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HomeMy WebLinkAbout2003-3764.Union Grievance.05-05-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3764 UNION# 2003-0999-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Jamce Johnston Vice-Chair FOR THE UNION Nelson Roland BarrIster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING May 13 2005 2 Intenm Award At the heanng scheduled to deal wIth thIS matter the partIes Informed me that they had been unable to reach agreement on some productIOn requests that had been made by the umon. In addItIOn, counsel for the Mimstry IndIcated that he Intended to make a motIOn that I was wIthout JunsdIctIOn to deal wIth the matters raised In thIS gnevance based on the doctnne of Issue estoppel He suggested that the Issue before me InvolvIng the same partIes, had been dealt wIth prevIOusly by the Gnevance Settlement Board, pursuant to GSB No 360/83 At the heanng, we agreed that It was appropnate to deal wIth thIS motIOn by way ofwntten submIssIOns and a tIme frame for these submIssIOns was agreed to ThIS award therefore shall only deal wIth a motIOn for the productIOn of documents that has been raised by the umon. ThIS matter first came on for medIatIOn/arbItratIOn on June 8 2004 The gnevance, whIch IS dated December 19 2003 alleges, Inter alIa, that the Mimstry has vIOlated artIcles 9 5 and 9 6 of the CollectIve Agreement whIch deal wIth Video DIsplay TermInals (VDT) On June 8 2004 the partIes sIgned Minutes of Settlement In whIch they agreed to refer the Issues raised In the gnevance to the next "MERC" meetIng scheduled for later the same month. Unfortunately efforts to resolve thIS case were unsuccessful The relevant language, In part, In the collectIve agreement IS 9 5 After each hour of contInUOUS operatIOn of a VDT a VDT operator shall be relIeved of such dutIes for a penod of ten (10) mInutes 9 6 At the begInmng of assIgnment to a VDT and annually thereafter a VDT operator who IS regularly reqUIred to operate a VDT for two (2) hours or more per day shall be reqUIred to undergo an eye eXamInatIOn by an optometnst or an ophthalmologIst who IS qualIfied to conduct the folloWIng tests (a) unaided vIsual aCUIty (letter chart test) (b) refractIve findIngs 3 (c) corrected vIsual aCUIty (d) amplItude accommodatIOn (e) suppreSSIOn (0 muscle balance (near one metre, dIstant) (g) slIt lamp bIOmIcroscopy The cost of the eye eXamInatIOn, not to exceed the OHIP fee schedule for such eXamInatIOns, shall be borne by the Employer and the VDT operator shall authonze release of a copy of the eXamInatIOn report to the Employer By letter dated May 9 2005 the Mimstry confirmed ItS legal posItIOn WIth respect to VDTs located In the control rooms at correctIOnal InstItutIOns Counsel stated "To confirm, for the purposes of the present proceedIng, the Employer's posItIOn IS that the eqUIpment used In central and sub-control rooms of all MCSCS CorrectIOnal InstItutIOns, whIch meet the CSA defimtIOn of a VDT are VDT's as per the current ArtIcle 9 of the CollectIve Agreement. However It contInues to be the Employer's posItIOn that CorrectIOnal Officers are not VDT Operators and that they do not operate the VDT' s In the manner contemplated by the collectIve agreement. Consequently the provIsIOns do not apply to CorrectIOnal Officers workIng In the control and sub-control rooms of the InstItutIOns" It became clear at the heanng that one of the Issues In dIspute pertaIned to whether or not correctIOns officers operate the VDTs In a "contInuous" manner as stated In ArtIcle 9 5 ThIS IS the thIrd Intenm award I have Issued In thIS case The two prevIOus awards also dealt wIth Issues pertaInIng to process, the provIsIOn of partIculars and the exchange of documents Umon counsel wrote to counsel for the Mimstry on May 5 2005 requestIng the productIOn of certaIn data. The request reads as follows "I am wntIng further to what appears to have transpIred at the heanng on May 3 2005 In the above-noted case As I understand It, the Employer IS challengIng the "contInuousness" of the use of the VDTs In the correctIOnal InstItutIOn and, therefore, the applIcabIlIty of the VDT ArtIcle of the CollectIve Agreement to COs who work In "control" and the "pods" I understand that there eXIsts data In the InstItutIOn's computer 4 system memory whIch can be pnnted out In a report. Please provIde a pnntout report of each opemng and cloSIng of doors (in the entIre InstItutIOn [C.E C C ]) that were actIvated from central control and/or the pods for the 2 weeks pnor to and 2 weeks after 19 Dec 2003 (as well as on 19 Dec 2003) the date of the gnevance Also please provIde a report of all the alarms momtored and/or responded to by or from central control and/or the pods Please provIde a computer pnntout IndIcatIng any other actIvIty In central control and/or the pods, as well It IS the umon' s posItIOn that the aforementIOned data wIll assIst In determInIng how "contInuous" IS the use ofVDTs In central control" The Mimstry resIsted the umon' s requests for thIS data on the basIs that It was not arguably relevant and that the request for It was not made In a tImely manner At the heanng, the employer reIterated thIS posItIOn. It was suggested that the request was untImely as the employer had provIded ItS partIculars to the umon In March, 2005 As these partIculars IdentIfied that the employer would be challengIng the "contInuous" aspect of the operatIOn of the VDT's by CorrectIOnal Officers, any requests for dIsclosure should have been made at that tIme The Mimstry argued that the data sought was not arguably relevant as the report wIll only provIde a lIst of actIvItIes performed In assocIatIOn WIth or resultIng from an actIvIty performed on a screen. It wIll not demonstrate that a partIcular CorrectIOns Officer performed a partIcular actI VI ty It was also argued that the InformatIOn requested should not be dIsclosed because to do so was preJudIcIal to the Mimstry ThIS preJudIce argument had two components Counsel suggested that the data was hIghly sensItIve and to dIsclose It would compromIse the secunty of the InstItutIOns At the heanng, Counsel for the Mimstry requested the opportumty to call eVIdence from ItS secunty experts to elaborate on the nature of the secunty nsks Although counsel IndIcated that the productIOn Issue should not be decIded In the absence of thIS eVIdence, he was not In a posItIOn at the tIme of the heanng to call the eVIdence and would need an adJournment to prepare Counsel also IndIcated that the data requested by the umon was volumInous In nature As such, he argued that requmng the Mimstry to produce It would be preJudIcIal as It would be a very tIme-cOnsumIng and costly task. Counsel for the Mimstry suggested that the umon dId not need the documents requested as the eVIdence could be brought forward In the form of VIva voce eVIdence from a CorrectIOns Officer 5 Counsel for the umon dIsagreed wIth the submIssIOns of employer counsel and pOInted out that the data sought was clearly beIng requested In a tImely fashIOn and was arguably relevant. He suggested that the fact that It was arguably relevant had been conceded when OppOSIng counsel stated that the eVIdence could be led through the VIva voce testImony of a correctIOns officer The Mimstry by letter dated May 9 2005 clanfied ItS legal posItIOn on some aspects of thIS case and In partIcular IndIcated that It would no longer be challengIng that the eqUIpment In use was a VDT but would be fOCUSSIng on the meamng of the term "contInuous" as used In artIcle 9 5 and whether the work of the CorrectIOns Officers met thIS defimtIOn. ThIS letter clanfied and confirmed dIscussIOns whIch had taken place at the heanng on May 3 2005 As It was only at the tIme of the May 3rd heanng that the umon became aware that the case would be takIng a dIfferent focus, the request for the InformatIOn on May 5 2005 was clearly tImely The documents sought are a record of the actIvItIes of the persons workIng In the central control and pods and are relevant to the establIshment of the "contInUOUS" nature of thIS work. As such, they are arguably relevant. In response to the Mimstry's submIssIOn that the productIOn of these documents was preJudIcIal to the Mimstry In terms of the cost and tIme reqUIred to produce them, counsel suggested that cost was Irrelevant and that as the next heanng date was not untIl October 18 2005 the employer would have plenty of tIme to get the documents together As to the employer's posItIOn that produCIng the data would reqUIre the dIsclosure of confidentIal or sensItIve InformatIOn, umon counsel IndIcated that he was prepared to have the documents produced under stnct condItIOns wIth regard to theIr use and dIsclosure As an officer of the court, he IndIcated he would ensure that any restnctIOns were carefully adhered to At the heanng on May 13 2005 when counsel for the Mimstry requested an adJournment to prepare and call certaIn eVIdence wIth regard to the sensItIvIty of the data the umon was seekIng dIsclosed, I enqUIred as to what eVIdence he was planmng to call In partIcular I put to counsel for the Mimstry that If I were InclIned to order productIOn of the data to umon counsel on stnct terms to ensure that the confidentIalIty of It was maIntaIned, what eVIdence he would call to IndIcate that thIS was not an adequate safeguard. He IndIcated that he dId not know at that pOInt what eVIdence he would be callIng. As counsel for the employer was aware that the request for productIOn of documents, whIch was made on May 5 2005 was an Issue to be dealt wIth at the heanng on May 13 2005 and In lIght of the vague nature of the eVIdence whIch the employer 6 mIght call wIth regard to the confidentIalIty of the data sought, I am not prepared to delay the decIsIOn on the umon' s productIOn request untIl October 18 2005 whIch IS the next day scheduled for the contInUatIOn of thIS matter I am satIsfied, and In fact the partIes agreed, that the test for the productIOn of documents IS that of arguable relevance WhIle It IS possIble that In certaIn CIrcumstances It may be appropnate to adopt a dIfferent standard, the umque CIrcumstances that could engender such a reassessment of the appropnate test to apply do not eXIst In thIS case After careful consIderatIOn, I conclude that the documents or data sought by the umon In thIS case meets the test of arguable relevance GIven the way In whIch thIS case has evolved over tIme, the fact that we have not yet commenced heanng eVIdence on the ments of thIS case and that the next day of heanng IS scheduled for October 2005 I also do not accept the posItIOn of the Mimstry that the umon' s request for productIOn IS untImely or unduly preJudIcIal to the employer Although I accept that we are dealIng wIth documents that are sensItIve and may contaIn hIghly confidentIal InformatIOn, I am satIsfied that the InformatIOn contaIned In them can be protected by makIng theIr productIOn subJect to a number of orders Intended to restnct the use to be made of the documents and the number of IndIVIduals who may have access to them Umon counsel IS very expenenced and In hIS submIssIOns IndIcated that as an officer of the court he was well aware of hIS responsIbIlIty to keep any data dIsclosed to hIm confidentIal, should I order hIm to do so I have absolutely no reason to belIeve that should I order the dIsclosure of sensItIve records and other data to counsel for the umon and one advIsor over whom counsel's mantle of responsIbIlIty extends, that thIS gIves nse to any secunty concerns The umon has requested that the records set out In the letter dated May 5 2005 be provIded for the penod covenng the two weeks pnor to and the two weeks after December 19 2003 That IS a one-month penod of tIme Counsel for the Mimstry has IndIcated that the data produced over a month would be volumInous It IS not clear to me at thIS pOInt that such a long tIme frame IS actually necessary To meet the concerns expressed by the Mimstry I am prepared at thIS pOInt to reduce the penod of tIme for whIch the records need be produced to a seven-day penod. If after the data has been revIewed by counsel for the umon he IS of the VIew that the data 7 receIved IS InSUffiCIent, we can look at thIS Issue agaIn. Counsel for the umon can pIck the one- week penod he feels IS representatIve of the work performed and advIse counsel for the employer Therefore, to ensure the confidentIalIty of the records and data requested by the umon In thIS case, I am prepared to make thIS productIOn order subJect to a number of specIfic condItIOns I agree that thIS IS necessary to ensure as much as IS possIble that the potentIally sensItIve InfOrmatIOn contaIned In them IS protected. AccordIngly I hereby dIrect the folloWIng restnctIOns be placed on any documents produced by the Mimstry pursuant to thIS order (a) Any matenal dIsclosed to the Umon shall be lImIted to the Umon's counsel and one advIsor from the Umon, (b) Umon counsel shall not photocopy the matenal he has been provIded wIth, unless and untIl he obtaIns the agreement of counsel for the Mimstry to do so (b) Any matenal so dIsclosed shall be used only for the purpose of thIS lItIgatIOn and for no other purpose (c) Any person to whom the InformatIOn IS dIsclosed IS ordered not to dIsclose It to anyone else except upon my further order (d) Upon completIOn of the lItIgatIOn, the documents and other matenal dIsclosed to the Umon shall be returned to the Employer and all copIes of the matenal whIch may have been made for the heanng shall be destroyed. ThIS matter wIll contInue on prevIOusly scheduled heanng dates Dated at Toronto thIS 31 st day of May 2005