GSB#2009-0437

UNION# 2009-0217-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cotter)

Union

• and -

The Crown in Right of Ontario (Niagara Parks Commission)

Employer

BEFORE

David R. Williamson

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Ian Campbell Fasken Martineau DuMoulin LLP Counsel

HEARING

June 10 and September 18, 2014

DECISION

1Ms. Colleen Cotter was employed by the Niagara Parks Commission and worked as a regular full-time Level 5 employee at its Tim Hortons operation where she carried out the duties of counter help and baker. On January 30, 2009, she received notice that her position was to become surplus effective the end of the business day on February 20, 2009. On February 16, 2009, Ms. Cotter filed a complaint in accordance with the provisions of Article 13.01 of the collective agreement and set forth her view that her position ought not to have been surplused as more hours are worked in this position during the summer than in the winter, and that as Tim Hortons is open year-round they still need a baker. On March 2, 2009 Ms. Cotter filed a grievance alleging unjust loss of her position and sought full redress. The grievance remained unresolved and came to be heard at arbitration on June 10, 2014, at which time the parties proceeded by way of an Agreed Statement of Facts and the viva voce evidence of Ms. Cotter.

2The evidence shows that Ms. Cotter’s position was one of a number of bargaining unit and management positions at the Niagara Parks Commission that were either eliminated, down-sized, or made surplus due to a downturn in business brought about by a series of economic factors adversely affecting the volume of tourism in the Niagara region, particularly by tourists from the United States. These factors included a strong Canadian dollar, a weakening U.S. economy, rising fuel costs, new passport requirements, and border delays.

3The evidence demonstrates that in assessing its operations in late 2008, the Employer determined that changes were needed at its Tim Hortons store. In this regard the decision was made to reduce store hours and cut by approximately half the number of goods to be baked on site each day. Ms. Cotter was a seasonal employee for many years before assuming a regular full-time position in the Employer’s Food Services Department in 1999. Her seniority date is May 24, 1979. Ms. Cotter was one of two regular full-time employees whose positions were declared surplus in early 2009. The other employee’s seniority date was July 31, 1978. This other employee exercised her bumping rights into a full-time sales clerk position and remains in that role to this day. Following the elimination of these two full-time bargaining unit positions, there are no longer any full-time bargaining unit positions at the Tim Hortons operation and the required work is done by seasonal workers. Data entered into evidence show the total number of hours worked by seasonal employees in the counter staff / baker role for each year since 2009 are less than the hours that would be worked by one regular full-time employee.

4It is the testimony of Ms. Cotter that during her time as a regular full-time employee the Tim Hortons store was open 364 days a year and that as it was a requirement of Tim Hortons that no baked product was older than eight hours she did two bakes a day. Ms. Cotter testified that the reason she filed her grievance is that her job was taken away from her with the store remaining to be open for 364 days a year and with someone still having to do the baking work and counter duties.

5On February 5, 2009, Ms. Cotter informed the Employer that she wished to exercise her seniority rights under Article 10.02 of the collective agreement and bump into the full-time position of Janitor at the Victoria Park Restaurant. This request was approved by the Employer on February 6, 2009, with the assignment to commence on February 28, 2009. On February 11, 2009, Ms. Cotter informed the employer that she wished to cancel this bumping request and that, instead, she wished to exercise her seniority rights under Article 10.02(b) of the collective agreement and bump into a Seasonal Pantry Worker position at Elements Restaurant. This request was granted and Ms. Cotter commenced work in this position on April 19, 2009, and continues to work in this position with her employment governed by Part B of the collective agreement that relates to seasonal employees. From the last day of her regular employment on February 20, 2009, to the start of her new position at Elements Restaurant on April 19, 2009, Ms. Cotter worked the available hours as a seasonal employee at Tim Hortons.

6It is the position of the Union that it is unjust that a business operation that continues to be open 364 days a year and which was once staffed by both regular full-time and seasonal employees is now staffed only by seasonal employees, with the result that regular full-time employees who have much seniority are the ones who suffer and have to move to other jobs. The Union submits that such an outcome is contrary to the spirit and intent of the collective agreement which provides a series of protections for regular full-time seniority employees and is not about facilitating the conversion of full-time jobs into seasonal jobs through an exercise of management rights. The Union submits further that, while the employer has certain retained management rights, in order to preserve the integrity of the agreement between the parties and maintain the protection of seniority rights, the collective agreement should be read as a whole with its various express provisions and implied protections. The Union seeks that the grievance be granted with the matter of quantum to be left to the parties to address and with the arbitrator to remain seized. In support of its submission the Union made reference to Re Canadian National Railway Co. and Canadian Telecommunications Union Division No. 43 of the United Telegraph Workers et al. (1976), 1975 CanLII 644 (ON CA), 10 O.R. (2d) 389 (Ontario Court of Appeal), and to Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1983), 1983 CanLII 4805 (ON LA), 10 L.A.C. (3d) 1 (P. Picher).

7It is the position of the Employer that the collective agreement sets out the rights of management and provides for a process to be followed when there is a lay-off or a position is found to be surplus. It is the submission of the Employer that this lay-off process has been properly followed and submits that it is indeed telling that the Union has not referred to any specific provision in the collective agreement that it contends has been breached. It submits further that it has acted in a non-arbitrary and good faith manner to manage the business in accordance with its management rights to respond to a fall-off in business due to adverse economic conditions and that both management and bargaining unit staff have been negatively impacted. One result of the changes made is that there are no longer enough hours for a regular full-time position at its Tim Hortons facility and that while there is still baking and counter service work being done it is much reduced from before and Ms. Cotter elected not to take the seasonal position at Tim Hortons. For all the foregoing reasons the Employer seeks that the grievance of Ms. Cotter be dismissed. In support of its submission the Employer made reference to Re Hamilton Public Library and CUPE, Local 932 (2011-12) (2013), 238 L.A.C. (4th) 116 (Surdykowski); Re United Parcel Service Canada Ltd. and Teamsters Union, Local 141 (1981), 1981 CanLII 4389 (ON LA), 29 L.A.C. (2d) 202 (Burkett); and to Re Yoke’s Supermarket Ltd. and U.F.C.W., Local 864 (1994), 1994 CanLII 18631 (NS LA), 43 L.A.C. (4th) 327 (Outhouse).

8Relevant provisions of the collective agreement are set out below:

ARTICLE 3: MANAGEMENT FUNCTIONS

3.01 The Union acknowledges that, except as specifically modified elsewhere in this Agreement, it is the exclusive function of the Employer to:

(a) Maintain order, discipline and efficiency;

(b) Hire, discharge, transfer, classify, promote, demote, assign, layoff, recall, schedule and suspend or otherwise discipline employees, subject to the right of an employee to lodge a grievance in the manner and to the extent hereinafter provided;

(c) Make, enforce and revise from time to time rules and regulations relating to discipline and the general conduct of an employee.

(d) Manage the enterprise in which the Employer is engaged and without restricting the generality of the foregoing, the right to plan their operations, direct the work force, determine the number of personnel required from time to time, the number and location of offices and facilities, the services to be performed and the methods, procedures and equipment to be used in connection therewith;

(e) Establish schedules of work, the extension, limitation, curtailment or cessation of operations and exercise all other rights and responsibilities of management.

ARTICLE 10: SENIORITY

10.02(a) When the Employer decides the circumstances require a reduction of personnel and where the qualifications of the employees for the job concerned are relatively equal, the seniority of the employees shall apply. Employees with more seniority will have the right to displace employees with less seniority in the same classification or a classification with a lower maximum salary provided that the Employer determines that the surplus employee is qualified to perform the work of the displaced employee. Upon receiving a layoff notice, an employee who wishes to exercise his/her seniority may do so providing he/she notifies the Human Resources Department in writing of his/her intent to exercise his/her seniority within seventy-two (72) hours of receiving the notification of layoff.

10.02(b) Where a full time employee is permanently laid off and is unable to exercise his/her seniority to displace another full time employee, he/she may exercise seniority to displace a seasonal position at an equal or lesser classification and where the full time employee is qualified to perform the duties of the position. It is understood that an employee who exercises this option shall only be covered by the terms and conditions of Part B of the Collective Agreement. The employee’s seniority date shall be carried over to the seasonal position and entitlements under Part B will be based on the employee’s length of service as a fulltime employee (e.g. 4%, 5%, or 6% vacation pay).

9The evidence, the provisions of the collective agreement, and the submissions of the parties have all been carefully considered. On January 30, 2009, Ms Cotter received the unfortunate news that due to economic forces impacting the employer’s operations her position at the Tim Horton’s store was to become surplus as of the end of the business day of February 20, 2009. Ms. Cotter’s position was one of a number of positions either eliminated, down-sized, or made surplus by the Employer at that time and included both bargaining unit employees and management employees. A review of the Agreed Statement of Facts and the associated exhibits appended thereto clearly demonstrate the Employer was acting in response to a significant downturn in tourism and visitors to the Niagara area caused by major economic changes on several fronts, and it must be found that the Employer was not acting in a capricious manner or without a bona fide reason for making the changes that it did to its complement of employees.

10In declaring Ms. Cotter’s position to be surplus, the Employer acted inside the scope of the management functions set out in Article 3 of the collective agreement. Additionally, it must be found that when it notified Ms. Cotter that her position was to be surplus, the Employer respected the provisions of Article 10 of the collective agreement pertaining to seniority both in advising her of her bumping choices and acting on her decision. While the evidence demonstrates that baking and counter work continue to be done at the Tim Horton’s store where Ms. Cotter previously worked, the data in the Agreed Statement of Facts make clear that the hours worked are insufficient for there to be a regular fulltime position.

11The instant matter is not a case where the Employer has acted under its management rights but contrary to other implied or express provisions of the collective agreement. As such, this case can be contrasted with the Re Canadian National Railway Co. case to which reference was made by the Union. In that case the Ontario Court of Appeal endorsed the approach that looked to the terms of the collective agreement as a whole where no specific provision of the contract dealt directly with the matter in issue, and where there was present a management rights clause that specifically recognized it was management’s exclusive function to manage its business and direct the working force in a manner not contrary to the collective agreement. This is not the situation in the instant case. Here the parties have specifically agreed in Article 10 upon the precise steps to be followed in the circumstances of a layoff of a regular full-time employee. Article 10 deals directly with Ms. Cotter’s situation, and the Employer followed its provisions.

12Accordingly, and for all the foregoing reasons, it must be found that the Employer did not act in bad faith in declaring Ms. Cotter’s position to be surplus but did so for sound business reasons, and it is further found that the subsequent steps taken by the Employer were in accordance with the specific provisions of the collective agreement.

13As such, the grievance of Ms. Cotter must be denied.