GSB# 2002-2441

UNION# 2002-0999-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Union

• and -

The Crown in Right of Ontario (Ministry of Agriculture and Food)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Richard Blair Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Melissa Nixon Senior Counsel Management Board Secretariat

HEARING

November 26, 2004.

Decision

The Union alleges that the Employer has contravened a Memorandum of Settlement dated November 25, 2003 (“the Memorandum”) in respect of its treatment of Mr. Wayne Miller. The Memorandum required the Employer to fill a number of Meat Hygiene Officer (“meat inspector”) positions through a posting and competition process. At the conclusion of the process, Mr. Miller secured a full-time classified meat inspector position in the Guelph North area. Mr. Miller resides in Thornloe and he has historically worked in the New Liskeard area. Given the considerable distance between Thornloe and the location of his current position, Mr. Miller is required to travel to and from Arthur and to stay at Arthur during his workweek. The Union submits that the Employer’s contravention of the Memorandum has deprived Mr. Miller of a position closer to his residence. The Employer disputes the Union’s claim and takes the position that it has complied fully with its obligations under the Memorandum.

Mr. Miller has worked as a meat inspector since 1976. Up until 1996, he had the status of a full-time classified meat inspector. He was laid off in 1996, along with other meat inspectors in the Province of Ontario, when the government of the day determined that meat inspection would be performed on a fee-for-service basis. For the next seven years, Mr. Miller worked on contract as a fee-for-service meat inspector. From 1980 until 2003, Mr. Miller performed his meat inspection duties in the New Liskeard area, primarily at plants 238, 245 and 291.

For various reasons and in the context of the Union’s bargaining unit integrity grievance (“the BUI grievance”), the recently elected government decided that meat inspection services should be performed again by public servants. After a number of days of mediation focusing on meat inspectors in light of the BUI grievance, the Union and the Employer executed a Memorandum dated November 25, 2003. The text of the Memorandum reads as follows:

Whereas the Union filed the above noted Union grievance with Management Board Secretariat under the collective agreement between the Employer and the Union, the parties hereby agree in partial resolution of the grievance GSB #2441/02 to resolve the matter as it relates to the meat inspectors in the Ministry of Agriculture and Food without prejudice or precedent on the following basis:

1. The Employer agrees to fill through posting and competition, sixty-one (61) meat inspector positions as permanent classified Meat Hygiene Officer positions. These positions will be posted expeditiously.

2. In addition to the positions posted pursuant to paragraph 1 above, the Employer shall also fill through posting and competition, an additional fifty-seven (57) unclassified Meat Hygiene Officer positions. These positions will be posted expeditiously.

3. The parties agree that the initial competition mentioned above will be restricted to the individuals listed on Appendix A.

4. The competition for the positions shall be conducted in good faith. The parties agree that length of demonstrated experience as a fee-for-service meat inspector (including Meat Hygiene Officer) performing inspections at plants licenced under the Meat Inspection Act (Ontario) and enforcing the Act, regulations and related legislation is one of the several relevant factors to be considered in the competition.

5. Persons who receive positions pursuant to the competition outlined above, and who have at least twelve months’ experience as a meat inspector on a fee-for-service contract with the Ministry of Agriculture and Food, shall be classified at the level of Agricultural Specialist 3. Persons with less than twelve months experience will be classified at the Agricultural Specialist 3 level if they have completed the appropriate training and assessment. Others will be classified at the Agricultural Specialist 2 level until such time as they have completed the appropriate training and assessment or they attain twelve months’ experience, whichever comes first.

6. The parties agree that the Employer may continue to contract, on a fee-for- service basis, the current meat inspectors, and shall do so until the completion of the competition process described above.

7. The grievance is hereby withdrawn with respect to meat inspectors in the Ministry of Agriculture and Food. The parties agree that Vice Chair Ken Petryshen shall remain seized with respect to the implementation of this Memorandum of Settlement.

8. This agreement is in partial settlement of the above noted Union grievance, as it pertains to the issue of meat inspectors in the Ministry of Agriculture and Food, and is without prejudice to any other matter including any outstanding issue in the grievance not expressly resolved by this agreement.

Of relevance for our purposes is that the Employer agreed to fill sixty-one permanent classified meat inspector positions and fifty-seven unclassified meat inspector positions through posting and a competition. The competition was restricted to individuals who at the time were fee-for-service meat inspectors. The Employer agreed to conduct the competition for the positions in good faith and I remained seized with respect to the implementation of the Memorandum.

Prior to the mediation, the Employer assessed its needs in each of its eight area offices. The manager in each area examined historical data such as hours of work and attempted to predict future developments in order to determine how many full-time classified and unclassified positions would be required in their area and where those positions should be located. The number of classified and unclassified positions set out in the Memorandum reflects the Employer’s assessment of its needs at the time.

Although the tasks associated with running a competition of this size were quite challenging, the Employer completed the process expeditiously. The process involved testing and interviewing approximately 120 applicants for the 118 positions. As part of the process each applicant filled out a “Notice of Intent” form which provided an indication of the type of position and the work location an applicant was interested in. Mr. Miller indicated that he was interested in either a full-time or a part-time position and that his first choice of location was the Midhurst area, which includes New Liskeard. His second choice was the Lindsay area and his third was the Guelph North area.

The Employer decided that there would be nine full-time classified meat inspector positions in the Midhurst area. It also determined that it would operate with two unclassified positions in the New Liskeard area. One unclassified position would have plants 291 and 238, and the other one would have plants 245 and 292. Ms. T. Draper, the Manager for the Midhurst area, testified about the variety of reasons which led the Employer to decide to use two unclassified employees in the New Liskeard area. She indicated that Mr. Miller had been working excessive hours on a fairly consistent basis and, in addition to the cost to the Employer, this posed a health and safety concern. She also indicated that two unclassified employees would provide the Employer with the flexibility it needed to serve the needs of the area best, having regard the slaughtering schedule of the plants, and such issues as water testing, dead stock calls and further processing.

In March 2004, Mr. R. Rangai, the Meat Inspection Field Manager, offered Mr. Miller a full-time classified position in the Guelph North area. Mr. Miller ranked tenth in his aggregate score and he was therefore not entitled to one of the nine full-time classified positions in the Midhurst area. Mr. Miller was aware of the possibility that he might not secure a position in the Midhurst area due to the competitive process. The Union does not take issue with the ranking scheme adopted by the Employer and Mr. Miller’s particular ranking within that scheme. When offered the position in Guelph North, Mr. Miller advised Mr. Rangai that he preferred to work in the area closer to his residence. Mr. Miller had lived in the area for many years, had been on Council for two terms and had been the Reeve since 1990. Mr. Rangai told him that he would consider this request and get back to him. Mr. Rangai subsequently offered Mr. Miller one of the two unclassified positions in the New Liskeard area. Mr. Miller believed that accepting either of the unclassified positions would not provide him with sufficient hours. He also felt that it was not in the Employer’s interests to operate with two unclassified employees in that area. Mr. Miller proposed to Mr. Rangai and then later to Ms. Draper that the Employer create a position which serviced plants 238, 245 and 291. They were not receptive to his proposal. Mr. Miller then accepted the full-time classified position located in the Guelph North area, incurring his own travel and living expenses.

The Employer did hire two unclassified employees to service its needs in the New Liskeard area. Mr. Terryberry was hired to work at plants 238 and 291, while Mr. Rivet was hired to work at plants 245 and 292. Beginning in the first week of April 2004, Mr. Terryberry was assigned hours of work at plant 245 in addition to hours at plants 238 and 291, his assigned plants. Certain factors, including a delay in the re-opening of a plant in Quebec, resulted in more hours of work at plant 245 than previously anticipated. A chart prepared by the Employer shows the hours worked by Mr. Terryberry at plants 238, 245 and 291, and the hours worked by Mr. Rivet at plant 245 between April 5 and November 19, 2004. The chart illustrates that the two unclassified employees shared hours of work at plant 245 during some weeks in this period. Mr. Terryberry did not work any hours at plant 245 between August 23 and October 22, 2004. During the April to November period, Mr. Terryberry was also provided with some hours of work at plants outside of plant 245 and his assigned plants. When the Employer offered one of the unclassified positions in the New Liskeard area to Mr. Miller, Ms. Draper was at least aware of the possibility that additional hours of work would be available at plant 245. However, the Employer did not specifically advise Mr. Miller that he could be assigned hours of work at plants other than at plants 238 and 291 when he was offered one of the unclassified positions.

The Union argued that the Employer contravened the Memorandum in two respects in relation to Mr. Miller. Firstly, the Union submitted that there are sufficient hours for the Employer to have created a classified position in the New Liskeard area. In noting the length of time Mr. Miller has worked in the area as a meat inspector and the number of hours available in the area, particularly at plants 238, 245 and 291, the Union argued that a tenth full-time classified position in the Midhurst area should have been created and offered to Mr. Miller. The Union submitted that the Employer’s failure to create such a position was arbitrary and in a broad sense exhibited bad faith. The Union made it clear that it was not requesting that the Employer create a classified position at the expense of the other employees who secured classified positions in the Midhurst area.

The Union also argued that the Employer effectively mislead Mr. Miller when it offered him an unclassified position associated with two plants without indicating that there would be hours of work available to him at other plants, particularly at plant 245. The Union argued that misleading Mr. Miller in this way constituted bad faith. The Union noted that the hours of work assigned to Mr. Terryberry reflected the proposal Mr. Miller had made to Mr. Rangai and Ms. Draper, a proposal the Employer rejected. The Union submitted that Mr. Miller should now be offered a classified position in the New Liskeard area or at least be offered an unclassified position which accurately reflects the number of hours available to him, to put him in the position he would have been in but for the breach of the Memorandum. Counsel for the Union referred me to the following decisions: Re McIntosh, 3027/92 (Dissanayake) and Re OPSEU, 1118/93 (Mikus).

Counsel for the Employer emphasized the specific terms of the Memorandum in her submission that the position advanced by the Union on behalf of Mr. Miller ought to be rejected. Counsel submitted that the Employer complied with its obligations under the Memorandum and that the Union failed to establish that the Employer acted in bad faith in its treatment of Mr. Miller. Counsel for the Employer relied on the following decisions: Re Landry-King, 1593/84 (Knopf), Re Edgett et al, 2476/90 (Dissanayake), Re Harrison et al, 1164/92 (Knopf), Re Rowland Carey, P/0010/97 (Leighton), Re Bousquet, 541/90 (Gorsky) and Re Young et al, 1455/00 (Abramsky).

The obligations on the Employer arising from the Memorandum are clear and very specific. The Employer was obligated to create and fill 61 permanent classified and 57 unclassified meat inspector positions. It was also required to conduct the competition for these positions in good faith. With respect to this latter obligation, the Union does not take issue with the score and ranking of Mr. Miller in the competitive process. Not surprisingly, the Memorandum does not address where the positions to be created and filled are to be located. As one would expect in these circumstances, this determination was left to the discretion of management. The Employer did create 61 permanent classified and 57 unclassified positions. To give effect to the Union’s first submission in the absence of any complaint about how the Employer created and filled the other positions would require the Employer to have created and filled 62 permanent classified positions. Quite simply, the Employer was not required by the Memorandum to fill more than 61 classified positions. It was also not required to create and fill a classified position in the New Liskeard area.

In assessing its operational needs, the Employer determined that it required two unclassified employees to service properly the New Liskeard area. In making this decision, Ms. Draper considered the variety of factors referred to previously, including the hours of work available in that area. Mr. Miller had been working excessive hours for some time, a matter conceded by the Union. The availability of two unclassified employees in that area would provide the Employer with flexibility in meeting existing operational requirements. Although Mr. Miller viewed the matter differently, there is no basis for concluding that the decision to use two unclassified employees and not create a classified position in the New Liskeard area was unreasonable in the circumstances. Given that it was based on operational considerations and not intended to detrimentally affect Mr. Miller, it is my view that the Employer’s decision was not arbitrary or made in bad faith. Therefore, it is my conclusion that the failure of the Employer to create and fill a classified position in the New Liskeard area does not constitute a contravention of the Memorandum.

In considering the allegation that the Employer acted in bad faith by misleading Mr. Miller when it offered him one of the unclassified positions, I agree with counsel for the Employer that the Union has failed to establish bad faith by the Employer. As a result of his desire to work closer to his residence, the Employer offered Mr. Miller one of two unclassified positions, with each position having responsibility for two plants. Mr. Miller felt such an offer was not viable and that he would need a position that was responsible for plants 238, 245 and 291. For reasons referred to previously, the Employer was not prepared to accommodate this request and Mr. Terryberry and Mr. Rivet ultimately filled the unclassified positions. It is important to recognize that there has not been a change to the unclassified positions in the New Liskeard area. Although Mr. Terryberry has had the opportunity to work at plant 245 and other plants due to various factors, thereby giving him more hours, at least temporarily, his unclassified position is still only responsible for plants 238 and 291. The Union argues that Ms. Draper should have advised Mr. Miller that additional hours would likely be available for him at plant 245 when the Employer offered him the unclassified position. In my view, it was not incumbent on the Employer in these circumstances to specifically disclose what it anticipated might occur with respect to future work assignments, particularly when the availability of extra hours was anticipated to be temporary. Given his experience with the industry and the New Liskeard area, Mr. Miller would likely have been in as good a position as anyone to predict how many hours he would have received from plants 238 and 291, as well as recognize that additional hours would likely be available to him at other plants. It is clear that Ms. Draper did not intentionally withhold relevant information from Mr. Miller. It is likely that she believed that any information about a temporary increase in hours at other plants was not particularly relevant, given that Mr. Miller wanted the certainty of having three plants assigned to him and this was not going to transpire. Mr. Miller certainly did not testify that his decision would have been different if he knew he would get some hours at plant 245 in circumstances where the number of hours and their continued availability was uncertain.

If one were to assume that the Employer mislead Mr. Miller when it offered him an unclassified position and such conduct breached the Memorandum, the remedy for such a breach would arguably be a direction to the Employer to again offer Mr. Miller an unclassified position in the New Liskeard area. Indeed, the Union argued that such a direction would be appropriate in order to place Mr. Miller in the position he would have been in but for the breach. However, Mr. Miller made it very clear during his testimony that he was no longer interested in an unclassified position. He testified that he was concerned about being in an unclassified position and having it eliminated in the future for a classified position, for which he might not be selected. Mr. Miller may also have recognized that there is no guarantee of hours for the two unclassified positions in the New Liskeard area and that any recent increase in hours for Mr. Terryberry may be temporary. Accordingly, even assuming a breach of the Memorandum, there would be no point in directing the Employer to offer Mr. Miller an unclassified position when he would not accept such on offer.

For the foregoing reasons, it is my conclusion that the Employer has not contravened the Memorandum in its treatment of Mr. Miller. Therefore, the Union’s claim on behalf of Mr. Miller is hereby dismissed.

Dated at Toronto, this 27th day of January, 2005.