GSB# 2022-4846

UNION# 2022-0378-0053

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Elawar et at)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Awnonna Rashid Collins & Metcalfe LLP Counsel

FOR THE EMPLOYER

Mackenzie Anderson Liquor Control Board of Ontario Counsel

HEARING

February 26, 2025

Decision

1This decision deals with a pre-hearing motion brought by the Employer to dismiss the grievance because, as framed, it does not make out a prima facie case. The Employer is the Liquor Control Board of Ontario, and the Union is the Ontario Public Service Employee’s Union. This is a group grievance of four warehouse employees who work in the Employer’s Oshawa Warehouse. They were each successful in a job competition that saw them move from casual status to full-time Warehouse Worker 3 positions. The job competition was posted effective January 4, 2022, and it had an end date of January 18, 2022. Their “effective” date in the new position was March 15, 2022 which was “announced” on March 15, 2022.

2Co-incident with the grievors’ job competition, another job competition was held for the position of Logistics Operation Clerk. That job was posted effective January 7, 2022. The successful candidate was “announced” March 10, 2022 with an “effective” date of March 14, 2022.

3Accordingly, the successful candidates from both categories moved from casual status to full-time permanent status. Both postings closed on January 18, 2022. Also, both positions are in the same cost centre, meaning that the two positions are on the same seniority list.

4In summary, the warehouse workers’ jobs were posted three days before the clerk’s job, and both postings closed the same day. The results were “announced” on March 15th and March 10th respectively and the clerk’s job was “effective” one day before the warehouse workers job was “effective”, being March 14th and March 15th respectively.

5The Union submitted that the result of the job competitions viewed side-by-side are not fair. What it says makes them unfair is the operation of article 5 of the collective agreement, the salient provisions of which are as follows:

Article 5 – Seniority

5.2 A casual employee who is appointed to permanent staff shall begin employment as permanent staff with a fixed seniority date that shall be equal to their first day of employment as permanent staff.

5.4 Where two (2) or more employees have the same permanent full-time seniority date, the following shall be used as a tie-breaking method:

(b) For those permanent full-time employees appointed to permanent staff on or after July 1, 1996, the employee’s casual seniority date shall be the first tie breaking method. In the event of an ongoing tie. . . .

6Because the successful clerk’s “effective” date is one day before that of the warehouse workers, their previous casual seniority is merely historical. That is, it can play no role in any of the provisions of the collective agreement where one’s position on the seniority list might have an impact.

7The Union points to article 6, dealing with the order of lay-offs, as but one example of the importance attached to the clerk having one day of seniority over the warehouse workers. The salient portions of article 6 are as follows:

ARTICLE 6 - Job Security

6.1 (a) Where a lay-off may occur for a period in excess of ninety (90) calendar days by reason of shortage of work or funds or the abolition of a position or other material change in organization, the identification of a surplus employee in an establishment and subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this article.

8The Union also relied upon the Employer’s Seniority Report dated December 18, 2023, which sets out the employees in order of seniority and reads in part as follows:

Cost Name Seniority Casual Union Center Date Seniority Date 0969 Gordon Veldhoen 2022-03-14 2018-10-15 0969 Samuel Phagau 2022-03-15 2010-04-12 0969 Mitchell Wallace 2022-03-15 2013-09-30 0969 Allen Olisoff 2022-03-15 2013-09-30 0969 Mashhur Elawar 2022-03-15 2014-04-07

9The excerpt from the Seniority Report immediately above, is of the five successful candidates in the two job competitions as now ranked with their new seniority dates following their successful promotions to permanent full-time positions. A number of facts are clear. First, Mr. Veldhoen, the new clerk, now ranks ahead of the four grievors by one day. The Casual Union Seniority Dates before the migration to permanent full-time saw Mr. Veldhoen’s seniority being between approximately four and eight years less than the four warehouse workers. The Union submits that it was unfair of the Employer to choose to increase Mr. Veldhoven’s seniority by one day over the grievors’ seniority because it had the effect of negating the grievors’ long service in the warehouse as casuals. The Union said that the Employer’s actions strike at the very heart of seniority and negatively impact the grievors wherever a benefit in the collective agreement relies upon seniority in its allocation.

10In this motion, the Employer says that the grievance ought to be dismissed because the facts set out in the Union’s grievance and particulars do not make out a prima facie case.

11The Employer submits that on an application such as this the facts alleged by the Union are to be taken as true. It says that even if there is no prima facie case. In its essence, the Employer’s submissions were to the effect that there is no specific violation of the collective agreement. It said that it put the Union on notice that it would bring this motion, but none the less, no further facts were alleged by way of particulars or further pleadings that, if taken as true, amount to a violation of the collective agreement. The Employer noted that the Union’s position is that the Employer ought to have delayed the “effective” date of finalizing the clerk job competition in view of the lengthier casual seniority of the grievors. The Employer said that there was no collective agreement obligation to do so. It referred to the grievance which claimed violations of article 1 (Recognition/Management’s Rights), article 2 (Harassment and Discrimination), article 5 (Seniority) and article 22 (Assignments and Job Postings). It said that none of those articles constrained its actions in this matter.

12The Employer submitted that it was a right of Management to hire, classify and promote consistent with the provisions of the collective agreement. It said that absent a violation of another article of the collective agreement there is no fetter on how it exercises its discretion under the management’s rights clause of article 1. It said that it complied with its obligation to fill the positions within 60 days of posting the jobs (article 22.11). It also said that it complied with the “Letter of Agreement – Re Post and Fill” by posting the two different jobs, Warehouse Worker and Clerk in January 2022. The Employer also submitted that the Union’s theory of the case was unreasonable because it did not allege the violation of another article of the collective agreement, accordingly, it submitted that the grievance ought to be dismissed.

13The Employer submitted in the alternative that if the Union’s theory of the case is to be given credence, its allegations of fact fall short of establishing a prima facie case because they are merely bald assertions and not material.

14The Employer relied upon the following authorities: OPSEU (Martin) v Ontario (Transportation), 2022 CanLII 35398 (ON GSB) (Dissanayake); OPSEU (Solomon Smith et al) v Ontario (Children, Community and Social Services), 2019 CanLII 126475 (ON GSB) (Anderson); OPSEU (Seguin et al) v Ontario (Ontario Science Centre), 2012 CanLII 6203 (ON GSB) (Briggs); OPSEU (Wong) v Ontario (Ministry of Government Services), 2012 CanLII 24021 (ON GSB) (Dissanayake). The Union relied upon the following authorities: Martin and Ontario (Ministry of Community and Social Services), 2015 CanLII 60449 (Anderson); Hotel-Dieu Grace Healthcare Windsor, Ontario v United Food and Commercial Workers, Canada, Local 333, 2021 CanLII 129320 (Mohamed) and Ontario Power Generation and Society of Energy Professionals, 2013 CanLII 87655 (Surdykowski).

15The GSB jurisprudence in motions such as this is well settled. In OPSEU v. Ministry of Transportation (Martin), supra, Arbitrator Dissanayake summarized the requirements at paragraph 8 as follows:

6It is well established that for a no prima facie case motion to succeed, the moving party must establish that the facts asserted, if accepted as true, are capable of establishing the elements necessary to substantiate the violations alleged. Re Couture, GSB 2008-0868 (Dissanayake). Bald allegations or conclusions are not accepted as true, unless supported by assertions of fact. Re Bharti, GSB 2013-2789 (Anderson). Also, the Board will not weigh the quality of the union’s proposed evidence Re Evangelista, GSB 2009-1091 (Harris). Credibility will not be assessed. However, alleged facts that are patently ridiculous, and not capable of belief or proof, will not be accepted as true. Re Solomon Smith, GSB 2017-0054 (Anderson).

16In the earlier case of OPSEU v Ministry of Community and Social Services (Martin et al), supra, Vice-Chair Anderson set out a somewhat expanded discussion in its paragraph 6 as follows:

6The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.

17This is a most helpful distillation of the proper approach. Accordingly, the question is both whether the Union’s theory of the case is reasonable, and it has provided particulars which, if true, would found a breach on the application of that theory. Here the Employer’s submission is that the exercise of management’s rights under article 2 is only constrained by other provisions in the collective agreement. It submits that it has complied with the other express requirements of the collective agreement and the facts articulated by the Union are not to the contrary. For its part, the Union’s legal theory is that management’s rights must be exercised fairly, particularly in the context of the importance of seniority in the collective agreement, taken as a whole. It says that it is unfair if the outcome of two postings, active at the same time, has the result of catapulting the seniority of the successful candidate of one of the postings over the seniority of the successful candidates in the other posting by factors of up to 8 years of relinquished casual seniority.

18It is trite to state that seniority is one of the most important benefits in a collective agreement. I admit that I could not resist re-reading the salient portion of Tung-Sol of Canada Ltd. (1964) 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville). It is always of interest, and elucidating, to consider the foundational jurisprudence laid down in the first series of the reports in the Labour Arbitration Cases.

19Where the asserted facts, taken as true, exhibit the relinquishment of up to eight years of the grievors’ casual seniority by virtue of a management decision, then the Union’s legal theory that such management decisions must be made fairly is a case that meets the requirements of being a prima facie case as considered in the Board’s jurisprudence. I note that Vice-Chair Anderson said, in Martin cited above, that, “Whether that theory is correct need not be determined at this stage in the proceedings.” It is to be noted that the Union does not allege that the management choice here was arbitrary, discriminatory or an exercise of bad faith, but, simply, that it was not fair.

20In my view there is a prima facie case of unfairness on the facts alleged, and the Employer’s motion is dismissed.