GSB#2011-2308

UNION#11-38

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Policy)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Counsel

FOR THE EMPLOYER

Michael Smyth Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

December 19, 2011; March 22, August 28 & 29, September 5 & 6, 2012; March 1, April 12 & 24, May 13, July 8, 2013.

Decision

The Proceedings

1In this matter the union, Ontario Compensation Employees Union (OCEU), Canadian Union of Public Employees, Local 1750, (hereafter CUPE or the union) grieves that the employer, the Workplace Safety and Insurance Board (hereafter WSIB or the employer), has breached the provisions of the collective agreement relating to employees' start and finish times and Flex Work Arrangements. It also alleges that the employer committed the unfair labour practice of bargaining in bad faith.

2When the hearing concluded, the parties requested that the decision be held in abeyance to give them an opportunity to attempt to reach a negotiated settlement of the outstanding issues. The Board was advised on January 21,2015, by counsel for the union, on behalf of the parties, of the following:

Could you please advise Vice-Chair Harris that the parties have entered into a Memorandum of Agreement that resolved the Flex-time issues that were raised in the Grievance (Exhibit 2) and no longer require a decision on those aspects of the Grievance.

However the parties have not resolved the Start–time aspect of the Grievance and will require an Award that determines the merits of the Grievance as it relates to that aspect of the Grievance. Specifically, the issue of whether the Employer’s decision to implement a restriction on start times before 7:30 AM was a breach of the collective agreement.

In particular, Article 8 of the Memorandum of Agreement states as follows:

8 The parties have agreed that the hours of work (includes compressed work week arrangements used to adjust start and/or finish times) group and policy issues raised in Grievance #11-31, 11-32, 11-33, 11-34, 11-35, 11-38, 11-40 along with the related individual grievances is an ongoing issue which has been referred to arbitration before Vice Chair Dan Harris.

With respect, it would be our request that the Award address the Union’s second argument (that the Sept. 27th, 2011 communication from the Employer (Exhibit 17) was contrary to the collective agreement) and the Union’s 4th argument (that the Employer’s Sept 27th communication to the extent that it restricted start times to later than 7:30, constituted a breach by the Employer of its duty to bargain in good faith).

The Outstanding Issues

3Accordingly, the parties have been able to restrict the issues before me to the impact of the September 27, 2011 communication from the Employer. That document reads as follows:

Date: September 27, 2011

To: Operations Staff

From: John Slinger, Chief Operating Officer; Paul Gilkinson, VP Service Delivery; Joe Sgro, VP Operations & Special Advisor to the CIO; Joe Morsillo, VP Eligibility & Skills Development; Judy Geary, VP Work Reintegration; Donna Bain, VP Health Services; Marjorie Mercer, VP Occupational Disease & Serious Injury; Dana Leshchyshyn, VP Employer Account Services; Rob Timlin, Exec. Dir. Service Delivery; Kerry Lovett, Exec. Dir. Service Delivery

Subject: Hours of Work

Since 2009, the WSIB has demonstrated a stronger and sharper focus on understanding and delivering what really matters to customers, built on the principle that reintegration into the workplace is the best outcome. Understanding this also means rigor and discipline in our approach – to deliver fair benefits and services that are cost-effective and achieve the best possible outcomes for workers and employers.

In order to improve our availability for customer contact, we have decided that, as a general rule, staff should commence work no earlier than 7:30 a.m. Exceptions will be considered if the unique job function or circumstance requires the employee to start earlier than 7:30 a.m.

The main reason for this decision is that, to ensure success, our business model and approach to case management has changed significantly. The New Service Delivery Model, with its focus on early and regular contact with workers and employers has created "talking jobs". The prior approach, which focused more on the gathering of paper documents has been replaced by significant interpersonal contact and worksite interventions. This enables us to better execute on our goals of return to work, recovery and service excellence. In addition, we have created greater specialization which has increased the need to interact with one another more than ever before.

To be successful, we need to optimize our availability to customers and to one another. We continue to see service gaps with respect to our availability to clients. This has been noted by both employers and workers. The new requirement on start time will help us to achieve our customer service objectives.

Thank you for your support and cooperation.

The union advanced four arguments at the hearing. The first centered on the meaning to be given to the following provision of the collective agreement found at article 25.02 (b), which reads as follows:

(b) Terms and Conditions

All flexible work arrangements presently in existence will continue. Subject to operational needs and further review, new requests will be considered based on date of submission and seniority by Sector/ Branch, in the same geographic location and same job. In determining approval for competing requests, seniority will be the determining factor based on the individual's seniority or on the average seniority of the group.

4This was essentially a transitional provision. As set out above, its application has been agreed upon and is no longer before me.

5The union's second argument was to the effect that the employer's restriction on operational employees that their workday could not begin prior to 7:30 a.m. was a contravention of article 7.04. That language was not changed in the new agreement. It reads as follows:

7.04 Start and finish times

In general an employee's start and finish times will be between 7:00 a.m. and 5:00 p.m.

Arrangements for start and finish times will be by mutual agreement where possible, taking into consideration business needs and seniority. Where agreement cannot be reached following a meeting between the parties the Employer will provide the Employee with at least 20 working days written notice before implementing changes in their start and finish times.

6The union's position in this regard is, first, that the collective agreement provides that the general hours of work will be between 7:00 AM and 5:00 PM, yet the memorandum of September 27, 2011 unilaterally changes that window for work hours by denying operational employees the right to begin before 7:30 a.m. Second, the memorandum did not allow for meaningful mutual agreement, which was as well a breach of the requirements of article 7.04.

7The union's third argument was with respect to the application of the new flextime options to field staff. These submissions also dealt with the applicability of article 25.02(b) in terms of the transition and the denial of some options to the field staff without an opportunity to reach individual agreement. As set out above, the parties, subsequent to the completion of the hearing, have also agreed upon the application of the collective agreement in these respects, so this matter is no longer before me.

8The union’s fourth argument was that the employer's failure to disclose in bargaining that it intended to restrict field staff to a start time of no earlier than 7:30 a.m. and to restrict field staff to only two of the four new flextime arrangements was bargaining in bad faith. It said that the union had made numerous concessions on the understanding that there would be greater flexibility in start times and more options for flextime.

9As set out above, only arguments two and four remain for determination.

10The parties negotiated significant changes to the language relating to flexible work hours in the renewal of their collective agreement, which took effect April 1, 2011 and expires March 31, 2016. There was a substantial amount of evidence and argument directed towards the two areas that the parties have subsequently been able to negotiate an agreement upon.

Bargaining in Bad Faith

11I turn first to the outstanding allegation that the employer's actions amounted to bargaining in bad faith. In my view, allegations of bargaining in bad faith are within the exclusive purview of the Ontario Labour Relations Board.

12The union reviewed the evidence that it said supported a finding that the employer had bargained in bad faith. The employer submitted that this Board did not have jurisdiction to make such a determination, or, in the alternative, the allegations did not amount to bargaining in bad faith. In reply, the union submitted that if I were to conclude that this Board lacked jurisdiction to deal with such an unfair labor practice allegation, I should not make any determination on the merits of this issue.

13I have carefully reviewed the authorities and the arguments submitted by the parties and find that I’m in agreement with Arbitrator Surdykowski in Toromont Industries Limited and IAM Lodge 1120, 2010 CanLII 5828 (ON LA) (Surdykowski) at paragraphs 36 through 38, which read as follows:

36. There are matters that are within the exclusive jurisdiction of the OLRB. These are matters that only the OLRB can deal with. There are matters that (are) within the exclusive jurisdiction of a rights arbitrator. These are matters that only a rights arbitrator can deal with. There are matters that are within the exclusive jurisdiction of an interest arbitrator. These are matters that only an interest arbitrator can deal with. And then there are matters of concurrent jurisdiction. These are matters that more than one tribunal can deal with as a matter of jurisdiction, and may raise an issue of who should deal with them.

37. My jurisdiction in this case is that of a rights arbitrator under the collective agreement between the parties. As such I have the powers granted under the collective agreement and applicable legislation, including the, Labour Relations Act, 1995, but only to the extent the no other tribunal (in this instance the OLRB) has exclusive jurisdiction under that legislation. As a rights arbitrator I have no jurisdiction to amend or ignore the collective agreement. I am not the OLRB and cannot exercise a jurisdiction that belongs exclusively to it. Notwithstanding the broad wording of section 48(12)(j) of the Act, I have no unfair labor practice jurisdiction. All unfair labor practice complaints, whether or not so made and including complaints of bargaining in bad faith, fall within the exclusive jurisdiction of the OLRB.

38. The unfair labor practice portion of the May 8, 2007 group grievance is therefore dismissed. Although I have formed a view of the merits of the Union’s unfair labor practice complaint I will refrain from making any comment in that respect, except to the extent I consider necessary to determine the issues that are properly before me . . .

14Accordingly, the union’s allegation here that the employer bargained in bad faith is dismissed.

The Employer’s Restriction on Operational Staff Starting Work Before 7:30 a.m.

Background

15Much of the evidence dealt with the dynamics between the union and the employer in the negotiation of the collective agreement. The union's focus was the employer's bad faith. Given my decision above that this Board does not have the jurisdiction to deal with the unfair labor practice allegation of bargaining in bad faith, some of the background set out below merely provides a narrative to contextualize the remaining issue of whether the employer's decision to limit operational employees to a start time after 7:30 AM is a breach of article 7.04.

16Harry Goslin, President of the local union, gave evidence on behalf of the union. He testified that prior to the renegotiation of the collective agreement quite a few employees had had 7 AM start times, some for many years. Following implementation of the new collective agreement some employees still have a 7 AM start time, but, for the most part, employees were denied that early a start. He said that there was no attempt by management to reach mutual agreement as to whether an individual employee could start before 7:30 AM. There was just a hard and fast message from senior management to frontline management that it was not to be permitted. It was Mr. Goslin's view that mutual agreement under article 7.04 meant that frontline managers and employees would have a talking/working relationship that would allow them to meet in order to agree on the employee’s hours of work.

17Mr. Goslin became aware of employee dissatisfaction with the denial of a start time prior to 7:30 AM when he started to receive emails, in or about mid-August, complaining of the employer's denials. Concerns were also being raised about the implementation of the new flextime arrangements. The flextime issues have been settled, as set out above.

18Following negotiations, there were many Memoranda of Agreement entered into, pursuant to the Collective Agreement entered into on June 30, 2011, to provide granularity to the four flextime arrangements. Generally they included a schedule of the length of time each day would have to be extended under each flextime option. They also contained the following paragraph:

The above arrangements shall not include compressed lunch or break times however the employer will be flexible in adjusting start and finish times between the core hours of 7:00 AM to 5:00 PM.

19The union's reaction to the September 27 memo is encapsulated in an email from Mr. Goslin dated September 29, 2011, which reads in part as follows:

It is unfortunate that during our meeting yesterday morning neither of you thought to inform Beth or I of the Operations message regarding hours of work. I note that it was dated for Sept 27th but was issued Sept 28th a few short hours after our meeting.

At no time during collective bargaining was the hours of work raised as a concerned by the employer. To the contrary we were told very clearly on more than one occasion that the organization would be more flexible with start and finish times not less flexible. During the course of negotiations the Unions team was clearly told that the Employers bargaining team were given full authority to negotiate a new collective agreement on behalf of the entire organization. In other words, your bargaining team spoke on behalf of and made commitments on behalf of the entire organization.

20It was Mr. Goslin's view that the employer had broken its commitment to be more flexible with start times by rigidly adhering to a start time no earlier than 7:30 AM for operational employees. In his cross examination he was clear that it was his view that article 7.04 required an attempt between each employee and their front-line manager to reach agreement on a start time. He said that, failing agreement, it is the employer's right to set a start time. Instead, the employer made a unilateral decision affecting a class of employees and then purported to go back and give notice to bring their previous start time arrangements to an end.

21By way of remedy he asked that employees with a previous 7:00 AM start time should have it reinstated and that new requests for earlier than a 7:30 AM start time be decided on a case-by-case basis.

22Beth Harris also testified. She was the chief steward and a member of the union bargaining team at the negotiations in 2011. She said that hours of work, specifically start times, were an important part of the union's engagement with the employer as part of the discussions relating to flextime options and the loss of compressed hours. Compressed hours allowed employees to shorten their breaks to shorten their day. The union sought “flexibility” in start time so that people would be able to come in early and not have to work late if they were exercising a flextime option. She testified that the employer represented at the bargaining table that they would be flexible regarding start/finish times. She understood that "flexibility” meant that the employer would consider start times earlier than 7:30 AM because the general work hours were either 7:30 AM to 3:30 PM or 8:30 AM to 4:30 PM. She also testified that prior to the new collective agreement some employees already had a 7 AM start time. She knew of no difficulties with respect to system support between 7 AM and 7:30 AM.

23In her cross-examination, Ms. Harris was taken through her notes of various negotiation sessions. She agreed that the employer's initial position was to do away with flextime and the compression of the workday. The basis of the employer's concern was customer service. It was her view that the union would not be able to enhance flextime arrangements unless they gave up the compressed workday. Integral to that was the employer’s agreement to be more flexible with respect to start times.

24With respect to the September 27 memo, she said that the union did not believe such a decision could be messaged broadly. Each situation had to be considered on its own merits in a fruitful discussion, not just a flat rejection. Further, the business needs articulated should not necessarily prevent a pre-7:30 AM start for everyone because each supervisor would have different business needs.

25She said the start time issue came down to there not being any general flexibility for starting before 7:30 AM. She agreed that otherwise there was a great deal of flexibility applied by the employer to start times. She also agreed that there was no guarantee that the IT systems would be running before 7:30 AM, but in her experience, it was rare that the systems were not up and running before 7:30 AM.

26Martim Gaspar also testified for the union. He was the local Vice President and a member of the bargaining team. His evidence was consistent with that of Mr. Goslin and Ms. Harris that their understanding was that the employer would be flexible in dealing with start times. He did not take that to mean that operational employees would not be permitted to start prior to 7:30 AM and said a discussion was required between such employees and their managers.

27The union also called bargaining unit employees to give evidence on their individual circumstances. The first, Mr. Khaliq Jabber, did not request to start before 7:30 AM. His issues were with the denial of flextime options to field staff, a matter now settled between the parties. The second, Maureen Nevins-Selvadurai, was denied her request to start at 7 AM. Prior to September 2011 she worked 7 AM to 3 PM except Tuesdays when she worked 7 AM to 4:50 PM. She was on a 10/9 schedule. After September 2011 her hours were Monday to Friday 7:30 AM to 4:17 PM with every second Monday off. It was her evidence that she has no contact with external clients and some contact with internal stakeholders, which historically has taken place at meetings, the scheduling of which she has accommodated when necessary. She said there was no conversation or meeting between her and her manager as to the business needs the employer claimed prevented her from starting at 7 AM. Her manager simply denied her request without explaining how she would not be meeting the needs of the business. She said nothing in her job required her to start at 7 AM, except her work/life balance, and nothing in her job prevented her from starting at 7 AM.

28The employer called Paul Simourd and Paul Gilkinson to give evidence. Mr. Simourd was the Associate Human Resources Business Partner. Mr. Gilkinson was the Vice President of Service Delivery.

29Mr. Simourd said that in the context of this grievance there were two large issues the employer wanted to deal with in negotiations for a new collective agreement. The first was the elimination of all flextime arrangements. The second was the elimination of the compressed workday. He said that the effect of those two issues overly complicated the day-to-day management of the workforce. In the course of bargaining the employer's position changed to agreement on four different flextime options and the elimination of the compressed workday. He agreed that the employer said that there would be flexibility to choose a start time between 7 AM and 9 AM subject to there being system support. The IT systems were guaranteed to be up and running by 7:30 AM but not before. The changes being sought to flextime and the compressed workday were driven by concerns of customer service, reducing employee conflict and simplifying the complexity of managing the employees. The customer service aspects were centered on the need to provide telephone and walk-in service commencing at 8:30 AM. He said that most of the calls were later in the day, so the employer required coverage for the later periods. He said that over the years many employees had been pushed towards an 8:30 AM start, and new employees were sometimes hired on the basis that they would have to start at 8:30 AM. With respect to the flexibility of start time, Mr. Simourd said that the union requested flexibility on start times because many employees use the compressed workday for childcare purposes. He said that if start time flexibility would help, the employer would try to provide more flexibility on start times. He testified that the flexibility piece was within the context of business needs. They had a business to run and needed to pay attention to business needs especially in terms of customer service.

30Mr. Simourd testified that business needs and customer service were regularly discussed in bargaining; it was a theme for the employer. He said that business needs are sometimes determined by a manager, sometimes by a Vice President and sometimes by senior management, depending on the scope and significance of the decision. He said that there was no suggestion from the union in bargaining that “business needs” be deleted from article 7 and that there would never be a mandate from the employer to do so. It was his evidence that there were discussions about guaranteeing start times as early as 7 AM but the employer never committed to do that because of the IT support issue. Further, in addition to the IT support concerns, the hours of business were a matter to be determined by the business sections in delivering customer service. There was no agreement to grandfather the hours of work start times then in existence. He said that any discussion regarding the 7 AM to 7:30 AM period was around system availability and customer service. "Flexibility" was to be achieved within the current language. He said that he had discussions with the management personnel of the various "clusters". No one advised him of an intention to consider restrictions on start times before 7:30 a.m.

31Mr. Simourd was not aware that the operations group would restrict the start time to 7:30 AM until after bargaining had concluded. He first heard it from Mr. Goslin in August 2011. It was his understanding that the decision had been made as part of the implementation of the flextime options, particularly the five over four option. He first saw the September 27 memo when it came out. He testified that the memo was consistent with his position at the table that all discussions included the need to consider business needs. The five over four was a dramatic change, which could only be assessed after it was in place. The operations group decided they had to have people after 7:30 a.m. It was part of their responsibility and was fallout from the introduction of the new flex options.

32Mr. Simourd was asked about the inclusion of the following paragraph in the implementation Memoranda of Agreement:

The above arrangements shall not include compressed lunch or break times however the employer will be flexible in adjusting start and finish times between the core hours of 7:00 AM to 5:00 PM.

33He said that Mr. Goslin wanted to include that paragraph. He had no objection to the inclusion of the paragraph because the start time was always in the context of business needs, and management was being encouraged to be flexible. As concerns over implementation increased amongst the workforce, Mr. Simourd answered telephone inquiries and face-to-face inquiries from managers, sent emails, addressed Vice Presidents and was invited to an Operations Directors’ meeting. At the latter, he specifically addressed issues relating to the compression of the workday and start and finish times. He believed that meeting to have taken place on September 7, 2011. It was at this meeting that he first heard officially that Operations was considering no start time prior to 7:30 AM. He advised the Directors that meetings with affected employees should take place and there should be a discussion as to why a 7 AM start time was not possible. It was his view that if business needs dictated a 7:30 AM start, then telling the employees in advance that a 7 AM start would not be approved added transparency to the process of the employees choosing a flextime option.

34It was Mr. Simourd’s view that the organization met its commitment in bargaining to be more flexible with start times. By mid-November 2011 there were 620 employees working a 7:30 AM start time. Of those, 246 had been working a later start time before the implementation of the new collective agreement. Accordingly, he said that there has been significant flexibility in permitting people to start earlier than they had previously been allowed, just not before 7:30 a.m.

35A significant portion of Mr. Simourd’s cross-examination involved an examination of the communication between the management bargaining committee and upper management. That is, to what extent did Mr. Simourd, while at the table, know that the operations cluster would not permit starts before 7:30 AM and was going to restrict the flex time options available to field staff. These matters go to the allegation of bargaining in bad faith. Generally, his evidence was that the implications for the start time and for the availability of all four flextime options only became apparent after the conclusion of the collective agreement. When he became aware in September following the Operations Directors’ meeting that the Operations cluster was going to limit the start time to 7:30 AM, and not before, he made that known to Mr. Goslin. He testified that he was not involved in the deliberations leading to that decision.

36Paul Gilkinson, as Vice President of Service Delivery, was directly involved in the decision that Operations employees would not be permitted to start before 7:30 AM. He testified that once the collective agreement was agreed upon he became aware of the four flextime options available to the employees. The operations group did not start to think about implementing flextime until August 2011. It became apparent that in order to exercise flextime options employees might have to start earlier than the then currently preferred 8:30 AM start. He said that the core service hours are 8:30 AM to 4:30 PM when the office opens and the 1 (800) numbers are available. He said in chief that the decision to not permit a start earlier than 7:30 AM was based on the business need around availability. He said it would balance what the staff wanted and what the clients needed. He said that that decision was made in late August or early September 2011, and he took steps to make sure that his managers knew of the 7:30 AM limitation so that it would be communicated to the employees prior to them making a flextime request. He testified that the expectation was that injured workers and employers would be spoken to by WSIB employees rather than dealt with by correspondence, and 7:30 AM was the earliest that such calls should be made. This expectation was part of the new Service Delivery Model introduced in 2009. He said that the reality was that workplaces aren't generally open before 8:30 AM, and operations employees need to connect with the injured worker and the workplace. They did not see earlier calls as helpful to the process. The 7:30 AM limitation applied to all operations employees not just to those applying for a flextime schedule. He testified that the new collective agreement language saw large numbers of employees move to a start time prior to 8:30 AM. He also said that prior to September 2011 approximately 40 employees started before 7:30 AM. The 7:30 AM restriction was also being applied to them for two reasons. The first was uniformity. In order to be fair to everyone they wanted everyone to be seen as being treated the same. Second, this was being done to improve service to customers in order to make a larger percentage of the day of all operational employees available to them.

37He said that there were a couple of exceptional circumstances pursuant to which employees were permitted to start prior to 7:30 AM for health reasons.

38He said that limiting the earliest start time to 7:30 AM and being more flexible with start times after 7:30 AM was the employer’s recognition of the need to be flexible and has met with success.

39Under cross-examination, Mr. Gilkinson clarified that of the 40 people who had a start time earlier than 7:30 AM prior to September 2011, approximately 15 to 20 employees reported to him. He confirmed that none of the 40 were able to keep their earlier start time. He agreed that there was no study made as to whether those particular employees could have continued under the new collective agreement with a start time earlier than 7:30 AM. The discussion was that they were moving to a new requirement and those people would have to move as well. He said the rationale was explained to them. He said that he did all of the step one grievances. It was suggested to him that he sat them down and told them there was a policy that would not be deviated from. He denied that; he said they were given an opportunity to tell their story; he told them the business needs and made a decision. He said he denied the grievances except where there were medical reasons. He confirmed that if there were no medical reasons the grievance was denied because of the business needs of the organization. He said injured workers and employers need good service during regular hours. He said that management knew the positions, roles, functions and what the clients were saying about service delivery. It did not matter to him what he heard from the employees unless the explanations had a medical dimension. He confirmed that no studies were done with respect to whether the employees previously permitted to start before 7:30 AM were better or worse at returning telephone calls to injured workers and employers within the 24 hour standard. He also testified that it was not until early August, when he learned of the new flextime options, that consideration was given to eliminating the 7 AM start time. He said that the decision to eliminate pre-7:30 AM start times except for medical reasons were decisions of the operations senior management team. They were collective decisions. A few other exceptions were made in the few areas where employees were not dealing with the public, such as entering documents into the system.

The Submissions of the Parties

40The union submitted that the restriction in the September 17 memo that prevented operational employees from starting before 7:30 AM was expressly contrary to the collective agreement. Was also contrary to the collective agreement to preclude individual negotiations, consideration or agreement with respect to a 7 AM start time. It said that this matter was never raised in bargaining, except to the extent that the thrust of the employer’s proposals was to increase flexibility in the 7 AM start time, subject only to ensuring that there was system support.

41The union submitted that the plain and ordinary meaning of article 7.04 was that the hours of work were between 7:00 AM to 5:00 PM not 7:30 AM to 5:00 p.m. Also, the plain meaning of the article requires mutuality, which requires an authentic discussion with the individual employee and expressly requires a meeting. It said the employer may consider business needs and seniority, but it also has to take into account the requirements of the individual employee. The September 27 memo precluded such a process, which amounts to an amendment to the collective agreement.

42The union submitted that in the ordinary course management has the right to schedule hours of work; however, in this case, there is language to the contrary which restricts the employer's right to establish start times. The employer is required to comply with article 7.04. In effect, the employer has established a new norm for the start time of some 2500 employees in operations which is different than the requirements of the collective agreement. Nowhere does it say in the collective agreement that the employer may change the agreed-upon window for hours of work.

43Secondly, the policy set out in the September 27 memo amounts to the employer fettering its own discretion. It was not open to the employer to implement a policy that restricts consideration of start times. It was the union’s submission that the employer has the ability to consider a start time between 7 AM and 7:30 AM, on an individual basis, and reject it, where it has considered its business needs. Instead, the employer promulgated a policy for operational and field staff that it would simply not consider such a request notwithstanding that the collective agreement requires an opportunity to meet and consider individual requests. The union said that there is a difference between a rigid policy and guidelines as to the exercise of discretion. The September 27 memo is a rigid policy, not a guideline. It was not prepared to consider whether there was work to do during the period, the employee’s duties and responsibilities nor the previous practice with respect to that employee; it simply said no. It was the union’s submission that the employer is not permitted to unduly fetter its discretion in such a fashion. The employer cannot have such a blanket requirement given the language of article 7.04.

44The union relied upon the following authorities: United Automobile Workers, Local 439 v. Massey-Harris-Ferguson Ltd. (1955), 5 L.A.C. 2123 (MacRae); Re North Bay Parry Sound District Health Unit and OPSEU, 2012 CanLII 94094 (ON LA); PCL Construction Ltd. and Cascade Construction Ltd. and Construction and General Workers’ Local Union 1111 (1982), 1982 CanLII 5082 (AB GAA), 8 L.A.C. (3d) 49 (Sychuk); Re Community Living Hearst and USWA Local 1-2010, 2012 CanLII 16773 (ON LA); DHL Express (Canada) Ltd. and C.A.W.- Canada, Locs. 4215, 144 &4278 (re) (2004), 2004 CanLII 94640 (CA LA), 124 L.A.C. (4th) 271 (Hamilton); Brown and Beatty, Chapter 5:3110; National Grocers Co. U.F.C.W., Local 1000A (2012), 220 L.A.C.(4th) 206 (Nairn); Western Bakeries Ltd. v Bakery, Confectionary and Tobacco Workers International Union, Local 264 (1995), 41 C.L.A.S. 246 (Joyce); ETFO v Durham District School Board (unreported, January 31, 2007, Davie); Health Sciences Centre and I.U.O.E., Loc.987 (re) (2003), 2003 CanLII 89618 (MB LA), 114 L.A.C. (4th) 400 (Spivak); Providence Continuing Care Centre and OPSEU, 2007 CanLII 81827 (ON LA); St. Joseph’s General Hospital Elliot Lake and ONA (2008), 170 L.A.C. (4th) 115 (Sheehan); AMAPCEO v. Ontario (Government Services), 2012 CanLII 3597 (ON LA).

45The employer submitted that the language of article 7 was not changed in bargaining. It said that there was no guarantee of a particular start time set out in the article and the previous practice was to require many employees to start at 8:30 AM. Further, the September 27 memo was limited to the operational staff not the entire organization, granted that 70% of the employees were in the operational area. Also, the memo clearly set out that exceptions would be considered if the unique job functions or circumstances required the employee to start earlier than 7:30 AM. In addition, article 7.04 permits the employer to change start and finish times with 20 days working notice. In the circumstances here, the evidence established that where a start prior to 7:30 AM was no longer possible the employer gave 40 days notice. The evidence was also said to establish that senior management did not meet with the individuals, but did have discussions with the managers who were to meet with the employees.

46The employer also submitted that in bargaining there was no guarantee of a 7 AM start time because it was always subject to system availability. It submitted that it agreed to be flexible with respect to start times and it has been. It pointed to Exhibit 41, being an email to the union confirming that since the implementation of the new collective agreement 246 employees moved to an earlier start-time. It submitted that the employer had been flexible in allowing people to move to earlier start times, just not prior to 7:30 AM in the case of operational employees. The employer submitted that the language of article 7.04 sets out that "in general" start and finish times are between 7 AM and 5 PM. Such language admits of exceptions. It said that the employer made no promise or guarantee of a 7 AM start time. It said that it would be more flexible with respect to start times, and it has been. There is no new norm created because start times are still 7 AM to 5 PM, with restrictions only applying to operational employees. It said that the restriction on the operational employees was reasonable given its business requirements. Any earlier start time would be too early to call injured workers and employers. Further, the organization receives many afternoon telephone calls, which requires employees to be there to cover the calls.

47The employer also submitted that nothing requires the business needs of the organization to be assessed on an individual basis, such needs may be considered broadly. It said that the Board ought not to substitute its opinion where there is a business reason for the decision that has been taken. The employer considered the need for flexibility along with its legitimate business reasons for restrictions on start times in one division. It balanced its requirements with flexibility for the employees.

48The employer relied on the following authorities: OPSEU (Morsi) and The Crown in Right of Ontario (Ministry of Finance), 2012 CanLII 41102 (ON GSB) (Devins); OPSEU (Panovski) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2005 CanLII 55131 (ON GSB) (Briggs); The Great Atlantic and Pacific Company of Canada, Ltd. and UFCW, local 175 (McNorton), 2007 CanLII 56471 (ON LA) (Knopf); Toromont Industries Ltd. and IAM Lodge 1120, 2007 CanLII 5828 (ON LA) (Surdykowski); OPSEU (Union Grievance) and The Crown in Right of Ontario (Ontario Clean Water Agency), 2000 CanLII 20500 (ON GSB); City of Toronto and Canadian Union of Public Employees, Local 79, 2007 CanLII 81824 (Nairn); Brown and Beatty.

49In reply, the union reiterated that the September 27 memo was a clear direction promulgated as a general rule that there be no earlier a start than 7:30 AM unless the job required it. This is contrary to article 7.04, which permits an employee to request a start between 7 AM and 7:30 AM. The memo permitted no exceptions notwithstanding that article 7.04 requires that these types of arrangements are to be negotiated with the individual employees and operational needs are to be applied to the individual.

50The union agreed that there was no guarantee in negotiations of a 7 AM start; however, that is not the question to be addressed. It said that, independent of negotiations, article 7.04 permitted an employee to ask for a 7 AM start time. It specifically contemplates and provides for negotiation and discussions, which was denied. It said that if the employer wanted to eliminate the 7 AM start time for such a significant proportion of the workforce it was required to negotiate, just as it had done in obtaining the elimination of the compressed workweek.

Analysis and Reasons for Decision

51On the evidence, the employees’ opportunity to compress their workday by working through, or taking shorter, breaks and lunch was traded in favor of additional flextime options and greater flexibility being shown by the employer in adjusting start and finish times. As set out above, I am not concerned with whether the employer's implementation of that bargain amounted to bargaining in bad faith. The Union argues that the employer has breached article 7.04 by denying operational employees an opportunity to request a start-time prior to 7:30 AM. For convenience, article 7.04 is as follows:

7.04 Start and finish times

In general an employee's start and finish times will be between 7:00 a.m. and 5:00 p.m.

Arrangements for start and finish times will be by mutual agreement where possible, taking into consideration business needs and seniority. Where agreement cannot be reached following a meeting between the parties the Employer will provide the Employee with at least 20 working days written notice before implementing changes in their start and finish times.

52The issue now before me is not whether the employer kept its promise to be more flexible in the application of article 7.04 but whether its decision to deny operational employees the opportunity to start work between 7 AM and 7:30 AM was a breach of article 7.04. The union argues that the plain and ordinary meaning of an employee's start and finish times being generally being between 7 AM and 5 PM does not permit the employer to unilaterally restrict the start time of operational employees to 7:30 AM or later. This action of the employer was said to be an alteration of the collective agreement. The union agreed that in the normal case it is a management right to alter schedules of production and that arbitrators generally defer to such management decisions. However, here, there is language to the contrary that restricts the employer's right. The union says that, in effect, the employer has rewritten article 7.04. It has introduced a new norm with respect to the hours of work for 2500 employees in operations; the general start and finish times are no longer 7 AM to 5 PM but 7:30 AM to 5 PM; I agree.

53The evidence before me is clear that in implementing the additional flextime options the operations cluster determined that its "business needs" were such that none of its employees could, as a general rule, start before 7:30 AM. This was a prima facie breach of the first sentence of article 7.04. However, a rule of interpretation is that words are to be given their normal meaning and all words used are to be given effect. Further, and as is also set out in paragraph 16 of National Grocers, supra, “(c)ontext is relevant as is the purpose of the provision. Article 7.04 goes on to say that “(a)rrangements for start and finish times will be by mutual agreement where possible, taking into consideration business needs and seniority.” Accordingly, the concept of "business needs" is relevant within its context in the article. Given the placement of "business needs" in the text of the article, it is apparent that the parties intended that the consideration of business needs was to be in the context of attempting to reach mutual agreement on making individual arrangements for start and finish times. The next sentence in the article indicates that such agreement is meant to be reached in a meeting between the parties. Accordingly, the purpose of the article would appear to be to set general parameters for start and finish times as being between the hours of 7 AM and 5 PM. Within those general parameters, the purpose of the article is to provide an opportunity for the parties to reach mutual agreement on start and finish times. The intended process for reaching mutual agreement was that there be a meeting at which business needs and seniority would be considered. If agreement could not be reached, the employer could change the start and finish times with 20 days notice to the employee.

54The article clearly intended that the sequence was to be that a meeting be held between the employer and the employee to try to reach mutual agreement on start and finish times between 7 AM and 5 PM. Any meetings in this case only took place after the fact, if at all, and generally as part of the grievance process. On Mr. Gilkinson’s candid evidence, the meetings were not bona fide attempts to reach agreement. The employer had determined prior to any consultation with any of the effected employees that its business needs were such that no one in operations could begin prior to 7:30 AM. On Mr. Gilkinson’s evidence it really would not have mattered what anyone said. He only allowed exceptions for medical reasons or where the employee had no public contact. He did so in the overall collective agreement context of the introduction of additional flextime options. That is, the additional flextime options created more days in the week when fewer employees were available because they would be on their flex day off. In implementing these provisions the employer determined that its business needs could not accommodate a start time earlier than 7:30 AM, because that window of time was neither available for contacting injured workers and employers nor guaranteed to have available to it the IT systems. Having reached these conclusions, was it a breach of the collective agreement for the employer to have informed its employees in advance, as it did, of the restrictions on the start times or ought to it have provided an opportunity to meet with the employees one by one, advise them at these meetings of its conclusions and then denied them a requested earlier start time. The latter would certainly have been in compliance with a strict reading of article 7.04, provided the meeting was an authentic exercise, but the former is not necessarily non-compliance.

55In my view, it was fair to let employees know of the employer’s general concerns in advance. However, the employer took a rigid position prior to even knowing what the uptake of the new flextime options would be. It never deviated from this rigid position even after having the opportunity to assess the actual outcomes against its purported business needs. On the evidence, it did not even assess the actual outcomes. It was a breach of article 7.04 not to consider start time requests between 7 AM and 7:30 AM on an individual basis. The evidence is crystal clear that Mr. Gilkinson did not do so. Unless there was a medical component to the request, the general business needs determined at-large thoughtlessly trumped all other considerations. Article 7.04 requires that both business needs and seniority are to be taken into account. There was neither consideration of the actual need of the business to have each individual requesting a pre-7:30 AM start time start later, nor was there any consideration given to the seniority of the individual making the request. At the time, there were only 40 employees out of 2500 who started prior to 7:30 AM. Many had been doing so for a great many years. Article 7.04 required, in the least, an authentic discussion, at a meeting called for the purpose, of whether or not that situation could continue given the business’s needs, as related to that individual, and the seniority of the individual.

56The approach taken by the employer was a complete disregard of article 7.04. It was a breach of article 7.04's clear and unambiguous terms, and I so declare.

Decision

57For the reasons given above, the grievance is allowed in part. The issue of the appropriate remedy is remitted to the parties. Failing mutual agreement on a remedy, the matter may be brought back before me. I remain seized to deal with any outstanding issues and the implementation of this decision.