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HomeMy WebLinkAbout2001-0147.Emmett et al.02-08-19 Decision ~~~ om~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB # 0147/01 UNION#01 F405 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Group Grievance Emmett et al ) Grievor -and- The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Janice Johnston Vice-Chair FOR THE UNION David Wright - Counsel Ryder Wright Blair & Doyle Barristers and Solicitors Joan Gates - Local Union President Yvonne Lewis - Grievor Susan Young - Grievor M Janice Fanning - Grievor FOR THE EMPLOYER Len Hatzis - Counsel Management Board Secretariat Wayne Casey - Manager Debbie Bisset - HR Consultant HEARING February 27 & 28, June 18 & 28,2002 -2- INTERIM AWARD This decision deals with a preliminary motion made by counsel for the employer to dismiss the grievances before me on the basis that I do not have jurisdiction to entertain them There are nine individual grievances which the employer and union have agreed to have dealt with on a consolidated basis before me All of the grievances deal with the same issue The grievors are employed in the Forensic Assessment Unit ("FAU") at Whitby Mental Health Centre ("WMHC") as either Registered Nurses, Registered Practical Nurses or Patient Care Attendants The FAU is one branch of the Forensic Assessment and Consultation Treatment Program ("FACT") The other two branches of FACT are the Forensic Rehabilitation Unit and the Forensic Transition Unit The grievors allege that the employer has violated the collective agreement in that it is failing to manage in a fair and equitable manner Specifically, the grievances allege that the failure of management to consider compressed work week schedules ("CWWS") for their unit violates the collective agreement All of the grievances are similarly worded and read as follows I grieve that W M H C administration is in violation of the C A in that the employer does not manage in a fair and equitable manner and does not make reasonable rules This inequity results in further C A violations and cumulatively these violations suggest systemic discrimination The relief claimed is -3- That the employer manage in a fair and equitable manner and make reasonable rules That the employer will follow C A protocol by considering proposed CWWA schedules for FAU/FACT program within the C.A time constraints Failing the successful development of a new CWWA schedule FAU staff reserve the right to institute existing CWWA schedules in use at WMHC The grievors are currently working eight hour days and would like to adjust that Management has refused to enter into a CWWS with this group of employees or even to sit down with the employees and attempt to negotiate one The relevant articles in the collective agreement are 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 these rights are subject only to the provisions of the Central Collective Agreement and any other Collective Agreement to which the parties are subject Article 3 - No Discrimination/Employment Equity 3 1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 1 O( 1) of the -4- Ontario Human Rights Code (OHRC) Article 9 - Health and Safety and Video Display Terminals 9 1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees 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 Counsel for the employer argued that although the union was attempting to characterize the grievances before me as alleging a violation of the management's rights clause, that this was not accurate He suggested that the real and ostensible grievance between the parties pertained to article 10 and management's refusal to negotiate a CWWS In his view, article 10 does not create any obligation on the part of the employer to sit down and negotiate anything Counsel stated that there is nothing in article 10 that compels the employer to negotiate CWWS with employees Should management agree to do so, then article 10 merely provides a model CWWS for the parties to consider In support of his position, counsel provided me with three cases which dealt with the same language as is before me (in part) and in which the preliminary -5- objection was upheld OPSEU (Algerson et al) and the Ministry of Government Services GSB # 1942/87( Watters) (the "Algerson" case), OPSEU (Andre Ropars) and the Ministry of Government Services GSB #400/84 (Jolliffe) (the "Ropars" case), OPSEU (James Glenny) and the Ministry of Government Services GSB #317/83 (Roberts) (the "Glenny" case) Employer counsel argued that the cases establish that the employer is not compelled to enter into any discussions concerning a CWWS under the predecessor to article 10 and that its decision not to do so cannot be challenged As this issue has been decided, counsel referred to the decisions in Bateman 2/77 (Prichard) and Amalgamated Transit Union (Blake et al) and the Toronto Area Transit Operating Authority GSB # 1276/87 (Shime) as support for the proposition that it is not appropriate to re-litigate the same issue In correspondence dated February 25, 2002, union counsel provided the employer with particulars of the union's case As the letter sets out the position of the union and was referred to in argument before me, for ease of reference I will set it out It provides in part as follows The gnevance deals with refusal on the part of management at the Whitby Mental Health Centre (WMHC) to agree to numerous requests from staff on the ForensIc Assessment Unit (FAU) for a compressed work week (C\MN) arrangement for that unit. Staff have been making such requests on an ongoing basIs since the opening of the unit In 1997 It IS the position of the Union and Gnevors that the refusal of management to agree to Institute a CVWVfor the FAU violates the collective agreement In the following ways 1 Violation of Article 3 1 - Systemic dlscnmlnatlon on the basIs of sex and age - At the heanng on the ments of the case the Union will present eVidence to show that nursing IS a female dominated Job classification at WMHC (and elsewhere) We will also present -6- eVidence to show that while nursing staff on FAU (the maJonty of the gnevors) are denied the opportunity to work 12 hour shifts on a C\MN, management at WMHC does routinely allow males In another Job classification (Patient Care ASSistant - PCA) to work on personally accommodated schedules which Involve them regularly working 16 straight hours on weekends This constitutes dlscnmlnatlon on the baSIS of sex. In addition, the PCA's are much younger on average than the nursing staff and the legitimate Interests of the PCA's to flexible work schedules (to allow the PCA's to attend school - even though attending school to become an RPN or RN does nothing to Improve performance as a PCA) are met while the legitimate needs of older staff for the accommodation of working on C\MN (such as canng for aged parents) are not recognized This constitutes dlscnmlnatlon on the baSIS of age Finally, on this branch of the case, we will also present eVidence to show that the Crown routinely agrees to C\MN arrangements With male dominated Job classifications such as Correctional Officers Again, It IS the position of the Union and Gnevors that thiS constitutes dlscnmlnatlon on the baSIS of sex. 2 Violation of Article 9 - Health and Safety - The Union and Gnevors will present eVidence to show that as a result of working 8 hour schedules nursing staff are routinely scheduled to work 6, 7 and 8 day stretches Without a day off ThiS IS unhealthy for staff and leads to excessive fatigue 3 Violation of IHC Article 82 1 - Fair and EqUitable Dlstnbutlon of Overtime - The Union and Gnevors will present eVidence that the nursing staff on ASU who work on a C\MN have extra opportunities to work overtime that staff on 8 hour schedules on FAU do not. Staff on ASU In fact dlstnbute lists to other wards Indicating their availability to be called In for overtime ThiS IS an Inequitable dlstnbutlon of overtime 4 Violation of Article 2 - Improper exercise of management nghts - It IS the position of the Union and Gnevors that the refusal of management to agree to the Introduction of a C\MN on the FAU IS an Improper exercise of management nghts on the following baSIS a It IS a dlscnmlnatory exercise of management nghts for the reasons listed above With respect to Article 3 In addition the Union and Gnevors will present eVidence to show that management has agreed to C\MN arrangements for nursing staff on the ASU (the only other admitting ward at WMHC), -7- for non-nursing staff (Child Care Workers) on the Adolescent Ward, and with nursing management supervisors, b It IS an unreasonable exercise of management rights In that the only reasons given by management for refusing to enter Into a CWW agreement came from Ron Ballantyne at a meeting with FAU staff In 1998 at which he adVised the staff that a C'MN would lead to staff fatigue and could lead to them getting other jobs The Union will present eVidence that these reasons for denial of a CWW are not factually sustainable Nurses routinely work 12 hour shifts In public hospitals and perform their duties competently c It IS further an unreasonable exercise of management rights In that the denial IS contrary to the policies and gUidelines of WMHC and the government. The Human Resources Directives and GUidelines of the government, GUideline G-5-7, specifies that In "determining the most sUitable hours of work for the organization, managers should consider working hours which vary from the traditional " ThiS IS not being followed Also, article 1 12 of the WMHC Staffing Practices - Policies, Procedures and GUidelines provides that double shifts are not to be pre-booked for full-time classified staff, yet thiS IS being done for the PCA's as outlined above Similarly, Item #3 of the NurSing Staffing Strategies memo dated July 17, 2001 from Ron Ballantyne states that staffing and scheduling practices for nursing are consistent across programs ThiS IS not being adhered to given that ASU nurses have a C'MN d It IS further an unreasonable exercise of management rights In that the refusal to agree to a CWW arrangement does not achieve any legitimate government objective, and In fact undermines the proper operation of WMHC In at least two respects The Union Will present eVidence that failure to agree to a CWW IS In fact causing staff losses ThiS has been recognized at various committees of WMHC, Including the Staff RecrUitment Committee, and by supervisors It has also been given In writing as a reason for leaVing employment by a nurse who has just resigned, Tom Steedman Second, haVing nurses work only 8 hours Impedes the continuity of patient care The Union Will present eVidence that doctors and social workers both feel -8- that there would be a clinical advantage to having nurses work 12 hour shifts e It IS an unreasonable exercise of management nghts In that It IS contrary to the recommendations of the Program Manager of the FAU, Jim Cyr (see In specific Mr Cyr's e-mail to Mr Ballantyne of June 13, 2000) f ThiS Improper exercise of management's nghts curtails the nghts of the gnevors to a C\MN as provided for under Article 10 1 of the central agreement and Appendix IHC5 of the IHC agreement. It also curtails the gnevor's nghts under Articles 3 and 9 of the central agreement and Article 8 2 1 of the IHC agreement, as outlined In thiS letter Union counsel acknowledged the jurisprudence put forward by the employer and argued that in deciding the case before me it was not necessary to overturn them The case before me expressly raises issues that were not before the Board and were not addressed in the decisions relied upon by the employer The grievances before me clearly question the manner in which management is exercising its discretion and allege that management is acting in a discriminatory fashion In the union's view, in light of the fact that other employees at the same facility have negotiated CWWS, in refusing to even sit down and try to negotiate a CWWS with the grievors, the employer is acting in a discriminatory fashion Union counsel also stressed that when the cases relied upon by the employer were decided, article 3 1 was not part of the collective agreement In addition, counsel pointed out that The Labour Relations Act, 1995, section 48 (12) (j) specifically gives an arbitrator jurisdiction to interpret and apply human rights legislation All of the above reflect significant differences between the case I must decide and the earlier decisions referred to above In dealing with this preliminary objection, union counsel suggested that I must assume that the union can prove its allegations of discrimination and that it -9- can establish that the employer's reasons for refusing to negotiate with this group of individuals is because of their age and sex. If that is the case, then clearly management is violating article 3 1 of the collective agreement That management must not act in a discriminatory fashion is an overriding obligation that must be met In argument, union counsel also reviewed the other grounds set put in his letter dated February 25 Once again he pointed out that the cases provided by the employer did not deal with issues regarding health and safety or the denial of overtime opportunities In the opinion of counsel for the union, the jurisprudence has developed significantly since the cases relied upon by the employer were decided In particular, there has been a recognition by the Grievance Settlement Board that management rights per se must be exercised fairly, reasonably and in a non-discriminatory way In support of this proposition, counsel referred me to OPSEU (Romeo Bousquet) and the Ministry of Natural Resources GSB #541/90, 542/90,543/90 (Gorsky) (the "Bouquest" case), OPSEU (Boulet et al) and the Ministry of Community and Social Services GSB #1189/99 (Brown) (the "Boulet" case) and OPSEU (Pilon et al) and the Ministry of Community and Social Services and AMAPCEO GSB #1254/99,1409/99,1802/99,1803/99,1258/00,0448/00, 1194/00, 1291/00, 1486/00, 1537/00 (Brown) (the "Pilon" case) The union took the position that I did have jurisdiction to review the exercise of management rights that took place in this case and invited me to conclude that it was not bona fide in that it was irrational, not reasonable and discriminatory and resulted in the contravention of article 3 1, 9 1 and the -10- overtime provisions of the collective agreement Counsel for the employer agreed that the case law pertaining to the exercise of management's rights has developed significantly since the cases upon which he relied were decided But in his view that jurisprudence was not relevant to the case before me as he urged me to focus only upon article 10 As article 10 does not create an obligation on the part of the employer to negotiate a CWWS with employees, the grievance should be dismissed DECISION For the reasons that follow, the objection to my jurisdiction to hear and determine the grievances before me is dismissed It is appropriate to start my analysis by observing that after carefully reading the three cases relied upon by the employer, it is clear that many of the issues before me were not raised or dealt with in those cases In the Glenny case, in dealing with the predecessor to article 10 (the language is the same), Vice-Chair Roberts observed The Article merely provides an option It does not obligate either party to negotiate, let alone reach final agreement Where there is no mutuality, in the sense of a desire on the part of both parties to agree with respect to compressed work weeks, Article 706 of the collective agreement does not come into play I do not disagree with this statement If the employer refuses to sit down and negotiate a CWWS, then article 10 does not come into play -11- However, the employer's reason for refusing to sit down and negotiate a CWWS for this group of employees can be questioned by the union if the union feels that management's decision violates some other provision in the collective agreement In refusing to sit down and discuss the possibility of a CWWS for this particular group of employees, the employer cannot contravene other portions of the collective agreement For example, assuming the union's allegation that the employer is refusing to consider a CWWS for the grievors because of their sex is true and for the sake of argument let us also assume that this is not a justifiable reason, then the employer would be violating article 3 1 of the collective agreement in that it was discriminating against the grievors In the Ropars case and the Algerson case, also relied upon by the employer, the Board accepted and followed the reasoning articulated by the Board in the Glenny case However, as in the Glenny case the arguments put forward by the union in the case before me do not appear to have been raised or considered in either of those two cases It was agreed that the jurisprudence on the issue of management's rights has evolved significantly since the decisions relied upon by the employer were decided However, counsel for the employer argued that as the case before me was not about the exercise of management rights, this jurisprudence was irrelevant I cannot agree with this assertion In making the decision that it was not going to sit down and negotiate a CWWS with the grievors, thereby determining that the schedules of work for these employees would not change, management was exercising the right to, amongst other things, manage the business as set out in article 2. But article 2 also fetters the right to manage by -12- stipulating that this right is subject to the provisions of the applicable collective agreement Therefore, if management's decision contravenes any other provision in the collective agreement, it can be challenged by the union In this case, the union has alleged that the employer's decision has violated several provisions in the collective agreement dealing with discrimination, health and safety and overtime In the Boulet decision, the Board articulated what it felt was the appropriate standard of review with regard to management decisions I agree with and accept this analysis Vice-Chair Brown commenced his analysis by referring to the often cited passage from United Parcel Service and Teamsters Union (1981) 29 L.A C (2d) 202 (Burkett), which reads as follows In our view the employers S decision making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management, they do so in the knowledge that management's decisions in these areas will be made in management's self-interest, may adversely affect individual employees, and/or may not impact on all employees equally However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective agreement (page 213, emphasis added) Vice-Chair Brown then notes that this approach was also adopted by the Board in the Bousquet case and OPSEU and the Ministry of Natural Resources -13- (Mcintosh) GSB #3027/92 (Dissanayake) (the "Mcintosh" case) In the Mcintosh case, Vice-Chair Dissanayake sites with approval the following two passages from the Bousquet decision Thus the significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by the particular application of such a right As noted above, if could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes There is nothing in the collective agreement that requires the employer to consider the advancement opportunities of employees However, it cannot use its management rights to under s 18( 1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee's right to compete for a promotion The employer cannot deliberately tilt the field with a view to preferring one employee over another However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded upon a deliberate attempt to undermine the employee's opportunities for promotion, the decision will not be interfered with (Pages 35 and 36, emphasis added) The second passage from Bousquet states All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer so long as certain minimum tests are met These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions The facts considered in making the decision must be relevant to legitimate government purposes Also, in making its decision management, provided it has acted in good faith, as -14- above described, need not be correct (Pages 63 and 64, emphasis) Therefore in making the decision not to sit down with the grievor's and attempt to negotiate a CWWS, management's motives should be reviewed in light of the standard set out above That decision must not be motivated by bad faith or discriminatory considerations and must be based on legitimate or genuine government purposes The union has grieved that management has contravened the collective agreement by not managing in a fair and equitable manner and has systemically discriminated against the grievors It was argued that the employer has improperly exercised its right to manage the workplace in that the decision to refuse to meet and negotiate a CWWS with the grievors was not motivated by good faith or legitimate or genuine government purposes and that management's decision resulted in a contravention of several articles of the collective agreement A t this point in the proceedings, I do not have any information regarding management's decision-making process in this case I do not know why there has been a refusal to sit down with this particular group of employees Until I hear from the employer on these issues, I have no way of assessing the validity of the union's assertions These are issues that I have the jurisdiction to hear and determine -15- To summarize, for all of the reasons set out above, the preliminary motion made by the employer that I lack the jurisdiction to enquire into these grievances is dismissed This matter will therefore continue on the dates which have been previously set Dated in Toronto this 19th day of August, 2002 ~ . . - . " Janice Johnston Vice-Chair