HomeMy WebLinkAbout2002-2393.Ladouceur et al.05-09-14 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# 2002-2393
UNION# 2002-0429-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Ladouceur et al ) Union
- and -
The Crown In RIght of Ontano
(Mimstry of the EnvIronment) Employer
BEFORE FelIcIty D Bnggs Vice-Chair
FOR THE UNION Nelson Roland
BarrIster and SOlICItor
FOR THE EMPLOYER Andrew Baker
Counsel
Management Board Secretanat
HEARING July 7 & 8 2005
2
DeCISIon
On December 2, 2002, four employees of the MmIstry of the EnVIronment filed a
gnevance that alleged the followmg
Employer refuses to recogmze that the gnevors have been on "stand-by"
whIle havmg performed or whIle performmg "desIgnated employee"
dutIes/responsibIhtIes for the Provmce of Ontano Nuclear Emergency
Plan/General Provmce - WIde Momtonng Plan
By way of remedy they requested.
Recogmze gnevors' dutIes/responsibIhtIes have m the past and stIll
presently reqUIre gnevors to be on "stand-by" at all tunes other than nonnal
workmg hours Gnevors receIve remuneratIOn wIth mterest compounded bI-
weekly for all lost wages from the tune the gnevors became "desIgnated
employees"
After It becaIne apparent that tlllS matter could not be resolved by way of
medIatIOn, the partIes held a dIscussIOn to dISCUSS the process whereby thIS matter
would be htIgated. It was agreed that the Umon would provIde fulsome partIculars
to the Employer and the Employer would then provIde dIsclosure and ItS partIcular
to the Umon The Umon would have an opportumty to reply to those partIculars It
was hoped that, at the very least, thIS exchange would allow the partIes to narrow
the dIspute
The Employer made known to the Umon m a letter dated June 1, 2005, that It
would raise three prehmmary ObjectIOns and would request that the gnevance be
summanly dIsmIssed. Further, It would ask tlllS Board to detennme tlllS
prehmmary matter pnor to heanng the ments
The Employer's first reason to dIsmIss the matter IS because, based on the
partIculars, there IS no przma facle breach of the collectIve agreement Second, the
3
Umon should have brought thIS matter forward much ear her because the practIce
rehed upon by the Umon has been m place for a number of years and there have
been many renewals to the collectIve agreement m the mtenm For that reason the
Umon IS estopped. The final reason for thIS matter to be summanly dIsmIssed IS
because the requested remedy would provIde these gnevors wIth a substantIal,
mdeed enonnous, monetary benefit The absence of clear language m the present
collectIve agreement entItlmg these gnevors to such an extraordmary benefit must
lead to the dIsmIssal of the gnevance
The Umon's partIculars are contamed m a twenty seven-page letter, dated
December 23, 2004, to the Employer SIX further pages were provIded on January
10, 2005 In Apnl of 2005 the Employer sent to the Umon tlllrty-one pages of ItS
partIculars Fmally, the Umon responded to the Employer's partIculars wIth a
twenty-sIx page letter dated Apn129, 2005
In my VIew, It IS fair to charactenze the Umon's partIculars as a "road map" of
theIr htIgatIOn mtentIOns The documents referred to above state the Umon's VIew
of the sahent facts as well as the vanous statutes that touch upon tlllS matter such
as The Provznce of OntarlO Nuclear Emergency Plan Also contamed therem are
references to the sectIOns of the collectIve agreement and earher Gnevance
Settlement Board Junspnldence upon WhICh the Umon wIll rely
I am of the VIew that m order to have some appreCiatIOn for the gnevors' VIew of
thIS matter, It would be helpful to set out the IntroductIOn to theIr partIculars It was
stated.
To protect the pubhc's health and welfare dunng nuclear emergencIes
around the world, the gnevors were assIgned roles and responsibIhtIes to
Implement the General Provmce-wIde Momtonng Program (GPMP) on or
4
about January, 1995 for the Eastern RegIOn of the MmIstry of the
EnVIromnent The General Provmce-wIde Momtonng Plan (GPMP) was
Issued m May 1992 by the former SohcItor General (now called the Mimster
of Commumty Safety and CorrectIOnal ServIces) The GPMP IS an
"Implementmg document" and consIdered part of the ProvmcIal Nuclear
Emergency Plan (PNEP)
By November 1993 trammg seSSIOn and agam later m November 1994 the
gnevors were told by theIr supervIsors that they were not to be placed on a
"stand-by" [SIC] to Implement the GPMP (when actIvated by trammg or real
event) Instead, the gnevors were told by the above noted partIes that they
would be called day or mght If the plan needed to be actIvated and that they
would not be able to refuse the assIgnment due to the urgency of the matter
If the gnevors receIved a telephone call regardmg the plan, the gnevors
would be mformed by a desIgnated management person that a nuclear
mCIdent had occurred and that they would be placed on "stand-by" to
Implement the MmIstry of the EnvIronment's Eastern RegIOn portIOn of the
General Provmce-wIde Momtonng Plan When the gnevors receIved a
second call from the employer, the gnevors would "unmedIately" respond to
the workplace and begm to sample at pre-desIgnated areas usmg the
MmIstry of the EnvIromnent's "Eastern RegIOn's ImplementatIOn document
of the General Provmce-wIde Momtonng Plan"
In August 2002, a GPMP trammg exerCIse occurred ThIS was the first
exerCIse that gnevor Lusk had been part of m many years At that tune, Mr
Lusk began to look at all of the other plans that make up the PNEP mstead
of just the "Eastern RegIOn's ImplementatIOn document of the General
Provmce-sIde Momtonng Plan" WhICh had been the only document provIded
to hun Based on a reVIew of all of the plans and Statutes mvolvmg the
PNEP, the gnevors determmed that they are actually expected to be
Immediately aVailable to answer a call and Immediately respond to certam
mCIdents mvolvmg the GPMP
It appears the Employer's SupervIsor's have mfonned the gnevors that they
wIll not be dIscIplmed If they refuse to work. However, paragraph 1 5 10 of
the ProvmcIal Master Plan and s 11 of the Emergency Management Act
make clear that those assIgned a posItIOn can be penahzed by bemg sued by
anyone - members of the pubhc or even the Crown smce refusal of work
could result m the loss of hfe, threaten the safety of humans and threaten the
natural enVIromnent The gnevors now beheve they were actually placed on
5
"stand-by" by the Employer m 1995 and have been on stand-by smce that
tune or untIl theIr employment ended wIth the MmIstry
At the commencement of tlllS heanng the partIes agreed to put certam documents
before the Board on consent However, the Umon made clear that Its agreement
was gIven for the hmIted purposes of htIgatmg the ments of the dIspute
SpecIfically, It dId not agree that these documents were before me for the purpose
of argumg thIS prehmmary motIon To some extent, the Employer rehed upon
these documents dunng the course of ItS prehmmary motIon The Umon objected
strongly to tlllS rehance
I am of the VIew It would be Improper for me to consIder mformatIOn contamed m
those documents for the purposes of tlllS motIon In the absence of consent, the
exhibIts have not been properly entered mto eVIdence
Mr Baker, for the Employer, m IllS submIssIOns, referred to varIOUS sectIOns of the
Employer's partIculars Those partIculars were dIvIded mto two sectIOns It was
stated therem that the first sectIOn "contams a descnptIOn of how the MmIstry of
the EnvIromnent IS orgamzed to deal wIth spIlls and emergencIes, summanzes key
reqUIrements under The Emergency Management Act and outhnes the MmIstry's
mvolvement m response to a nuclear emergency" The IntroductIOn to Part 1
further Illustrates the mformatIOn contamed. It stated.
ThIS part of the submIssIOn IS dIvIded mto two sectIOns SectIOn 1 describes
how the Mimstry of EnvIromnent IS orgamzed to deal wIth spIll and
emergencIes The mtent IS to provIde some context for consIdenng OPSEU
gnevance GSB #2002-2393 - m WhICh the gnevors claim they are on a
permanent state of "stand-by" readmess just m case they are ever contacted
dunng the after-hours to take samples under the General Provmce-sIde
Momtonng Plan SectIOn 2 mcludes mformatIOn on the reqUIrements under
the Emergency Management Act, and expectatIOns placed on MmIstry of the
6
EnvIronment as one of several support agencIes under the ProvmcIal
Nuclear Emergency Response Plan
The second part of the Employer's partIculars "contams specIfic comments m
response to the gnevors' submIssIOns"
It was the Umon's posItIOn that a motIon of dIsmIssal based on no przmafacle case
must be decIded wIth rehance solely upon the Umon's factual allegatIOns For tlllS
Board to consIder the Employer's factual response would be Improper when nllmg
on such a prehmmary motIon
I agree wIth the Umon m tlllS regard I cannot consIder and rely upon the
Employer's alleged facts and VIews of the outstandmg Issues at thIS pomt m the
proceedmgs The test m tlllS consIderatIOn IS relatIvely straightforward. It IS
whether the Umon's case, as alleged, mamfests a przma facle breach of the
collectIve agreement
The Umon also asserted that tlllS Board cannot consIder the many facts that were
put forward by the Employer m ItS submIssIOns regardmg thIS prehmmary motIon
It was stated by the Employer that some of those facts are "undemable" For
example, the cost to the Employer If the gnevance was upheld was dIsclosed. It
was suggested If the gnevors receIved the monetary remedy requested they would
receIve a compensatIOn package sImIlar to that of a Deputy MmIstry The Board
also heard about the potentIal npple effect throughout tlllS and other MmIstnes If
tlllS matter were decIded m the Umon's favour It was the Umon's posItIOn that
those are assertIOns of fact WhICh were not be alleged by the Umon m ItS
partIculars nor have they been proven For those reasons they cannot be
consIdered
7
Agam, I must agree wIth the Umon for the same reasons stated above It mIght be
that the facts asserted by the Employer m Its partIculars and m Its submIssIOns wIll
ultImately be sufficIent to have the gnevances dIsmIssed. However, a
detennmatIOn that mcludes a consIderatIOn of the Employer's eVIdence and VIews
would be made after heanng the ments of the matter
EMPLOYER SUBMISSIONS
Mr Baker, for the Employer, asserted that thIS matter has been htIgated prevIOusly
before thIS Board and It has been determmed that the Umon must prove that
employees are entItled to stand-by It IS apparent from the exchanged partIculars
that the gnevors do not meet the threshold needed for thIS Board to uphold the
gnevances
It was submItted by the Employer that the test for a stand-by IS not complex The
assIgnment must be authonzed, It must have a begmnmg and an end and one
cannot be unavailable due to vacatIOn or other absences There IS no assertIOn m
the Umon's partIculars that a manager actually assIgned the gnevors to be on
stand-by The partIculars dIsclosed no recItatIOn of a dIscussIOn regardmg the
assIgnment of stand-by and there was no productIOn of an emaIl or a memo wIth
such an assIgnment set out Indeed, the gnevors admItted m theIr own partIculars
that they have not been assIgned to be on stand-by There IS no wntten
authonzatIOn of stand-by They have not been told that they have to be
unmedIately aVailable for work. Further, they dId not provIde eVIdence of the
threat of dIscIplme m the event they faIled to be aVailable at most, the gnevors
have alleged that they have been told that they may be placed on stand-by SImply
put, that IS not sufficIent for a findmg of a breach of the collectIve agreement
8
In tlllS regard the Employer rehed upon Re OPSEU (UnIOn) & Management
Board Secretariat (January 26, 2004) GSB#2002-2427 (Brown), Re OPSEU
(Adams) and Ministry of SolicItor General and CorrectIOnal Services (March
20, 2000) GSB#0389/97 (Brown), and Re OPSEU (Jones) and Ministry of
SolicItor General and Co rrectlOnal Services (September 12, 1994)
GSB#1099/93 (Devhn)
Regardmg the estoppel, It was submItted by the Employer that the gnevors have
known of the SItuatIOn for 12 years and they faIled to gneve pnor to December of
2002 They are now askmg thIS Board to award compensatIOn for thIS alleged
breach back many years The detnment to the Employer IS ObVIOUS
The necessary elements of estoppel have been met m thIS matter Mr Baker stated.
FIrst, there has been acqUIescence of a practIce Second, there has been a
representatIOn by conduct by the gnevors that they would not enforce certam
prOVISIOns of the collectIve agreement Fmally, the Employer rehed upon these
representatIOns to ItS detnment In tlllS matter the Employer mIght have attempted
to alter the language m the collectIve agreement had It known the Umon's VIew of
thIS matter These facts are Irrefutable In hIS regard the Employer rehed upon Re
OPSEU (Lasalle) and Royal CIty Ambulance Services (October 6, 1999)
GSB#0284/98 (Petryshen), and Re OPSEU (Johns) and Ministry of Revenue
(Febnlary 8, 1991) GSB#308/90 (Stewart)
The final aspect of the Employer's prelunmary motIon IS that tlllS Board cannot
take jUnSdIctIOn of thIS matter because It IS well estabhshed that for a Board of
ArbItratIOn to provIde a remedy that confers a very large monetary benefit there
must be clear and preCIse language m the collectIve agreement and that IS not the
9
case m thIS mstance The gnevors cannot ask thIS Board to award what would be a
sIgmficant cost benefit wIthout an unambIguous provIsIOn m the collectIve
agreement It IS eVIdent from the partIculars that the gnevors seek an order that
they have been on stand-by for twenty-four hours a day, three hundred and SIxty
five days per year for a number of years If tlllS assertIOn cannot be detennmed by
a reVIew of the partIculars, the Board only has to look at the stand-by and salary
prOVISIOns The stand-by clause m the collectIve agreement cannot be tWIsted m
the fashIOn sought by the gnevors to expand the salary rates In thIS regard the
Employer rehed upon Re Cardmal TransportatIOn B.C Inc. and CUPE - Local
561 (1997),62 L.A.C (4th) 230 (Devme), and Re Canada Post Corp. and CUPW
(Schlosser) (1993), 39 L.A.C (4th) 6 (BIrd)
The gnevors, m theIr partIculars, are pIckmg and choosmg words and attemptmg to
have thIS Board determme that there IS more to thIS matter than there IS, m fact
They cannot, m essence, assIgn themselves stand-by There was no reference to
authonzatIOn m the partIculars and so tlllS gnevance must be dIsmIssed because
there IS no przmafacle case estabhshed.
UNION SUBMISSIONS
Mr Roland, for the Umon, first addressed the argument regardmg estoppel It was
submItted that the Umon's partIculars were constructed for the purposes of settmg
out the ments of thIS matter The certamly were not drafted wIth any knowledge of
an Impendmg estoppel argument Indeed, m thIS mstance It would be wrong to
detennme an estoppel because there IS no eVIdence In order to find an estoppel
thIS Board would have to hear eVIdence of acqUIescence of a long-standmg practIce
and detnmental rehance Indeed, the Umon should have an opportumty to
challenge through cross-exammatIOn the Employer's eVIdence about whether there
10
has been a long-standmg practIce or detnmental rehance The junspnldence put
forward m tlllS regard by the Employer was wntten, m each case, after eVIdence
was heard. Further, estoppel IS a doctnne of fairness In order for a findmg of
estoppel m thIS matter there would first have to be a findmg for the Umon on the
ments
The Umon concedes that the Employer has not told the gnevors that they are on
stand-by However, that IS not the end of the matter The Umon IS entItled to call
eVIdence that tlllS IS wrong and that the gnevors are, by theIr conduct, m actual
fact, on stand-by ThIS IS not, as asserted by the Employer, a Umon attempt to
create a new nght under the collectIve agreement There IS an artIcle regardmg
stand-by and the gnevors allege that the Employer has breached the prOVISIOn by
faIhng to assIgn them thIS duty As set out m the Umon's partIculars, the gnevors
are mcluded m management plans and by vIrtue of vanous statutes, as well as theIr
place on call hsts, they do fall under the stand-by prOVISIOn The success of tlllS
gnevance wIll depend on the long-standmg stand-by prOVISIOns m the collectIve
agreement
The gnevors have set out m theIr partIculars that the Employer has said that the
MmIstry must be at the hIghest state of readmess ThIS IS the Issue at hand, m the
Umon's submIssIOn It IS a matter of degree What IS the state of the gnevors'
readmess, m actual fact, expected by the Employer and does It meet the
reqUIrements for stand-by Do the vanous statutes and plans advertently or
madvertently put the gnevors on stand-by? The questIOn that thIS Board wIll have
to address at the conclusIOn of heanng eVIdence IS whether these gnevors have a
factual nght to stand-by and It cannot be addressed m thIS prehmmary motIon
11
The Umon stated that the Employer IS askmg thIS Board to consIder the Umon's
partIculars as If they have the same status as pleadmgs To do so would be wrong
ThIS Employer argument has been made prematurely A decIsIOn as to whether the
Umon has a prlll1a facle case should be determmed after the eVIdence IS heard and
tested m cross exammatIOn
Mr Roland noted that, m ItS submISSIOns, the Employer suggested that "at best,
thIS IS a questIOn of general aVaIlabIhty" That conceSSIOn Illustrates precIsely why
tlllS matter cannot be dIsmIssed on the basIs of a prelunmary motIon ThIS
gnevance wIll reqUIre the Board heanng the eVIdence and assessmg the degree of
the gnevor's aVaIlabIhty and responsibIhtIes as well as what the Employer's actual
expectatIOns are m tlllS regard. Only after that eVIdence IS heard, the Board wIll
then be able to determme whether the standby prOVISIOns of the collectIve
agreement has been vIOlated
The Umon rehed upon Re OPSEU (Bennett et all & Ministry of Labour
(November 6, 1989), GSB#276/88 (WIlson), Re OPSEU (Bedard) & Ministry of
Health (August 12, 1987), GSB#1281/85 (Brandt), and OPSEU (Walker and
Taylor) & Ministry ofSohcItor General (November 10,1982), GSB#417/82
By way of reply the Employer re-stated ItS VIew that thIS matter must be dIsmIssed
prelunmanly because the Umon faIled to assert eVIdence that the gnevors were
expressly told of an assIgnment of stand-by All of the subjectIve VIews of the
gnevors set out m theIr partIculars are Irrelevant In conclusIOn It was asserted that
the gnevors are all "foot -soldIers" who are attemptmg to pull themselves up to the
top levels of management That cannot be achIeved through thIS process
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DECISION
The Employer asked that I dIsmIss the gnevance summanly for three reasons
1 No przmafacle vIOlatIOn of the collectIve agreement
2 The Umon IS estopped from bnngmg assertmg any nghts m tlllS regard.
3 When such a large monetary remedy IS bemg sought, clear and preCIse
language IS reqUIred and the Umon cannot attempt through htIgatIOn to
achIeve what It could not at bargammg
After consIderatIOn, I am not prepared to dIsmIss thIS gnevance at thIS pomt m the
proceedmgs as suggested by the Employer A reVIew of the Board's junspnldence
regardmg stand-by entItlement reveals that each decIsIOn was rendered after a
comprehensIve consIderatIOn of the eVIdence led by the partIes
The Employer suggested that the gnevor's failure to pomt to an actual
management assIgnment of stand-by must lead to upholdmg ItS prelunmary
ObjectIOn I dIsagree If the success of htIgatIOn regardmg on call and stand-by
depended solely upon a management desIgnatIOn of the assIgnment, It seems to me
that vIrtually all of these cases would fall Indeed, a reVIew of the Board's
junspnldence reveals that the test for the determmatIOn of whether an employee
should receIve stand-by mcludes a number of factors not merely whether he was
specIfically assIgned or authonzed to be on stand-by
In Re OPSEU (Adams Group) (~,'upra), the Board had to determme whether
approxImately fifty-five unclassIfied employees were entItled to stand-by or on-
call pay In the decIsIOn, VIce Chair Brown stated, after heanng days of eVIdence,
that he had to determme "were the gnevors reqUIred only to be generally aVailable
13
or were they reqUIred mstead to mamtam of one of the states of readmess descnbed
m the collectIve agreement"
In Re OPSEU (Walker) (~,'upra) It was Said at page 13
WillIe each of these cases turned on ItS own facts, there are some general
conclusIOns WhICh can be drawn from the junsprudence FIrstly, the matter
IS not decIded sImply on the language WhICh the Employer uses Merely
calhng the pager system "on-call" does not make It an ArtIcle 16 SItuatIOn
The questIOn IS what are the real reqUIrements of the duty Secondly, one
gets at the real reqUIrements by exammmg the CIrcumstances of the job, and
the wntten and verbal mstructIOns to the employees
I agree wIth and adopt those comments As mentIOned above, the gnevors dId not
contend m theIr partIculars that the Employer had, m some fashIOn, authonzed
stand-by However, the Employer assertmg though Counsel's submIssIOns vanous
facts mcludmg no assIgnment of or expectatIOn of stand-by does not lead to a
prehmmary dIsmIssal of the gnevance The gnevors set out comphcated and
detailed partIculars regardmg the vanous statutes and theIr apphcatIOn to theIr
workplace, hIStOry of theIr work, theIr dutIes and responsibIhtIes and theIr VIew of
the real management expectatIOns of them as employees m cases of emergencIes I
understand that the Employer dIsagrees wIth much of that eVIdence and certamly
dIsputes the charactenzatIOn of most of It That IS precIsely what It IS necessary to
have that eVIdence called by the Umon and challenged by the Employer m cross-
exammatIOn For those reasons I cannot accede to the Employer's prehmmary
motIon to dIsmIss tlllS gnevance wIthout heanng the Umon' s eVIdence
At thIS pomt m the proceedmgs, gIven the complex partIculars and the fact that I
have heard no eVIdence, I am also not prepared to determme whether there IS an
estoppel The Employer IS, of course, free to make submIssIOns m tlllS regard at the
conclusIOn of the eVIdence
14
Fmally, the thIrd basIs raised by the Employer for dIsmIssmg thIS gnevance on a
prelunmary basIs IS also a matter more properly raised after I have heard the
eVIdence that would allow me to consIder and detennme the submIssIOn
As noted above, the Employer provIded junsprudence for consIderatIOn m tlllS
matter All of those decIsIOns, both of the Gnevance Settlement Board as well as
other Boards of ArbItratIOn were rendered after heanng eVIdence None were
Issued m response to a prehmmary ObjectIOn
It IS apparent from the consIderable partIculars that thIS matter wIll mvolve many
days of eVIdence I accept that the Employer has, by way of thIS prehmmary
motIon, merely attempted to elunmate the need to htIgate a matter WhICh It
smcerely beheves the Umon has httle likelihood of wmnmg The Employer may
ultImately be nght m thIS regard. However, It would be wrong to dIsmIss a matter
at tlllS stage for those reasons The heanng wIll contmue on the scheduled days
Dated m Toronto thIS 14th day of September, 2005
F ehcIty D Bn
VIce-Chair