GSB# 2018-0110

UNION# 2018-0603-0002

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 Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 12, 2019

DECISION

1The Board is seized with a policy grievance dated March 8, 2018. It reads:

1. The Union grieves that the Employer violated, and continues to violate, Collective Agreement Articles 2 (“Management Rights”), 20 (“Employment Stability”), and 32 (“Seasonal Employees”) and any other relevant articles and legislation by failing to recall the BIO2 seasonal position in December 2017 (and thereafter) and by redistributing the work, within the same work unit, to four (4) BIO1s, at a lower pay rate.

2At the commencement of the hearing employer counsel raised two preliminary motions: first that the union’s particulars to not make out a prima facie case for the alleged violations of the collective agreement, and second that the grievance was untimely. (hereinafter “no prima facie case motion”). Following discussion, the parties agreed to proceed only with the first motion, and to hold the timeliness motion in abeyance for the time being.

3The union’s particulars are as follows:

1. The Ministry of Natural Resources and Forestry (hereafter, “the Employer”) has traditionally employed, since at least 2009, six (6) seasonal employees in the Ontario Forest Research and Monitoring Section located in Sault Ste. Marie.

2. One of the seasonal employees, the BIO2 “Far North Specialist” is attached to the Forest Soil and Water Research Program is typically recalled to work under Article 32.5 of the Collective Agreement in or around December of a given year.

a. The typical seasonal duration is approximately 40-42 weeks, and lasts from December of a given year to September of the following year.

3. In November 2017, the Employer failed to recall Benoit Hamel, a seasonal BIO2 “Far North Specialist” under Article 32.5 on December 4, 2017.

4. Simultaneously, the Employer had employed four (4) individuals in the position of Biologist 1 (“BIO1”) also attached to the Forest Soil and Water Research Program at the Ontario Forest Research and Monitoring Section located in Sault Ste. Marie, as Fixed-Term Employees.

5. The Employer redistributed the work traditionally performed by Benoit Hamel to the four BIO1 positions.

6. The Employer sent Benoit Hamel a Seasonal Recall Offer of Employment in January 2018.

7. Mr. Benoit accepted the Seasonal Recall Offer of Employment.

8. Subsequently, the Employer provided notice to the Union on March 26, 2018, that the Employer would be eliminating the Seasonal BIO2 position most recently held by Benoit Hamel.

9. Past practice has been to move seasonal employees to other programs, and treat all seasonal employees the same in terms of contract length. While some seasonal employees have resigned from the workplace in the last ten years, no seasonal employee has been laid off.

10. Simultaneously, the Employer had continued to employ the Fixed-Term BIO1 employees and students, who performed the same work traditionally performed by Benoit Hamel in his position of a Seasonal BIO2.

a. These Fixed-Term BIOIs were junior to Mr. Benoit Hamel.

Employer Submissions

4Counsel submitted that while the employer would be disputing many of the facts asserted in the union’s particulars, for purposes of this motion the Board may assume the facts asserted to be true.

5I note that counsel made submissions relating to the violation of article 20 alleged in the grievance. Those need not be considered because the union advised that it was no longer relying on article 20.

6Employer counsel made two alternate submissions in support of the motion. First, it was argued that the union’s grievance would require the Board to compare and assess the work Mr. Hamel would have performed as a Biologist 2 had he been recalled in December 2017, and then determine whether the work performed by lower rated Biologist 1 employees was Biologist 2 work which Mr. Hamel would have performed. The Board would be required in effect to determine whether or not employees in one job classification were performing duties of a higher classification. The union is in effect alleging that the employer assigned Biologist 2 work to Biologist 1s. This, submitted counsel, is in substance a classification grievance over which the Board has no jurisdiction as a result of s. 52(1) of the Crown Employees Collective Bargaining Act. Counsel submitted that the Board should find the grievance to be inarbitrable and dismiss it.

7Counsel pointed out that the union has not asserted bad faith and submitted in the alternative that the union is not entitled to allege a “free standing” violation of article 2 (management rights) in the absence of an allegation that the employer’s exercise of management rights resulted in a violation of a substantive right under the collective agreement. I need not consider these submissions either because the union agreed with the above legal principles. Union counsel clarified that the union was asserting that the employer, by exercising its management right to organize the workplace and assign work as it did, contravened article 32.5.1.1. of the collective agreement.

8Employer counsel reviewed article 32 and submitted that there is nothing in that provision that requires the employer to recall seasonal employees on any particular date or time of year. Nor does it stipulate that “a season” for recall purposes must be for a particular duration. Counsel submitted that, in the absence of bad faith the employer is entitled in any event to redistribute the work Mr. Hamel had performed in the past seasons to Biologist 1s, because there is no restriction of that management right in the collective agreement. The Board is not entitled to review that exercise for reasonableness or fairness.

9Counsel submitted that where the parties intended to place time restrictions on the employer’s exercise of management rights, they have set those out explicitly. He pointed out that article 32.2.1 specifies that “a seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks …”and article 32.3.1 states that the probationary period for a seasonal employee “shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each”. If the parties intended that recall of seasonal employees must happen at a particular time or for a particular duration, they would have negotiated language to that effect. In the absence of any time or duration restriction in the collective agreement, the employer was entitled to recall Mr. Hamel for a shorter seasonal work period as it did.

10Counsel also noted that the union has not raised an estoppel argument. Therefore, the fact that Mr. Hamel had been recalled in the month of December in the past year did not obligate the employer to continue to do so for the 2017-18 season.

Union submissions

11Union counsel noted that this is a union policy grievance alleging that the employer’s purported exercise of its management right to organize work violated or abridged rights under article 32.5.1.1. There should be no doubt that the union is entitled to grieve an alleged violation of a substantive right under the collective agreement.

12Counsel submitted that article 32.5 is about seniority, job security and the integrity of the bargaining unit. It allows seasonal employees continuity of employment by exercising their seniority. The allegation is that this right has been denied by the employer’s decision to assign work Mr. Hamel would have done to employees who occupied lower classified positions, and had less seniority than Mr. Hamel. The union is not asking the Board to analyse whether the duties in the positions of Biologist 1 and Biologist 2 are the same. Nor is it seeking the alteration of the classification of any position. The core issue raised by the grievance is the employer’s failure to recall a senior seasonal employee as required by article 32.5, to the same work he had traditionally performed in the past. Therefore the grievance is not a disguised classification grievance and not barred by the Crown Employees Collective Bargaining Act.

13Counsel pointed out that the employer has agreed that for the purposes of this motion the Board may assume that the work in question was seasonal work, and that if the employer had not decided to redistribute the work in question to the Biologist 1s, Mr. Hamel would have performed that work. Therefore, but for the employer’s decision, Mr. Hamel would have been recalled to perform that work. He submitted that the availability of that seasonal work means that the position existed and therefore, Mr. Hamel, as the more senior employee, was entitled to be recalled to that position. For the past six seasons he had worked in “the same position” within the meaning of article 32.5.1.1. The “same position” was available, and Mr. Hamel was entitled under article 32.5.1.1 to be offered the position, “in the following season on the basis of seniority”. Citing case law, he submitted that whether the work performed by the Biologists 1 was the “position” Mr. Hamel had occupied in the past years is not dependent on any label or title attached to the work by the employer. It depends on whether the work was the same as the work Mr. Hamel had performed in the previous season. To be the same work, the duties need not be identical as in prior year. Minor differences do not matter as long as the work is substantially the same.

14Union counsel submitted that to defend against the no prima-facie case motion, the union does not have to prove the alleged violation on a balance of probabilities. The bar is placed lower than in a hearing on the merits of the grievance. It must only satisfy the Board that the particulars are capable of establishing a violation, if proved on a balance of probabilities. Particularly considering that the instant grievance is about seniority, one of the most important rights employees have under a collective agreement, the Board should dismiss the motion, and make its decision after all of the evidence is heard.

15In reply, employer counsel reiterated that the undisputable fact is that there is nothing in the collective agreement that requires that the season to which an employee is recalled must be of the same duration as in prior years. The duration of a season may differ year to year depending on operational requirements. Counsel submitted that the union has not pointed to any arbitral authority to support a proposition that an employer, in the exercise of its management right, is not entitled to take work away from one employee and distribute it to others, provided it is not done in bad faith. Counsel pointed out that all of the work the grievor would have performed was not given to another employee. It was broken up and distributed among four other employees. Once the work was broken up, a position no longer existed to which Mr. Hamel could claim recall rights.

DECISION

16I note that while employer counsel advised that he would only be proceeding with the no prima-facie case motion, and purported to present two alternate arguments in support of that motion, in reality he argued two very distinct preliminary motions. The first, that the grievance was in effect a classification grievance, and that the Board lacked jurisdiction over it. His alternate submission was distinct, claiming that the union’s particulars do not disclose a prima-facie case, and should therefore be dismissed. I deal with the two motions separately. Both counsel submitted numerous authorities. However, I will not refer to all of them since the legal principles are not in dispute. Each case has been determined on the application of the legal principles to the particular facts.

17Is the grievance a classification grievance?

I repeat and adopt what the Board wrote at p. 10 of the decision in Re Dobroff et al, 2003-0905 etc. (Dissanayake):

In all of the cases cited to me where the Board had declined jurisdiction on the grounds that the grievances were in substance classification grievances, the Board found that it had to, in order to dispose of the grievances, determine whether or not the grievors’ positions were properly classified considering the work they were performing. In Re Aitken, 678/87 (Gorsky) “classification grievances” were said to be “grievances that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time”. In the cases where the Board declined jurisdiction the Board found that to be the case.

18The union made it clear that its allegation is that in the purported exercise of its management right to organize work, the employer violated article 32.5.1.1. Employer counsel referred to a number of authorities for the proposition that in the absence of bad faith, employers have a broad discretion to reorganize and re-distribute work. He pointed out that the union has not presented any authority to contradict those cases. I agree that article 2 confers on the employer the right, to “determine organization, staffing levels, work methods” among other rights. However, specific rights negotiated in the collective agreement must prevail over that general statement of management rights. Quite apart from that basic rule of interpretation, in the instant collective agreement, article 2 itself explicitly provides that those rights “are subject only to the provisions of this central collective agreement …” Therefore, if employer action or inaction is contrary to any provision of the collective agreement, - in this case article 32.5.1.1 – it would not be an exercise of management rights protected by article 2.

19Article 32.5.1.1 reads:

Season employees who have completed their probationary period shall only be offered employment in the same position in the following season on the basis of seniority.

Article 32.5.1.2 provides that “If the same position is no longer available, the Employer may offer the employee another position within forty (4) kilometres”. It is agreed that Mr. Hamel had completed his probationary period and had more seniority than the four employees who performed the work. Therefore, to establish a violation of article 32.5.1.1, the union would have to satisfy the Board that “the same position” existed at the relevant time. If it did, the employer would have been required to offer that position to Mr. Hamel who had more seniority.

20Therefore, the question is whether the Board would be required to analyse and compare the duties and responsibilities of Biologist 1 and Biologist 2 positions. I have no hesitation in finding that the Board does not have to engage in any such exercise to determine the merits of the instant policy grievance. In my view, the classification of the four employees is not in any way material to the disposition of the grievance. It would have made no difference if the four employees who performed the work were also Biologist 2s. Since they had less seniority than Mr. Hamel, if the “same position” existed within the meaning of article 32.5.1.1, Mr. Hamel would have been entitled to be recalled to that position. Thus, I would not be required to go through the exercise of comparing the duties and responsibilities of two classifications. The issue is whether the “same position” which Mr. Hamel had in the previous season existed, regardless of whether that work could be characterized as Biologist 1 work, Biologist 2 work, or something else. The critical issue is whether the work was the “same”, not whether the work was in the same classification. Whether work was the same as in the previous season is a factual issue to be determined on the basis of evidence relating to the nature of the work Mr. Hamel had performed in the past season as compared to the work performed by the Biologist 1s. The classification of that work is irrelevant. Therefore, the Employer’s objection to the Board’s jurisdiction is dismissed.

No prima-facie case Motion

21The parties agreed that the test that applies in motions of this type is that set out in Re Couture et al, 2008-3329 (Dissanayake). There the Board described the test as follows at para 6: “…a prima-facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”. In light of the analysis and findings above, the element of article 32.5.1.1 that remains in dispute is whether the work performed by the four Biologist 1s comes within the term “same position” in the article.

22Employer counsel submitted that in the absence of an estoppel, the employer was not required to recall Mr. Hamel in December, just because he had been recalled in December in previous seasons, and that the length of each season could vary depending on the employer’s needs at the particular time. I agree. If operational needs dictate that the work in the position an employee held in one season is required only for a shorter period in the following season, the employer would not be required by article 32.5.1.1 to recall the employee for the same duration as in the previous season.

23However, I do not agree that because article 32.5.1.1 does not explicitly stipulate a particular length of the recall, as long as the employee is recalled for any period of time the employer is compliant with its obligation. That would be an unduly narrow and unreasonable interpretation of the article which would deny the seniority rights contemplated in the article. For example, the employer could recall the senior employee for a few days, even though the work of “the same position” is required for a longer period. This would defeat the purpose of article 32.5.1.1. The parties would not have intended that.

24Therefore, the issue is the meaning of “same position”. The parties advised that they were unable to find any decisions interpreting that term in article 32.5.1.1. However, they did present prior decisions of this Board considering the meaning of the term “former position” in the predecessor article in the collective agreement (hereinafter “the predecessor provision”). It read:

3.20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority.

The parties did not argue that the change of the language from “former” to “same” to be of significance for the present purposes. I find that to be of no significance. Therefore, that case law remains relevant and instructive.

25In interpreting the term “same position” the Board must recognize that article 32.5.1.1, at least in part, is intended to give priority and a measure of job security to senior seasonal employees. In interpreting “former position” in the predecessor provision, the Board in Re Anderson, 471/86 (Roberts) wrote as follows at pp. 13-14 about the importance of seniority:

There seems to be little dispute that, in general, seniority rights constitute “one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining procedure” Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161, 162 (Reville). In recognition of this, the Grievance Settlement Board has adopted the view laid down by judge Reville in the foregoing case that “an employee’s seniority should only be affected by very clear language in the collective agreement … and … arbitrators should construe the collective agreement with the utmost strictness whenever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement”.

Citing prior decisions, Vice-Chair Roberts observed that these principles have been applied by the Board in cases under article 3.20.1, the predecessor to article 32.5.1.1.

26With those principles in mind, I turn to the issue of whether the particulars of the union are capable of establishing that the “same position” Mr. Hamel had performed in the prior seasons existed at the relevant time. In Re Furniss 602/86 (Slone) the Board was required to determine whether the grievor had completed the probationary period by working two full periods of seasonal employment of at least eight consecutive weeks each in the “same position” in the same ministry, which was a pre-requisite for recall rights under the predecessor provision. In interpreting “same position”, the Board at p. 10-11 wrote:

We do not suggest that in every case, the “position” is equivalent to a particular job title. A title is nothing more than a title, although it provides some evidence that the substance of another job is similar to the substance of another job bearing the same title. In many cases there will be little doubt as to what is a position; in other cases, it will be a factual question as to whether or not the substance of a job and the nature of the duties are sufficiently similar to be considered the same position.

27Re Kaufffeldt, 771/89 (Wilson) was also a case under the predecessor provision. The Board referred to the above noted excerpt from Re Furniss and a number of other decisions of the Board, and wrote at pp. 10-11:

I have carefully read the other two authorities referred to in Boden, namely Saunders and Nielson. Saunders deals with Section 3.18 as it relates to recall under 3.2.01. Nielsen deals with Section 3.20.2. All three cases use a comparison of the functions of the positions in question to see if they are the same or substantially similar. All agree with Furniss that job title and of course position classification are not determinative.

28In Re Orville D. Smith 2315/87 (Dissanayake), another case under the predecessor provision, at pp. 8-9 the Board wrote:

While we agree with the Furniss decision that the position need not be in the same location, we would add that it is also not necessary that for article 3.20.1. to apply the duties and responsibilities in the positions be identical. There may be numerous business and practical reasons why the duties and responsibilities in a position may change somewhat from year to year. If the Board adopts a test requiring identical duties, seasonal employees may be denied their seniority and recall rights unreasonably simply because of some minor changes in duties in the position. The reasoning of the Board in Furniss in rejecting the “same location” requirement is equally applicable here.

At p. 10 the Board wrote:

In determining whether a position is the grievor’s former position some latitude must be allowed for minor differences. In our view the appropriate test is whether or not the substance of the duties and responsibilities are sufficiently similar. This of course will be a question of fact in each case.

29In its particulars, the union does not use the words “same” to describe the work it asserts was performed by the employees with less seniority. However, at para 5 it asserts that “The employer redistributed the work traditionally performed by Benoit Hamel to the four BIO 1 positions”. That in my view, is another way of stating that the work was the same. Taken together with the submissions made, there is no doubt in my mind that the assertion was that the same work Mr. Hamel had performed in the past seasons existed and was performed by other employees who had less seniority.

30The arbitral authorities reviewed above makes it clear that “same position” (in those cases “former position”) is not a reference to a job title or classification. As stated in Re Orville B. Smith (supra) the appropriate test is whether or not the substance of the duties and responsibilities are sufficiently similar.

31The union’s particulars, that the work in question was the work Mr. Hamel had traditionally performed, if assumed to be true, is capable of meeting the test in Re Orville B. Smith. Therefore, the particulars would be capable of establishing that element necessary to substantiate the alleged violation of article 32.5.1.1 and satisfies the test in Re Couture (supra). It follows that the employer’s motion fails, and I so find.

32In summary, the employer’s motion objecting to the Board’s jurisdiction to hear the policy grievance, as well as its motion that the union’s particulars do not establish a prima-facie case fail. The Board remains seized to deal with all outstanding issues in relation to the grievance.