HomeMy WebLinkAbout2005-1037.Union et al.06-10-24 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (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:
i. 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
ii. 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;
iii. 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 of ten (10)
hours and one (1) day of six and one-quarter (6 ¼ ) hours, for a weekly total of thirty-six
and one-quarter (36 ¼) 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 of towners”, 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 ¼) 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
UN 2.1 SCHEDULE 3 and 3.7
The normal hours of work for employees on these schedules shall be thirty-six
and one quarter (36 ¼) hours per week and seven and one quarter (7 ¼) hours per
day.
………………………………………………………………………………
ARTICLE UN 8 – OVERTIME
UN 8.1 The overtime rate for the purposes of this Agreement shall be one and one-
half (1 ½) 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 ¼) 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 prohibition contained in Article 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 ¼) 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 ¼) hour daily
and/or the thirty-six and one-quarter (36 ¼) 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.A.C. (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
hypothetical;
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 Toronto, Ontario this 24th day of October, 2006.
___________________________
M.V. Watters, Vice-Chair