GSB#2010-1205

UNION#2009-0549-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Seguin et al)

Union

• and -

The Crown in Right of Ontario (Ontario Science Centre)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Devon Paul Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Robert Fredericks Ministry of Government Services Labour Practice Group Counsel

HEARING

November 1, 2011.

Decision

1Mr. Tyler Seguin was a fixed term employee working for the Ontario Science Centre as a Host. He and 14 other fixed term employees filed a group grievance alleging “management is in violation of Articles 2 & 6 and any other relevant articles of the Collective Agreement. By way of remedy they asked for full redress including:

• management make reasonable efforts to distribute hosting hours equitably and in a more transparent fashion;

• management allow current staff reasonable opportunity to work available hours required for hosting duties prior to the identification of any new hosting positions; and

• reasonable compensation for lost opportunities to work additional hours due to the Body Worlds exhibit.

2It was also stated on the grievance that in October of 2009 new “hosts were hired with no posting of the job” and “management has determined that only specially-designated hosts (all the new hires plus a few senior staff members) are permitted to staff the Body Worlds exhibit, resulting in an unequal distribution of hours among hosts”.

3Prior to the commencement of the hearing, counsel for the Employer, Robert Fredericks, requested particulars from the Union. Devon Paul, counsel for the Union, provided the following statement:

• These particulars are in respect of a grievance filed by the Union on behalf of a group of sixteen employees of the Employer on December 11, 2009.

• As is particularized below, the grievors claims that the Employer has violated the Collective Agreement, particularly Article 6, by hiring new hosts to positions without the positions being posted and an opportunity given for members of the bargaining unit to compete for them, and Article 2 in that the Employer has exercised its management rights in relations to hiring in a manner that is arbitrary and unreasonable.

• Failure to Post Positions – The grievors were all employed by the Employer as Hosts in October 2009 and for the duration of the BodyWorlds3 exhibit.

• In October 2009, the Employer hired a significant number of new Hosts (“the new Hosts”) who were not members of the bargaining unit and who were not employees of the Employer.

• These Hosts were hired for contracts of less than six months duration, for the purpose of the BodyWorlds3 exhibit.

• The positions for which the new Hosts were hired were not posted, and no member of the bargaining unit was given an opportunity to compete for those positions.

• Equitable Distribution of Hours – The Union and the grievors are no longer pursing the issue of equitable distribution of hours in this grievance.

• This is without prejudice to the right of the Union and the grievors to dispute the distribution of hours in a future grievance, and should not be regarded as an acceptance of or agreement to the Employer’s scheduling practices.

• Conclusion and Remedy – The Employer’s action in not posting the Host positions constituted a violation of the Collective Agreement, particularly Article 6.1. Further, by not providing an opportunity for the grievors to compete for the new Host positions, the Employer exercised its Article 2 management rights in an arbitrary manner.

• The Union seeks the following remedy:

• A declaration that the Employer’s conduct constituted a breach of the Collective Agreement;

• An order that the Employer post such positions in the future; and

• Damages for loss of opportunity to work the hours worked by the new Hosts.

• The Union and the grievors reserve the right to rely on such further and other particulars as may be necessary.

4At the commencement of the first day of hearing into this matter, the Employer raised a preliminary objection. For the purposes of this objection the Employer was prepared to accept the particulars as true although it reserved the right to call evidence that might contradict the particularized facts in the event that this matter proceeds on the merits.

5A few further facts were provided by way of background. The Employer held an exhibit entitled BodyWorlds3 that displayed the inner anatomical structure of the human body from October of 2009 to February of 2010. In order to staff this exhibit the Employer hired six new fixed term staff from an external agency. The positions were never posted within the workplace or offered to members of the bargaining unit. The fixed term positions were for a period less than six months and contemplated irregular hours. Throughout the time these employees were working for the Employer they were dues paying members of the bargaining unit. During the time the exhibit was shown the grievors were, with one exception, all fixed term irregular hour employees. One was a regular part time employee.

6The Employer noted that the remaining issues before this Board are whether a violation of Article 6 of the Collective Agreement has occurred by the failure to post the positions and if the Employer acted arbitrarily and in contravention of Article 2 by failing to allow bargaining unit employees to perform the work.

7The relevant provisions of the Collective Agreement are:

Article 2 – Management Rights

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

Article 6 – Posting and Filling of Vacancies or New Positions (RPT)

6.1.1 When a vacancy occurs in the Regular Service for a bargaining unit position or a new regular position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date. Where practicable, notices of vacancies shall be posted either electronically or on bulletin boards and, upon request, shall be provided in large-sized print or Braille where the posting location has the capacity to do so. (FXT, SE)

6.1.2 Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position provided that a competition was held during the previous twelve (12) months and was within 125 kilometers of the work location of the previously posted position, and provided that the position had cleared surplus. The Employer in these circumstances is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position.

6.2 The notice of vacancy shall state, where applicable, the nature and title or position, salary, qualifications required, and the hours of work schedule as set out in Article UN2 and COR2, (Hours of Work). Where a position is posted within the Ontario Public Service, the internal notice of vacancy shall also state the work location where the position currently exists, that the position is represented by the Union and the particular bargaining unit which contains the position.

6.3 in filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor. (FXT, SE, FPT)

Article 8 – Temporary Assignments (FXT, SE, FPT RPT)

8.6.1 Where an employee is temporarily assigned to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where:

(a) the term of a temporary assignment is greater than six (6) months’ duration, and

(b) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment.

8.6.2 In no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in Article 8.6.1.

Article 22 – Grievance Procedure (FXT, SE, ST, FPT, RPT, GO)

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

Article 31A – Fixed-Term Employees Other Than Seasonal, Student and Go Temp Employees

Article 31.A.16 Other Applicable Articles

31.A.16.1 The following articles of the Central Collective Agreement shall also apply to fixed-term employees other than seasonal, student and GO Temp employees, 1, 2, 3, 4, 5, 6.1, 6.3 6.4, 8, 9, 10.1, 13, 14, 15, 16, 18, 21, 22, 23, 24, 27, 28, 45, 48.3 49, and 80.

Article 31A.17 - Seniority Accumulation for Fixed Terms Employees For The Purpose of Filling Vacancies or New Positions

31.A.17.1 Notwithstanding Article 18.1(b) a fixed-term employee shall be entitled to have their service counted towards the accumulation of seniority on the same basis under Article 18.1 and Article 18.4 before he or she is appointed to the Regular Service for the sole purpose of any determination made by the Employer under Article 6.3 (Posting and Filling of Vacancies or new Positions), if applicable. For this specified purpose, fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority based upon 1732.75 straight time hours or 1912 straight time hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate.

31.A17.2 No fixed-term employee shall have his or her name added to the OPS-side seniority list and Article 18.5 has no application.

8The Employer submitted that the appropriate starting point for consideration of jurisdiction is Section 7.3 of Crown Employees Collective Bargaining Act and Article 22.1 of the Collective Agreement wherein final and binding settlement is provided for all differences arising from the interpretation, application, administration or alleged contravention of the Collective Agreement. In determining jurisdiction, this Board must look at the nature of the dispute and the ambit of the Collective Agreement. Jurisdiction arises only in the event that the essential character of the dispute arises expressly or implicitly from the administration of the Collective Agreement.

9The Employer relied upon Re The Crown in Right of Ontario (Ministry of the Environment) and OPSEU (Lesieur et al) GSB#2002-2756 (Briggs); Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU GSB#2291/86 (Knopf); Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Flinn et al) GSB#0022/88 (Kennedy); Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Carson/French) GSB#582/89 (Kirkwood); Re The Crown in Right of Ontario (Ministry of Labour) and OPSEU (Sutherland) GSB#2006-0519 (Dissanayake); Re The Crown in Right of Ontario (Ministry of the Environment) and OPSEU (Dobroff et al) GSB#2003-0905 (Dissanayake); Re The Crown in Right of Ontario (Ministry of Government Services) and OPSEU (Couture et al) GSB#2008-3329 (Dissanayake); Re The Crown in Right of Ontario (Ministry of Government Services) and OPSEU (Union) GSB#2010-0405 (Abramsky); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (May et al) GSB#2001-1151 (Abramsky); Re The Crown in Right of Ontario (Ministry of Housing) and OPSEU (Union) GSB#3017/90 (Watters); and Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Union) GSB#1681/91 (Watters).

10Mr. Fredericks stated that the Board’s jurisprudence is clear and consistent. The Union must be able to point to a specific provision, other than the management right clause, of the Collective Agreement that has been violated and a failure to do so renders the Board without jurisdiction. In Re The Crown in Right of Ontario (Ministry of Labour) (Anthony et al) GSB#1999-1997, Vice Chair Abramsky stated:

The decision in OPSEU (Bousquet) supra, does not assist the Union. The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights….[U]nder Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s rights.

11The Employer noted that in Re Carson/French, supra, Vice Chair Kirkwood was asked to determine a grievance similar to the matter at hand. In that case the grievance alleged a violation of the Collective Agreement because the Employer posted a notice of vacancy with a restriction on the area of search for the competition that disentitled Correctional Officers outside the specified area from applying for the position. In considering whether the Board had the jurisdiction to review the Employer’s decision to limit the area of search for a job posting, Vice Chair Kirkwood stated, at page 14:

Therefore, in summary, we find that the Grievance Settlement Board and the Divisional Court have considered the issue that is before this Board and has found that the Ministry has an unrestricted right to limit the area of search for a job competition.

When considering the cases preceding this decision the submissions of counsel and the Agreed Statement of Fact and Issue, we find that there are no contradictions in the earlier cases, nor do we find that there are exceptional circumstances, nor even any manifest errors in the preceding cases which would persuade us that these cases were not applicable.

Accordingly, we find that the designation of an area of search for a job competition is a management right flowing from Section 18(1) of the Act. The grievor has been unable to point to anything in the Collective Agreement that fetters the exercise of that right, other than article 4.5, which as we have stated does not restrict the Ministry’s rights.

We do not find that there is any suggestion of any facts that would lead the Board to conclude that a possibility of bad faith occurred.

Therefore, the Board is without jurisdiction to deal with the merits of this grievance and the same is hereby dismissed.

12The Employer noted that the Board undertook a review of this matter in Re Dobroff et al, supra, when the Union attempted to rely upon the “Weber Doctrine” to reverse earlier decisions. Vice Chair Dissanayake reviewed other Board decisions and likewise found that the Supreme Court decision in Weber v. Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 does not change these situations. He said at page 25:

I adopt the reasoning in Re Andersen. It sets out correctly the impact of the Weber ruling on the jurisdiction of an arbitrator. Therefore, this Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. As I have noted, union counsel appeared to concede this limitation to his reply submissions when her clarified that he was not asserting that the Board has a “free standing” jurisdiction to review the exercise of management rights for reasonableness. He submitted, however, that the effect of Weber was to make it easier for a party to established the required like to the collective agreement by directing arbitrators to be more liberal and flexible in recognizing that required link. I find no such direction by the Supreme Court of Canada in Weber. To the contrary, as observed in Re Andersen, supra, “the Supreme Court’s decision in Weber did not broaden the scope of arbitration, even though the Court curtailed the range of disputes judges may “decide” (p. 9). However, it did broaden the jurisdiction of an arbitrator, once an arbitrator has determined that a dispute arises from the collective agreement, either explicitly or implicitly. (See Re Andersen at p. 10 for a discussion of the manner in which this jurisdiction has broadened).

13The Employer also took the position that according to the facts as set out in the particulars, which it accepts for this purpose, there is no prima facie case. In Re Ministry of Government Services, supra, Vice Chair Abramsky said at paragraph 14:

As set out in Re OPSEU (Couture et al.) supra at par.6, a motion to dismiss on the basis that there is no prima facie case succeeds “if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.” In assessing that criteria, the Board may interpret provisions of the collective agreement, and decide legal issues. Re OPSEU (Couture et al.), supra at par.13.

14The Employer contended that there is nothing in Article 6.1 obliging the Employer to post fixed term assignments. Article 6.1 applies only to vacancies in the regular or classified service. As clearly set out in Article 31.A, Article 6.1 applies to fixed term employees. However, it provides only that they can apply for the vacancies that are posted. It does not mean that fixed term positions must be posted.

15The Employer also submitted that the provisions of Article 8 are key to the matter at hand. Article 8 contemplates temporary assignments of less than six months and makes clear that so long as a temporary assignment is less than six months and the specific dates of the term are established at least two months in advance of the commencement of the temporary assignment, Article 6 does not apply.

16The issue of whether temporary assignments have to be posted is another matter previously considered by this Board, according to the Employer. In Re May et al, supra, Vice Chair Abramsky stated, at page 13:

Further, the Board has clearly held that a temporary assignment must be posted, under Article 6, only when both requirements in Article 8.6.1 are met. It is undisputed that the second, if not the first, requirement of Article 8.6.1 was not met. Indeed, there was no set time for the temporary assignments and each one differed. Further, Article 8.6.2 states: “in no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in 8.6.1.” Consequently, when the requirements for posting under Article 8.6.1 have not been met, Article 6 cannot not apply. OPSEU (DiSilva and Ministry of Environment, supra: OPSEU (Union Grievance) and Ministry of Correctional Services, supra.

Accordingly, I conclude that the temporary assignments at issue here, even though some of them lasted well beyond the original time period, were still temporary assignments and were not “vacancies” under Article 6. They were temporary assignments, designed to alleviate staffing pressures, and because the requirements of Article 8.6.1 were not met, there was no requirement to post for them.

17The Employer stated that the last remaining issue was the impact of Article 2.1. It was suggested that management has the exclusive right to manage and determine staffing levels. In the absence of an allegation of management exercising its rights in a fashion that constitutes faith, a contention that Article 2.1 has been violated, in and of itself, is not sufficient for this Board to take jurisdiction over the grievance.

18The Employer concluded by suggesting that in this case, the Union’s position is based solely on the grievors’ desire to have the Employer schedule more hours to those fixed term employees already in the workplace rather than hiring more staff. The Board might not be convinced that the Employer’s decision to hire more staff was reasonable and, further, it might have sympathy for the disappointment felt by the grievors, but those concerns are not enough to find jurisdiction.

19Mr. Paul, for the Union, suggested that there are three reasons why the positions at issue should have been posted in accordance with Article 6. First, Article 31.A.16 is a specific term which should prevail over general terms of the Collective Agreement. Second, Article 21.A.16.1 is an operative term and should prevail over definitions found elsewhere in the Collective Agreement. Finally, when the Collective Agreement is read as a whole, it favours the Union’s view that these positions should have been posted.

20Turning to its first submission, the Union stated that the degree of specificity that is contained in Article 31A.16.1 renders it a specific term. It is an accepted canon of construction that all words have meaning but in instances of conflict, the specific prevails over the general. In Re Alcan Packaging (Brampton) and Graphic Communications International Brotherhood of Teamsters Union, Local 100-M [2009] O.L.A.A. No. 235 (Chauvin), the following was stated at para 29:

I accept the union’s position that a specific provision prevails over a general provision in the collective agreement. However, in interpreting two such provisions, one must carefully consider the language in both of the provisions to determine the extent to which the specific provision prevails over the general provision. An interpretation must be rendered that gives meaning to, and harmonizes, both of the provisions.

21The Union contended that in order to find for the Employer this Board would have to strip Article 31.A.16 of at least part of its meaning.

22Another canon of construction dictates that an operative provision prevails over a definition. An operative term, is considered in Re Thunder Bay Regional Health Science Centre and Ontario Public Service Employees Union, Local 715 [2006] O.L.A.A. 601 (Marcotte). At paragraph 39 it was stated:

Further, I also note that Local art. 2.01 contains the definition of the term “employee”. As stated in Brown and Beatty, supra, at para 4:2120, where it is determined that the language of the provisions of the collective agreement are in conflict, a proper presumption for purposes of interpreting the impugned language is that “where a definition conflicts with an operative provision, the operative provision prevails”. In Black’s law Dictionary 5th ed. (St. Paul, Minn: West Publishing Co.), the term “operative part” is defined as, “that part of a conveyance, or of any instrument, intended for the creation or transference of rights, by which the main object of the instrument is carried into effect.” Thus, to the extent that the above referred-to collective agreement provisions can be said to provide rights to bargaining unit employees, application of this arbitral presumption for purposes of interpreting collective agreement language in the instant case would also favour resolution of the latent ambiguity in determining that Central art. 13.01 is an operative provision that prevails over the definition contained in Local art. 2.01.

23The Union suggested that the Employer’s suggested interpretation of the interplay between Article 31.A.16 and Article 6 will create a conflict. The assertion that the only right provided for fixed term employees under Article 31.A.16 regarding job postings is the right to apply for posting cannot be correct. In this regard it is important to look at what articles do not apply to fixed-term employees. Article 6.5 refers to relocation costs and does not apply to fixed-term employees. If the purpose of article 31.A.16 is only for to allow fixed-term employees to apply for regular service positions, there would be no reason to exclude them from relocation costs. This conflict is an indicator. The purpose of the provision is that Article 6.1 should be interpreted so as to provide that the Employer must post fixed term positions.

24The Union disagreed with the Employer’s submission that Article 8.6.1 applies in this case. It contended that that the positions at issue in this dispute were not temporary assignments but new temporary positions. The heading of Article 8 says is Temporary Assignments. Accordingly, all of the terms within that article deal with assignments and not new temporary positions. In Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (Hannah) GSB#2115/99 (Harris) a Correctional Officer successfully bid on a job posting of Driving Instructor. The Union alleged that the grievor should have continued to receive his Correctional Officer wage while in this position. The Employer urged that it was absurd to apply the wage protection scheme of Article 8.3 to an employee who voluntarily applies for and is thereby temporarily assigned to a lower rated position. In his decision Vice Chair Harris stated that in order for Article 8.03 to be triggered there had to be an Employer assignment of an employee “from” one position “to” another. In this case at hand, the Employer hired new employees from an outside agency, and therefore did not assign them “from” one position “to” another. Accordingly, it cannot be said that those positions were temporary assignments. For this reason the case law reviewed by the Employer does not apply.

25The Union conceded that the Employer has an interest in being flexible in meeting its needs regarding the staffing of the workplace and that need for flexibility is recognized in Article 8. However, Article 8 should not be seen to be an unlimited right of the Employer to hire as many fixed term employees as it chooses.

26Mr. Paul urged the Board to find that when the Collective Agreement is read as a whole, as set out above, there is sufficient “hook” for this Board to take jurisdiction over the grievance.

27Addressing the issue of whether a prima facie case has been established, the Union noted that it clearly stated that the Employer has acted in an arbitrary fashion. The jurisprudence provided stands for the proposition that when there is an allegation of bad faith, discrimination or arbitrariness arbitrators have the jurisdiction to hear grievances that allege a violation of management rights.

28By way of reply the Employer made the general statement that the Union is attempting to have this Board make a ruling that is completely inconsistent with its previous jurisprudence.

29The Employer submitted that Article 6.1.1 that provides that vacancies for regular service shall be posted is very specific. Contrary to the Union’s assertion, it is not a definition and it is not dependent upon a definition. Further, Article 6.1.1 is the operative term in the Collective Agreement.

30The Employer took issue with the Union’s characterization of Article 8.6.1. In this matter, the Employer hired the additional fixed-term employees in accordance with its rights under Article 2 – not pursuant to Article 8. Article 8 was raised by the Employer only to emphasize that if the grievors wanted the work at issue, it is the vehicle they would have to use but only if both conditions set out therein were met.

31Finally, turning to the Union’s assertion that this Board must find a prima facie case has been made out because of the statements made in the particulars, the Employer noted that there was absolutely no factual basis set out as to why the Employer acted in an arbitrary fashion. Indeed, all that is stated is a characterization of Employer actions. The Employer specifically asked the Union to set out the facts as to why it alleged unreasonableness in this case and all that was said by the Union is that the Employer was arbitrary. That statement alone in the particulars cannot be sufficient to find that the Union has made out a prima facie case.

32At the conclusion of its argument, the Union indicated it wanted to send a decision that post dated the November 1, 1994 award of Vice Chair Watters (GSB#1681/91), supra, relied upon by the Employer regarding the Ministry’s failure “to post and fill number positions within the classified service that are presently within the unclassified service.” It was suggested that the decision it would send overturned the conclusions made by Vice Chair Watters. There was no objection by the Employer to this process so long as it had the right to comment on the decision. As it turned out, the decision sent by the Union was Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU (Union Grievance) GSB#311/88 (Watters) which was issued on July 11, 1991. Notwithstanding the earlier date, the Union continued to urge that 1994 decision was “not binding” upon the Board.

33Not surprisingly, the Employer took issue with the Union’s assertion. It was noted that an opposite conclusion was reached for a number of reasons including different facts, an agreement that the unclassified staff was properly appointed under the Public Service Act, and amendments made to the Public Service Act that provided for an additional group of unclassified employees who had duties and hours of work similar to those of classified employees.

34There were further arguments made as to what, if anything, should be made of changes made to the Collective Agreement language over a number of years. I will not set out this disagreement in detail because, in my view, any changes that have been made are relatively minor and certainly are not determinative.

DECISION

35I will first address the Employer’s assertion that the facts, as set out by the Union in its particulars, do not establish a prima facie case.

36The Union asserted because the particulars contain a statement that the Employer acted arbitrarily, this Board must find that there is a prima facie case. I must disagree. In the particulars set out above, the second paragraph states:

As is particularized below, the grievors claim that the Employer has violated the Collective Agreement, particularly Article 6, by hiring new hosts to positions without the positions being posted and an opportunity given for members of the bargaining unit to compete for them, and Article 2 in that the Employer has exercised its management rights in relations to hiring in a manner that is arbitrary and unreasonable.

(emphasis mine)

37The second instance of the word “arbitrary” is found in the ninth paragraph which stated:

Conclusion and Remedy – The Employer’s action in not posting the host positions constituted a violation of the Collective Agreement, particularly Article 6.1. Further, by not providing an opportunity for the grievors to compete for the new Host positions, the Employer exercised its Article 2 management rights in an arbitrary manner.

38In my view, neither of these statements are a particularized fact. In the Union’s own words, the first mention was a “claim” and the second was a “conclusion”. In this case, it cannot be that the mere presence of the word “arbitrary” on the same page as particularized facts means that it is a fact that the Employer acted arbitrarily. To claim and or conclude arbitrary actions amongst particularized facts does not transform the claim or conclusion into a fact.

39Indeed, in this case I am of the view that there is nothing in the Union’s particularized facts that would lead me to find that the Employer acting in an arbitrary manner.

40As stated in Re Couture, supra, a motion to dismiss on the basis that there is no prima facie case succeeds “if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.”

41After considering the facts, submissions and the Board’s clear and consistent jurisprudence, I must agree with the Employer that there is no prima facie case.

42The Employer determined, in accordance with its rights under Article 2 of the Collective Agreement to hire fixed term employees for a period of less than six month to facilitate temporary staffing needs.

43Simply put, there is no Collective Agreement provision that obliged the Employer to post the temporary positions at issue in this case. Article 8.6.1 sets out the circumstances that must exist in order for a temporary position to be posted. Where the requirements of 8.6.1 have not been met, Article 6 does not apply. According to the facts set out by the Union, the positions at issue were less than six months in duration.

44Having found that no prima facie case has been established, I need not address the matter of jurisdiction.

45The Employer’s motion to dismiss these grievances succeeds.