manner of the assignment. Mr. Bronson would have preferred to minimize the need to break up established crews in order to make the assignment (although some fragmentation would have been inevitable given that the call was for a four-person rather than the three-person crews normally employed at Ranger Lake).

However, the only information that Mr. Bronson had at his disposal that day in regard to seniority was an outdated seniority list which listed the person to whom the RP2 assignment was ultimately made as having greater seniority than the grievor (in fact the grievor was senior to her at the time).

Mr. Bronson explained that, during the summer season, he has no need to consult seniority lists with respect to crew assignments (as already indicated seniority plays no role in the assignments under the terms of the guidelines). Further, during the season, there is no other apparent need under the terms of the collective agreement to have any regard to the seniority of fire crew members. While seniority plays a role in the hiring of seasonal employees, that process is effected prior to the start of the season (when Mr. Bronson works out of Sault Ste. Marie). Similarly, while seniority plays a role in the order of layoffs, Mr. Bronson explained that historically all members of the fire crews are laid off at the same time.

Thus, the only seniority list which was available on the Sunday in question was the outdated one referred to. Further, there was no way to access further seniority information from the “CORPAY” office in Sault Ste. Marie which was closed on Sunday. And neither did Mr. Paquette have access to such information (although Mr. Bronson conceded that he did not raise the issue in his conversation with Mr. Paquette – for that very reason). What was made clear, however, in conversation with Mr. Paquette was that the assignments had to be made on the Sunday so that the affected employees’ paperwork could be processed the following day for advanced customs clearance to the U.S. in order to effect departure first thing Tuesday morning.

Thus, Mr. Bronson made the assignment on the basis of the outdated seniority list. He, only somewhat grudgingly, conceded that had he had correct seniority information at the time, the assignment might well have gone to the grievor.

Two things are apparent to me. First, the grievor had a legitimate expectation that he ought to have received the assignment either because his crew was the next to be assigned out of sector on the basis of the guidelines or, alternatively, on the basis of seniority pursuant to the terms of the e-mail. It does not inexorably follow, however, that the grievor therefore or otherwise had a legally enforceable right to the assignment.

The other conclusion which is apparent to me is that Mr. Bronson took a less than enthusiastic approach to implementing the terms of the direction received in the e-mail and clearly, and very possibly knowingly, applied incorrect information regarding seniority.

However, despite that less than stellar adherence to his instructions, I am still not satisfied that the assignment constituted a violation of the collective agreement. First of all, there is caselaw (see Gillies 2701/90 (Kennedy)) which establishes that there is nothing in the collective agreement (unlike Article COR8.2.1 of the correctional bargaining unit collective agreement) which, in any way, regulates the assignment of overtime work. And while the union, likely for that very reason, argues that this grievance is not about the distribution of overtime hours, the fact remains – as the parties’ agreement indicates – that, when all the dust settles, what is at stake in the grievance and what the grievor has allegedly “lost” are overtime hours. It is therefore possible to conclude that the grievance is, effectively, about the distribution of overtime or, perhaps put somewhat differently, is an indirect attempt to advance a claim which cannot be advanced directly.

But even if that is not an appropriate conclusion, I am still satisfied that the grievance must be dismissed. Nothing in the collective agreement ties this type of work assignment to seniority. Indeed, there is nothing at all in the collective agreement which regulates the type of work assignment in question. The employer was free to make the assignment on the basis of seniority or not. Neither am I persuaded that the e-mail instruction received in communication between managers which directed Mr. Bronson to make the assignment on the basis of seniority thereby elevated that direction to the status of a legal obligation under the collective agreement. The failure to make the assignment on the basis of seniority does not violate or otherwise impinge on any specific collective agreement right. And even if the employer was otherwise obliged to exercise its management right reasonably (a proposition which employer counsel did not embrace) where no collective agreement provision is jeopardized apart from the management’s rights clause, I am not satisfied that Mr. Bronson’s unenthusiastic and ineffectual adherence to his instructions was unreasonable in the circumstances. Mr. Bronson had to effect the assignment within strict timelines and did so on the basis of the limited information he had at his disposal. He may have been incorrect in his application of seniority, but a mere error or simple incorrectness is not to be automatically equated with unreasonable conduct.

I should note that although the union made some muted suggestions that the grievor was denied the assignment as a form of reprisal for complaints he made about working conditions – this argument was neither vigorously pursued nor clearly supported by the evidence (for one thing, it appears clear that the grievor was not unique in raising such concerns). Similarly, neither am I persuaded that the employer’s treatment of the party who received the assignment was improperly motivated or otherwise a form of improper favouritism.

For these reasons, the grievance must be and hereby is dismissed.

Dated at Toronto this 20^th day of January 2005