GSB# 2004-0851, 2004-0852, 2004-0853, 2004-0854, 2004-0855

UNION# OLB220/04, OLB221/04, OLB222/04, OLB223/04, OLB224/04

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Zamostny et al.)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Larry Steinberg Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

October 19, 2004; February 1 & 23, and July 5, 2006.

Decision

I released an interim decision in this matter on or about October 28, 2004. There, I clarified that the matter involved the unilateral transfer as Mr. Roland Anstett, a 'C' Level Manager, from the Northern Region to a similar position in the Western Region which had been vacated by the retirement of another 'C' Level Manager. The matter was adjourned pending exchange of particulars between the parties as well as advice by Mr. Anstett concerning the position he might take with respect to his rights pursuant to the Human Rights Code. In the award which follows, I have again briefly outlined the issues as well as developments between the parties and Mr. Anstett concerning their respective positions and the process.

Developments Since the release of my earlier decision, Mr. Steinberg on behalf of the Union has clarified that he no longer intends to rely upon past practice or estoppel to support the Union's position. Instead, he clarified the Union's position to the effect that where seniority rights of employees conflicted with management rights, as in the case at hand, seniority rights should take precedence. Further, if that was not the case, then management must exercise its rights in a fair and reasonable manner. That, he asserted, was not done in the case at hand.

With respect to Mr. Anstett, although he retained counsel, the Human Rights issue was deferred pending an initial decision as to whether or not his transfer to the open position constituted a violation of the collective agreement in the first instance. If not, it would be unnecessary for him to pursue his rights under the Code to remain in the position. Accordingly, Mr. Anstett in consultation with his counsel determined that it was unnecessary to have counsel present. He therefore carried on a watching brief of the proceedings as set out in this award.

The Issues Revisited In May of 2004 the Employer unilaterally transferred or assigned Mr. Roland Anstett, a 'C' Level Manager, from its Southampton Retail Store in the Northern Region of the Province to a vacancy in the same job at its Walkerton Store in the Western Region. The vacancy had been occasioned by the retirement of Mr. Charlie Bagnatto, the previous Store Manager.

It is the Union's position in this arbitration that the transfer of Mr. Anstett from the Northern Region to the Western Region was improper. Rather, the Employer was obliged pursuant to the terms of the collective agreement to post a vacancy in the Western Region. Its failure to do so had the effect of disenfranchising several employees in the Western Region in lower classifications who could otherwise have exercised their seniority rights within that Region to bid the posted vacancy.

To clarify the issue, the parties have divided the Province into geographic posting areas for the purpose of posting and bidding of vacancies. In the case of ‘C’ Level Managers, by special agreement, those areas are much broader. They are comprised, simply, of the four regions of the Province, north, south, east and west. When a vacancy occurs within a geographic area, or, as in this case, within a Region, the vacancy is typically posted and a protocol applies which essentially gives preferential treatment to senior qualified employees within that area. Consequently, the transfer of Mr. Anstett eliminated the posting opportunity within the Western Region. Of course, the vacancy left in the Northern Region by Mr. Anstett's transfer was posted by the Employer; however, employees within the Western Region had little chance of a successful bid since those working within the Northern Region would take precedence.

The Union advances its claim on the basis that the Employer has violated the clear terms of the collective agreement by failing to post a vacancy in the Western Region. More precisely Mr. Steinberg argued for the Union that seniority rights of employees are among the most important aspects of collective agreements. Where corresponding management rights impact upon the same subject matter, those management rights should be subjugated to the rights of the employees. More specifically, in this case, employees have seniority rights entitling them to bid vacancies within their Region. Management may have a right to transfer employees into such vacancies; however, those management rights must be balanced against the seniority rights of employees and in this case must give way to those rights of employees which have been etched into the parties contract. Alternatively, Mr. Steinberg took the position that if the management right to transfer Mr. Anstett was found to prevail, then the transfer itself, in the circumstances, was an unreasonable and arbitrary exercise of management rights which should, therefore, be rescinded. By way of remedy he asked that the transfer of Mr. Anstett be set aside, that the Level 'C' Manager position be posted within the Western Region and a competition held in accordance with the provisions of the collective agreement. I should remain seized to determine damages to be awarded to the successful candidate.

Ms. Alison Renton, for the Employer, takes the position that the transfer of Mr. Anstett was not only a valid exercise of management rights, but that employee seniority rights did not arise here within the Western Region. The transfer of Mr. Anstett was of a 'C' Level Manager to another 'C' Level Manager position, that is, one within the same classification. Transfers of 'C' Level Managers to other 'C' Level positions, whether within or without a Region, are not governed by the provisions of the collective agreement nor do they give rise posting requirements. The ultimate vacancy which did occur in the Northern Region following the transfer of Mr. Anstett was posted in accordance with the provisions of the collective agreement and seniority rights of employees within that Region were duly honoured. With respect to the Union's alternative argument, Ms. Renton took the position that the exercise of transfer rights or for that matter any management right was reviewable only insofar as it was arbitrary or made in bad faith; it was not subject to the additional requirement that it be reasonable. In any event, it was her position that the transfer of Mr. Anstett was effected for purposes which were not only bona fide but reasonable.

It is clear from this outline that Mr. Anstett has a significant stake in the outcome of these proceedings. The parties were careful to see that he was notified that he was entitled to appear and participate insofar as his interests might arise. In consequence, Mr. Anstett did appear and, at the onset, with counsel in the person of Mr. Ryan Persad as counsel. On behalf of Mr. Anstett, Mr. Persad advanced the position that, if for any of the reasons presented by the Union, Mr. Anstett was not entitled to retain the 'C' Level Manager position in Walkerton, his client was entitled to retain the position as an accommodation of his medical handicap pursuant to the Human Rights Code of Ontario. The parties agreed that the issue with respect to the Human Rights Code could be deferred until a finding was made for or against the Union with respect to the need to post the position in the Western Region. In the event of such a finding, Mr. Anstett would be entitled to pursue his claim to accommodation in the position in precedence to seniority rights of other employees in the Region. In the circumstances, Mr. Persad chose not to attend the proceedings unless and until that issue needed to be dealt with. In the meantime Mr. Anstett took a watching brief over the proceedings as they developed.

The Collective Agreement

Since the matter at this stage of proceedings turns on the interpretation and application of various provisions of the collective agreement, what follows is an outline of those provisions which counsel referred to during their respective presentations:

1. Article 1.1(c) – this provision sets out the typical rights of management to run the operation including the right to "hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff…determine,…the number, location and class of employees…and all other rights and responsibilities not specifically modified elsewhere in this agreement. The Employer agrees that these functions will be exercised in a manner consistent with the provisions of this agreement."

2. Article 5 is headed "Job Security" and describes among other things the protections afforded to the employees by reason of their seniority in the event of layoff. It also defines "work areas" and refers to "geographic posting areas" which are relevant to layoff and promotions within the bargaining unit. These geographic posting areas are not specifically identified in the collective agreement; however, the provision makes it clear that they are fixed areas which may not be altered during the currency of the collective agreement without the concurrence of the Union.

3. Article 21 – the heading of this Article is "Assignments and Job Postings". It is this provision which obliges the Employer to post vacancies and pursuant to which employees rights to promotions by reason of their seniority arises. Particularly relevant are the following provisions which I have duplicated in whole or in part depending on the nature of the provision: Article 21.4(a)(i) If a new job classification within the bargaining unit is created, or a permanent vacancy occurs in an existing classification, before inviting applications from persons not employed by the Employer, or employees who are outside of the bargaining unit, the Employer will post within the geographic area as specified, notice of such new job or vacancy for a period of ten (10) working days during which employees within such area may apply. The notice shall stipulate qualifications, classification, salary range, department and location concerned." Article 21.4(b)(i) For the purpose of Article 21.5(a), a promotion shall be deemed to include: (i) The assignment of a permanent full-time employee to another permanent full-time position in a class with a higher maximum salary rate than the class of his/her former position…" Article 21.5(a) Where employees are being considered for promotion, seniority will be the determining factor provided that the employee is qualified to perform the work." Article 21.9 It is agreed that vacancies in the positions of C Store Manager and A Store Assistant shall be posted in accordance with the provisions of the Collective Agreement. The Employer further agrees not to transfer A Store Assistants to C Store Manager positions or vice-versa.

4. Salary and Classification Schedule Under this heading are listed the various classification codes, class titles and wage rates which pertain during the currency of the collective agreement. Within that list are classifications for "Liquor Store Manager 3, and Liquor Store Manager 1. Within the Liquor Store Manager 3 position are the positions of "A Store Assistant and 'C' Store Manager". The two positions rank equally within the same managerial classification. Additionally, within the classification of Liquor Store Manager 1 there is only one position and that is for a 'D' Store Manager. The parties stipulated that the Managers of smaller stores such as 'C' Stores and 'D' Stores fall within the bargaining unit but are at different wage levels from each other, the Manager 3 position being higher than the Manager 1 position. Of course, Managers of stores larger than 'C' Level are excluded from the bargaining unit whereas the Assistant Managers within those stores are included such as the 'A' Store Assistant who falls within the same classification as the 'C' Store Manager.

5. The Letter of Agreement concerning 'C' and 'D' Store Managers. Annexed to the collective agreement and forming part of it is a posting protocol regarding the filling of 'C' and 'D' Store managerial vacancies. Whereas in the case of other classifications within the collective agreement, the geographic Posting areas are described in Article 5, there are only 4 Posting Areas for 'C' and 'D' Store Managers. Those Areas are the North, South, East and West Regions of the Province. The introductory provisions of the letter of agreement read as follows: "Re C/D Store Manager Geographical Posting Area The Parties agree that the following shall apply for the posting of 'C' and 'D' Store Manager vacancies: 1. The first geographic posting area for 'C' and 'D' Store Manager vacancies will be the store's region and open to permanent employees only. Permanent full-time employees will be considered before permanent part-time employees. 2. If the position is not filled, the next geographic posting area will be the province and open to permanent employees only. Permanent full-time employees will be considered before permanent part-time employees…".

The Background and Evidence Regarding the Transfer of Mr. Roland Anstett

As I have described at the onset of this award, it was the transfer of Mr. Roland Anstett from the Southampton, Ontario store to the position vacated through the retirement of Mr. Charlie Bagnatto from the Walkerton Store in the Western Region which precipitated the grievance at hand. A number of employees who worked in the Western Region and for whom the 'C' Store Managerial position would have constituted a promotion considered themselves disenfranchised by reason of Mr. Anstett's transfer. However, it will be unnecessary to review much of the evidence received from the Union concerning past practice of the parties involving transfers across geographical boundaries. This is the result of the Union's having withdrawn on a without prejudice basis its reliance upon those practices. Furthermore, as indicated earlier, the Union did not intend to pursue any allegations of bad faith concerning the Employer's transfer of Mr. Anstett from the Northern Region to the Western Region. In the circumstances, there remain only two significant issues to be determined:

6. Whether or not the Employer violated the collective agreement when it failed to post a 'C' Level managerial position in the Western Region upon the retirement of Mr. Charles Bagnatto. Implicit in this issue is the determination as to whether or not the transfer of Mr. Anstett to fill "vacancy" in the Western Region truncated the grievor's seniority rights to bid vacancies within their own region.

7. In the event the Employer's management rights to transfer Mr. Anstett across regional boundaries was sustained, the Union challenged the transfer on the basis that it was an unreasonable and arbitrary exercise of those rights in the circumstances here.

Since the Union is not pursuing the issue concerning past practice, I do not propose to review Mr. John Coones testimony in any detail. On the other hand, his evidence cannot be totally disregarded. Mr. Coones, as a result of the merger of the former Liquor Board Employees Union with OPSEU, is now the Liquor Board Division Chairman as opposed to the President of the former Union. He gave significant testimony regarding the parties’ current approach and concern with respect to transfers of employees between geographical areas. Neither the Union nor the Employer favours such lateral transfers of employees into equivalent classifications across geographical boundaries. As in the case at hand, they usurp the normal progression and posting opportunities in the area to which the transfer takes place. Consequently, a screening process involving a number of conditions is typically imposed before such a transfer will be considered or ultimately allowed. I do not propose to examine in any further detail or reach any conclusions with respect to those practices in this award; however, I thought it imperative to remark upon the Union's concerns with, but, cooperation in such transfers where there are exceptional circumstances.

This brings me to a consideration of the testimony of Mr. Jim Turner, the Director of the Western Region working in the Board’s London office. It was primarily Mr. Turner's decision to approve the transfer of Mr. Anstett from his 'C' Manager position in the Northern Region to the 'C' Manager position in the Western Region. Mr. Turner explained that he did not believe there was any specific protocol in the collective agreement to deal with such transfers. Furthermore, the Employer was reluctant to implement lateral transfers of this nature since they typically result in a roadblock to advancement for other employees who work within the geographic area to which the co-employee is transferred. In the circumstances the Company has established its own criteria or factors for consideration upon receipt of these requests. Mr. Anstett’s Northern Region Director, Mr. Dean Marshall, outlined these considerations to Mr. Anstett in a letter of February 24, 2004 as follows:

"As this is not the first occasion whereby you have requested a similar transfer, I will nevertheless reiterate some of the key issues regarding transfer requests. Transfers are inhibited by concerns from employees in the receiving district area who may regard a transferred employee as creating a roadblock for their own opportunities for advancement. As a result, transfer requests are reviewed individually and a decision is based on numerous factors, including:

(a) the existence of a vacancy in the area (b) satisfactory past performance (c) the merits of each individual case, specifically the reason for the request supported by satisfactory documentation

Your written submission of February 2, 2004 indicates that your request is based upon medical reasons. You have also indicated that you are willing to provide a medical certificate upon request.

In order to give any further consideration to your request, the LCBO requires supporting medical documentation relative to your health condition. Of greater relevance is not so much confirmation of a diagnosis but how, if at all, this relocation could benefit your health concerns and provide substantive proof as to this prognosis."

Mr. Marshall clarified that the information would have to be passed on to Mr. Turner the Director of the Western Region and included a "Release and Medical Disclosure" form for completion by Mr. Anstett. He also noted that Mr. Anstett's employment record including performance appraisals, attendance records, discipline records and seniority might also be reviewed in the Western Region.

A letter was forthcoming from Mr. Anstett's physician wherein the doctor outlined several medical conditions suffered by Mr. Anstett as well as providing information as to medications he was currently taking to control those conditions with a caveat that there was the possibility of the addition of a further significant medication in the near future.

Additionally the doctor referred to the grievor's primary role as the co-ordinator of support and care for his ailing mother who had "a significant chronic medical condition" and had been "given a grim prognosis with the expectation that her life span would be measured in months rather than years". The doctor advanced the view that psychological and emotional stress could contribute to worsening of the grievor's conditions. The letter went on as follows:

"This has seemed to be the case for Mr. Anstett in the past and it is his view that working both closer to his home and to his ailing mother would decrease his overall stress levels especially in the winter months when driving conditions may be more difficult. I believe this is a reasonable view and expect a relocation may indeed improve his conditions."

Mr. Turner did not approve the original application from Mr. Anstett. He did not consider that the shorter distance between Mr. Anstett's home and the Walkerton Store as opposed to the Store in the Northern Region was significant enough to justify the transfer. In short, he did not feel that the compassionate grounds based on medical reasons were sufficiently compelling to justify the transfer.

Subsequent to the rejection which took place in and about March 17, 2004, Mr. Turner did approve the transfer near in the end of April following an absence by Mr. Anstett for medical reasons which he understood to have included some form of surgery. Before approving the transfer Mr. Turner received a subsequent report from Mr. Anstett's physician. That report dated April 14, 2004 from which I have deleted reference to Mr. Anstett's specific medical conditions read as follows:

"This letter is to reinforce the letter of March 4, 2004 with regard to Roland Anstett and a potential job relocation. It is my stated opinion that a job relocation closer to home would benefit Mr. Anstett's health with regards to [… ] which would in turn, reduces his risk of [… ]. As you may be aware, his Mother, has recently passed away, which has left Roland with the responsibility as Guardian for his younger sister, who has had …(a medical condition)… since birth, and requires extra support and supervision."

In his testimony Mr. Turner agreed that the medical opinion regarding Mr. Anstett's conditions was not significantly different than the earlier opinion. Indeed, he had expected something further regarding Mr. Anstett's surgery. Be that as it may, and, although he had no medical evidence to connect the surgery with a heightened need to relocate, Mr. Turner felt that the occasion of the surgery together with the passing of Mr. Anstett's mother and his new role and responsibility as guardian for his handicapped sister had created a scenario involving potential stress on Mr. Anstett which was more compelling than had been the case earlier. In the circumstances, he decided to approve the transfer. In consequence, he advised Mr. Anstett by letter to return temporarily to his regular position in Southampton on April 26th following his absence for medical reasons. His transfer to Walkerton as 'C' Store Manager, classified at the Liquor Store Manager 3 Level, would be effective Monday, May 3, 2004.

The Meaning of the Collective Agreement

Insofar as it is possible, I will restrict my remarks to the interpretation and application of the collective agreement provisions insofar as they impact upon the managerial 'C' position; however, since provisions dealing with the managerial positions refer back to the general seniority provisions of the collective agreement, they cannot be read in total isolation. In any event, my specific findings which follow should be read narrowly so as not to impact upon practices of the parties with respect to other classifications of employees covered by the collective agreement.

The first issue is whether or not the clear language of the collective agreement inhibits the Employer from transferring a 'C' Manager employee across geographic boundaries, in this case from the Northern Region to the Western Region. For the reasons which follow, I am of the view that the lateral transfer of a 'C' Level Manager to an identical position in another Region does not constitute in and of itself a violation of the collective agreement. It is indeed unfortunate that, as a result of the transfer of Mr. Anstett in this case, employees within the receiving Region were deprived of an opportunity for promotion to that position; however, the opportunity was not totally lost to the bargaining unit rather, employees in the Northern Region were able to take advantage of the vacancy left there by Mr. Anstett.

Article 21.4 does require the posting of vacancies; however the vacancies to be posted are those "in an existing job classification". There is no other definition of vacancy in the collective agreement. In the circumstances, if the Employer intended to maintain its then current complement of 'C' Manager position following the retirement of Mr. Bagnatto, it was indeed obliged to post a vacancy in that job classification. It did indeed post a vacancy in that classification to re-establish the complement; however, it did so only after having transferred Mr. Anstett to the Western Region. Article 21.4 on its face does not state that the vacancy to be posted must be situated at the location or store which was vacated. It does, however, require posting "within the geographic area as specified". Furthermore, the provision stipulates that during the posting period "employees within such area may apply". It seems clear that employees within a geographic posting area are entitled to preferential treatment with respect to vacancies posted within their work area. However, what is not so clear is whether the reference to the "geographic area as specified" means the geographic area chosen by the Employer to declare the vacancy or the geographic area wherein the vacancy occurred in the first instance. To put it more clearly in reference to the case at hand, does the "geographic area as specified" mean:

1. The geographic area comprised of the Western Region from which Mr. Bagnatto retired leaving a vacancy in the 'C' Manager position; or

2. The geographic area as specified in the notice ultimately posted by the Employer in the Northern Region.

Mr. Steinberg for the Union argued strenuously that the vacancy to be posted was the original vacancy within the Western Region. Furthermore, "employees within such area may apply" for the vacancy. Article 21.5(a) then prescribes that seniority would be the determining factor from among those being considered for promotion to that vacancy. Mr. Anstett would not have qualified as a candidate.

Mr. Steinberg argued that, even if management retains the right to transfer employees laterally within the same classification, the exercise of that right must give way to the seniority rights of employees within the geographic area of the vacancy. Finally in the case of a 'C' Store Manager vacancy, the relevant geographic area was the Western Region where the original vacancy occurred as provided for in the parties Letter of Agreement respecting 'C' Store Managers etc. In summary, Mr. Steinberg argued that the rights of management are stated within the management rights provision to be exercised in a manner consistent with the provisions of the agreement. In this instance management's right to transfer employees from one geographic area to another are limited by the express provisions referred to in Article 21 and, in this case, the Letter of Agreement respecting 'C' Store Managers.

In support of his position Mr. Steinberg referred me to the following authorities:

1. Brown and Beatty, Canadian Labour Arbitration (3rd Edition) paragraph 6:0000

2. Lakeport Beverages v. Teamsters, Local 938 (2005) D.L.R. (4th) 10

3. Falconbridge Ltd. and Canadian Union of Mine Mill & Smelter Workers, Local 598 (1991) 21 C.L.A.S. 500 (Kilgour)

4. Elementary Teachers' Federation of Ontario and F.W.T.A.O. Support Staff Assn. (1999) 56 C.L.A.S. 56 (Marcotte)

5. Bradson Mercantile Inc. and U.S.W.A. (2000) 59 C.L.A.S. 340 (Brown)

6. Calgary Laboratory Services and H.S.A.A. (2000) 62 C.L.A.S. 335 (Smith)

7. Costal Community Credit Union and Office and Technical Employees Union, Local 15 (2001) 66 C.L.A.S. 286 (Blasina)

8. Hamilton-Wentworth (Regional Municipality) Police Services Board and Hamilton-Wentworth Police Assn. (2002) 2002 CanLII 53234 (ON LA), 105 L.A.C. (4th) 139 (Snow)

9. Fredricton (City) and I.A.F.F., Local 1053 (2002) 77 C.L.A.S. 127 (Gorman)

Ms. Alison Renton for the Employer countered than in spite of the posting areas, arbitral jurisprudence typically recognizes the Employer's right to transfer employees laterally within the same classification. Further, although the initial vacancy occurred in the Western Region, there was no specific fetter in the collective agreement upon the Employer's right to make lateral transfers. To imply such a restriction on management would be to create employee rights and language which do not specifically appear in the contract. Additionally, Article 21.9 restricting lateral transfers between 'C' Managers and 'A' Store Assistants makes it clear that such transfers within either of those designations are normal management functions which do not give rise to or impact upon employees seniority rights or the posting of vacancies.

Ms. Renton referred to the following cases with respect to this first issue:

1. Ontario Worker Board's Employees Union v. Ontario (Liquor Control Board) (Grievance Settlement Board) (Miller Grievance) March 31, 2005 (GSB File #2003-1631) (Reva Devins)

2. Lettuce Serview Limited Partnership v. U.F.C.W. Local 1000A [2001] O.L.A.A. No. 738 (G.T. Surdykowski)

As indicated at the inception of this discussion, it is my view that the Employer's position must prevail. Regardless of which of the two meanings one gives to the words "the geographic area as specified" within Article 21.4(a)(i), Article 21.9 deals specifically and exclusively with the Liquor Store Manager 3 classification which includes only the 'A' Store Assistant and 'C' Store Manager designations. That provision specifically limits the Employer's right to transfer within the classification between those two designated positions. Clearly, without that language the parties contemplated that the Employer was free to transfer laterally within that classification between those two designations or more importantly within either one of them. In effect, Article 21.9 recognizes those two designated positions as two separate classifications for posting purposes and, at the same time, inhibits management transfers across those two positions. Conversely, the right to transfer within either of those two designated positions is not inhibited by this provision. More importantly, the very existence of the provision confirms the usual right of management to transfer within the Managerial 3 Class without the need to post. Without specific language to the contrary, a fetter on the Employer's right to transfer within either one of those designations without the necessity of posting cannot be implied. Accordingly, the existence of a form of geographic posting and bidding rights set out in Article 21.4(a)(i) (in effect similar to departmental seniority within an industrial setting), is not sufficient in and of itself to impede the Employer's right to effect lateral transfers within either the 'C' Manager position or the 'A' Store Assistant position without the need to post a vacancy.

In the circumstances, I conclude that the Employer, pursuant to the provisions of this collective agreement may effect lateral transfers of 'C' Store Level Managers both within or across regional boundaries. The need to post the vacancy within the classification still pertains so long as the Employer requires an additional 'C' Level Manager. However the determination as to the Region in which the vacancy is to be posted will be dependent upon the needs of the operation after any such transfers have taken place. More specifically with respect to the case at hand, subject to a review of the exercise of the Employer's discretion in transferring Mr. Anstett from the Northern to the Western Region, there is no specific provision in this collective agreement inhibiting that lateral transfer. There was no need to post a vacancy in the Western Region. There remains to be addressed the Union's position that the exercise of management rights to transfer Mr. Anstett was inappropriate.

The 2nd Issue – The Appropriateness of the Transfer

Mr. Steinberg argued that, in exercising his discretion, Mr. Turner acted unreasonably. Initially he had turned down Mr. Anstett's request based upon the information that was then before him. The subsequent medical evidence provided no further significant insight or change with respect to Mr. Anstett's condition. Accordingly, there was no good reason for Mr. Turner to have revised his decision to approve the transfer.

With respect to the obligation on management to act reasonably in exercising its rights Mr. Steinberg referred me to the following cases:

1. Zehrs Markets and U.F.C.W., Loc. 1977 (Gruosso) (1996) 1996 CanLII 20408 (ON LA), 61 L.A.C. (4th) 25 (Newman)

2. Ontario Public Service Employees Union v. Ontario (Ministry of Community, Family and Children's Services) (Ashley Grievance) [2003] O.G.S.B.A. No. 128 (Abramsky)

3. Ontario Liquor Control Boards Employees' Union v. Ontario (Liquor Control Board (Attendance Review Grievance) [2004] O.G.S.B.A. No. 2 (Dissanayake)

4. Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983) 1983 CanLII 4910 (ON LA), 9 L.A.C. (3rd) 137 (Swan)

Ms. Renton took the position that, although the medical evidence was not significantly different from the first to the second instance, there had occurred significant changes in circumstance affecting Mr. Anstett which Mr. Turner justifiably took into consideration. That or those changes involved the death of Mr. Anstett's mother and his family obligation to assume the primary responsibility for his disabled sister's well being. In the circumstances, his ultimate decision was not arbitrary or affected in bad faith. Indeed, he took on the whole task reluctantly because of its potential impact upon employees in the Western Region. Ultimately, his decision was made for bona fide reasons. Whether an arbitrator might come to the same conclusion in similar circumstances is irrelevant. An arbitrator ought not to substitute its decision in such matters for that of management. Furthermore, the appropriate test is not one of reasonableness but of bona fides. Here, the Union withdrew its challenge to the Employer's action based on bad faith. In the circumstances, management's decision should be allowed to stand.

As to the appropriate test, Ms. Renton referred to the following two cases:

1. Ontario (Liquor Control Board) v. Ontario Liquor Control Boards Employees' Union (M's Grievance) July 9, 1992 (R. J. Roberts) GSB File No. 727/91

2. Re Stelco Inc. and U.S.W.A., Local 1005 1994 CanLII 10573 (ON CTGD), [1994], 17 O.R. (3d) 218 (Ontario Divisional Court)

I have considered the submissions of the parties with respect to the appropriate test to be applied with respect to the Employer's exercise of its managements rights in this case. In my view whether one espouses the views expressed by Vice-Chair Dissanayake in his decision involving this Employer and the predecessor Ontario Liquor Board Employees' Union, or, that described by the Ontario Divisional Court in the Stelco Inc. case, I am satisfied that I ought not to interfere with Mr. Turner's decision. The test is described as follows in the Dissanayake award at paragraph 18:

"In light of the two Court of Appeal decisions, the most sensible approach, and the one that I subscribe to, is that taken in Re Meadow Park Nursing Home (supra). The state of the law following the Toronto Police Com'rs and Printing Industries court decisions, as I read them, may be summarized as follows: An arbitrator has no jurisdiction to import into a collective agreement a general duty on an employer to exercise management rights reasonably. However, if on an application of the general law of implied terms in contract, the implication arises from the collective agreement itself that a particular management right must be exercised reasonably, the arbitrator is bound to make that implication since it arises from the collective agreement negotiated by the parties, from which the arbitrator draws his or her jurisdiction. Such an implied duty may arise from a specific provision of the collective agreement, or from a reading of the agreement as a whole in a labour relations context."

And the test in the Divisional Court decision on page 13 of the Quicklaw publication reads as follows:

Read in context, I am satisfied that Tarnopolsky J.A. was simply affirming that management was required to act in a bona fide fashion when exercising a discretion under one provision of the collective agreement which might create a conflict with or undermine rights conferred by some other provision in the agreement. I do not read his words as suggesting that a decision made by management in good faith could nevertheless be challenged and struck down as unreasonable simply because it had the effect of conflicting with or undermine some other right in the agreement. In my view, such a principle would have a chilling, if not crippling effect upon management's ability to conduct the affairs of the company."

Neither of those quotations appear to impose on management a strict duty to act reasonably in exercising its management rights. Even if the decision to transfer brought into play a possible conflict with the employee's seniority rights under Article 21.4, which I have found it did not, it is not clear that there would arise a duty to act reasonably pursuant to either of those two tests previously outlined. However, if the duty did arise, I am satisfied that Mr. Turner's decision was bona fide, not made in bad faith nor was it unreasonable based upon the information which was provided to him. While one might have preferred a change in the medical prognosis for Mr. Anstett himself to have precipitated a change in Mr. Turner’s decision, there were other developments including the death of Mr. Anstett’s mother and his familial obligations with respect to his sister which were legitimate considerations. The doctor viewed these elements as increasing the stressors in Mr. Anstett’s life. In the circumstances, it was not unreasonable for Mr. Turner to revisit his earlier decision and alter the ultimate decision to effect the transfer. While his decision might not have been the correct one in the view of others, such decisions are discretionary and need not pass so rigid a test as one of correctness. Mr. Turner's decision even if subjected to a test of reasonableness was not without merit.

In conclusion, Mr. Turner’s decision to transfer Mr. Anstett was neither arbitrary nor, if subject to such a test, unreasonable.

In all the circumstances, the grievance is dismissed.

DATED at Toronto, this 14th day of August, 2006.