GSB#2013-2135

UNION#2013-0702-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 30, February 3 and February 5, 2015

Decision

1A policy grievance filed by the union on August 13, 2013 came before the Board for arbitration. Three days had been scheduled. Employee Ms. Judith McLeod was provided third party notice. She attended the hearing except on the first day and also made a brief statement in closing, in addition to testifying for the employer. Following opening statements on the first day of hearing, in discussion with the Vice-Chair, the parties agreed to proceed under the mediation-arbitration provisions of article 22.16 of the collective agreement. It was agreed that relevant facts each party wishes to rely upon would be presented by counsel orally including what its witnesses “will say” if called to testify. It was further agreed that on certain narrow areas where facts were in dispute, the parties would call viva voce evidence. Each party also filed a book of documents. This process was followed. The union called Mr. Tom Wood, Staff Representative, and the employer’s only witness was Ms. McLeod.

2In essence, the instant grievance alleges that the employer contravened article 6 of the collective agreement by failing to post a full-time vacancy in the position of Victim Witness Service Worker (VWSW) at its office in Kenora, Ontario. The union submits that the employer was not entitled to rely on a Job Share Agreement as relieving it from its article 6 posting obligation because it did not comply with the requirements of article 10.2, and was therefore invalid. Article 10.2 reads:

10.2 JOB SHARING

10.2.1 Job sharing can occur where there is agreement between the employees who wish to job share, the Union, and the Employer.

10.2.2 It is agreed that job sharing results from two employees sharing a full-time regular position and as such the position shall continue to be identified as a full-time regular position.

10.2.3 Employees in a job sharing arrangement must share the same classification and level.

10.2.4 The sharing of the hours of work shall be determined by the parties to the sharing agreement but in no case shall one employee work less than fourteen (14) hours per week.

10.2.5 (a) Employees in a job sharing arrangement shall be accorded the Working Conditions and Employee Benefits contained in Parts A & B of this Central Collective Agreement and part A of the Bargaining Unit Collective Agreements. However, where applicable, they shall be pro-rated in accordance with employee’s hours of work. (b) Part C of this Central Collective Agreement and part B of the Bargaining Unit Collective Agreements will be used to provide administrative direction for the applicable pro-rating of the working conditions and benefits, and Article 57.1 (Pay and Benefits Administration) for the purposes of calculating a basic hourly rate.

10.2.6 In the event that one employee in the job sharing arrangement leaves that arrangement on a permanent basis for any reason the remaining employee would first be offered the opportunity to assume the position on a full-time basis.

10.2.7 If the remaining employee declines the full-time opportunity, the position may be posted and advertised as a job sharing vacancy, subject to the provisions of this Central Collective Agreement

10.2.8. Failing successful filling of the job sharing position, the remaining employee shall be offered a further opportunity to assume the position on a full-time basis.

10.2.9 If the remaining employee still declines this opportunity, the position would continue to exist as a full-time position and the Employer may fill the balance of hours through temporary measures, if required.

10.2.10 The Employer undertakes to notify the President of the Union of all job sharing arrangements.

3Ms. Miriam MacDonald was employed as a full-time VWSW at the Kenora office. For personal reasons, she wanted to reduce her work hours and sought to achieve that through a job share. She indicated to her manager, Ms. Kelly Alcock, that she was unable to find an OPS employee to job share, and proposed that she be allowed to share her job with Ms. Debbie Lundgren, who was not employed in the OPS at the time. Ultimately, Ms. MacDonald’s request was granted. Ms. Lundgren was granted a 5.5 month temporary assignment in the position of VWSW, as a fixed term employee. Effective January 1, 2008, Ms. MacDonald’s hours were reduced to 18.5 per week, and Ms. Lundgren performed the balance of the hours as part of a job share arrangement. On the expiration of Ms. Lundgren’s fixed term contract, she was hired on December 15, 2008 into the regular service on a part-time basis (“RPT”), pursuant to a job posting.

4The evidence is that sometime in late December 2009, Ms. Lundgren resigned from her RPT position, which she had been performing under the job share arrangement with Ms. MacDonald. In March 2010, the RPT position vacated by Ms. Lundgren was posted as a job share opportunity. Ms. McLeod was the successful applicant, and she assumed duties effective May 18, 2010 performing 18 hours per week.

5When Ms. MacDonald resigned her position effective July 10, 2013, the portion of the job share arrangement that had been performed by her became vacant. The employer offered the VWSW position on a full-time basis to the remaining job share employee, Ms. McLeod, who accepted it. The instant policy grievance was filed on August 13, 2013, wherein the union seeks, inter alia, that the employer be ordered to post the position occupied presently by Ms. McLeod as a fulltime vacancy.

6The key issue for determination is whether or not a valid job share agreement came into existence between Ms. MacDonald and Ms. Lundgren in January 2008, because everything else flows from it. The union submits that no valid job share arrangement came into existence because no written document was signed off. It is the union’s position that in the absence of a valid job share agreement the provisions of article 10 have no application to exempt the employer from its article 6 posting obligation.

7The employer’s primary position is that there is no requirement in the collective agreement that a job share agreement be in writing. In the alternative, it was submitted that, although there was no single document signed off by the four parties in question, signatures on behalf of each of the parties are in evidence indicating written agreement on the essential elements of a job share agreement. In the further alternative, the employer argued that the union is in any event estopped from asserting a right to have the position in question posted under article 6.

8I have considered the evidence, the legal authorities, and submissions presented over three full days of hearing. The initial issue is whether a job share agreement, to be valid, must be in writing. Under article 10.2.1 job sharing can occur, “where there is agreement between the employees who wish to job share, the union and the employer”. The union concedes that there is no provision in the collective agreement that the agreement to a job share must be in writing. However, it was argued that such requirement must be inferred in article 10.2.1.

9I find no basis for such an inference. The collective agreement is replete with references to communications between the union, the employer and employees. In some cases the communication is explicitly required to be in writing. Examples are article 20.7.2 (employee offer to take voluntary exit to be in writing); 22.2 (grievance to be in writing); 22.3 (employer response to the grievance to be in writing); 50.4 (benefits coverage for employee on pregnancy leave to continue unless elected in writing otherwise). Similarly, the collective agreement contains numerous references to “agreements”. In some cases it is explicitly provided that the agreement must be in writing. Examples are article 11.3 (new or seasonal/temporary headquarters may be designated by mutual agreement in writing); 22.14.3 (Time limits for processing of grievances may be extended by agreement of the parties in writing). On the others hand, there are other provisions in the collective agreement, without reference to “written” or “in writing”. In addition to article 10.2.1, article 22.16.3 (Med/arb to begin within 6 months of referral unless a later date “agreed to by the parties”; 22.16.2 (med/arb decision to be issued within 5 days “unless the parties agree otherwise”; 22.16.6 (med-arb process not to be utilized for certain types of grievances “except with the mutual agreement of the parties”; 22.16.7 (med/arb decision to have no precedential value “unless the parties agree otherwise”).

10In interpreting the terms of a collective agreement, effect must be given to the language used. It is apparent that the instant parties have put their minds to when communications, and more importantly agreements, must be in writing. In some instances, they have stipulated that agreements must be in writing. In others no such requirement is stipulated. Particularly considering that these are sophisticated parties with a long history of collective bargaining, it must be recognized that their use of different language was intentional, and not simply a result of sloppy drafting. Where they intended something to be in writing as a condition of validity, they have expressed that intention by use of language such as “in writing” or “upon written agreement’. The logical inference is that where they have not used such language, there was no intention that there was a requirement of a written agreement. Since article 10.2.1 simply requires “agreement of the parties”, the Board would be adding a requirement of a written document, which was not intended by the parties. Therefore, the Board concludes that there is no requirement in article 10.2.1 that an agreement to job share be in writing, as a condition of validity.

11Although a written document is not required, article 10.2.1 clearly contemplates an agreement to job share between four parties, namely the two employees, the union and the employer. Therefore, the next issue is whether there was such an agreement with respect to a job share between Ms. MacDonald and Ms. Lundgren. The evidence is that Ms. MacDonald, having first enlisted management’s support to job share with Ms. Lundgren, e-mailed Mr. Joe Barron, the union staff representative serving the area at the time, indicating the manager’s support for the job share she was proposing, and seeking the union’s approval. Mr. Baron opined that he was very doubtful it would be approved by the union. However, he proceeded to forward Ms. MacDonald’s request to the union’s Job Security Unit at head office. That was in turn referred to Ms. Sandra Harper, the union’s staff member responsible for job share issues. The evidence is that Ms. Harper’s advice communicated to Mr. Barron was to the effect that since Ms. Lundgren was not an OPS employee, the only way the job share can be approved is that it be for a period no longer than one year, and that any job share that exceeds one year must be between two employees in the regular service. The evidence is that Ms. Alcock also contacted the president of union local at the time, Ms. Allison Cartwright, advising her of the job share request, and stating that she “would really like your assistance in understanding what it is we can and can’t do”. Ms. Cartwright referred Ms. Alcock’s inquiry also to Mr. Barron.

12The advice Mr. Barron received was passed on to Ms. MacDonald, and through her, to Ms. Alcock. Ms. Alcock therefore approved and implemented the job share arrangement sought by Ms. MacDonald and agreed to between her and Ms. Lundgren. In order to comply with the condition required by the union, Lundgren was hired on a Fixed-Term contract limited to a period of 5.5 months.

13The evidence is that the job share arrangement between Ms. MacDonald and Ms. Lundgren worked out to their satisfaction, as well as of the employer. However, the union had stipulated that a job share involving a Fixed Term employee could not exceed one year. Such an arrangement had to be between two employees in the regular service. Therefore, the employer posted that portion of the VWSW position Ms. Lundgren was performing as a Regular Part-Time position. In order to facilitate the recruiting process, Ms. Lundgren’s contract was extended to August 30, 2008, which was still within the one year limit placed by the union. Mr. Barron was advised of this extension as well as the posting of the RPT position. The posting in August 2008 explicitly noted that “This will be a job share arrangement”, and that it will have 18 hours per week, which was exactly the number of hours Ms. Lundgren had been performing. Once Ms. Lundgren won the ensuing competition and became a RPT employee, her job share with Ms. MacDonald met the union’s condition that any job share that exceeds one year must be between two employees in the regular service.

14Viewing the agreement contemplated in article 10.2.1 as a contract, what occurred here could be described as follows. Under article 10.2.1 there has to be consensus ad idem between four parties for there to be a valid agreement. Three of the parties, namely, the two employees and the employer made a proposal or offer to the union to implement a job share arrangement. The union would not accept the offer as presented. It made a counter proposal demanding certain conditions be met. Namely, that as an employee not in the regular service, Ms. Lundgren be not allowed to engage in a job share for longer than one year, and that any job share arrangement exceeding one year has to be between two employees in the regular service. The employer accepted the union’s counter proposal and implemented the job share. The employer met the conditions in the union’s counter proposal by ensuring that Ms. Lundgren did not participate in a job share for longer than one year while she had fixed term status. It also took steps to ensure that Ms. Lundgren was employed in the regular service before the job share arrangement exceeded the one year limit. In the circumstances, the Board concludes that there was a meeting of the minds between the two employees, the union and the employer. Thus, there was “an agreement between the two employees who wish to job share, the union, and the employer” as contemplated in article 10.2.1.

15The union, through Mr. Tom Wood, who had succeeded Mr. Barron as Union Staff Representative, led evidence of a practice. As I have already concluded, the collective agreement does not require that a job share agreement be in writing as a condition of its validity. Nevertheless, if there is evidence that there had been a practice between the union and employer to treat a job share arrangement entered into to be valid only if it is reduced into writing and signed off, there would have been some merit to an argument that there would be no “agreement” until the terms are reduced into writing. However, there is no evidence of such a practice. The testimony of Mr. Wood only establishes that after entering into a job share agreement, as a matter of practice the agreement was formalized by incorporating the agreed upon terms in a written document which was then signed off. Mr. Wood, under cross-examination acknowledged that the “entering into” of a job share agreement, and the “formalizing” of the terms agreed to, were “two different things”.

16The Board concludes that there was no practice between the parties to consider job share arrangement to be valid only if reduced to writing. Rather, the practice was only to reduce the terms of the job share agreed to into writing after agreement is reached. This obviously is a very sensible and prudent practice. Having a written document evidences the terms agreed to and avoids disputes and grievances. The purpose of the practice, the evidence indicates, was to ensure that everyone involved, including those administering and monitoring it, is made aware of what had been agreed to. Thus, according to the practice, the document was signed off for the union by a number of people, namely the two employees sharing the job, the union local president, the union staff representative, the union’s job security officer, the OPS supervisor, and the President of OPSEU. This clearly supports the conclusion that the “formalization” of the agreement (as Mr. Wood put it) was for informational and clarity purposes, and not as a condition of validity.

17Support for this conclusion is also found in the evidence. Given that the office was a small one located in a small town, it is reasonable to assume that it would have been common knowledge that Ms. MacDonald and Ms. Lundgren were job sharing. In any event, the employer continuously kept the union informed about the steps it was taking to implement the job share arrangement between Ms. MacDonald and Ms. Lundgren. The job share began on January 21, 2008 when Ms. Lundgren was hired as a fixed term employee. There is evidence that there was regular communication between the union and the employer about the implementation of the job share. Yet the union did not raise with the employer any concern that the job share was not signed off and therefore was invalid and no grievance was filed. This argument was raised only in the context of the instant grievance filed years later in 2013, after the offer of the position on a full-time basis to Ms. McLeod.

18Once it is concluded, as the Board does, that there was a valid agreement for a job share arrangement between Ms. MacDonald and Ms. Lundgren, all provisions of article 10.2 become operative. The Board concludes that the employer complied with all of the applicable provisions. Article 10.2.6 requires that where one employee in a job share agreement leaves it permanently, the remaining employee be offered the job full-time. This was complied with. When Ms. Lundgren resigned, Ms. MacDonald was offered the position full-time. Article 10.2.7 stipulates that where the remaining employee declines the offer, as Ms. MacDonald did, the position may be posted and filled as a job share arrangement. The employer did exactly that. It posted and filled the job share vacancy. Ms. McLeod was the successful applicant in the competition. Thus Ms. McLeod stepped into the job share portion vacated by Ms. Lundgren. The job share, continued with Ms. MacDonald and Ms. McLeod as the sharing employees. Then Ms. MacDonald resigned on July 10, 2013. The “remaining employee” was Ms. McLeod. Therefore, article 10.2.6 mandated that Ms. McLeod be offered the position full-time. The employer did so, and Ms. McLeod accepted.

19In light of all of the foregoing, the Board concludes that the employer did not contravene the collective agreement. The job share arrangement between Ms. MacDonald and Ms. McLeod was in compliance with the terms of the collective agreement. The offer of the position full-time to Ms. McLeod when the other job sharing employee Ms. MacDonald resigned, was also in compliance with the collective agreement. In light of the foregoing conclusion, it is unnecessary for the Board to deal with any of the alternate arguments advanced by the employer, including estoppel. The instant grievance is dismissed.