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HomeMy WebLinkAbout1993-0976.Belanger et al.99-11-03 o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 Dr 'VDAS STREET FVEST Sr'lTE 600 TORONTO ON M5G 1Z8 TELEPHONE TELEPHONE, (416) 26-1 88 180 Rr 'E Dr 'VDAS or 'EST Br 'REAr 600 TORONTO (ON) M5G IZ8 F4CSIMILETELECOPIE (416) 26-1 96 GSB # 0976/93 OPSEU # 93E193-219 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Belanger et aI) Grievor - and - The Crown m RIght of Ontano (Mimsm of Health Peel-York Ambulance ServIce) Employer BEFORE Susan D Kaufman Vice ChaIr Ed Seymour Umon Nommee AI Memtt Employer Nommee FOR THE Jim Paul GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE Jonathan Cocker EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING Janllal) 25 March 16 Ma, 10 August 25 October 25 1995 Janllal) 24 1997 April 17 18, 19 20 September 23 December 11 1998 Decision Peel-York Ambulance ServIces IS a Mimstry of Health operated ambulance serVIce WIth SIX ambulance statIOns The gnevances before us emanate from a group of employees who are Ambulance Attendants/Officers and members of OPSEU Local 311 (workIng from the Woodbndge RIchmond Hill and ThornhIll statIOns) and of Local 228 (workIng from the Bramalea, Lynch/Brampton and Heart Lake statIOns) In Peel-York FIfty-three gnevances dated Apnl 19 1993 (Ex 3 & 4) are before us Each alleges a breach of ArtIcle 12 of the collectIve agreement In effect January 1 1992 to December 31 1993 and requests reInstatement of the past practIce for rest pen ods and that the employer "cease and desIst from makIng regular threats to dISrupt past practIce for rest penods In each ShIft" Another fifty-three gnevances dated June 7 1993 (Ex 1 & 2) are also before us Each alleges "vIOlatIOn of ArtIcle A 1 2 and other statutory provIsIOns" and requests the "return of all rest facIlItIes to theIr status of pnor to March 1 1993" "stop escalatIOn of the conflIct" and "dIsmIssal ofMr RIchard Armstrong" A great deal of eVIdence was heard over several dates In 1995 1996 and 1998 As there appears to be a great deal of Interest over the Issues In dIspute and to abbrevIate our decIsIOn somewhat, we have set out the opemng statements eVIdence rulIngs regardIng eVIdence and arguments In detaIl as an AppendIx to thIS DecIsIOn We hope It wIll assIst the partIes to understand our conclusIOns whIch commence at page 41 of thIS DecIsIOn The folloWIng IS a chronologIcal dIstIllatIOn of the eVIdence along wIth certaIn determInatIOns regardIng facts whIch were In dIspute and certaIn conclusIOns that can be drawn from the eVIdence In thIS context Peel- York Ambulance ServIce IS one of seven "Mimstry-operated ambulance serVIces" and one of thIrty-three ambulance serVIces WIthIn the Central-East Ontano 2 RegIOn, whIch IS also known as RegIOn 3 Between 1987 and 1991 Peel-York was admInIstered under RegIOn 2 Bryan Clarke has been AssIstant RegIOnal Manager for thIS ServIce from 1984 to 1987 whIle It was In RegIOn 2 and from 1991 to 1993 whIle It was In RegIOn 3 Peel-York Ambulance ServIce was transferred to the admImstratIOn of RegIOn 3 In 1987 Fred Rusk was the RegIOnal Manager for RegIOn 3 from 1987 to 1991 He was succeeded by RIchard Armstrong, who has been RegIOnal Manager for RegIOn 3 SInce 1991 Peel-York Ambulance ServIce IS one of many components of the Emergency Health ServIces Branch of the Ontano Mimstry of Health In early 1993 Graham Brand was the Branch DIrector He reported to the Mimster of Health Malcolm Bates was AssIstant DIrector reportIng to Mr Brand There are SIX RegIOns In the PrOVInce each admImstered by a RegIOnal Manager who report to the DIrector and AssIstant DIrector SInce 1975 Peel-York Ambulance ServIces has been dIrectly managed by a senes of ServIce Managers who report to the RegIOnal Manager Most recently In relatIOn to these gnevances, Fred Hardy was the ActIng ServIce Manager for Peel- York, from 1991untIllate February 1993 when, the partIes were agreed, hIS employment was suspended, and ultImately termInated John Cunnane became ActIng ServIce Manager In late February 1993 for a bnef penod Grace Fowler has been Manager of Peel-York Ambulance ServIce sInce about mId-March, 1993 SInce September of 1972 Ross VirgIn has been an Ambulance Officer workIng from the W oodbndge Ambulance StatIOn In Peel-York Ambulance ServIce In 1995 he had been PresIdent of OPSEU Local 311 (W oodbndge RIchmond Hill and ThornhIll StatIOns) for 15 years The panel heard eVIdence from Mr VirgIn, Steve Wheelans, ParamedIc and 2nd Vice-PresIdent of Local 228 when he gave eVIdence and Ambulance Officers Norman House and Bnan Hall on behalf of the umon and the gnevors and from AssIstant RegIOnal Manager Bryan Clarke and RegIOnal Manager RIchard Armstrong on behalf of the employer 3 None of the wItnesses could state wIth any certaInty a partIcular date on whIch the Mimstry adopted a polIcy that no cots or beds would be permItted In the Mimstry-operated ambulance statIOns No wntten polIcy to that effect was produced However the eVIdence that such a polIcy has been In eXIstence In Mimstry-operated statIOns sInce eIther the mId-1970's or early 1980's was not senously undermIned, and we accept that such a polIcy has eXIsted SInce then On the basIs of the eVIdence provIded, we also conclude that SInce the mId- 70' s If not earlIer In the W oodbndge statIOn, beds cots and other personal rest eqUIpment have been present In the Peel-York Ambulance ServIce statIOns Weal so conclude that untIl February 22 1993 (a penod of 18 to 20 years) ShIft Managers SupervIsors, and ServIce Managers have been aware of and have tolerated and on occaSIOn some of them have used vanous beds and cots In the Peel-York statIOns They were used by Ambulance Officers for comfort and relaxatIOn, dunng "rest penods" whIch IS essentIally tIme when all other dutIes were completed and there were no emergency calls We conclude that the beds and cots and other personal "rest facIlItIes" as well as the couches supplIed by the Mimstry In the statIOns have been used for reclInIng honzontally and not for sleepIng, and for purposes of thIS gnevance that the rule agaInst sleepIng whIle on duty had not been abused by the Ambulance Officers concerned We conclude that dunng the day the beds and cots and other "rest facIlItIes" were not kept In areas of the statIOns whIch were vIewable by the publIc ThIS was done to keep the appearance of the statIOns tIdy to maIntaIn an appearance of professIOnalIsm, and to maIntaIn the publIc's confidence In the abIlIty of the staff to respond on a tImely basIs (whIch, we gather has not been an Issue In thIS ServIce) We gather that the statIOns were seldom vIewed by non- Mimstry staff or VIsItors dunng the evemngs and weekends when the "rest eqUIpment" was pnmanly In use We conclude on the eVIdence that the "rest eqUIpment" was not maIntaIned secretly from management, although It may have escaped the notIce of Mr Armstrong and Mr Clarke who the eVIdence dIsclosed, 4 were Infrequent and rarely evemng and weekend VIsItors to each of the statIOns Rather we conclude that untIl March, 1993 ShIft Managers SupervIsors and SerVIce Managers In Peel-York Ambulance ServIce dId not enforce the polIcy prohIbItIng cots and beds for reasons not dIsclosed In the eVIdence and dId not commumcate theIr presence to Mr Armstrong and Mr Clarke Some tIme between late December 1992 (accordIng to Mr Wheelans) or January 16 1993 (whIch Mr VirgIn recalled) and January 29 1993 (the date ofMs Colbertaldo's letter In Ex 18) about one-thIrd of Peel- York Ambulance ServIce's Ambulance Officers suddenly and wIthout pnor warmng to them or to umon representatIves, receIved a wntten notIce that they would be assIgned to dIfferent statIOns and/or dIfferent partners effectIve February 1 1993 These proposed transfers/reassIgnments became known as a proposed "ShIft shuffle" We accept the eVIdence that a great many of the affected Officers had worked out of the same statIOn and had developed effectIve and efficIent partnershIps wIth other Officers wIth whom they worked regularly for many years and had purchased homes and/or located themselves and theIr famIlIes In places whIch were convement for them to travel to theIr assIgned statIOns easIly and economIcally and that they were very upset by the proposed changes They were concerned that theIr abIlIty to provIde theIr essentIal and lIfe-preservIng serVIces as effectIvely as prevIOusly was gOIng to be detnmentally affected, as were theIr personal lIves and the lIves of theIr famIlIes The proposed changes appeared to them to be arbItrary and unJustIfied, and In some cases repnsals Mr VirgIn, and Mr Wheelans, who had been ActIng ChIef Steward of Local 228 In 1993 (and who was Second Vice-PresIdent of Local 228 In 1998 when he gave eVIdence) saId that In VIew of the short penod oftlme untIl February 1 1993 they urged the bargaInIng umt members to phone and wnte to the Mimster' s office The bargaInIng umt members complIed (Ex 18) 5 Mr VirgIn and Mr Wheelans advIsed us that about a week after they first learned of the proposed transfers/reassIgnments ServIce Manager Fred Hardy told them that RegIOnal Manager Mr Armstrong had ImtIated them We accept that Mr Hardy told them that, and that they bebeved hIm We find that Mr VirgIn and Mr Wheelans wIthout dISCUSSIng the matter wIth Mr Armstrong, In the SIncere bebef that such dIrect commumcatIOn would not avert the proposed transfers/reassIgnments before February 1 1993 concluded that dIrect commumcatIOn wIth the Mimster's office by the bargaInIng umt members would YIeld speedIer results, and the results that they wanted Mr VirgIn told us that In February of 1993 about a week after the phone-In and letter-wntIng had commenced, he learned from Mr Hardy that "Queen's Park" had called Mr Armstrong and that Mr Armstrong "was upset wIth those In the lobby" Mr VirgIn and Mr Wheelans also advIsed us that after the bargaInIng umt members began theIr phone-In and letter-wntIng actIvItIes Mr Hardy advIsed them that If the phone calls and letters to the Mimster contInued, "the powers that be may have to take some actIOn" They concluded that by "the powers that be" Mr Hardy meant Mr Armstrong ThIS further Increased theIr apparently pre-exIstIng dIStrust of Mr Armstrong Mr Armstrong demed that he had ImtIated the statIOn/partner transfers/ reassIgnments He said that they were ImtIated by Mr Hardy He said that he dId not have any personal knowledge of the IndIVIdual Ambulance Officers upon whIch to base any decIsIOn to effect such transfers and that he only became acquaInted wIth Officers IndIVIdually If and when they filed a gnevance as he IS responsIble for labour relatIOns In the RegIOn He said that In the absence of such knowledge he would not effect transfers and dId not do so personally On January 28 1993 AssIstant RegIOnal Manager Bryan Clarke receIved a telephone call from AssIstant DIrector Malcolm Bates whIle Mr Armstrong was out of the office Mr Clarke learned from Mr Bates that he Mr Bates had receIved 6 calls from Ambulance Attendants allegIng unfaIr base transfers and Improper motIves behInd them, and that he wanted to know the reasons for the transfers Mr Clarke spoke to Mr Hardy that day and receIved and accepted from Mr Hardy the alleged basIs upon whIch he had determIned the proposed transfers/reassIgnments and set them out In hIS Memo to Mr Bates (Ex 23) 1 Do we have the proper mIX of employees re expenence age SIze matunty personalIty & enthusIasm 2 FamIlIanty of all of the areas to ensure consIstency and an equal share ofeall volume (emphasIs In ongInal) 3 FamIlIanty of all hospItals and there (SIC) routInes 4 People are moved to ensure that staff are famIlIar wIth each others work habIts and to dIsburse any statIOn nvalnes 5 Management has the abIlIty to assIgn personnel under the crown employees (SIC) CollectIve BargaInIng Act Sec 18 & these nghts are not to be subject to CollectIve BargaInIng nor come wIthIn the JunsdIctIOn of an arbItratIOn board 6 ConsIderatIOn wIll and has been taken In cases that have extenuatIng CIrcumstances eg (SIC) - famIly problems etc Mr Clarke saId that the above cntena seemed to reasonable to hIm and he dId not ask Mr Hardy hIS reasons for transfernng specIfic IndIVIduals He also said In hIS Memo (Ex 23) N one of the moves are done to repnmand or to retalIate In any manner only the Interest of the Mimstry of Health and Peel-York Ambulance are consIdered Excuses lIke "get along well wIth allIed agencIes, hospItal staff and my partner" are all expected by everyone and are consIdered posItIve In the eyes of management Several people come to management confidentIally and ask for changes due to theIr partner but ask that we do not tell them for fear of not beIng lIked, and others are management decIsIOns Mr Clarke saId that he dId not dISCUSS the matter wIth Mr Armstrong untIl "some tIme afterward" The umon dIsputed the sIncenty ofMr Clarke's and Mr Armstrong's eVIdence to the effect that that they dId not dISCUSS the matter of the transfers/reassIgnments as early as January 28 1993 They also dIsputed 7 strenuously that Mr Hardy was the sole ImtIator of the transfers/reassIgnments, and alleged that Mr Armstrong had ImtIated them There was no dIspute that Mr Hardy had alleged that Mr Armstrong had ImtIated the transfers/ reassIgnments No other eVIdence or wntten documentatIOn was produced to support the contentIOn that the decIsIOn to effect transfers/reassIgnments of such a substantIal proportIOn of the Peel- York Ambulance Officers ongmated wIth Mr Armstrong Both partIes agreed that Mr Hardy had used threats and mtImIdatIOn wIth Ambulance Officers Mr Armstrong's eVIdence that Mr Hardy's conduct of that nature was one of the matters whIch lead to the termmatIOn of hIS employment, was not dIsputed We gather that at least some of the Ambulance Officers had complamed about Mr Hardy's conduct toward them NeIther party suggested that Mr Hardy was a relIable source of mformatIOn As a result, we find the statements Mr Virgm and Mr Wheelans attnbuted to Mr Hardy as consIstent WIth Mr Hardy attemptmg to protect hImself from cntIcIsm for an exerCIse of authonty and error of Judgment that he ImtIated and was about to backfire on hIm as they are wIth the possIbIlIty that Mr Armstrong had requested the mItIatIOn of the transfers The statements attnbuted to Mr Hardy under all the CIrcumstances are Just as consIstent WIth the possIbIlIty that Mr Hardy was mIsleadmg the Ambulance Officers as to Mr Armstrong's mvolvement, as they are wIth the possIbIlIty that he was tellIng the truth We conclude that ultImately there was no cogent and convmcmg eVIdence that Mr Armstrong ImtIated the transfer/reassIgnments whIch became the subject of the February 15 1993 gnevances It would appear that Mr Clarke's remarks m hIS memo to Mr Bates (Ex 23) Management should not be held back from makmg these moves due to havmg to explam to the staff what our ratIOnal (SIC) IS and be subjected to mqUIres (SIC) from Semor Management, after phone calls from umon members not followmg the cham of command We are trymg desperately to ensure the ambulance serVIce IS runmng effectIvely and has well tramed knowledgeable staff that are able to respond to all emergencIes m all Peel-York areas 8 and the charactenzatIOn thereIn of Officers' ObjectIOns to transfers based wholly or In part on compatIbIlIty wIth other agencIes, hospItal staff and partners as "excuses" whether attnbutable to Mr Hardy or not, fuel the bargaInIng UnIt's dIStruSt of management's motIves respectIng the transfers/reassIgnments However they are as consIstent WIth Mr Clarke wantIng to JustIfy actIOns by one of hIS ServIce Managers for whose actIOns he was responSIble In the absence of the full facts In order to "save face" as they are wIth Mr Clarke and by extensIOn, Mr Armstrong, beIng resentful of the Ambulance Officers' commUnICatIOn wIth the MinIster's office Mr Armstrong's InItIal eVIdence was that he first became aware of the transfers/ reassIgnments In early February 1993 when he receIved a telephone call from Mr Bates who was callIng to follow up on Mr Clarke's January 28 1993 Memo (Ex 23) At another pOInt In hIS eVIdence he saId he first became aware of the transfers/reassIgnments when Mr Clarke told hIm about them, after Mr Clarke had been contacted by Mr Bates Mr Armstrong said at yet another pOInt In hIS eVIdence that he became aware ofMr Clarke's Memo to Mr Bates only when he receIved a telephone call from Mr Bates Mr Clarke's eVIdence was that clencal staff put a copy of any correspondence to do wIth a MinIstry SerVIce Into Mr Armstrong's basket He also saId that It was common for Mr Armstrong not to "cc" hIm letters on Important MinIstry Issues He acknowledged that It was possIble that Mr Armstrong could have been aware of the transfers/assIgnments before he became aware of them WhIle Mr Armstrong's eVIdence wIth respect to exact or even approxImate tImes at whIch certaIn key events occurred was at tImes Incorrect and at other tImes vague In all cases when a specIfic and probably more correct date was put to hIm, he dId not dIspute the suggested dates and apologIzed for hIS mIsstatement and lack of specIfic recall The events on whIch he was beIng examIned In 1998 occurred some five years earlIer In early 1993 and he dId not testIfy from notes to refresh hIS memory Although It IS possIble that he was beIng delIberately vague In an effort to 9 dIsgUIse that he had been aware of transfers/reassIgnments and/or the staff's phone- In and letter-wntIng efforts pnor to January 28 1993 It IS Just as possIble that he dId not keep notes regardIng these matters, and that he learned of the phone-In and letter-wntIng no earlIer than January 28 1993 or shortly thereafter The umon also urged that lIttle credence should be gIven to Mr Armstrong's and Mr Clarke's eVIdence as a whole allegIng that they had conspIred to coordInate theIr eVIdence In order to cover up antI-umon actIvItIes We heard In eVIdence from Mr Clarke that he had not dIscussed Mr VirgIn's February 20 1993 letter to Mr Armstrong (Ex 6) "In detaIl" wIth Mr Armstrong, although they had "probably" dIscussed some of the Issues In those letters The eVIdence dId not establIsh when that "probable" dIscussIOn occurred, 1 e at the tIme It was wntten, or In the course of the heanng, or what Issues were dIscussed and what was saId about the Issues Mr Clarke agreed that he and Mr Armstrong had dIscussed the Issues raised In Ex 6 since the hearing had begun, not-yt,ithstanding that they yt,ere the subject of an arbitration hearing He also saId that he and Mr Armstrong had dIscussed "some of the Issues In relatIOn to meetIng tImes" AgaIn, the eVIdence dId not establIsh whIch Issues and whIch meetIng tImes and what they said to one another about the Issues and when they dId so Mr Armstrong said that he had not dIscussed hIS eVIdence wIth anyone except counsel and demed havIng "dIscussed eVIdence" wIth Mr Clarke Mr Armstrong was not asked whether and If so when he had dIscussed Ex 6 wIth Mr Clarke and what was said Mr Armstrong said that he and Mr Clarke had "dIscussed dates and IndIVIduals beIng called" He dId not speCIfy (nor was he asked to) whIch dates and/or events he had dIscussed wIth Mr Clarke and whIch "IndIVIduals beIng called" he was refernng to Only Mr Armstrong and Mr Clarke were called to gIve eVIdence for the employer Mr Armstrong said he "dId not recall" dISCUSSIng documents wIth Mr Clarke pnor to the heanng or In the four days precedIng the days he gave hIS eVIdence 10 We find the eVIdence respectIng cross-consultatIOn and "shanng" of eVIdence as between Mr Armstrong and Mr Clarke somewhat dIsturbIng WItnesses to a heanng are to be dIscouraged from dISCUSSIng theIr eVIdence wIth one another In order to protect the Integnty of theIr eVIdence 1 e the credIbIlIty of theIr eVIdence and the weIght It can be accorded, In order to enable the adjudIcators to do fairness to the partIes based on theIr findIngs of fact When one wItness acknowledges some dIscussIOn of even aspects of hIS eVIdence wIth another wItness as Mr Clarke dId, wIthout IndIcatIng clearly whether thIS occurred at the tIme of the events or In the course of the heanng, or both, as well as what the wItnesses saId to one another concerns are raised as to the weIght to be gIven theIr eVIdence In general When the other wItness demes any dIscussIOn of eVIdence as Mr Armstrong dId, but IS not confronted by the exact eVIdence of the other WI tness on the subJ ect, further concerns are raIsed as to whether dIscussIOns dId In fact take place between wItnesses WIth a VIew to deCeIVIng the panel When the other wItness "does not recall" but does not specIfically deny dISCUSSIng documents wIth the other wItness pnor to the heanng or In the four days precedIng the days he gave hIS eVIdence as Mr Armstrong dId, doubts are raIsed as to the accuracy of hIS memory If not hIS honesty That beIng said, Mr VirgIn acknowledged that he had been dISCUSSIng the "ShIft shuffle" wIth Mr GalIna In the hall outsIde the heanng room He saId that he could not prevent bargaInIng umt members from dISCUSSIng matters wIth hIm We accept hIS explanatIOn, but are oblIged to entertaIn sImIlar concerns as to the weIght to be gIven hIS eVIdence as well for sImIlar reasons Weare not prepared to dIsregard the eVIdence of eIther Mr VirgIn, Mr Armstrong and Mr Clarke on the basIs of the eVIdence we heard regardIng theIr dIscussIOns SUSpICIOUS cIrcumstances and doubts are not sufficIent to enable us to conclude that an attempt at deceptIOn has occurred by eIther party As the eVIdence dId not establIsh clearly the tIme of the dIscUSSIOns between Mr Clarke and Mr Armstrong that Mr Clarke 11 acknowledged, and some detaIl of each dIscussIOn, whIch mIght more clearly lead to the Inference that they colluded and attempted to deceIve the panel we are unable to draw that conclusIOn Mr VirgIn was unable to remember when he and Mr Armstrong first had contact over the Issue of transfers/reassIgnments It was not In dIspute that the transfers/ reassIgnments InItIally scheduled for February 1 1993 were rescheduled to take effect March 1 1993 The eVIdence dId not establIsh who effected that reschedulIng It IS lIkely that someone In a posItIOn of management effected It Mr Armstrong said that he next became Involved wIth the transfers/ reassIgnments when he receIved a faxed copy of an E-maIl from SpecIal AssIstant Peter Block to Branch AssIstant DIrector Malcolm Bates askIng hIm to look Into the matter He dId not IdentIfy the date on whIch he receIved the faxed E-maIl EIther he or Mr Clarke receIved the names of Ambulance Officers who had receIved notIficatIOn that they would be transferred/reassIgned Mr Armstrong's and Mr Clarke's recall ofMr Armstrong's call to Mr Hardy was substantIally the same Mr Armstrong and Mr Clarke spoke wIth Mr Hardy on the speaker phone and revIewed the CIrcumstances surroundIng the transfer of each of the three Officers and In each case concluded that Mr Hardy had not followed the cntena, Both Mr Armstrong and Mr Clarke saId that dunng that speaker phone conversatIOn, Mr Armstrong told Mr Hardy to hold the reassIgnments untIl further notIce We find the mInor dIfferences between Mr Armstrong's and Mr Clarke's recall of the conversatIOn (e g whether Ms Kerngan was present wIth Mr Hardy dunng the call) suggest that there was no collusIOn regardIng the substance of the conversatIOn Mr Armstrong recalled that thIS conversatIOn took place on February 9 or 10 1993 However In VIew of hIS frequent acknowledgment of error respectIng dates we must consIder the possIbIlIty that he was mIstaken, 12 Mr Clarke saId that after he wrote the January 28 1993 Memo (Ex 23) he next had contact wIth Mr Armstrong when they dIscussed hIS Memo and on that occaSIOn Mr Armstrong telephoned Mr Hardy January 28 fell on a Thursday m 1993 February 1 fell on a Monday m that year Smce the transfers/reassIgnments were ImtIally to be Implemented on February 1 1993 and smce the Umon commenced ItS phone-m and letter-wntmg actIOn wIthm a week of receI pt of the wntten notIces and smce Mr Bates telephoned Mr Clarke about them on January 28 1993 and m all probabIlIty mdIcated to Mr Clarke that he expected faIrly prompt actIOn from RegIOnal Office regardmg the concerns raIsed m the bargammg umt members' phone calls It seems more lIkely than not that Mr Armstrong receIved Mr Bates' phone call before February 1 1993 We therefore conclude on the eVIdence before us and on balance of probabIlItIes that Mr Armstrong learned of the phone-m and letter-wntmg concernmg transfers/ reassIgnments on or wIthm a few days of January 28 1993 eIther as a result ofrevIewmg Mr Clarke's Memo to Mr Bates (Ex 23) mdependently ofMr Clarke (as a result of clencal staff havmg placed It m hIS mallbasket) or from Mr Clarke dIrectly after Mr Armstrong had receIved a telephone call from Mr Bates possIbly on January 29 1993 whIch drew hIS attentIOn to the January 18 1993 Memo and that eIther Mr Armstrong, Mr Clarke and/or Mr Hardy postponed the transfers/reassIgnments as a result of Mr Bates' mqUInes shortly before or on Monday February 1 1993 Mr Clarke said that after the call on speaker phone to Mr Hardy Mr Armstrong handled the matter of statIOn rotatIOns The letters to the Mimster whIch were submItted m eVIdence (Ex 18) set out the personal and professIOnal reasons of those Officers for ob] ectmg to the proposed transfers/reassIgnments We conclude from the cancellatIOn of the transfers/reassIgn-ments that theIr concerns were ultImately taken very senously by the Mimster's office and by Mr Armstrong 13 Mr VirgIn saId that dunng the weekend of February 13 - 14 1993 ShIft Manager Doug Johnson saId to an Ambulance Officer In the presence of three other Ambulance Officers "If they're gOIng to complaIn about every lIttle thIng, then we'll get them on every lIttle thIng" However Mr VirgIn dId not hear thIS alleged statement, and no dIrect wItness to thIS alleged statement gave eVIdence as to what he or she heard ThIS IS second-hand eVIdence of a statement by a member of management whIch mIght otherwIse constItute eVIdence of an admIssIOn agaInst Interest and IntentIOn, at least on the part of the speaker to effect repnsals agaInst the bargaInIng umt However as It IS second-hand, 1 e hearsay we cannot gIve It the weIght of truth We accept It, however as eVIdence of what Mr VirgIn and other Ambulance Officers belIeved was behInd the events that were to follow On February 15 1993 about one hundred gnevances pertaInIng to transfers/ reassIgnments were filed (see preamble to Memoranda Ex 15 and 16) Mr VirgIn belIeved that on February 15 1993 he spoke to Mr Armstrong about the concerns regardIng the transfers/reassIgnments and that that day he drafted and forwarded to Mr Armstrong the folloWIng terms In the form of a Memorandum of Agreement (Ex 15) 1 To submIt the matter of shIft/statIOn/platoon changes wIthIn Peel- York and DIstnct Ambulance to the Mimstry of Health Employee RelatIOns CommIttee (MERC) for reVIew and hopefully for resolutIOn 2 To hold In abeyance all gnevances related to thIS matter untIl the members of the MInIstry of Health Employee RelatIOns CommIttee (MERC) determIne the Issues are eIther resolved or are unresolvable through thIS avenue 3 To accept thIS Memorandum of Agreement as the tIme waIver set out In ArtIcle 27 15 of the CollectIve Agreement 4 To hold In abeyance any Involuntary changes of shIft/statIOn/platoon untIl the MERC members determIne the Issue are eIther resolved or are unresolvable through thIS avenue 14 From Mr Virgm's reference to havmg spoken to Mr Armstrong about thIS matter after he had spoken to "ImmedIate management" we conclude that he meant that he spoke to Mr Armstrong after he spoke to Mr Hardy Mr Armstrong recalled havmg met wIth Mr Hardy and Ms Kerngan and wIth Mr Virgm and Mr Wheelans on the same day and that those meetmgs occurred "around February IS" 1993 He recalled that at the meetmg wIth the umon representatIves on the same day the representatIves dIscussed theIr concerns regardmg the transfers and the gnevances Mr Armstrong wrote a Memo to Mr Hardy dated February 16 1993 (Ex 25) whIch stated Please be advIsed that all statIOn reassIgnments of fulltIme employees wIll reqUIre my pnor approval untIl further notIce Should you have any questIOns m thIS regard please contact my office We conclude that on February 15 1993 Mr Armstrong met m person wIth Mr Hardy possIbly m Ms Kerngan's presence and revIewed the CIrcumstances surroundmg the proposed transfer/reassIgnment of each of the Officers and determmed that m each case Mr Hardy had not properly applIed the cntena for transfer /reas SI gnm ent Mr Armstrong saId that Mr Hardy had been upset and angry when he was unable to JustIfy the transfers On February 18 1993 Mr Armstrong created a memo to Branch AssIstant DIrector Malcolm Bates (Ex 26) whIch stated I am m receI pt of the E-maIl from Peter Block regardmg PeellY ork Ambulance ServIce As you know we are now m receIpt of over 100 gnevances m regard to thIS Issue Therefore thIS Issue should not be brought to the Branch ERe as It would be m contraventIOn of the polIcIes Further It IS the exclusIve nght of management to assIgn the work and therefore thIS IS not the proper subject of a gnevance However It would be mappropnate for management to move staff wIthout reason or as a dIscnmmatory practIce Therefore I have suspended all statIOn reassIgnments untIl we can meet wIth the umon to dISCUSS the detaIled concerns 15 I dId address thIS Issue at the recent local ERC and felt we had a clear understandIng of the process to be followed for statIOn reassIgnments Should It be dIscovered that any employee has been reassIgned wIthout reasonable cause they wIll be returned to theIr prevIOus statIOn Mr Armstrong was unable to recall In eVIdence the ERC meetIng at whIch he had addressed transfer/reassIgnments We conclude from hIS Memo that on February 18 1993 he had "suspended" but had not "cancelled" the proposed reassIgnments On February 20 1993 Mr VirgIn wrote the folloWIng letter (Ex 6) to Mr Armstrong Re ShIft Changes - Memorandum of Agreement Dear Mr Armstrong Attached IS a revIsed verSIOn of the Memorandum of Agreement submItted February 15 1993 Mr Wheelans has not been avaIlable to sIgn It but agrees to accept It WIth the sIgnature from Local 311 and wIth your sIgnature as a basIs for ImplementatIOn In order to postpone the Second Stage actIvatIOn of the gnevances and to suspend the March 1 1993 ShIft changes, we would need to have your sIgned copy returned by fax to as promptly as possIble Upon receIpt of the Agreement we wIll notIfy OPSEU to suspend the gnevance procedure Our VIew regardIng a prelImInary dIscussIOn IS that there IS ment In keepIng It small --- more specIfically to Include only Mr Wheelans for Local 228 myself for Local 311 and yourself for the Mimstry We would value your Input on thIS perspectIve If you wIsh to proceed wIth the Memorandum of Agreement, Mr Wheelans and I are avaIlable to meet wIth you Thursday February 25 1993 at 9 a,m at Tony's Restaurant, 110 Woodbndge Avenue Woodbndge (lslIngton and Highway #7) Our agenda relevant to the ShIft changes would Include the folloWIng (1) Threats IntImIdatIOn and antI-umon actIvIty (2) Proper role of schedulIng (3) Misuse/abuse of schedulIng (4) Longterm preventIOn of abuse of schedulIng SIncerely 16 K VirgIn PresIdent, Local 311 We conclude on balance of probabIlItIes, that the Memorandum of Agreement enclosed wIth the above letter was Ex 16 whIch contaIned the folloWIng provIsIOns 1 To commence negotIatIOn between the Uillon (Local 228 and Local 311) and the Employer (the RegIOnal Manager Mr K Armstrong) regardIng the matter of shIft/statIOn/platoon changes wIthIn the Peel-York and DIstnct Ambulance ServIce WIth a VIew to resolvIng the dIfferences 2 To hold In abeyance all gnevances related to thIS matter untIl the partIes through the negotIatIOns set out In ArtIcle 1 above determIne the Issues are eIther resolved or are unresolvable through thIS avenue 3 To accept thIS Memorandum of Agreement as the tIme waIver set out In ArtIcle 27 15 of the CollectIve Agreement 4 To hold In abeyance any Involuntary changes of shIft/statIOn/platoon untIl the MERC members determIne the Issues are eIther resolved or are unresolvable through thIS avenue 5 Upon wntten notIce by eIther party to the other fifteen (15) days after receIpt of such wntten notIce thIS agreement shall become null and vOId, and the tIme waIver specIfied In ArtIcle 3 above shall be rescInded upon the fifteenth (15th) day and whIch was sIgned by Uillon representatIves and dated February 21 1993 We conclude that between February 15 and 20 1993 Mr Armstrong and Mr VirgIn had some dIscussIOn regardIng how to proceed wIth the gnevances and the Issue of transfers/ reassIgnments and that Mr VirgIn concluded that Mr Armstrong found hIS first draft Memorandum of Agreement (Ex 15) unacceptable and submItted a second draft (Ex 16) Although Mr Armstrong said that he negotIated the above draft Memorandum of Agreement (Ex 16) wIth the Uillon and that It reflects the "agreement In pnncIple" that the partIes reached, he said that he rejected It He said that he wrote a 17 letter dated February 22 1993 to Mr VirgIn (Ex 12) and enclosed a thIrd draft Memorandum of Agreement (Ex 11) The letter stated Please find attached the sIgned letter of Memorandum of Agreement regardIng the statIOn re-assIgnment Issues By copy of thIS letter I am InstructIng the management ofPeellYork to postpone the ShIft changes scheduled for March 1 9193 untIl thIS Issue IS resolved Also would you have Mr Wheelans sIgn the agreement and return a copy to my office The arrangements for the February 25 1993 meetIng are acceptable and I look forward to a qUIck resolutIOn of thIS Issue The eVIdence dId not establIsh clearly whether the terms of the folloWIng Memorandum of Settlement (Ex 11) were negotIated between Mr Armstrong and the umon representatIves before February 22 1993 when the above letter was wntten, or on February 25 1993 when Mr Armstrong met wIth Mr VirgIn and Mr Wheelans at Tony's Restaurant However there IS no dIspute that they agreed to the folloWIng terms MEMORANDUM OF SETTLEMENT BETWEEN O,P S E U GRIEVOR Ross VirgIn, Steve Wheelans et all (SIC) AND THE CROWN IN RIGHT OF ONTARIO EMPLOYER (THE MINISTRY OF HEALTH) PeellY ork DIstnct Ambulance In respect of the gnevances dated February 15 1993 the partIes hereto agree to the folloWIng terms In full and final settlement 1 ) It IS agreed that It IS the exclusIve nght of management to determIne orgamzatIOn and assIgnment of work 2 ) It IS agreed that all statIOn a (SIC) crew changes scheduled for March are cancelled 18 3 ) It IS agreed that other than the re-IocatIOn of a ShIft supervIsor to ThornhIll and the subsequent reqUIrement to re-Iocate a staff member to make room for thIS change there wIll be no further crew or statIOn changes untIl 1 ) a procedure IS developed by management In consultatIOn wIth the staff to ensure a faIr and eqUItable system IS utIlIzed when these changes are made In the future 11 ) that once thIS procedure IS developed It wIll be dIscussed at a local ERC meetIng for formal Input 111 ) It wIll then be forwarded to the Branch ERC for dIscussIOn IV ) once approved by the DIrector the procedure wIll be forwarded to all Mimstry serVIces 4 ) Should It become necessary to make any changes In the Intenm they wIll be dIscussed wIth the umon and employees pnor to beIng Implemented In consIderatIOn of the above terms the Gnevors and the Umon agree to wIthdraw the gnevances It IS understood and agreed that thIS settlement IS made wIthout prejUdICe and precedent to any posItIOn the partIes may take In respect to the InterpretatIOn, applIcatIOn or admInIstratIOn of the CollectIve Agreement and the Crown employees CollectIve BargaInIng Act or to such posItIOn In respect to any other matters between the partIes ThIS agreement wIll be ratIfied by the gnevors wIth (SIC) 45 days from February 25 1993 AssIstant RegIOnal Manager Bryan Clarke's eVIdence In cross-eXamInatIOn was that he and Mr Armstrong had dIscussed Mr Armstrong's letter to Mr VirgIn (Ex 12) and that he Mr Clarke had been aware that Mr Armstrong was gOIng to meet wIth the umon representatIves on February 25 1993 The eVIdence dId not establIsh whether Mr Clarke was aware of the February 25 1993 meetIng on or before February 22 1993 On February 22 1993 Mr Clarke conducted an InSpectIOn of the SIX Peel- York statIOns Mr Hardy accompamed hIm In 1993 February 22 fell on a Sunday 19 The eVIdence dId not establIsh the length or tIme of hIS InSpectIOn, or the reason Mr Clarke chose that partIcular date He gave these reasons for dOIng the InSpectIOn a) It was part of hIS responsIbIlIty as AssIstant RegIOnal Manager b) he tnes to Inspect the statIOns at least tWIce a year c) there had Just been a competItIOn for Manager of Peel-York Ambulance ServIces and ActIng Manager Fred Hardy "had not been successful" d) It was hIS role to assure staff that the ServIce was stIll beIng provIded appropnate management In cross-eXamInatIOn, when asked whether he had concerns about the ServIce Mr Clarke replIed that Mr Hardy was dIsgruntled and was perhaps not well He said that he could not recall whether he had dIscussed hIS concerns about Mr Hardy wIth Mr Armstrong Mr Clarke said that he tnes to Inspect the Peel-York statIOns tWIce a year and thought that he Inspected them about 10 tImes sInce becomIng AssIstant RegIOnal Manager In charge of them The only eVIdence to cast doubt on Mr Clarke's eVIdence regardIng hIS past InSpectIOns In Peel-York was Mr VirgIn's statement that he had not been aware ofMr Clarke dOIng an InSpectIOn prevIOusly and that the Ambulance Officers would have advIsed hIm of one As Mr Clarke could have done hIS InSpectIOns at tImes when Mr VirgIn was not present, and as the InSpectIOns could have been uneventful and resulted In no changes whIch Impacted upon the Ambulance Officers such that none of them had any reason to advIse Mr VirgIn of the InSpectIOn, we accept Mr Clarke's eVIdence In chIef Mr Clarke said that he dId not dISCUSS hIS IntentIOn to make hIS InSpectIOn on February 22 1993 of the Peel-York Ambulance ServIce statIOns WIth Mr Armstrong, CItIng hIS own responsIbIlIty for InSpectIOns as AssIstant RegIOnal Manager and that Mr Armstrong was extremely busy However In cross- eXamInatIOn, when asked whether Mr Armstrong knew that he was gOIng to do the InSpectIOn on February 22 1993 he replIed "I would assume so" His reasons for 20 so assumIng were not explored In eVIdence Mr Armstrong saId that he first learned ofMr Clarke's February 22 1993 InSpectIOn at an ERC meetIng, possIbly one In March, 1993 at whIch tIme Mr Clarke showed Mr Armstrong hIS Memo to John Cunnane (Ex 21) then ActIng Peel-York ServIce Manager Mr Clarke's eVIdence was that on hIS InSpectIOn he found "nothIng out of the ordInary" at the Heart Lake ThornhIll and Lynch-Brampton statIOns At the W oodbndge statIOn, where Mr VirgIn IS statIOned, he found a rollaway cot In a locked supply room, and another cot In the locker room He saId he had not seen them on prevIOUS InSpectIOns Mr VirgIn said that the only "rest facIlItIes" at the W oodbndge statIOn had been 2 bunk beds located In the locker room, and that the two "cots" (he later clanfied that he used the terms "cots" and "beds" Interchangeably) had been on the premIses sInce the serVIce had occupIed the new statIOn Mr Clarke said that the rollaway cot In the locked supply room caused hIm "the gravest concern" because only management staff had access to that room Mr Clarke saId that at RIchmond Hill statIOn he found 2 bunk beds In a umt off the garage whIch he had seen before and whIch were to be removed when renovatIOns were ultImately done He saId that he "probably" requested Mr Hardy to remove them on February 22 1993 although, he saId, he would have been happy If they were removed when the renovatIOns were done Mr Clarke dId not explaIn why he ordered Mr Hardy to remove them, havIng IndIcated that he had seen them before and apparently had not ordered them removed and havIng IndIcated that he would have been happy If they were removed when the renovatIOns were done We conclude from Mr Clarke's eVIdence that he verbally dIrected Mr Hardy to remove the beds/cots that he saw on February 22 1993 and confirmed wIth Mr Hardy that the staff was not to use the pull-down beds In the walls of the Bramalea statIOn, whIch was formerly a firehall and whIch IS Peel-York Ambulance ServIce "headquarters" and the locatIOn ofMr Hardy's office Mr Clarke dId not Issue a wntten admInIstratIve dIrectIve re hIS InSpectIOn untIl March, 1993 (Ex 21) 21 We gather from Mr Clarke's and Mr Armstrong's eVIdence that pnor to February 25 1993 IncludIng February 22 1993 they were concerned about Mr Hardy's performance and were contemplatIng hIS removal from hIS posItIOn before the successful candIdate Ms Fowler replaced hIm We find the tImIng of the InSpectIOn of the Peel-York statIOns as consIstent WIth theIr concerns about Mr Hardy's performance and a desIre to assess hIS performance as reflected In the condItIOn of the statIOns as It IS WIth an IntentIOn to look for reasons to retalIate agaInst the umon membershIp for havIng "gone over theIr heads" and engaged In a phone-In and letter-wntIng actIOn to the Mimster's office regardIng the proposed transfers/reassIgnments despIte Mr Clarke's defensIve remarks In hIS January 28 1993 Memo to Mr Bates (Ex 23) above and hIS somewhat vague statement of hIS reasons Although we find some ofMr Clarke's remarks In that Memo cntIcal of the umon membershIp's actIOns on January 28 1993 he dId not have a full apprecIatIOn of the extent to whIch Mr Hardy had faIled to satIsfy the cntena for reasonable and JustIfiable transfers whIch were In the best Interests and busIness Interests of the SerVIce and why the umon membershIp followed the course that It dId, Mr Clarke's eVIdence regardIng the "rest facIlItIes" whIch he observed on February 22 1993 suggests that he dId not observe the complete Inventory of "rest facIlItIes" actually present In each of the statIOns as descnbed by Mr VirgIn, Mr Wheelans Mr Hall and Mr House and suggests that he was not lookIng for these Items, and sImply chanced upon the ones he dId at the W oodbndge and RIchmond Hill statIOns As prevIOusly stated, the eVIdence ofMr Clarke and Mr Armstrong that no other Mimstry-operated Ambulance ServIces permIt the presence of beds and cots In the statIOns and that beds were removed from the statIOns In the mId-70's or early 80's was not senously challenged We find that It was on thIS understandIng of Mimstry polIcy and practIce regardIng rest eqUIpment In the statIOns that Mr Clarke proceeded to gIve dIrectIOns on February 22 1993 and thereafter 22 On February 25 1993 Mr Armstrong met wIth Mr VirgIn and Mr Wheelans at Tony's restaurant Mr VirgIn and Mr Wheelans had prepared a presentatIOn whIch they planned to delIver and dISCUSS wIth Mr Armstrong, of theIr VIews as to why It was not In the publIc Interest as well as the Interests of the Ambulance Officers to Implement statIOn and partner reassIgnments on a large-scale From Mr VirgIn's and Mr Wheelans' perspectIve the meetIng was too short, and had been cut short by Mr Armstrong, who seemed ImpatIent and not Interested In what they had to say because he had advIsed them that he was gOIng to "cancel" Mr Hardy's statIOn and partner reassIgnments We conclude on the eVIdence that Mr Armstrong dId not thInk that lIstemng to Mr VirgIn's and Mr Wheelans' pOInts was an efficIent use of hIS tIme on that occaSIOn, In part because he had canceled the reassIgnments and In part because he had another meetIng to attend that day wIth Mr Hardy whIch would result In Mr Hardy's suspenSIOn As the eVIdence dId not establIsh that at that meetIng Mr Armstrong dIsclosed to Mr VirgIn and Mr Wheelans hIS other meetIng and hIS plans for Mr Hardy and for Mr Armstrong to have done so would have been IndIScreet, unprofessIOnal and would have vIOlated Mr Hardy's nght to confidentIalIty we conclude that he dId not make that dIsclosure No useful purpose would be served by determInIng the actual length of the meetIng, whIch we conclude was too long for Mr Armstrong and too short for the umon representatIves We find, on the eVIdence provIded, that at the February 25 1993 meetIng, probably toward the end of the meetIng, Mr Armstrong was ImpatIent and abrupt wIth Mr VirgIn and Mr Wheelans and probably conveyed to them In no uncertaIn terms that In hIS VIew statIOn and partner reassIgnments were matters exclusIvely wIthIn the area of management nghts and that If management determIned that penodIc large-scale staff reassIgnments e g every SIX months, were In the Interests of the publIc and the Ambulance ServIce they would be Implemented We conclude that Mr Armstrong probably reqUIred a wntten acknowledgment from the umon that "It IS the exclusIve nght of management to determIne the orgamzatIOn and 23 assIgnment of work" and, In exchange for that acknowledgment, agreed to cancel as opposed to postpone the transfers/reasslgnments that were the subject of gnevances, and set out a process to develop a procedure In consultatIOn wIth staff wIth the IntentIOn of ensunng a fair and eqUItable system for further crew and statIOn changes We conclude that Mr Armstrong saId to the umon representatIves that as the ImmedIate subJ ect matter of the transfer/ reassIgnment gnevances was beIng wIthdrawn, the gnevances could not succeed and should therefore also be wIthdrawn Mr VirgIn and Mr Wheelans reCeIVIng no reassurance from Mr Armstrong that further wholesale transfers would not be forthcomIng, felt less than satIsfied In sIgmng a document contaInIng para, 1 (Ex 11 P 15-16 above) In order to obtaIn the cancellatIOn of the transfers/reassIgnments then scheduled for March 1 1993 and beIng oblIged to wIthdraw the gnevances Mr VirgIn expressed hIS dIssatIsfactIOn In eVIdence We find that Mr Armstrong probably set out to Mr VirgIn and Mr Wheelans the terms he would find acceptable and "sIgn off' In a Memorandum of Agreement, and told them eIther that It was In a letter whIch he had already sent, or that he would draft It We conclude that at the February 25 meetIng, Mr Armstrong Intended to present hIS VIews In an a manner that would be perceIved as authontatlve and "In control" 1 e management-lIke whIch we find reasonable for someone In a posItIOn of management, and that Mr VirgIn and Mr Wheelans, not entIrely unreasonably found hIS manner and statements somewhat offensIve dIsrespectful and threatemng We conclude that Mr Wheelans and Mr VirgIn left the February 25 1993 meetIng wIth the concern that notwIthstandIng the "agreement In pnnclple" Mr Armstrong Intended to Impose large-scale statIOn and transfer reassIgnments as a matter of polIcy on a semI-annual basIs We conclude that they left the meetIng wIth those concerns In part because Mr VirgIn accepted Mr Hardy's statements that Mr Armstrong had been InItIally responsIble for the statIOn and transfer reassIgnments and Mr Hardy's ImplIed threat that because Mr Armstrong had heard from the 24 MinIster's officer there would be repnsals In part because of theIr belIef that Mr Armstrong was "the powers that be" carrYIng out the threat to " get them on every 11 ttl e thIng " whIch Mr VirgIn belIeved had been made by Mr Johnson, and In part because ofMr Armstrong's ImpatIence and abruptness and the unpleasant messages he was delIvenng to them The eVIdence dId not establIsh whether the gnevors or the UnIon became aware ofMr Armstrong's Feb 16 Memo to Mr Hardy (Ex 25) IndIcatIng that further statIOn reassIgnments would reqUIre Mr Armstrong's approval when It was created, or that the proposed transfers/reassIgnments affectIng about 30 officers were beIng cancelled, before February 25 1993 We conclude that despIte the preparatIOn and forwardIng by the UnIon of draft Memoranda of Settlement (Ex 15 and 16) to Mr Armstrong, the cancellatIOn of the proposed transfers/reassIgnments was unfortunately not clearly communIcated to the UnIon representatIves (and presumably to the IndIVIdual Officers) untIl February 25 1993 ThIS left about one thIrd of the Ambulance Officers In Peel-York In a state of uncertaInty for about 4 weeks It was not In dIspute that Mr Armstrong's draft Memorandum of Settlement (Ex 11) was sIgned by Mr Armstrong and vanous (though not all) the Ambulance Officers on March 17 and 19 and Apnl 2 1993 and formed the basIs of a "settlement" of the February 15 1993 gnevances whIch are not before us but form a background to the dIspute whIch IS before us We understand that large-scale statIOn and partner reassIgnments have not occurred In Peel-York SInce 1993 There was no eVIdence that there IS a pressIng busIness or admInIstratIve need for them Mr Armstrong attnbuted responsIbIlIty for what the partIes perceIve as an Impasse on thIS Issue to what he alleges IS the UnIon representatIves' contInued unwIllIngness to accept that management has the exclusIve nght to assIgn the workforce There IS InsufficIent eVIdence before the panel for It to make any determInatIOn as to who or what IS responsIble except that both Mr VirgIn and Mr Armstrong hold very strong 25 VIews on the subJ ect We gather from the eVIdence that currently reassIgnments are based on patIent care expenence/traInIng needs (both physIcal and geographIcal) statIOn complement reqUIrements, and good partner matches and are by and large done on a voluntary and cooperatIve basIs We understand that on February 25 1993 Mr Hardy was suspended as ActIng Manager and we assume that Peel-York Ambulance Officers became aware of that fact shortly thereafter We conclude on the eVIdence that the some of the Ambulance Officers would have taken some relIef from that news We find, on balance of probabIlItIes that the Ambulance Officers who had been Informed that they had been reassIgned to dIfferent statIOns and/or partners ImtIally to take effect February 1 and subsequently to take effect March 1 1993 were greatly relIeved to receIve notIce of the cancellatIOn, but that they were somewhat annoyed that the cancellatIOn was commumcated to theIr representatIves only 4 (or less) days before the reassIgnments were to take effect Weare unable to conclude on the eVIdence that Mr Armstrong reJ ected the umon' s Memoranda of Agreement (Ex 15 and 16) because he wanted the gnevances to proceed We conclude that he rejected them because for reasons not made clear In eVIdence he reqUIred a wntten acknowledgment by the umon that management had the nght to assIgn the workforce and the umon' s agreement to wIthdraw the gnevances as well as an agreed-to procedure to reach agreement as to the cntena whIch would be followed In determInIng whether and when reassIgnments would occur before or as a condItIOn of cancelIng the reassIgnments On March 4 1993 Mr Clarke wrote the folloWIng Memo (Ex 21) to John Cunnane RE SERVICE VISIT - FEBRUARY 22 1993 It was wIth great pleasure I had a chance to VISIt the Peel York Ambulance ServIce WIth the ActIng Manager Mr Fred Hardy I found the folloWIng bases neat and tIdy Heart Lake Brampton, ThornhIll and RIchmond Hill 26 ThIS memorandum note wIll confirm our dIscussIOns on vehIcle cleamng, sexual harassment polIcIes, harassment In the workplace polIcIes the need for second mechamc the need for actIOn on outstandIng suspenSIOns and General Management pnncIples FIve Issues that reqUIre ImmedIate attentIOn are lIsted Three are dIrectly related to beds as your serVIce does not have standby or on- call staff requmng mght beddIng, therefore please remove the folloWIng a) bed found In crew quarters - W oodbndge b) fold up bed found In locker- W oodbndge c) bunkbeds In RIchmond Hill StatIOn d) locker In Bramalea statIOn garage emptIed and remove e) wall cupboard to be removed at Bramalea statIOn Please confirm these Items are returned to owners and removed from premIses WIthIn 9 workIng days from receIpt of thIS letter We note In paSSIng that Mr Clarke dId not refer In eVIdence to the contents of a locker In the Bramalea statIOn whIch was to be emptIed and no other wItness spoke to that matter We Interpret Mr Armstrong's statement that Mr Clarke's Memo (Ex 21) appeared to hIm to be "consIstent WIth the polIcIes and procedures and the collectIve agreement," as meanIng that the Memo was consIstent WIth hIS, I e Mr Armstrong's understandIng that beds and cots were not permItted In Mimstry-operated statIOns SInce the mId-70's or early 80's and that removal of same would not vIOlate the Rest Penod PolIcy (Ex 5) and Art 12 1 We accept that at that pOInt Mr Armstrong "supported the actIOn" as reflected In the Memo and left to Mr Clarke the matter of removal of the Items whIch Mr Clarke had seen and whIch In hIS VIew offended the polIcy Mr Clarke delegated the responsIbIlIty to the new ActIng Manager Mr Cunnane There IS no eVIdence that on March 4 1993 when Mr Clarke wrote the memo or at the ERC meetIng when Mr Armstrong saId he first dIscussed the matter wIth Mr Clarke eIther Mr Armstrong or Mr Clarke was aware that more "rest facIlItIes" were In the vanous statIOns than Mr Clarke observed on February 22 1993 27 We find that on March 5 1993 Mr VirgIn, probably havIng become aware of the above Memo (Ex 21) because the beds In hIS statIOn, Woodbndge were IdentIfied, spoke wIth Mr Armstrong by telephone and asked hIm If he was gOIng to remove the "rest facIlItIes" from the Peel-York statIOns and that Mr Armstrong told Mr VirgIn that he was gOIng to do so There IS no eVIdence to suggest that Mr Armstrong was at that pOInt aware of the extent of the "rest facIlItIes" (see the eVIdence of Mr VirgIn, Mr Wheelans Mr Hall and Mr House) and the length of tIme that the facIlItIes had been on the premIses and In use dunng rest pen ods or that Mr VirgIn advIsed hIm of that aspect of matters In that call We therefore conclude on balance of probabIlItIes, that Mr Armstrong was mIstaken as to when he first became aware of the Issue of "rest facIlItIes" and that on balance of probabIlItIes he learned of It on March 4 or 5 1993 from readIng a copy of Mr Clarke's Memo to Mr Cunnane whIch, we find, was probably placed In hIS "In" basket by support staff As Mr Armstrong was frequently In error as to when matters both relevant and Irrelevant to thIS dIspute occurred, we conclude that thIS error was as consIstent WIth hIS poor memory of detaIl respectIng tImes and chronology as It was WIth an IntentIOn to deceIve regardIng the alleged extent of hIS Involvement wIth the enforcement of the polIcy prohIbItIng cots and beds In the Mimstry-operated statIOns The eVIdence on behalf of the umon that members of management who reported to Mr Armstrong and Mr Clarke knew of the presence of the beds cots and other "rest facIlItIes" and used them was not contradIcted by the eVIdence of any such members of management As a result, we accept that such IndIVIduals knew and used the facIlItIes contrary to the polIcy regardIng theIr presence and therefore theIr use Mr Armstrong's and Mr Clarke's eVIdence to the effect that they dId not know of the presence of beds cots and beddIng In the Peel-York statIOns and of the knowledge of members of management was also uncontradIcted We therefore 28 conclude on balance of probabIlItIes that Mr Armstrong and Mr Clarke were delIberately "kept m the dark" on the sub] ect by those who reported to them but not by Ambulance Officers who we find, stored and used the facIlItIes openly on evemngs and weekends We also conclude that prevIOUS mspectors from LIcensmg and InspectIOn Branch or RegIOnal Office eIther dId not observe any beds and cots, dependmg on the tIme of theIr mspectIOns or that they addressed the Issue of beds and cots m the statIOns wIth local ShIft Managers, rather than wIth bargammg umt members and that the matter remamed m the dIscretIOn of the ShIft Managers as to whether to contmue to permIt the beds and cots and "rest facIlItIes" to remam, and the end result was a longstandmg practIce ofpermIttmg them to remam We conclude that on February 22 1993 Mr Clarke wIth Mr Armstrong's knowledge and approval on or by March 5 1993 wIthout any pnor consultatIOn and wIthout deference to the fact of a longstandmg practIce m Peel-York pertammg to "rest facIlItIes" suddenly Imposed the Mimstry-wIde polIcy on the members of the bargammg umt We find theIr havmg done so at that tIme as consIstent WIth theIr lack of knowledge of the pnor longstandmg practIce of permIttmg beds and cots and other "rest facIlItIes" on the premIses and permIttmg theIr use for reclImng honzontally and wIth theIr confidence that they should Impose the polIcy wIthout mqumng as to the reason that the beds and cots had been m the statIOns as It IS consIstent WIth the allegatIOn that they seIzed upon the beds and cots and ordered theIr removal as a repnsal agamst the Ambulance Officers for havmg gone over theIr heads and havmg engaged m a phone-m and letter-wntmg campaign whIch resulted m the Mimster' s office havmg contacted them On March 15 1993 new Manager Grace Fowler Issued the followmg Memo (Ex 22) to Peel-York ShIft Managers Mr Clarke vIsIted the Peel-York Ambulance ServIce on February 22 1993 and noted the followmg whIch reqUIres ImmedIate attentIOn 29 a) beds/bunkbeds In crew quarters/locker rooms need to be removed and returned to owners b) locker In Bramalea StatIOn garage needs to be emptIed and removed c) wall cupboard needs to be removed at Bramalea StatIOn Please ensure the beds are removed from all statIOns and returned to owners by Thursday March 18 1993 The locker and wall cupboard are also to be removed by thIS date Thank you for your attentIOn to thIS matter Please Inform me when the above has been completed ThIS Memo broadens the dIrectIOn respectIng beds/bunkbeds from Mr Clarke's Memo to Mr Cunnane (Ex 21) whIch was confined to the beds In the W oodbndge and RIchmond Hill statIOns Ms Fowler dId not gIve eVIdence NeIther Mr Clarke's nor Mr Armstrong's eVIdence dealt wIth the content ofMs Fowler's Memo The eVIdence dId not establIsh when thIS Memo came to the attentIOn of the bargaInIng umt NotwIthstandIng thIS slIght gap In the eVIdence on March 16 1993 not havIng been advIsed In hIS March 5 1993 conversatIOn wIth Mr Armstrong that he Mr Armstrong, was leavIng the Issue of beds and cots wIth Mr Clarke Mr VirgIn wrote the folloWIng letter to Mr Armstrong (Ex 7) Re Rest FacIlItIes - Peel-York & DIstnct Ambulance Further to our telephone conversatIOn of Fnday March 5 1993 I wIsh to be sure I understand the content of our bnef dIscussIOn It IS my recollectIOn that your posItIOn IS that the ambulance statIOns are not to have rest cots on the premIses for use dunng the rest penods referred to In ArtIcle 12 1 of the CollectIve Agreement I would value a clanficatIOn or confirmatIOn of my recollectIOn I would also apprecIate a copy of any government polIcy on whIch thIS would be based For clanty I am not lookIng for the polIcy on sleepIng, but rather any polIcy whIch defines the facIlItIes whIch can be used by the staff dunng the rest penods Thankyou (SIC) for your prompt attentIOn to thIS InqUIry 30 On or about March 19 1993 Mr VirgIn receIved the folloWIng Memo (Ex 8) addressed to all staff from ShIft Manager ChnstIne Barber on the sub] ect of "BEDS/COTS" Please be advIsed, effectIve ImmedIately all eXIstIng beds/cots are to be removed from Peel-York premIses The owners of these cots have untIl Fnday March 26 1993 to remove them, after whIch tIme they wIll be donated to a chantable orgamzatIOn If unclaimed Bramalea StatIOn IS prohIbIted from USIng the bUIlt In beds In the crew quarters however these beds wIll not be removed Regards Ms Barber dId not gIve eVIdence NeIther Mr Clarke nor Mr Armstrong gave eVIdence wIth respect to the broader ambIt of Ms Barber's memorandum, whIch agaIn extended the prohIbItIOn agaInst beds and cots across the Peel-York statIOns We conclude on balance of probabIlItIes that Ms Fowler became aware ofMr Clarke's March 4 1993 Memo to Mr Cunnane (Ex 21) and of the polIcy agaInst cots and beds In the Mimstry-operated statIOns and of the presence of beds and cots and "rest facIlItIes" In each of the statIOns and, In her new status Issued a dIrectIOn to enforce that polIcy There IS no eVIdence that Mr Armstrong gave any dIrectIOn to Ms Barber or Ms Fowler to expand Mr Clarke's ImtIal InstructIOns to Mr Cunnane regardIng the beds In the W oodbndge and RIchmond Hill statIOns to the other Peel-York statIOns We accept Mr Armstrong's eVIdence that although he had left the matter of beds and cots wIth Mr Clarke he wrote back to Mr VirgIn, because Mr VirgIn had addressed hIS letter (Ex 7) to hIm On March 22 1993 Mr Armstrong wrote back to Mr VirgIn (Ex 9) Thank you for your letter regardIng rest facIlItIes at Peel York Ambulance ServIce dated March 16 1993 Please find attached ASB P & PI-56 whIch IS the rest penod polIcy 31 The other Issue you raIsed IS In regard to statIOn furmture It IS the exclusIve nght and responsIbIlIty of management to determIne what furmture wIll be allowed In the workplace (ambulance statIOn) It has been determIned by the employer that beds and cots are not to be In the workplace The serVIce Manager was advIsed to have any such furmture removed after a statIOn InSpectIOn by the AssIstant RegIOnal Manager I trust thIS responds appropnately to your letter Mr Armstrong enclosed wIth hIS letter the folloWIng polIcy (Ex 5) whIch, among other thIngs deals wIth sleepIng REST PERIODS DURING SHIFTS OF WORK PURPOSE ClanficatIOn of the term "rest pen ods In each ShIft" as applIcable In the collectIve agreement, ArtIcle 12 1 REFERENCE CollectIve Agreement 12 1 M 0 H Manual of Corporate PolIcy and Procedure 3-2-14 POLICY Rest pen ods dunng scheduled hours of work are to be STATEMENT construed as penods of InactIvIty occunng (SIC) after assIgned tasks are completed APPLICATION Managers/ AssIstant Managers of Ambulance ServIces and DIspatch ServIces ShIft Managers SupervIsors All Ambulance Officers and DIspatchers PROCEDURE Managers/AssIstant Managers of Ambulance and DIspatch ServIces are to ensure 1) all personnel In hIs/her employ are famIlIar wIth and practIce the folloWIng . dunng rest pen ods, personnel may relax In any manner wIthIn propnety yet beIng able to respond ImmedIately to any duty assIgnment . dunng rest pen ods personnel under no CIrcumstances 32 may sleep or remove Items of apparel (unIform, shoes etc) . sleepIng whIle on duty IS In contraventIOn ofM 0 R Corporate PolIcy & Procedure 3-2-14 and IS subject to dIscIplInary measures as outlIned In 3-2-14 2) a copy of thIS Ambulance ServIces P & P and a copy of the M 0 H Manual of Corporate P & P 3-2-14IS posted on all notIce boards for personnel InfOrmatIOn ShIft Managers/SupervIsors are to ensure 1) they adhere to all pOInts In thI s AS ,B P,P and M,O R Manual of PolIcy and Procedure 3-2-14 2) the personnel assIgned to theIr responsIbIlIty are famIlIar wIth and adhere to all pOInts In thIS AS,B polIcy and procedure and the M 0 H Manual Corporate P & P 3-2-14 Ambulance Officers and DIspatchers are to ensure 1) they are famIlIar wIth and adhere to thIS AS B polIcy and procedure and the M 0 R Manual of Corporate P & P 3-2-14 CONTROLS Managers/AssIstant Managers of Ambulance ServIces and DIspatch ServIces are to 1) ensure the provIsIOns outlIned In thIS PolIcy and Procedure and the M 0 H Manual of Corporate P & P 3-2-14 are a) posted for all to see b) revIewed penodIcally dunng In-SerVIce traInIng c) are made known to all new employees 2) contInually mOnItor serVIce response/duty response tImes for Instance of undue response delay or complaInts of delay and InVestIgate same The above polIcy IS sIlent on the subject of furnIshIngs and rest eqUIpment In the workplace Unfortunately the polIcy prohIbItIng beds and cots In the workplace 33 (wIth the exceptIOn of the bUIlt-m pull-down beds m the Bramalea statIOn) m Mimstry-operated Ambulance statIOns was not reduced to wntten form Mr Armstrong's letter (Ex 9) dId not enclose a copy of a wntten polIcy regardmg beds and cots and "rest facIlItIes" and/or the reason(s) for that polIcy or refer to Its eXIstence albeIt unwntten Mr Armstrong's letter (Ex 9) and enclosure were less than satIsfactory to the umon, and we conclude that they had a somewhat provocatIve effect, m VIew of the longstandmg practIce whIch had permItted the presence of the "rest facIlItIes" m Peel-York The eVIdence dId not establIsh that eIther Mr Armstrong or Mr Clarke had become aware by March 22 1993 that there had been a longstandmg practIce m Peel-York to permIt the presence of beds cots and "rest facIlItIes" and aware that the sudden and unYIeldmg actIOns taken to enforce the polIcy m Peel-York would be perceIved, m the context of what had transpIred between the umon and management smce early January 1993 as repnsals We accept Mr Armstrong's eVIdence that he thought that he passed Mr Virgm's letter to hIm dated Apnl 5 1993 (Ex 10) over to Mr Clarke In hI s letter (Ex 10) Mr Virgm advIsed Mr Armstrong of the longstandmg nature of the practIce (21 years) ofpermIttmg rest cots m the Peel-York Ambulance ServIce and that there had been no reqUIrement by any prevIOUS mspector that they be removed He alerted Mr Armstrong to hIS concerns that the removal of the beds and cots constItuted a breach of Art 12 1 "The present practIce for rest pen ods m each ShIft shall be mamtamed " and that the practIce has taken place m the full knowledge of many ShIft Managers past and present His first paragraph on page 8 and hIS reference to numerous gnevances "and several senous complamts regardmg the conduct of a management staff' pertamed to Mr Hardy Mr Virgm also advIsed m the letter that the actIOns taken by management had the appearance of repnsals and mIght constItute offences under CECBA and the collectIve agreement Mr Clarke dId not gIve eVIdence as to whether he read Mr Virgm's letter and whether he sought any clanficatIOn from the Umon or gave any clanficatIOn to the Umon upon 34 revIewmg It If there was any such clanficatIOn, It apparently was not satIsfactory as on Apnl19 1993 53 gnevances allegmg a breach of Art 12 1 were filed NotIce of filIng of these gnevances was gIven to Mr Virgm's ImmedIate superVIsor Wendy Kerngan On Apnl 21 1993 the subJ ect of ShIft change came up at an ERC meetmg whIch Mr Virgm attended Mr Virgm said that the dIscussIOn around that Issue dId not stand out m hIS mmd The mmutes of that meetmg (Ex 13) note the followmg on that subJ ect 9) StatIOn/ShIft Change PolIcv, It was agreed that a Jomt Management/Employee group would be formed to recommend gUIdelmes and procedures to be followed when makmg statIOn or ShIft changes at the serVIce The underlymg mtent IS to ensure a balance of patIent care expenence and geographIc knowledge IS acqUIred by all staff m regard to the PeellY ork and DIstnct Ambulance ServIce coverage area whIle guarantymg (SIC) each crew has the proper blend of thIS at all tImes On Apnl21 1993 the Umon apparently had no ObjectIOn to the dIscussIOn m another forum, 1 e a J omt Management/Employee group of gUIdelInes and procedures to be followed when makmg statIOn or ShIft changes From Mr Virgm's remarks m re-exammatIOn, however we conclude that he subsequently vIewed the decIsIOn to Jom the Issues of statIOn changes (presumably transfers) as well as ShIft changes (whIch we understood to refer to ShIft lengths as well as changmg the number of days and mghts the Ambulance Officers work each week or month) as havmg been unproductIve m part because the umon's draft proposal was rejected "out of hand" allegedly wIthout reasons (Mr Virgm dId not specIfy who he was refernng to as havmg rejected It out of hand) We conclude from Mr Virgm's eVIdence that he assumed that Ms Fowler and Ms Barber had no ObjectIOns to the 35 umon's proposal and that only Mr Armstrong dId It became Mr VirgIn's VIew that Mr Armstrong Intended to effect statIOn and partner reassIgnments change the length of ShIftS and amend the work schedule and would do so on the basIs of hIS own VIew of what constItuted reasonable and efficIent busIness practIce IrrespectIve of Input from the umon Mr VirgIn dIsputed the accuracy of thIS entry 18) Problem ResolutIOn, Management confirmed once agaIn theIr commItment to be more responSIve open and proactIve In regard to problem and dIspute resolutIOn Though they recogmze local management may not have been as cooperatIve and open In the past they assured the members that the new management would be Management felt that many of the recent gnevances were beIng submItted wIthout pnor dIscussIOn or attempts at resolutIOn beforehand Ifwe hope to make morale and attItude more posItIve we need to work together to repair the damage that has occurred In the past ThIS can only be achIeved through strengthemng the commumcatIOn and trust relatIOnshIp between the partIes We must all be aware that trust IS developed based on expenence and expenence comes from good commumcatIOn and a wIllIngness to partIcIpate In an honest and open manner In the Apnl 21 1993 ERC MeetIng mInutes (Ex 13) notwIthstandIng that at the May 26 1993 meetIng, the Apnl 21 1993 mInutes were adopted wIth specIfic clanficatIOns He said that the May 26 1993 mInutes dId not reflect the complete cl anfi catIons Mr Armstrong, Ms Fowler and Chns Lane were present dunng the Apnl 21 1993 meetIng Mr Armstrong's eVIdence about that meetIng were lImIted to a bnef comment regardIng the Item "StatIOn/ShIft Change PolIcy" In Ex 13 Ms Fowler and Chns Lane dId not gIve eVIdence Mr VirgIn saId that the lO-hour and 14-hour ShIftS had been In place for 17 years and were the same length as those of the FIre Department The umon had lobbIed for those ShIftS, and they worked well In enablIng them to schedule theIr own 36 lIves On May 26 1993 at the ERC meetIng, Mr Armstrong stated that the employer Intended to change the lengths of the work ShIftS ThIS IS reflected In the folloWIng excerpt from mInutes of that meetIng (Ex 14) MANAGEMENT AGENDA 1) SCHEDULING - Mr Armstrong stated there IS a pOSSIbIlIty that we need to cahnge (SIC) our present schedule Mr Armstrong stated that Management was lookIng at a vanety of possIble schedules from eIght hours to twelve hour ShIftS NothIng however IS confirmed OPSEU requested a copy of any schedules that Management had, along wIth a copy of the compressed work agreement Mr VirgIn agreed that Mr Armstrong had not made hIS statement regardIng ShIft lengths and schedulIng In a threatemng manner The members of the bargaInIng umt strongly obJ ected to the proposal to change the length of the work ShIft, and presumably to altenng theIr work schedules Mr VirgIn's undIsputed eVIdence was that "the OperatIOns Manager" and the ShIft SupervIsors had been supportIve of the 10- and 14-hour ShIftS He gave Mr Armstrong no credIt for any of the posItIve actIOns on management's part In the spnng of 1993 Mr Wheelans descnbed the staff response as "outrage" as thIS was the thIrd long-standIng practIce to be changed wIthIn a few months He saw Mr Armstrong as responsIble In cross-eXamInatIOn he acknowledged that each Ambulance Officer worked one 16-hour ShIft every 28 days pnor to the proposal to alter the compressed work week ShIftS (see below) Mr Armstrong said that hIS reasons for wantIng to change the length of ShIftS and the compressed work week arrangement were a) a groWIng concern In 1993 regardIng a marked Increase In errors and omISSIOns InJunes, absenteeIsm and sIck tIme among nurses and firemen who work extended ShIftS In excess of 12 hours In length, as compared to those who worked an 8-hour ShIft, b) concerns regardIng the staff's abIlIty to meet call demand, c) concerns about reducIng program costs InItIated by the government of the day In the context of the SocIal Contract Act---the DIrector 37 had requested RegIOnal Offices to present recommendatIOns on how to achIeve savIngs Mr Armstrong's recall of detaIls and tImes regardIng when and how these concerns were commumcated to the bargaInIng umt members was at best vague The eVIdence dId not establIsh whether the above reasons and/or the studIes and statIstIcs upon whIch the health and safety concerns were based were dIsclosed to the umon, and whether there was any IndIcatIOn based on Mimstry of Health expenence that Ambulance Officers who worked extended ShIftS exceedIng 12 hours demonstrated an Increase In errors and omISSIOns InJunes absenteeIsm and sIck tIme Mr Armstrong's eVIdence dId not speak to the umon' s concerns about the changes and what, If any consIderatIOn, he had gIven them Around May 26 1993 folloWIng the ERC meetIng, Mr VirgIn attnbuted the statIOn and partner reassIgnments and the removal of the cots and beds and "rest facIlItIes" as attnbutable to Mr Armstrong In Mr VirgIn's VIew the proposal to amend the ShIft lengths and compressed work week schedules was part of an ongOIng senes ofrepnsals by Mr Armstrong as a consequence of the umon havIng engaged In a phone-In and letter-wntIng campaign to the Mimster' s office and that hIS actIOns In IntroduCIng these changes reflected antI-umon ammus He advIsed the very concerned Ambulance Officers In these Locals to file gnevances allegIng a breach of Art A 1 2 Mr VirgIn's eVIdence was that In hIS VIew the stated IntentIOns attnbuted to management In the ERC mInutes (Ex 13 and 14) that management would attempt to ImtIally present proposals for changes In the workplace at an ERC meetIng, and ItS commItment to be more responSIve open and proactIve In regard to problem and dIspute resolutIOn, was merely "wIndow dressIng" In Mr VirgIn's VIew Mr Armstrong Intended to Impose statIOn and partner reassIgnments and schedulIng changes wIth lImIted and meamngless consultatIOn wIth the umon representatIves We conclude that he was maIntaIned In that ImpreSSIOn from hIS dIscuSSIOns wIth 38 Ms Fowler and Ms Barber who we conclude on balance of probabIlIty qUIte appropnately conveyed to Mr Virgm that the lInes of authonty m the workplace hIerarchy were such that they were oblIged to consult wIth Mr Armstrong regardmg any proposals made by the umon, and that Mr Armstrong had the ultImate authonty although they would make theIr best efforts to gIve theIr own mput and promote to Mr Armstrong any umon posItIOn WIth whIch they agreed On June 7 1993 53 gnevances were filed allegmg a "vIOlatIOn of ArtIcle A 1 2 and other statutory provIsIOns" and requestmg the "return of all rest facIlItIes to theIr status ofpnor to March 1 1993" "stop escalatIOn of the conflIct" and "dIsmIssal ofMr RIchard Armstrong" On August 25 1995 the panel was advIsed that shortly after May 10 1995 after eVIdence m thIS heanng had commenced, but before It had been concluded, the employer had removed certam furmture from the workplace further mterfenng wIth the prevIOUS practIce concermng rest pen ods and further demonstratmg antI-umon ammus The umon advIsed us on Apnl17 1998 at the resumptIOn of the heanng, that It no longer would pursue the Issue of mtenm relIef and preferred to proceed wIth eVIdence toward a determmatIOn of the gnevances It was not m dIspute that Mr Armstrong was the Deputy Mimster's DesIgnee at the Stage Two meetmg regardmg the Apnl 19 and June 7 1993 gnevances, held on June 14 1993 We conclude on the eVIdence that both at the tIme of the meetmg and when he gave hIS eVIdence at thIS heanng, Mr Armstrong was not partIcularly sensItIve to the fact that the latter set of gnevances IdentIfied hIm cntIcally and as the source of the complamt of antI-umon ammus behmd the polIcIes to whIch the Umon objected, and that thIS put hIm m a posItIOn of conflIct ofmterest as DesIgnee We conclude that he dId not have an apprecIatIOn of the conflIct wIthm the sItuatIOn, where as DesIgnee he would be reqUIred to determme the gnevances, and thereby stand m Judgment of hIS own conduct We find, on balance of probabIlIty that he accepted, or faded to refuse the appomtment as DesIgnee 39 precIsely because he dId not perceIve the conflIct In whIch the appoIntment placed hIm, and not because he wIshed to exerCIse hIS dIscretIOn as DesIgnee In order to effect further repnsals agaInst the members of the bargaInIng umt The panel was provIded wIth a copy of a Memorandum dated Apnl 11 1994 (Ex 17) from Grace Fowler to Mr LewIs and Mr VirgIn In theIr capacIty as representatIves of Locals 228 and 311 whIch provIded, In part The latest sIgned compressed work week agreement I have IS dated June23 1987 You are hereby beIng gIven notIce of my wIsh to renegotIate thIS agreement I have been advIsed by our RegIOnal Office that the ShIft length must not exceed twelve (12) hours In duratIOn A new agreement IS to be forwarded to the RegIOnal Office before the end of Apnl 1994 Please find enclosed a copy of the proposed schedule and a revIsed compressed work week agreement Your response IS expected by Apnl 18 1994 I belIeve thIS wIll gIve you enough tIme to reVIew the new schedule and agreement We conclude that thIS document, on ItS face partIcularly the second paragraph, gIves some credence to Mr VirgIn's assertIOn that Mr Armstrong was prepared to Impose changes In ShIft length, notwIthstandIng the umon' sob] ectIOns and reasons for same We accept that the umon representatIves gave theIr ob] ectIOns to changes to the 10- and 14-hour ShIftS and reason for same to eIther Ms Barber Ms Fowler or Mr Armstrong, on behalf of the bargaInIng umt members pnor to the Issuance of the above Memo NeIther Mr Clarke nor Mr Armstrong addressed thIS Memo dIrectly In eVIdence Ms Fowler the author dId not gIve eVIdence Weare unable to conclude that the decIsIOn of "RegIOnal Office" I e eIther Mr Clarke or Mr Armstrong, alluded to In the above Memo reflected antI-umon ammus Rather we conclude on the eVIdence provIded, and on balance of probabIlIty that the decIsIOn to lImIt shIft lengths to 12 hours or under In the 40 absence of clearly-stated reasons to the umon representatIves or the Ambulance Officers for the need for the change was consIstent WIth Mr Clarke's and Mr Armstrong's convIctIOn that they were eXerCISIng the exclusIve nght of management to schedule the workforce theIr firmly held belIef that the decIsIOns they took were In the best Interest of the serVIce and theIr IndIfference to concerns and obJ ectIOns emanatIng from the Ambulance Officers through theIr representatIves ConclusIOns. The first Issue whIch must be addressed IS whether Art 12 1 was breached Art 12 1 states The present practIce for rest pen ods In each ShIft shall be maIntaIned The matter appears qUIte straightforward The practIce of the use of beds cots and other personal "rest facIlItIes" IncludIng air mattresses pIllows and beddIng by bargaInIng umt members for "reclImng honzontally" dunng pen ods In whIch all theIr other tasks at the statIOns had been done and dunng whIch there were no emergency calls had been permItted by local managers for In excess of 17 years In Peel- York Ambulance ServIce statIOns The collectIve agreement mandates that the "present practIce" be maIntaIned The dIrectIOn to remove beds cots and other personal "rest facIlItIes" rendered It ImpossIble for the bargaInIng umt members to maIntaIn theIr practIce to the extent that they were prevIOusly able There were sImply InsufficIent couches remaInIng to enable all the bargaInIng umt members on ShIft to "reclIne honzontally" at anyone tIme If they wIshed to do so In addItIOn, they apparently were prohIbIted from USIng theIr own beddIng and pIllows ThI s too would decrease the comfort they could enJoy or maIntaIn dunng rest penod 41 The employer acknowledged that to some extent Its posItIOn that It IS permISSIble for Ambulance Officers to "reclIne honzontally" dunng rest penods but not sleep IS somewhat artIficIal but IS Intended as a compromIse to enable Officers to relax, but always be Instantly ready to respond should an emergency call occur and theIr attendance be reqUIred to assIst a sIck or InJured member of the publIc In addItIOn, It IS concerned about the "appearance" that the presence of beds cots and personal "rest facIlItIes" gIve to members of the publIc day or mght The panel does not find thIS unreasonable We have determIned that beds and cots are not permItted to be present In other Mimstry-operated Ambulance ServIces In RegIOn 3 and In other Mimstry- operated Ambulance ServIces In the rest of the proVInce ofOntano (wIth the exceptIOn of the bUIlt-In pull-down beds In the Bramalea statIOn whIch IS formerly a firehall) and that that IS an unwntten Mimstry polIcy There IS a patent ambIgUIty In the language of Art 12 1 If the "present practIce" refers to Mimstry-wIde practIce the Umon's gnevance must faIl If It refers to the practIce In any gIven workplace wherever located, the Umon's gnevance may succeed However a further matter must also be determIned for the Umon's gnevance to succeed The panel must also determIne whether the partIes Intended that the "present practIce" (whIch Art 12 1 mandates be maIntaIned) would Include maIntaInIng certaIn furmture and personal Items on the employer's premIses WhIle the partIes were agreed that BIll 7 applIed to the contInued proceedIngs In thIS dIspute (page 1 Intenm DecIsIOn, March 11 1997) the panel understood that theIr agreement to ItS applIcatIOn pertaIned to "procedure" rather than to the substance of the dIspute and made ItS rulIng on that basIs A board of arbItratIOn must determIne a dIspute under the legIslatIve and contractual authonty In eXIstence at the tIme the dIspute arose The agreement of the partIes cannot alter the legIslatIve and contractual authonty under whIch a board of arbItratIOn proceeds wIth 42 respect to the legalIty of the actIOns of the partIes and whether there has been a breach of the collectIve agreement BIll 7 the Labour Relations and Employment Statute Lffit, Amendment Act S 0 1995 c 1 receIved Royal Assent on November 10 1995 The gnevances before us were filed In 1993 and pertaIn to matters whIch arose In early 1993 ThIS panel's determInatIOns must be made In lIght of the legIslatIOn that bound them at that tIme That legIslatIOn was the old CECBA R.S 0 1990 c C 50 S 18 of the old CECBA provIded 18 (1) Every collectIve agreement shall be deemed to provIde that It IS the exclusIve functIOn of the employer to manage whIch functIOn, wIthout lImItIng the generalIty of the foregoIng, Includes the nght to determIne (a) employment, appoIntment, complement, orgamzatIOn, assIgnment, dIscIplIne dIsmIssal suspensIOn, work methods and procedures kInds and locatIOns of eqUIpment and classIficatIOn of pOSI tIOns and (b) ment system, traInIng and development, appraisal and superannuatIOn, the govermng pnncIples of whIch are subJect to reVIew by the employer wIth the bargaInIng agent, and such matters wIll not be the subJ ect of collectIve bargaInIng nor come wIthIn the JunsdIctIOn of a board Union Grievance 724/83 (Samuels) IndIcates at p 7 that dunng negotIatIOns In 1974 for the first collectIve agreement the CIvIl ServIce AssocIatIOn of Ontano (the predecessor to OPSEU) sought the folloWIng prOVISIOn pertaInIng to rest pen ods Dunng each tour of duty employees shall be entItled to two (2) rest pen ods whIch may be taken away from theIr ImmedIate work area. The first penod wIll be gIven between the employee's startIng tIme and hIS first meal penod, and the second between the end of the first meal penod and hIS normal fimshIng tIme 43 Management's response to the proposal at p 7-8 was The CSAO's request for a formalIzed provIsIOn of two rest penods (duratIOn unspecIfied) could result In a further Increase to payroll cost of at least $36 000 000 No publIc servant IS now depnved of "coffee breaks" or "rest penods" as are reqUIred by the employees QUIte apart from the provIsIOn of serVIce to whIch the taxpaYIng publIc IS entItled, the publIc serVIce IS not lIke an Industry conveyor belt assembly operatIOn, where the entIre operatIOn can be controlled and closed for a specIfied rest penod The admInIstratIve problems (as well as cost) Involved In "polIcIng" the rest breaks would be VIrtually unmanageable The employer asks that the Informal practIce now enJoyed by employees be contInued and asks that the Board reJect thIS proposal by the C SA. Mr Samuels stated, at p 8 that Mr Brown's Interest board of arbItratIOn awarded the language currently found In Art 12 1 He also concluded, at p 8 All the negotIatIng hIstory thus far demonstrates that the "rest penods" were consIdered to be breaks between the start of the ShIft and the meal penod and then between the meal penod and the end of the ShIft and at p 9 the language used In the Umon proposals clearly suggests to the reader that a dIstInctIOn IS beIng made and It was reasonable for the employer to reach the understandIng that the Umon meant somethIng dIfferent by the term "meal break" from the term "rest pen ods" Mr Samuels wrote at p 9 that In 1978 the Umon attempted to amend the language In Art. 12 1 to provIde that "an employee shall be entItled to a paId rest penod away from hIS aSSIgned work area at or near the mId pOInt In the first half and at or near the mId pOInt In the second half of hIS ShIft" and In 1979 "proposed that ArtIcle 7 be amended so that the normal work day would be 'InclUSIVe of a meal penod' as well as the stated amendment to Art 12 1 " No changes were made 44 The negotIatIng hIstory descnbed In Union Grievance 724/83 IndIcates that the partIes consIdered the "present practIce dunng rest penods" to be an appropnate matter for collectIve bargaInIng Consequently we are unable to conclude that s 18 depnves us of JunsdIctIOn to determIne thIS dIspute Further we conclude that the phrase "kInds and locatIOns of eqUIpment" refers to eqUIpment used to carry out the assIgned tasks and does not Include the beds cots and other "rest facIlItIes" about whIch eVIdence was gIven We conclude that the phrase "work methods and procedures" does not Include the manner In whIch employees relax and the "facIlItIes" whIch they use to do so We conclude that we are dealIng wIth "a grey area" whIch was probably In no one's contemplatIOn when the wordIng of Art 12 1 was awarded by Mr Brown It IS however sIgmficant to note that s 18(1) states "Every collectIve agreement shall be deemed to proVIde that It IS the exclusIve functIOn of the employer to manage " Although "rest facIlItIes" are not Included In the Items that s 18 gIves the employer "the nght to determIne" In USIng the words "WIthout lImItIng the generalIty of the foregoIng" the legIslature stated that the functIOn to manage was not lImIted by the lIst of Items specIfied In subparagraphs (a) and (b) If we are wrong, and the old CECBA does not apply to thIS dIspute we would conclude that It nevertheless remaIned the exclusIve functIOn of management to manage as a matter of common law In cases of ambIgUIty extnnsIc eVIdence from the members of the negotIatIng teams can be proVIded to assIst the board In deCIdIng on the partIes' Intended meamng regardIng the correct InterpretatIOn of certaIn words and phrases In theIr collectIve agreement In the absence of such dIrect eVIdence (and no such dIrect eVIdence was presented In thIS case) boards of arbItratIOn must resolve the ambIgUIty by determInIng the partIes' most probable Intended meamng, on the basIs of va no us pnncIples Those pnncIples Include 45 1 Words In an agreement are to be gIven theIr plaIn, ordInary meamng. 2 If the ordInary meanIng of the words In the agreement lead to an absurd result, boards of arbItratIOn can alter theIr lIteral meanIng 3 AnomalIes or unantIcIpated consequences IncludIng hardshIp to a party are not sufficIent to alter the ordInary meamng of words 4 The collectIve agreement IS to be read as a whole 5 Where two meanIngs are possIble efficacy may be consIdered, "where two InterpretatIOns are possIble the one whIch best harmomzes the document as a whole should be chosen" Palmer & Palmer Collective Agreement Arbitration in Canada, 3rd Ed. Toronto Butterworths Canada Ltd 1991 pp 121 - 124 We appreCIate that neIther party may have Intended the language that was ultImately awarded by an Interest arbItrator and the seemIng artIficIalIty of the exerCIse In whIch we must engage to arnve at the meamng Intended by the partIes However the process may prove both helpful and InstructIve The pnncIple regardIng the plaIn ordInary meamng of the words IS of some gUIdance The expressIOn "rest penod" was used by both partIes dunng negotIatIOn as dIstIngUIshable from the words "meal break" and Mr Samuels determIned that "rest penod" dId not Include "meal break" (724/83 supra, p 9) The words "present practIce" are as genenc and as broad as pOSSIble We presume that they were selected to take Into account the breadth of the practIces pertaInIng to rest penods In vanous workplaces that the employer 1 e the government of the ProVInce of Ontano maIntaInS We conclude from the remarks In 724/83 that the umon's submIssIOns pertaInIng to rest pen ods dunng negotIatIOns and before the Interest board concerned whether rest pen ods would be paId tIme and concerned guaranteeIng the tIme pen ods In whIch rest pen ods would be taken The employer's submIssIOns speak to admImstratIve problems of speCIfied rest penods and requests that the provISIOn awarded by the arbItrator preserve "the Informal practIce now enJoyed by employees" It appears, from Mr Samuels' decIsIOn, and from the 46 language of Art 12 1 that the employer's submIssIOn, to contInue the "Informal practIce" prevaIled We accept the umon' s submIssIOn, whIch was not dIsputed by the employer that "practIce" WIth respect to rest pen ods can vary from workplace to workplace and from floor to floor wIthIn the same bUIldIng, all of them beIng provIncIal government workplaces We conclude that the partIes dId not Intend that the meanIng of "present practIce" be one that was representatIve of a practIce In a partIcular Mimstry or across the proVInce Rather In VIew of the vanous rest penod practIces that had ansen from workplace to workplace wIthIn the provIncIal government, and the unwIeldIness of draftIng an ArtIcle whIch defines the specIfic practIces In each workplace we conclude that the language awarded was Intended to remaIn sIlent as to the locatIOn or scope of any partIcular "present practIce" and that Art 12 1 was phrased In broad terms whIch would allow dIsputes as to whether a partIcular "present practIce for rest pen ods In each ShIft" had been maIntaIned to be determIned on a workplace to workplace basIs We conclude that thIS InterpretatIOn would not lead to an absurd result requmng another InterpretatIOn, and that It would be In harmony wIth the whole of the collectIve agreement, whIch IS Intended to apply between a very large employer and a very large umon In numerous and physIcally dIfferent workplaces where very dIfferent dutIes are carned out and where "rest penod" practIces can be dIfferent, dependIng upon the Job to be performed In thIS context, thIS InterpretatIOn would appear the most efficacIOus We must next consIder whether the partIes Intended "present practIce" to apply to the presence and use of certaIn furnIture and facIlItIes by the employees In the ImmedIate workplace or IndIVIdual Ambulance SerVIce If that had been the partIes' IntentIOn, the employer In thIS case the Mimstry of Health, would be reqUIred to maIntaIn the same furmture and facIlItIes used dunng rest pen ods In each IndIVIdual workplace or Ambulance statIOn wIthIn the Mimstry throughout the 47 duratIOn of each collectIve agreement In whIch Art 12 1 contaIned the above wordIng. If the employer wIshed to amend the practIce In thIS case restnct rather than permIt the use of beds cots and other personal "rest facIlItIes" It would be reqUIred to gIve OPSEU and the potentIally affected bargaInIng umts, 1 e the Locals notIce that at the conclusIOn of the then current agreement, that It Intended to amend the present practIce by no longer permIttIng the presence of beds cots and other "rest facIlItIes" dunng the duratIOn of the then current agreement The Local would be oblIged to Instruct the OPSEU negotIators as to whether they wanted to amend the language of Art 12 1 and the Mimstry would Instruct ItS negotIators as to what language It wanted In the next agreement to enable the change of the "present practIce" In the ImmedIate workplace whIch It wIshed to no longer "maIntaIn" We enVISIOn the employer InstructIng ItS negotIators to seek a specIfic exclusIOn of the Peel- York Ambulance ServIce from the language of Art 12 1 and the Local InstructIng ItS negotIators to negotIate a sub-paragraph of Art 12 1 pertaInIng to Peel- York Ambulance ServIce that beds cots and other personal "rest facIlItIes" would be permItted on the premIses DependIng upon how Important the Issue became a great struggle and perhaps a stnke would ensue It IS conceIvable that that was the IntentIOn of the partIes when the wordIng of Art 12 1 was awarded That IS the posItIOn of the gnevors The other possIbIlIty IS that SInce the tIme the language was awarded, the partIes Intended "present practIce" to refer only to the tImes frequency and duratIOn of rest pen ods/breaks and payment for them On the basIs of the InfOrmatIOn regardIng negotIatIOns and submIsSIOns to the Interest board avaIlable In 724/83 supra, thIS too IS a reasonable InterpretatIOn, and one whIch would be consIstent WIth the pnncIple of efficacy DId the partIes or the arbItrator awardIng thIS language Intend that IndIVIdual locals could reqUIre that there be no changes to the furmshIngs used dunng rest pen ods dunng the lIfe of any gIven collectIve agreement, as opposed to merely the maIntenance of the "rest penods" per se and the practIce 48 pertaInIng to when and for how long they could be enJoyed, and whether they were paid breaks or not? Cases 724/83 Burns 365/82 and Mellon et. al 349/83 dealt wIth ambIgUIty In reference to "rest penods" and the Issue of maIntaInIng payments for rest penod No cases dIrectly InterpretIng "present practIce" In relatIOn to the use of furnIture appear to have been decIded It does not appear from case 724/83 that the partIes to the negotIatIOns and the Interest arbItratIOn tnbunal contemplated how or whether the maIntenance of furmshIngs and other personal Items In the workplace whIch assIsted the employees In the enJ oyment of theIr rest penods fell wIthIn the meamng of "present practIce" or "present practIce for rest pen ods shall be maIntaIned" We find It unlIkely that eIther party addressed thIS eventualIty In decIdIng upon the language of Art 12 1 The sItuatIOn the partIes face In thIS dIspute IS qUIte umque The InterpretatIOn of Art 12 1 In whIch "present practIce for rest pen ods shall be maIntaIned" was Intended to refer only to the tImes frequency and duratIOn of rest pen ods/breaks and payment for them would result In these two Locals havIng to endure the sudden ImposItIOn upon them of an otherwIse Mimstry-wIde polIcy That result can be consIdered an "anomaly" or "unantICIpated consequence" whIch may result In some hardshIp to the Ambulance Officers In these Locals, but whIch does not necessanly entItle the gnevors to a broader InterpretatIOn of the language of the ArtIcle We must then return to another basIc pnncIple In labour relatIOns whIch holds that where the partIes have not dealt wIth a specIfic Issue In theIr agreement, It IS consIdered resIdual and falls to management ThIS pnncIple IS also consIstent WIth our determInatIOn above that the exclusIve functIOn of management to manage In s 18(1) ofCECBA IS not restncted to the Items lIsted In subparagraphs (a) and (b) of that sectIOn and consIstent WIth the pnncIple at common law that It IS the functIOn of management to manage WithIn the functIOn of management IS the authonty to create reasonable rules and regulatIOns governIng the workplace ThIS IS of course 49 always subJect to the pnncIple that that functIOn must not be exercIsed In a manner that IS arbItrary dISCnmInatory Illegal or In bad faIth The eVIdence establIshed that the Mimstry of Health promulgated and enforced an unwntten polIcy of no beds and cots In the Mimstry-operated statIOns That polIcy would fall wIthIn the descnptIOn of a rule or regulatIOn govermng the workplace Weare unable to conclude that It was the IntentIOn of the partIes or the arbItrator that the language "present practIce for rest pen ods shall be maIntaIned" In Art 12 1 would apply to the maIntenance of certaIn Items offurmture both personal and Mimstry property and preclude the ImposItIOn of the polIcy or rule In these partIcular statIOns If we are wrong regardIng our InterpretatIOn of "present practIce for rest pen ods shall be maIntaIned" we must consIder whether an estoppel arose In these CIrcumstances Brown & Beatty Canadian Labour Arbitration, 3rc1 Ed Toronto Canada Law Book Inc 1991 at p 2-63 reproduced the basIc statement of the pnncIple of eqUItable estoppel In Combe v Combe [1951] 1 All E R. 767 The pnncIple as I understand It, IS that where one party has, by hIS words or conduct, made to the other a promIse or assurance whIch was Intended to affect the legal relatIOns between them and to be acted on accordIngly then, once the other party has taken hIm at hIS word and acted on It, the one who gave the promIse or assurance cannot afterwards be allowed to revert to the prevIOUS legal relatIOns as If no such promIse or assurance had been made by hIm, but he must accept theIr legal relatIOns subJ ect to the qualIficatIOn whIch he hImself has so Introduced, even though It IS not supported In pOInt of law by any consIderatIOn, but only by hIS word The authors state at the same page that the reqUIrements for an estoppel are -a representatIOn by words or conduct, whIch may Include sIlence Intended to be relIed on by the party to whIch IS was dIrected -some relIance In the form of some actIOn or InactIOn -detnment resultIng therefrom 50 In thIS case there was a longstandIng practIce In partIcular workplaces 1 e In Peel- York ambulance statIOns, whIch devIated from the Mimstry-wIde polIcy There was no eVIdence that the employer through ItS local managers at any tIme In wntIng, or orally represented to the Ambulance Officers In Peel-York that theIr (1 e the local managers') acceptance and even use of the cots and beds In the workplace constItuted conformIty wIth the polIcy In place In other Mimstry-operated ambulance serVIces or a representatIOn that the practIce fell wIthIn Art 12 1 There IS no eVIdence that It was the IntentIOn of the local managers In theIr acceptance and/or use of the cots and beds that the members of the bargaInIng umt rely upon theIr non-actIOn as wIthIn the meamng of Art 12 1 or wIthIn the meanIng of the Rest Penod PolIcy (Ex 5) 1 e that they Intended to alter the polIcy and that the bargaInIng umt could rely on theIr actIOns to alter the polIcy as It related to them The umon expenenced and benefited from the sIlence of the local managers and the maIntenance of the practIce for about twenty years and from what thIS panel finds to have been a lack of awareness of the RegIOnal Manager and AssIstant Manager whIch resulted In theIr sIlence untIl February 22 1993 or shortly thereafter There IS no doubt that the gnevors dId not seek to carve out a specIfic provIsIOn In the collectIve agreement whIch would protect the practIce whIch arose and that they have suffered a detnment In the removal of the beds and cots The bargaInIng umt members and the local managers dId not maIntaIn the presence of beds and cots etc In secrecy from RegIOnal Office The RegIOnal Office Managers were unaware of the open practIce and assumed the absence of beds and cots from the workplace untIl February 22 1993 As well the employer dId not maIntaIn the unwntten polIcy of no beds and cots In other Mimstry-operated ambulance statIOns In secrecy Here the employer does not seek to revert to prevIOUS legal relatIOns as If It had not made a promIse or assurance There IS no eVIdence of a promIse or assurance not even In the open practIce that arose over many years The bargaInIng 51 umt members took the benefit of the practIce and we do no cntIcIze them for that However there IS no eVIdence that they were entIrely unaware of the unwntten polIcy agaInst beds and cots In other Mimstry-operated ambulance statIOns The employer sought In 1993 to Implement a polIcy In the Peel-York statIOns that was Implemented consIstently In other Mimstry-operated statIOns One of the functIOns of thIS board IS to render decIsIOns that are eqUItable In all the CIrcumstances The CIrcumstances of thIS case are dense and troublesome We conclude In all the CIrcumstances that the gnevors dId not receIve a legal eqUItable or contractual nght to maIntaIn beds and cots as a result of the local Managers' longstandIng faIlure to enforce the Mimstry-wIde polIcy In Peel-York. Rather we find that they enJoyed a temporary albeIt longstandIng, pnvIlege In the non-enforcement of the Mimstry-wIde polIcy by vIrtue of the actIOns or non- actIOns of the local managers We do not thInk that the Interests of eIther party would be served, or that eqUIty would be achIeved, If we were to find that the employer's sIlence In these CIrcumstances constItuted a representatIOn Intended to alter legal relatIOns and enable the umon to enforce an entItlement that beds and cots be permItted to remaIn In theIr workplace contrary to a Mimstry-wIde polIcy Such a findIng would only perpetuate an already anomalous sItuatIOn In thIS Ambulance ServIce That IS not the purpose of estoppel InMorrolj, 329/92 the gnevance alleged a breach of Art 17 re "Meal Allowance" The employer dIscontInued ItS gratUItous provIsIOn offood whIch was set aSIde for employee meals The board was of the VIew that the employer's sIlence dId not constItute a representatIOn, and that It could therefore not be estopped from puttIng an end to the employee practIce whIch ItS past conduct enabled Mr Gray said that the employer's "reasons for drawIng the lIne where It has and refusIng to facIlItate the contInUatIOn of the pnor practIce may not be overwhelmIng, but 52 they cannot be said to be arbItrary" We find the CIrcumstances In thIS case not entIrely unlIke those In MorrolJ, HavIng so found, we are unable to conclude that there has been a breach of the letter of Art 12 1 The Umon, however can be pardoned for havIng concluded that one had occurred We hope that the partIes wIll find the folloWIng comments helpful It IS unfortunate that Mr Clarke and Mr Armstrong proceeded as precIpItously as they dId to cause the removal of the beds cots and "rest facIlItIes" wIthout first determInIng the CIrcumstances under whIch they were present In the first place Mr Clarke saId that he thought the beds and cots constItuted some health and safety nsk, but provIded no detaIl to substantIate that VIew He said that the couches has been ongInally "Introduced" to maIntaIn the rest penods "so that there would not be any change" There dId not appear on the eVIdence to be a preSSIng health and safety or admInIstratIve or publIc appearance need to reqUIre theIr ImmedIate removal partIcularly wIth respect to the bunk bed whIch had been In the RIchmond Hill statIOn SInce It had been acqUIred by the ServIce and was scheduled to be removed at some tIme In the future wIth the renovatIOns It IS the suddenness of the decIsIOn to reqUIre theIr removal wIthout pnor dIscussIOn at the ERC meetIng, or any other forum, that IS problematIc Pnor dIscussIOn between the RegIOnal Managers and the umon representatIves could have alerted the umon representatIves to the fact (or remInded them) that there was an unwntten Mimstry-wIde polIcy prohIbItIng such beds and cots and the reasons for that polIcy and could have enabled the umon representatIves to present theIr VIews and Inform Mr Armstrong as to the number of years In whIch the practIce had been permItted by local managers The suddenness wIth whIch the polIcy was enforced, along wIth the removal of the "rest facIlItIes" raIsed the hackles of the Ambulance Officers and fed a groWIng dIStruSt of regIOnal management among them The removal of the "old" couches In May 1995 because of employee health and safety concerns lodged In 53 1993 was so after-the-fact that It further fed that dIstrust ThIS actIOn, taken after the commencement of thIS heanng, concerned the panel as It altered the very Issue we were asked to decIde We note that In eVIdence Mr Clarke expressed some regret at havIng found the beds whIch we found SIncere and whIch we Interpret as regret about the Impact that the enforcement of the unwntten polIcy had on labour relatIOns In the Peel-York ServIce Mr Armstrong expressed no regret We conclude that the suddenness and lack of consultatIOn wIth whIch the polIcy was enforced constItuted a regrettable vIOlatIOn of the spmt, though not the lIteral terms of Art 12 1 of the collectIve agreement That IS not, however a breach of the collectIve agreement, as we have determIned, above The next Issue that must be addressed IS whether there was a breach of Art A.l 2 whIch provIdes There shall be no dISCnmInatIOn or harassment practIsed by reason of an employee's membershIp or actIvIty In the umon The umon dId, Indeed, raise aprimafacie case of antI-umon ammus In ItS eVIdence 1 e that the actIOns of management may have been repnsals for umon actIvItIes However In the absence of stronger eVIdence IndIcatIng that Mr Armstrong, rather than Mr Johnson, or Mr Hardy Intended to effect repnsals agaInst bargaInIng umt members, we are oblIged to accept Mr Armstrong's eVIdence that the statIOn and transfer reassIgnments were ImtIated not by hIm, but by Mr Hardy and were cancelled by hIm (Mr Armstrong) because they were not JustIfiable In relatIOn to the cntena In Mr Clarke's memo that the beds and cots were notIced dunng a chance InSpectIOn by Mr Clarke whIch was precIpItated by concerns about Mr Hardy's performance and that they and the other "rest facIlItIes" were ordered removed, consIstent WIth a Mimstry-wIde polIcy and that the proposal to change the ShIft length/compressed work week was made for the reasons he gave In eVIdence 54 Mr Clarke's and Mr Armstrong's explanatIOn of theIr actIOns and the tImIng and sequence of events and the reasons for them, In VIew of the entIre cIrcumstances of thIS case has a nng of plausIbIlIty and credIbIlIty That nng of plausIbIlIty and credIbIlIty was not shaken by rebuttal eVIdence or by the very strenuous and capable arguments advanced by the Umon's Gnevance Officer We apprecIate the umon havIng drawn to our attentIOn the remarks In Faryna v Chorny[1952]2DLR.354atpp 356-8 In Leering 1105/84 regardIngthe credIbIlIty of wItnesses We acknowledge that It IS possIble that Mr Armstrong may have been deCeIVIng thIS panel regardIng hIS true IntentIOns and that he actually InItIated the statIOn and partner reassIgnments despIte notIce of theIr havIng come InItIally from Mr Hardy that he caused Mr Clarke to Inspect the statIOns lookIng for InfractIOns whIch could be used as repnsals agaInst the bargaInIng umt membershIp or that he acted In bad faIth In supportIng Mr Clarke's dIrectIOn to Mr Cunnane and caused Ms Fowler and Ms Barber to expand the ambIt ofMr Clarke's ImtIal Memo to Mr Cunnane and seIzed upon the possIbIlIty of a change In ShIft lengths as a means of further repnsals Mr Armstrong may have the abIlIty to Invent a plausIble explanatIOn for all the actIOns the umon VIews as Intended to get back at them WhIle we have some concerns regardIng Mr Armstrong's tendency to mImmIze hIS Involvement In some of these matters and hIS IndIrect, sometImes undetaIled and often unforthcomIng or vague manner of speakIng when gIVIng hIS eVIdence we do not find these features of hIS eVIdence conclusIve of an IntentIOn to mIsrepresent facts We conclude on balance of probabIltIes that these features of Mr Armstrong's manner of speakIng are as consIstent WIth hIS usual personal style of commumcatIOn, whIch Mr Wheelans and Mr VirgIn saId that they found less than satIsfactory whIle the events unfolded, as they are wIth an IntentIOn to deceIve Weare unable to accept the umon' s submIssIOns wIth respect to the conclusIOns that we should draw as a result of the remarks of the board In Anderson 3842/92 concermng Mr Armstrong ThIS IS because the board dId not speak 55 dIrectly to Mr Armstrong's credIbIlIty or reJect hIS eVIdence on that basIs Rather the board noted parenthetIcally that It stnkes US as extremely surpnSIng that Mr Armstrong In effect reduced the penalty prevIOusly Imposed notwIthstandIng hIS conclusIOn that Mr Fawcett was not beIng truthful and Indeed, had compounded hIS actIOns by castIng asperSIOns on others We further note that s 13(1) of RegulatIOn 977 whIch we understand IS the basIs ofMr Armstrong's VIew that a penalty of twenty days In the maXImum suspenSIOn that could be Imposed under the PublIc SerVIce Act deals wIth suspensIOns pendIng InVestIgatIOn, whIch was not the sItuatIOn before hIm However these observatIOns are not the focus of our determInatIOn In thIS matter In USIng the expreSSIOn "extremely surpnsIng" the board In Anderson appears to dIplomatIcally questIOn Mr Armstrong's admInIstratIve Judgment, and hIS SubstItutIOn of hIS own Judgment for the decIsIOn of Semor Management The decIsIOn does not speak to dISIngenuousness (InsIncenty or havIng secret motIves) on Mr Armstrong's part More Importantly Mr Armstrong was not gIven an opportumty In eVIdence to speak to any of the remarks In the Anderson case or deal wIth the Inferences drawn by the umon about hIm from that case when It made ItS submI SSI ons/ argument WhIle we apprecIate the umon' s concerns, It would be unfaIr to Mr Armstrong and a demal of natural JustIce If the panel were to accept and apply the Anderson decIsIOn In the manner urged by the umon Mr Armstrong gave eVIdence as to the eXIstence of and hIS commumcatIOn to vanous people of the cntena for reassIgnment pnor to 1991 However Mr Armstrong's eVIdence as to the actual cntena for transfers/reassIgnments was that It was hIS belIef that there had to be some reason for mOVIng staff such as balancIng knowledge among crews, geographIc awareness and "reasons of that nature" The only "formal" cntena for transfers/reassIgnments the panel learned of were those set out In Mr Clarke's Memorandum of January 28 1993 (Ex 23) whIch Mr Clarke advIsed was a restatement ofMr Hardy's understandIng of the cntena. The eVIdence dId not clanfy whether those are In fact a complete and accurate statement 56 of the cntena whIch management has employed In the past to effect statIOn and partner reassIgnments, and If so whether those cntena have been presented to the umon and/or dIscussed wIth umon representatIves and accepted or reJected by the Umon, or whether there are further and other cntena whIch management has applIed and/or proposes to apply We conclude that there IS no love lost between Mr Armstrong and Mr VirgIn, and perhaps Mr Wheelans Mr VirgIn dIStruStS Mr Armstrong's motIves and belIeves Mr Armstrong wIelds hIS authonty as a RegIOnal Manager In a heavy- handed manner and Interprets Mr Armstrong's attItude (whIch we found to be one of IndIfference) and actIOns as reflectIng antI-umon ammus So does Mr Wheelans They can be excused for so InterpretIng Mr Armstrong's style In VIew of the attempts to Introduce faIrly fundamental changes to statIOn and partner assIgnments, the removal of personal furmture used for rest penods from the statIOns and the length of ShIftS and compressed work week schedule all between early December 1993 and Apnl 1993 all of whIch had remaIned unchanged (wIth the exceptIOn of voluntary transfers) for over 15 years and the latter two folloWIng the umon's phone-In and letter-wntIng campaign to the Mimster' s office However we must bear In mInd that Mr Armstrong has responsIbIlIty for thIrty-three ambulance serVIces In RegIOn 3 He has only a lImIted amount of tIme to gIve each ServIce (less than one day a month) and It IS qUIte reasonable that he delegates a great deal of authonty to AssIstant RegIOnal Manager Bryan Clarke whIch was reflected In theIr eVIdence In the ImmedIacy of the events whIch were descnbed to us, the changes proposed and/or brought to Peel-York from December 1993 to Apnl 1993 gave the gnevors the appearance of an orchestrated campaign to Impose changes on them umlaterally and arbItranly We find the speed wIth whIch the employer took actIOn to reqUIre the removal of the beds cots and "rest facIlItIes" and the lack of eVIdence as to a pressIng and ImmedIate reason to do so surpnSIng We find that the removal 57 of the beds and cots and "rest facIlItIes" was motIvated by the belIef that the Officers In the serVIce were aware of the polIcy whIch prohIbIted beds and cots In the statIOns, and that the ShIft length changes were motIvated by a desIre to effect financIal savIngs In the admInIstratIOn of the ServIce In both cases the Interest of umformIty of polIcy and economy was paramount to the human and labour relatIOns aspect of the changes We dId not find that the changes were made arbItranly dIscnmInatonly or In bad faith It IS very unfortunate IfMr Armstrong's extensIve responsIbIlItIes do not enable hIm sufficIent tIme to lIsten to the concerns of the Peel- York Ambulance Officers through theIr umon representatIves and to fully explaIn hI s reasons for acceptIng and/or reJ ectIng theIr pOSI tIOns The Impact on labour relatIOns In the serVIce IS self-evIdent We note that In eVIdence both Mr VirgIn and Mr Armstrong demonstrated an InclInatIOn and wIllIngness to express OpInIOnS as to "umon's" and "management's" depersonalIzed motIves and to blame those motIves for vanous Impasses and delays We recommend to the partIes that consIderatIOn be gIven to seekIng the serVIces of a facIlItator at the ERC meetIngs to assIst both partIes In becomIng as forthcomIng wIth one another as possIble wIthIn the bounds of professIOnalIsm, and In expreSSIng the full detaIled reasons behInd proposed changes and each party's full and detaIled reasons for acceptIng or reJectIng the proposed changes The Mimstry has a reasonable need to ensure that there be no appearance that sleepIng occurs In the Ambulance StatIOns The members of the bargaInIng umt also have a reasonable need to relax In comfort for extended pen ods whIle In the StatIOns To meet both partIes' needs and to re-establIsh some of the trust and respect between the partIes whIch has been damaged by the events descnbed above we also recommend, If space and the budget wIll permIt, that the employer supply as many couches as there are Officers on ShIft In each statIOn, or permIt the Officers to supply couches (whIch, of course must be In reasonable condItIOn) ThIS would 58 enable all Officers on ShIft to reclIne honzontally dunng "rest penods" whIch, we understand from Mr Armstrong's eVIdence IS WIthIn the contemplatIOn of the Rest Penod PolIcy (Ex 5) We also recommend that consIderatIOn be gIven to the Mimstry supplYIng or permIttIng Officers to supply pIllows or cushIOns for use dunng rest pen ods These Items would enable the Officers some further aId to relaxatIOn dunng rest pen ods and would not appear to vIOlate our understandIng of the unwntten "no beds or cots" polIcy or the purposes underlYIng It We were greatly encouraged by the confidence and satIsfactIOn whIch Mr Clarke and Mr Armstrong and counsel for the employer expressed concernIng the performance of the Peel-York Ambulance Officers In general and by theIr reassurance that the publIc IS well-served by them We trust that the gnevors wIll accept those statements as made In good faith We also wIsh to thank the representatIves of the partIes for theIr thorough and helpful submIssIOns The end result IS that the gnevances are dIsmIssed Dated at Toronto Ontano thIs3rd day of November 1999 Susan D Kaufman, Vice-ChaIr 59 PartIal DIssent to Follow Ed Seymour Umon NomInee I concur --- See Addendum Attached Al Merntt, Employer NomInee 60 ADDENDUM I am In agreement that the gnevance ought to be dIsmIssed as set out so capably In the award I do however have some dIfficulty In acceptIng the suggestIOn made on page 58 that the Officers be permItted to supply theIr own couches pIllows and/or cushIOns for greater comfort dunng theIr "rest pen ods " If the Mimstry belIeves that these extras are needed for the Officers then It should supply them not have the Officers pay for the artIcles out of theIr own pockets If however the Mimstry IS of a contrary OpInIOn, then that should end the matter unless of course the Umon should decIde to negotIate the supplYIng of these extras dunng the next round of negotIatIOns Al Merntt, Employer NomInee 61 APPENDIX - Belanger, et.al., 976/93 Opemng Statements. The umon advIsed that gnevances wIth OPSEU numbers 93E 167 - 192 and numbers 93F444 - 457 were beIng wIthdrawn It advIsed that It was proceedIng on the gnevances wIth OPSEU numbers 93E193 - 219 pertaInIng to ArtIcle A (Ex 2) and numbers 93F417 - 443 pertaInIng to ArtIcle 12 (Ex 4) and that a group of gnevances were consolIdated by the Gnevance Settlement Board at the umon' s request on August 11 1993 and It IS those consolIdated gnevances that are before thIS panel On January 25 1995 the umon said that It was seekIng an order to maIntaIn the practIce pertaInIng to rest penods pnor to the removal order the Issuance of a declaratIOn that there had been a vIOlatIOn of ArtIcles 12 and A, and an Order that another Manager be assIgned over thIS ambulance serVIce In place ofMr RIchard Armstrong In hIS opemng statement, counsel for the employer adVIsed that In dIrectly- operated ambulance serVIces the Mimstry of Health's practIce IS that the Mimstry neIther provIdes nor authonzes the presence of beds In the workplace The polIcy of the Mimstry regardIng rest pen ods IS that employees may assume a honzontal posItIOn dunng rest penods If they wIsh, but that they are not permItted to sleep He candIdly acknowledged that for some penod of tIme In thIS settIng, 1 e at the statIOns In Peel-York Ambulance ServIce that practIce had been breached, 1 e beds and cots were present In the workplace and were used by staff dunng "rest pen ods" although not for sleepIng The Mimstry's VIew was that the use of beds and cots In the Peel-York statIOns dId not constItute "an establIshed practIce" that the presence and use of beds and cots "slIpped through the cracks" beds and cots are neIther present nor used dunng rest pen ods In any other dIrectly-operated facIlIty In the proVInce The InstructIOn by the RegIOnal level of management In March, 1993 to 62 remove the beds and the follow-up by the local level of management brought Peel- York mto conformIty wIth provmce-wIde norms and no mappropnate motIve was present The reason behmd the polIcy whIch prohIbIts beds and cots m the workplace we were advIsed, IS that the serVIce provIded IS an emergency health servIce The faster an ambulance arnves, the greater the lIkelIhood of patIent survIval The Mimstry does not wIsh to maXImIze the nsk that employees wIll be sleepmg when a request for an ambulance IS receIved Havmg beds and cots m the statIOns IS Just a clear mVItatIOn to sleep In addItIOn, there IS no ongomg management presence on mghtshIft m most of these facIlItIes The matters raIsed m the gnevances are outsIde the Board's JunsdIctIOn The relIef sought IS an mappropnate remedy Counsel for the employer advIsed that the response tIme for a Code 4 emergency callIs 3 mmutes from the tIme of the receIpt of the call at the dIspatch centre to the tIme the ambulance IS movmg and the Attendants book onto the radIO Attendants are expected to book on by radIO and have the ambulance movmg wIthm 2 mmutes of the statIOn's receIpt of the call from dI spatch The polIcy of no cots and beds arose m the 1970's from a perceptIOn ofnsk (of slower response and of human survIval) The Mimstry's actIOns to ensure the umform applIcatIOn of the polIcy IS to ensure the umform reductIOn of nsk. The umon's representatIve acknowledged that Peel-York IS the only Mimstry ambulance serVIce m whIch cots and beds remamed after the polIcy agamst theIr presence was Implemented m other dIrectly-operated serVIces He advIsed that the language of Art 12 1 of the collectIve agreement "The present practIce for rest pen ods shall be mamtamed " had been m eXIstence smce 1976 EVIdence. The Mimstry of Health's Ambulance ServIces Branch Manual of PolIcy and Procedure Number 1 - 56 (ASB P & P 1 - 56) (Ex 5) provIdes the followmg 63 REST PERIODS DURING SHIFTS OF WORK PURPOSE ClanficatIOn of the term "rest penods m each ShIft" as applIcable m the collectIve agreement, ArtIcle 12 1 REFERENCE CollectIve Agreement 12 1 M 0 H Manual of Corporate PolIcy and Procedure 3-2-14 POLICY Rest pen ods dunng scheduled hours of work are to be STATEMENT construed as penods of mactIvIty occunng (SIC) after assIgned tasks are completed APPLICATION Managers/AssIstant Managers of Ambulance ServIces and DIspatch SerVIces ShIft Managers SupervIsors All Ambulance Officers and DIspatchers PROCEDURE Managers/AssIstant Managers of Ambulance and DIspatch SerVIces are to ensure 1) all personnel m hIs/her employ are famIlIar wIth and practIce the followmg . dunng rest pen ods, personnel may relax m any manner wIthm propnety yet bemg able to respond ImmedIately to any duty assIgnment . dunng rest pen ods personnel under no CIrcumstances may sleep or remove Items of apparel (umform, shoes etc) . sleepmg whIle on duty IS m contraventIOn ofM 0 H. Corporate PolIcy & Procedure 3-2-14 and IS subJect to dIsCIplInary measures as outlmed m 3-2-14 2) a copy of thIS Ambulance SerVIces P & P and a copy of the M 0 H Manual of Corporate P & P 3 -2-14 IS posted on all notIce boards for personnel mformatIOn ShIft Managers/SupervIsors are to ensure 64 1) they adhere to all pomts m thI s A. S.B P.P and M.O H. Manual of PolIcy and Procedure 3-2-14 2) the personnel assIgned to theIr responsIbIlIty are famIlIar wIth and adhere to all pomts m thIS A.S.B polIcy and procedure and the M 0 H Manual Corporate P & P 3-2-14 Ambulance Officers and DIspatchers are to ensure 1) they are famIlIar wIth and adhere to thIS A. S B polIcy and procedure and the M 0 H. Manual of Corporate P & P 3-2-14 CONTROLS Managers/AssIstant Managers of Ambulance ServIces and DIspatch ServIces are to 1) ensure the provIsIOns outlmed m thIS PolIcy and Procedure and the M 0 H Manual of Corporate P & P 3-2-14 are a) posted for all to see b) revIewed penodIcally dunng m-serVIce trammg c) are made known to all new employees 2) contmually momtor serVIce response/duty response tImes for mstance of undue response delay or complamts of delay and mvestIgate same Ross Virgm has been an employee of the Mimstry of Health smce September of 1972 He has held the posItIOn of Ambulance Officer 2 and worked m that capacIty for Peel-York Ambulance ServIces from the W oodbndge Ambulance StatIOn for hIS entIre penod of employment wIth the Mimstry He advIsed that m late 1992 and early 1993 RIchard Armstrong was RegIOnal Manager of Peel-York Ambulance ServIces Fred Hardy was the Manager of Peel-York Ambulance ServIces Mr Hardy has smce been succeeded by Grace Fowler as Manager Four ShIft Managers (now called OperatIOns Managers) reported to the Manager They rotated through all SIX statIOns 65 Mr VirgIn said that he had been PresIdent of OPSEU Local 311 for 15 years and was famIlIar wIth the 1995 Local 228 executIve IncludIng Vice-PresIdent Bob LeWIS and ChIef Steward Steve Wheelans In cross-eXamInatIOn, Mr VirgIn acknowledged that Fred Hardy had been the Manager or ActIng Manager for the 2 to 2 1Iz years pnor to March, 1993 and that he had been AssIstant Manager before he became ActIng Manager He agreed that pnor to that Ken Gore had been the Manager for a short penod, and that Mr Gore had gone on sIck leave He then said that Mr Gore had been Manager for 2 years but had been absent for part of that penod Jim KIng had been Manager for 1 1Iz to 2 years before Mr Gore and Mr Vincet had been Manager for about 11 years From 1984 to 1987 Fred Rusk had been RegIOnal Manager and Peel-York had been attached to RegIOn 3 In 1987 Peel-York became attached to RegIOn 2 the HamIlton area, and Mr Armstrong was the RegIOnal Manager In about 1990 Peel- York was returned to RegIOn 3 Mr Armstrong had been the RegIOnal Manager for Peel-York SInce about 1987 Mr VirgIn dIsagreed that there had been no outstandIng labour relatIOns IncIdents when Mr Armstrong became RegIOnal Manager for Peel-York. He then said that matters had become very confrontatIOnal and very hostIle SInce Bob Scott, that hundreds of gnevances had been filed SInce Mr Armstrong had become RegIOnal Manager and none had been filed wIth Mr Scott He later saId that when Mr Armstrong took over there were no labour relatIOns conflIcts for the first SIX to twelve months, and acknowledged that It was pOSSIble that the conflIcts WIth Mr Armstrong began In 1988 and 1989 Then he saId that the conflIcts started In 1990 He acknowledged that Mr Armstrong was RegIOnal Manager and that thIngs had been good untIl about 1990 to 1991 He saId that he had not wntten a date down, but that he notIced an evolutIOn of hOStIlIty and that a number of gnevances had ansen and that employer-employee meetIngs had been "hostIle" 66 In re-eXamInatIOn, Mr VirgIn saId that the dIfferences In style between Mr Armstrong and Fred Rusk as RegIOnal Managers had been as between "black and whIte" and "mght and day" He said that very few gnevances had been filed over the several years In whIch Mr Rusk had been RegIOnal Manager and that most Issues had been resolved over the telephone In 5 mInutes He saId that whIle Mr Armstrong had been RegIOnal Manager that there had been qUIte a few ERC meetIngs but few Issues had been resolved He then said that the dIfference In the volume of gnevances was stnkIng, as there were "hundreds" of gnevances after Mr Armstrong became RegIOnal Manager In response to havIng been asked whether It had been Mr Armstrong or Mr Hardy who had been responsIble for the detenoratIOn In labour relatIOns whIch had begun In 1991 Mr VirgIn saId that Mr Hardy as the "ImmedIate" manager had gIven the "ImmedIate orders" but that Mr Armstrong dIscussed matters WIth Mr Hardy and after the Umon had resolved Issues WIth Mr Hardy Mr Hardy would return WIth the pOSItIOn of the RegIOnal Office Mr VirgIn saId that the Employee RelatIOns CommIttee (ERC) meetIngs occurred because the Umon had been unable to "resolve Issues" sInce 1991 but that the "heIght of It" would have been In 1993 partIcularly about the "ShIft shuffles" When asked who was ultImately responsIble for that, Mr VirgIn saId that Mr Hardy's two statements to hIm were that the ShIft shuffle had been deCIded by Mr Armstrong, and that he Mr VirgIn, had asked ChnstIne Barber Grace Fowler and Wendy Kerngan why the "ShIft shuffle" was an Issue and that Ms Barber had told hIm that she had to check WIth Mr Armstrong He saId "Too many people were saYIng the same thIng" Mr VirgIn Said that two ShIftS are worked In each of the Peel-York statIOns--- a lO-hour dayshIft from 8 a m to 6 p m and a 14-hour mghtshIft from 6 p m to 8 a.m In addItIOn to ShIft rotatIOn, Ambulance Officers are scheduled to work Chnstmas for 3 to 5 years and not to work Chnstmas for 3 to 5 years He Said that such schedules "can change" but that If It IS not necessary to "shuffle" people It should not be done 67 Mr VirgIn saId that on January 16 1993 about 35% of the Ambulance Officers In Locals 228 and 311 were gIven notIce of a "ShIft shuffle" whIch meant that the statIOn to whIch they had been assIgned, the partner wIth whom they worked and the platoon to whIch they were assIgned, or any cOmbInatIOn of them could change He agreed that the members had learned of the proposed "ShIft shuffle" through letters delIvered to them The personal concern of those reCeIVIng the notIce was that they had worked out of the same statIOn for twelve years and had located theIr resIdence and famIlIes accordIngly WIth regard to partner changes Mr VirgIn advIsed that the InteractIOn and relatIOnshIp between Ambulance Officers who are partners IS vItally Important to good patIent serVIce He VIews It as a marnage When a patIent IS not breathIng and no pulse IS detectable ImmedIate actIOn can be reqUIred When partners work well the dnver doesn't usually have to receIve InstructIOns as to what hIS or her partner wants and knows the eqUIpment needed and obtaIns It whIle hIS or her partner admInIsters to the patIent Ambulance Officers perform CardIO-Pulmonary ReSUSCItatIOn (CPR) one of the most Important lIfe-savIng techmques, whIch Influences patIent surVIval Two Ambulance Officers who have done CPR together move as smooth as clockwork New Ambulance Officers wIll always be brought Into the servIce and there wIll be a penod oflearmng and establIshIng a relatIOnshIp wIth other partners In Mr VirgIn's VIew the partnershIp IS never as effectIve or as efficIent as when the two Officers have done the procedure before Mr VirgIn saId that he had one partner for ten years and that verbal commumcatIOn between them IS not reqUIred He said that It IS great to work wIth new partners and thIS must be done on occaSIOn, but that to some extent thIS occurs to the detnment of the patIent Mr VirgIn said that no dIscuSSIOn wIth the employer had taken place pnor to the ImmInent shuffle ImtIally It had been scheduled for ImplementatIOn on February 1 1993 That date was later changed to March 1 1993 In cross- eXamInatIOn he was unable to recall the date upon whIch he learned of the change In 68 the date or the source of that InfOrmatIOn He saId that he dId not see the delay for a month as sIgmficant, and that he dId not see the delay as Intended to facIlItate dIscussIOns He vIewed the delay as havIng been InstItuted because there had been so many complaInts Mr VirgIn saId that approxImatel y 1 week after January 16 1993 then Manager Fred Hardy Informed hIm that the "ShIft shuffle" had been ImtIated by RegIOnal Manager RIchard Armstrong In cross-eXamInatIOn he was unable to recall whether he had dIscussed the letters regardIng the "ShIft shuffle" wIth Mr Hardy Mr VirgIn said that he revIewed the matter wIth the Local 228 ExecutIve and Stewards, and determIned that gneVIng would be too slow a process to deal wIth the matter He and the Local 228 executIve suggested to the membershIp that they IndIVIdually contact the Mimster of Health by phone and by maIl to let the Mimster know how angry they were and to postpone the "ShIft shuffle" He advIsed that 120 complaInts were filed, accordIng to messages left for hIm, and over 100 gnevances were filed As a result, Mr VirgIn heard from the Mimster's SpeCIal ASSIstant responSIble for Ambulance ServIces Peter Block, and had dIscussIOns WIth hIm In whIch he outlIned the reasons for the Ambulance Officers' concern and "outrage" Mr VirgIn said that In addItIOn he told Mr Block on several occaSIOns that the gnevors were bnngIng to hIS attentIOn "the potentIal of antI-umon ammus" although he dId not dIspute that the gnevances dId not allege antI-umon ammus Asked whether Manager Fred Hardy was aware of the polItIcal actIOn In whIch he and the other members had engaged, Mr VirgIn said that In February of 1993 about a week after the actIOn, he and Mr Hardy had a bnef dIscuSSIOn In whIch Mr VirgIn learned that Mr Armstrong had been called by "Queen's Park" regardIng the complaInts and "was upset WIth those In the" lobbYIng whIch occurred Mr VirgIn said that subsequently In further dIscuSSIOn WIth SpeCIal ASSIstant Peter Block, he learned from hIm that the members' complaInts dId not need to contInue and that the "ShIft shuffle" would lIkely be "taken care of' 69 Mr VirgIn saId In chIef that he dId not dISCUSS the ShIft change wIth Mr Armstrong, but that he wrote to hIm on February 20 1993 (Ex 6) He agreed that the letter requested a meetIng wIth Mr Armstrong When asked the purpose of the letter Mr VirgIn said that In hIS VIew the anger of the Ambulance Officers regardIng the proposed "ShIft shuffle" constItuted a maJor cnSIS In the workplace and that he "mentIOned four other Items" In the letter The February 20 1993 letter addressed to Mr RIchard Armstrong, provIdes Re ShIft Changes - Memorandum of Agreement Dear Mr Armstrong Attached IS a reVIsed verSIOn of the Memorandum of Agreement submItted February 15 1993 Mr Wheelans has not been avaIlable to sIgn It but agrees to accept It WIth the sIgnature from Local 311 and wIth your sIgnature as a basIs for ImplementatIOn In order to postpone the Second Stage actIvatIOn of the gnevances and to suspend the March 1 1993 ShIft changes, we would need to have your SIgned copy returned by fax to as promptly as pOSSIble Upon receIpt of the Agreement we wIll notIfy OPSEU to suspend the gnevance procedure Our VIew regardIng a prelImInary dIscuSSIOn IS that there IS ment In keepIng It small --- more speCIfically to Include only Mr Wheelans for Local 228 myself for Local 311 and yourself for the Mimstry We would value your Input on thIS perspectIve If you wIsh to proceed wIth the Memorandum of Agreement, Mr Wheelans and I are avaIlable to meet wIth you Thursday February 25 1993 at 9 a.m at Tony's Restaurant, 110 Woodbndge Avenue Woodbndge (IslIngton and Highway #7) Our agenda relevant to the ShIft changes would Include the folloWIng (1) Threats IntImIdatIOn and antI-umon actIVIty (2) Proper role of schedulIng (3) Misuse/abuse of schedulIng (4) Longterm preventIOn of abuse of schedulIng SIncerely 70 R. VirgIn PresIdent, Local 311 Mr VirgIn agreed that the second paragraph of the above letter was "an InVItatIOn to stop the ShIft shuffle" and said" to aVOId an escalatIOn" He said that Mr Armstrong dId not sIgn It He saId that the reference to "threats IntImIdatIOn and antI-umon actIvIty" In the last paragraph of the letter meant that some members were complaInIng Mr Paul advIsed that there was some suggestIOn that If the polItIcal lobbYIng contInued, steps mIght have to be taken, and that he would call dIrect eVIdence Mr VirgIn then said that Manager Fred Hardy had told hIm that If the members' phone calls and letters to the Mimster contInued, "the powers that be may have to take some actIOn" and said that Mr Hardy was refernng to Mr RIchard Armstrong Asked why he would want to dISCUSS "threats IntImIdatIOn and antI- umon actIVIty" WIth Mr Armstrong, Mr VirgIn saId that he wanted to resolve the ShIft shuffle and IfMr Armstrong was tellIng members not to engage In letter wntIng and phone calls he wanted to tell hIm to dIscontInue tellIng them that In cross-eXamInatIOn, Mr VirgIn said that he belIeved hIS letter to Mr Armstrong (Ex 6) was the first dIrect contact regardIng a meetIng on the subJ ect of the "ShIft shuffle" When It was pOInted out to hIm that the first paragraph of hIS letter (Ex 6) refers to some commumcatIOn between hIm and Mr Armstrong on about February 15 1993 Mr VirgIn saId that he could not remember the date he and Mr Armstrong first had contact over thIS Issue He acknowledged that hIS letter IndIcated that he sent hIm a reVIsed verSIOn of Memorandum of Agreement submItted February 15 1993 and undertook to look for It He dId not dIspute that he may have had some commumcatIOn wIth Mr Armstrong before February 15 1993 as well as on February 20 1993 Mr VirgIn said that he reVIsed the February 15 1993 Memorandum of Agreement because the answer to the first draft had been "no" and that he reVIsed It to keep the lInes of commumcatIOn open He agreed that there would not have been an ERC meetIng between February 15 and 20 1993 He agreed 71 that the gnevances regardIng the "ShIft shuffle" had been filed on about February 15 1993 He agreed that hIS Memorandum had been to suspend the "ShIft shuffle" then postponed to March 1 1993 and to waIve the tIme for Step 2 of the gnevance procedure He said that the ShIft shuffle was cancelled altogether and that the Umon was told to wIthdraw the gnevance He said that when Mr Armstrong agreed to meet wIth them on February 25 1993 the umon wIthdrew ItS Step 2 request, and that after the February 25 1993 meetIng, they recogmzed that they had to wIthdraw theIr gnevances He said that Mr Armstrong stopped the "ShIft shuffle" but kept the Issue open Later In cross-eXamInatIOn, Mr VirgIn said that hIS statement "If you wIsh to proceed wIth the Memorandum of Agreement, Mr Wheelans and I are avaIlable to meet wIth you " In hIS February 20 1993 letter to Mr Armstrong (Ex 6) was not a "pre-condItIOn" to holdIng the meetIng He pOInted out that the Memorandum of Agreement he referred to In hIS February 20 1993 letter as "submItted February 15 1993" was not the Agreement SIgned In March and Apnl 1993 (Ex 11 set out below) He said that the umon had been forced Into the Agreement (Ex 11) "by a loophole" whIch, he agreed, was that the gnevances would faIl He said that Mr Armstrong had offered the terms In Ex 11 because of "flak at the mImstenallevel " His supenor Mr Graham Brand, had spoken to hIm and had asked Mr Enc Burgess to speak to hIm The employer had to offer somethIng He dIsagreed that management saId that there would not be a ShIft shuffle He reIterated that he remembered Mr Armstrong clearly saYIng that he would shuffle the bargaInIng umt members In 6 months StIll later In cross-eXamInatIOn, Mr VirgIn acknowledged that on or about February 15 1993 he had contacted Mr Armstrong regardIng postpomng the March 1 1993 "ShIft shuffle" He said that the folloWIng Memorandum of Agreement (Ex 15) to the best of hIS knowledge was hIS InItIal suggestIOn MEMORANDUM OF AGREEMENT 72 In the matter of gnevances anSIng out of Local 228 and Local 311 of the Ontano PublIc SerVIce Employees Umon, dated on or about February 15 1993 regardIng shIft/statIOn/platoon changes In the Peel- York and DIstnct Ambulance ServIce Between The Crown In RIght of Ontano The Ontano Mimstry of Health (Employer) And. The Ontano PublIc SerVIce Employees Umon, Local 228 and Local 311 (for the Gnevors) ConsIstent WIth the Preamble of the CollectIve Agreement, the partIes are desIrous of settlIng the matters In dIspute ansIng out of these gnevances The partIes therefore agree to the folloWIng 1 To submIt the matter of shIft/statIOn/platoon changes wIthIn Peel- York and DIstnct Ambulance to the Mimstry of Health Employee RelatIOns CommIttee (MERC) for reVIew and hopefully for resolutIOn 2 To hold In abeyance all gnevances related to thIS matter untIl the members of the MInIstry of Health Employee RelatIOns CommIttee (MERC) determIne the Issues are eIther resolved or are unresolvable through thIS avenue 3 To accept thIS Memorandum of Agreement as the tIme waIver set out In ArtIcle 27 15 of the CollectIve Agreement 4 To hold In abeyance any Involuntary changes of shIft/statIOn/platoon untIl the MERC members determIne the Issues are eIther resolved or are unresolvable through thIS avenue SIgned at _____________ thIS _____ da y oC___________ 1993 For OPSEU Local 228 For the Employer For OPSEU Local 311 In re-eXamInatIOn Mr VirgIn said that he ImtIated the above Memorandum He also said that he "guessed" that he spoke to Mr Armstrong about the concerns 73 regardIng the ShIft changes around February 15 1993 after he had spoken to "ImmedIate management" Mr VirgIn acknowledged In cross-eXamInatIOn that the folloWIng Memorandum (Ex 16) IS an amendment to the one above (Ex 15) and saId that he belIeved that the folloWIng Memorandum was enclosed wIth hIS February 20 1993 letter to Mr Armstrong (Ex 6) MEMORANDUM OF AGREEMENT In the matter of gnevances anSIng out of Local 228 and Local 311 of the Ontano PublIc SerVIce Employees Umon, dated on or about February 15 1993 regardIng shIft/statIOn/platoon changes In the Peel- York and DIstnct Ambulance ServIce Between The Crown In RIght of Ontano The Ontano Mimstry of Health (Employer) And. The Ontano PublIc SerVIce Employees Umon, Local 228 and Local 311 (for the Gnevors) ConsIstent WIth the Preamble of the CollectIve Agreement, the partIes are desIrous of settlIng the matters In dIspute ansIng out of these gnevances The partIes therefore agree to the folloWIng 1 To commence negotIatIOn between the Umon (Local 228 and Local 311) and the Employer (the RegIOnal Manager Mr R. Armstrong) regardIng the matter of shIft/statIOn/platoon changes wIthIn the Peel-York and DIstnct Ambulance ServIce WIth a VIew to resolvIng the dIfferences 2 To hold In abeyance all gnevances related to thIS matter untIl the partIes through the negotIatIOns set out In ArtIcle 1 above determIne the Issues are eIther resolved or are unresolvable through thIS avenue 3 To accept thIS Memorandum of Agreement as the tIme waIver set out In ArtIcle 27 15 of the CollectIve Agreement 74 4 To hold In abeyance any Involuntary changes of shIft/statIOn/platoon untIl the MERC members determIne the Issue are eIther resolved or are unresolvable through thIS avenue 5 Upon wntten notIce by eIther party to the other fifteen (15) days after receIpt of such wntten notIce thIS agreement shall become null and vOId, and the tIme waIver specIfied In ArtIcle 3 above shall be rescInded upon the fifteenth (15th) day SIgned at W oodbndge thIS 21 day of February, 1993 For OPSEU Local 228 For the Employer S Wheelans For OPSEU Local 311 R. VirgIn Mr VirgIn saId that he may have dIscussed the above amendments to the Memorandum WIth Mr Wheelans In re-eXamInatIOn he agreed that the amendments to pOInts 1 and 2 In the above revIsed Memorandum were an attempt to resolve the dIspute and saId that they had been hIS Idea, after runmng them by Mr Wheelans He confirmed that he had sent the above draft Memorandum to Mr Armstrong In hIS letter WIth hIS February 20 1993 letter (Ex 6) Mr VirgIn acknowledged In cross-eXamInatIOn that Fred Hardy became Manager of Peel- York Ambulance SerVIce some tIme In 1990 or 1991 When asked whether thIngs began to detenorate when Mr Hardy took over as Manager he replIed that there may have been a overlap between the tIme Mr Armstrong became RegIOnal Manager and the tIme Mr Hardy became Manager He said that Mr Hardy told hIm daIly that he (Mr Hardy) and Mr Armstrong were fightIng WIth one another and that ASSIstant Manager Bob EllIston had told hIm the same thIng He agreed that when Mr Hardy became ActIng Manager Mr Hardy told hIm that Mr Armstrong told hIm that he had to do certaIn thIngs Mr VirgIn agreed that Mr 75 Hardy had been suspended around the end of February 1993 and had ultImately been released because he had a tendency to IntImIdate staff Mr VirgIn said that Mr Hardy had "frequently" IntImIdated staff He said that there was no lInk between the IntImIdatIOn Mr Hardy engaged In and Mr Hardy's carryIng out ofMr Armstrong's orders He saId that Mr Hardy had kicked tables and yelled at staff and hIS actIOns had not been tIed In wIth or related to ImplementIng Mr Armstrong's decIsIOns that Mr Hardy had Just explaIned Mr Armstrong's InstructIOns to umon members wIthout beIng IntImIdatIng Mr VirgIn dId not dIspute the possIbIlIty that Mr Hardy had sImply been USIng a dIfferent method of IntImIdatIOn wIth hIm, and that Mr Hardy had threatened that "the powers that be" would bnng theIr powers to bear upon the staff If they dId not cooperate Mr VirgIn advIsed that by propOSIng to keep the meetIng WIth Mr Armstrong small (para. 3 Ex 6) he had not been IntendIng to exclude Mr Hardy but rather that he found large meetIngs such as the ERC unwIeldy He Said that the proposed agenda Item "Threats IntImIdatIOn and antI-umon actIvIty" dId not necessanly refer only to Mr Hardy and could Include Mr Armstrong Mr VirgIn was advIsed In cross-eXamInatIOn that Bryan Clarke's InSpectIOn had occurred on February 22 1993 Mr VirgIn could not recall when he had been made aware of that InSpectIOn and the IdentIty of those who Informed hIm ofMr Clarke's InSpectIOn He acknowledged that hIS letter of Apnl 5 1993 (Ex 10) sets out hIS understandIng of what occurred on that occaSIOn, at pages 8 and 9 He Said that Mr Bev Johnson was the ShIft Manager to whom he referred In hIS descnptIOn of an occurrence dunng the weekend of February 13-14 1993 at page 9 of Ex 10 He could not recall the IdentIty of the three other ambulance officers he had descnbed as wItnesses to Mr Johnson's alleged statement" , If they're gOIng to complaIn about every lIttle thIng, then we'll get them on every lIttle thIng ,,, Mr VirgIn Said that on February 22 1993 there had been 2 rest cots In the form of a double bunk In the W oodbndge statIOn They had been brought In by the 76 prevIOUS owner of the serVIce and had been taken over by the Mimstry of Health when It acqUIred the serVIce He agreed that the double bunk should be on the Mimstry's lIst of assets and said that he was not responsIble for carrYIng out the Mim stry' s procedure of puttIng Mim stry StI ckers on ItS assets He agreed that the mattresses had been replaced at some pOInt over the past 20 years and saId that the mattresses are foam blocks He agreed that the beds were In the locker room on February 22 1993 and said that they had been there for some tIme and had been "used" In the locker room He said that some staff brought sleepIng bags and that some statIOns have lInen He later saId that the two cots had been present SInce the occupancy of the new statIOn 4 to 6 years earlIer In re-eXamInatIOn he saId that two bunk beds constItuted the rest facIlItIes at the W oodbndge statIOn, and agreed that IndIVIdual Officers were bnngIng In "personal Items" for use dunng rest pen ods On March 16 1995 Mr VirgIn advIsed that he was aware that he IS not to dISCUSS hIS eVIdence wIth anyone and had not dIscussed It sInce the last heanng date He advIsed that he was unable to prevent members of the bargaInIng umt from comIng up to hIm and dISCUSSIng these Issues He acknowledged that on March 16 1995 he had been dISCUSSIng the "ShIft shuffle" wIth Mr GalIna dunng a break In the arbItratIon heanng Mr VirgIn said that the beds were used dunng "rest penods" whIch were not confined to certaIn hours e g after mIdmght The bargaInIng umt defined "rest penod" as "any tIme dutIes are fimshed" He said that hIS practIce was not to use the bunks dunng day ShIftS except on weekends He said that he had not brought In lInen, and that no one crew was responsIble for keepIng the beddIng hygIemc He agreed that he would lIe down on a bed, close hIS eyes and rest, sometImes he added, he would wnte In a prone pOSItIOn He wrote In a prone pOSItIOn not because the chairs and couches had become unsafe but rather because he had become accustomed to dOIng so over 22 years of employment He pOInted out that he also read In a prone pOSItIOn on the bed 77 On March 16 1995 the employer advIsed the panel that It would not be suggestIng that any wItness had slept In the beds or cots In Issue or that there had been a delayed response tIme as a result of so dOIng It reserved Its nght to lead eVIdence regardIng the hIstoncal and polIcy concerns whIch lead to the Mimstry takIng the posItIOn In the 1970's that there would be no cots In ItS dIrectly-operated facIlItIes After heanng argument on May 10 1995 the panel members chose to refraIn from puttIng questIOns to wItness(es) wIth regard to whether staff ever sleep on the beds or cots In cross-eXamInatIOn, Mr VirgIn dId not dIspute havIng receIved a letter dated February 22 1993 (Ex 12) from Mr Armstrong whIch states RE MEMORANDUM OF AGREEMENT - STATIONRE-ASSIGNMENT ISSUE Dear Mr VirgIn Please find attached the sIgned letter of Memorandum of Agreement regardIng the statIOn re-assIgnment Issues By copy of thIS letter I am InstructIng the management of Peel- York to postpone the ShIft changes scheduled for March 1 1993 untIl thIS Issue IS resolved Also would you have Mr Wheelans sIgn the agreement and return a copy to my office The arrangements for the February 25 1993 meetIng are acceptable and I look forward to a qUIck resolutIOn to thIS Issue SIncerely RIchard J Armstrong RegIOnal Manager Central-East Mr VirgIn saId that he receIved the above letter about a week after the February 25 1993 meetIng, and that he had not receIved It by February 25 1993 because It had been delIvered to hIS workplace In re-eXamInatIOn he said that he had been workIng compressed work weeks whIch resulted In hIm beIng off for 14 ShIftS and not beIng 78 In the workplace whIle off ShIft He saId that he had receIved hIS maIl 1 to 2 weeks "late" because It had been addressed to Bramalea and was forwarded by Internal maIl Mr VirgIn saId that he belIeved he first became aware that the proposed ShIft changes had been postponed on February 25 1993 In re-eXamInatIOn he agreed that the above letter was notIce to hIm that Mr Armstrong was In agreement wIth hIS revIsed Memorandum (Ex 16) He said that he dId not know that the February 22 1993 letter (Ex 12) eXIsted and saId that he dId not dISCUSS ItS contents WIth Mr Armstrong before the February 25 1993 meetIng Mr VirgIn said In chIef that he and Mr Wheelans met wIth Mr Armstrong on February 25 1993 Mr VirgIn said that he had a presentatIOn regardIng the nsk component ImplIcIt In the proposed "ShIft shuffle" as well as pertaInIng to the membershIp contactIng the Mimster and that he "proceeded" for 2 1Iz to 3 mInutes when Mr Armstrong "cut [hIm] short" He said that Mr Armstrong "Interrupted" hIm and said that he was gOIng to stop the meetIng, bnng It to an end qUIckly He said that Mr Armstrong saId that they mIght as well wIthdraw theIr gnevances because he was stoppIng the "ShIft shuffle" then scheduled to commence March 1 1993 He said that Mr Armstrong then said "but I'm gOIng to shuffle you every SIX months" Mr VirgIn said that he dId not mentIOn antI-umon ammus, and that he had had 45 - 60 mInutes of InfOrmatIOn to gIve Mr Armstrong, but that he was not permItted to gIve It He saId that the February 25 1993 meetIng wIth Mr Armstrong lasted no more that 15-20 mInutes Mr VirgIn said that the Umon ultImately wIthdrew the gnevances, but that he was uneasy and upset at that meetIng, because he felt that the problem had not been resolved He advIsed that he felt that "the actIOn at the meetIng undermIned the gnevances" that Mr Armstrong had saId that they had nothIng to gneve He said that they dId not want to wIthdraw the gnevances ImmedIately because although the ShIft shuffle tentatIvely scheduled for March 1 1993 was resolved, they were concerned 79 that they would have to file sImIlar gnevances every SIX months, gIven Mr Armstrong's remark. Mr VirgIn said that a Umon-Management CommIttee was establIshed to resolve all ShIft shuffle Issues and that It had met The umon, he saId, submItted a procedure used by Metro Toronto Ambulance SerVIces whIch proVIded for the employer postIng vacanCIes and for whIch any Internal employee could apply as a lateral transfer based on semonty regardless of statIOn, department or platoon No agreement eXIsts to date on thIS proposed procedure he said, because the employer InSIsted on a preamble to the acceptance of thIS procedure whIch proVIded that the partIes agreed to the pnncIples of the procedure but that the employer reserved the nght to "shuffle" employees In cross-eXamInatIOn, Mr VirgIn said that the Metro Toronto Ambulance SerVIces and C U P.E procedure stated that a vacancy would be posted to all employees WIth theIr pay cheques, and that the semor employee would be entItled to It He said that manage-ment had been opposed, and that the umon had proposed a 6- month tnal of the procedure to whIch management agreed He said that after the 6- month tnal management IndIcated that there had been no problems and the procedure has contInued, but that the employer had not reduced the procedure to wntIng, and the umon was concerned that management IS reserVIng ItS nght to change the procedure at any tIme He said that the employer has Inserted Into a draft agreement a paragraph In whIch the partIes agree to the procedure whereIn semonty IS the maJor determInant, but whIch IndIcates that the employer can change the procedure If It so WIshes Mr VirgIn saId that Mr Wheelans dId not get a chance to raIse the Issue of "polItIcal actIvIty" by whIch we understood hIm to mean that Mr Wheelans dId not have an opportumty to dISCUSS WIth Mr Armstrong whether he had been tellIng members not to engage In letter wntIng and phone calls, and, If he had been, to 80 request hIm to dIscontInue tellIng them that He saId that Mr Armstrong had been "curt, abrupt, forceful and even rude" and "wanted to get It over WIth" In cross-eXamInatIOn, Mr VirgIn said that a Memorandum of Agreement was not SIgned at the February 25 1993 meetIng because Mr Armstrong left WIthout permIttIng them to make theIr presentatIOn, and cut them off fairly qUIckly He agreed that Mr Armstrong had only commumcated to them that he would attend the meetIng He said that the presentatIOn they Intended to make was based on a volume of letters as to why "ShIft shuffles" would be detnmental He wanted to explaIn why cardIO-pulmonary resuscItatIOn IS more effectIvely carned out WIth the same partner the saVIngs on gasolIne why It IS In the publIc Interest for ambulance dnvers to work In the geographIc area WIth whIch s/he IS famIlIar as they are able to find places faster etc to persuade Mr Armstrong that he was makIng the wrong move and Mr Armstrong would not lIsten Later In cross-eXamInatIOn, Mr VirgIn advIsed that the pnncIple of the Agreement (Ex 11 below) had been arnved at on February 25 1993 and that Mr Armstrong said that he would draft It In re-eXamInatIOn Mr VirgIn said that he was not aware of the tIme at whIch Mr Hardy's employment was termInated on February 25 1993 and that he and Mr Wheelans met at Tony's Restaurant at 9 a.m for the meetIng WIth Mr Armstrong, and that thereafter Mr Armstrong went to the Peel-York office Mr VirgIn said that the Issue of rest pen ods arose around the last week of February 1993 There had been dIscuSSIOns WIth Ambulance Officers and liS Managers that rest cots and other rest faCIlItIes mIght be removed Mr VirgIn said that he phoned Mr Armstrong on March 5 1993 and asked Mr Armstrong whether he could confirm the IntentIOn to remove rest faCIlItIes from the statIOns and Mr Armstrong saId that he could confirm that He advIsed that pnor to thIS telephone conversatIOn WIth Mr Armstrong, he had receIved no pnor notIce from Mr 81 Armstrong of the removal of the cots and other rest facIlItIes and no "formal IndIcatIOn" of thIS from Manager Fred Hardy In dISCUSSIng hIS letter to Mr Armstrong dated Apnl 5 1993 (Ex 10) Mr VirgIn saId that the March 5 1993 meetIng (referred to as a telephone conversatIOn In Ex 10) had been ImtIated by the umon He then said that he could be wrong about management's IntentIOn regardIng the meetIngs Mr VirgIn said that there had been no opportumty for umon and management to dISCUSS the proposed ShIft shuffle and the removal of cots and other rest facIlItIes pnor to February 25 1993 and March 5 1993 respectIvely In cross-eXamInatIOn he said that he recalled that Mr Hardy had come to hIm, and that he dId not know whether he had made the tnp for that purpose He agreed that he had prevIOusly testIfied that Mr Hardy had come to hIm and told hIm that Mr Armstrong had authonzed the ShIft shuffle and on a second occaSIOn Mr Hardy had IndIcated to hIm that the Mimstry had contacted Mr Armstrong and that Mr Armstrong was upset or angry regardIng the complaInts to the Mimstry He agreed that Mr Hardy was threatenIng hIm, attemptIng to IntImIdate hIm and that that was completely consIstent WIth what has been IdentIfied as hIS management style He later said that Mr Hardy had not threatened hIm the first tIme but rather had said that Mr Armstrong had authonzed hIm to effect a ShIft shuffle The second tIme he saId, Mr Hardy dId not threaten hIm personally but rather said that Mr Armstrong was not happy WIth the bargaInIng umt members who had complaIned to the Mimstry and to the Mimster He could not recall when the second dIscussIOn WIth Mr Hardy took place and acknowledged that It had possIbly occurred after the deCISIOn had been taken to delay the ImplementatIOn of the "ShIft shuffle" for a month, from February 1 1993 to March 1 1993 He agreed In cross-eXamInatIOn that the gnevances respectIng the "ShIft shuffle" were largely filed In about mId-February 1993 Mr VirgIn ImtIally agreed In cross-eXamInatIOn that the "ShIft shuffle" whIch had been proposed In January 1993 had been "quashed" He dId not agree that Mr 82 Armstrong had looked at It, and that then It had been quashed He then Said that It had not been quashed, SInce at the February 25 1993 meetIng Mr Armstrong had saId that they mIght as well wIthdraw theIr gnevances as he was stoppIng the ShIft shuffle and then Said that he would shuffle them every SIX months anyway Mr VirgIn Said that such statements were antagomzIng The cancellatIOn of the "ShIft shuffle" proposed In January 1993 had compelled the umon to wIthdraw ItS gnevances on that subJ ect, Mr VirgIn Said, and added that the approach had not been fair and had been a "loophole" A commIttee had been formed to Implement some form of shuffle he Said, but had been unable to agree and as of March 16 1995 Mr Armstrong had not Implemented a ShIft shuffle Mr VirgIn saId that the agreement of the commIttee was one of the terms of an agreement, to whIch Mr Armstrong had been a party When asked whether Mr Armstrong had Imposed a "ShIft shuffle" on the Umon, Mr VirgIn responded "not yet" When asked whether Mr Armstrong had entered Into dIscuSSIOns to try to resolve the Umon's concerns Mr VirgIn saId that Mr Armstrong may have entered Into the dIscuSSIOns to elImInate the barrage of complaInts that had been receIved by the Mimster's office He dId not dIspute that addreSSIng the problem In dIscuSSIOns would lIkely elImInate the complaInts In re- eXamInatIOn, when asked whether at the February 25 1993 meetIng, Mr Armstrong Said to them that they could WIthdraw theIr gnevances but that he would rotate them In SIX months, Mr VirgIn replIed "He told us 'I'll rotate you every SIX months' " Mr VirgIn dIsputed that the Umon had completed ItS lobbYIng of the Mimster's office by mId-February 1993 He Said that the lobbYIng was ongOIng for qUIte some tIme and that some members went to theIr MPP' s who approached the Mimster some three months later He dId not belIeve he had personally sent a letter or memo to the Mimster' s office and saId that he mIght have sent copIes of correspondence whIch he had receIved to the Mimster' s secretary and recalled havIng copIed hIS correspondence to others to Peter Block, the Mimster' s SpeCIal ASSIstant Mr VirgIn agreed that he had a tendency to reduce thIngs to wntIng, 83 whIch tendency Increases wIth the Importance of the matter but dId not dIspute that he had not wntten a letter or memo about the proposed "ShIft shuffle" He said that there had been 40 to 50 letters from bargaInIng umt members whIch repetItIOusly covered the concerns In re-eXamInatIOn Mr VirgIn said that hIS role dunng the penod of "polItIcal actIvIty" had been to answer complaInts and bargaInIng umt members' questIOns, and to contInue hIS InteractIOn wIth SpeCIal AssIstant Peter Block. He saId that he was Immensely supported by the Local members and 100% satIsfied wIth hIS members' actI VI ty He agreed that he was satIsfied that theIr efforts had been successful Mr VirgIn said In cross-eXamInatIOn that a Memorandum presented by the Employer and allegedly sIgned, had been drafted by Mr Armstrong and had been sIgned, but was not acceptable to the umon The umon ImtIally obJected to the document's admIsSIbIlIty but wIthdrew ItS obJectIOn A 2-page Memorandum of Settlement whIch had been sIgned by vanous people on separate copIes of the second page at Bramalea on March 17 1993 ThornhIll and W oodbndge on March 19 1993 and RIchmond Hill on Apnl 2 1993 was filed wIth the panel (Ex 11) Mr Armstrong's sIgnature appears on the page sIgned at Bramalea. The Memorandum of Settlement provIdes MEMORANDUM OF SETTLEMENT BETWEEN O.P S E U GRIEVOR Ross VirgIn, Steve Wheelans et all (SIC) AND THE CROWN IN RIGHT OF ONTARIO EMPLOYER (THE MINISTRY OF HEALTH) PeellY ork DIstnct Ambulance In respect of the gnevances dated February 15 1993 the partIes hereto agree to the folloWIng terms In full and final settlement 84 1 ) It IS agreed that It IS the exclusIve nght of management to determIne orgamzatIOn and assIgnment of work. 2 ) It IS agreed that all statIOn a (SIC) crew changes scheduled for March are cancelled 3 ) It IS agreed that other than the re-IocatIOn of a ShIft supervIsor to ThornhIll and the subsequent reqUIrement to re-Iocate a staff member to make room for thIS change there wIll be no further crew or statIOn changes untIl 1 ) a procedure IS developed by management In consultatIOn wIth the staff to ensure a faIr and eqUItable system IS utIlIzed when these changes are made In the future 11 ) that once thIS procedure IS developed It wIll be dIscussed at a local ERC meetIng for formal Input 111 ) It wIll then be forwarded to the Branch ERC for dIscussIOn IV ) once approved by the DIrector the procedure wIll be forwarded to all Mimstry serVIces 4 ) Should It become necessary to make any changes In the Intenm they wIll be dIscussed wIth the umon and employees pnor to beIng Implemented In consIderatIOn of the above terms the Gnevors and the Umon agree to wIthdraw the gnevances It IS understood and agreed that thIS settlement IS made wIthout preJudIce and precedent to any posItIOn the partIes may take In respect to the InterpretatIOn, applIcatIOn or admInIstratIOn of the CollectIve Agreement and the Crown employees CollectIve BargaInIng Act or to such posItIOn In respect to any other matters between the partIes ThIS agreement wIll be ratIfied by the gnevors wIth (SIC) 45 days from February 25 1993 Mr VirgIn acknowledged that he had sIgned the above Agreement, once on behalf of the Umon, and once on hIS own behalf He said that the pnncIple of the above agreement was arnved at on February 25 1993 and that Mr Armstrong saId that he would draft It Mr VirgIn said that he was unhappy wIth the Memorandum of Agreement (Ex 11) but felt that he had no chOIce and recommended to the bargaInIng umt that they sIgn It He said that Mr Armstrong had told them that they 85 could not succeed, on a techmcalIty He said that he agreed to gOIng to a CommIttee because there was a techmcalloophole He demed that there had been more to the February 25 1993 meetIng than he had testIfied to In chIef and saId that he thought that he had made reference to a CommIttee In chIef When advIsed that he had not saId that the matter of refernng the matter to a CommIttee came out of the February 25 1993 meetIng, he said that he had made reference In chIef to dealIng wIth the matter In CommIttee Mr VirgIn acknowledged In cross-eXamInatIOn that para. 2 of the Memorandum of Settlement was part of the understandIng reached on February 25 1993 However he saId that paragraph 3 whIch contemplates no further crew or statIOn changes untIl four CIrcumstances are met, was totally In conflIct WIth what he recalled Mr Armstrong havIng saId on February 25 1993 He agreed that hIS verSIOn would be In total conflIct WIth Mr Armstrong's verSIOn and stated that he dId not remember the umon havIng reqUIred the DIrector's approval He said that he dId not recall dISCUSSIng WIth Mr Armstrong that the contents of para 3 (IV) of the Memorandum IndIcated the umon' s agreement that ItS agreement would be a precedent for other Mimstry-operated ServIces He saId that he dId not recall dISCUSSIng that any necessary "changes In the Intenm" would be "dIscussed WIth the umon and employees pnor to beIng Implemented" as stated In para 4 He said that the Memorandum was a much more elaborate verSIOn of theIr dIscuSSIOn, whIch had been short and abrupt He dIsagreed WIth the suggestIOn that Mr Armstrong agreed WIth the umon on February 25 1993 that a CommIttee was the appropnate way of dealIng WIth "ShIft shuffles" He saId that Mr Armstrong's statement that he would shuffle them In SIX months anyway and the proposal that a CommIttee deal WIth the Issue were dIrectly In conflIct WIth one another He then saId that the Memoran-dum had to be sIgned because the gnevances would faIl In any case When asked why If he felt the Memorandum was so unfair he dId not "go back to the Mimstry" Mr VirgIn saId that one should always gIve such proposals a good try rather than return to the Mimstry so readIly He said that the umon had SInce gIven the matter two 86 years, but was stIll concerned about the pOSSIbIlIty of a "ShIft shuffle" every SIX months Mr VirgIn dId not agree that as soon as Mr Armstrong offered the terms In the Memorandum of Settlement, hIS presentatIOn for the February 25 1993 meetIng became redundant He agreed that hIS presentatIOn was an Issue for the CommIttee and said that It was also Important to gIve It to Mr Armstrong, as he has the ultImate authonty over the CommIttee He saId that Mr Armstrong brought the February 25 1993 meetIng to a qUIck end and dId not tell them to take the presentatIOn to the C ommI ttee Mr VirgIn said that the February 25 1993 meetIng took "3 4 5 or 10 mInutes" and that he had antICIpated It takIng 1 to 1 1Iz hours He said that the dIfference In the actual length of the meetIng In contrast wIth the length he antICIpated It would take stood out In hIS mInd, partIcularly SInce he had receIved 50 letters from the bargaInIng umt members He agreed that they had been SIttIng In a closed sectIOn of the restaurant and may have had two cups of coffee He saId that It can take hIm 5 mInutes to 1 1Iz hours to dnnk two cups of coffee When It was suggested to hIm that Mr Armstrong recalled the meetIng havIng taken more than half an hour he replIed that he dId not belIeve that that was accurate but that hIS memory could always be mIstaken He acknowledged that Mr Hardy's name may have come up but said that he dId not recall any extenSIve reference to Mr Hardy dunng the meetIng When asked whether he recalled any dIscussIOn regardIng coerCIOn or IntImIdatIOn, he replIed "If the Issue came up It was one or two sentences I would thInk" In re-eXamInatIOn, Mr VirgIn acknowledged that the Umon had SIgned an agreement pertaInIng to "ShIft shuffle" and added "It'S not fimshed yet" He said that he belIeved that umon actIVIty had been the pnmary reason for the cancellatIOn of the "ShIft shuffle" He later saId that the above Memorandum of Settlement (Ex 11) had flowed from the February 25 1993 meetIng, and that he belIeved he 87 receIved It a couple of days later He said that It had been so Important to hIm to make hIS presentatIOn at the February 25 1993 meetIng because he had been hopIng to resolve the Issues and thought that the InfOrmatIOn that he wanted to present would demonstrate that the proposal was not In the publIc's staff's or patIents' Interests He reIterated that he had not been satIsfied that Mr Armstrong's wIthdrawal of the proposed "ShIft shuffle" had been the end of the matter as Mr Armstrong had expressed the IntentIOn to do It every SIX months Mr VirgIn advIsed In chIef that the removal of the cots and other rest facIlItIes came as a "total shock" to hIm, as the cots and other rest faCIlItIes had been In the statIOns for 22 years and had also been used by members of management He said that the practIce of the employer at W oodbndge statIOn had been that cots had been used dunng rest pen ods as the norm, a daIly routIne carned out In the open, and fully known to ImmedIate management He said that on the day he began hIS employment WIth the SerVIce (September 1972) Ron Hickle (sp?) was lYIng on one of the cots and Mr Hickle had later become a RegIOnal Officer He saId that whIle an Ambulance Officer Mr Hickle had Installed some of the cots Over the twenty- two years before 1993 dunng whIch he had been an Ambulance Officer Mr VirgIn said, twenty-five members of management had used the cots He named most of the twenty-five He saId that because the people that he had mentIOned had used the cots and had gone to other ambulance offices In the proVInce that It was well known throughout the proVInce that Peel-York Ambulance ServIce had cots and beds Mr VirgIn dId not know whether Mr Armstrong had been aware that beds and cots were present In the Peel-York Ambulance SerVIce statIOns He saId that Mr Armstrong had been RegIOnal Manager of Peel-York from "4 to 6 or 7 years" and that Bryan Clarke was ASSIstant RegIOnal Manager In March of 1993 and In January 1995 Mr VirgIn said that he was qUIte famIlIar WIth the PolIcy regardIng rest penods (Ex 5) that he and the bargaInIng umt membershIp accepted It and had never 88 challenged It He dId not know how long the polIcy had eXIsted, but belIeved had had first seen It 10 to 12 years preVIOusly He advIsed that John Bensette had dIscussed the background to the polIcy wIth hIm, and that he understood from Mr Bensette that before the polIcy had been developed, the practIce had been that Ambulance Officers had removed theIr umforms dunng rest penods whIch had, In Mr Bensette's VIew been Improper Mr VirgIn said that the words "relax In any manner WIthIn propnety" meant "lYIng on the rest cots" whIch had been done for 22 years He agreed that that Included reclImng In a honzontal pOSItIOn He saId that any complaInts anSIng from the momtonng contemplated In the polIcy are drawn to hIS attentIOn If they could lead to dIsCIplIne and that no problem had ever been drawn to hIS attentIOn Mr VirgIn said that there had been no attempt to conceal the cots or beds In the statIOns and that they are not kept In a locked compartment or restncted area He said that for a long penod the beds and cots were In the kitchen at the W oodbndge statIOn, but that more recently they were In an unlocked locker room He saId that management IS on duty 24 hours a day and VISIt the statIOn He said that Manager Fred Hardy approached hIm to speak to hIm whIle he was lYIng on a rest cot Mr VirgIn said that he wrote a letter to Mr Armstrong dated March 16 1993 (Ex 7) because "the members went ballIstIC" over the news of the removal of the cots and other rest faCIlItIes and he feared the membershIp was headIng for "a maJor confrontatIOn" and wanted to ensure that he was statIng the sItuatIOn accurately to the members His letter states Dear Mr Armstrong Re Rest FaCIlItIes - Peel-York & DIstnct Ambulance Further to our telephone conversatIOn of Fnday March 5 1993 I WIsh to be sure I understand the content of our bnef dIscuSSIOn It IS my recollectIOn that your pOSItIOn IS that the ambulance statIOns are not to have rest cots on 89 the premIses for use dunng the rest penods referred to In ArtIcle 12 1 of the CollectIve Agreement I would value a clanficatIOn or confirmatIOn of my recollectIOn I would also apprecIate a copy of any government polIcy on whIch thIS would be based For clanty I am not lookIng for the polIcy on sleepIng, but rather any polIcy whIch defines the facIlItIes whIch can be used by the staff dunng the rest pen ods Thank you for your prompt attentIOn to thIS InqUIry SIncerely R. VirgIn PresIdent OPSEU Local 311 Mr VirgIn said that he requested "a copy of any government polIcy on whIch thIS would be based" because he thought there was a polIcy other than the "Rest Pen ods Dunng ShIftS of Work" PolIcy (ASB P & P 1 - 56 Ex 5 above) that he had "mIssed" Mr VirgIn advIsed that Mr Armstrong wrote back to hIm, but that Mr Armstrong dId not send hIm a dIfferent polIcy He acknowledged havIng receIved a letter from Mr Armstrong dated March 22 1993 (Ex 9) and Memorandum #0061 dated March 19 1993 from ShIft Manager ChnstIne Barber (Ex 8) Ms Barber's Memo (Ex 8) was addressed to all staff on the subJect of "BEDS/ COTS" and stated Please be advIsed, effectIve ImmedIately all eXIstIng beds/cots are to be removed from Peel-York premIses The owners of these cots have untIl Fnday March 26 1993 to remove them, after whIch tIme they wIll be donated to a chantable orgamzatIOn If unclaimed Bramalea StatIOn IS prohIbIted from USIng the bUIlt In beds In the crew quarters however these beds wIll not be removed Regards 90 ChnstIne Barber Mr Armstrong's March 22 1993 letter (Ex 9) addressed to Mr VirgIn, was headed "REST PERIOD POLICY" and stated Dear Mr VirgIn Thank you for your letter regardIng rest facIlItIes at Peel York Ambulance ServIce dated March 16 1993 Please find attached ASB P & P 1 - 56 whIch IS the rest penod polIcy The other Issue you raised IS In regard to statIOn furmture It IS the exclUSIve nght and responsIbIlIty of management to determIne what furmture wIll be allowed In the workplace (ambulance statIOn) It has been determIned by the employer that beds and cots are not to be In the workplace The serVIce Manager was advIsed to have any such furmture removed after a statIOn InSpectIOn by the AssIstant RegIOnal Manager I trust thIS responds appropnately to your letter SIncerely RIchard J Armstrong RegIOnal Manager Central-East Mr VirgIn said that the "serVIce Manager" referred to In the above letter was Grace Fowler and that after a dIscuSSIOn wIth ChnstIne Barber the only commumcatIOn wIth Mr Armstrong regardIng the Issue of beds and cots beIng removed from the workplace was the Apnl19 1993 gnevances (Ex 3 and 4) He said that the AssIstant RegIOnal Manager at the tIme was Mr Clarke In cross-eXamInatIOn, Mr VirgIn acknowledged havIng wntten a "memo" to Mr Armstrong dated Apnl 5 1993 (Ex 10) The memo In the form of a letter was headed "Rest FacIlItIes at Peel-York Ambulance" and stated that It was further to Mr VirgIn's telephone conversatIOn of March 5 1993 wIth Mr Armstrong Mr VirgIn stated In hIS letter that It was "preparatory to dIscuSSIOn on the matter In the near 91 future" He said that the dIscussIOn under the headIng "Unfair Labour PractIces and RetalIatIOn" on page 8 of hIS letter reflected the members' rather than hIS concerns and that those concerns were regardIng the rest facIlItIes He agreed that page 8 of hIS letter dealt wIth IntImIdatIOn or coerCIOn under the Crown Employees' CollectIve BargaInIng Act He dId not dIsagree that the first paragraph on page 8 and the reference to numerous gnevances "and several senous complaInts regardIng the conduct of a management staff' were regardIng Mr Hardy He agreed that he had IdentIfied hIS concerns regardIng antI-umon actIVIty or retalIatIOn In Apnl of 1993 He confirmed that Mr Hardy had told hIm that Mr Armstrong had authonzed the "ShIft shuffle" and on another occaSIOn had told hIm that the Mimstry had contact Mr Armstrong and that Mr Armstrong was upset or angry as a result of the members' complaInts to the Mimstry and acknowledged that the passage Mr F Hardy made suggestIOns that If the ShIft shuffle were obJ ected to or If members make waves, there may have to be "further steps taken" or that "the powers that be" may have to remove the rest facIlItIes at page 8 of the letter refer to hIS eVIdence to that effect Mr VirgIn agreed that Mr Hardy had been threatemng and attemptIng to IntImIdate hIm, and that that was completely consIstent WIth what had been IdentIfied as hIS management style When It was suggested to Mr VirgIn that Mr Hardy had WIelded Mr Armstrong lIke a stIck, Mr VirgIn acknowledged that he dId not know whether Mr Hardy had been tellIng hIm the truth In re-eXamInatIOn, Mr VirgIn stated that Mr Armstrong was responsIble for the antI-umon statements whIch he Mr VirgIn, had Said that Mr Hardy had made He saId that he took Mr Hardy's reference to "the powers that be" who "would have to take further steps" to mean Mr Armstrong "when they were fightIng WIth one another" In eXamInatIOn In chIef, Mr VirgIn saId that he wrote a letter to OperatIOns Manager ChnstIne Barber and met WIth her He Said that he told Ms Barber that as 92 part of the process of resolutIOn, Art 27 reqUIred hIm to dISCUSS the Umon's concerns regardIng the removal of rest cots wIth her but that he was not expectIng her to resolve the matter as It had been Mr Armstrong's decIsIOn to remove the beds and cots Dunng re-eXamInatIOn Mr VirgIn said that Ms Barber had told hIm that she had to carry out her InstructIOns and that that had been charactenstIc of Mr Hardy as well He said that both Mr Hardy and Ms Barber had agreed wIth hIm that they thought they'd resolved that Issue Mr VirgIn saId that AssIstant RegIOnal Manager Mr Clarke works In Mr Armstrong's office In Barne Ontano and that he had had never known Mr Clarke to conduct a statIOn InSpectIOn, that such InSpectIOns are usually done by the Mimstry of Health InspectIOn Office and that the Ambulance Officers usually advIse hIm when InSpectIOns are carned out The office IS he belIeved, called "LICenSIng and InspectIOn" or "InvestIgatIOn" SIX, seven or eIght InSpectIOns have been carned out by that office over the past 22 years dunng whIch Mr VirgIn has worked for the ServIce and he was present at two of them Dunng one of the InSpectIOns the Inspector sat on a rest cot, he advIsed NothIng was saId about the furmshIngs In the statIOn One InSpectIOn occurred In the late 70' s or early early 80' s by Mr Gardner he belIeved, and the more recent InSpectIOn he recalled was done by a woman who worked In Peel-York. He had dIscussed the workplace WIth those Inspectors and they had never raised the cots as an Issue Mr VirgIn then said that he was not at the work sIte when Mr Clarke dId an InSpectIOn, but that other Ambulance Officers told hIm he had done the InSpectIOn He said that he had not dIscussed Mr Clarke's InSpectIOn WIth hIm and that presence of beds and cots had not been a subJ ect of dIspute WIth the employer pnor to thIS tIme In cross-eXamInatIOn Mr VirgIn said that hIS reference at page 8 of hIS Apnl 5 1993 letter to Mr Armstrong (Ex 10) to Mr Bryan Clarke havIng conducted 93 statIOn InSpectIOns "accompamed by the same AssIstant Manager who has for some tIme made antI-umon threats" IndIcated that Fred Hardy had accompamed Mr Clarke Mr VirgIn said that Mr Hardy had not been threatemng to hIm, but had been threatenIng to other bargaInIng umt members He agreed, WIth reference to the folloWIng text at page 9 of hIS letter (Ex 10) TestImony from staff who were present dunng the InSpectIOns IndIcate that any aggreSSIOn and chasIng of "the letter of the law/polIcy" dId not ongInate WIth the Inspector Mr Bnan Clark. Rather It arose from the ASSIstant Manager that the "AssIstant Manager" was Mr Hardy He said that the members had told hIm that Mr Hardy was chasIng "the letter of the law" When asked whether the baSIS of hIS commumcatIOn WIth Mr Armstrong was about ASSIstant Manager Mr Hardy havIng been hostIle and uncooperatIve Mr VirgIn advIsed that the letter contaIned an accurate account of the day of the InSpectIOn He said that he wrote the letter hopIng that IfMr Hardy had been mIsrepresentIng Mr Armstrong's pOSItIOn about the removal of the rest facIlItIes that Mr Armstrong would confirm It He dId not agree that the Issue of workplace harassment and IntImIdatIOn, unfaIr labour practIces and retalIatIOn had been addressed by the Mimstry and said that It was stIll occurnng He agreed that In hIS letter of Apnl 5 1993 he had not IdentIfied such actIOns as occurnng on a RegIOnal level He saId that he had sImply tned to address the Issues that were the subJ ect of the gnevances before thIS panel and that Mr Armstrong's response had not been helpful He then said that he was not concerned about a response on sImply one occasIOn, and that he only became concerned when the response occurs over and over Mr VirgIn advIsed that the gnevances dated June 7 1993 allegIng a vIOlatIOn of ArtIcle A (Ex 1 and 2) had been precIpItated by the events of January to February dunng whIch "the members were gettIng IncreasIngly angry" About two weeks after the rest penod gnevances were filed (Apnl 19 1993) he and Mr Wheelans were notIfied that the employer wanted to hold an Employer/Employee RelatIOns 94 CommIttee meetIng on May 26 1993 and set an agenda In re-eXamInatIOn, Mr VirgIn saId that only hIS ImmedIate superVIsor Wendy Kerngan was gIven notIce that the rest penod gnevances were beIng filed In cross-eXamInatIOn, Mr VirgIn recalled havIng attended an ERC meetIng on Apnl 21 1993 at whIch the subJ ect of ShIft change polIcy came up His attentIOn was drawn to the folloWIng In the mInutes (Ex 13) of the meetIng 9) StatIOn/ShIft Change PolIcy. It was agreed that a JOInt Management/Employee group would be formed to recommend gUIdelInes and procedures to be followed when makIng statIOn or ShIft changes at the serVIce The underlYIng Intent IS to ensure a balance of patIent care expenence and geographIc knowledge IS acqUIred by all staff In regard to the PeellY ork and DIstnct Ambulance ServIce coverage area whIle guarantYIng each crew has the proper blend of thIS at all tImes He said that dIscussIOn around thIS Issue dId not stand out In hIS mInd He acknowledged that he was "relatIvely content" that dIscuSSIOn would take place In another forum, but that not much progress was beIng made In that forum In re- eXamInatIOn he said that he had not been content wIth partIcIpatIOn In the JOInt management group because management had reJected the umon's draft proposal "out of hand" and management's draft proposal stated In flowery terms that the partIes would try to get along He said that If the employer wanted to "shuffle ShIftS" It would, and as a result there was no pOInt to the meetIngs He saId that he had dealt wIth Grace Fowler and ChnstIne Barber regardIng the draft proposal and that they "had to check" wIth theIr manager and could not gIve the umon answers He saId that he assumed that they meant that they had to check wIth "the RegIOnal Manager" The folloWIng pOInt In the Apnl 21 1993 mInutes (Ex 13) was also drawn to Mr VirgIn's attentIOn In cross-eXamInatIOn 18) Problem ResolutIOn. 95 Management confirmed once agaIn theIr commItment to be more responSIve open and proactIve In regard to problem and dIspute resolutIOn Though they recogmze local management may not have been as cooperatIve and open In the past they assured the members that the new management would be Management felt that many of the recent gnevances were beIng submItted wIthout pnor dIscussIOn or attempts at resolutIOn beforehand Ifwe hope to make morale and attItude more posItIve we need to work together to repair the damage that has occurred In the past ThIS can only be achIeved through strengthemng the commumcatIOn and trust relatIOnshIp between the partIes We must all be aware that trust IS developed based on expenence and expenence comes from good commumcatIOn and a wIllIngness to partIcIpate In an honest and open manner He saId that he would not use the word "dIscussIOn" to descnbe what occurred at the meetIng on thIS pOInt He pOInted out that the Minutes (Ex 13) were not sIgned by the Umon and that the words "SEE APPENDIX A ATTACHED" are entered In the space for the Umon sIgnature AppendIx A was not attached to the copy receIved by the panel and was not produced In eVIdence Mr VirgIn said that he belIeved Item 18 was one of the Items whIch had not been accurate In re-eXamInatIOn, he said that he had not been satIsfied wIth the recordIng of thIS Item In the mInutes When asked why he had noted "SEE APPENDIX A ATTACHED" In cross-eXamInatIOn, he said that the mInutes were "far from the truth" and that the greatest offense was the recordIng of Item 18 that he had been present at the meetIng and had heard nothIng of Item 18 Mr VirgIn was shown a document tItled "E.R.C MeetIng May 26 1993" (Ex 14) and agreed that It spoke to the adoptIOn of the prevIOUS ERC mInutes He agreed that there was no reference In Ex 14 to the Inaccuracy of Item 18 of the Minutes of the Apnl 21 1993 meetIng He saId that the recordIng of the Umon's clanficatIOn of the Minutes of the Apnl21 1993 meetIng In Ex 14 dId not reflect the complete clanficatIOns or only the Important clanficatIOns and that Item 18 was not a dead Issue 96 Mr VirgIn said that at the May 26 1993 meetIng, Mr Armstrong advIsed that he would "take away" the lO-hour dayshIfts and 14-hour mghtshIfts ThI s was "extremely controversIal" he advIsed, because these ShIftS had been In place for 17 years and were the only way In whIch the members could predIct and schedule theIr own lIves They had lobbIed for those ShIftS whIch were the same length as those used by the FIre Depart-ment Mr VirgIn said "the commotIOn started all over agaIn" on May 26 1993 and that he receIved many complaInts, and that members vIsIted hIm at the W oodbndge StatIOn and called hIm tellIng hIm that they could not accept the proposal to change the scheduled ShIftS They had Just lost the rest cots and had been threatened wIth a "ShIft shuffle" and were concerned that the changes would not end Mr Wheelans and Mr LeWIS and he had daIly contact Mr LeWIS told hIm that the members of Local 228 were very upset The employer tabled the agenda for the ERC meetIng, whIch meets he advIsed, when an Issue anses He advIsed that they told the members what came out of the May 25 1993 meetIng When the members asked hIm what to do he told them that many gnevances were then pendIng, the Mimster's office was aware of them, that he saw somethIng beIng taken away each tIme the members took any steps to defend theIr nghts and that he could only conclude that management's actIOn was retalIatIOn, and that the only thIng that could be done was to file gnevances of a breach of ArtIcle A.l 2 In cross-eXamInatIOn, Mr VirgIn agreed that Mr Armstrong's "threats" to change ShIft schedules had not occurred He saId that he belIeved that Mr Armstrong served notIce of IntentIOn to do so on three occaSIOns He saId that he had documents of thIS nature from Mr Armstrong as well as Minutes ofE R.C W and correspondence from Renate Krakauer and Graham Brown and undertook to produce them (Subsequently on May 10 1995 the partIes agreed that Mr VirgIn had been refernng to notIces of IntentIOn and correspondence whIch had occurred outsIde the relevant penod of thIS gnevance ) 97 The folloWIng Items at page 3 of the Minutes of the May 26 1993 meetIng (Ex 14) were drawn to Mr VirgIn's attentIOn NEW AGENDA FOR OPSEU 7) MANAGEMENT ACCOUNTABILITY - Management IS to make an effort to present any proposed changes In the workplace first at an ERC meetIng ThIS would allow Input from the Umon, and hopefully a better workIng relatIOnshIp MANAGEMENT AGENDA 1) SCHEDULING - Mr Armstrong stated there IS a pOSSIbIlIty that we need to cahnge (SIC) our present schedule Mr Armstrong stated that Management was lookIng at a vanety of possIble schedules from eIght hours to twelve hour ShIftS NothIng however IS confirmed OPSEU requested a copy of any schedules that Management had, along WIth a copy of the compressed work agreement When It was suggested that Mr Armstrong appeared, from the foregoIng, to have made an effort to present proposed changes In the workplace at an ERC meetIng, Mr VirgIn replIed that they were very happy WIth the content and that It was a hopeful step If It went anywhere and that he hoped that It had not occurred because of the complaInts to the Mimster's office When It was suggested to hIm that Mr Armstrong's remarks re schedulIng were not a "repnsal" Mr VirgIn replIed that they were not, If hIS approach IS maIntaIned He said that If It IS known that employees value a certaIn schedule remOVIng that schedule IS a repnsal and that there IS a potentIal of repnsal In WIthdrawal of schedules He dId not dIspute that Mr Armstrong had not cast hIS dIscussIOn of schedulIng as a threat He said that the ImplIcatIOns ofMr Armstrong's remarks regardIng schedulIng as reflected In the mInutes were that staff mIght lose ItS 10- and 14-hour ShIftS He saId that Mr Armstrong had told staff to dISCUSS hIS remarks regardIng ShIftS WIth theIr local management, and they dId He said that In the first week of October 1994 staff had 98 been told that commenCIng October 27 1994 ShIft lengths would be desIgnated In accordance wIth management's decIsIOn Mr VirgIn acknowledged that In the spnng of 1993 the partIes agreed on a new polIcy to permIt short-term ShIft exchanges between employees and pOInted out that thIS had occurred only after very bItter obJ ectIOn from Mr Armstrong He acknowledged that vacatIOn schedulIng had been revIsed and was stIll under way He saId that he could not be sure that eIther of these matters had occurred before June of 1993 He saId that furnI-ture had been ordered as a result of health and safety complaInts whIch arose as a result of chair legs and backs of chesterfields havIng fallen off Mr VirgIn advIsed that Mr Arm-strong had not been responsIble for any posItIve actIOns on the part of management In the spnng of 1993 He saId that the OperatIOns Manager had been very posItIve and that ShIft SupervIsors had been supportIve of all Items and of the 10- and 14-hour ShIftS Mr VirgIn acknowledged In cross-eXamInatIOn that he had not been famIlIar/ acquaInted wIth AssIstant RegIOnal Manager Bryan Clarke He said that he had been aware of hIS InSpectIOns, although he (Mr VirgIn) had not been present, but that he had not been aware ofMr Clarke comIng In on a regular basIs He demed beIng surpnsed to hear that Mr Clarke had been In Peel-York ambulance statIOns three tImes over 1992 and 1993 He saId that although It was possIble for Mr Clarke to have come In regularly to do InSpectIOns wIthout hIm becomIng aware of It, It was Improbable that he would not become aware of It, because the members Inform hIm of these matters In re-eXamInatIOn, when asked what kInd of an Impact Mr Hardy and Mr Armstrong fightIng tooth and naIl had on the workplace Mr VirgIn saId that Mr Hardy came back to hIm about hIS nghts as though he were a umon member and that the dIsputes between them "became eVIdent In the workplace" He Said that he understood that Mr Hardy had been released follOWIng complaInts about hIS InteractIOn wIth staff and a senes of IntervIews conducted by a person from the 99 Mimstry of HOUSIng He said, WIth respect to the allegatIOn that Mr Hardy had been IntImIdatIng people that he had never really been afraid of hIm and had had very few conflIcts WIth hIm, and that If he had conflIcts, he took them "over hIS head to the RegIOnal Manager" and that after that, he and Mr Hardy "would get along well" Norman House said that he had been employed by the MInIstry at Peel-York Ambulance SerVIces for 19 years ImtIally he had been a member of Local 228 and currently IS a member of Local 311 He saId that he was famIlIar WIth the Heart Lake Lynch and Bramalea statIOns, and that he had worked In them all In cross- eXamInatIOn, Mr House said that he was currently statIOned at W oodbndge and that he had worked In every statIOn In Peel-York. Later he said that he had been at the Woodbndge statIOn SInce approxImately the spnng of 1993 Mr House saId that for the penod from about January 1 1992 to December 31 1993 one couch and 2 rollaway beds/cots constItuted the "rest penod faCIlItIes" at the Heart Lake statIOn "for reclImng honzontally" He said that IndIVIdual Ambulance Officers brought theIr own "rest faCIlItIes" such as air mattresses foam rubber mattresses and sleepIng bags In cross-eXamInatIOn he said that the two rollaway beds were kept In the hallway In the area of the tImecards He said that he observed people USIng them and could not recall who they were He was unable to recall whether he had made that observatIOn between January 1 1992 and December 31 1993 Mr House saId In chIef that at the Lynch statIOn the rest faCIlItIes were two couches, and that as well IndIVIdual officers brought In an aIr or foam rubber mattress a sleepIng bag, and a steel frame canvas cot He agreed In cross- eXamInatIOn that he worked at the Lynch statIOn and that a couple of IndIVIdual officers brought In "camp beds" and added "at one tIme or another" He named one officer but could not recall the name of the other He agreed that they brought theIr "camp beds" and "personal effects" In for a SIngle ShIft He said that he used a foam rubber mattress and that he and the others stored such Items In the garage of the 100 Lynch statIOn, In full VIew of management, and that no questIOns had been asked of them Mr House saId that the Bramalea statIOn IS an old firehall and that there are eIght bUIlt-In beds wIth mattresses, four on each sIde of the room, whIch fold Into the walls and two couches The officers dId not bnng In other Items whIle they were USIng the "beds In the walls" In cross-eXamInatIOn, he saId that the bUIlt-In fold-up beds remaIned In the Bramalea statIOn because the CIty of Brampton owns the bUIldIng and It IS desIgnated a dIsaster locatIOn He saId that he had never been told that the fold-up beds were not to be used for rest penods Bnan Hall said that he had been WIth the Peel-York Ambulance ServIce for 16 years and was famIlIar WIth both the rest penod polIcy as well at the faCIlItIes at RIchmond Hill ThornhIll and W oodbndge Mr Hall descnbed the rest facIlItIes at the RIchmond Hill statIOn at the tIme of theIr WIthdrawal as one set of bunkbeds, two chesterfields and two roll-up foam mattresses He agreed that IndIVIdual Officers brought personal rest facIlItIes Into the RIchmond Hill statIOn WIth them In cross-eXamInatIOn, he advIsed that he had been statIOned at RIchmond Hill when the employer ordered the rest facIlItIes removed The chesterfields were not ordered removed Mr Hall descnbed the ThornhIll statIOn rest facIlItIes as two chesterfields and one rollaway cot He agreed that IndIVIdual Officers brought personal rest faCIlItIes Into the ThornhIll statIOn WIth them He saId that he had worked out of the ThornhIll statIOn on a full-tIme baSIS from July 1982 untIl 1988 and had been back on overtIme aSSIgnments He said that he had not been there between January 1 1992 to December 31 1993 Mr Hall descnbed the rest facIlItIes at the W oodbndge statIOn as one set of bunkbeds two chesterfields and an unspecIfied amount of roll-up foam The roll-up foam was owned personally by the IndIVIdual officers In cross-eXamInatIOn he saId that the foam had been stored In locker rooms and storage rooms He saId that 101 between January 1 1992 and December 31 1993 he had probably worked two overtIme ShIfts at the W oodbndge statIOn, one dayshIft and one mghtshIft, and that he had observed the rest facIlItIes on the mghtshIft He agreed that two officers staff each mghtshIft at the W oodbndge statIOn and that he would have observed what one other person brought In He added that he would also use whatever facIlItIes were there On August 25 1995 the umon' s representatIve advIsed the panel that shortly after May 10 1995 the most recent day of the heanng, the employer removed couches and chaIrs from the statIOns In the Peel-York Ambulance ServIce The umon took the posItIOn that the employer's actIOns In remOVIng the couches and chairs was a further example of the reasons behInd the allegatIOns of a vIOlatIOn of Art 12 and antI-umon ammus It alleged that the employer's actIOns were eVIdence of bad faith and unreasonableness on the part of the employer The umon was seekIng an order dIrectIng that the actIOns of the employer be reversed and thereafter stayed untIl the determInatIOn of the gnevances Counsel for the employer advIsed that In March, 1993 gnevances had been filed under the health and safety provISIOns of the collectIve agreement allegIng that the couches and chaIrs In the Peel-York Ambulance ServIce workplaces were unsafe He advIsed that In response to those allegatIOns and In lIght of the fact that the furmture was In deplorable condItIOn, management had "set about" replacIng It around the end of November 1993 and had ordered new furmture to replace the old furm ture Among the five facIlItIes were five couches and some chaIrs 18 pIeces of furmture In total he advIsed He submItted that In May 1995 the furmshIngs In the statIOns had been returned to the volume or level that eXIsted In 1993 at the tIme of the gnevances and that no antI-umon ammus had eXIsted In the employer's actIOns The umon acknowledged that new couches had been Installed In the statIOns In November 1993 and that It was not In dIspute that the employer had replaced the furnIture that had been there In 1993 It argued that the employer's actIOns In 102 remOVIng the old furmture In 1995 constItuted a further vIOlatIOn of Art 12 In that the removal of facIlItIes whIch permItted the Officers to reclIne honzontally constItuted a change of the practIce concernIng rest pen ods whIch arose between November of 1993 and June of 1995 The umon acknowledged that after the employer removed the old couches and chaIrs In May 1995 the same number of couches remaIned as had been present In 1993 It acknowledged that the couches whIch had been In the statIOns In 1993 had been a health and safety hazard, that there had been gnevances to that effect, and that the new couches arnved as a result of the filIng of the health and safety gnevances It submItted that the presence of antI- umon ammus could be Inferred from Mr Armstrong's reactIOn to the Umon's polItIcal actIvIty regardIng the proposed partner and ShIft changes In 1993 and the fact that the furmture had been removed whIle the gnevances pertaInIng to Art 12 and antI-umon ammus were stIll ongoIng The employer's most recent actIOn altered the bargaInIng umt members' abIlIty to enJoy theIr rest penods and dId absolutely nothIng to foster any type of posItIve labour relatIOns clImate The old furmture had remaIned In the statIOns for about 18 months after the new furmture arnved, and there was no IndIca-tIOn of any operatIOnal reqUIrement to remove It The employer should have permItted the status quo to remaIn untIl the gnevances were resolved Much of the dIspute denves from the human factor The Job of Ambulance Officer IS tough, both physIcally and emotIOnally at the best of tImes The Issue of rest penods IS very Important to them It IS a matter of common sense for the employer not to engage In actIVIty whIch alters the eXIstIng cIrcumstances pertaInIng to rest penods whIle a heanng Into the Issue IS ongoIng The employer's actIOns have had a chIllIng effect and have dnven a wedge between It and the employees The Umon proposes that the status quo as of the date of the heanng commenced be stored, that the old furmture be returned to the statIOns or new furmture to replace the removed furmture be provIded 103 On October 25 1995 the panel VIsIted each of the statIOns In the Peel-York Ambulance ServIce as of the dates of the gnevances to "take a vIew" At the Bramalea statIOn we observed that 8 Murphy beds are bUIlt Into the walls of one room (4 beds on two OpposIte walls) and In the same room were two green three-seat couches on each sIde of a coffee table and a desk In a corner We were advIsed the statIOn IS staffed by four Officers on each ShIft, and that the Murphy beds were last used on March 19 1993 At the Lynch statIOn we observed 2 desks one office chaIr two upholstered arm- chairs and 2 upholstered chairs wIthout arms In a sIde room, and In a "lIvIng room" two new green couches and one fully-upholstered armchair ThIS statIOn IS staff by four Officers on each ShIft as well At the Heart Lake statIOn we observed one 3-seater couch, a wooden coffee table a wooden chair and a desk and a teleVISIOn set In the front room Lockers are located at the back. A small room for storage IS located behInd the garage at thIS statIOn At the W oodbndge statIOn, we observed a green couch, one upholstered chair one wooden chair one desk, and two coffee tables one rectangular the other square In the "crew room" We observed the locker room, whIch had prevIOusly housed two bunkbeds We observed one wooden table two wooden chairs and an upholstered office chaIr In the office/kitchen ThIS statIOn IS staffed by a two- person crew At the RIchmond Hill statIOn we observed one dInIng or kitchen table and four wooden chaIrs to one sIde of the maIn room, as well as well as two green three- seat couches around a coffee table on the other sIde of the room The two green three-seat couches replaced two old brown couches whIch were removed and dIsposed of In May 1995 The garage was adJacent to the room In whIch the table and chairs and couches and coffee table were located, and was accessed dIrectly through a door near the table and chairs A stock room was sItuated on the other sIde 104 of the garage Two bunkbeds were formerly located In the stock room Four Officers staff thIS statIOn on each ShIft The ThornhIll statIOn IS a fire statIOn as well as an ambulance statIOn It IS occupIed by four firefighters and two Ambulance Officers on any gIven shIft We observed one three-seat green couch, two 3-seat couches whIch belong to the Markham FIre Department, and two upholstered chaIrs, as well as two kitchen tables and seven hard chaIrs There are SIX beds In the firefighters' locker area, supplIed by the Markham FIre Department The Ambulance Officers' locker area IS located In the basement, where there IS one upholstered chaIr and one upholstered wooden arm chaIr On January 24 1997 we heard further submIssIOns wIth respect to our JunsdIctIOn regardIng the umon's motIOn for Intenm relIef We Issued an Intenm rulIng as to JunsdIctIOn on March 11 1997 The heanng was reconvened on Apnl 17 1998 at whIch tIme the umon' s representatIve advIsed that he dId not see any advantage to purSUIng the Issue of Intenm relIef The employer's new counsel advIsed that he wIshed to call eVIdence wIth respect to the hIstory of the rest polIcy and the matter of cots In the statIOns to proVIde a proper context, before argUIng the Art 12 vIOlatIOn The umon was opposed to the employer entenng eVIdence on those matters After the conclUSIOn of argument, upon careful conSIderatIOn of the opemng statements of the partIes of the eVIdence that had been heard to date and of the partIes' arguments we ruled orally that the employer could present eVIdence on those matters The umon advIsed that ItS eVIdence was not yet completed On August 17 1998 the partIes agreed that the folloWIng Memo (Ex 17) would be admItted Into eVIdence on consent Date Apnlll 1994 Memo No 1084 FIle No 10500-0 -1 MEMORANDUM TO Mr B LewIs - V P Local 228 Mr R. VirgIn - PreSIdent Local 311 105 FROM G Fowler Manager RE Compressed Work Week Arrangement/ Vanable work Hours Agreement ----------------------------------------------------- ----- The latest sIgned compressed work week agreement I have IS dated June23 1987 You are hereby beIng gIven notIce of my wIsh to renegotIate thIS agreement I have been advIsed by our RegIOnal Office that the ShIft length must not exceed twelve (12) hours In duratIOn A new agreement IS to be forwarded to the RegIOnal Office before the end of Apnl 1994 Please find enclosed a copy of the proposed schedule and a revIsed compressed work week agreement Yours response IS expected by Apnl 18 1994 I belIeve thIS wIll gIve you enough tIme to revIew the new schedule and agreement Please call me If you have any questIOns In regard to thIS memorandum Grace Fowler GF/cw cc OperatIons Managers The Umon also submItted a copy of a letter to Mr Patterson wIth photocopIes of a number of letters from members of the bargaInIng umt addressed to the Mimster of Health and to her SpecIal AssIstant (Ex 18) as eVIdence of the members' "polItIcal actIvIty" In January and February 1993 On August 17 1998 Steven Wheelans advIsed In chIef that he had been hIred In August, 1985 and had been workIng for Peel-York Ambulance ServIce for 13 years He IS currently a ParamedIc 1 and Second Vice-PresIdent of Local 228 whIch covers the Bramalea, Brampton and Heart Lake StatIOns He held the posItIOn 106 of ActIng ChIef Steward In 1993 He had almost daIly contact wIth Mr VirgIn In hIS capacI ty as PresIdent of Local 311 In cross-eXamInatIOn he advIsed that he had partIcIpated In ERC meetIngs SInce 1991 for the most part as Shop Steward He had not been Involved wIth ERC meetIngs before 1991 He dId not thInk he would be aware of whether certaIn Issues had been raised pnor to 1991 In 1991 he became ActIng ChIef Steward, and there were regular meetIngs of all Stewards and actIve Officers In the ambulance sector of Local 228 He belIeved that Ken Gore had been the Manager of Peel-York In 1991 Fred Hardy had been the AssIstant Manager that year He dealt wIth Mr Hardy as Shop Steward and ActIng ChIef Steward regardIng potentIal and actual gnevances and any concerns the staff raised regardIng the serVIce Mary Anne Locke had been PresIdent of Local 228 from 1991 to 1993 Local 228 covers more than one Mimstry and Ms Locke works In another Mimstry She dId not meet wIth Mr Hardy she dealt wIth "court" matters The Local Vice- PreSIdent handled the ambulance Issues Mr Wheelans was not the person In the hIghest posItIOn of responsIbIlIty for ambulance matters When Mr Wheelans became ChIef Steward, Bob LeWIS was Just startIng to actIvely partICIpate as 2nd Vice PreSIdent of Local 228 In late December of 1992 or early 1993 the members were gIven notIce of a "ShIft shuffle" 1 e that Officers would be moved from the partners they worked wIth and from statIOns they had worked out of for qUIte a long tIme He confirmed that the members filed gnevances and "engaged In a large degree of polItIcal actIVIty" 1 e the members wrote and telephoned MPPs and the Mimster of Health and the Mimster's SpeCIal AssIstant Peter Block. He acknowledged that the letters appended to Ex 18 were some of the letters to whIch he referred Mr Wheelans IdentIfied the folloWIng letter (Ex 19) as one whIch he authored February 11 1993 Steven Wheelans 107 OPSEU Local #228 PeellY ork DAS TO WHOM IT MA Y CONCERN ThIS letter IS an InfOrmatIOnal document, to let you know what IS currently happenIng at PeellY ork and DIstnct Ambulance ServIce One month ago we were made aware of proposed staffing changes whIch would entaIl the movement of approx 1J4 of our full- tIme staff No reason was gIven other than It beIng "MANAGEMENTS RIGHT TO MANAGE" The changes Involved are breakIng up good partnershIps and puttIng staff In unfamIlIar areas ThIS wIll serve to delay Ambulance response tImes and Increase the rate of InJunes due to unfamIlIanty In our local #228 18 of 41 Full-TIme Staff members are to be moved, In most cases wIth no consultatIOn from Management Of the 18 beIng moved, over half have filed gnevances In the past 6 months or are currently serVIng as Umon Stewards I myself am a Steward My wIfe works for the serVIce as well WIth the proposed move I am beIng placed on a ShIft that IS completely OppOSIte to my wIfe's I wIll be off wIth her now only 3 days each month!! My wIfe has had her partner of 1 and 1Iz years taken away from her We have a female staff member Involved In thIS move who 6 months ago filed a charge of sexual harassment agaInst a superVIsor SInce she laid the charge she has been splIt from her partner moved to a statIOn where she was In contact wIth the above mentIOned superVIsor (It took a phone call from myself to Mr Graham Brand, DIrector of Ambulance ServIces to get thIS woman moved back to her ongInal statIOn) and she has had 4 dIfferent partners So much for "0" tolerance for retalIatIOn A male who used to work at the ThornhIll statIOn was moved to Bramalea, after he made hIm home In ThornhIll He then moved to the MissIssauga area, and IS currently beIng moved back to ThornhIll! ! ! Our ChIef Steward has been workIng at the Brampton StatIOn for all of hIS 22 years of serVIce He IS slated to be moved In the upcomIng shuffle!! ! The Ambulance busIness IS a very stressful one We make decIsIOns each day that affect people's lIves Under our current Management structure we are forced to lIve and work In the constant fear that we may be transferred accross (SIC) our serVIce WIth no reason gIven Our serVIce convers (SIC) the cItIes of Heart lake 108 Brapton, (SIC) Bramalea, Malton, Northern MissIssauga, Caledon, Vaughn, (SIC) Woodbndge part of North York and York, RIchmond Hill ThornhIll and part of Markham ThIS area IS far too large for anyone to learn effectIvely We all know our IndIVIdual areas but If Management changes us every 6 months you can see where problems wIll an se We have approached our Management team and asked them to locally negotIate a shIft change polIcy They refused We tned to adopt a polIcy through our ERC (Employee relatIOns CommIttee) process but agaIn we were refused We have asked Management to walt for the Mimstry level ERC to look at the problem but we agaIn, were refused Management does have the nght to manage But, they must do so In good faith, and WIthout preJudIce We belIeve that the aforementIOned sItuatIOns and others Just lIke them are creatIng a pOIsoned work envIroment (SIC) Unfortuneatly (SIC) the person who ends up suffenng the worst IS the publIc We respectfully request that you use whatever means pOSSIble to stop the current lIst of moves (due to take effect on March 1 1993) and launch an ImmedIate InqUIry Into the Management practIses at PeellY ork and DIstnct Ambulance SerVIce I have proVIded my home phone number below In case I can be of any aSSIstance to you ThankIng you In advance for your prompt attentIOn to thIS Important matter Respectfully SubmItted, Steven Wheelans (telephone number) Mr Wheelans advIsed that SpeCIal ASSIstant Peter Block spoke WIth hIm In reply on the telephone and Mr Block saId that he would look Into the matter and report to the Mimster of Health Mr Wheelans saId that was not "cc' d" a copy of Mr VirgIn's Febru-ary 20 1993 letter (Ex 6) because he essentIally co-authored It 109 wIth Mr VirgIn and they had exchanged drafts He agreed that the Memorandum of Settlement referred to In the letter was about the "ShIft rotatIOn" Mr Wheelans said that at the February 25 1993 meetIng, he and Mr VirgIn had been unable to deal wIth any Items on the agenda In the letter He said that they had wanted to address them, because they were concerned that the proposed staff rotatIOn would cause more problems than It would solve and there had been no ERC opportumty to address them He and Mr VirgIn had set up a presentatIOn to show Mr Armstrong that the ShIft shuffle was a bad Idea. Mr Armstrong told Mr VirgIn not to bother that he had cancelled a ShIft shuffle but also saId that he had InstItuted a polIcy whereby 1/3 of the staff would be rotated every 6 months He and Mr VirgIn said to Mr Armstrong that they dId not thInk that that was a good Idea, and he replIed that It was too bad, that It was settled, and anyway he had a meetIng to get to He said that he later learned that the meetIng Involved the dIsmIssal of Fred Hardy who he IdentIfied as the ActIng Manager of the Ambulance SerVIce Mr Wheelans Said that the meetIng was "maybe 10 mInutes" He descnbed Mr Armstrong's attItude as "very sort of abrupt" and said that Mr Armstrong dId not seem to have any deSIre to hear what they had to say "Y ou've got what you want No ShIft shuffle I'll Just orchestrate one every SIX months" Mr Wheelans saId that the Item "Threats IntImIdatIOn and antI-umon actIVIty" was on the agenda In Ex 6 because he and Mr VirgIn had been approached by members of theIr Locals regardIng threats that the members had receIved from ActIng Manager Fred Hardy and threats from hIm that If the umon or polItIcal actIVIty dIdn't stop somethIng was gOIng to happen Mr Wheelans advIsed that the ShIft rotatIOns had been "SIgned off' and that a commIttee had been formed to deal WIth "staff movement" and that no SIgned agreement dealIng WIth that Issue had been reached Pnor to January 1993 Mr Wheelans saId In cross-eXamInatIOn, he was not aware that management was consIdenng reaSSIgnIng officers from one statIOn to another PrevIOusly reaSSIgnment to dIfferent statIOns had been done "one person at 110 a tIme" He dId not belIeve that It had been commumcated over 1992 to 1993 that management felt that It had the nght to ShIft people between statIOns He acknowledged that he had a dIscussIOn regardIng some reassIgnments (as opposed to large-scale reassIgnments) In early 1993 and saId that he first heard of general reassIgnments around January of 1993 ImtIally from "general rumblIngs" and then staff came to umon representatIves WIth letters pertaInIng to statIOn changes at whIch tIme the umon representatIves realIzed the magmtude of the proposed changes It had not been raIsed In ERC meetIngs before 1993 He acknowledged that he had not attended all the ERC meetIngs before 1993 When asked whether there were legItImate reasons for mOVIng Ambulance atten-dants from one statIOn to another e g so they can learn the geography of another area, Mr Wheelans said that when the umon representatIves tned to approach management, they were told that management wanted to make a change and were "never" told the "good pOInts" He said that they wanted to tell management the "bad pOInts" Fred Hardy ImtIally commumcated the decIsIOn to transfer Ambulance Officers In January 1993 Mr Wheelans agreed that Mr Hardy dId not ongInate the decIsIOn to transfer Officers He saId that Mr Hardy dId not IdentIfy at that tIme the person who "claimed ownershIp" of the decIsIOn, and agreed that Mr Hardy had said somethIng to the effect that he was SImply ImplementIng the decI SIOn When asked what the Umon' s efforts had been to learn more about the decIsIOn to reaSSIgn Officers to dIfferent statIOns Mr Wheelans saId that they ImtIally tned to work wIth local management, 1 e Mr Hardy to see If there was room for movement, and Mr Hardy told them that "management" had deCIded to make a change Mr Hardy InSInuated that the decIsIOn had ongInated from "hIgher up" and dId not gIve names He advIsed that they filed gnevances In order to adhere to the stnct tIme lImIts In the collectIve agreement, and at the same tIme he and Mr VirgIn tned to deal wIth Mr Armstrong and arranged the February 25 1993 meetIng Mr Wheelans dId not IndIcate whether there were any attempts to commumcate wIth Mr Armstrong pnor to the Memorandum of Agreement whIch he and Mr VirgIn 111 sIgned on February 21 1993 (Ex 16) He said that they faxed It to Mr Armstrong In advance of the meetIng He saId that he recalled draftIng the ongInal verSIOn of the agreement referred to In Mr VirgIn's February 20 1993 letter to Mr Armstrong (Ex 6) He said that vanous drafts went back and forth Mr Wheelans dId not respond dIrectly to the suggestIOn that It appeared that the ongInal draft Agreement had not been enclosed wIth the February 20 1993 letter (Ex 6) He said that vanous drafts went back and forth Mr Wheelans could not recall whether an Intenm agreement had been reached pnor to the February 25 1993 meetIng or before the Memorandum of Settlement sIgned March 27 - Apnl2 1993 (Ex 11) He saId that the Memorandum he and Mr VirgIn had sIgned on February 21 1993 (Ex 16) was a proposal to hold thIngs In abeyance past the Second Stage In the gnevance procedure In re-eXamInatIOn, he saId that the umon and employer agreed to the terms In Ex 16 but that It was sent to Mr Armstrong pnor to the February 25 1993 meetIng, and It was not sIgned, because Mr Armstrong dId not accept It He said that Mr Armstrong sIgned Ex 11 on March 17 1993 and that as a result, the gnevances regardIng the "ShIft shuffle" were wIthdrawn When asked why It was so necessary to make a presentatIOn to Mr Armstrong at the February 25 1993 meetIng, gIven the agreements Mr Wheelans saId that he and Mr VirgIn dId not VIew the proposed "ShIft shuffle" as beIng In the publIc Interest He said that at the February 25 1993 meetIng, Mr Armstrong saId that he was "stoppIng" the "ShIft shuffle" but said that tWIce a year he would shuffle 1/3 of the staff He agreed that pnor to February 25 1993 he had not known that Mr Armstrong was wIthdrawIng the ShIft shuffle He said that he dId not have Mr Armstrong's letter dated February 22 1993 (Ex 12) at the tIme of the February 25 1993 meetIng He agreed that the plan was that an ERC meetIng would be held wIthIn 6 months ofMr Armstrong's decIsIOns He agreed that the meetIng was "around" ten to fifteen mInutes long When asked why gIven that the Issues In the 112 specIfic gnevances were dealt wIth by cancellIng the "ShIft shuffle" scheduled for March 1 1993 he thought Mr Armstrong had an antI-umon ammus Mr Wheelans advIsed that that was hIS ImpressIOn from Mr Armstrong's manner of presentatIOn He said that Mr Armstrong commumcated to hIm and Mr VirgIn that they had won the battle but that he would WIn the war that he would InstItute a polIcy whIch would permIt hIm to undertake large-scale movement of staff When It was suggested to Mr Wheelans that that would be up to the ERC meetIngs he said "no It sounded fixed" When asked whether there would be umon Input at the ERC meetIngs he replIed "lImIted" He agreed that an "agreement In pnncIple" had been reached at the February 25 1993 meetIng In re-eXamInatIOn, hIS attentIOn was drawn to the statement "The arrangements for the February 25 1993 meetIng are acceptable and I look forward to a qUIck resolutIOn to thIS Issue" In Mr Armstrong's letter to Mr VirgIn dated Febru-ary 22 1993 (Ex 12) and he said that Mr Armstrong had not contacted hIm to cancel the meetIng He saId that he dId not Interpret Mr Armstrong's statement In hIS letter (Ex 12) that he was InstructIng Peel-York management to postpone the ShIft changes as the final outcome of the Issue He saId that he dId not have much faith In the ERC process, as the umon was not havIng much luck wIth the Issues It brought to the meetIngs He said that the Issues of cots In the statIOns the "ShIft shuffle" and statIOn transfers were "barely mentIOned" at the ERC meetIngs, whIch, he agreed, Mr Armstrong regularly attends Mr Wheelans saId In cross-eXamInatIOn that the threats to the effect that If umon actIVIty dIdn't stop there would be consequences had been made by "largely Fred Hardy" He descnbed Mr Hardy as "a brash IndIVIdual" and said that Mr Hardy never threatened hIm, but that he understood that Mr Hardy had threatened hIS co- workers When asked whether Mr Hardy had saId that others were responSIble for the proposed "ShIft shuffle" he said that Mr Hardy had said that people "hIgher up" In the Mimstry were upset WIth what was gOIng one He acknowledged that what he heard had been vague and Said that Mr VirgIn had clearer InfOrmatIOn. He acknowledged that he was aware that allegatIOns of harassment and sexual 113 harassment and "thIngs along that lIne" had been made agaInst Mr Hardy and agreed that Mr Hardy no longer works for the Mimstry Mr Wheelans said that after the ShIft rotatIOn matter another Issue whIch caused the members concern was the employer's IntentIOn to remove theIr rest cots whIch had been at the statIOns for 20 to 25 years He said that he had co-authored Mr VirgIn's March 15 1993 letter to Mr Armstrong (Ex 7) He saId that he was aware that Mr VirgIn had dIscussIOns WIth Mr Armstrong regardIng the rest penod faCIlItIes He said that SInce he'd been WIth Peel-York Ambulance ServIce rest penod and rest penod furmshIng had not been an Issue untIl that pOInt Mr Wheelans descnbed the practIce concermng rest penod at Peel-York as havIng always been that staff made use of a whole vanety of eqUIpment When they had no dutIes or calls, people could relax, on beds bunk beds air and foam mattresses and couches USIng pIllows, blankets and sleepIng bags He said that the practIce had been ongOIng SInce he began to work at Peel-York. Mr Wheelans advIsed that he was famIlIar WIth Ms Barber's March 19 1993 notIce that all eXIstIng beds/cots were to be removed from Peel-York premIses by March 26 1993 (Ex 8) He advIsed that when It was Issued, the members were qUIte upset, and VIewed IS as the second "assault" In a short penod of tIme He said that the "Procedure" pertaInIng to Rest Pen ods In the PolIcy Manual (Ex 5) means that the practIce has been that when your dutIes are completed, you can use your rest penod as you lIke but that you must respond ImmedIately to calls Mr Wheelans saId that management had never raised the Issue of beds and cots WIth hIm, and that he was not aware of any employer concerns about slow response tIme to calls He advIsed that each statIOn has a polIcy bInder and that as far as he knew management momtored the practIce around rest penod In the statIOns Mr Wheelans advIsed that hIS colleagues dId not attempt to hIde theIr utIlIzatIOn of beds cots and personal furmshIngs dunng rest penods, and that theIr use was known to the employer 114 Mr Wheelans advIsed that he had been aware that AssIstant RegIOnal Manager Mr Clarke had done an InSpectIOn He saId that someone from LICenSIng and InvestIga-tIOn Branch normally Inspects and no one from that Branch raised the matter offurmsh-Ings The Issue first arose In March, 1993 In cross-eXamInatIOn, Mr Wheelans saId that there had been no cots beds or bunkbeds at the Lynch/Brampton statIOns In early 1993 but that he was aware that there were cots at other Peel-York statIOns and that management knew there were cots etc at the other statIOns He saId that he saw seven or eIght people who are currently manage-ment use them He said that Peel-York ambulance has 24-hour Duty Officer coverage and that the Duty Officers are management There had been no effort to hIde the cots and the foam and aIr mattresses they had not been used as frequently dunng day ShIftS as dunng mghtshIfts as day ShIftS tend to be a lot busIer Mr Wheelans recalled that W oodbndge statIOn had bunk beds then sIngle beds whIch were always In the locker room He said that Bramalea had pull-down beds, whIch were put up dunng the day The Heart Lake statIOn had a rollaway cot whIch was stored In the back hallway In lockers, or In the garage near the eqUIpment room, when It was not In use The ThornhIll statIOn IS a shared space WIth the FIre Department and the Officers used the firefighters' beds and couches In the lIvIng room area of the statIOns He agreed that the Mimstry proVIdes couches In all statIOns, but advIsed that ThornhIll was the exceptIOn He advIsed that before the Apnl 19 1993 gnevances (Ex 3 and 4) were filed, Mr Armstrong had been In the statIOns, most frequently In Bramalea, but that Mr Armstrong had never told hIm dIrectly that he knew that beds and cots and mattresses were used dunng rest penods He said that all the ShIft Managers on sIte knew of theIr use He was uncertaIn as to whether ShIft Managers were management He saId there had been no dIrect commumcatIOn between the umon and management that IndIcated that management knew about the presence of the beds and cots and mattresses He recalled dIscuSSIOns WIth management respectIng the Rest Penod PolIcy (Ex 5) In whIch Issues were antICIpated He said that ShIft Managers and SupervIsors told 115 staff that when they were USIng the rest facIlItIes (beds cots and mattresses) they were not to take off theIr boots He agreed that neIther AssIstant RegIOnal Manager Bryan Clarke nor anyone In RegIOnal Office (Barne) had gIven the Umon an InterpretatIOn of the Rest Penod PolIcy He saId that management had told staff to use the rest facIlItIes only dunng mghtshIfts and to tIdy them up before the dayshIft staff came In He was not aware of any com-plaInts or InVestIgatIOns or reports lookIng at the response tIme of staff USIng the rest facIlItIes He saId that management IS supposed to momtor those Issues and that the dIspatch centre IS reqUIred to report any delayed response to management, and such delay IS to be brought to the attentIOn of the crew whereupon management would become Involved In re-eXamInatIOn, he advIsed that If there were dIfficultIes wIth response tIme the employer would bnng It to the employee's attentIOn, eIther through counsellIng or dIscIplIne and would bnng the matter to the umon for assIstance Mr Wheelans Said that shortly after the Issue of the furmshIngs used dunng rest penods arose In late Apnl 1993 staff receIved notIce that the employer wanted to change the compressed work week whIch had been In place With reference to the Minutes of the Apnl 21 1993 ERC meetIng (Ex 13) he advIsed that the reference to "ShIft exchange polIcy" on page two of the Minutes was to the practIce of employees exchangIng theIr ShIftS wIth one another The Item tItled "StatIOn/ShIft Change PolIcy" pertaIned to ShIft rotatIOn The first tIme the Issue had been dealt wIth In the ERC meetIng was on Apnl21 1993 There had been a dIscuSSIOn regardIng changes to the staff schedules at the May 26 1993 ERC meetIng He agreed that Mr Armstrong had saId that they were gOIng to change the compressed work week schedules The staff response was "outrage" he advIsed, as thIS was the thIrd long-standIng practIce to be changed wIthIn three months He saw Mr Armstrong as responSIble and acknowledged that he dId not know If anyone to whom Mr Armstrong reported had made the decIsIOns Mr Wheelans descnbed the clImate of labour relatIOns wIth Mr Armstrong as "very poor" The Umon felt that there had been no attempt by the employer to 116 deal wIth these Issues "on the ground floor" by whIch he meant to advIse the Umon and/or staff of the problem, suggest possIble solutIOns and request suggestIOns from the Umon Mr Wheelans said that although ShIft lengths were brought up at the ERC meetIng, manage-ment told the umon representatIves that If they dId not agree to 12-hour ShIftS that 8-hour ShIftS would be Imposed on them At the tIme the staff worked lO-hour dayshIfts and 14-hour mghtshIfts on a compressed work week schedule ThIS was attractIve to the mem-bershIp he said, because the vast maJonty of work, emergency work and transfers, occurs on the dayshIft Nights are "qUIeter" The 10- and 14-hour ShIftS mIrror the ShIftS of the FIre Department On fire scenes Ambulance Officers are Involved In a "tIer response system" The FIre Dept IS dIspatched at the same tIme as the Ambulance SerVIce The Ambulance Officers traIned and work WIth the same fire crews whIch results In Improved effiCIency and serVIce to the publIc The 10- and 14-hour ShIftS were also benefiCIal In enablIng "famIly tIme" The proposals to rotate ShIftS remove rest cots and change the compressed work week schedules were Important to the umon representatIves and to the membershIp In cross-eXamInatIOn, Mr Wheelans acknowledged that each Officer worked one 16-hour ShIft every 28 days pnor to the proposal to alter the compressed work week ShIftS from 10- and 14-hour ShIftS He saId that the Brampton FIre Dept serVIces the west sIde of the Peel-York geographIc area, the Vaughan, RIchmond Hill and Markham FIre Depts serVIce other parts of Peel- York's area. Almost all the FIre Departments had the same ShIftS as the Ambulance servIce He agreed that In Apnl 1993 a commIttee had been struck to deal WIth the compressed work week, of whIch he had been a member and that the partIes had been unable to reach an agreement on the subJect In 1993 He saId that they engaged In umon actIvIty and that proposals were blocked at that tIme Then he saId that there had only been a commIttee to address staff rotatIOn, and there had not been a commIttee to deal WIth the compressed work week. In re-eXamInatIOn he advIsed that the 10- and 14-hour ShIftS had been In place when he commenced hIS employment WIth the serVIce he 117 understood that the partIes had agreed to thIS partIcular compressed work week arrangement In response to the Mimstry's proposal to change the compressed work week, Bob Patnck and OPSEU took the change to the Mimstry ERC and that stopped the changes He said that Mr Armstrong "always seems to" have a finger on the pulse of what IS occurnng In the ambulance statIOns but that he dId not have much dealIng wIth AssIstant RegIOnal Manager Bryan Clarke On August 17 1998 the partIes agreed to the IntroductIOn Into eVIdence of a document lIstIng the names of the Managers and RegIOnal Managers responsIble for the admInIstratIOn of Peel- York Ambulance SerVIce sInce 1984 and the years dunng whIch they were so responsIble (Ex 20) Mr Bryan Clarke advIsed that he was employed by the Ottawa Ambulance SerVIce In 1972 In December 1973 the ProVInce of Ontano took over the admInIstratIOn of the Ottawa and 9 other ambulance serVIces and he contInued hIS employment and has been employed by the ProVInce of Ontano SInce 1973 In 1998 he was ProJ ect Transfer Manager wIth Emergency Health ServIces, and In 1993 and In 1998 stIll WIth Emergency Health SerVIces was AssIstant RegIOnal Manager for Central-East Ontano currently desIgnated "RegIOn 3" He advIsed he had been AssIstant RegIOnal Manager for "RegIOn 3" In 1984 and that "RegIOn 3" serVIces 41 related ambulance serVIces, 6 base hospItals 1 "assocIated base hospItal" and one regIOnal traInIng coordInator WIthIn "RegIOn 3" are thIrty-three types of ambulance serVIces IncludIng seven "Mimstry" ambulance serVIces one of whIch IS Peel- York Ambulance SerVIce The other types of serVIces are IdentIfied as "pnvate" "hospItal" "Crown" "mumcIpal" and "volunteer" The RegIOnal Office IS responSIble for the finanCIal and operatIOnal aspects of the serVIces and ensures that ambulance serVIces In Ontano follow the approp-nate legIslatIOn It proVIdes qualIty assurance respectIng ambulance serVIce and dIrect patIent care 1 e Ambulance Officers delIver patIent care and IS dIrectly responSIble for labour relatIOns In the Mimstry's serVIces RegIOnal Manager Mr RIchard Armstrong IS responSIble for labour relatIOns In Peel-York and In hIS absence Mr Clarke IS responSIble for It In 118 cross-eXamInatIOn, Mr Clarke agreed that Issues of contentIOn would more lIkely be brought to Mr Armstrong's attentIOn ImtIally rather than to hIS attentIOn Mr Clarke advIsed that Graham Brand, the DIrector of Ambulance ServIces heads the Health ServIces Branch The AssIstant DIrector Malcolm Bates reports to the DIrector There are SIX RegIOns In the ProVInce each wIth ItS own RegIOnal Manager who report to the AssIstant DIrector Mr Armstrong IS RegIOnal Manager of RegIOn 3 Each RegIOn has an AssIstant RegIOnal Manager of whIch Mr Clarke IS one There are seven Mimstry ServIces whIch report to Mr Clarke and Mr Armstrong four ambulance serVIces and three central ambulance commumcatIOn centres Peel-York Ambulance ServIces had one AssIstant Manager and several SupervIsors In cross-eXamInatIOn, Mr Clarke saId that SInce 1984 there had been a number of Peel-York SerVIce Managers who report dIrectly to the RegIOnal Manager now Mr Armstrong There are currently seven ServIce Managers In RegIOn 3 Between 1984 and 1993 he had seen a number of ServIce Managers come and go Mr Hardy was ActIng Manager of Peel-York Ambulance ServIce from 1991 untIl late February 1993 He was succeeded as ActIng Manager by Mr John Cunnane who replaced hIm for about one month Grace Fowler became Manager after Mr Cunnane and she has remaIned In that posItIOn sInce 1993 Between 1987 and 1991 Peel-York was admInIstered wIthIn RegIOn 2 and In 1991 Peel-York returned to RegIOn 3 where It has remaIned to date In cross-eXamInatIOn Mr Clarke clanfied that he had been ActIng RegIOnal Manager for Peel-York Ambulance ServIce from 1984 to 1987 and SInce 1991 to the present He had not been ActIng RegIOnal Manager for Peel York between 1987 and 1991 whIle Peel-York was admInIstered under "RegIOn 2" He agreed that hIS tenure as AssIstant RegIOnal Manager wIth responsIbIlIty for Peel-York Ambulance ServIce WIthIn RegIOn 3 from 1984 to 1987 and 1991 to 1993 when the gnevances were filed, had been 5 years Mr Armstrong became hIS RegIOnal Manager In 1991 119 when Peel-York was returned to RegIOn 3 and Fred Rusk had been hIS prevIOus RegIOnal Manager Mr Clarke saId that hIS posItIOn reqUIres hIm to do InSpectIOns of 41 regIOnal serVIce statIOns He tnes to Inspect the statIOns at least tWIce a year He Inspected the SIX Peel-York Ambulance statIOns on February 22 1993 His prevIOus InSpectIOn of them was "probably SIX months pnor" He saId that one of the reasons for InspectIng the Peel-York statIOns on February 22 1993 was that It was part of hIS responsIbIlIty as AssIstant RegIOnal Manager Another reason, he said, was that there had Just been a competItIOn for Manager of Peel- York Ambulance ServIces and Fred Hardy was not the one who was successful It was hIS (Mr Clarke's) role to assure staff that the serVIce was stIll beIng provIded appropnate management Mr Clarke saId that he dId not dISCUSS hIS IntentIOn to make hIS February 22 1993 InSpectIOn WIth Mr Armstrong, as InSpectIOns were the responSIbIlIty of the ASSIstant RegIOnal Manager Mr Armstrong was extremely busy and he dId not feel It was necessary to Inform hIm Mr Clarke Inspected each of the SIX statIOns WIth Mr Hardy When asked what he was lookIng for Mr Clarke saId that normally In the regIOnal office there are eqUIpment, financIal and operatIOn files He saId "we reVIew the files WIth the managers and see If they have any outstandIng Issues" He said that he VISItS each statIOn and makes sure that they are "presentable 1 e neat and tIdy" He Inspects the InSIdes of the vehIcles and Inspects theIr stock supply and makes sure the base IS In good shape Mr Clarke saId that he belIeved he Inspected the RIchmond Hill statIOn first, as one ofMr Hardy's offices was located there He agreed that he notIced beds or cots and saId that there were two bunk beds In a closed umt off the garage He saId that he had seen them there on a prevIOUS VISIt and that they had been the subJect of comment between "ourselves and management of the serVIce" and were to be removed when renovatIOns were done The renovatIOns were not done untIl 1993 - 94 They should have been done 6 years earlIer AccordIng to "management" he 120 Said, the beds were to be removed and not replaced, and we were "assured by management" that employees were not USIng them When asked whether he requested the beds be removed on February 22 1993 he replIed "probably WIth Mr Hardy yes" He said "wIth the assurances that we had, I would've been happy If they had been removed when the renovatIOns were done" Mr Clarke advIsed that the Peel-York SerVIce houses ItS ambulances at the firehall In ThornhIll He found "nothIng out of the ordInary at ThornhIll" He said that the firefighters have beds In the faCIlIty and ambulance personnel do not Mr Clarke saId that he next Inspected the W oodbndge statIOn When asked whether he found anythIng out of the ordInary he said that a rollaway cot In a locked room whIch contaIned supplIes cause hIm hIS gravest concern because the only people who had access to the room were ASSIstant Managers and ShIft SupervIsors He said that he had Inspected before and hadn't seen a cot He saId that he told Mr Hardy that the cot was to be removed, and "perhaps suggested he found out why It would be In that locatIOn" He found another cot In the locker room whIch he said he had not seen on prevIOUS InSpectIOns He said that he told Mr Hardy that the cot should not have been there He said that W oodbndge was a new ambulance sIte There had been no IntentIOn to have sleepIng faCIlItIes In that statIOn Mr Clarke said that he thought he had next Inspected the Bramalea statIOn, whIch he advIsed was "headquarters" "the maIn statIOn" He said that the Bramalea statIOn IS a former fire hall whIch the ambulance serVIce moved Into In 1985 after renovatIOns had been done He said he found a locker and storage cabInet whIch he felt were worn out and a safety nsk and whIch he felt should be removed He saId that he had dIscussed WIth then Manager Mr Bensette removIng the beds whIch folded Into the walls or leavIng them and naIlIng them shut. However neIther was done as the statIOn became part of a regIOnal contIngency plan for use In event of a cnSIS He saId that It was clearly stIpulated to Mr Bensette that the ambulance staff were not to use them He said that he dId not learn on February 22 1993 whether the beds were In fact beIng used 121 Mr Clarke saId that he belIeved he next Inspected the Heart Lake statIOn and that he found nothIng out of the ordInary It was one of the new ambulance statIOns, and It had no locatIOn for cots Mr Clarke said that he found nothIng out of the ordInary at the Lynch/Brampton statIOn He said that on completIOn of hIS InSpectIOn, he "eventually" wrote a letter to ActIng Manager John Cunnane statIng the reason for hIS VISIt and hIS findIngs He IdentIfied hIS Memo dated March 4 1993 as that letter (Ex 21) Among other thIngs It confirmed dIscuSSIOns wIth Mr Cunnane on "the need for actIOn on outstandIng suspenSIOns and General Management pnncIples" and "Issues that reqUIre ImmedIate attentIOn" and requested removal of a) bed found In crew quarters - W oodbndge b) fold up bed found In locker - W oodbndge c) bunkbeds In RIchmond Hill statIOn He said that he dId not dISCUSS hIS findIngs wIth Mr Armstrong, but that a copy of hIS Memo to Mr Cunnane went Into Mr Armstrong's basket In cross-eXamInatIOn he saId that he dId not cc a copy of hIS Memo (Ex 21) to Mr Cunnane to Mr Armstrong, but that Mr Armstrong would have receIved a copy through "our normal channels In the office" whIch, he advIsed, were that he put It In the "out" basket, and If It had to do wIth a Mimstry SerVIce clencal staff would put It In Mr Armstrong's "In" basket He said that It was most lIkely that he dIscussed hIS Memo to Mr Cunnane WIth Mr Armstrong, and added "If I dId, It was In paSSIng" He could not recall when he had dIscussed It WIth Mr Armstrong He agreed that he had been "bothered" on findIng a cot or roll-down bed In the Woodbndge statIOn, because SerVIce Managers were the only persons WIth access to the area In whIch the cot was sItuated His concern was that "perhaps supervISIOn was restIng and/or sleepIng" and that that was not proper conduct for management He saId that he dId not confirm whether that had been the case and that he dId not conSIder the pOSSIbIlIty that management was permIttIng the bargaInIng umt members to store the cot In that 122 room He demed havIng been concerned that any specIfic person was restIng and/or sleepIng on It He demed havIng been aware of cots and sleepIng eqUIpment beIng at the Peel-York ambulance statIOns pnor to hIS February 22 1993 InSpectIOn, wIth the exceptIOn of bunkbeds and the "bUIlt-In beds" at Bramalea statIOn In Brampton He demed knowledge of managers havIng been aware that Ambulance Officers were In the practIce of USIng beds cots mattresses and other personal eqUIpment for restIng When asked when he became aware that hIS InstructIOns had been followed, he said that he belIeved he saw a Memo from the new Manager Grace Fowler IdentIfYIng that they were to be removed by some tIme later (Ex 22) Ms Fowler had generated a memo to ShIft Managers dated March 15 1993 CItIng Mr Clarke's VISIt on February 22 1993 and requestIng the ShIft SupervIsors to "ensure the beds are removed from all statIOns and returned to owners by Thursday March 18 1993" (ThIS was apparently followed up by ShIft SupervIsor ChnstIne Barber's March 19 1993 memo cc to G Fowler - Ex 8 - whIch was to all staff and whIch gave owners untIl March 26 1993 to remove them after whIch they wIll be donated to a chantable orgamzatIOn If unclaImed and prohIbItIng Bramalea statIOn staff from USIng the bUIlt In beds In the crew quarters whIch would not be removed) In cross- eXamInatIOn Mr Clarke advIsed that he dId not dISCUSS rest eqUIpment wIth Ms Fowler and dId not dIrect her to Issue the memo He saId that he dId not know whether Mr Armstrong was aware ofMs Fowler's memo When asked why he Instructed Mr Cunnane and Ms Fowler to remove the cots he saId that there were a few reasons All cots and beds had been removed Just when "we were taken over by the Mimstry" and were never meant to be there In the first place he saId He observed a cot In a place to whIch only management had access and he had some concerns that the Mimstry had Just spent a lot of money renovatIng and acqumng new statIOns, e g W oodbndge whIch were not desIgned for the purpose of provIdIng rest facIlItIes He concluded that the presence of the cots constItuted "some health and safety nsk" 123 Mr Clarke said that he belIeved that the Mimstry Rest Penod PolIcy (Ex 5) was sIlent on the Issue of cots because when the Mimstry took over ten Ambulance ServIces In 1973 the beds were already removed from the serVIces when work began on the PolIcy and Procedure Manual He said that the Mimstry recogmzed the need to provIde some comfortable facIlItIes for the Ambulance Officers and provIded couches When asked whether they were provIded to accommodate the rest pen ods he replIed that he belIeved they were Introduced "to maIntaIn" the rest pen ods so there would not be any change In cross-eXamInatIOn, Mr Clarke said that he had not worked on the PolIcy and Procedure Manual when It was developed He saId that the Rest Penod PolIcy was "In the structure of a corporate polIcy" and that It came from the Manual He agreed that the Manual and the polIcIes It contaIns apply provInce-wIde He agreed that the collectIve agreement and ArtIcle 12 were In force when the Manual was developed He agreed that the PolIcy (Ex 5) dId not IndIcate any fixed duratIOn for rest penods and that on a qUIet mght on a 14-hour ShIft, It was pOSSIble for Officers to be "responsIbIlIty-free" In the statIOn for a number of hours He dId not dIsagree that the words "relax In any manner wIthIn propnety" could Include reclInIng honzontally He agreed that he was famIlIar wIth Ambulance Officers reclInIng honzontally and added that It had not occurred to hIm before thIS arbItratIOn heanng He agreed that they could reclIne honzontally as long as they could respond to calls In the appropnate amount of tIme and that the Officers could not remove theIr clothes dunng rest pen ods He agreed that accordIng to the PolIcy (Ex 5) management IS reqUIred to mom tor Officers' response tImes and that therefore management must momtor rest penod practIce to aVOId delays and complaInts When asked whether the eVIdence had been that there had been no problems wIth regard to response tImes In respect of the rest penod polIcy he saId that at one of the first commIttee meetIngs we agreed that sleepIng In the statIOn was not an Issue so I dId not reVIew dISCIplIne records 124 In cross-eXamInatIOn, Mr Clarke acknowledged that he had "probably" done ten servIce InSpectIOns In Peel-York over hIS 5-year actIve Involvement wIth that ServIce He said that normally he and the ServIce Manager do the InSpectIOn together He saId that he dId not have concerns about qualIty before the InSpectIOn on February 22 1993 but that he had concerns "about Mr Hardy" who he saId, had been In an actIng posItIOn for a long penod and, he re-stated, hadn't been successful In the competItIOn for Peel-York Ambulance SerVIce Manager When asked whether he had concerns about the SerVIce Itself Mr Clarke replIed that Mr Hardy was dIsgruntled and was perhaps not well He said that Mr Hardy was suspended after that InSpectIOn and termInated by Mr Armstrong some tIme after that He could not recall whether he had consulted WIth Mr Armstrong regardIng hIS concerns about Mr Hardy When asked whether Mr Armstrong knew that he was gOIng to do the InSpectIOn on February 22 1993 he replIed "I would assume so" Later In cross-eXamInatIOn, Mr Clarke acknowledged that as ASSIstant RegIOnal Manager he Inspects financIal admInIstratIve and operatIOnal aspects of the statIOns, IncludIng vehIcles and supplIes As well the Mimstry's former LICenSIng and Inspec-tIOns Branch, now called LICenSIng and InvestIgatIOns (L & I) Branch staff Inspects Peel-York' s ambulance statIOns He saId that the Branch had only 4 - 5 Inspectors for the prOVInce and dId not Inspect often The L & I Branch staff consults WIth eIther hIm or Mr Armstrong before performIng an InSpectIOn He could not recall whether they consulted WIth hIm on the Issue of beds and cots and he was not aware of whether they consulted WIth Mr Armstrong on that Issue The L & I Inspectors' role was SImIlar to hIS to the extent that they looked at whether condItIOn of the ambulances met certaIn standards and Inspected to determIne whether the facIlItIes were properly cared for 1 e the overall condItIOn of the ambulance statIOn The L & I Inspector also had authonty to look at the books and records Mr Clarke acknowledged that the authonty of Inspectors denves from s 18 of the Ambulance Act R. S 0 1990 c A.19 and saId that the frequency of theIr InSpectIOns was not mandated He agreed that If the Inspectors had any concerns 125 they would bnng It to the attentIOn of the ServIce Managers and to hIm or the RegIOnal Manager He said that the AssIstant RegIOnal Managers and RegIOnal Managers had to be and were appoInted as Inspectors under thIS act by the Mimster of Heal th He saId that "probably" In RegIOn 3 he dId InSpectIOns more frequently than L & I Branch In re-eXamInatIOn he said that no LICenSIng Branch Inspectors were "aSSIgned" to Peel-York Ambulance ServIce that the entIre Branch had five Inspectors whIch, In 1993 were assIgned to the whole proVInce He saId that InSpectIOns had been one of hIS functIOns SInce 1984 Mr Clarke said that he first became aware that the Mimstry was contemplatIng re-assIgmng Ambulance Officers to dIfferent statIOns on January 28 1993 when he receIved a telephone call from AssIstant DIrector Malcolm Bates When asked whether the Mimstry as a whole or only Peel-York Ambulance ServIce was concerned about relocatIOn to dIfferent statIOns he saId that the Issue had been under dIscussIOn at other Mimstry ServIces over the years and only affects serVIces WIth multIple serVIce statIOns as opposed to those workIng out of one base When asked what he dId about Mr Bates' call, Mr Clarke said that the phone callI tself "was rather InterestIng" Mr Bates saId he'd receIved calls from the umon regard-Ing unfair base transfers and the motIvatIOn behInd the transfers Mr Clarke saId that Mr Bates requested the reasons why the transfers had occurred In Peel- York. Mr Clarke then said that he contacted ActIng Manager Fred Hardy and descnbed the concerns Mr Bates had relayed to hIm, and asked hIm why the transfers were beIng effected Mr Hardy outlIned hIS reasons for the transfers and he Mr Clarke formulated a memo whIch was sent to Mr Bates that same day (Ex 23) It was pOInted out to Mr Clarke that the bases for transfernng were set out In the memo as follows 1 Do we have the proper mIX of employees re expenence age SIze matunty personalIty & enthusIasm 2 FamIlIanty of all of the areas to ensure consIstency and an equal share ofeall volume (emphasIs In ongInal) 3 FamIlIanty of all hospItals and there (SIC) routInes 126 4 People are moved to ensure that staff are famIlIar wIth each others work habIts and to dIsburse any statIOn nvalnes 5 Management has the abIlIty to assIgn personnel under the crown employees (SIC) CollectIve BargaInIng Act Sec 18 & these nghts are not to be subJect to CollectIve BargaInIng nor come wIthIn the JunsdIctIOn of an arbItratIOn board 6 ConsIderatIOn wIll and has been taken In cases that have extenuatIng CIrcumstances eg (SIC) - famIly problems etc Mr Bates saId that when speakIng to Mr Hardy the above cntena seemed reasonable to hIm and that he dId not ask Mr Hardy about the transfers of specIfic IndIVIduals He saId that Mr Hardy "reInforced the notIOn" that the transfers were not repnmands or retalIa-tIOns and that consequently he had no reason to ask for names He said that he dId not dISCUSS the matter wIth Mr Armstrong Mr Clarke said that he Informed Mr Armstrong "some tIme afterward" he wrote the memo to Mr Bates (Ex 23) and gave hIm a copy of It The next pOInt at whIch he had contact wIth Mr Armstrong, he "guessed" was when he and Mr Armstrong dIscussed hIS January 28 1993 memo (Ex 23) He said that Mr Armstrong phoned Peel-York Ambulance and spoke wIth Mr Hardy and ActIng AssIstant Manager Wendy Kerngan wIth the phone on speaker Mr Hardy IdentIfied Ms Kerngan as responSIble for the statIOn relocatIOns along wIth hIm, or WIth hIS approval Mr Armstrong named one Officer and asked where that person fit Into the 6 cntena outlIned In Mr Clarke's Memo and the employee dId not meet one cntena Mr Armstrong named a second Officer and It was not clear that that Officer met any of the 6 cntena. Mr Armstrong named a thIrd Officer WIth the same results as the prevIOUS Officer Mr Armstrong Instructed Mr Hardy to do nothIng further untIl he met WIth hIm and Ms Kerngan Mr Clarke dId not see the entIre lIst of Officers who were desIgnated for statIOn relocatIOn He advIsed that none of the Officers whose names he was aware of were relocated In cross-eXamInatIOn, Mr Clarke told us that It was "not uncommon" for ASSIstant DIrector Malcolm Bates to contact hIm rather than Mr Armstrong, despIte hIS earlIer statement that Issues of contentIOn would more lIkely be brought 127 to Mr Armstrong's attentIOn ImtIally rather than to hIS attentIOn He later saId that dependIng upon the Issue e g IfMr Bates had an Issue about the ServIce Itself a general InqUIry a problem sItuatIOn WIth an employee and If he was the only one In, that It would be normal for hIm to receIve calls from Mr Bates He agreed that such Issues would Include the receIpt of telephone calls from bargaInIng umt members In Mr Bates' office Mr Clarke saId that he dId not know whether Mr Bates had contacted Mr Armstrong before he contacted hIm He saId that he had no recall of Mr Bates havIng contacted Mr Armstrong at all regardIng thIS matter He said he dId not dISCUSS thIS Issue WIth eIther DIrector of Ambulance ServIces Graham Brand or SpecIal AssIstant Peter Block. When asked whether Mr Armstrong had dIscussed the Issues of the statIOn re-assIgnments and re-partnenng wIth Mr Brand, Mr Clarke said that he belIeved Mr Armstrong had been In touch wIth Mr Bates He said he first contacted Mr Armstrong about thIS Issue "probably the folloWIng week" after January 28 1993 and said "It could have been a couple of days" He could not recall whether It had been the next day He dId not dIspute that reCeIVIng a call from Mr Bates would have made the matter somewhat of a pnonty and that he would have contacted Mr Armstrong relatIvely qUIckly He added the proVISO "If I was able to" and Said that he wasn't able to contact Mr Armstrong that day but probably would have soon after In re-eXamInatIOn, he Said that Mr Armstrong was not In the office that day He demed havIng spoken wIth Mr Armstrong before wntIng the Memo He saId that he had dIfferent dutIes from Mr Armstrong, who makes field InSpectIOns at dIfferent SItes and that they are both out of the office for long pen ods dunng whIch they do not necessanly speak wIth one another Mr Clarke agreed that Mr Bates had Said he had been reCeIVIng calls from umon people regardIng base transfers He Said he was not aware of any other actIVItIes In the serVIce causIng concern regardIng base transfers He agreed that he found the matter senous enough to Issue a memo to Mr Bates He saId that he dId not recall any dIScus-sIOn wIth Fred Hardy pnor to the telephone call from Mr 128 Bates on January 28 1993 regardIng statIOn reassIgnments He said he had not dIscussed statIOn reassIgnments WIth Mr Armstrong before January 28 1993 He agreed that thIS Issue generated partIcular concern among the Ambulance Officers He said that he was not aware that gnevances had been filed He agreed that It was hIS understandIng that the Peel-York Ambulance Officers' concerns regardIng the prospectIve reassIgnments were a dIrect result of havIng worked In theIr statIOns for a long-standIng penod of tIme He saId he was not aware that there had been a staff rotatIOn pnorto January 1993 He dId not dIspute that SInce 1993 the employer's practIce of leavIng people In the same statIOns has not changed, wIth the exceptIOn of transfers requested by IndIVIdual Officers He agreed that the ERC commIt-tee dId not resolve the Issue of statIOn rotatIOns When asked whether Mr Armstrong had been Involved wIth the ERC commIttee Mr Clarke replIed that to date there had been no maJ or shuffles When It was suggested to Mr Clarke that the IntentIOn In 1993 was to Implement a wholesale change of where people worked and the ShIftS they worked, he replIed that Mr Hardy had not gIven hIm the ImpreSSIOn of wholesale changes, but that the IntentIOn was to ensure that untraIned people would work wIth traIned people and that It was for the good of the serVIce When asked whether the Mimstry or Peel-York had ImtIated the rotatIOns he replIed that hIS ImpreSSIOn was that they were ImtIated by Peel-York He acknowledged that Mr Armstrong could have been aware of the rotatIOns before he became aware of them Mr Clarke advIsed that hIS "home base" IS In Barne Ontano In the same office as Mr Armstrong, wIth two admInIstratIve support staff He socIalIzes and plays golf wIth Mr Armstrong He agreed that gIven hIS proxImIty to Mr Armstrong, he has ample opportumty to dISCUSS Issues related to the SerVIce WIth hIm Mr Clarke saId that It IS Important to realIze that there are numerous serVIces WIthIn Central-East RegIOn, ItS borders extend from North HalIburton to MissIssauga, and 58% of all Ambulance offices are located wIth Central-East RegIOn "It's lIke an hour glass" he saId, wIth regard to InfOrmatIOn whIch comes In 129 and goes out He agreed that he and Mr Armstrong have a lot of opportumty to dISCUSS Issues and make a defimte attempt at good commumcatIOn In cross-eXamInatIOn, Mr Clarke saId that he dId not receIve the lIst of people who had been gIven notIces of statIOn relocatIOns and ShIft changes He confirmed that he and Mr Armstrong had been on the speaker phone and that Mr Armstrong had decIded that three people who were to be relocated dId not meet the cntena. He could not recall the date upon whIch the call to Mr Hardy had taken place but belIeved It was "soon" after January 28 1993 He agreed that the speaker phone call had not dealt wIth the others who had receIved notIce of a statIOn rotatIOn, and pOInted out that on that occaSIOn, Mr Armstrong dIrected that no transfers occur untIl he had a further dIscuSSIOn wIth Mr Hardy and Ms Kerngan When It was suggested that he was saYIng that Mr Armstrong was gOIng to meet wIth Mr Hardy and Ms Kerngan to dISCUSS folloWIng through wIth the statIOn change ImtIatIve Mr Clarke replIed that Mr Armstrong had decIded that three people dIdn't meet the cntena and that he was gOIng to InVestIgate the others He said that he had hIS SuspICIOns that the proposed changes would not occur after that phone call Mr Clarke was shown a copy ofMr VirgIn's letter of February 20 1993 to Mr Armstrong (Ex 6) He advIsed that he had seen It once before but had not dIscussed It In detaIl wIth Mr Armstrong, although they "probably" had dIscussed "some of the Issues" He saId that he knew that Mr Armstrong was workIng wIth Peel- York and the OPSEU representatIves to set up a commIttee as to how staffing changes would take place He agreed that he and Mr Armstrong had dIscussed the Issues raIsed In the letter (Ex 6) notWIthstandIng that they were the subJect of an arbItratIOn He agreed that SInce the case was started, In some of theIr conversatIOns he and Mr Armstrong "would have dIscussed some of the Issues In relatIOn to meetIng tImes" In re-eXamInatIOn, Mr Clarke agreed that the occaSIOn on whIch Mr Armstrong spoke on the speaker phone wIth Mr Hardy and Ms Kerngan was the first tIme that he had spoken to Mr Armstrong about the ShIft shuffle He also saId that It had been hIS ImpreSSIOn from Mr Armstrong's 130 InstructIOns to Mr Hardy that the proposed statIOn transfers had been cancelled rather than suspended He advIsed that he dId not dISCUSS the Memorandum of Settlement (Ex 11) wIth Mr Armstrong and that he dId not know what Mr Hardy's "real" ongInal motIves regardIng the statIOn transfers had been When asked whether Mr Armstrong had ever mentIOned to hIm that he would ImtIate statIOn re- assIgnments after the Memorandum of Settlement was SIgned, he replIed "not that I recall " Mr Clarke was shown a copy ofMr Armstrong's letter dated February 22 1993 (Ex 12) to Mr VirgIn He saId that he was famIlIar wIth the letter's contents and aware that there was gOIng to be a meetIng wIth the Umon representatIves on February 25 1993 He agreed that he and Mr Armstrong had dIscussIOn regardIng the content of the letter He agreed that he was aware that there had been dIscussIOn between Mr Armstrong and the Umon regardIng the proposed statIOn rotatIOns and said that he would have become aware of It after he had met wIth Mr Armstrong to dISCUSS Mr Malcolm Bates' request, and agreed that later on, It would have come up In vanous dIscuSSIOns He advIsed that It was common for Mr Armstrong not to copy hIm letters on Important Mimstry Issues Mr Clarke saId that after hIS Memo of January 28 1993 (Ex 23) and hIS attendance at Mr Armstrong's telephone conversatIOn wIth Mr Hardy Mr Armstrong had been handlIng thIS Issue WIth Peel-York, whIle he was dOIng other work. He agreed that Mr Armstrong was ultImately In charge of the Issue of statIOn rotatIOns He Said that Mr Armstrong dId not keep hIm "up to speed on the Issue" He Said that he was not aware that a Memorandum of Settlement was reached regardIng thIS Issue and dId not recall ever seeIng It He Said that he dId not recall dISCUSSIng the Memorandum of Settlement (Ex 11) wIth Mr Armstrong before or SInce the arbItratIOn proceedIngs began He agreed that from the outset, statIOn reaSSIgnments had been a very contentIOUS Issue and that the fact that Mr Armstrong never dIscussed the Memorandum of Settlement (Ex 11) wIth hIm demonstrated that he Mr Armstrong, was ultImately responSIble for handlIng the 131 Issue He said that he dId not dIsagree that the sectIOns of paragraph 3 of the Memorandum of Settlement whIch are In boldface below 3) It IS agreed that other than the re-IocatIOn of a ShIft supervIsor to ThornhIll and the subsequent reqUIrement to re-Iocate a staff member to make room for thIS change there will be no further erew or station ehanges until. 1 ) a proeedure is developed by management In consultatIOn wIth the staff to ensure a fair and eqUItable system IS utIlIzed when these ehanges are made in the future. 11 ) that once thIS procedure IS developed It wIll be diseussed at a loeal ERC meeting for formal Input 111 ) It wIll then be forwarded to the Braneh ERC for dIscussIOn IV) onee approved by the Direetor the proeedure will be forwarded to all Ministry services. suggest that statIOn and ShIft statIOns would be made In future He agreed that subpara. 11 111 and IV appear to demonstrate an IntentIOn to change ShIftS and statIOns In Peel-York Ambulance ServIce He said that he dId not know how to answer the suggestIOn that the very contentIOus Issue whIch arose was sImply beIng held In abeyance He said that he assumed that agreement would be reached through the Local and the branch ERC and that It would not be a contentIOus Issue When It was suggested to hIm that nothIng In the Memorandum IndIcated that after umon Input and dIscussIOn, a procedure developed by management would not be approved by the DIrector and that changes would occur he replIed that the document IndIcated to hIm that changes would be forthcomIng wIth proper umon Input and also saId that hIS ImpressIOn was that the changes were stopped, rather than sImply put on hold He then agreed that the changes were on hold untIl the procedure contemplated In the Memorandum of Settlement had taken place and saId that the changes would occur "If they were proper" When It was suggested that Mr Arm-strong was In charge of that, he replIed that Mr Armstrong was not In charge of the ERC and agreed that Mr Armstrong was In charge of the process contemplated In the Minutes of Settlement (Ex 11) He dIsagreed wIth the suggestIOn that Mr Armstrong was In charge of the 132 process of statIOn rotatIOn, ShIft changes and crew changes whIch Mr Hardy had 1m tIated He said that he saw It as beIng a more reasonable rotatIOn, worked out wIth all partIes concerned He agreed that there would be rotatIOn, addIng, "If It was necessary" In cross-eXamInatIOn, Mr Clarke said that he had no Involvement wIth the Issues of ShIft changes and the compressed work week agreement, and said that It was Mr Armstrong's and management's responsIbIlIty as well as the responsIbIlIty of OPSEU through the ERC meetIngs He said he was aware of Halton-MissIssauga Ambulance ServIce whIch, he saId, was pnvate then became part of RegIOn 2 and became part of RegIOn 3 In 1991 He saId that he was aware that Halton-MissIssauga Ambulance SerVIce utIlIzes beds In certaIn statIOns When asked about Nobleton, he replIed that that was a volunteer ambulance serVIce WIthIn RegIOn 3 that they have a new ambulance statIOn, and he dId not know whether beds were present there He advIsed that Bolton IS a volunteer servIce WIth Central-East RegIOn, and that he could not recall whether they had beds or not He said that the Mimstry of Health was not "lInked up wIth" the fire departments He said that he knew they had beds and that they were reqUIred to meet certaIn response tImes In re-eXamInatIOn he said that Halton-MissIssauga IS a pnvate serVIce WIth ItS own collectIve agreement and that hIS office does not have the same degree of authonty over that SerVIce as It has wIth Peel- York Ambulance SerVIce He advIsed that he dId not have the authonty to order the removal of cots from Halton-MissIssauga, but that If he had concerns he would mentIOn them to the operators He said that the Peel-York Ambulance SerVIce averages about 10 calls per mght, whereas the FIre Department could go for a few months wIthout answenng a call so that when consIdenng cots they should be VIewed dIfferently He said that the beds and cots were removed In about 1974 - 75 and that there are no Mimstry facIlItIes whIch have cots and beds so that neIther he nor Mr Armstrong have the authonty to order them back He said that the DIrector or AssIstant DIrector could overrule Mr Armstrong wIth respect to labour relatIOns If Mr Armstrong was not there 133 Mr Clarke saId that In hIndsIght, he could see that the removal of the rest cots etc created agItatIOn among the Ambulance Officers He said that when he wrote "the report" he dId not see that It would create agItatIOn, and only saw the removal of two cots and the completIOn of renovatIOns He saId that he became aware of the gnevances "after the IncIdent" and that he dIscussed the rest facIlIty gnevances wIth Mr Armstrong He agreed that he maIntaIned the decIsIOn to have the beds and cots, etc removed and said that It had been hIS deCIsIOn, and that It had not been made In conJunctIOn wIth Mr Armstrong He saId he wIshed he had never found "that cot" He offered that hIS deCISIOn had brought a lot of gnef to Peel-York Ambulance SerVIce He demed that he could have reversed the deCISIOn to reqUIre the cots, etc to be removed When asked who could have reversed the deCISIOn, he replIed "They never should have been there In the first place" When asked who could have reSCInded the deCISIOn, he saId "they were Instructed to be removed" and said that the Manager had them removed He demed havIng been able to have dIrected, as ASSIstant RegIOnal Manager that the cots etc remaIn He demed that Mr Armstrong could have so dIrected, and restated that these Items were not to be on Mimstry premIses He agreed that Mr Armstrong could hIre and fire and exerCIse all the management nghts WIthIn the collectIve agreement He agreed that maIntaInIng the current practIce for rest pen ods fell under Mr Armstrong's authonty Mr Clarke agreed that the testImony had been that the statIOn rotatIOn, partner change/shIft shuffle rest penod/cots and beds and the alteratIOn of the compressed work week ShIftS came up WIthIn a very short penod of tIme January to Apnl 1993 When asked whether he could see any connectIOn between the raiSIng of all those Issues In a narrow tIme frame folloWIng some relatIvely aggreSSIve actIVIty by the bargaInIng umt members he replIed that the best way of answenng was that he WIshed he had never seen the cots He said that It had been a COInCIdence that he had asked for the removal of the cots at that pOInt -- a bad COInCIdence but a COInCIdence nonetheless 134 Mr RIchard Armstrong gave eVIdence on August 19 and 20 1998 He advIsed that he has been wIth the Mimstry of Health SInce 1973 and has been a RegIOnal Manager SInce 1975 He has been RegIOnal Manager for Central-Western Ontano and has been responsIble for Peel-York Ambulance ServIce sInce 1987 He said that Peel-York was transferred to hIS regIOn after several Managers had been dIsmIssed, that there were some concerns due to Inappropnate management, and he was asked to "bnng them In lIne" His responsIbIlItIes Include the overall responsIbIlIty for the delIvery ofland ambulance serVIces commumcatIOns centenng, operatIOnal plans and financIng He acts as the Deputy Mimster' s delegate In labour relatIOns Issues heanng second stage gnevances, dIsmIssals and dIscIplIne cases He acts for the Branch In central bargaInIng and has worked WIth many other Mimstnes or Branches In heanng cases for them ASSIstant RegIOnal Manager Bryan Clarke reports to hIm and there are two clencal aSSIstants In theIr office Mr Armstrong saId that pnor to 1993 It was hIS VIew that It was WIthIn management's nght under the collectIve agreement and the PublIc SerVIce Act to reassIgn staff WhIle In hIS prevIOus regIOn, 1 e South-West and Central-Western RegIOn, he and the Manager of ServIces developed the cntena whIch managers should follow when makIng statIOn re-assIgnments because such re-assIgnments can be dIsruptIve He commumcated those cntena to hIS managers He agreed that he had commumcated those cntena to Peel-York Ambulance ServIce management when he took over that ServIce He said that he sent ActIng Manager Jim KIng to do so Mr Armstrong then revIewed Ex 20 and advIsed that he became RegIOnal Manager RegIOnal Manager for Central-Eastern Ontano In 1991 and that Peel-York Ambulance ServIce remaIned under hIS responsIbIlIty when he dId so He saId that In the first two months of becomIng responsIble for RegIOn 3 he had several meetIngs WIth SIX Mimstry Managers In the RegIOn, whereIn he set out hIS expectatIOns whIch 135 Included statIOn relocatIOns or assIgnments theIr reportIng reqUIrements theIr management responsIbIlItIes whIch were to carry out the reqUIrements of the collectIve agreement and Mimstry polIcy He saId that In 1987 when he ImtIally assumed responsIbIlIty for Peel-York Ambulance ServIce he set up a "voluntary meetIng for staff' so that they could dISCUSS the transItIOn to the new regIOn (RegIOn 2) The meetIng was well attended One of the Issues was "movement" They consIdered themselves two serVIces a Peel ServIce and a York SerVIce whIch could result In changes of ShIft and schedule In a combIned serVIce When asked whether hIS VIew was reIterated after 1987 he saId that In management meetIngs In 1991 he repeated hIS expectatIOns around thIS to "old" and "new" managers When asked whether he made reference to a set of cntena, he agreed that he had and saId It was hIS belIef that there had to be some reason for mOVIng staff e g balancIng knowledge among crews, geographIc awareness and reasons of that nature When asked whether he raised the Issue of movement of staff wIth the Umon before 1993 he saId that Umon members were present at meetIngs In 1987and It was brought up In ERC meetIngs-that's what they are for When asked whether the transfer of a number of IndIVIduals to dIfferent statIOns wIthIn Peel-York Ambulance SerVIce was raIsed at any meetIngs before 1993 Mr Armstrong replIed that he dId not recall any IndIVIdual cases beIng raIsed at ERC meetIngs He agreed that ActIng Manager Fred Hardy was at the ERC meetIngs He agreed that before 1993 Mr Hardy agreed wIth hIS posItIOn regardIng statIOn relocatIOns and said that Mr Hardy understood and agreed to the cntena. When asked whether pnor to 1993 Mr Hardy ever said that he was propOSIng a wholesale transfer of Peel-York Ambulance Officers to dIfferent statIOns Mr Armstrong said "no" that that was part ofMr Hardy's duty that he expected hIm to follow the polIcy and there was no reqUIrement that Mr Hardy consult WIth hIm about such matters He agreed that Mr Hardy had not spoken to hIm about transfers pnor to 1993 When asked whether at any pOInt before 1993 he IndIcated to Mr Hardy that he wanted a number of IndIVIduals reaSSIgned, Mr Armstrong said that he had not, that he was not famIlIar 136 wIth the skIlls and knowledge of any of the IndIVIdual officers, and that It would not make sense for hIm to dIrect theIr movement In the workplace wIthout that knowledge He said that hIS office IS In Barne the Peel-York Ambulance ServIce central office IS In Bramalea, and the only office he and Peel-York share In Barne IS Central CommumcatIOns whIch IS separated from hIS office by a wall The ServIce Manager IS responsIble for hIS workplace Mr Armstrong saId that he first became aware that ActIng Manager Fred Hardy had ImtIated re-assIgnments when Mr Clarke told hIm about It Mr Bates had contacted Mr Clarke In hIS office when he Mr Armstrong, had been out Mr Clarke set out the cntena In a Memo (Ex 23) and that was when It was brought to hIS attentIOn Mr Armstrong said that he became aware of the memo In early February 1993 He said that there had been a follow-up call from Mr Bates who referred hIm to Mr Clarke's memo and that that was when he learned of It Mr Armstrong confirmed that he reports to AssIstant DIrector Malcolm Bates He agreed that he had revIewed the Memo (Ex 23) wIth Mr Clarke when Mr Bates brought It to hIS attentIOn Mr Armstrong said that he was In agreement wIth the content of the Memo that It seemed fine to hIm, that he thought that It addressed the Issue raised He agreed that It set out the cntena that had been commumcated to management, IncludIng Mr Hardy Mr Armstrong said that he dId not Instruct Mr Clarke after reVIeWIng the Memo He said that he dId not feel any further actIOn was necessary at that tIme and that he dId not take any further actIOn His next Involvement occurred shortly after as the DIrector of Emergency Health Branch receIved an E-maIl to Mr Bates from Mr Block In the Mimster' s office askIng them to look Into the matter He saId that the umon had wntten to the Mimster's office and that the Mimster's office provIded them WIth a few names of affected Officers and asked them to be sure that the cntena had been adhered to He said that he called Mr Hardy and revIewed the CIrcumstances of three IndIVIdual Officers and that Mr Hardy appeared not to have followed the cntena He said that he told Mr Hardy that they had receIved some 137 names of IndIVIdual Officers and that he asked Mr Hardy to tell hIm whIch cntena each person met, and what had been the deficIency and that Mr Hardy was unable to satIsfy hIm recallIng all three Officers Mr Armstrong said that he advIsed Mr Hardy not to proceed WIth any of the transfers and that he would come and speak WIth hIm about all the IndIVIdual Officers Mr Hardy had Intended to transfer He saId that Mr Clarke had been on speaker phone when he spoke to Mr Hardy He said that after three cases, It became apparent to both hIm and Mr Clarke that there was a problem, and he wanted to go over the entIre lIst of IndIVIduals WIth Mr Hardy He agreed that he receIved the E-maIl by fax He could not recall the date on whIch he spoke WIth Mr Hardy WIth certaInty and suggested approxImately February 9 or 10 1993 Mr Armstrong said that hIS next Involvement In these matters occurred when he met WIth Mr Hardy and the umon, separately on the same day He said that the umon raIsed ItS concerns regardIng the transfers and gnevances and they dIscussed holdIng off on proceedIng WIth the gnevances because management was lookIng Into It, and that he reached an agreement WIth the umon to allow management some tIme He agreed that the Memorandum of Agreement dated February 21 1993 (Ex 16) was the agreement In pnncIple that he reached on the day he was recallIng He Said that he negotIated Ex 16 WIth Mr VirgIn and Mr Wheelans He saId that after meetIng WIth the Umon and arnVIng at an Intenm agreement In pnncIple to hold the gnevances In abeyance he met WIth Mr Hardy before February 25 1993 Mr Armstrong then recalled that he had InItIally met WIth the Umon and Mr Hardy on the same day around February 15 1993 He was shown a Memo from hImself to Mr Hardy tItled "RE STATION REASSIGNMENTS" dated February 16 1993 (Ex 25) whIch states Please be advIsed that all statIOn reaSSIgnments of full tIme employees wIll reqUIre my pnor approval untIl further notIce Should you have any questIOns In thIS regard please contact my office 138 Mr Armstrong advIsed that he wrote It after he had met wIth Mr Hardy He said that Mr Hardy had asked ActIng AssIstant Manager Wendy Kerngan to attend the meetIng, and that she was present at that meetIng He said that they went through the entIre lIst of Officers to be relocated, one by one He saId that he found that they could not substantIate that they were folloWIng the cntena for any of the Officers that Mr Hardy tned to ImplIcate Ms Kerngan, but that It was clear that Mr Hardy had InItIated the relocatIOns He saId that he told them that none of the transfers were to be effected and that Mr Hardy would need hIS consent and approval for any further transfers, and confirmed that In wntIng He said that he advIsed AssIstant DIrector Malcolm Bates of the foregoIng, and as to how he was proceedIng to try to resolve the gnevances He sent Mr Bates a Memorandum dated February 18 1993 (Ex 26) whIch stated I am In receI pt of the E-maIl from Peter Block regardIng PeellY ork Ambulance ServIce As you know we are now In receIpt of over 100 gnevances In regard to thIS Issue Therefore thIS Issue should not be brought to the Branch ERC as It would be In contraventIOn of the polIcIes Further It IS the exclusIve nght of management to assIgn the work and therefore thIS IS not the proper subJect of a gnevance However It would be Inappropnate for management to move staff wIthout reason or as a dISCnmInatory practIce Therefore I have suspended all statIOn reassIgnments untIl we can meet wIth the umon to dISCUSS the detaIled concerns I dId address thIS Issue at the recent local ERC and felt we had a clear understandIng of the process to be followed for statIOn reassIgnments Should It be dIscovered that any employee has been reaSSIgned wIthout reasonable cause they wIll be returned to theIr prevIOus statIOn Mr Armstrong saId that he subsequently had meetIngs wIth the umon "to determIne the cntena for re-assIgnments and what to do wIth the gnevances" He acknowledged that he attended a meetIng at Tony's Restaurant on February 25 1993 wIth Mr VirgIn, Mr Wheelans and pOSSIbly Mr LewIs He saId that they dIscussed 139 schedulIng Issues and "threats and IntImIdatIOn" and all the Issues In Ex 6 He said that "threats and IntImIdatIOn" referred to concerns about Mr Hardy's performance Mr Hardy was USIng the "schedulIng" to IntImIdate and dIscIplIne ShIft changes were related to statIOn relocatIOns He said "SInce we agreed to a process there wasn't a need for a prolonged dIscussIOn I told them they'd have to present eVIdence file a gnevance specIfically wIth regard to what they alleged Mr Hardy was dOIng They said the statIOn relocatIOns Just should not happen agaIn I told them It was a management nght to transfer and reassIgn, IncludIng to balance the workforce" He saId that he was at the meetIng for 35 to 40 mInutes "long enough for at least 2 cups of coffee" In cross-eXamInatIOn, he agreed that he met wIth Mr Wheelans and Mr VirgIn for 40 to 45 mInutes He saId that he dId not thInk the meetIng took only 10 to 20 mInutes He said that It was at least half an hour that they sat In a closed portIOn of the restaurant, had two to three cups of coffee and had to flag the waItress to do so Mr Armstrong agreed that he dIscussed the February 15 gnevances (statIOn relo-catIOn) wIth Mr VirgIn and Mr Wheelans and said "Insomuch as we want to negotIate a settlement and we need to negotIate a cntena to be used In statIOn relocatIOn and that should be handled through the ERC commIttee" He agreed that there was an agreement In pnncIple to wIthdraw the gnevances and added "on the basIs of havIng the ERC deal wIth the Issue" He agreed that the Memorandum of Settlement sIgned March 17 19 and Apnl 2 1993 (Ex 11) "set out the substance of what was agree to on February 25 1993" In cross-eXamInatIOn, Mr Armstrong was advIsed that the umon' s eVIdence was that he was very curt, abrupt and not Interested In dISCUSSIng the 4 Items In Mr VirgIn's letter (Ex 6) Mr Armstrong saId that he dId not agree wIth that descn ptI on He saId that they dIscussed all four cntena He saId "after three tImes I would've been a lIttle more abrupt" He said that he had stated "two or three tImes In the meetIng that If It was Mr Hardy they would have to come up wIth eVIdence and file gnevances On the thIrd or fourth tIme I would have been more abrupt" He 140 agreed that Mr Wheelans and Mr VirgIn had been wrong In saYIng that the Items In Mr VirgIn's letter were not dIscussed He agreed that on February 25 1993 hIS meetIng wIth Mr Hardy was a preSSIng Issue He said that he could not remember the exact date upon whIch Mr Hardy's employment was termInated, as Mr Hardy "went through several suspensIOns" He saId the date could have been In 1994 as a result of InVestIgatIOns and several renewals of the suspenSIOn Mr Armstrong agreed In chIef that there had been meetIngs between umon and management to establIsh the cntena for relocatIOn, and said that there were dIscussIOns on the subJect whIch were usually part of an ERC meetIng He said that he dIscussed relocatIOn cntena at those meetIngs He agreed that he had attempted to dISCUSS the cntena In Mr Clarke's Memo He said that the umon's posItIOn "basIcally" was that they dId not want to "move off the belIef that we dId not have the nght to move them" The umon, he saId, dId not want an agreement that allowed management to exerCIse ItS nght, and felt that we shouldn't do that and challenged our nght to do that He saId that he was never able to formalIze an agreement regardIng the cntena for relocatIOns that the umon felt some of It was reasonable but felt management dId not have the nght to move people between statIOns He said that he belIeved that there had been some relocatIOns SInce whIch followed the cntena. He saId that the authonty to relocate officers "returned to local management" He said that he was not aware of any gnevance under Ms Fowler Mr Armstrong agreed that on February 26 1993 havIng met the umon representatIves the prevIOUS day and havIng negotIated an agreement regardIng the relocatIOn gnevances he sent the folloWIng memo to Graham Brand, DIrector wIth a copy to Mr Bates (Ex 27) Please find attached the memorandum of settlement arnved at yesterday wIth the umon We have already cancelled all the proposed reassIgnments scheduled for March and we wIll be develoPIng a procedure as IndIcated In the memorandum of settlement regardless of whether all employees sIgn the agreement or not 141 By cancellIng all the proposed changes we have effectually elImInated the reason for the gnevances and therefore It would be dIfficult for them to proceed I feel that we do need to follow a consIstent procedure throughout the Mimstry when reassIgmng staff wIthIn the workplace Therefore I have dIrected the management team at PeellY ork to Involve the other multI-statIOn servIces In the development of the procedural gUIdelInes Hopefully thIS wIll lead to an acceptable solutIOn for all partIes and ensure a fair eqUItable and consIstent approach IS followed Mr Armstrong advIsed that Ex 11 reproduced above was the Memorandum of Settlement attached to the above document In cross-eXamInatIOn, Mr Armstrong agreed that pnor to February 25 1993 he had had dIscussIOns wIth the umon regardIng statIOn rotatIOns "In general terms" He was unable to recall whether he had receIved a copy of the Memorandum of Agreement sIgned by Mr VirgIn and Mr Wheelans on February 21 1993 (Ex 16) by February 25 1993 He saId that they "ObvIOusly dIscussed It and reached an agreement" He said that he "must have" receIved Mr VirgIn's letter dated February 20 1993 pnor to the February 25 1993 meetIng He saId that he could not recall whether the presence ofumon sIgnatures only on the Memorandum of Agreement (Ex 16) meant that It had not been accepted by management He said that he was unable to say whether the fact that Ex 16 had not been sIgned by management meant that he had not accepted It He agreed that the Memorandum of Settlement sIgned by the partIes on March 17 19 and Apnl 2 1993 (Ex 11) and sIgned by hIm on March 17 1993 was the final Memorandum of Settlement, and acknowledged that the text was dIfferent from the Memorandum sIgned by Mr VirgIn and Mr Wheelans (Ex 16)onFebruary21 1993 He then agreed that theIr Memorandum (Ex 16) had not been acceptable to hIm He saId that It had not been accepted because "ObvIOusly we wanted a statement about management nghts" He said that It was also agreed, In the final Memorandum, to cancel the statIOn transfers not Just suspend them He saId that a number of thIngs were changed and updated, "based on InfOrmatIOn we 142 acqUIred" He said that It had been a matter of negotIatIOn Mr Armstrong's attentIOn was drawn to paragraph 2 In the umon's proposed Memorandum (Ex 16) 2 To hold In abeyance all gnevances related to thIS matter untIl the partIes through the negotIatIOns set out In ArtIcle 1 above determIne the Issues are eIther resolved or unresolvable through thIS avenue and he was asked whether he had reJected It He said that he had not reJected the paragraph, but had reJ ected the Memorandum He agreed that In the Memorandum of Settlement that he had sIgned (Ex 11) one of the condItIOns of Settlement was that the umon agreed to wIthdraw ItS gnevances IrrespectIve of the Issue of ShIft reassIgnment He agreed that by the tIme Ex 11 was sIgned, he was more than aware that the bargaInIng umt members In Peel-York Ambulance ServIce were aware that ShIft reassIgnments were gOIng to take place and were dIssatIsfied wIth that When asked whether he IndIcated to Mr VirgIn and Mr Wheelans on February 25 1993 that he was In fact gOIng to cancel the statIOn reassIgnments then scheduled for March 1 and that they should, as a result of that, wIthdraw the gnevances he saId that he was not sure that they dIscussed cancellatIOn of the proposed transfers at that meetIng, but they dIscussed that If the transfers were cancelled, the grounds of theIr gnevances would dIsappear When asked whether he told them to wIthdraw the gnevances, he replIed "I may have said that" When asked whether he said that nevertheless, they would have ShIft reassIgnments every SIX months, he replIed "I never said that I never set a tIme penod " When asked whether he was saYIng that Mr Wheelans and Mr VirgIn are wrong, he said that he was saYIng they are wrong, "If they are saYIng I'm gOIng to ShIft everybody every SIX months" Mr Armstrong recogmzed hIS Memorandum to Mr Hardy dated February 16 1993 (Ex 25) adVISIng hIm that hIS pnor approval would be reqUIred for all statIOn reassIgnments of fulltIme employees He said that the handwntIng whIch appears on the copy provIded was not hIS he could not IdentIfy the handwntIng. His attentIOn was drawn to hIS Memorandum dated February 18 1993 (Ex 26) to AssIstant DIrector Malcolm Bates IndIcatIng the eXIstence of over 100 gnevances wIth regard to 143 statIOn reassIgnments and he asked whether he would consIder It a faIrly sIgmficant labour relatIOns Issue He dId not dIsagree and saId that that was why they wanted to negotIate a settlement He agreed that on February 18 1993 he had suspended, rather than cancelled, all statIOn reassIgnments He agreed that when he met wIth Mr Wheelans and Mr Virgm on February 25 1993 they wIthdrew the statIOn reassIgnment gnevances He added that management cancelled the statIOn reassIgnments then scheduled for March 1 1993 Mr Armstrong agreed that dunng and ImmedIately after hIS meetmg on February 25 1993 wIth Mr Wheelans and Mr Virgm, he stIll mtended to Implement statIOn reassIgnments m Peel-York Ambulance ServIce He saId that to provIde the best serVIce management may effect reassIgnments sometImes m cIrcumstances wherem the reassIgnment IS voluntary sometImes dIscIplInary sometImes to balance skIll and expenence He said that he had no mtentIOn to move these partIcular people because management had provIded no JustIficatIOn for domg so He said that he had never saId that management would not reassIgn Officers He agreed that m hIS letter to Mr Virgm dated February 22 1993 (Ex 12) mdIcatmg that he was mstructmg management to postpone the ShIft changes scheduled for March 1 1993 he had decIded to postpone them, before decIdmg to cancel them on February 25 1993 When Mr Armstrong's attentIOn was drawn to the fact that paragraph 3 (1) of the March 17 - Apnl2 1993 Memorandum of Settlement (Ex 11) mdIcates that management IS stIll contemplatmg crew or statIOn changes he saId "We stIll are" When It was pomted out to hIm that the Apnl 21 1993 ERC commIttee meetmg mmutes (Ex 13) state at p 4 under the headmg "StatIOn/ShIft Change PolIcy" the underlymg mtent IS to ensure a balance of patIent care expenence and geographI c knowl edge 1 s acqUIred by all staff m regard to the PeellY ork and DIstnct Ambulance ServIce coverage area whIle guarantymg (SIC) each crew has the proper blend of thIS at all tImes 144 Mr Armstrong agreed that even after the ERC meetmg, management's underlymg mtent was to contmue wIth the desIre to have statIOn reassIgnments and saId "even today" He demed that thIS mtentIOn extended beyond mdIvIdual requests to "a wholesale reassIgn-ment" He said that management would "follow ItS own cntena" There are 87 fulltIme employees and over 100 employees mcludmg part-tIme m Peel-York Ambulance ServIce he saId Asked how many people he would "consIder elIgIble for reassIgnment at anyone tIme" he said that he could not set a number That would depend on the number of staff leavmg, and the number of staff requestmg a change He dId not have a "monthly quota" of reassIgnments He said that the number of reassIgnments would be determmed "on a needs-based assessment" and dId not dIsagree that hIstoncally reassIgnments had not occurred frequently Mr Armstrong agreed that he had been aware that letters had been sent to vanous polItIcIans regardmg the statIOn reassIgnment Issue and that he had receIved an E-maIl from SpecIal AssIstant Peter Block, who he agreed, was the ExecutIve AssIstant to the Mimster of Health He said that he dId not have dIscussIOns wIth Mr Block. He agreed that he had a dIscussIOn wIth Mr Bates regardmg Mr Block's E-maIl and a dIscussIOn wIth Mr Graham Brand regardmg what was OCCUrrIng He agreed that the polItIcal actIvIty m whIch the Ambulance officers had engaged had caught the attentIOn ofhIgh-rankmg officIals m the Mimstry of Health He dId not dIspute that the DIrector and AssIstant DIrector had contacted hIm, because he had authonty Asked whether the statIOn reassIgnment Issue remams unresolved, Mr Armstrong said that the partIes had never reached a final agreement, and that management Just told the Umon that It would follow the gUIdelInes should reassIgnment be necessary He agreed that management's posItIOn IS that It has the unfettered nght to assIgn work. He agreed that some transfers had occurred, and saId that some had been referred to m the Memorandum of Settlement (Ex 11) He said that he dId not mvolve hImself m transfers, as a consequence of whIch he dId not know how many other transfers had occurred smce the ones mentIOned m the 145 Memorandum He saId he was not aware of any gnevances pertammg to reassIgnments smce the Memorandum (Ex 11) He agreed that serVIces m Peel- York Ambulance ServIce had not been adversely affected m the absence of a lot of transfers and added "but there may be occaSIOns when they wIll be reqUIred" He saId that there must be a JustIfiable reason to transfer not out of spIte or mtImIdatIOn, whIch, he said, seems to have been Mr Hardy's way He said that he dId not expect such actIOns to reoccur When asked whether It was usual for gnevors to mvolve polItIcIans m a dIspute Mr Armstrong said that m many ServIces when staff IS not satIsfied, they take a polItIcal route When asked whether thIS had been the first tIme he had had to deal wIth polItIcal actIvIty Mr Armstrong replIed "some mdIvIduals have used It " He said that the staffing change and the 10-hr and 14-hr ShIftS generated a polItIcal response He saId that the umon' s actIvItIes m thIS case had not put hIm and the ServIce under a mIcroscope any more than It had been prevIOusly He demed that he had been dIrected by anyone m hIS Mimstry to resolve thIS 1 e to back off He said that he was asked to look mto It, that he determmed that the transfers were not JustIfiable He saId that he was not under pressure to back off but was to try to deal wIth labour relatIOns He agreed that he wanted to settle the gnevances He said that If he had vIewed the statIOn changes to be wIthm the gUIdelInes, he would have upheld them He said that polItIcal actIvIty by the umon was not new to hIm, that there had been lots of polItIcal pressure brought to bear Peel-York Ambulance ServIce IS only one of 41 serVIces He saId that there had been a crew-splIttmg Issue m Oshawa, and that "management" had "contmued wIth the plan" Mr Armstrong agreed that hIS Memorandum to Graham Brand and Malcolm Bates (Ex 27) was dated one day after hIS meetmg on February 25 1993 wIth Mr Virgm and Mr Wheelans He said that he was m the habIt of correspondmg to Mr Brand and Mr Bates regardmg labour relatIOns He said that a copy of Stage Two replIes to gnevances and a copy of agreements and other documents are sent to 146 them, and that they are used for precedents and for negotIatIOn He said that the paragraph By cancellIng all the proposed changes we have effectually elImInated the reason for the gnevances and therefore It would be dIfficult for them to proceed was a statement of hIS OpInIOn He saId that If the reason for a gnevance IS statIOn changes and the changes are elImInated, the basIs for the gnevance IS elImInated When It was suggested to Mr Armstrong that one of the reasons he chose not to accept Mr Wheelans' and Mr VirgIn's Memorandum of Agreement (Ex 16) was that Mr Wheelans and Mr VirgIn wanted the gnevance held In abeyance Mr Armstrong demed havIng said that "Much of what they wanted was Incorporated at pOInt 3 There were thIngs mISSIng My obJectIve IS to come to a final settlement, not a partIal settlement" he saId When It was put to Mr Armstrong that one thIng he wanted In final settlement was to Include the wIthdrawal of the gnevances he replIed "of course" and saId that there was no pOInt to holdIng them In abeyance once settlement had been reached Mr Armstrong advIsed In eXamInatIOn In chIef that he first became aware that Mr Clarke had Inspected the Peel-York statIOns on February 22 1993 when the Issue was raIsed at a local ERC meetIng, possIbly In March, 1993 He saId that he dId not speak to Mr Clarke about hIS InSpectIOn pnor to February 22 1993 and dId not speak to hIm about It before the ERC meetIng He agreed that he spoke wIth Mr Clarke about hIS InSpectIOn at the meetIng, and said that Mr Clarke told hIm that he had found beds In the workplace and ordered them removed, that Mr Clarke showed hIm hIS memo (Ex 21) He said "that was It, as far as I'm concerned It was consIstent WIth the polIcIes and procedures and the collectIve agreement" He saId that he had not Instructed Mr Clarke to ensure that the beds were removed He said "It was well wIthIn hIS authonty to ensure proper actIOn was taken" He saId he had no other Involvement wIth the ImplementatIOn of thIS decIsIOn 147 Mr Armstrong said that the LICenSIng InspectIOn Branch, AssIstant RegIOnal Managers and RegIOnal Managers are all lIcensed and certIfied to do InSpectIOns of ambulance statIOns Mr Armstrong said that pnor to February 22 1993 he was not aware of any cots or beds at the W oodbndge statIOn He saId that he pnmanly VIsIted the Bramalea statIOn He said that he dId one InSpectIOn of all SIX statIOns In the daytIme and dId not see beds He saId that he first became aware of the presence of beds and cots In the statIOns when Mr Clarke asked for theIr removal He said that the presence of beds and cots In the statIOns had not been raised at any ERC or umon-management meetIng "pnor to thIS" When Mr Armstrong was asked what, If any Involvement he had after he became aware that the removal of cots and beds was a contentIOus Issue he advIsed that he "supported the actIOn" and left the matter wIth Mr Clarke He saId that he also advIsed the DIrector and AssIstant DIrector of hIS support for the actIOn and that Mr Clarke would handle It Mr Armstrong demed that the removal of the cots and beds from some of the Peel- York statIOns was In any way related to the gnevances regardIng the statIOn re- assIgnments He said "It wasn't related to anythIng I saw thIS clearly as a housekeepIng Issue They weren't allowed In the statIOn and had to be removed" He saId that cots and beds should not be In the statIOns "Because the employees are not allowed to sleep They can rest If employees were allowed to sleep management would supply beds" He said that the decIsIOn was taken several years earlIer to remove beds "wherever they were" He thought the Mimstry of Health had made a decIsIOn to remove cots and beds from all ambulance serVIces "probably In the early 80's" He later said that at the tIme he was In RegIOn 2 whIch, he saId, IS Central- West He said "It was a corporate decIsIOn based on the collectIve agreement and polIcIes and procedures" He saId that he had been responsIble for ambulance serVIces In Niagara Falls and had the beds removed pursuant to the polIcIes and procedures agreed to and the collectIve agreement He saId that he removed them 148 from the umts for whIch he was dIrectly responsIble and understood that they had been removed from other umts Mr Armstrong said that he assumed that beds and cots were removed from RegIOn 3 statIOns as "there weren't any" when he assumed control of RegIOn 3 He said that as RegIOnal Manager for RegIOn 2 he had dIrect responsIbIlIty to have them removed, and dId so He said he dId not partIcIpate In the removal of beds and cots from RegIOn 3 when he was In RegIOn 2 and when RegIOn 3 came under hIS authonty In 1991 he understood that there were to be no cots and beds In the ambulance statIOns, wIth the exceptIOn of the bUIlt-In beds at the Bramalea statIOn, whIch had prevIOusly been a fire hall He said that the Mimstry asked that the bUIlt- In beds remaIn In place as part of a contIngency program In the event of an evacuatIOn He said that In consequence they were not removed, but staff was Instructed not to use them In cross-eXamInatIOn, Mr Armstrong's memory was refreshed on reVIeWIng a copy of Mr VirgIn's March 16 1993 letter to hIm (Ex 7) and he recalled havIng had a bnef conversatIOn wIth Mr VirgIn on the subJ ect of rest cots on March 5 1993 He said that he could not recall the detaIls of the conversatIOn He agreed that Mr VirgIn asked hIm If he was gOIng to remove the rest facIlItIes In the Peel-York Ambulance ServIce statIOns and that he told Mr VirgIn that he was gOIng to do that He saId that he dId not recall dISCUSSIng the Issue of beds and cots wIth the umon before then, as management was not aware of theIr presence so that there was no reason to dISCUSS them Mr Armstrong agreed In cross-eXamInatIOn that when the rest facIlItIes Issue arose It fell wIthIn Mr Clarke's area of responsIbIlIty He said that Mr Clarke dIscovered the facIlItIes and dealt wIth them When It was suggested to Mr Armstrong that he had authonzed Mr Clarke to do more than what he actually dId, Mr Armstrong replIed that Mr Clarke had already taken the appropnate actIOn When asked whether he had had anythIng further to do wIth the Issue before the Stage Two meetIng, Mr Armstrong saId that Mr Clarke "followed It up" Asked 149 whether hIS letter dated March 22 1993 (Ex 9) to Mr VirgIn represented Involvement In the rest cot Issue Mr Armstrong said that he was sImply replYIng to Mr VirgIn's letter (Ex 7) Mr Armstrong IndIcated that he recogmzed the Apnl 5 1993 letter to hIm from Mr VirgIn (Ex 10) and saId that he thought that he passed It over to Mr Clarke He agreed that he subsequently handled the Stage Two meetIng Mr Armstrong ImtIally said In cross-eXamInatIOn that the Deputy Mimster' s desIgnee for Step Two when the gnevances regardIng rest penod were filed, was "whoever the Deputy Mimster assIgned" He acknowledged that he dId not recall and said that he may have been the person assIgned Shown hIS letter to Mr LewIs, dated June 24 1993 (Ex 28) Mr Armstrong apologIzed for hIS lapse of memory and said that he had been the desIgnee It was noted that he had been dealIng wIth gnevances respectIng Art 12 18 and A.l 2 at the Stage Two meetIng, and Mr Armstrong acknowledged that hIS wntten response (Ex 28) IndIcated that he had gIven the Issues some senous consIderatIOn Asked In cross-eXamInatIOn whether SInce he IS RegIOnal Manager and Issues In dIspute affect hIm as RegIOnal Manager It was common for the Deputy Mimster to desIgnate hIm at Stage Two Mr Armstrong said that the desIgnatIOn usually comes from the DIrector He saId he belIeved he had been desIgnated because he had nothIng to do wIth the Issue pnor to the gnevances, as Mr Clarke had handled It He pOInted out that Mr Clarke had sent the letter to Mr Hardy and said that he Mr Armstrong, had been aware that the cots had to be removed He dId not dIspute the suggestIOn that at the end of the Stage Two meetIng, he had the authonty to resolve the gnevances In all three areas He pOInted out that he could uphold the gnevors' posItIOns or deny theIr gnevances, and pOInted out that he had stated In the Stage Two reply (Ex 28) that they had a nght to proceed wIth theIr gnevances If they dIsagreed wIth hIS response Mr Armstrong agreed In cross-eXamInatIOn that he met wIth Mr VirgIn and Mr Wheelans the umon' s representatIves regardIng statIOn reassIgnments on February 25 1993 and that on March 5 1993 he dIscussed the Issue of rest 150 facIlItIes wIth Mr VirgIn He agreed that subsequently gnevances were filed regardIng rest facIlItIes He saId that he understood that the statIOn reassIgnment Issues were stIll to be resolved through negotIatIOns and that he understood that the bargaInIng umt members were concerned that the beds were beIng removed He agreed that he supported and endorsed Mr Clarke's actIOns regardIng the rest facIlItIes Mr Armstrong agreed that he was famIlIar wIth the Rest Penod PolIcy and Procedure (Ex 5) He agreed that "relax In any manner" Includes lYIng honzontally and added "Not on a bed They can do so on a couch" He agreed that It IS the Managers' responsIbIlIty to momtor staff for complIance wIth the PolIcy He agreed that It IS acceptable to the Mimstry of Health that ambulance staff stretch out honzontally as long as they do not sleep and added "On our couches" He saId that they were not to do so on beds or cots He agreed that the statement, that It IS acceptable to the Mimstry of Health that ambulance staff can stretch out honzontally as long as they do not sleep fell wIthIn the PolIcy Mr Armstrong advIsed In chIef that there were general dIscussIOns wIth the umon regardIng to schedulIng (length of ShIftS?) In the late 80's and early 90's around ways to Improve servIce to the publIc He said that by 1993 "we" were havIng senous dIscussIOns lookIng at Peel-York and Oshawa-Markham serVIces The Emergency Health ServIces Branch wanted to "move away from extended schedulIng, 1 e the 10- 14- and 16-hour ShIftS and move to 12-hour ShIftS and In some places 10- or 8-hour ShIftS or a cOmbInatIOn By 1993 most of the other Mimstry ambulance serVIces were on 10- and 12-hour ShIftS wIth some 8-hour ShIftS or a cOmbInatIOn, wIth the exceptIOn of Peel- York and Oshawa-Markham He said that he belIeved that In 1994 Oshawa- Markham, whIch IS also In RegIOn 3 adopted 10- and 12-hour ShIftS Later In hIS eVIdence In chIefMr Armstrong corrected hImself and said that Oshawa-Markham changed to 12-hour ShIftS In 1996 When asked whether he dIscussed the proposed schedulIng changes wIth the Managers, Mr Armstrong said "we routInely dIscussed enhanced serVIce to the publIc reduced costs more efficIent servIce" He saId there was "a groWIng 151 concern In 1993 regardIng extended ShIftS of nurses and firemen and a marked Increase In errors and omISSIOns InJunes and absenteeIsm or sIck tIme-for people who work more than 12-hour ShIftS" He saId these problems Increased among those who worked a 12-hour ShIft as compared to those who worked an 8-hour ShIft, and the Increase was more marked among those workIng ShIftS long than 12 hours Mr Armstrong said that these concerns were raIsed wIth the Umon He descnbed them as health and safety concerns concerns regardIng the staff's abIlIty to meet call demand, and concerns about reducIng program costs In response to the government's wIsh He noted that 1993 was the penod of the SocIal Contract Act and saId that the DIrector requested RegIOnal Offices to present recommendatIOns on how saVIngs could be achIeved He said that he had presented recommendatIOns, IncludIng schedule changes for Peel-York and Oshawa-Markham, and for reducIng purchases He agreed that meetIngs were held wIth the umon In 1993 around thIS Issue He saId that the September and October 1993 ERC meetIngs dealt wIth the ShIft length Issue and other measures to achIeve savIngs He submItted proposals for changes to the DIrector and was advIsed to proceed wIth the recommendatIOns as submItted, whIch, he saId, lead to meetIngs wIth the umon In early January 1994 On August 20 1998 thIS panel heard and consIdered the arguments of the partIes regardIng the admIssIbIlIty of a Memo dated June 24 1993 the Minutes of a January 24 1996 ERC and a letter dated September 23 1996 whIch the employer wanted Introduced Into eVIdence We ruled that the documents would not be admItted Into eVIdence In thIS proceedIng In so decIdIng, we consIdered and Informed the partIes of our reasons whIch follow This panel is chargedyt,ith determiningyt,hether there had been a breach of Art. A.1 2 and or Art. 12 as of June 7 1993 the date of the last grievances. As past practice yt,as relevant to determining the practice in 1993 yt,e heard evidence pertaining to past practice The evidence respecting events yt, hich occurred after June 7 1993 had been entered on consent of the parties. 152 The general principle governing the admissibility of evidence oral or documentmy is relevance to the issues yt,hich must be decided in any particular case III this case yt,hether there yt,as a breach of Art. A.1 2 or Art. 12 on or before June 7 1993 Generally evidence pertaining to the actions of the parties after the filing of the grievance is not admissible Exceptions occur yt,here subsequent actions may shed clear and convincing light and insight into actions and motives of an earlier time The panel carefully considered the contents of the documents. Each yt,as dated after June 7 1993 Each of them contained information yt, hich may be of some relevance and or probative value Hoyt,ever other parts of them may be seen as prejudicial and other parts have no relevance to yt,hat the panel must decide On balance the pane I concluded that the potentially probative value of the documents contents yt,as oufyt,eighed by a) their potentially prejudicial effect b) their potential to unnecessarily lengthen these proceedings. We also concluded that admitting the documents yt,ould have a counter-productive impact on labour relations in Peel-York Ambulance Service yt,hich yt,ould not serve the interests of either party In cross-eXamInatIOn, Mr Armstrong confirmed that he works out of the Barne RegIOnal Office and shares an office wIth AssIstant RegIOnal Manager Bryan Clarke He confirmed that he socIalIzes WIth Mr Clarke and golfs wIth hIm He saId that he had a good workIng relatIOnshIp wIth Mr Clarke and that he had not dIscussed hIS eVIdence wIth anyone other than counsel In preparatIOn for thIS heanng Mr Armstrong demed that he had "dIscussed eVIdence" wIth Mr Clarke He said that he had not dIscussed any of the documents wIth Mr Clarke and stated that they had dIscussed "the dates and the IndIVIduals beIng called" but not theIr testImony In the context of questIOns about dISCUSSIng eVIdence It was stated to Mr Armstrong, that Mr Clarke's eVIdence had been that he had dIscussed a number of documents wIth hIm (Mr Clarke's eVIdence was that he and Mr Armstrong dIscussed some of the Issues In relatIOn to meetIng tImes ansIng from documents partIcularly Ex 6 Mr Clarke dId not clanfy exactly when those dIscussIOns occurred, as he was not asked 153 at that pOInt about havIng "dIscussed eVIdence" ) Mr Armstrong said that he "dId not recall" dISCUSSIng documents pnor to thIS heanng, or wIth Mr Clark In the precedIng four days Mr Armstrong agreed that he IS the most semor person regardIng labour relatIOns Issues In Peel- York. He dIsagreed wIth the suggestIOn that the statIOn rotatIOn Issue could be seen as a labour relatIOns Issue In whIch he wanted to be Involved He said that he set out the gUIdelInes regardIng that Issue whIch were for the "managers" to Implement He agreed that when the statIOn rotatIOns become an Issue In dIspute It becomes a labour relatIOns Issue for hIm When asked whether the same applIed wIth respect to rest pen ods he saId "I chose not to be responsIble for everythIng" He agreed that he had been Involved wIth the rest penod dIspute "ObvIOusly" and saId that It was dIscussed at the ERC meetIng and that he dIscussed It WIth hIS supervIsors He then said "I left It WIth Mr Clarke I chose not to be responsIble for It" Mr Armstrong agreed that he consIdered changes to the compressed work week/ ShIft lengths a labour relatIOns Issue In whIch he would be Involved He saId that he "could" be Involved In negotIatIng the new compressed work week arrangement He agreed that he would determIne whether the new compressed work week arrangement would be acceptable to the employer He agreed that as RegIOnal Manager he has a great deal of authonty respectIng labour relatIOns In Peel-York Ambulance ServIce Mr Armstrong agreed that he had said that Mr Hardy had ImtIated the statIOn re-assIgnments on hIS own ImtIatIve When It was stated to hIm that the umon' s eVIdence was that Mr Hardy had said that he Mr Armstrong, had ImtIated It, Mr Armstrong replIed that he would not be one bIt surpnsed He saId that dunng the InVestIgatIOn ofMr Hardy regardIng the allegatIOn that he had used IntImIdatIOn tactIcs on employees Mr Hardy had saId that It came on authonty from hIS office "all of whIch wasn't true" He said he had "absolutely not" told Mr Hardy to effect statIOn transfers 154 When It was stated to Mr Armstrong that the Umon's eVIdence was that In February 1993 Mr Hardy told the umon that he Mr Armstrong, had been upset and angry at beIng contacted by more semor people In the Mimstry Mr Armstrong said that he had "no doubt" that Mr Hardy said that He said that Mr Hardy had been upset and angry had not been able to JustIfy the statIOn changes, and "we" were gOIng to suspend the changes He saId that It was common practIce for Mr Hardy to say thIS In order to IntImIdate staff He saId that the statements attnbuted to Mr Hardy about hIm were absolutely false He said that he Mr Armstrong, dId not know the people on the lIst for statIOn transfers then and dId not know them at the date of heanng, that he would not try to recommend or Influence statIOn re-assIgnments He said that he unfortunately only got to know IndIVIdual Officers through the gnevance procedure or umon busIness Mr Armstrong was asked whether he had dIscussed the Issue of the compressed work week and ShIft lengths wIth umon members pnor to schedulIng It at the May 1993 ERC meetIng He replIed that he knew that he dIscussed It WIth the Umon In 1987 when he first became RegIOnal Manager of RegIOn 3 He saId that he mIght have dIscussed It before May 1993 but that he could not be sure He agreed that the suggestIOn of change to the lengths of ShIftS caused consIderable concern He agreed that he had approval from the DIrector In 1993 to proceed wIth changes to the compressed work week. He saId that OWIng to the Intervemng stnke It was resolved In October or November 1996 Mr Armstrong revIewed the entry from page 3 of the mInutes of the May 26 1993 ERC meetIng (Ex 14) under the headIng, " SchedulIng" Mr Armstrong stated there IS a posSIbIlIty that we need to cahnge (SIC) our present schedule Mr Armstrong stated that Management was lookIng at a vanety of possIble schedules from eIght hours to twelve hour ShIftS NothIng however IS confirmed OPSEU requested a copy of any schedules that Management had, along wIth a copy of the compressed work agreement 155 AgaIn, he agreed that the Issue was only finally resolved In 1996 He saId that the statIOn reassIgnment Issue was unresolved untIl September 1996 Mr Armstrong dIsagreed that the rest cot Issue remaIned unresolved as of May 1996 Mr Armstrong was asked whether It had been a cOIncIdence that between late December 1992 and early January 1993 and May 1993 that three maJor Issues came to the forefront In Peel-York Ambulance ServIce He was asked to answer "yes" or "no" He saId that they were three totally unrelated Items and that they were "COInCI dental" He saId that Mr Hardy brought the Issue of statIOn reassIgnments forward wIthout notIce to hIm, that It had been an act of IntImIdatIOn and spItefulness and the Mimstry dealt wIth It appropnately He said that the cots had been dIscovered by chance that no one was sent out to look for them, that It had been a routIne InSpectIOn He saId that the Issue of ShIft schedules (ShIft length?) had been a product of the SocIal Contract Act, that management had receIved dIrectIOns to economIze He saId that he tned to negotIate a change In schedulIng, the SocIal Contract Act then came Into force then the stnke occurred, and the ShIft length Issue was resolved by a Memorandum of Settlement, at the end of the stnke He said that consequently the Issues were "totally cOIncIdental" He agreed that one of hIS professIOnal mandates was to provIde good serVIce Umon Argument The umon advIsed that It would attempt to antIcIpate the Employer's arguments, partIcularly around s 18(1) of CECBA and stated, for the record, that the Employer's posItIOn should have been dIsclosed at the outset of the proceedIngs The umon referred us to thIS panel's Intenm DeCISIOn dated March 11 1998 where at page 1 we stated "The partIes were agreed that BIll 7 applIed to the contInued proceedIngs In thIS dIspute" The umon submItted that the Employer should not now be argUIng the applIcabIlIty of the old CECBA R.S 0 1990 c C 50 The umon submItted that Art 12 of the collectIve agreement IS ambIguous and that In a prevIOUS award It had been found to be ambIguous 156 The umon advIsed that It antIcIpated that the Employer would argue that because the gnevances were filed pnor to the amendments to the old CECBA that the gnevors are precluded from argUIng a breach of Art 12 and that the Issue of beds and cots are exclusIvely a matter of "kInds and locatIOns of eqUIpment" and that such Issues fell under s 18(1) of the old CECBA and are not wIthIn the JunsdIctIOn of thIS board The Employer's antIcIpated argument IS flawed for two fundamental reasons 1 the subJ ect matter of the gnevances does not properly fall wIthIn "kInds and locatIOns of eqUIpment" In s 18(1) and 2 If It does properly fall wIthIn that phrase the employer can stIll be estopped from eXerCISIng ItS management nghts Under the old CECBA tnbunals were hIstoncally asked to decIde whether a subJect was "bargaInable" The Gnevance Settlement Board has consIdered the "pIth and substance" of a subJect about to be bargaIned, In order to determIne whether the subJect IS covered S 18 (1) of the old CECBA sets out areas wIthIn management's exclusIve nghts and provIdes and such matters wIll not be the subJ ect of collectIve bargaInIng nor come wIthIn the JunsdIctIOn of a board It IS sIgmficant that the word "board" In the above-noted conclusIOn of s 18 (1) IS not capItalIzed Some provIsIOns of the collectIve agreement do touch upon management nghts because In "pIth and substance" they deal wIth bargaInable Issues Art 18 deals wIth Video DIsplay TermInals, whIch falls wIthIn "kInds and locatIOns of eqUI pment" but the subJ ect IS In the collectIve agreement because Art 18 deals wIth health and safety Art 38 deals wIth Headquarters and touches on "orgamzatIOn" and "assIgnment" under s 18 (1) but the subJect IS In the collectIve agreement because It assIsts In determInIng entItlement to vanous allowances and the applIcatIOn of other provIsIOns under the collectIve agreement Art 4 deals wIth PostIngs and FIllIngs of VacanCIes or New PosItIOns, and as such, Impacts upon 157 "employment, appoIntment, complement" IdentIfied as a management nght In s 18 (1) In thIS case the Issue In questIOn does not even touch on a management nght The reservatIOn to management of the exclusIve nght to determIne "kInds and locatIOns of eqUIpment" applIes only to eqUIpment for performIng work, eqUIpment for the performance of Job dutIes ThIS case deals wIth personal eqUIpment and supplIes for use In non-workIng pen ods of tIme dunng rest penods The employer may have the nght to lImIt such eqUIpment and supplIes, but that IS not an exclusIve management nght, and IS WIthIn the bargaInIng process WIth respect to estoppel In Baars 457/90 the Employer had agreed to follow certaIn steps before contractIng out work at the Ontano SCIence Centre and had breached that agreement The Employer argued that contractIng out was an exclusIve functIOn of management The Board decIded that by agreeIng to a protocol to exerCIse ItS powers In a certaIn way the Employer caused the umon to detnmentally rely on the protocol and In so relYIng, to wIthdraw ItS gnevance Atpp 10 - 12 the Board estopped the Employer from argUIng that the umon could not proceed on ItS gnevance agaInst contractIng out and depnvIng the bargaInIng umt of overtIme opportumtIes In thIS case concernIng the Art 12 gnevances over a number of years the employer has represented to the umon that the practIce of bnngIng In cots mattresses etc was acceptable The umon relIed on that representatIOn, and as a consequence dId not bargaIn for specIfic language Therefore the condItIOns for an estoppel are present The PolIcy regardIng rest pen ods (Ex 5) references Art 12 of the collectIve agreement In the "Purpose" and "Reference" sectIOns The PolIcy was created In 1981 and remaIned In effect In June 1994 when Mr Armstrong held the Stage Two meetIng In hIS letter decIdIng the Stage Two level of the gnevances (Ex 28) Mr Armstrong replIed You were advIsed that there has been no change In the Rest Penod polIcy Issued under the Ambulance ServIces Branch Manual of PolIcy 158 and Procedure SectIOn 1-56 "Rest Penods Dunng ShIftS of Work" has been attached for your reference Furmture whIch Includes sofas and chaIrs for the employees to rest on has been supplIed to all ambulance statIOns Thus he acknowledged that the Rest Penod PolIcy (Ex 28) was stIll the polIcy In 1993 The umon antIcIpates that the employer wIll argue that the Gnevance Settlement Board cannot make an Order as a result of the presence of the phrase "and such matters shall not come wIthIn the JunsdIctIOn of a board" There are two responses 1 The Gnevance Settlement Board IS specIfically referenced In s 19 of the old CECBA as "Board" wIth a capItal "B" whIch dIfferentIates It from "board" In s 18 ThIS has been establIshed In a prevIOUS case Drew 331/89 As there are no exceptIOnal CIrcumstances present In thIS case you must apply the doctnne In Blake and follow Dr~ 2 The reference to "board" In s 18 IS to an Interest arbItratIOn board, not to the Gnevance Settlement Board, whIch IS a nghts arbItratIOn board The Gnevance Settlement Board IS not referred to In the old CECBA before s 19 The references to "board" In s 18 (1) as well as ss 10 - 14 of CECBA are IndIsputably to an Interest arbItratIOn Board, and not to the Gnevance Settlement Board SectIOn 18 IS about collectIve bargaInIng, and IS not about nghts The Gnevance Settlement Board appears In the old CECBA only In s 19 and 24 and IS referred to by ItS full name or as "Board" ThIS dIspute IS not about "kInds and locatIOns of eqUIpment" and even If It IS the employer IS estopped from so argUIng The umon antIcIpates that the employer wIll argue that It put the umon on notIce of ItS IntentIOn to dIscontInue any past practIce concernIng rest pen ods In 159 1993 and that any estoppel whIch arose termInated wIth the expIry of the January 1 1992 to December 31 1993 collectIve agreement ThIS IS an overly sImplIstIc approach, whIch would Ignore the umon's obJectIOn to the change In past practIce and the umon' s filIng of the gnevances concermng past practIce The employer IS prohIbIted from makIng changes to rest penod practIce dunng the lIfe of the agreement Ifwe had completed thIS heanng before the end of the 1992 - 93 agreement and If the umon had been successful the practIce under the new agreement would have permItted cots etc and the employer would have been oblIged to bargaIn a new polIcy The termInatIOn of the past practIce forces the umon to acqUIesce to a breach of the collectIve agreement, to accept the employer's conduct, and to go back to the bargaInIng table to negotIate back to the prevIOUS status quo That IS the mIschIef that would result from the employer's posItIOn beIng successful It IS the kInd of outcome whIch the doctnne of eqUItable estoppel was desIgned to prevent In London (City) andC UP.E. Loc 101 (1990) 11 LAC (4th) 319 (Roberts) the CIty paId ShIft premIUms for many years to ItS parkIng control officers but ended the practIce In the last year of the 1989 collectIve agreement Gnevances were filed The Umon dId not raise the Issue at the bargaInIng table earlIer but raIsed It In 1990 The board found that the language of the collectIve agreement dId not reqUIre the CIty to pay shIft premIUms It concluded that the practIce should contInue because the Umon had gneved, and because there was a primafacie arguable case that the oblIgatIOn to pay the premIUms arose from the collectIve agreement The board concluded, at p 324 HavIng taken the good faIth posItIOn that the eXIstIng language of the collectIve agreement already reqUIred payment of the ShIft premIUm, the union could not be obligated to negotiate neyt, language in the collective agreement to gain the same objective (emphasIs added In submI sSIOns) ThIS applIes to our sItuatIOn, as the partIes had a new agreement to negotIate In Re Com l' ofN W T and N W T Public Service Assoc (1986) 24 LAC (3d) 132 (Hope) 160 the board took a sImIlar approach, at p 143 The umon has establIshed a primafacie case that the employer IS prohIbIted from changIng the rest penod practIce by Art 12 and by estoppel Once the umon gneves the employer has the optIOn of tablIng language whIch would change the practIce In faIlIng to table language whIch would change the practIce It cannot argue that It can umlaterally change a practIce The umon' s InterpretatIOn should apply to the end of the current collectIve agreement, and should apply to the next collectIve agreement as well In the absence of the employer tablIng language changIng the polIcy In OPSEU (Union Grievance) 724/83 (Samuels) the Board looked at the partIes' negotIatIng hIstory from the tIme the Umon was an "AssocIatIOn" A prevIOus decIsIOn, Burns 365/82 had decIded that rest penods and meal penods were alIke Mr Samuels said that Art 12 was ambIguous examIned the negotIatIng hIstory and overruled the Burns decIsIOn Mr Samuels noted at p 8 that the Umon saw both rest penods and meal penods as responsIbIlIty-free tIme However he concluded at p 9 ThIS hIstory demonstrates clearly that a dIstInctIOn was made In the negotIatIOns between "rest pen ods" and the "meal break" The Rest Penod PolIcy (Ex 5) clanfies the meamng of "rest pen ods In each ShIft as applIcable In the collectIve agreement, Art 12 1" The Rest Penod PolIcy (Ex 5) IS on all fours wIth Mr Todd's eVIdence as stated at p 8 In Mr Samuels' decIsIOn Further under "Procedure" In the PolIcy (Ex 5) paragraph 1 accords wIth Mr Todd's eVIdence There IS no dIspute between the partIes' eVIdence that Ambulance Officers could reclIne honzontally Mr Armstrong's eVIdence was to thIS effect, as IS hIS letter (Ex 28) whIch claIms that the Rest Penod PolIcy (Ex 5) IS stIll In effect Nevertheless the employer wants beds cots etc out of the workplace The Rest Penod PolIcy (Ex 5) contemplates that the Officers may lIe down The eVIdence that no sleepIng was permItted IndIcates that the employer knows that the Officers 161 wIll be restIng honzontally ThIS dIspute IS not about sleepIng on the Job SleepIng on the Job IS an Industnal norm In a care-provIdIng settIng, 1 e the health care professIOns Even If sleepIng on the Job were permItted, It would not be out of lIne where we expect people to spend extensIve pen ods of tIme In the workplace It has been pure speculatIOn from the outset that lIabIlIty would follow If the old PolIcy were reInstated The eVIdence of Mr VirgIn, Mr Wheelans and Mr House as to the long- standIng practIce of permIttIng cots and beds supported Mr Patterson's openIng statement acknowledgIng the practIce Mr Patterson Said that they wanted the practIce stopped Mr VirgIn named about 15 people who were managers who knew of the practIce Mr House's Mr Wheelans' and Mr Hall's eVIdence was consIstent WIth Mr VirgIn's No one from management demed the practIce the practIce was conceded NotwIthstandIng that the practIce In Peel-York was unusual and that management wanted Peel- York to conform wIth the practIce In other ServIces It would not flow from thIS panel's decIsIOn that the practIce In Peel-York should be umversalIzed to all other ServIces "PractIce" applIes to each specIfic workplace Across the proVInce the "practIce" wIll be dIfferent In every workplace There can be twenty practIces for rest pen ods on twenty dIfferent floors In the same bUIldIng A rulIng In the umon's favour would protect the Integnty of Art 12 and gIve It the broad meamng that It deserves It should be Interpreted to Include a broad range of customs and repeated Indulgences There was a "practIce" That "practIce" IS captured In Art 12 The employer IS In breach The antI-umon ammus gnevances rely upon the presence of the factors of proxImIty Intent, tImIng, motIvatIOn and credIbIlIty The Gnevance Settlement Board has the JunsdIctIOn to deal wIth allegatIOns of harassment or dISCnmInatIOn under Art A. There are three key Issues or dI sputes statIOn and crew reassIgnments/shIft rotatIOns the removal of cots and ShIft lengths A lot of actIvIty about them occurred between early January and mId- 162 Apnl 1993 It should be noted that the statIOn rotatIOns started at the end of 1992 and In early 1993 and resulted In multIple gnevances and the bargaInIng umt members contactIng semor management In the Mimstry Those actIvItIes prompted qUIck actIOn by the employer to meddle In all three areas all of whIch had been longstandIng practIces at Peel-York. For Instance AssIstant RegIOnal Manager Clarke's memo to AssIstant DIrector Malcolm Bates dated January 28 1993 (Ex 23) was sent well after the gnevances were filed and stated Management should not be held back from makIng these moves due to havIng to explaIn to staff what our ratIOnal (SIC) IS and be subJected to Inqumes from Semor Management, after phone calls from umon members not folloWIng the chaIn of command ThIS statement set the tone for everythIng that transpIred after It was wntten It IS cntIcal of the fact that the bargaInIng umt of Peel-York Ambulance ServIce had filed gnevances, and caused management to be subJected to InqUInes from Semor Management, and cntIcal that the bargaInIng umt members had not followed the chaIn of command All the bargaInIng umt members had done was exerCIse theIr lawful umon nghts InMerson 299/93 (Gray) the gnevor a contract employee was termInated The Issue was whether hIS gnevance was arbItrable Management had taken offence to the gnevor's deportment at a Stage Two meetIng The board concluded that the real reason for the gnevor' s termInatIOn, but rather hIS conduct at the Stage Two meetIng dunng an exerCIse of hIS nghts At page 10 the board consIdered s 18 and at page 11 s 29 of the old CECBA and compares s 29 wIth the language In formerly s 66(a) of the Labour Relations Act (s 67 ofR.S 0 1990 c L 2 as am by S 0 1991 c 56 and S 0 1992 c 21 ss 2-57 s 72 of SO 1995 c 1 (BIll 7) The board stated that It was the gnevor' s fundamental nght to seek redress through semor management Ifunable to achIeve anythIng wIth ImmedIate management The award deals wIth Art Al 2 and says (at p 13) 163 dISCnmInatIOn agaInst an employee for filIng or purSUIng a gnevance IS "dISCnmInatIOn practIsed by reason of an employee's actIvIty In the umon" wIthIn the meamng of sectIOn A.2 3 of ArtIcle A. ObvIOusly an employee's lawful gnevance related "actIvIty In the umon" IS protected from beIng the basIs of dISCnmInatIOn no matter how the ments of the gnevance are ultImately resolved In the gnevance procedure or at arbItratIOn The Merson award goes to the provIsIOns of the collectIve agreement whIch protect our membershIp for actIvItIes beyond the mere filIng of a gnevance and whIch extend to eXerCISIng theIr nghts under the Act On January 28 1993 when Ex 23 (Clarke memo to Bates) was wntten, Mr Bates on behalf of Graham Brand, had made InqUInes as to what was gOIng on In Peel-York. The memo dIsplays a tone that we 1 e says Mr Clarke are "gettIng raIned on" because these "bad" umon guys exercIsed theIr nghts Mr VirgIn testIfied that then ActIng Manager Fred Hardy said to hIm that Mr Armstrong ImtIated the ShIft rotatIOn In early January and In early February told them that Mr Armstrong was upset wIth the umon representatIves In cross- eXamInatIOn Mr VirgIn said Mr Hardy came to dISCUSS problems he was havIng wIth Mr Armstrong, that Mr Armstrong told hIm to do certaIn thIngs, and that he was actIng under Mr Armstrong's InstructIOns Mr Wheelans said that Mr Hardy had said that If the Umon contInued to raIse the Issue those hIgher up may take actIOn Mr Armstrong confirmed that he'd been contacted by Mr Brand and Mr Block There IS also a February 18 1993 Memo from Mr Armstrong to Mr Bates confirmIng receIpt of SpecIal AssIstant to the Mimster of Health Peter Block's E- Mall As a result of the umon's polItIcal actIvIty Mr Armstrong was respondIng to those semor to hIm In the Mimstry It IS InconceIvable that Mr Hardy would have known that Mr Armstrong had been contacted by the Mimstry unless Armstrong had conveyed that InfOrmatIOn to Mr Hardy And that IS consIstent WIth Mr VirgIn's eVIdence as to what Mr Hardy said We heard no eVIdence from Mr Hardy to contradIct the Umon's statements There was no need for the Umon to call hIm as a 164 wItness The board may draw the appropnate Inference from the employer's faIlure to call Mr Hardy as a wItness Mr Patterson questIOned Mr VirgIn closely about what Mr Hardy said to hIm and Mr VirgIn's eVIdence remaIned consIstent, that Mr Armstrong was behInd the move ThIrty-two exhIbIts have been entered In eVIdence Fourteen of them IndIcate that Mr Armstrong had a dIrect hand regardIng ShIft rotatIOn, rest penod, the compressed work week. The umon' s wItnesses were clear artIculate and consIstent In chIef Mr Armstrong presented smoothly but In cross-eXamInatIOn, he demonstrated a dIfferent character--evasIve argumentatIve untruthful adversanal He would not answer sImple yes or no questIOns His answers regardIng the best Interests of the SerVIce were self-servIng His demeanour In cross-eXamInatIOn was consIstent WIth hIS behavIOur wIth and attItude toward the bargaInIng umt members partIcularly those who raIse Issues WIth hIm The eVIdence regardIng the February 25 1993 meetIng at Tony's Restaurant was contradIctory Mr VirgIn and Mr Wheelans say the meetIng was short, about 20mIn Mr Armstrong says It was longer he remembers by the number of cups of coffee Mr VirgIn drank In 1993 but dId not remember who the Deputy Mimster's desIgnee was at the Stage Two meetIng to deal wIth these gnevances Mr Armstrong said Mr Wheelans and Mr VirgIn are wrong about the length of the meetIng, hIS behavIOur havIng been curt and not Interested, hIS not havIng covered the Items In the agenda In Mr VirgIn's letter (Ex 5) and In attnbutIng to hIm the statement that they were to wIthdraw the gnevances but that he would effect the rotatIOn SIX months later Mr Armstrong demed cuttIng off the meetIng, and said that he had somethIng else to do He dId somethIng else that day-he fired Fred Hardy Mr Clarke agreed that he had dIscussed eVIdence But when Mr Armstrong was asked, he demed It The panel should accept Mr Clarke's eVIdence over Mr Armstrong's on thIS Issue Mr Armstrong demed havIng gIven any InstructIOn to Mr 165 Hardy and ImplIed that Mr Hardy would have said anythIng about hIm The employer should have called Mr Hardy If Mr Hardy had In fact ImtIated the ShIft rotatIOns at the end of 1992 and In early 1993 that would have been very ambItIOus of hIm, when he knew he was gOIng to be fired Mr Armstrong used Mr Hardy to test the waters about ShIft rotatIOn, and knew what was gOIng on. Mr Armstrong demed havIng anythIng to do wIth thIS untIl June 23 1993 and saId It was Mr Clarke's and Mr Hardy's responsIbIlIty ThIS demal contradIcts fourteen documents whIch say the OpposIte He knew what was gOIng on and was answenng the Mimstry He wanted to make It look lIke he was not Involved and was not the ultImate authonty In the RegIOn However the documents dIspute thIS The February 18 1993 memo from Mr Armstrong to Mr Bates (Ex 26) suspended the statIOn reassIgnments Mr VirgIn's letter to Mr Armstrong of February 20 1993 (Ex 6) was a pro- actIve document whIch InvIted Mr Armstrong to meet wIth umon representatIves at Tony's The umon asked to deal pro-actIvely wIth certaIn specIfied matters A real contradIctIOn arose In the eVIdence as to what transpIred at that meetIng The board should prefer the eVIdence ofMr Wheelans and Mr VirgIn, In VIew ofMr Armstrong's eVIdence In cross-eXamInatIOn Ex 15 and 16 are the unsIgned Memoranda of Settlement authonzed by the umon and submItted to Mr Armstrong The umon submIts that they were forwarded to Mr Armstrong by February 15 1999 Ex 6 speaks to thIS Mr Armstrong's letter dated February 22 1993 (Ex 12) postpones the "ShIft changes" (1 e the statIOn reassIgnments) and speaks to the Memorandum of Agreement Note the tone In Mr Armstrong's Memorandum to Mr Brand and Mr Bates dated February 26 1993 (Ex 27) In hIS statement "regardless of whether all employees sIgn the agreement or not" Mr Armstrong's IntentIOn was to elImInate the gnevances and to contInue wIth statIOn reassIgnments Mr VirgIn's letter to Mr Armstrong dated March 16 1993 (Ex 7) followed the meetIng at Tony's on 166 February 25 1993 and a conversatIOn on March 5 1993 It demonstrates that as soon as the statIOn rotatIOn/reassIgnment Issue was dIsposed of the partIes were Into the rest facIlItIes Issue The Memorandum of Settlement sIgned by Mr Armstrong on March 17 1993 (Ex 11) and by others on that date and on March 19 and Apnl 2 1993 IS Mr Armstrong's draft The first paragraph states that It IS the exclusIve nght of management to determIne orgamzatIOn and assIgnment of work. Paragraph 2 cancels all statIOn and crew changes scheduled for March Paragraph 3) 1) whIch states It IS agreed that other than the re-IocatIOn of a ShIft supervIsor to ThornhIll and the subsequent reqUIrement to re-Iocate a staff member to make room for thIS change there wIll be no further crew or statIOn changes untIl 1 ) a procedure IS developed by management In consultatIOn wIth the staff to ensure a faIr and eqUItable system IS utIlIzed yt,hen these changes are made in the future (emphasIs In submI sSIOns) supports Mr Wheelans' and Mr VirgIn's statement that Mr Armstrong, not Mr Hardy or Mr Clarke always Intended to Implement statIOn rotatIOns It IndIcates that the motIve and Intent carryon In Mr Armstrong's letter to Mr VirgIn dated March 22 1993 (Ex 9) enclosIng the Rest Penod PolIcy (Ex 5) Mr Armstrong relIes agaIn on the exclusIve functIOns of management He took control of the furmture dIspute Just as he took control of the statIOn rotatIOn/reassIgnment dIspute On Apnl 5 1993 Mr VirgIn wrote to Mr Armstrong (Ex 10) regardIng the removal of the cots and beds etc The Apnl 21 1993 ERC meetIng mInutes (Ex 13) IndIcate at p 4 Item 9 that Mr Armstrong contInued to be Involved and that he wanted statIOn rotatIOns The May 26 1993 ERC meetIng mInutes at p 3 under "SchedulIng" IndIcate that Mr Armstrong was present and said that he was lookIng at a vanety of possIble schedules/shIft lengths Ms Fowler's Memo to Mr LewIs and Mr VirgIn dated Apnlll 1994 (Ex 17) IndIcated that she wanted to renegotIate the compressed work week agreement The umon consented to the IntroductIOn Into eVIdence of thIS 167 Memorandum, although It was created well after the gnevances ThIS Issue was raIsed by Mr Armstrong In 1993 It was not purely cOIncIdental that thIS IS the thIrd Issue raised by Mr Armstrong that IS beIng gneved, despIte Mr Armstrong not havIng been able to remember that he had been the Deputy DIrector's desIgnee at the Stage Two meetIng wIthout our shoWIng hIm hIS letter of response (Ex 28) Mr Armstrong tned to hIde hIS actual motIves behInd "the best Interest of the ServIce" and bnngIng the Peel-York ServIce Into conformIty wIth the rest of the ServIce There was nothIng wrong wIth the ServIce as It was StatIOn rotatIOns In 1998 are not carned out In any dIfferent manner than they were In 1993 The umon questIOns why management made It such a bIg deal and why It took tIll May 1996 to arnve at a compressed work week agreement The rest facIlItIes had remaIned In the statIOns for many years and were followed up to an extent, In a tImely manner However Mr Clarke found a bed, and the next thIng that occurred was the order for ItS removal and the removal of all beds and cots However a van dId not arnve untIl May 1995 to take It away! Mr Clarke's eVIdence was that he wIshed he had not found the bed ThIS IS because It dIdn't matter much to management whether they were there It sImply became an Issue over whIch Mr Armstrong chose to take care of out of antI-umon ammus, because hIS knuckles were beIng rapped by Semor Management We commenced a motIOn for Intenm relIef In 1995 after the removal of the furm ture The panel took a VIew of the statIOns In October 1995 The umon wanted you to have a better opportumty to observe the dIfference In the workIng envIronments at each statIOn In Peel-York Ambulance ServIce where the practIces arose The eVIdence establIshed that the practIce was not carned out In secret, but rather In the open, and accepted by ImmedIate management The practIce that was establIshed by the umon should be Interpreted as what In fact occurs In contrast wIth what the employer now thInks should occur The eVIdence establIshed that neIther Mr Armstrong now Mr Clarke had a lot of knowledge of the practIce even though Mr Clarke dId 10 InSpectIOns LICenSIng Inspectors, however had done InSpectIOns 168 and the presence of beds and cots had never been a problem It IS dIfficult to belIeve that Mr Armstrong and Mr Clarke who worked In the same office socIalIzed, and played golf together would not dISCUSS these Issues and how they would be treated It IS fair to conclude on the eVIdence that Mr Armstrong would have Implemented the statIOn rotatIOns/reassIgnments If the umon had not engaged In polItIcal actIvIty Mr Clarke's eVIdence was straightforward, but the umon submIts that only to the extent that he provIded Mr Armstrong a measure of protectIOn The umon submIts that Mr Armstrong was "In" on the Issue of beds and cots and other rest facIlItIes from the outset, and that Mr Clarke's eVIdence was fabncated The Employer called no lIne managers to gIve eVIdence The OLRB cases (United Food and Commercial Workers International Union, Local 633 Complainant v Barton Feeders Inc Respondent [1993] OLRB Rep February 89 (O'NeIl) International Wooclliorkers of America, Complainant v B & S Furniture Manufacturing Limited, Respondent May 9 1980 2331-79-U2332-79-Up 645(RD Howe) Barrie Typographical Union, No 873 (Complainant) v The Barrie Examiner (Respondent) October 6 1975 0597-75-U P 745 (D D Carter) Labourers International Union of North America, Local 183 Complainant, v Tillotson-Sekisui Plastics Limited, Respondent October 16 1979 0831-79-U P 1027 (KevInM Burkett) International Brotherhood of Painters and Allied Trades, Local Union 1891 Applicant v Donuts Industries Ltd Responding Party [1994] OLRB Rep December 1630 (Lee ShouldIce) IndIcate that when antI-umon ammus IS alleged, the onus ShIftS to management to negatIve It The Umon's reason for these three Issues havIng been raised all at once and remaInIng unchanged at thIS pOInt has not been challenged The umon questIOns Mr Armstrong's Intent and credIbIlIty He has been a wItness before In determInIng a wItness's credIbIlIty the board should consIder the wItness's demeanour powers of observatIOn, Judgment, memory and any relevant factors IncludIng the potentIal Interest of the wItness In the outcome of the proceedIng The umon submIts that Mr Armstrong was two dIfferent people one In eVIdence In chIef and another In cross-eXamInatIOn, whereas the umon' s wItnesses 169 were credIble The umon relIes on the remarks at p 10 et seq In Leering, 1105/84 settIng out the statements respectIng the assessment of credIbIlIty In Faryna v Chorny The Ontano Court of Appeal In PhIllIps v. Ford Motor Company of Canada, et al (1971) 18 D L R. (3d) 641 [1971] 2 0 R. 637 approved the ratIOnale ofMr JustIce O'Halloran of the B C Court of Appeal In Farvna v. Chorny [1952] 2 D L R. 354 at pp 356-8 as follows "If a tnal Judge's findIng of credIbIlIty IS to depend solely on whIch person he thInks made the better appearance of sIncenty In the wItness box, we are left wIth a purely arbItrary findIng and JustIce would then depend upon the best actors In the wItness box On reflectIOn It becomes almost aXIOmatIc that the appearance of tellIng the truth IS but one of the elements that enter Into the credIbIlIty of the eVIdence of a wItness OpportumtIes for knowledge powers of observatIOn, Judgment and memory abIlIty to descnbe clearly what he has seen and heard, as well as other factors combIne to produce what IS called credIbIlIty and cf Raymond v. Bosanquet (1919) 50 D L R. 560 at p 566 59 S C R. 452 at p 460 170 W N 295 A wItness by hIS manner may create a very unfavourable ImpressIOn of hIS truthfulness upon the tnal Judge and yet the surroundIng CIrcumstances In the case may pOInt decIsIvely to the conclusIOn that he IS actually tellIng the truth I am not refernng to the comparatIvely Infrequent cases In whIch a wItness IS caught In a clumsy lIe The credIbIlIty of Interested wItnesses partIcularly In cases of conflIct of eVIdence cannot be gauged solely by the test of whether the personal demeanour of the partIcular wItness carned convIctIOn of the truth The test must reasonably subJect hIS story to an eXamInatIOn of ItS consIstency WIth the probabIlItIes that surround the currently eXIstIng condItIOns In short, the real test of the truth of the story of a wItness In such a case must be ItS harmony wIth the preponderance of probabIlItIes whIch a practIcal and Informed person would readIly recogmze as reasonable In that place and In those condItIOns Only thus can a Court satIsfactonly appraise the testImony of qUIck-mInded, expenenced and confident wItnesses, and of those shrewd persons adept In the half-lIe and of long and successful expenence In combInIng skIlful (SIC) 170 exaggeratIOn wIth partIal suppressIOn of the truth AgaIn a wItness may testIfy what he sIncerely belIeves to be true but he may be qUIet honestly mIstaken For a tnal Judge to say 'I belIeve hIm because I Judge hIm to be tellIng the truth' IS to come to a conclusIOn on consIderatIOn of only half the problem In truth It may easIly be self-dIrectIOn of a dangerous kInd. The tnal Judge ought to go further and say that eVIdence of the wItnesses he belIeves IS In accordance wIth the preponderance of probabIlItIes In the case and, IfhIS VIew IS to command confidence also state hIS reasons for that conclusIOn The law does not clothe the tnal Judge wIth a dIVIne InsIght Into the hearts and mInds of wItnesses And a Court of Appeal must be satIsfied that the tnal Judge's findIng of credIbIlIty IS based not on one element only to the exclusIOn of others but IS based on all the elements by whIch It can be tested In the partIcular case Mr JustIce Stephen put It another way He said (General VIew of the CnmInal Law 2 nd ed p 191) 'that the utmost result that can In any case be produced by JudIcIal eVIdence IS a very hIgh degree of probabIlIty The hIghest probabIlIty at whIch a court of JustIce can, under ordInary cIrcumstances, arnve IS the probabIlIty that a wItness or a set of wItnesses tell the truth when they affirm the eXIstence of a fact' " SImIlarly refernng to the resolutIOn of contradIctory eVIdence In general Mr JustIce O'Halloran commented In Weeks V Weeks [1955] 3 D L R. 704 at p 709 "In such cases a court must look for the balanced truth In the corroboratIve eVIdence If such eXIsts and In any event measure all the eVIdence perspectIvely by the test of ItS consIstency WIth the preponderence (SIC) of probabIlItIes In the surroundIng CIrcumstances " The Board applIed the above cntena and standards The resolutIOn of credIbIlIty Issues IS never an easy task when senous personal mIsconduct IS both alleged and demed The decIsIOn In Anderson 3842/92 arose out of the Barne Ambulance ServIce over whIch Mr Armstrong IS also RegIOnal Manager Page 12 IndIcates that 171 the gnevor's superVIsor was under Mr Armstrong's management as RegIOnal Manager The Anderson award dealt wIth allegatIOns of sexual harassment agaInst the gnevor' s superVIsor It Incorporates parts of the Courtenay deCIsIOn (Mimstry of Health & OPSEU (Courtenay) (October 7 1992 WIlson) In Courtenay the employer was dIrected to "comply wIth the CollectIve Agreement as ProvIded In ArtIcle 27 and to take whatever steps are necessary to maIntaIn a work envIronment free from sexual harassment In partIcular It IS so dIrected wIth respect to WillIam Fawcett['s] behavIOur towards the Gnevor I personally belIeve that he wIll comply " InAnderson at p 12 the board stated Mr Armstrong testIfied that after reCeIVIng and reVIeWIng thIS decIsIOn he determIned that It was appropnate to wnte a non- dIscIplInary letter of counsellIng to Mr Fawcett When a bargaInIng umt member IS found to have engaged In sexual harassment, that member does not receIve a non-dIsplInary letter of counsellIng At pp 22 - 23 the award dIscusses a second stage gnevance meetIng whIch took place on March 22 1993 whIch culmInated In a summary of the meetIng prepared by Mr Brand whIch IndIcated In para. 1 that Mr Fawcett would be "suspended wIthout pay for thIrty days" Pp 24 - 26 of the Anderson award IndIcate that Mr Armstrong reduced the 30-day suspenSIOn to 10 days CItIng the loss of Income to the superVIsor the absence of any further IncIdents and hIS belIef that the maXImum suspensIOn that could be Imposed under the PublIc SerVIce Act was 20 days Ms Stewart questIOned Mr Armstrong's credIbIlIty at pp 27 - 30 and at pp 37 - 38 Mr Clarke was reluctant to acknowledge that Mr Armstrong has the ultImate authonty to call the shots In labour relatIOns Mr Armstrong skIrted around the Issue Mr Armstrong IS a Manager who used a non-dIscIplInary letter of counsellIng, and who overrode dIrectIves The board should conclude that despIte Mr Armstrong's reluctance to acknowledge that he has the ultImate authonty In labour relatIOns matter Mr Armstrong has no dIfficulty eXerCISIng hIS authonty whether he exerCIses It credIbly or not 172 OPSEU andMinistry of Health, T/0013/92 was about a labour relatIOns complaInt under s 29 of the old CECBA The gnevors were transferred off theIr ward after havIng obtaIned a favourable decIsIOn pertaInIng to a salary allowance for secunty work. At p 19 Mr Stanley saId that the employer dId somethIng It was entItled to do but for an Improper motIve The umon submIts that that IS what happened In thIS case Mr Stanley stated that once a prima facie case IS establIshed, "the onus ShIftS to the other sIde to establIsh that they were motIvated by legItImate purposes alone" The employer must prove an absence of Improper IntentIOn LegItImate busIness reasons cannot be raised after the fact, 1 e after an actIOn has been taken wIth Improper IntentIOn In Barton Feeders supra, the board stated at para. 4 ThIS case turns on ItS facts The Act and the Board's Junsprudence are clear that the onus of proof IS on the employer respondent to demonstrate that ItS actIvItIes were not motIvated even In part by antI-umon sentIment It commented on the tImIng of the lay-off at para 15 Weare unpersuaded that the sWIftness WIth whIch hIS lay-off followed the ImtIal orgamzIng actIvIty In the plant was a cOIncIdence The fact that LItt gave several dIfferent reasons for Mole's lay-off also detracts from the overall credIbIlIty of hIS explanatIOn of the lay-off The Umon asked Mr Clarke In cross-eXamInatIOn whether It was pure cOIncIdence that all the Issues arose at the same tIme and he said that It had been pure cOIncIdence The Umon dIsputes hIS eVIdence The proper Inference IS that the Issues were raised at the same tIme WIth Intent At para 27 at p 93 In Barton Feeders supra, the board said There was no cogent explanation for the tImIng of these lay- offs In lIght of the onus of proof and LItt'S overall credIbIlIty It IS dIfficult to belIeve that the news of FairbaIrn and SmIth havIng been related to the umon campaign had not reached LItt' s ears and played a part in the motivation for their sudden lay-offs (em phasI s In submI sSIOns) 173 At para. 96 the board said Rather we find the dIscharge was In contraventIOn of the Act because it yt,as motivated at least in part by anti-union sentiment It IS extremely lIkely that, even IfLItt thought at the tIme he had cause to fire Van Rooyen, thIS conclusIOn was coloured by hIS anger at Van Rooyen for havIng supported the umon (emphasIs In submISSIOns) In B & S Furniture supra, at para. 11 pp 648 - 9 the board said After carefully reVIeWIng all of the eVIdence, yt,e are not satisfied that the respondent s decision to lay-off the fyt,o grievors yt,as devoid of anti-union motive The failure of the respondent to call as yt,itnesses the three members of management (L SchmeISZ Sr L SchmeISZ Jr and COppIng) yt,ho are alleged to have made the anti-union statements set forth above and who would be the only members of management capable of testIfYIng from theIr own observatIOn, knowledge and expenence concermng the "flexIbIlIty" of the gnevors as compared wIth other employees who were not laid-off tojustifies the Board in drGyt,ing the inference that their evidence yt,ould have been unfavourable to the respondent s case or at least yt, ould not have supported it (see SopInka and Lederman, The LGyt, of Evidence in Civil Cases (1974) 535-537) In Infernng a result adverse to a party's cause as a result of that party's faIlure to call a partIcular wItness the Board, In McGregor Hosiery [1976] OLRB Rep Oct 583 at paragraph 31 relIed upon the decIsIOn of Lerner J In Holmes V Alexon, [1975] 7 o R. (2d) 11 and quoted the folloWIng passage from the headnote of that case "Where a party or wItness falls to gIve eVIdence whIch was wIthIn hIS power to gIve and by whIch relevant facts mIght have been elucIdated, the court is justified in drGyt, ing the inference that the evidence yt, hich might have been given yt,Oltld have been unfavourable to the party to the whom the faIlure IS attnbuted " (emphaSIS In submI sSIOns) In the Barrie Examiner case supra, the board said, at para. 9 The locatIOn of the onus of proof IS an Important consIderatIOn In cases such as thIS one The reasons or reason, behInd the dIscharge of an employee occurnng In the context ofumon actIvIty are best determIned by an eXamInatIOn of the obJectIve cIrcumstances 174 surroundIng the dIscharge In other words the cIrcumstantIal eVIdence surroundIng the dIscharge must be examIned and Inferences drawn from that eVIdence There are two competIng Inferences that can be drawn-eIther that the dIscharge was motIvated by an antI-umon ammus or that the dIscharge was for some reason totally unrelated to the presence of umon actIvIty at or around the tIme of dIscharge The Board must determIne whIch of the two Inferences IS the more probable In many cases however often because of the unsatIsfactory nature of the eVIdence It may be dIfficult to draw eIther Inference wIth much certaInty In such cases, where the eVIdence IS equally balanced, a decIsIOn can only be rendered by resortIng to the onus of proof SInce neIther party can establIsh a case on the balance of probabIlItIes the case can only be determIned by decIdIng agaInst the party upon whom the burden of proof rests and stated further at p 749 para. 17 What then IS the extent of the burden of proof that has been shIfted by statute to the respondent? The Act speaks of the burden of proof "that any employer dId not act contrary to thIS Act" In ItS early decIsIOns thIS Board has stated that, even If only one of the reasons for a dIscharge related to umon actIvIty the dIscharge would nevertheless constItute a vIOlatIOn of the Act In other words the appearance of a legItImate reason for dIscharge does not exonerate the employer If It can be establIshed that there also eXIsted an IllegItImate reason for the employer's conduct ThIS approach effectIvely prevents an antI-umon motIve from masqueradIng as Just cause GIven the reqUIrement that there be absolutely no antI-umon motIve the effect of the reversal of onus of proof IS to reqUIre the employer to establIsh two fundamental facts-first, that the reasons gIven for the dIscharge are the only reasons and, second, that these reasons are not taInted by any antI-umon motIve Both elements must be establIshed on the balance of probabIlItIes In order for the employer to establIsh that no vIOlatIOn of the Act has occurred and at para 19 and 22 at p 750 The eVIdence In our OpInIOn, establIshes a clear pattern of antI- umon conduct on the part of the respondent occurnng pnor to certIficatIOn of the complaInant The IntervIeWIng of employees about theIr umon affilIatIOn, and the remarks about the effect of thIS affilIatIOn upon theIr careers must be construed as nothIng less than threats to dIssuade these employees from persUIng (SIC) theIr nghts 175 under the Labour Relations Act The change of polIcy In respect to the accumulatIOn of saved days for vacatIOn purposes, Just pnor to the certIficatIOn heanng must also be construed as antI-umon conduct There IS no doubt that, pnor to the certIficatIOn, the respondent was resortIng to means expressly prohIbIted by the Act In order to Influence the employees agaInst the umon The apparently unprecedented use of formal warmngs IndIcate that, even after the certIficatIOn the respondent was adoptIng a much tougher attItude In ItS employee relatIOns suggestIng a contInUatIOn of thIS pattern of anti-union conduct GIven these CIrcumstances It IS qUIte possIble to Infer that the dIsmIssal of Scott was sImply one pIece In a contInUIng pattern of conduct desIgned to undermIne the posItIOn of the umon, both before and after certIficatIOn The final consIderatIOn IS Robb's lack of candour when beIng cross-examIned as to the extent of hIS partIcIpatIOn In antI-umon actIvItIes Probably one of the most effectIve ways In whIch an employer can satIsfy the new onus under sectIOn 79 IS for It to tell ItS story through ItS wItnesses In a frank and honest manner Conversely a lack of candour even In respect of only one part of the testImony IS lIkely to raIse doubts as to the genUIneness of the reasons provIded by the respondent (emphasIs In submIssIOns) The board was refernng to the onus of proof under s 79 of the Labour Relations Act In 1975 In Tillotson-Sekisui Plastics supra, the board dealt wIth the Issue of the tImIng of the employer's actIOns (lay-offs) and the Umon draws the panel's attentIOn to para 12 - 14 In the case report In Donuts Industries supra, the board dealt wIth a reversal of onus and at para 21 - 23 the appropnate Inference to be drawn from the faIlure to call a certaIn wItness who was Integrally Involved In the events whIch were alleged to constItute the employer's unfaIr labour practIces The umon seeks as remedy for the Art 12 gnevances pertaInIng to rest penods a dIrectIOn that the employer restore the practIce as It eXIsted before the gnevances were filed If the board finds a vIOlatIOn of Art A, the umon requests a declaratIOn of that vIOlatIOn and an order that Mr Armstrong be removed from a supervIsory or managenal capacIty respectIng Peel-York Ambulance ServIce 1 e that Mr 176 Armstrong be transferred We ask the board to remaIn seIsed wIth respect to ImplementatIOn Employer Argument WIth respect to the gnevances allegIng a vIOlatIOn of Art 12 the employer agrees that the language of Art 12 "The present practIce for rest penods In each ShIft shall be maIntaIned" IS ambIguous In such cases the negotIatIng hIstory must be used The umon's posItIOn IS that OPSEU (Union Grievance) 724/83 supra, provIded a fair summatIOn of the negotIatIng hIstory The Issue was whether meal pen ods were rest pen ods The ongInal CECBA was passed In 1972 (S 0 1972 c 67) Pnor to ItS enactment, accordIng to page 5 of the decIsIOn, the terms and condItIOns of employment were In Reg 749 of the Public Service Act CECBA 1972 provIded for collectIve bargaInIng The CIvIl ServIce AssocIatIOn made submIssIOns regardIng rest pen ods whIch are found at p 7 of the decIsIOn The employer's response IS at the bottom of p 7 and top of p 8 The board observed that the AssocIatIOn dIstIngUIshed between meal penods and rest penods The employer asked that "the Informal practIce now enJoyed by employees be contInued" and "that the Board reJect thIS proposal by the CSAO" Howard Brown awarded the language now found In Art 12 1 above The case decIded nothIng concermng the method of enJoYIng the rest penod or the eqUIpment that could be used When the current wordIng of Art 12 1 was awarded, the ongInal CECBA was In force and contaIned a s 17 whIch IS sImIlar If not IdentIcal to the language of s 18 In CECBA R.S 0 1990 c C 50 whIch was In force when the gnevances were filed It IS submItted that ArbItrator Brown had to rely on s 17 then In force In awardIng the language of Art 12 1 The "practIce" In Art 12 1 refers to the practIce In place before the enactIng of the ongInal CECBA In 1972 1 e WIth regard to the tImIng and duratIOn of rest pen ods To adopt an InterpretatIOn of Art 12 1 as determInIng the method of IncorporatIng matenal Into the workplace would vIOlate the ongInal CECBA and the current CECBA 177 The umon argues that s 180fCECBA R.S 0 1990 c C 50 does not apply to nghts arbItratIOn Dr~ supra, dId not decIde whether s 18 applIed to nghts arbItratIOn Mr Sloan said It wasn't necessary to decIde that There are legIOns of cases whIch say s 18 applIes to nghts arbItratIOns In Gibson Patterson 319/93 the Issue was whether the gnevors' Job dutIes had been altered, and If so whether they had been altered In bad faith The employer brought a prelImInary obJectIOn as to JunsdIctIOn, CItIng s 18(1) ofCECBA The board held that In the absence of a pnma facIe case establIshIng bad faIth, It had no JunsdIctIOn to proceed wIth these gnevances In Brummell 1584/91 the employer's obJ ectIOn to the board's JunsdIctIOn to hear a gnevance pertaInIng to superannuatIOn was based on s 18 (1) (b) whIch Includes "superannuatIOn" Its obJ ectIOn was upheld Those are merely two cases whIch say s 18 applIes to nght arbItratIOns Art 12 has been gIven a narrow InterpretatIOn In the past In OPSEU (Union Grievance) 724/83 supra, "meal penods" were found not to be Included In "rest pen ods" In Sheppard, 510/82 at p 12 Mr Roberts confirmed Mr Samuels' findIng that "meal breaks" were not the same as "rest breaks" InterpretIng Art 12 to Include entItlement to the method of enJoYIng rest breaks and to Incorporate rest eqUIpment Into the workplace would be a vIOlatIOn ofCECBA 1972 The employer's posItIOn IS as stated by the umon, that It has the exclusIve nght to determIne "kInds and locatIOns of eqUIpment" and that the beds and cots and mattresses and other personal eqUIpment fell wIthIn that descnptIOn S 18 of CECBA says "that It IS the exclusIve functIOn of the employer to manage whIch functIOn Includes the nght to determIne kInds and locatIOns of eqUIpment" and "such matters wIll not be the subJect of collectIve bargaInIng nor come wIthIn the JunsdIctIOn of a board" The umon takes the posItIOn that thIS board should enforce an alleged past practIce regardIng beds and cots However thIS practIce would be an Illegal practIce under s 18 (1) ThIS board cannot enforce an Illegal past practIce To do so would permIt the partIes to bargaIn around "kInds and locatIOns of eqUIpment" In s 18 (1) 178 St. Micheal s Hospital andInt I Union of Operating Engrs (1973) 3 L AC (2d) 443 dealt wIth a sItuatIOn In whIch an operatIng engIneer was prohIbIted from leavIng the boIler room for hIS coffee break. The board held, at p 445 that If the past practIce of the operatIng engIneer leavIng the boIler room for hIS coffee break eXIsted, It would have been Illegal because of s 20 of the Operating Engineers Act and saId "Illegal past practIce cannot be used to Interpret a collectIve agreement" The employer's posItIOn IS that secret practIces cannot form the basIs of a practIce The eVIdence In thIS case was that on InSpectIOns cots were kept hIdden dunng the day Mr Clarke's eVIdence confirmed thIS His eVIdence was that he only found a bed when he opened a locked storage area. His eVIdence was unshaken on cross- eXamInatIOn If some of the front lIne managers were aware of the presence of beds thIS does not negate the fact that the employees' use of beds and cots was secretIve and wIth the IntentIOn to hIde the eqUI pment from the RegIOnal DIrector's attentIOn (ObJ ectIOn was raised by the umon that thIS submIssIOn mIsstated the eVIdence and the suggestIOn was not put to any of the umon's wItnesses The panel advIsed the partIes that It would rely on ItS notes In determInIng what the eVIdence had been on thIS pOInt) In Dunn 1769/87 at p 17 the board stated If a course of conduct IS to constItute a practIce under ArtIcle 12 1 It cannot take place In secret or wIth an IntentIOn to hIde It from management As well It IS our VIew that In order for a course of actIOn to constItute a 'practIce' under thIS provIsIOn It must take place over a penod of tIme In Re Int I Ass n of Machinists, Local 17 40 and John Bertram & Sons Co Ltd (1967) 18 LAC 362 (Weller) the award sets out, at p 368 the elements necessary to establIsh past practIce Hence It would seem preferable to place stnct lImItatIOns on the use of past practIce In our second sense of the term I would suggest that there should be (1) no clear preponderance In favour of one meanIng, stemmIng from the words and structure of the agreement as seen In theIr labour relatIOns context, (2) conduct by one party 179 whIch unambIguously IS based on one meamng attnbuted to the relevant provIsIOns (3) acqUIescence In the conduct whIch IS eIther qUIte clearly expressed or whIch can be Inferred from the contInuance of the practIce for a long penod wIthout obJectIOn (4) evidence that members of the union or management hierarchy yt,ho have some real responsibility for the meaning of the agreement have acquiesced in the practice (emphasIs In submISSIOns) InMOlToyt, 329/92 the board examIned the "practIce" of provIdIng a free meal dunng the evemng ShIft, and said that an express representatIOn by the employer was reqUIred In thIS case there was no express representatIOn by Mr Clarke or Mr Armstrong that thIS practIce was acceptable The umon argued that the reference to "kInds and locatIOns of eqUIpment" must mean "work-related eqUIpment" The cots and beds occupIed physIcal space In the workplace and were beIng used on paId tIme If there IS a health and safety Issue the beds and cots are related to the workplace Rest IS Important, that IS why the employer provIdes sofas and chairs Brown and Beatty In Canadian Labour Arbitration at p 2-52 IndIcate that an arbItrator has JunsdIctIOn to construe and apply a statute The partIes agreed that Art 12 IS ambIguous The same authontIes state at the same page that where the collectIve agreement IS vague or unclear and two possIble meamngs are put forward, arbItrators should prefer the InterpretatIOn whIch IS not contrary to law 1 e "presume that the partIes Intended " the InterpretatIOn "that was not contrary to the law" The umon's posItIOn IS that management, by ItS actIOns or omISSIOns made a representatIOn that beds and cots were permIssIble In certaIn Peel-York statIOns and that the umon relIed on the representatIOn, and to ItS detnment The employer's posItIOn IS that s 18(1) does not permIt collectIve bargaInIng regardIng eqUIpment In the workplace Therefore the umon cannot rely on any representatIOn and cannot obJ ect when the employer dIscontInues ItS acqUIescence In thIS 180 In Beaulne 0686/86 the board dealt wIth the Issue of entItlement to a duty meal based on the past practIce of the employer In July 1986 the employer dIscontInued Its practIce and began to charge $2 00 per meal The umon argued that the practIce should contInue untIl the commencement of a new collectIve agreement and argued an estoppel prevented the employer from endIng Its practIce untIl the end of the current collectIve agreement At p 6 the board stated two and one-half years notIce IS reasonable notIce and that the Employer had every nght to dIscontInue the polIcy when the collectIve agreement expIred Ham",ell 509/82 Involved the gnevor's elIgIbIlIty for relocatIOn expenses for those who filled vacanCIes as opposed to lateral transfers The board found for the umon, and, at p 16 saId that the estoppel only arose for the duratIOn of the current agreement dunng whIch the employer's polIcy had changed The argument that an estoppel can contInue beyond the lIfe of the current agreement leads to consequences whIch do not make labour relatIOns sense An estoppel whIch can contInue beyond the lIfe of a current agreement would encourage gnevances and prolong them beyond the end of the collectIve bargaInIng process It was clear In 1993 that the employer would not condone beds and cots In the workplace and they removed them In London (City) and C UP.E. Loc 101 supra, the ShIft premIUm paId to parkIng enforcement officers had been collectIvely bargaIned In thIS case the employer has never entertaIned the suggestIOns that beds and cots could be Introduced Into the workplace nor have they bargaIned It Mr Clarke's eVIdence was that It could not be collectIvely bargaIned, due to s 18 (1) The partIes never negotIated the use of beds and cots here The factors underlYIng the reasomng In London are not present here In London the ShIft premIUm was the employer's express practIce Consequently the polIcy arguments In London do not apply to the facts In thIS case 181 The umon relIes on certaIn sectIOns In the Rest Penod PolIcy and Procedure (Ex 5) The employer pOInts out to the panel the prohIbItIOns In the polIcy wIth respect to sleepIng and the removal of apparel Nowhere In the PolIcy IS the presence of beds and cots antIcI pated The Ontano Health and Safety Act would apply Each property would reqUIre conformIty wIth bUIldIng permIts There are Innumerable logIstIcal consIderatIOns The sItes are not large An unfettered nght to bnng In beds and cots for use In rest pen ods IS certaInly InCOnsIstent WIth the PolIcy and regulatIOn whIch eXIsts In thIS government Management at one pOInt provIded an InterpretatIOn and said employees could reclIne honzontally but that was on the Mimstry couches provIded The umon has not pOInted out any other polIcy whIch permIts beds and cots ThIS IS because they are not permItted The umon alluded to the Industnal norm regardIng beds and cots among firefighters ThIS does not apply to Ambulance Officers In 1972 when the Mimstry of Health assumed responsIbIlIty for ten locally-based ambulance serVIces It adopted a polIcy excludIng beds and cots It IS submItted that beds and cots were not found throughout Peel-York Ambulance ServIce The umon has not made out a prima facie case of antI-umon ammus AlternatIvely If a prima facie case has been made out, the Employer has met the onus of proof that there has been no vIOlatIOn The umon alleges that Mr Armstrong Improperly and dIscnmInatonly InstItuted ShIft rotatIOns (statIOn and crew reassIgnments) In early 1993 The eVIdence has been that Mr Armstrong had no Involvement In the proposal to Implement a number of ShIft rotatIOns at that tIme and that he was unaware that a proposal eXIsted The eVIdence establIshed that the proposal was the sole ImtIatIve of then ActIng Manager of Peel- York Ambulance ServIce Fred Hardy When Mr Armstrong became aware ofMr Hardy's proposal he made ImmedIate Inqumes of Mr Hardy Not satIsfied that the transfers were bonafides and wIthIn the gUIdelInes Mr Armstrong ordered Mr Hardy to cease and desIst and negotIated Ex 15 and suspended all transfers pendIng further InVestIgatIOn ofMr Hardy's proposal Mr 182 Armstrong subsequently met wIth Mr Hardy and determIned the proposals were not consIstent and cancelled the proposals He then reached a final agreement (Ex 11) of a wIthdrawal of the gnevances In exchange for a cancellatIOn of the proposal and a referral of the Issue to the ERC The umon pOInts to the February 25 1993 meetIng at Tony's Once the umon and management reached a final resolutIOn, the umon tned to make full representatIOns regardIng statIOn and crew reassIgnments/shIft rotatIOns As the matter had been agreed to be referred to the ERC Mr Armstrong declIned to hear the umon representatIves that day The umon alleges that Mr Armstrong made a threat to transfer employees at some later date It may be that the umon mIsunderstood Mr Armstrong's posItIOn, whIch IS that transfers are wIthIn management's nghts, and should be undertaken where necessary pursuant to gUIdelInes Mr Armstrong says he has always held thIS posItIOn and has commumcated It to the employees The umon suggested that at the February 25 1993 meetIng that employees would be transferred contrary to the gUIdelInes Mr Armstrong had offered ThIS IS InCOnsIstent WIth Mr Armstrong's testImony and uncontradIcted eVIdence regardIng hIS Involvement In thIS matter The umon alleges that Mr Armstrong was the gUIdIng mInd or ultImate authonty behInd the dIscover and subsequent removal of the beds and cots However the eVIdence establIshed that Bryan Clarke dIscovered them on a routIne InSpectIOn and that neIther Mr Armstrong or Mr Clarke knew of them before The eVIdence was that Mr Clarke removed them wIthout Mr Armstrong's knowledge or express consent Mr Clarke had the authonty to make InSpectIOn orders pursuant to the Ambulance Act and thIS was hIS practIce WIth regard to all the sItes whIch he regularly Inspected Mr Armstrong's only Involvement was hIS dIscussIOn wIth Mr Clarke after Mr Clarke made the order to remove the beds and cots Mr Armstrong had no Involvement In the dIrect ImplementatIOn ofMr Clarke's decIson 183 The Central East RegIOnal Office IS responsIble for 41 separate Ambulance ServIces Peel-York IS only one of them The presence of beds and cots would not warrant pnonty In an office of Central East RegIOn's SIze and authonty In allegIng that Mr Armstrong sIngled out Peel-York, the umon pOInted out non-mImstry SerVIces where beds and cots were permItted Mr Clarke pOInted out that those serVIces are not under the same level of regulatIOn as Mimstry-controlled Ambulance ServIces Mr Armstrong raIsed the Issue of ShIft lengths In late 1992 and agaIn In the spnng of 1993 at the ERC for cost efficIency under the Social Contract Act and It was eventually Implemented In 1996 Mr Armstrong testIfied that ShIft changes were beIng Implemented In Oshawa between 1993 and 1996 The umon alleges that the motIve behInd the proposal for ShIft length changes was to retalIate agaInst the umon's statIOn reassIgnment and beds and cots removal gnevances There was no eVIdence to support thIS The duratIOn of ShIftS In 1993 exceeded the reqUIrements of the collectIve agreement The employer could have ImtIated ShIft changes at any tIme reducIng them to the lengths reqUIred In the collectIve agreement Instead, Mr Armstrong referred the Issue to the ERC and the ShIft changes were not Implemented untIl 1996 (The umon obJected to these submIssIOns) It should be remembered that the Improper transfers proposed by Mr Hardy the chance dIscovery of the beds and cots by Mr Clarke and the reductIOn of ShIft lengths In 1996 pursuant to Mimstry of Health dIrectIves were completely unrelated No eVIdence lInks them The umon pOInts to a paragraph In a January 28 1993 Memo by Mr Clarke (Ex 23) At no pOInt dunng Mr Clarke's eVIdence dId the umon ask Mr Clarke about thIS paragraph It cannot now pOInt out and rely on ItS tone The umon relIes on conversatIOns between bargaInIng umt members and Fred Hardy ThIS eVIdence IS clearly hearsay The umon had every opportumty to bnng In 184 Mr Hardy Mr Hardy was not a member of management dunng thIS proceedIng He had been termInated for cause The umon submIts that the polItIcal actIvIty of 1992 was the true motIvatIOn behInd the events In 1993 However no corroboratIng eVIdence was presented The umon's submIssIOn that some ofMr Clarke's eVIdence was fabncated IS unsupported and unsubstantIated on the eVIdence The umon referred to the Anderson decIsIOn, and suggested that Mr Armstrong acted Improperly In InsufficIently dIscIplImng a manager However Mr Armstrong fired Mr Hardy and the decIsIOn was upheld by the Gnevance Settlement Board Mr Armstrong's credIbIlIty was not damaged by the Anderson decIsIOn It suggests that he was mIstaken as to the effect of the Public Service Act and says nothIng about hIS credIbIlIty WIth respect to the remedy sought, In OPSEU (Union Grievance) 2024/97 Ms Abramsky consIdered a gnevance that the Employer faIled to comply wIth ItS reasonable efforts oblIgatIOn In ItS Requests for QualIficatIOn and determIned that the Issue was moot The board cannot order beds and cots to be reIntroduced Into the workplace pursuant to an estoppel argument The board should declIne to rule on thIS matter as thIS Issue IS moot (The umon obJected to these submIssIOns) At p 8 of the decIsIOn, the board stated the matter to be determIned At Issue IS whether the gnevance In thIS matter has been rendered moot by the cancellatIOn of the RFQs for techmcal consultIng and facIlIty management serVIces and If so whether the Board should exerCIse ItS dIscretIOn to decIde the matter The board also consIdered, at pp 8 - 9 the decIsIOn ofMr JustIce SopInka In Boroyt,skiv Canada (Attorney-General) (1989) 57DLR.(4th)231 1 SC.R.342 at p 239 The doctnne of mootness IS an aspect of a general polIcy or practIce that a court may declIne to decIde a case whIch raises merely a hypothetIcal or abstract questIOn The general pnncIple applIes when the decIsIOn of the court wIll not have the effect of resolvIng some controversy whIch 185 affects or may affect the nghts of the partIes If the deCISIOn of the court wIll have no practIcal effect on such nghts, the court wIll declIne to decIde the case ThIS essentIal IngredIent must be present not only when the actIOn or proceedIng IS commenced but at the tIme when the court IS called upon to reach a decI SIOn AccordIngly If subsequent to the ImtIatIOn of the actIOn or proceedIng, events occur whIch affect the relatIOnshIp of the partIes so that no present lIve controversy eXIsts whIch affects the nght of the partIes the case IS saId to be moot At p 10 the board noted that In Weiland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992) 30 LAC (4th) 353 (Brunner) the arbItrator declIned to decIde a moot gnevance The gnevance alleged a vIOlatIOn of a memorandum of settlement In faIlIng to hIre a number of addItIOnal teachers By the tIme the heanng was held, the school year had ended and only a declaratIOn was sought No damages were alleged The board declIned, as a declaratory order would serve no useful or practIcal purpose We have the same sItuatIOn A declaratIOn could InhIbIt and detnmentally affect collectIve bargaInIng negotIatIOns These partIes are engaged In negotIatIOns The umon seeks a very senous remedy wIth respect to the alleged vIOlatIOn of Art Al 2 Even a declaratIOn of a vIOlatIOn of Art Al 2 IS a very senous findIng A clear sufficIency of eVIdence IS reqUIred Umon Reply Argument The umon relIes on the Samuels decIsIOn respectIng ambIgUIty and the negotIatIng hIstory In that case the partIes were trYIng to get away from why they had gone to an "Interest board" They were dISputIng whether a meal break was Included In "rest penod" Mr Samuels overruled the Burns decIsIOn and saId rest pen ods and meal pen ods are not the same At page 8 the decIsIOn states that Mr 186 Todd said the Umon meant "all free tIme" Mr Todd was saYIng that he wanted a meal penod Included In a rest penod, because It'S a paid break. Not much has changed In the CECBA legIslatIOn A management nghts clause eXIsted In the legIslatIOn To say the language of Art 12 IS restncted by CECBA does not wash The partIes had plenty of opportumty to amend We've seen the ongOIng evolutIOn of the collectIve agreement The partIes haven't had dIfficulty In applYIng Art 12 Art 12 has a broad meamng The umon IS not attemptIng to negotIate a substantIve nght The umon also relIes on Baars supra, and requests the board to apply Blake wIth respect to Art 12 and past practIce In Dr~ supra, notIng the dIfferent references to board In s 18 and Board In s 19 the arbItrator Inferred that s 18 (1) applIed only to an Interest board of arbItratIOn In Dr~ the employer raIsed a JunsdIctIOnal obJectIOn based on the words "and such matters wIll not come wIthIn the JunsdIctIOn of a board" In s 18 (1) and Mr Slone dIsagreed WhIle the employer saId that a legIOn of cases decIde s 18 on ItS InterpretatIOn, It gave you Gibson Patterson supra, whIch Involved a prelImInary obJectIOn regardIng an assIgnment of work. The employer submItted, at p 1 that the board had no JunsdIctIOn under s 18 (1) In the absence of an actIOn that was arbItrary dISCnmInatory or In bad faith Ms Barrett dId not accept JunsdIctIOn because the umon dId not establIsh a primafacie case The month before and the month folloWIng the re-alIgnment of Job dutIes showed the gnevors' receIved an eqUItable caseload In Brummell supra, superannuatIOn was a subJ ect matter specIfied In s 18 (1) of CECBA The umon argued that an estoppel applIed due to the employer's conduct The employer asserted a prelImInary obJectIOn to JunsdIctIOn because the subJect matter fell under s 18 (1) At P 18 the board concluded that the representatIOn was made to a person who was not an employee at the tIme whIch Induced the person to leave hIS J ob for a J ob wIth the publIc serVIce to the employee's detnment It determIned that the claIm the umon made was "not based on upon any vIOlatIOn of 187 the collectIve agreement, but IS rather an attempt to enforce a representatIOn that falls outsIde the collectIve agreement and falls wIthIn the exclusIve nghts of the employer" Baars sets out the reasons as to why the board can rely on estoppel Brummell supra, and Dr~ supra, address the Issue of JunsdIctIOn, but other cases say the board can reVIew the employer's actIOns In areas whIch are ItS exclusIve functIOn, for bad faIth, arbItranness etc The Sheppard case supra, encompasses the Burns decIsIOn and follows Mr Samuels' decIsIOn, supra They were trYIng to relItIgate the Issue The umon wants to see Art 12 gIven a broad meamng After Sheppard, supra, "rest penod" took on ItS own meamng, and wIthIn that meamng, "practIce" becomes Important PrevIOusly the employer saId that the Issue was a matter of "tools and eqUIpment" and has changed the exclusIOn It claims to "method of operatIOn" both wIthIn s 18 ThIS IS not a case about management nghts The umon's posItIOn IS that the board should enforce the alleged past practI ce Mr Patterson acknowledged It The eVIdence of a longstandIng past practIce USIng cots and beds IS present There IS no eVIdence that the past practIce was Illegal despIte the employer havIng relIed on the St. Micheal s Hospital case supra The legIslatIOn In that case was clear-s 20 of the Operating Engineers Act was cIted at p 445 The sItuatIOn In thIS case IS totally dIfferent from the one In the St. Micheal s Hospital case The Mimstry's own polIcy (Ex 5) contemplates these employees restIng honzontally There IS nothIng Illegal In so dOIng The employer suggested that past practIce cannot supercede the collectIve agreement where It has been carned out In secrecy Any alleged secrecy was not put to the umon wItnesses and the employer cannot hIde behInd not knowIng There was no eVIdence that the employees' practIces were secret The eVIdence was that the employees' managers told them to put the beds and cots away for publIc appearances Any secrecy was attnbutable to management! 188 The employer relIed on the Machinists case supra, at p 368 The employer cannot say It dId not know of the past practIce Consequently that case does not apply to the facts of thIS case There was not much wrong at Peel-York Ambulance ServIce untIl the change In the RegIOnal Manager-all the managers knew of and dId not dIspute the practIce of USIng beds and cots etc In the statIOns The employer's assertIOn that the cots and beds occupIed ItS space IS an admIssIOn of past practIce There was no health and safety concern-they dId not move them out untIl 1995 The passages from Canadian Labour Arbitration upon whIch the employer relIes do not even apply to thIS sItuatIOn The collectIve agreement has a specIfic provIsIOn whIch the board has the JunsdIctIOn to Interpret and apply NothIng In the passages go to thIS board's JunsdIctIOn InMorroyt, supra, whIch dealt wIth the dIscontInuance of a past practIce regardIng meals, there was no "polIcy" The board said, at p 17 Weare not satIsfied that the employer's sIlence here constItuted a representatIOn that the employer supply or ensure the supply of meals or that It would sustaIn the quantIty of leftover food or even contInue to tol erate the takIng of 1 t In other words the employer made no representatIOn by words or conduct capable of estoppIng It from puttIng an end to the employee practIce whIch ItS past conduct enabled There were no words or conduct present to raise an estoppel In thIS case we have both a polIcy and the conduct of management supportIng the practIce There were many representatIOns of management by words and conduct and the umon relIed on them to theIr detnment Beaulne supra, dealt wIth meals and there was nothIng In the collectIve agreement dealIng wIth meals Consequently the estoppel faIled Ham",ell supra, IndIcates that once the Umon IS In a posItIOn to negotIate the estoppel expIres The Umon relIed on London (City) and theN W T cases supra, and our prevIOUS submIssIOns London (City) was decIded by a Gnevance Settlement 189 Board Vice-Chairman, so It should be persuaSIve He said that estoppel carnes over from one collectIve agreement to the next The partIes have never negotIated the presence of beds and cots In the workplace There are practIces for rest penod for every IndIVIdual workplace It goes beyond duratIOn and the frequency of breaks to the where what and how the employees use theIr breaks The employer submIts ItS polIcy speaks to sleepIng and removal of apparel-both of whIch Imply reclImng and the use of furmshIngs The polIcy does not say who supplIes the furmshIngs The sectIOn "Controls" In the PolIcy (Ex 5) explIcItly reqUIres that there be contInual momtonng The staff were told to put up the pull-down cots the firefighters used There was no eVIdence to support the submIssIOn that the beds and cots were reJected because they were Illegal under the Ontario Health and Safety Act The submIssIOn IS entIrely speculatIve The umon does not set polIcy One eXIsted (Ex 5) and was acceptable to all partIes over an extended penod of tIme There was no eVIdence as to when the other locally-based Ambulance ServIces were reqUIred to remove beds and cots pursuant to the polIcy after 1972 The uncontradIcted eVIdence was that the utIlIzatIOn of personal cots and beds was normatI ve The umon has made out a prima facie case The employer has not dIscharged the onus on It The paper traIl of exhIbIts to whIch the panel's attentIOn was drawn all fell wIthIn the penod wIthIn the penod of tIme In whIch Mr Armstrong's antI-umon actIOns occurred The employer says the umon "may have mIsunderstood" Mr Armstrong That suggestIOn was never put to the wItnesses They dId not mIsunderstand a thIng The employer tnes to make Mr Armstrong look hygIemc All the documents regardIng the beds and cots Issue came from Mr Armstrong None came from Mr Clarke Mr Armstrong dIsenfranchIsed hImself from hIS own 190 authonty and what was gOIng on In thIS case However In Anderson supra, Mr Armstrong was not afraId to exerCIse hIS authonty Hundreds of gnevances were filed agaInst Mr Armstrong's actIOns Mr Armstrong IS so confident of hIS authonty that he accepted the desIgnatIOn of Deputy Mimster's desIgnee at Stage Two of the gnevance procedure and made a findIng about hImself! The employer says they could have served notIce of a ShIft length change but they dIdn't untIl 1996 ThIS IS because It was not cost effectIve for Peel-York Ambulance ServIce-It wouldn't work. Four people are reqUIred over 24 hours wIth 12-hour ShIftS In a compressed work week WIth 8-hour ShIftS SIX people are reqUIred over 24 hours The umon maIntaInS that Ex 23 eVIdences a tone on ItS face regardless of whether the wItness was asked about It Mr Hardy's conversatIOns wIth the umon wItnesses are a matter of weIght The gnevors' eVIdence was uncontradIcted The employer dId not call Mr Hardy for fear hIS eVIdence would reveal more managers who would support the umon' s posItIOn The employer could have had Mr Hardy declared a "hostIle wItness" In Anderson supra, the Stewart panel found Mr Armstrong's reductIOn of dIscIplIne from 30 days to 10 days "surpnsIng" Yet Mr Armstrong fired Mr Hardy Mr Armstrong had hard-core facts and pressure from above as well as the Workplace Harassment and DISCnmInatIOn PolIcy In respect of remedy the employer relIes on a case In whIch RFQs were cancelled When the gnevances came before Ms Abramsky the remedy the umon sought had already been effected Here the Issues are not moot The board has the JunsdIctIOn to gIve the umon a make-whole remedy There IS nothIng to prevent the board from ordenng the re-IntroductIOn of beds and cots The matter IS not moot untIl the Issue of estoppel IS ruled on The umon's request for Mr Armstrong's transfer IS not fnvolous The umon does not VIew dIsmIssal as appropnate However here Mr Armstrong created an 191 atmosphere of labour relatIOns IntensIty The umon asks the board to exerCIse ItS dIscretIOn In the area of remedy The umon asks the board to apply the OLRB cases 192