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HomeMy WebLinkAbout1992-3335.Butt.93-09-14 (1 . (:', 1- "- ONTARIO EMPLOYES DE LA COURONNE 1 CROWN EMPLOYEES DE L'ON TA RIO - GRIEVANCE COMMISSION DE 1111 SETTLEMENT .. REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE /TELEP/-/ONE (416) 326- 1388 180 RUE DUNDAS OUEST SUREAU 2/00 TORONTO (ONTARIO) M5G lZ8 FACSIMIlE'TELl3COPIE (416) 326- 1396 ,t 3335/92 IN THE MATTER OF AN ARBITRATION Under ) THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Butt) Grievor - and - - The District of Halton-Mississauga Ambulance Service Ltd Employer BEFORE: H. Waisglass Vice-Chairperson J Carruthers Member F Collict Member FOR THE M. Ruby UNION Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THE D Daniels EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING August 11, 1993 ( ----------- -"'--- - ( " ( ~ ~ ,::, ! 2 DECISION Mlchael Butt, an ambulance offi.cer employed by The Distt"ict of" Hal ton and Mi ssi ssauga Ambulance Servi ce l td followed the well- establlshed industt'ial I'elations pr'i.nciple, "obey now and grieve later", when instr'ucted by tns super'visor to r'emove a button and ) orange t'lbbon from hi.s uni.form The button says "T SUPPORT ONE AMBULANCE SERVICE FOR ONTARIO", Butt's grlevance states "that theorde r issued to me to remove the button & orange 1"1. bbon I sanctioned by OP~EU Ambulance Divi.si.on and pertaining to i.l1lpl"ovem~nt i.n Ambulance Servi.ces related to the Ministry of Uealth's own t'eport on the delivery of e\\'~rg~ncy health ser'.flces, on Jon 19/93 is unjust and unfai.r The order - serves only to intimidate & coerce" "Settlement deslred. To revoke the order To cease & desist inttm1datton and coercion" The facts are not In dispute No witnesses were called Counsel agreed on all the essential and relevant facts whi.ch they presented ot'ally, together wi th several items of documentary evidence fi.led on consent. It l. S agf'eed fact that the gd evor was 'among the OPSEU members employed by The D1.stri.ct of Halton and Mississauga Ambulance SerVIce ltd who participated Itl OPSEU's provtnce-wtde "orange- ribbon campaign call1ng for thept'ovi.nce to implement the Deceinber 1991 Emergency Meal. cal Ser'vi ces Review, a1 so known as the Swimmer Report after t ts chai.rman Gene Swinmeru {Exhi bl t 8f} It i.s agreed fact also that by ut'glng the adoption of the SWImmer report OPSEU is seeking the unification of Ontario's 177 separate ambulance servi.ces under a provincially-funded Crown Agency which (- ( It. " .\;;..... 3 would t'eport to the Minister of Health, and which would mean the termination of existing licenses, including that of Hns Employer, ;; and the elimination of all independent, 11 censed, private operators of ambulance serVIces "Nlne of the 177 ambulance serVlces are duectly owned and operated by the Mln1.stry of Health and four are on contracts to the Mini.stry Hospi.tal sown ol'ld operate another' 66, volunteers t'un 28, and niuntclj)ali.ti.es operate another four Pt'i vate compani.es own 44 services and 22 are operated by agents of the pr'ovi. nctal government " {Ex.hi. bit 8f} The District of Halton and M1SS1SSQuga Ambulance Service Ltd 15 one of the 44 private companles, among others, which the Union camp(ngn seeks to el imi.nate as operators of ambulance services It is agreed fact that the Union-suppli.ed campai.gn buttons and ri bbons t to be worn on the uni. forms of the employees duri ng thei. r' - workl.ng hours, are designed to pron~te a cause WhlCh seeks to put this ~mployer out of his business The relevant secti ons of the Collecti. ve Agreement at'e as follows' " 3 02 The Company and the Uni.on agree that there wi 11 be no i.ntimidati.on, di scdmi notion, irlterference I restraint, or coerdon exercised or practiced by ei.ther of them or by any of their representati.ves or members Parti. cularly I there shall be no di. s\:rimi.nati.on ogoi nst employees with resp,;ct to terms and condl.ttons of emp10yment on the grounds of '" ( ( <f 3 03 It is agreed that the Uni.on and the ell1ploye~s will not hold meetings at any time on the premises of the Company without the permission of the Management The Company will provi.de a bulletin board at each station for use by the Unton, provided that al \ matters posted on such bulletin boards are first approved by the supervisor or a person above the rank of supervi. sor." il 4 01 The Union recognizes and acknowledges that the management of the stati.ons and the direction of the work'i ng force ore fixed e;<clust vely in the Company and, wi. thout restricting the general ity of the forgoing, the IJni.on acknowledges that tt is the exclusive function of the Company to "Cc) MCJke, enforce and alter, from time to time. rules and \ regulati.ons to be observed by the employees The Company agrees to supply the Union Presldent wi. th copies of any --... ~ \.." 4 changes in rules and regulations pr\or to th~ p05tin~ of s.uch changes and the Uni.(\n may then request a cOl1s..l1tatl.on regarding same E.<cept i.n the case of M\r\l.stry of Health d"i recti ve~ th.... s consl-ll tatl on sha 11 take pI ace be fore changes are lmplemeni:er.1 provi.ded ho~~evE:r' that such " consul tation shall not affect the val i.di ty of the rule j ,. Counsel for Uni.on and El'rJployer' r'ely upon the follmving cases J RE THE_CROWN IN THE RIGHT '~f ONTP,RIO (Mi.ni.s.try of Soli.('lw'-GeneroD AND O.P.S.E.lI. (Polfer), 23 LA C (3d), [1936J, (Delisle), at pp 289-94, RE WARDAIR CAN.t.DA INC.ANO CANl\.DillJI.E.bJ,J-JE FLIGHT ATTENDANTS' t\SSOCIATION,. 28 l A ( (3d) [1987J (Beatty) at pp 142-156 RE THe CROWN IN THE RIGHT OF ONHRIO (Mt tltstry of Revenue) AND O.P.S.E.U. (Colquhuun~, GSB 1349i89, (DisSQnayak~), February 8, 1992 Unlon counsel submits that the grievance should succe~d on either one of two arguments First, he submIts that Article 3 02 gives - the employees the right to p(wti dpate U1 Urn on actt vi. ti es wi thout managerial "1.ntin1i. dati. on , discnmlnatlont Intet'ference, t~estrQl nt or coerclonUt and that Artlcle 3 03 restri.cts the Employer from addi.ng more Union activities requidngmanagerial approval to the two activiti.es [Uni.on meetings on premises and postings on bulletin boards] identified theretn Secondly, cOllnsel submits the Employerts rules deny employees the ri.ght to par'ttci.pate tn a legiti.mate Uni.on acti.vi.tYt and they consti.. tutean lmpt.oper eXet'Clze of manageri.al rights in that there 1S no t'eal evi.dence to suPPOt1t a Clalnl that the Employel' suffers any harm or fOSS as a di rect consequence of the \\leori..ng of the prohibited campaIgn buttons and ribbons Thet'e is no indication that safety and heal th questions are conslderatiqns Ul the Employerts prohibi tions on wead.ng the campaign l'ibbons/buttons To support hi.s Qt'gument that the onus is on. the Employer' to show t - / ~ \" '\ 5 that the rule serves a legiti.mate busIness i.nterest, and that "there must be some objecti.ve basi.s to support the employer's I .- I c1 alln that adverse consequences of that ki. nd ar'e 1 i kely to ensu(!~t ~ [Arbltt1Qtor' Beatty, i.n Re W~rdairJ at p 155,], Counsel refer'red to I the cases cited above, involving the issue of whether an Employer- made dress code rule is reasonable and JustifIable, UnIon counsel Ot1gues that ot'ticle 3 02 confers upon employees a right to partlctpate i.n the legi.ti.mate acti.viti.es of the Um.on, that the wearing of the buttons/ri.bbons on the uni.forms is a legi.timate union acti.vIty, and that the Employer's rules are inti.mi dati. ng ondcoerCl ve, and they interfere wi th the t1i.ght of - the employees to part! C1 pate i. n that oct1 vi ty, thereby vlolati ng article 3 02. He ar'gues further that arti. cle 3 03 t s exhaustl ve, and that if prIor managerIal approval had been intended as a requi.rement before an employee 'is petttnltted to parti.clpate inl such legitimate union acti.vlties~ then the parties would have sOld so in this section of the CollectIve Agreement We accept the Employer~s sLlbmisston that ortlcle 3 02 1n no way confer's such blanket ri.ghts to the employees to participate in Union acti.viti.es on the Employet,ts time and premises, particularly the right to partiCipate tn a Union campai.gn WhlCh 1S hostile to the Ernp loyer' , s 1 egi timate busi. ness 1 nterests We agree wi th Employer's counsel that arti.cles 3 02 and 3.03 do not in any way over'-ride or diminIsh the legitimate exercise of managerlal rIghts, to make and enforce "rllles and ,'egulatlons to be observed by employees", os speci. fted i.n article 4 01 ~ ./ ( ( ~ \,. ~ .- 6 Article 3 03 mllst be understood and l.hterpl'eted Ul \ ts context It provides explicitly for two types of union actIvIties that are perml tted at the workplace, subJect to sped fIe pnor approval by managenent It does not In any way i.mply or suggest that all other' types of Union acti. VI ties ar'e permt tted Wi thout such appl'oval, as Union counsel submits That does not necessarily exclude the consIderatIon of addItional speclfi.c union acttvi.tles WhlC.h mIght be permitted from time to tIme on a .c-onsensual basi.s It does not freon that any or all unlOr. act1. vi ti.es may be conducted I n the WOl'" place, or during working hours, other than those mentloned Ul 3.03, and wi thout the requi. r'ernent of managen a 1 approval ') - There 1. s not the sl t ghtest doubt that the orange r'i bbon/button campai.gn is detrimental to the Employer's legitimate busi.ness interests. We find as fact that the Unlon campatgn threatens the Employer~s existence. Self~preservation is stl.ll a legitimate inter'est. Survi.val is at the summit of legitimate self-Interest for employer's as much as for unIonS It is incumbent upon us to observe that mutual unlon-employer respect for each others' sur'vi.val needs is a fundamental free collectIve bargaini.ng prI no ple It is no less unacceptable for a umon to threaten an employer'" s viabi 1 t ty than 1 t t s for an employer to threaten the exi.stence of a uni.on representi.ng 1 ts employees As Arbi. tr'ator Dissanayake states in Colquhoun. GSB 1349/89, (el. ted above)\ the arbi tral Juri.sprudence recognlzes that an employer has a legitlmote interest tn the appearance of ltS employees and the impact thi.s has on the employer"spubltc image The juri.sprudence " ~-- - (- ( \,''' \ .1:.' 7 ! indicates the prlnctples lnvolved in the pr'opet' enforcement of per'sonal appear'ance rules WhICh Impact publl C Image However, in I the case at hand "public i.mage" i.s not at issue It is not a question of whether the buttons/ri.bbons look so unattt'Qctl ve as to - threaten the employer"s Image in the eyes of the publ ic Rather', the i.ssue here is the perceived threat to the Employer This case IS ther'efore distingUlshable ft'om those cited above ~ Having given careful considerati.on to the evidence and Qt;guments of the parties; we have no di.fficulty at all in coming to the conclusion that the Employer acted fairly and reasonably, when it - refused to make an exception in the establ ished uni fot'm dress rules and regulati.ons in order to permit employees to \Near the OPSEU campalgn buttons/rlbbons We find the Employer' exercIsed its managerial rights to "make; enforce and alter, fr'om time to tlfl1e, rules and regulations to be observed by the employees.. " in good fai.th. The r'ules prohi.biting the employees from wearing i. terns such as the offending button/rtbbon, Wi. thout prior manageri.al approval are long-establlshed and well known to the Unton and the employees. They are cleat'ly descri.bed tn the standi.ng ot'ders on Unl for' In Dress, Deportment and Distri.buti.on which, in part. states "Employees will not be permi.tted to \fIJear any clothi.ng, boots, pins \ or other items not specifi.ed above as part of the regular unl form " [Exhl bl t 3J ------- -- - - - ( - r>, ~. " 8 Union counsel submits the UnIon's claims ore supported by .. establ ished pt-ecedents whi ch he ldenti fied as p"evious occasions.. when employees-were permi.tted to wear speclal campolgn i.tems on thei.r unifot'tns, such as poppi.es and black arm bands However, the evi.dence 1 ndt cates that I n each such 1 nstmK€ the items were approved by the Employer after discussions Wl th the Urnon. They were permi tted on a consensual basl s \'\there the parties percel ved a mutual 1 nterest 1 n support of a cOlmlUni. ty cause I Union counsel submi.ts also that~the buttons and nbbons are symbols in support of the .Unlon's campaign objectIves for a - provi.nce-wi.de urri fled ambulance service whi.ch is lfl the provi.nclal public interest, and as such should be permitted The UnIon's cdrnpaign objecti ves are clearly sel f-servi ng They lltay a1 so be in the wider public interest, but that is not relevant to thi.s grievance dispute. It is not for us to deCIde whether Of' not this campaign 'is leglti.mately in the pUbli.c interest It has become fashionable for prt vate orgoni zoti ons and 1 ntel"est groups of all sorts to present thei.r own sel f-interests Hl the costumes of publi.c Interest And they have become very expert i.n doing so Arbi tratot's, however I must be especi ally wary about folloWing such fashions and usurping what are essentially legi.slatlve functions. Missions to arti.culate, define, and act on questions of public interest tlof'mally reside WIth legislators, and not ~~th arbttrators. - ( c ~ ." ....,. " 7 9 It suffices for us to determi.ne that it 1S not unreasonable for the Employer to regar'd the Uni on J s campaign buttons and rl bbons as i representing a tht'eat to Its eXlstence and as detrImental to 1 ts t' legitlloote buslness interests. And therefore, 'Ne fi.nd that the Employer did not act unfairly or unreasonably"when It exercised its manageri.al rIghts under' the collective agreement to prohlbit i.ts employees from wearing the buttons/ribbons it should be noted that we do not consider it necessary to decIde upon the additlonal submIssIons of Employer's counsel to the effect that an employees ( pUblic c~itlclsm of his employer lnvolves a breach of his duty of loyalty, tv serve hlS employer in good faIth and fidelity, and that q deliberate act which 'lS prejudioa1 or 11 ke1y to be prejudicial to the l.nterests or reputation of . his employer is 0 breach ot such duty of loyalty We have suff\cient reasons fordecidl.ng the actual lSsues presented in this grievance without considering these addihonal submissions which may be more appropriately consi.dered 1n respect to q dlsnpl'tnary issue of insubordination The grievance before us does not involve an actual di.sclPllnary action, Q breach of a rule, or an act of tnsubordination For' the reasons given herei.n the grievance i. s deni.ed DATED AT HAMILTON, oNTARIO, THIS ~~.!' D~ . I~I.~ ~-------- HARRY J AISGLA s Vice-Chairperson "I Dissent" (dissent to follow) ------------------------------ MEMBER MEMBER - ~ Dissent Qf J Car-ruthers ~~ P- Re Butt - Case #3335/92 '1 I have read the reaSQns of the majority Qf this Board and must register my dissent In January 1993, the Grievor participated ~n the orange ribbon campaign The campaign was meant as a show of support :for the Final Report of the Emergency Medical Services Review, which has come to be known as the "Swimmer Report" The report was commissioned in February 1991 by the Ontario Minister Qf Health One of the recommendatiQns in the repQrt is that all ambulance services in the prQvince be uni:fied intQ Qne service tQ be gQverned by a CrQwn agency If that r-ecommendatiQn were accepted, it will mean that private licensed ambulance QperatQrs, like the District of HaltQn-Mississauga Ambulance Service (the EmplQyer in this case) would nQ lQnger have a licence tQ carry Qn an ambul~nce service This Employer would then have two Qptions (1) convert tQ a "service cQntract" with the new ambulance cQmmission or (2 ) go out o:f business and receive fair- market value compensation for the licence I believe the majority decision has over-stated the case when it says that the Swimmer RepQrt "designed to. promQte a qause which seeks to put this employer out of his business" . As the Swimmer Report states, the Employer could choose to stay in business but not as a licensee. The Employer in this case may disagree with the recommendations in the Swimmer Report In my view their simple disagreement is not enough, absent other considerations, to ban wearing the orange ribbons and buttons The three cases mentioned in the majority decision, two of them awards of this Board, place an onus on the Employer to show actual harm before they can ban wearing buttons, ribbons or other items of clothing In the Polfer case, Professor Delisle stated that There is an Qnus on the Ministry here to satisfy that ~ real interest !.i.ll be impaired if this dress variation is permitted. If a real interest is identified we must also ask if the Ministry has gone any further than is necessary to protect that interest In this case, there was nQ evidence befQre us that the Employer's interests were impaired in any real way There is no question that wearing the buttons raised any safety concerns There was no evidence that wearing the buttons resulted in the business losing money There was no evidence that any patient carried in an ambulance, or any member of the public, complained about the buttons There was no evidence that any member of the public confused the Employer's with the Union's views on the Swimmer Report \ 2 -./ ~ ~, ,i 2 ! This is simply a case where the Unioh, irtclud~ng the Grievor, supported recommendat~ons in a government report and the Employer took a different view Differences of opinion, even if they ~nvolve whether an Employer's licence should be term~nated, are not sufficient to support a complete ban on the Union's right to carryon the orange ribbon campaign I think the Employer went too far in imposing a complete ban or wearing the buttons I should add that the Swimmer Report is just that - a "report" We do not even know whether the Government will adopt its recommendations It could go the way of many other Government reports which are pr~pared but nev~~ acted upon I also disagree with the majority of this Board on the effect of Article 3 02 of the Collective Agreement That section states that there shall be no dis9rimination because of "Union membership or activity" We hear evidence, wh~ch the' majority award notes, that some items were permitted to be worn on uniforms, such as poppies, black arm bands, and other items Such items were not objected to by the Employer " In this case, the Employer banned the wearing of the button and ribbon because it conveyed a Union message with which the Employer disagreed To my mind, the Employer discriminated by letting Union members wea~ objects which conveyed messages with which the Employer agreed, but banned them from wearing objects which conveyed Union messages with which the Employer did not agree Again, I would have allowed this grievance because I heard no evidence that the Employer was truly harmed by the/orange ribbon \ campaign I also think the Employer discriminated against the Grievor because they disagreed with the message he and the Union wanted to express p~~df1;' \ -~"- -