Labourers’ International Union of North America - Local 506 (Coutinho) v. The Crown in Right of Ontario (Metro Toronto Convention Centre Corporation), 2012 CanLII 24032

Grievance Settlement Board

GSB#2011-3253

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Labourers’ International Union of North America - Local 506 (Coutinho)

Union

• and -

The Crown in Right of Ontario (Metro Toronto Convention Centre Corporation)

Employer

BEFORE

Marilyn A. Nairn Vice-Chair

FOR THE UNION

Glen Chochla Labourers' International Union of North America, Local 506 Counsel

FOR THE EMPLOYER

Clifford Hart Miller Thomson LLP Barristers and Solicitors

HEARING

March 19, 2012.

Decision

1This grievance came on for hearing on March 19, 2012. At that time the employer raised a preliminary objection with respect to the scope of the grievance. This preliminary decision deals with that issue.

2The employer posted a vacancy for a full-time Assistant Building Operator within its Engineering Department. A number of individuals applied, including Karl Coutinho. Following an interview process, the job was awarded to Rakeeb Mohammed. It was agreed that, although both were employees, neither of these individuals was employed in the Engineering Department at the time of the posting. It was not disputed that Mr. Coutinho had significantly more seniority than Mr. Mohammed.

3Mr. Mohammed was given notice of this proceeding by the employer. He was not in attendance at the hearing on March 19, 2012.

4The grievance was filed on July 21, 2011. It is identified as a policy grievance. The nature of the grievance states, “employer violated agreement by not following the posting language”. The grievance alleges that the employer violated Article 15, and in particular, Article 15.01 of the collective agreement, and any and all other relevant Articles. The settlement requested is that the employer "follow [the] posting language as per Collective Agreement”.

5The parties agreed that during the grievance procedure the union took the position that Mr. Coutinho should have been awarded the job because he was the most senior candidate and he had the ability and qualifications to perform the job. It was further agreed that the employer took the position that seniority was not a factor in considering applicants in the circumstances of the applicable collective agreement provision. So, although the employer understood that the union was taking the position that Mr. Coutinho ought to have been awarded the position, it believed that the union was challenging its decision only on the basis of Mr. Coutinho’s greater seniority.

6On December 1, 2011 counsel for the union wrote to counsel for the employer advising that the union was seeking to amend the grievance to include a remedial request that the position of Assistant Building Operator be awarded to the most senior candidate with the necessary skill and ability, further indicating its position that that person was Mr. Coutinho. The letter advised that the union would be seeking compensation for Mr. Coutinho for all lost wages and benefits and to otherwise make him whole.

7That letter also requested production of a variety of documentary materials, including copies of all applications submitted and associated materials filed, and a copy of all documents, materials, and notes related to the employer's assessment of the candidates’ skills and abilities. By letter dated December 7, 2011 from employer counsel, the employer produced documentary material in response.

8The hearing date of March 19, 2012 was set in early February 2012. By letter dated March 1, 2012 the employer requested full particulars with respect to the union's position and any remedy being requested. The union responded by letter dated March 12, 2012. That letter noted that certain of the material requested in the December 1, 2011 letter had not yet been received. However, it appears from the face of that letter that the request for a copy of all applications submitted and a copy of all documents, materials and notes related to the employer's assessment of the candidates had been provided. The March 12, 2012 letter from union counsel advises the employer that, “in the alternative to the Union’s claim that the employer violated the job posting language… the Union will also be alleging that the employer acted in an unreasonable, arbitrary, bad faith and discriminatory manner in applying the job posting language and management rights language… in the manner in which it did”.

9In response, the employer requested particulars of this allegation, at the same time reserving its right to argue that the union was attempting to expand the scope of the policy grievance, leading to the issue currently before me. The particulars requested were provided by the union by letter dated March 16, 2012 and relate to assertions that the employer made the staffing decision based on factors which were allegedly not reasonable requirements of the job and/or were not set out in the job posting. The union provided further particulars alleging that the employer made an improper decision to award the job to the incumbent, as his experience and/or qualifications allegedly did not meet the experience and/or qualifications identified in the posting as requirements for the job, whereas, the union asserted, Mr. Coutinho met those requirements.

10Article 15.01(b) of the collective agreement requires that the employer give preference to applicants within the home department provided they have the necessary skill and ability to perform the essential duties of the position. Under that Article, where more than one qualified candidate applies from within the home department, seniority is the deciding factor. The parties agreed, however, that the provision of the collective agreement at issue in this case is Article 15.01(c). That provision is both new to, and a change in the parties’ most recent collective agreement. It states:

Where no Employee within the home department applies for the position, then the Employer shall consider other qualified internal candidates within the bargaining unit before considering external applicants.

11In its opening, the union took the position that the issue was the proper interpretation of Article 15.01(c), specifically, the words “shall consider”. The union took the further position that a proper interpretation of that language required consideration of Article 15.01(b) and the application of seniority for candidates from outside the home department. In the alternative, the union took the position that the words “shall consider” give a discretion to the employer, which discretion must be exercised reasonably. In this case, alleged the union, that discretion had been exercised in a manner that was arbitrary, discriminatory and in bad faith. It is this alternative position that the employer objects to, as an attempt to improperly expand the scope of the grievance.

12In summary, it was the position of the employer that the union was inappropriately attempting to expand the scope of the grievance. It noted that throughout the grievance procedure the union had argued its position based solely on the issue of seniority. The union, argued the employer, was now seeking to assert that the employer had acted in a manner that was arbitrary, discriminatory, or in bad faith. That allegation, argued the employer, represented an entirely different factual and legal context for the grievance, and, although expressed as an alternative argument, was entirely new and different from the position that Mr. Coutinho should have been awarded the job because he was the senior applicant. The essence of the grievance, argued the employer, would be changed dramatically from what it was understood to have been throughout the grievance procedure. Rather than an analysis of whether Article 15.01(c), like Article 15.01(b), incorporated seniority, the union was now seeking to attack the exercise of the employer's discretion in its decision-making process. The case, argued the employer, should be limited to whether or not Article 15.01(c) was applied properly and whether the employer fulfilled its obligation to "consider” internal candidates. In that regard the employer relied on the decisions in Cold Springs Farms Ltd., infra, and Municipal Property Assessment Corporation, infra.

13In summary, it was the position of the union that the grievance form was broadly written and alleged a violation of the job posting provisions. Fundamentally, argued the union, its position had not changed and remained the proper interpretation of Article 15.01(c). Its first position, argued the union, was that seniority applied in the proper interpretation and application of that language. Its alternative position, argued the union, was that the employer was required to exercise any discretion accorded to it by the provision in a reasonable manner. There was no change, argued the union, in the provision of the collective agreement being relied on. The union was not seeking, it noted, to rely on the management rights clause. Rather, it argued, that reference reflected that it may come into play as a defense for employer conduct. The union relied on the decisions in Mississauga Hydro-Electric, infra, and Re Metropolitan Authority of Halifax, Dartmouth, infra, to argue that a change in a union’s request for relief had been countenanced notwithstanding it had given rise to different legal and factual issues. Nor was the fact that the grievance had been filed as a policy grievance problematic, argued the union, relying on commentary from Brown & Beatty, infra, and decisions in Re Regent Refining and Re Milk and Bread Drivers, both infra. Grievances are to be liberally construed, argued the union, so that the real issue(s) between the parties may be addressed. Throughout the grievance procedure, noted the union, the employer was aware that the union was asserting that Mr. Coutinho should have been the successful applicant. That core dispute had not changed, argued the union. Whether Mr. Coutinho should have been awarded the job, argued the union, was the real grievance.

14In reply, the employer argued that the act of not awarding the position because of a view that seniority was not applicable was a very different act from awarding the position based on a decision made arbitrarily, unreasonably, or in bad faith. The analysis, investigation, defense, evidence, and legal issues, argued the employer are all different, and it had not had an opportunity to deal with those matters during the grievance procedure. There was prejudice in that delay, argued the employer.

15I was referred to and have reviewed the following: Cold Springs Farms Ltd. v. Cold Spring Farms Employees’ Assn, Local 100, (2000) 2000 CanLII 50240 (ON LA), 88 L.A.C. (4th) 213 (Goodfellow); Municipal Property Assessment Corp. v. OPSEU, (2008) 178 L.A.C. (4th) 263 (Albertyn); Mississauga Hydro-Electric Commission and I.B.E.W., Loc. 636, (1992) 1992 CanLII 14460 (ON LA), 28 L.A.C. (4th) 177 (Springate); Re Metropolitan Authority of Halifax, Dartmouth and Halifax County and Correction Officers Association of Nova Scotia, (1983) 1983 CanLII 4930 (NS LA), 10 L.A.C. (3d) 265 (Outhouse); Brown & Beatty, Canadian Labour Arbitration (4th ed.), c. 2:3124; Re Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, and Weston Bakeries, (1970) 1970 CanLII 1647 (ON LA), 21 L.A.C. 308 (Weiler); and Re Regent Refining (Canada) Ltd. and Oil, Chemical and Atomic Workers, Local 9-593, (1973) 1973 CanLII 2069 (ON LA), 3 L.A.C. (2d) 256 (Brandt).

16Having considered the parties’ positions, I have concluded that the employer’s preliminary objection must be dismissed.

17I start from the fundamental proposition that grievances are to be construed broadly such that the real dispute between the parties is to be heard and determined (see Re Blouin Drywall Contractors (1975) 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (C.A.) cited in Cold Springs Farms, supra). Unlike in Cold Springs Farms Ltd. and Municipal Property Assessment Corp., both supra, the union continues to seek to rely on the same collective agreement provision as set out in the grievance and advanced in the grievance procedure. There has been no attempt to rely on a different provision of the collective agreement or to change the union’s fundamental position that the employer misapplied the job posting provisions in circumstances where the union asserts that Mr. Coutinho should have been the successful applicant for the job.

18In Cold Springs Farms, the grievance made reference to the discharge and discipline provision of the collective agreement and referenced the employer’s obligation to accommodate the grievor’s concern about sexual harassment. At the hearing, the union sought to assert that the grievor had been improperly laid-off and/or had not been recalled.

19In that case, the union argued that an allegation of unjust discharge was broad enough to include an allegation of improper lay-off. The arbitrator rejected that position as an “oversimplification” that negated any meaningful analysis, relying on a decision by Arbitrator Solomatenko in St. Joseph’s Hospital, who had concluded in that case that the issue was not “inherent in the original grievance” (para. 17).

20In Municipal Property Assessment Corp., supra, a number of grievances consolidated for hearing concerned the grievors’ start dates for purposes of seniority. The grievances relied on Article 11 of the collective agreement. Just prior to the hearing, the union sought to additionally rely on Articles 5.06 and 5.07 of the collective agreement for six of the fifteen grievors. The employer objected and the arbitrator upheld the objection, finding that the union was seeking to change the nature of the grievance. The arbitrator described the change:

8 ...While the existing grievances are concerned with determining what temporary and permanent service each Grievor has, the suggested expansion would involve determining the following, arising from Article 5.06: whether the six Grievors concerned performed the same work as temporaries continuously for at least two consecutive years; whether any period of that continuous work was replacing a regular employee on a leave of absence; and whether the Employer acted improperly by failing to determine a continuing need for that work to be performed on a full-time basis.

9 The factual and legal issues arising from the expansion are substantial. They would put the Employer to a different and much broader inquiry [than] the Employer could reasonably have anticipated from the existing grievances. Employer counsel mentions the prejudice to which the Employer would be put to find documents and evidence from managers now no longer in the Company's employ of decisions made in the period 2002 to 2006. As was stated in Cold Springs Farms Ltd.… to allow the Union now to avail itself of Article 5.06 would permit the Union to “support an independent breach of the collective agreement and provide an entirely separate basis for relief”.

21The case before me is distinguishable on its facts. In opening, the parties both identified the issue properly before me as involving the interpretation and application of Article 15.01(c), specifically, the meaning and application of the words “shall consider”. That issue is not changed by the position the union now seeks to take. The union’s primary position is that those words incorporate consideration of seniority. It has now advanced an alternative argument that, to the extent that those words provide a discretion to the employer, such discretion must be exercised reasonably. That argument is inherent in the proper interpretation and application of Article 15.01(c) even as it concerns any asserted appropriate application of seniority. Raising a legal argument that may not have been identified and/or advanced during the grievance procedure is not the same as seeking to change the nature of the grievance.

22I am not being asked to consider and apply different collective agreement provisions, as was the case in both Cold Springs Farms and Municipal Property Assessment Corp. Nor am I being asked, as in Municipal Property Assessment Corp., to review historical circumstances from 2002 to 2006 that should and presumably could have been grieved at that time in order to provide a finding that might, had it been raised, have had an impact on the calculation of an employee’s seniority in the grievance under consideration in 2008. The circumstances before me are also distinguishable from those in the St. Joseph’s Hospital case, where the union had filed a no-contracting out grievance and later sought to rely on a collective agreement provision prohibiting the assignment of bargaining unit work to non-bargaining unit employees. The arbitrator there noted that those provisions were neither unique nor recent developments, and that a cursory examination of the jurisprudence readily established that contractual language in the nature of no-contracting out provisions could not and did not address matters of management performing bargaining unit work. I am being asked to interpret and apply the one provision; a provision that is new to the parties’ collective agreement in circumstances where the parties have no experience with its application.

23The issue in this grievance remains the proper interpretation and application of the words “shall consider” in Article 15.01(c) of the collective agreement. The position sought to be advanced by the union does involve an expansion of the evidentiary basis in support of the grievance. I note that that expansion appears to have arisen after the union received the documentary material concerning the posting process from the employer. However, I am not persuaded that the nature of the grievance has thereby changed. It is a posting grievance wherein the union has, from the outset, asserted that Mr. Coutinho should have been the successful applicant. Further, unlike in Municipal Property Assessment Corp., there is no evidence of prejudice to the employer in its ability to defend against the allegations raised. It has provided the union with its files arising out of the posting process. The employer representatives apparently involved in the decision-making process were present at the hearing. Nor do I accept that delay or an inability to respond to an allegation during the grievance procedure, ipso facto, gives rise to prejudice such that the matter ought not to be heard. Any consideration of any inability of the employer to address the alternative argument during the grievance procedure is more properly dealt with as a remedial issue, should the union be successful. The employer expressly reserved its right to argue the proper nature and scope of any remedy.

24Having regard to all of the above, the employer’s preliminary objection is dismissed. This matter is to be set down for hearing in consultation with the parties. The matter of scheduling is hereby referred to the Registrar.