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HomeMy WebLinkAbout1991-0150.Rodgman.95-05-23% ::': ?'?; :i:"":" :'i '; '""' '"' ONTARIO EMlaLOY~S DE LA COURONNE ' / !...'.:.. ~ '~'' "" .::i':.. './.!.': ~ O,OWN~PLOYEES ~'O~TAR,O GRIEVANCE COMMISSION DE SE~LEMENT REGLEMENT ~-~ '~'~ BOARD DES GRIEFS ' ~ ~F REAU 2100, TORONTO {ONTARIO}, MSG 1Z8 FACStMtI.E/TEL~COPIE: ~416) 325-1396 MAY 25 1995 OPSEU~ 91C374,91C375,91C377,91C383 PUbLiC SERVICE APPEAL BOARDS z~ ~as ~s~ o~ ~ ~z~zo~ Onde~ THE CRO~ ~P~YEEB COLLECT~ B~GAINING ACT BeEo~e THE GR~EV~C~ 8ETTLE~ BETWEEN ~ OPSEU (Rodcyman) / G~ievo~ The Crown in Right 'of Ontario (Ministry of Health)Thames Valley Amb. Ltd. Emplo~e~ BEFORE: N. Dissanayake Vice-Chairperson G. Majesky Member D. Montrose Member FOR THE R. Wells UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Whalen EMPLOYER Counsel Barristers & solicitors HEARING September 18, 1991 February 20, 1992 April 13, 1992 June 10, 11, 1992 October 12, 1993 January 17, 1994 DECISION These are four grievances filed by Mr. David Rodgman, a Driver/Attendant employed by the Thames Valley Ambulance Limited, wherein he grieves that he has been issued letters of reprimand, a one day suspension without pay, a two day suspension without pay and a 5 day driving suspension, all without just cause. The employer (TVA) operates a licensed ambulance service outof four bases in the London area. While it is a privately owned~corporation, it is regulated by the Ambulance Act and is subject to the regulations issued by the Ministry of Health. Ail of the discipline grieved resulted from four infractions on the part of the grievor of the TVA speeding policy. The fact that the grievor knowingly breached the speeding policy is not in dispute. However, the union challenges the discipline on the grounds that the TVA speeding policy was: (a) unreasonable and therefore void, and (b) not consistently applied so that it was not enforceable against the grievor. Ail of the infractions, occurred while the grievor was driving an ambulance on "code 4" calls. A code 4 is the highest type of code in terms of the urgency and the~ ~ $ seriousness of the call. Ambulances travelling on code 4 calls are entitled to use lights and siren. It is common ground that the Highway Traffic Act exempts ambulances on code 4 calls from its speeding restrictions. However, the evidence indicates that it is not uncommon for some services exempted from the Act to have their own policies restricting speeding. At least eight ambulance services in the surrounding area had their own company policy regulating speeds. The London City Police and the Fire Dept. also had their own speeding policies. The TVA policy manual includes a section on Driving Guidelines. It includes the'following provision: Driving at greater than the posted limits will be on Code 4 calls only. The Company policy states a maximum of 20 kph in excess of the posted limit providing road, weather, and traffic conditions allow the speeds to be done in safety. Defensive .. driving and common.sense will prevail. Each ambulance operated by TVA is equipped with a "Tacho Meter", which records the speed of the vehicle at all times on a tachograph card. At the end of each shift the tachograph cards from all vehicles are returned to TVA management. Based on the speeds recorded on the tachograph cards, there is no doubt that on the four occasions in question, the grievor drove in excess of "the maximum of 20 kph above" limit imposed by TVA policy. In one case the grievor drove at 120 kph in a 90 kph zone. On two occasions he drove at 110 kph in a 60 kph 4 zone, and on the final occasion he drove at 115 kph in a 80 kph zone. The union does not dispute that the grievor violated the policy. However, it challenges the policy itself on the grounds that it was unreasonable and inconsistently enforced. Reasonableness of the poticv The onus of establishing that the rule was unreasonable is on the union. The employer takes the position that the "20 kph above" policy is a reasonable policy designed to enhance safety and to reduce repair costs to the ambulances. The evidence indicates that for years TVA had a speeding policy which was amended from time to time. The present owner of TVA testified that in 1989 a review conducted revealed a significant increase in ambulance repair costs. By memorandum dated June 9, 1989 addressed to all staff, he brought the TVA speeding policy to the attention of the staff and indicated his intention to enforce the policy. The memo stated that "Superintendents will review tach cards (when time allows) each night and will request reports of those not following this policy. Reports will be furnished to management who may take disciplinary action against the individuals involved". Around the same time at a Joint Labour-Management meeting the union was notified that the employer would be enforcing its speeding policy because of concerns relating to safety and repair costs. The employer led evidence from Ms. Kathi Langhammer, a mechanical engineer by profession, who has had training as a specialist in reading and interpreting tachograph cards from vehicles involved in accidents. She was presented as an expert witness relating to the effects of speed. For our purposes, it suffices to note that Ms. Langhammer confirmed the common sense proposition that the stopping distance in an emergency is greatly increased as the speed increases. Reviewing the tachograph cards relating to this grievance, she testified that stopping at 120 kph would take twice the stopping distance as compared to travelling at 90 kph. As compared to driving at 60 kph, stopping distance would be increased four-fold if the vehicle was driven at 110 kph. In light of this evidence the employer raises several safety concerns. The employer submits that high speeds could result in the patient and others travelling in the back, including the attendant and medical professionals, being tossed around and injured. Secondly, it is suggested that in the event the vehicle has to be brought to a sudden stop the attendant, who travels with the .patient in the back of the ambulance and is not strapped, may be thrown and injured. Thirdly, it is submitted that highways may presen~ unforeseeable h~zards such as animals, erratic drivers or mechanical failures or tire blowouts. There is a greater risk of loss of control in these cases if the vehicle was travelling at'high speeds. Finally, it is submitted that the safety of all road users may be compromised by ambulances travelling at high speeds. The employer submits further that travel at high speeds increases wear and tear of the brake pads and rotors. In the event of an accident, the greater the speed, the greater the chances of serious injury and the extent of DroPerty damage. The employer submits that without a speeding policy its liability for personal injury in a civil suit would increase. Finally, it is noted that the Qccumational Health and Safety Ac_~trequires the employer to take every reasonable precaution to ensure the safety of its employees. It is submitted that compliance with that legal obligation requires and justifies the imposition of a speeding policy. The grievor undoubtedly is exceptionally experienced in driving emergency vehicles. He has been driving ambulances for TVA for 21 years. Previous to that he was employed by the London Fire Dept., where he drove aerial trucks, rescue units and the deputy chief's car for ll years. When questioned about his infractions, his responses indicated that he genuinely felt that he could safely drive at speeds that were ? in excess of the limits allowed by the TVA policy. He testified that he exceeded the allowable speed only because given the excellent road conditions and light traffic, he felt that the speed limits imposed by the policy were just too low and that he felt that he could benefit the patients in each case by getting them to the destination as fast as he could without compromising safety in any way. In essence, he testified that he used his experience and judgement in deciding when he could speed without compromising safety. Thus he testified that he took into account the weather and traffic conditions. He noted that there were some parts of the City of London, where he would not drive beyond the posted speed limits at any time because to do so would be "suicidal". The grievor challenged the employer's position that the allowable speed could not be determined by the condition of the patient. As he put it, "patient care has to be my number one priority". He testified that in his profession the primary goal must be to get the patient to the medical experts as soon as possible. He testified that while "speeding can be deadly if not done properly", with experience and proper judgement, he could use his discretion to speed as conditions permitted, without compromising safety. He stated that it was false to assume that high speeding results in the passengers being hurled about. In his view, speed has little to do with the smoothness of the ride. What matters is the driving 8 technique. As he put it "A good driver should be able to drive at very high speeds without spilling a glass of water." Similarly, the grievor testified that speed by itself does not result in increased wear and tear of brakes and rotors. According to him it was the "riding of the brakes" and abrupt jamming of the brakes that cause the damage. With these habits the damage could be caused even at very low speeds. Despite the foregoing evidence to the effect that speeding by itself does not pose any safety threat, the grievor conceded that some speeding policy was required and justified. He testified that if there was no speeding policy, "drivers will drive at any speed they want to". Thus he was not claiming that ·having a speeding policy by itself was objectionable. Rather his objection was that the TVA policy was not flexible enough to take into account driver experience and the driving conditions relative to the nature of the emergency. Counsel for the union points to the fact that the Hiqhway Traffic Act exempts ambulances from the speed restrictions in the Act. In his view, that is a recognition by the legislature that ambulances can travel in safety at speeds over the posted maximums. Counsel reiterated the grievor's 9 position that what was unreasonable about the policy was the absence of any recognition of the' driver's discretion. He submitted that ambulance drivers are professionals who drive emergency vehicles for a living. They are capable and are in the best position for determining the safe speed in any given set of circumstances. He submitted that this exclusion of driver discretion was what made the policy unreasonable. Counsel further submits that there was no reliable evidence to establish that speeding increases repair costs. As he sees it, all that'the Board has are the opinions of the employer witnesses and a contrary opinion by the grievor. Having considered all of the evidence and submissions on this.issue, we conclude that the union has failed to establish that the employer's speeding policy was unreasonable. Taken at its highest, the grievor's position is that he had the necessary experience and skill to drive at high speeds without causing any of the safety risks and repair costs alluded to by the employer. However, the evidence indicates that the policy covers approximately 75 employees of TVA. The grievor agreed under cross-examination that he had no confidence that 'all of those employees had the same experience and driving skills that the grievor was able to offer. We do not see the exemption in the Hiqhwav Traffic Act necessarily as a licence for ambulances to travel at unlimited speeds. Rather, it is a recognition that the maximums that apply to the general public were too low for emergency vehicles such as ambulances. That does not exclude the legitimacy of speed limits imposed locally, provided they were otherwise justified. In our view, the policy at TVA is not unreasonable. It allows the driver the discretion to exceed posted speeds but puts a limit on that discretion by stipulating that ambulances cannot exceed the posted speed limits by more than 20 kph. It is our view that a policy which allows for the individual driver's absolute discretion is not viable. It would amount to 75 different policies depending on the individual driver's experience, training etc. In effect, it would result in no policy being in effect at all, because such a policy would be almost impossible to administer and enforce. We.have no doubt that the grievor is a very skilful driver and that he genuinely believes that by speeding he can benefit the patients without compromising safety or cost. However, we are not satisfied that even for a driver with his experience and ability, speed does not increase the risk to the safety of the patient, ambulance attendant and the road users. For example, no matter how skilful one is, where sudden stopping is required by an unforeseen event, such as an unexpected obstruction on the road, the chances of a collision would increase with speed. Similarly, if unfortunately a collision occurs, the greater the speed, the greater the injuries and damage to property. The importance of rushing ~he patient for medical attention must necessarily be balanced with the equally important safety considerations. As the operator of the service, it falls on the employer to draw this balance. Considering all of the circumstances, we cannot conclude that the employer's policy does not represent a reasonable balancing of all of the interests involved. Inconsistent enforcement The Board heard evidence of the process by which the employer purported to enforce its speeding policy. The tachograph cards are received by the shift supervisor for each shift. There were four shift supervisors at TVA. Depending on the availability of time, the supervisors randomly spot check tachograph cards at the end of the shift by reviewing for "remarkable incidents" on the chart such as abrupt stops, sudden acceleration, sustained high speeds and unusually high speeds. The card does not disclose to the supervisor who the 'driver was. If remarkable incidents are noted, the shift supervisors would sent the cards in question to Mr. Jack Mercer, the Operations Superintendent. He retrieved the appropriate documentation including the dispatch form, which revealed to him who the driver was and what call the vehicle was on when the remarkable incident occurred. If he felt that there was evidence of an infraction of company policy he wrote to the driver in question requesting an explanation for the infraction. Upon receipt of that explanation, Mr. Mercer decided whether or not discipline' was warranted. The evidence establishes that this process was followed with regard to the grievor. Mr. Chris Darby detected each of the infractions through random checks of tachograph cards and passed them along to Mr. Mercer. Mr. Mercer followed his usual procedure and determined to impose the discipline in question. The union does not allege discriminatory enforcement of the policy. It is not alleged that the grievor was targeted for stricter enforcement. However the union submits that the enforcement of the speeding policy was so minimal and haphazard that the vast majority of infractions went unpunished. The union led evidence through a number of ambulance drivers who testified that they routinely exceeded the TVA speeding limits when proceeding on code 4 calls. Yet they had not been disciplined. The union also submitted that the four shift supervisors were inconsistent in enforcing the policy. The evidence indicates that the four supervisors had their own areas of responsibility relating to the operation. Mr. Chris Darby was responsible for vehicle maintenance. As part of this, he took a ~pecial interest in reviewing tachograph cards. He did more reviewing of cards than the other three supervisors and therefore more disciplinary responses were initiated by him. The evidence also indicates that not every tachograph card was reviewed for evidence of infractions. Reviewing was done on a random basis and Mr. Darby did this more than the other three supervisors. Even Mr. Darby reviewed tachograph cards only when time permitted him to do so. Based on this evidence the union submits that the employer was not entitled to enforce the policy against the grievor. In our view, the arbitral principle that a company rule or policy, to be enforceable, must be consistently applied, addresses two mischiefs. The first is to prevent discrimination against a particular employee. That is, a particular employee ought not to be targeted for enforcement when the same policy is not enforced against other employees. This in effect would involve an element of bad faith. Clearly that mischief is not present in this case because there was no discrimination in the sense of the grievor being targeted for differential treatment. Secondly the rule stems from a recognition that it is unfair to permit the employer to enforce a policy, because through inconsistent application, employees may have been led to believe, that the ~employer would not be enforcing the policy or the employees may be unsure of what the employer's expectation would be. ~4 In the case at hand, there was inconsistent application in the sense that the majority of infractions as evidenced by tachograph cards went unpunished. However, the fact that different supervisors spent varying amounts of time and effort in enforcing this policy, nor the fact that they reviewed tachograph cards for infractions randomly and as time permitted, did not mislead the grievor in any way. The employer's evidence was that it only did "random spot checks" because the supervisors were too busy to review each and every card on every shift. Despite this random enforcement, there was no doubt left in the minds of the employees that if they were caught through a spot-check, they would be subject to discipline. They were made aware that the employer was serious about the policy~ Specifically, it is clear from the following exchange that occurred between employer counsel and the grievor that the grievor was fully aware at the time that he would be subject to discipline if he was found in breach of the policy. Q. You knew the policy was in force? Ao Yes. Q. That if you breach it you will be disciplined? A. I was aware that if my card was read I'll be in trouble. But sometimes they are too busy and may not read the cards. Q. Its like a spot check - a random system? A. I was not aware it was random. I was aware no matter who you are, if you are caught you will be disciplined. Sometimes you win a few, sometimes you lose a few. In our view, the random nature of the checks and the fact that the emDloyer did not review all the cards for infractions does not make the policy unfair or unenforceable. It in no way suggests that the employer condoned any infractions. The system is no different than the system used by the Traffic Police. If they stop every vehicle on the road for impaired driving or seat belt violations etc., many more infractions would be found and punished. It is safe to assume that many violators get away because of the random nature of the police checks. However, the drivers ought not to be under any illusion that the law will not be applied on them. " In summary, we find that the random nature of the employer's enforcement nor the difference in the amount of enforcement done by the different supervisors made the TVA speeding policy unenforceable. It was consistently applied when infractions were found. The fact that the employer's resources did not permit it to find all possible infractions did not result in "inconsistent application" as understood by the arbitral principles. For all of those reasons, the Board finds that the employer had just cause for the discipline imposed on the grievor. The union conceded that if the Board found that the TVA speeding policy was valid and enforceable, the degree of discipline imposed was not excessive. In the circumstances, the Board hereby dismisses all of the grievances. Dated this~23r4 Day of May1995 at Hamilton, Ontario N. Dissanayake Vice-Chairperson "I Dissent" (dissen~ at~ached) G. Majes~ Member (see addendum) D. Montrose Member Between= Ontario Publio Servioe Employees ~on .' - add - The Crown in the Right of Ontario (Minist~y"o~"T~eaIth) Thames Valley Ambulanoe Ltd. GSB# 150/91, 150/91, 154/91, 162/91 (Rodgman) UNION NOMINEE DISSENT I have reviewed the majority award in the above noted matter and must respectfully disassociate myself from their findings. The award clearly sets out the facts and circumstances of the grievances and I take no exception with how they have been presented. I believe that the majority looked at the series of grievances and flopped down on the employer side because this is a rules case, and by extension, a management right which allows the employer to set policy and procedures, provided they are reasonable and consistently applied. What the award fails to recognize is that the parties have a long · ' history of difficult labour relations going back to when the service was operated privately. It is my opinion that there exists an anti-union bias which has continued to plague OPSEU~s relationship with Thames Valley Ambulance. The parties are continually fighting at the Tribunal and GSB on a whole host of issues which were not before this panel. Secondly, the issue before the panel relates to speeding ambulance ..". drivers. This must qualify as one of the most ironic grievances when buttressed against the public policy context of "why" ambulances are permitted to speed. The majority award does not represent common sense or practical judgement. The average person on the street would muse and say, "so what, they are speeding to save my life, etc.". Thirdly, the award fails to identify and understand the bad labour relations dynamic that surfaced continually at the hearing. Issues ranging from production of documents and failure to comply with an order for production plagued the initial stages. My observation was that the union was frustrated at every turn when they required access to information which would have had a probative value in arguing consistent or discriminatory application. Fourthly, the panel allowed the employer to engage in this activity without penalty, caution or warning. From this nominee's perspective, our award will have far reaching implications. By failing to address these concerns, we have signalled to the p~rties that their tactics are conducive to good labour relations. It was self evident that the parties have some challenges with respect to their relationship, yet the majority fails to mention or deliberately ducks the issue. I realize my colleagues may take the position that we have no jurisdiction to deal with these issues, however, we have a responsibility to ensure that the parties develop sound labour relations practices. In my respectful opinion the tactics in the hearing room present a far greater jeopardy than the speeding ambulance drivers. As someone who has benefited from a speeding care giver in the County of Haliburton, I have empathy for the driver's.position that as trained professionals they should have the latitude to make a determination when to speed. More importantly, the panel's failure to speak to these issues through the course of the hearing acts as a blanket endorsement of employer counsel's behaviour. I believe I could have supported the award on the basis of the analysis of the facts as set out in the award. However, it is intellectually and factually wrong to buy into the majority's reasoning especially when the real problem is "labour relations" which for all intents and purposes the award does not address. One fact that may have lead to the protracted proceeding is that the employer does not shoulder the financial cost associated with legal counsel and the GSB. If they had an incentive to manage their arbitration activity within a set budget, versus dipping into the Ministry of Health war chest that funded this case, I believe we would have had a much different hearing. With respect to union counsel, Mr. Wells has considerable experience with the ambulance industry and was counsel for the "PUBLIC INQUIRY INTO AMBULANCE SERVICE" in 1988. When Mr. Wells quotes statistics from a Ministry of Health report that indicate 47% of ambulance accidents are a result of ambulances backing-up. This is relevant evidence. When Mr. Wells points out that the legislation exempts ambulance drivers from the Hiqhwav Traffic Act. That is also significant. What is frustrating is that the employer presented "may" and "could" arguments with respect to the likelihood of accidents as a result of speeding. The employer's next argument was that speeding exerts greater pressure on pads and rotors which will require more frequent service intervals. My sense is that Thames Valley Ambulance is more worried about the cost of repairing brakes as opposed to the public's safety. On a final note, the award will now have implications for the London fire and police departments. For these reasons, and not necessarily limited to them, I respectfully dissent. 'Gary Majesky o MARKHAM, Ontario 1 I have read the dissent of the union member. To put it lightly it is very misleading as to the nature of the grievance presented to the Board and the natur~ of the issues raised during the hearing. In the circumstances, ! a~ compelled to take the extremely unusual ~tep of writing an addendum in ~esponme =o a 'dissent. As the majority award note~ at p. 1, this panel had to determine four grievances filed by an individual employee, each alleging di~ciDline without Just cause. The employer's re~Donse in each grievance was ~hat the grievor was dis¢ipllned for just cause as a result of knowingly breaching its speedin~ policy. The union conceded that the grievor knowingly breached tl~e polity. Mowever, it was contended that the discipline could not m~and because the policy on which it was based was itself defective. Two grounds were put forward, (1) that the policy was unreasonable (2) that the policy was not consistently applied. That was the ca&e heard by the Board. The Board heard extensive evidence on =he only two issues before it, i.e. (1) the reasonableness of the policy an~ (2) the consistency of application of the policy. Both counsel made substantive submissions on each issue. In its decision, the majority dealt with each issue separately, and came to the 2 conclusion that the policy was reasonable and that it was' consistently applied. Accordingly the grievances were dismissed. ~f ~he d£ssen~£ng ~amber had ~eache~ a dlfferent resul~ on one or both of the t~o ~ssua~ and concluded ~hat ~he pol~c~ was reasonable, and/or was inconsistently applied, there would not have been anything remarkable about ~hat. It would not be the first time that one me-her of a panel reached a different conclusion from the majority based on the same evidence and submissions. However in this cass, while the membe~ dissents, he does not set out any conclusion, let alone provide reasons, on either of the tWO issues put to the Board. He is critical of the majority for having treated thi~ as "a r~les case". He would rathe~ have the Board decide this came as one involving anti-union conduct on the part of the employer. In fact the dissent treats it as such. This is in my respectful view ia bizarre. The four grievances are from an individual grievor challenging speclf£c aisciplinary actio~ taken againmt him as a ~esult of four specific infractions of a speeding policy. The qrievancem make no reference, even in the waquest way, to any ~n~t-union conduct or bias. The griewor wa~ re~rsssnte~ by Ye=y experiencea and competent union counsel. In his o~ening statement hs summarized the case the union wished to present to the Board as follow~, and I quote: "The thrust of the union case is first, that this is a company rules case. He was disciplined for breach of policy. We say it is unreasonable and therefore cannot be enforced. Secondly, we say that if it wa~ reamonable, it has not been consistently applied. By way of remedy, we seek removal of all letters and compensation for all lost wages with interest. There may be calculation problems. So we ask you to remain seized. One was a driving suspension for 2 weeks. He worked as an attendant tn that ~eriod. We say he lost overtime opportunities in that period." ~mployer counsel in his opening statement fully agreed with the nature.of the case as presented by union counsel. More over, the evidence and submissions from both parties were solely directed towards, the issues as joined at the commencement.of ~he hearing. Given the foregoing, it should have come as no surpirse to anyone that the Board treated this as a rules case. In paragraph 4 on page 1, the dissenting member alleges t-ha= the majority fails to recognize that "the Dartiee have a long history of difficult labour relations going back to when the ~ervlce wan opera~e~ privately." Then the m~mbe~ ~oes on t~ make a findin~that "there exists an anti-union bias 'which has continued to plague OPSEU's relationship with Thames Valley Ambulance." This I find to be the most troubling par= of the dissent because any- issue of a history of anti-union bias on the part of the employer formed no part of the case the union presented to the ~oard and even more significant, there was not an iota of evidence led, 4 either through a witness or any document, about anti-union bias. That simply was not an issue addressed by the parties themselves. The d'~ffloulty reaches even a more basic level because, this Board clearly has no jurisdiction to make findings cf anti-union activity. It is trite to say that this Board is the creature of a statute and hence its jurisdiction is confined to the authority ~ranted by sections 18 (2) and 19(1) of the ~Fown ~o~l~.ctlve Bar~ainin~ Act. Even if the union had wante~ the Board to make findings of a history of anti-union bias by t~he employer (w~iCh it did not), neither provision of the Act confers thi.~ Board the power to do so. On the contrary, the Act ~pecifically inaludem unfair labour practice provisions for layin~ of charges of anti- union conduct before the I~ablic ~e~vice_Labou~ aeiation~ Tribu~a~ (Onta-~io Labour Relations Board subsequent to the recent amendments). The dissenting member aDpears to recognize that there is a jurisdiction problem, but takes it upon hlm~elf to treat %he anti-' union bias issue, a~ the real issue in %he case. It is beyond my comprehension how the Board member deals with anti-union conauc% an.~ makes a finding that "there exists an anti-union bias", in the face of the fact that, this Board clearly has no jurisdiction over thosm allegations; the union did not ~lle any complaint of anti- union conduct; and most strikingly, there was not a sh~ed of evidence before the Board relating to Such an issue for the simple reason that the parties did not present such issue to tl%e Board. The diseentinq member also attacks the majority award' on the grounds that it "fails to identify and understand the bad labour relations dynamic that surfaced continually at ~he hearing". He refers to production of documents and "failure to comply with an order fo~ production". He accuses the majority of allowin~ ~he employer to engage in this ac%ivity ,,without penalty, caution or warning" and o~ "deliberately ducking the issue" in the award. Issues relating to production did arise during the course of the hearing. The union requested production of documents it claimed were necessary and relevant. The employer on the other hand took the position that the documeats were irrelevant, that the recjues= was a fishing expedition, and ~hatthe volume and the cost were not justified by the marginal relevance. The parties engaged in discussions to resolve these production issues and in fact did re,clue most of the~. What was not resolved was put to the Board and the Board ruled on them. The Board made two rulings in total and both were unanimous. There was no allegation at any point, that the employer ha~ failed to c~mply with a Board ruling. However, the union did complain that the employer had failed to produce documents as agreed to. There was a dispute as to what was agreed to. This ma=tar was also resolved without the nee~ for a Board order. . The point is this. There were a n,~ber of production issues during the hearing. They were either resolved through discussion by the parties or ruled upon by the Board. Whet i~ important is that, the union counsel, as a most experienced and lawyer, aid not at any time claim any kind of personal misconduct or impropriety on the part of employer counsel. He vigorously attacked the lepal position taken by the man, not the man himself. The Board heard the submissions of the respective coun~al on legal positions and made its rulings, x~ total ~he Board made rulings, both unanimous an~ against the employer. I have no idea what #penalty, caution or ~arning" =he dissenting member has in mina. Is he suggesting that this Board penalize employer counsel because he took a position on pro~uc=ion which was rejected by the Board? Unfor=una=ely, the Grievance Settlement Board aces not have the s-~e jurisdiction that Judge Lance Itc of the California High Court has, to penalize counsel. ~ven there, counsel was penalized only after the court heard a motion from the prosecution for sane=ions and concluded after receiving submission~ that the counsel had failed to comply with a court order. We had no failure to comply with any Board order. None was alleged or proved. The Board member criticise~ the majority for not dealing with the employer ceunsel's ¢onduc~ in its award. It is alleged =hat we "deliberately ducked, that issue. This shoul~ not be surp~ising 7 for the simple reason that counsel's cond~qt was not put into issue by Uhe union. What was put into issue was the validity of his arguments. On those the Board made oral rulings. It is not the practice cf this Board to provide written reasons for its oral rulings unless one of the parties so requests. It will create a mogt chaotic an~ costly situation if the Board was to mention in its awards, every oral ruling it makes on procedural issues throughout a hearing. Even if we did so, we would only have dealt withthe merits of the respective legal positions of counsel on the issue of production. We would not have dealt with any'misconduct issues, because the union counsel did not allege misconduct by t. he employer co~lnsel. Finally, 'the dissenting member at p. 2 states that "I believe I could have ~upport~d the award on the basin of the analysis of the facts as set out in the award". Nowever he says that he ele:~s =o dissent because "it is Intelleotually and factua~lywrong ~o buy into the majority's reasoning e~Declally when the real problem is "la~um relations" ~hieh for all intents a~d p~rpomes the award does not address". This in my respectful opinion discloses a fundamental misapprehension of the role of this Board. Both parties clearly agreed that this was a ~ule~ case and that there were two issues to be decided, it. th~ reasonableness and the consistency of a~licatlon of ~he speeding policy. The member states tha~ he "could have supported" the majority award on those issues, but dissents on the basis of what he views as the "real problem.". He fails to realize that that real problem, the alleged anti-union bias of the 'employer, did not form any part of the grievances before us, was not raised or argued by the union, there was not a shred of evidence relating to that and is completely outside the jurisdiction oft. his Board. I would venture to state that if anti- %hnion bias was a concern of the union, the fact that union counsel did not raise these issues in the course of these individual discipline grievances had to be deliberate. As · competent and experienced practitioner in the fiela of labour relations, he ha~ =0 be £ully aware that it was the wrong time and wrong place to raise those issues, and that the Grievance ~ettlement ~oard has no Jurisdiction over that issue. For the Board to hav~ dealt with such issues on its own would have violated the most ~asic rules of sound adjudication, would have clearly exceeded its jurisdiction, and would have been seen as insulting the competence and sound judgement of the union and its counsel. The dissenting member appears to be suggesting that since the ambulance vehicles are exempted from the speeding maxim,,ms imposed by the Mi~hwav T rafflg AC~, a company .--ule putting any speed limits is unreasonable. Thus he states that the average person will understand that ambulances are speeding to save lives. He even takes into consideration in support of his position an occasion when he himself benefitted from a speeding care giver in 9 Halibur~on, which information was not adduced in evidence and not subjected to oro~s-examination. The majority of the panel on ~he other hand, took the position that the nee4 to speedily transport the ill mus=be balanced witch ~he safe=y hazards posed by speedtng vehicles. To the extent of this disagreement, we have no diffiault¥ with the dissent. However, what caused me to write this addendum, wag the unfair and mlsleading criticism of the majority award on matters which were not before the Board and not within its )urisdiction, which the Boar~ member has taken upon himself to raise and deal with in the absence of any evidence, submissions or legal j'urisdic:ion. Date~ ~his 10=h ~ay of May, 1995 at Hamilton, Ontario Nlmal Dissanayake Vice-Chairperson Addendum from the Employer Member I concur with the Vice-Chairperson's addendum, so there is no need to belabour this aspect of the case. In his dissent, the Union Member has managed to insult the majority, both legal counsels, and the "anti Union" employer. Only the grievor has been spared from this diatribe. The dissent in itself is unfair and misleading and without foundation based on the actual facts and events that actually occured. After reading the dissent, I wondered if I had attended the same hearing. D.+ Montrose, Member