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HomeMy WebLinkAbout2005-1037.Union et al 06-10-24 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2005-1037,2005-1038,2005-1039,2005-1040, 2005-1041, 2005-1042, 2005-1043, 2005-1044,2005-1045,2005-1046,2005-1047,2005-1048,2005-1049,2005-1050 UNION# 2005-0140-0001,2005-0140-0004, 2005-0140-0005, 2005-0140-0006, 2005-0140-0007, 2005-0140-0008,2005-0140-0009, 2005-0140-0010, 2005-0140-0011, 2005-0140-0012, 2005-0140-0013,2005-0140-0014,2005-0140-0015,2005-0140-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance et al.) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE M. V. Watters Vice-Chair FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Len Hatzis Counsel Ministry of Government Services HEARING February 8, June 19 and September 29,2006. 2 Decision This proceeding arises from a Union grievance dated April 27, 2005 and from thirteen (13) individual grievances all dated May 9, 2005. The Union grievance states that "The Employer is in violation of Article UN-8 of the Collective Agreement, specifically but not exclusively". By way of the desired settlement, the grievance seeks the following: "Full redress. Cease and desist order". The individual grievances each claim that "the Employer is specifically but not exclusively in violation of article UN-8 of the collective agreement." As a remedy, they ask for "full redress and for the Employer to cease and desist this collective agreement violation." On the first day of the hearing held on February 8, 2006, the parties outlined the factual context of the dispute during the course of their oral submissions. For purposes of this decision, the relevant facts and circumstances may be summarized as follows: 1. In the period material to this case, the thirteen (13) individual grievors were all classified as Transportation Enforcement Officer 2. All of the grievors then worked out of the Windsor South Truck Inspection Station. The Position Description Report (PDR) for the position of Transportation Enforcement Officer 2 describes the purpose of the position in the following terms: "Within an assigned geographic area, to enforce and ensure compliance with legislation, regulations, and industry standards pertinent to the safe, efficient, and legal operation of all types of vehicles on the highway system". Transportation Enforcement Officers 2 perform their duties at Inspection Stations and when out on "patrol"; 3 11. The individual grievors worked under a Compressed Work Week Arrangement, as provided for by Article 10 of the Central Collective Agreement. More specifically, I was told that they worked three (3) shifts per week, each of twelve (12) hours duration; 111. A special project, referred to as the Truck Response Unit (TRU), was initiated by the Employer in or about April, 2005. The initiative was a response to an expressed concern that an excessive number of unsafe vehicles were operating on certain roads and highways within the Province. As a consequence, teams of approximately six (6) Transportation Enforcement Officers were put together to "blitz" certain areas deemed to be problematic. Of relevance here, is the fact that one (1) such team was brought in from outside the Windsor District to perform this work. The team was comprised of Transportation Enforcement Officers from London, Sarnia, Kitchener and Barrie. I was led to believe that they performed patrol type duties designed, in large part, to catch those truck drivers who sought to bypass and avoid the Truck Inspection Station. There is no real dispute between the parties that the type of work performed by the external team was work that the individual grievors were qualified to perform; IV. In the opening submissions, I was told by counsel for the Union that the members of the TRU team assigned to the Windsor District may have worked three (3) days often (10) hours and one (1) day of six and one-quarter (61J4) hours, for a weekly total of thirty-six and one-quarter (36 1J4) hours. It seemed to be agreed between the parties that the members of the team were not paid overtime in respect of this work. I was further told that each member of the TRU team worked under a Compressed Work Week Arrangement at their home location. Lastly, I was informed that while the blitz work was being performed by "the out oftowners", the individual grievors performed their regular duties within the confines of their normal hours. 4 On the initial day of hearing, counsel for the Union argued that the above facts and circumstances give rise to two (2) claims. First, the individual grievors should have been given the first opportunity, or the right of first refusal, to perform the blitz work in issue on an overtime basis on either their scheduled days off or through an extension of their scheduled shifts. Second, and in the alternative, it was argued that any daily hours worked by individual members of the TRU team in excess of seven and one-quarter (7 1J4) hours should have been distributed at the local workplace on a fair and equitable basis. Counsel also advanced a number of requests for disclosure. In response, counsel for the Employer presented several preliminary arguments relating both to the scope of the grievance and to my jurisdiction to hear and adjudicate the grievances. He also responded to the Union's requests for disclosure. After considering the respective submissions, I made the following oral ruling: "This is not a case to bifurcate the hearing as the merits and, what may be described as, preliminary objections are intertwined. The right of the Employer to make argument at the end of the case relating to the extent of my jurisdiction, and to the proper exercise of management rights, is reserved. Disclosure is granted to the extent the documents requested are available. I will hear from the parties on this. I have not been persuaded that this is an expansion of the grievance. The grievance remains a claim to overtime. I am, as a matter of practice, not generally inclined to get into the content of discussions during the grievance process. I urge the parties to narrow the issues that go forward, to the extent that is possible." On the second day of hearing on June 19,2006, the Union called Mr. Stephen Elliot and Ms. Yvette Campeau as witnesses. Mr. Elliot is a Transportation Enforcement Officer 2. He works out of the Putnam Scales near London, Ontario. Mr. Elliot was one (1) of the external 5 employees who worked the blitz in the Windsor District commencing in April, 2005. Ms. Campeau is one (1) of the individual grievors in this proceeding. Mr. Elliot's evidence, in a general sense, was focused on the following areas: (i) his general duties as a Transportation Enforcement Officer 2; (ii) his initial assignment to perform TRU work in the Windsor District and the duration of such work; (iii) the nature of the duties he performed while on the project; (iv) his hours of work while in the Windsor District, including a review of Daily Input and Ministry of Transportation Enforcement Initiative forms; (v) other work he has performed away from his home location; and (vi) the fact that he has never filed a grievance relating to hours of work when working in a different geographical area. Ms. Campeau's evidence, in a general sense, touched on the following areas: (i) the geographic scope of her work; (ii) her reasons for filing a grievance; (iii) a prior overtime grievance filed by her and other Transportation Enforcement Officers in 1999 or 2000 concerning out of town Officers working at the Windsor South Truck Inspection Station; (iv) the settlement of that grievance; and (v) her work on other blitz projects. I note for the record that limited evidence about the prior grievance was received after the receipt and consideration of oral submissions on the point. On the third day of hearing on September 29,2006, the Employer brought a motion for a non-suit. That day was spent on the presentation of the motion and the Union's response to same. At the outset, counsel for the Union advised that he would not require the Employer to make an election whether to call evidence prior to advancing the motion. He agreed to this process on the condition that I would not provide any reasons for the decision in the event the motion proved unsuccessful. In counsel's words, this was the quid pro quo for not requiring an election. Counsel stated that adoption of this process would avoid the unsuccessful party getting an early "peek into the arbitrator's mind". 6 Counsel for the Employer expressed the view that the process suggested by the Union was generally consistent with the jurisprudence of the Grievance Settlement Board relating to motions for non-suit. He agreed that I should not provide reasons, or "a half-time score", in the event I ruled against the motion. From his perspective, this would serve to avoid any unfairness in the process. At this juncture, I note that the process agreed to by the parties has been adopted by the Grievance Settlement in prior cases, including Faler 218/89 (Fisher); Gallagher 493/94 (Watters); and Ross 2690/96 et al. (Herlich). In the latter case, Vice-Chair Herlich commented as follows: "In accordance with established practice and the parties' clear and explicit agreement on the point, I will refrain from providing any reasons with respect to my decision to dismiss the non-suit motion. I accept and agree with the parties and the various authorities cited that the lack of elaborated reasons where a non-suit motion is dismissed (and the mover not having been put to his election) will serve to minimize (though not necessarily entirely eliminate) any of the unfairness which might otherwise be associated with allowing only the moving party to potentially benefit from a 'half-time score'." (page 3) The parties also seemed to be in substantial agreement on the test to be applied in the assessment of a non-suit motion. Both counsel spoke of the need for a prima facie case and of the requirement that there be sufficient evidence to support a grievance. Counsel for the Employer also submitted that there had to be some evidence supporting each of the essential elements of the claim. Both counsel agreed that the standard for assessing a motion for non-suit is lower than the balance of probabilities standard used to assess all of the evidence at the conclusion of the case. 7 The parties referenced the following contractual provisions in support of their respective positions: ARTICLE UN 2 - HOURS OF WORK UN2.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one quarter (36 1J4) hours per week and seven and one quarter (7 1J4) hours per day. ARTICLE UN 8 - OVERTIME UN8.1 The overtime rate for the purposes of this Agreement shall be one and one- half (1I1z) times the employee's basic hourly rate. UN 8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met. UN 8.2.2 In this Article, "overtime" means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. UN 8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7 1J4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. ARTICLE 2 - MANAGEMENT RIGHTS 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify-positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that 8 these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. ARTICLE 10 - WORK ARRANGEMENTS COMPRESSED WORK WEEK ARRANGEMENTS 10.1 It is understood that other arrangements regarding hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model agreement with respect to compressed work week arrangements is set out below: ARTICLE 22 - GRIEVANCE PROCEDURE 22.14 GENERAL 22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements. On the question of the non-suit, it is the position of the Employer that there is insufficient evidence to support a claim the Employer violated Article UN 8 when it did not offer the grievors a right of first refusal to the work here in issue. Counsel for the Employer argued that Article UN 8 does not provide for, or contemplate, a right of first refusal. He submitted that such a right would run contrary to the rights bestowed on management under Article 2.1, namely, the right to manage the business and direct the workforce; the right to assign and direct employees; and the right to determine the location of the workplace. He suggested that the aforementioned rights are not circumscribed by other provisions of the collective agreement. Counsel asserted that a finding in the Union's favour would be tantamount to an amendment of the agreement contrary to the prohi bi ti on contained in Arti cl e 22.14.6. It is the further position of the Employer that there is insufficient evidence to support a claim the Employer violated Article UN 8 when it failed to distribute the contested work to the 9 grievors, as overtime, in a fair and equitable fashion. On counsel's analysis, Article UN 8.2.1 was not triggered as there exists no protocol at the Windsor workplace for distributing overtime in a fair and equitable manner. On his reading, the aforementioned article does not provide that overtime will be fairly and equitably distributed. Rather, it states that the Employer will develop methods of distributing overtime at the local workplace that are fair and equitable. Counsel emphasized the concluding words to the article which read, "after having ensured that all its operational requirements are met". Simply put, it was his submission that Article UN 8.2.1 does not operate as a guarantee that overtime will be distributed in a fair and equitable manner, as claimed by the Union. Counsel for the Employer argued that, in any event, there was no overtime in the circumstances of this case. In this regard, he referenced the following: TRU members, including Mr. Elliot, did not claim or receive any overtime for the work they performed in the Windsor District; the Union did not seek overtime on behalf of the TRU team members for the hours worked in Windsor; and no overtime was "authorized", as contemplated by Article UN 8.3.1. Ultimately, it is the Employer's position that there was no overtime to distribute and that, as a consequence, the condition precedent to "engaging" Article UN 8.2.1 was not met. Counsel for the Employer questioned how the grievors could claim overtime on a fair and equitable distribution when no overtime was claimed or received by the employees who actually performed the work. In summary, counsel for the Employer submitted that there is insufficient evidence to establish either of the two (2) violations of Article UN 8 alleged by the Union. On his analysis, the Union failed to present a prima facie case on both heads of its argument. He, accordingly, asked that all of the grievances be dismissed. Counsel submitted, however, that in the alternative I could grant the non-suit motion in respect of just one (1) of the two (2) claims advanced by the Union. In his judgment, this would at least serve to narrow the issues in dispute. 10 The Employer relies on the following authorities in support of its position: Sager, Shelley et al. 2000/0377 (Mikus); Gareh 1665/98 et al. (Brown); and Union Grievance 0236/98 (Lee) . In response, counsel for the Union suggested that the arguments presented by the Employer in support of the non-suit motion are, in substance, the same arguments as advanced on the first day of hearing to the effect that I lack jurisdiction over the dispute. Counsel observed that I reserved on the Employer's preliminary arguments at that point until the conclusion of the case for reasons previously cited in the ruling. It is the thrust of his argument that the Employer's submissions on the non-suit amount to a jurisdictional challenge. Counsel asserted that it is inappropriate to mount such a challenge in the context of a non-suit motion. From his perspective, such a motion is properly directed at the sufficiency of the evidence rather than at the quality or strength of the opposite party's position. Counsel for the Union acknowledged that this case holds the potential to move the jurisprudence into "unchartered waters". He suggested that, for this very reason, it is necessary to complete the evidence. Counsel further asserted that the instant claims are not frivolous or without merit on their face. It is the position of the Union that the Employer failed to establish that no overtime was worked. Counsel referenced Mr. Elliot's evidence as to the length of his shifts while working in the Windsor District on the blitz project. It was his submission that such evidence establishes a prima facie case that overtime hours were, in fact, worked and would have been available for the grievors. Counsel acknowledged that Mr. Elliot was not paid any overtime for the hours worked. He suggested that this fact should not be treated as the basis for a successful non-suit motion. Rather, it is a matter best left for closing argument and reflects nothing more than "a dispute as to the legal characterization of the facts". Counsel for the Union stressed that opposing counsel did not highlight any evidence which was lacking in the Union's case. On his analysis, the Employer instead relies more on a legal interpretation relating to the application of Article UN 8. 11 Counsel for the Union also focused on the language of Article UN 8.2.1. He advanced a number of submissions with respect to the interpretation and application of the article, including the following: (i) overtime is to be distributed at the local workplace; (ii) employees at the local workplace therefore have a legitimate claim to overtime work; (iii) there does not need to be a protocol in place for overtime to be distributed in a fair and equitable manner at the local workplace; (iv) contrary to the Employer's assertion there was overtime worked in this case, even if the Union waived any claim for it on behalf of the external employees; (v) the existence of overtime is reflected in Mr. Elliot's evidence that his daily hours exceeded the seven and one- quarter (7 1J4) hour threshold set out in Articles UN 2.1 and UN 8.3.1; (vi) the fact the Employer benefited by not paying Mr. Elliot any overtime does not "insulate" the Employer from the claims of other affected employees, such as the grievors; and (vii) both the grievors and the TRU team members have separate and distinct claims against the Employer with respect to the overtime hours here in issue. On the initial day of hearing, it appeared from the submissions that the Union was laying claim to a right of first refusal in respect of all of the work performed by the TRU team in the Windsor District. Counsel for the Employer in argument of the non-suit motion seemed to present his submissions on that basis. It was my understanding from the Union's response to the motion that the claim was more limited in nature in the sense it attached only to those hours worked by the external employees which exceeded the seven and one-quarter (7 1J4) hour daily and/or the thirty-six and one-quarter (36 1J4) hour weekly thresholds. The accuracy of this understanding was confirmed with the parties in a conference call held on October 19, 2006. The Union relies on the following authorities in support of its position that the case should proceed to a full hearing on the merits: Ross, cited above; Ontario v. Ontario Public Service Employees Union (1990),37 O.A.C. 218 (Ont.Div.Ct.); Faler, cited above; Group 12 Grievance, Emmett et al. 0147/01 (Johnston); and Re Humber College of Applied Science and Technology and Ontario Public Service Employees Union (1999),80 L.AC. (4th) 108 (Schiff). On the third day of hearing, counsel for the Union advised that the Employer had refused to provide information as to the basis for the non-suit. More specifically, the Employer had not identified what specific evidence was lacking in the Union's case. Counsel submitted that the Union was entitled to this information as a matter of natural justice for purposes of preparing a response to the non-suit motion. While counsel advised that he was not significantly prejudiced in the circumstances of this case, he asked that I provide direction to the parties for purposes of clarifying the procedure for future disputes involving an application for non-suit. I was referred to the following awards in support of this request: Gareau 2004/0901 (Abramsky); Union Grievance 2113/02 (Dissanayake); and Gareh 1665/98 et al. (Brown). The Employer opposed the above described request. Counsel for the Employer made the following submissions on this aspect of the case: i) there was no real need to make an order for particulars relating to the non-suit, prior to the commencement of the motion. At that point, the request was both premature and speculative. Counsel argued that if the Union needed more time to address the Employer's argument on the motion, such a request could more properly be made at the conclusion of the Employer's motion; ii) a direction should not be given premised on some unproven future need. Rather, the issue should be dealt with in a case where the issue is real instead of hypotheti cal; iii) there was no need for particulars in the circumstances of this case as the Union could readily anticipate that the motion was premised on an alleged failure to tender sufficient evidence to establish a prima facie case. The Union was in a 13 position to counter such an allegation by reference to the evidence previously presented; and iv) the jurisprudence of the Grievance Settlement Board does not require a moving party to provide the type of information sought by the Union. I have reviewed all of the evidence, submissions, contractual provisions and authorities related to the Employer's application for a non-suit. After having done so, I have decided to deny the motion. In accordance with the agreement of the parties, and the jurisprudence of this Board, no reasons will be given at this point in the proceeding for the denial. If necessary, reasons will be addressed in a future award. The hearing of these grievances will accordingly proceed on the dates previously set. I have not been persuaded to give the direction sought by the Union relating to the provision of particulars in future cases involving motions for non-suit. Counsel for the Union did not ask for such a ruling for his benefit prior to making submissions on the motion. If he had, the issue would have been squarely before me and would have had to be addressed in the context of whether there existed some real, as opposed to hypothetical, need for the information sought. I am inclined to accept the Employer's submission that issues of this type should generally not be dealt with in a vacuum but, instead, should be reserved for specific cases in which an identifiable need can be established. I note for the record that the Employer has agreed to provide the Union with the particulars of its case by November 19, 2006 in the event the motion is denied. In summary, the Employer's motion for non-suit is denied without reasons. Dated at IOTonto, OntaIiaiiflis 24th day of October, 2006. ~...~.v...... ........" -4. .~:,:~< ..'.' ,.' '."- " 1FIk",..' . - , , ..'. ,- JVi:v. Watters, Vice-Chair