GSB#2012-3345, 2012-3548, 2012-3549, 2012-3550, 2012-3551, 2012-3552, 2012-3553, 2012-3554, 2012-3555, 2012-3560, 2012-3857, 2013-0489, 2013-0490, 2013-0507, 2013-0509, 2013-0510, 2013-0511, 2013-0618, 2013-0619, 2013-3738, 2013-3739, 2013-3740, 2013-3741

UNION#2012-0706-0004, 2012-5105-0012, 2012-5105-0013, 2012-5105-0014, 2012-5105-0015, 2012-5105-0016, 2012-5105-0017, 2012-5105-0018, 2012-5105-0019, 2012-0669-0009,

2012-0706-0006, 2013-5105-0058, 2013-5105-0059, 2012-0706-0008, 2013-5105-0060,

2013-5105-0061, 2013-5105-0062, 2013-5105-0064, 2013-5105-0065, 2012-0314-0012,

2012-0314-0013, 2012-0314-0014, 2013-0314-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (James et al)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 28, February 5 & 6, April 17, June 5 & 6, July 4, August 22 & 27, September 11, October 9, 15, 16, 21 & 22, 2014.

Decision

1I have twenty-three grievances before me filed on various dates in October and November 2012 by employees who held Team Lead (“TL”) positions in the Employer’s Payroll Operations Branch (“POB”). In essence, the grievances allege that the Employer contravened the Collective Agreement when it declared the TL positions surplus in October 2012. The TL positions had been within the CCL 14 classification. At the same time it eliminated the TL positions the Employer created and posted the new position of Payroll/Benefits Production Analyst (“PPA”) in the POB. The PPA position was placed by the Enterprise Classification Unit (“ECU”) within the Executive Officer 2 classification. The Union claims that the TL position and the PPA position are essentially the same job. Alleging a contravention of articles 2 and 20 of the Collective Agreement, the Union takes the position that the Employer acted unreasonably and in bad faith as it impacted the seniority rights of the grievors when it laid them off while at the same time creating the PPA position that was essentially the same job as the TL position. This matter was heard pursuant to article 22.16 of the Collective Agreement.

2To further explain the Union’s position in this matter I note that there had been twenty-four TLs in the POB when the TLs were laid off. The Employer created only thirteen PPA positions. Confronted with a lay-off, a number of TLs elected to retire. Some TLs applied for the PPA positions and were successful; others were not successful and ended up in other positions. Given its contention that the TL and PPA jobs were essentially the same job, the Union maintains that the Employer was obliged to place the thirteen most senior TLs who were willing to accept a PPA position into a PPA job and then lay off the remaining TLs. The Union claims that this would have been the proper way for the Employer to have recognized the seniority rights of the TLs. Instead, the Union claims, the Employer improperly exercised its management rights by laying off all of the TLs when it eliminated the TL position and compelled the TLs to compete for a PPA position, a position which again the Union alleges is no different from the former TL position.

3The Employer’s position is simply that it reorganized the POB to improve the Branch’s efficiency. The Employer asserts that it eliminated certain positions, including the TL position, and it created the higher paying PPA position for valid business purposes and for no other reasons. The Employer claims that the PPA position is a significantly different job than the former TL position in that the duties of the position require a greater knowledge base and a higher skill level than the duties of the former TL position.

4I note that the Employer requested at the start of this proceeding that the grievances be dismissed because they did not make out a prima facie case. Counsel made submissions on the Employer’s motion to dismiss the grievances based on the particulars provided by the Union, which were assumed to be true and provable. In a decision dated January 23, 2014, I dismissed the Employer’s motion having regard to the Union’s contention, as set out in its particulars, that the TL position and the PPA position were the same job. I concluded at paragraph 10 of the decision that “it is certainly arguable that laying off employees from their jobs while creating another job with the same duties and responsibilities constitutes an improper lay-off contrary to the Collective Agreement.”

5In addressing the merits of the grievances, the Employer agreed to call its evidence first and initially called Ms. M. Bigongiari, Director of the POB, and Ms. A. Bonifaz, Payroll Production Manager. Ms. Bigongiari testified about the reorganization of the POB and in particular about why she made the decisions to eliminate the TL position and to create the PPA position. Ms. Bonifaz had been in the TL position for five years and then moved to the Payroll Manager position within the APL 18 classification. As a Payroll Manager she managed a team consisting of two TLs and about sixteen Pay and Benefits Specialists (“P & B Specialists”). Under the new structure, both the Payroll Manager position and the TL position had been eliminated. Under this structure, Ms. Bonifaz occupied the position of Payroll Production Manager within the AGA 20 classification. As manager of the GTA Team 5, her team has two PPAs and about sixteen P & B Specialists. Ms. Bonifaz testified about what she perceived to be the differences in the duties of the TL and PPA positions.

6To support its contention that the TLs were improperly laid off, the Union called five witnesses. Ms. S. Cosentino, Ms. A. Forchione and Ms. T. Anthony had been TLs and secured a PPA position through the competition. Ms. Anthony is employed in the POB’s office at Thunder Bay. As of June 20, 2014 and when she testified, Ms. Cosentino was in an acting Payroll Production Manager position. These witnesses testified about the duties they performed in both the TL and the PPA positions and claimed that the duties they performed in each job were essentially the same. Ms. D. Guillemette had been a TL, but was not successful in securing a PPA position in the competition. She held an acting PPA position for about eight months starting in January 2014. Ms. Guillemette is employed in the POB’s North Bay office. She testified about the duties she performed as a TL and as a PPA and also indicated that the duties of the two positions were essentially the same. Ms. S. Dewnandan had been a TL and she testified about the duties of that position. She has not occupied the PPA position.

7The Employer called four witnesses in reply. Ms. D. Do Nascimento and Ms. J. Au had been TLs and each secured a PPA position through the competition. They testified about the duties of both positions and they expressed the view that the jobs were significantly different. Mr. J. Maxwell became a Payroll Production Manager in September 2012 and he testified about the duties of the PPA position. The Employer recalled Ms. Bonifaz in reply to address the impact on the TL position when WIN was upgraded in September 2010 from 8.3 to 9.0.

8In determining the facts I have carefully reviewed the documentary evidence, the testimony of the witnesses and the submissions of counsel relating thereto. I took particular note of the testimony of the Union witnesses who expressed the view that the TL position and the PPA position were essentially the same job. I resolved conflicts in the evidence by determining what was most probable in light of all of the evidence.

9During their submissions, counsel reviewed the evidence at some length. The focus of the submissions was on whether the former TL position and the current PPA position were essentially the same job and whether the Employer had acted in bad faith or unreasonably when it eliminated the TL position and created the PPA position. In support of the position taken by the Union on these issues, Union counsel referred me to the following decisions: OPSEU (Dobroff) v. Ontario (Ministry of the Environment) [2008], O.G.S.B.A. No. 73 (Dissanayake); Re Tung-Sol of Canada Ltd. and United Electrical, Radio and Machine Workers of America, Local 512 (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville); Re Hamilton Community Care Access Centre and O.P.S.E.U., Local 274 (2004), 2004 CanLII 94776 (ON LA), 127 L.A.C. (4th) 129 (Brent); and, Re University Club of McMaster and United Food and Commercial Workers Canada, Local 175 (2006), 153 L.A.C. (4th) 372 (Solomatenko). In support of the position taken by the Employer on these issues, Employer counsel relied on the following decisions: OPSEU (Osborne) and Ministry of Natural Resources (2013), GSB No. 2011-3795 (Petryshen); OPSEU (Boulet et al.) and Ministry of Community and Social Services (2000), GSB No. 1189/99 (Brown); OPSEU (Tran) and Ministry of Consumer and Commercial Relations (1998), GSB No. 1860/96 (Kaufman); OPSEU (Barnes/ Forsythe/ Mercer) and Ministry of Community & Social Services (1991), GSB Nos. 1258/89 et al. (Dissanayake); Group Managers, Ministry of Finance (John Ascott et al.) and Ministry of Finance (2000), PSGB No. P/0020/99 (Willes); and, John Ascott et al. v. Ontario (Ministry of Finance), (Divisional Ct.), File No. 133/2001.

10After reviewing all of the evidence and the submissions of counsel, it is my conclusion that the PPA position is a different and more highly skilled position than the former TL position. It is also my conclusion that in carrying out the reorganization of the POB, particularly when it decided to eliminate the TL position and to create the PPA position, the Employer acted reasonably and in good faith. My reasons for these conclusions are as follows.

11Ms. Bigongiari became the Director of the POB in the latter part of 2011. Her previous private sector employment, most notably with the CIBC, gave her a considerable amount of experience in payroll operations. The reorganization of the POB had been initiated before she started as Director. The Assistant Deputy Minister responsible for Ontario Shared Services had advised Ms. Bigongiari that a decision to eliminate the five Senior Service Manager positions in the POB had already been made. The elimination of that managerial level essentially left the Payroll Managers, the TLs and the P & B Specialists. Ms. Bigongiari was left with the task of determining what other changes were required to improve the operation of the POB. To this end she took the time to review how the POB was operating by examining the skill level of the employees, what work they performed and how they performed that work. In carrying out her review of the payroll production operation she consulted and worked closely with her managers. I note that her review of the operation and what the employees were doing took place after WIN had been upgraded to 9.0. With her 20 years of payroll experience Ms. Bigongiari was able to assess what was taking place within the existing structure and what changes were required to improve the operation of payroll production. She determined that implementation problems revealed that there was a lack of understanding of how to manage payroll production. As an example, she noted that the absence management module was in a crisis mode with the year end system rollover requiring 79,000 corrections to analyze. She concluded that the main problem was that business requirements and system solutions for payroll implementation were being made primarily outside of the POB without sufficient input at the outset from POB staff. She believed that having input from her staff when business requirements and technical solutions were initially developed would result in fewer corrections and a more efficient implementation process. To support such a change in business activity, Ms. Bigongiari recognized that a different structure and a higher skill level were required in the POB. She concluded that the knowledge and the skill level of the TL position were not adequate to fulfill the different role of providing early input on business requirements and system changes and for addressing any subsequent implementation issues that might arise. This led her to create the PPA position that would have the necessary knowledge base and skill level within a new structure to play an effective role in the initial development of business and technical requirements. She envisioned that the PPAs would be more heavily involved in solution design and decision making in connection with projects related to system changes and they would provide a higher level of analysis and be more significantly involved in the production process than the former TLs had been. Ms. Bigongiari was convinced that the managerial changes and the creation of the PPA position were necessary to improve the efficiency and effectiveness of the POB.

12The creation of the new structure to improve the efficiency and effectiveness of the POB was done in two phases. In August 2012, the five Senior Service Manager positions and all of the Payroll Manager positions in the APL 18 classification were eliminated and the individuals occupying these positions were laid off. The Employer then created the Payroll Production Manager position in the AGA 20 classification and started recruiting to fill these positions. As noted previously, Ms. Bonifaz was someone who had been a Payroll Manager in the former structure and became a Payroll Production Manager in the new structure. Ms. Bigongiari wanted to have the Payroll Production Managers in place before eliminating the TL positions in the next phase of the restructuring plan. With the Payroll Production Managers in place, the TLs were laid off and the PPA positions were posted. The PPA position had a higher wage rate than the former TL position. The interview process was completed by the end of December 2012 and the individuals selected for the PPA positions started in the newly created job in February 2013.

13In developing the position description for the PPA position, Ms. Bigongiari consulted with her management team, Human Resources and the ECU. Based on her view of the duties and responsibilities of the position, she had initially requested that the PPA position be excluded from any bargaining unit or alternatively be placed in the AMAPCEO bargaining unit. These requests were denied. The ECU classified the position in accordance with the Civil Service Commission classification standards and placed it within the Executive Officer 2 classification in the Union’s bargaining unit. It is clear from the wording of the position description dated August 28, 2012, that the PPA position requires a greater knowledge and a higher skill level than the TL position as it existed in 2012. Ms. Bigongiari testified that she considered simply moving the TLs into the PPA position, but decided that she could not do this having regard to the job requirements for this new position.

14Ms. Bigongiari encouraged all of the TLs to apply for PPA position. Although Human Resources suggested a minimum threshold level of 75%, a threshold level of 57% was selected by Ms. Ms. Bigongiari to ensure that the TLs would have a good opportunity to secure a PPA position. As it turned out, 60% of the TLs secured a PPA position.

15In comparing the two positions, the Union placed some significance on the fact that the Employer had initiated a review of the TL position description in late 2011 and put this initiative on hold in February 2012 without an explanation. The TL position description was dated May 6, 2002, and was in need of updating. This was particularly the case given the introduction in September of 2010 of WIN 9.0. The Union contends that the completion of the TL position description review would have disclosed that the TL position in 2012 was very similar to the PPA position. Some on the Union side, including Ms. Cosentino, believed that a completed review would have led to a higher classification for the TL position. However, Ms. Bonifaz indicated that the change to WIN 9.0 in 2010 did not change the TL job, but did have an impact on how TLs performed their work. I agree with the Employer’s submission that a failure to update the TL position description is not a significant factor in this case. What is important is a determination of the duties and responsibilities of the TL position at the time it was decided to eliminate the position. An updated position description for the TL job may have been helpful, but the absence of such a description does not prevent a proper determination of the duties and responsibilities of that job at the relevant time. And again, I note that Ms. Bigongiari’s assessment of the duties and responsibilities of the TL position took place a significant time after WIN had been upgraded to 9.0.

16Apart from the wording of the PPA position description, the Employer called evidence to demonstrate the practical differences between the TL and the PPA positions. As noted previously, Ms. Bonifaz had been a TL, she had managed TLs under the former structure, and as a Payroll Production Manager she manages PPAs under the current structure. Ms. Bonifaz confirmed that the restructuring transformed the delivery of payroll and benefits by having the POB involved at the outset in matters that would impact payroll and benefits. She indicated that individuals in the PPA position have the knowledge of business and technical requirements and system knowledge which allows them to participate on projects in the development of business requirements and technical requirements so as to identify risks and minimize the number of exceptions at the implementation stage and to propose solutions to deal with exceptions. Ms. Bonifaz testified that the TLs were not as involved as the PPAs are in the process and that the TLs were not expected to have the knowledge and skills which the PPAs are now required to have. She indicated that the efficiencies achieved with the different way of doing business under the new structure is illustrated by the fact that it took two weeks to clean up the exceptions in the absence management year end project for 2013-2014, whereas it had taken three months in the past to address the considerable number of exceptions under the former structure. Mr. Maxwell testified similarly about the duties and responsibilities of the PPA position from his perspective as a Payroll Production Manager who supervises PPAs. Without detailing their testimony, I note that Ms. Do Nascimento and Ms. Au, PPAs who had been TLs, essentially confirmed that the PPA position required more knowledge and skill when compared to the TL position.

17Ms. Bigongiari testified that she recognized that there would be a transition period for those who had been TLs and were successful in obtaining a PPA position. She indicated that some employees transitioned more quickly than others. Testifying sixteen months after the creation of the PPA position, she indicated that not all of the PPAs were at the same level and that some were still going through the transition process. In essence, Ms. Bonifaz and Mr. Maxwell gave similar evidence. Ms. Cosentino appeared to suggest that she had not yet been performing the PPA job as the Employer expected it to be performed and she attributed this in part to the volume of work the PPAs had to perform. In large part, this longer than expected transition period explains why some of the former TLs could honestly testify that there was no difference between the TL position and the PPA position and why others could honestly testify that there was a significant difference between the two jobs. As Ms. Bonifaz testified, the new structure brought about a significant change in the way the POB did business. Some of the PPAs embraced their new role while others are still not working at the level required of the PPA position. And of course, the fact that some of the PPAs are working at a level more in line with the TL position does not mean that there is no difference between the TL and the PPA positions.

18It is the above considerations which compelled me to conclude that the TL position was not the same as the PPA position and that greater knowledge and skills were required for the PPA position. This conclusion by itself warrants the dismissal of the grievances since the primary foundation of the Union’s case was based on the two positions being the same. I was bound on the prima facie case motion to accept as true the Union’s assertion in its particulars that the two jobs were the same. I am satisfied that the evidence does not support this claim.

19Counsel focused a lot of time during their final submissions on the issue of whether the Employer had exercised its management rights reasonably and in good faith when it decided to eliminate the TL position and to create the PPA position. In support of its position that the Employer had not acted reasonably and in good faith, Union counsel referenced the effort to exclude the PPA position from the OPSEU bargaining unit and the decision to put the review of the TL position description on hold. The main thrust of the Union’s position on this point was that Ms. Bigongiari did not undertake an objective and thorough analysis of the duties and responsibilities of the TL position. Union counsel submitted that Ms. Bigongiari was rushed, consulted only her managers and was by her own admission confronted with a crisis situation in the POB. In the Union’s view, these circumstances prevented her from recognizing that the duties of the PPA position she was creating were already being performed by the TLs.

20As counsel for the Employer noted, there were no facts to support the Union’s claim that the Employer acted in bad faith when it reorganized the POB. Ms. Bigongiari testified that she reviewed the skills and the work performed by all the employees in the POB. There is no indication that she failed to objectively analyze the work performed by the TLs or that she was rushed to complete her review of the POB. She did testify that the absence management year end clean up was in a crisis situation with the large number of corrections, but this was merely one of the factors which convinced her that the POB required a different structure. Her efforts to exclude the PPA position from the OPSEU bargaining unit was based on her honest belief that the duties and responsibilities of the new position warranted its exclusion or placement in the AMAPCEO bargaining unit. The steps Ms. Bigongiari took to reorganize the POB were made to improve the efficiency and effectiveness of the POB which is clearly a legitimate business and government purpose. There was a reasonable connection between her decision to eliminate the TL position and to create the higher skilled PPA position. There is absolutely no basis to conclude that the actions the Employer took to reorganize the POB were motivated by an improper purpose. There is no indication in the evidence that Ms. Bigongiari made the changes to the structure of the POB to affect the seniority rights of the TLs or to eliminate particular employees. Therefore, to the extent that this issue has any relevance in this case, the evidence does not support the conclusion that management exercised its management rights unreasonably or in bad faith when it eliminated the TL position as part of its broader reorganization of the POB.

21The elimination of the TL position as part of the extensive reorganization of the POB obviously had a considerable impact on the TLs. As noted previously, some TLs elected to retire and others ended up in lower paying positions. Some of the TLs who did obtain a PPA position have not experienced a smooth transition. I appreciate that it was undoubtedly a stressful time for many of the former TLs who had performed their jobs well for many years. None-the-less, and in the face of the efforts of Union counsel to convince me otherwise, I am satisfied that the Employer properly exercised its management rights when it laid off the grievors in October 2012 and that it did not contravene the terms of the Collective Agreement. For the foregoing reasons, the grievances are hereby dismissed.