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HomeMy WebLinkAbout2003-3764.Union Grievance.06-02-08 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3764 UNION# 2003-0999-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Jamce Johnston Vice-Chair FOR THE UNION Nelson Roland BarrIster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Mimstry of Government ServIces HEARING October 18 2005 2 DeCISIon ThIS deCISIOn deals wIth a request for Intenm relIef whIch was made by the umon. The heanng In thIS matter was held on October 18 2005 The gnevance at Issue In thIS case IS dated December 19 2003 It alleges, inter alia, that the Mimstry has vIOlated artIcles 9 5 and 9 6 of the CollectIve Agreement, whIch deal wIth vIdeo dIsplay termInals (VDTs) The relevant language, In part, In the collectIve agreement IS 9 5 After each hour of contInUOUS operatIOn of a VDT a VDT operator shall be relIeved of such dutIes for a penod of ten (10) mInutes 9 6 At the begInmng of assIgnment to a VDT and annually thereafter a VDT operator who IS regularly reqUIred to operate a VDT for two (2) hours or more per day shall be reqUIred to undergo an eye eXamInatIOn by an optometnst or an ophthalmologIst who IS qualIfied to conduct the folloWIng tests (a) unaided vIsual aCUIty (letter chart test) (b) refractIve findIngs (c) corrected vIsual aCUIty (d) amplItude accommodatIOn (e) suppreSSIOn (0 muscle balance (near one metre, dIstant) (g) slIt lamp bIOmIcroscopy The cost of the eye eXamInatIOn, not to exceed the OHIP fee schedule for such eXamInatIOns, shall be borne by the Employer and the VDT operator shall authonze release of a copy of the eXamInatIOn report to the Employer 3 The Issue In dIspute IS framed by counsel for the Mimstry In a letter dated May 9 2005 In It counsel confirmed the employer's legal posItIOn WIth respect to the VDTs located In the control rooms at correctIOnal InstItutIOns Counsel stated "To confirm, for the purposes of the present proceedIng, the Employer's posItIOn IS that the eqUIpment used In central and sub-control rooms of all MCSCS CorrectIOnal InstItutIOns, whIch meet the CSA defimtIOn of a VDT are VDT's as per the current ArtIcle 9 of the CollectIve Agreement. However It contInues to be the Employer's posItIOn that CorrectIOnal Officers are not VDT Operators and that they do not operate the VDT's In the manner contemplated by the collectIve agreement. Consequently the provIsIOns do not apply to CorrectIOnal Officers workIng In the control and sub-control rooms of the InstItutIOns" Therefore, thIS letter confirms that the Mimstry was no longer maIntaInIng a posItIOn that It had ImtIally taken, namely that the eqUIpment at Issue In the case before me was not a VDT The Mimstry conceded that the eqUIpment was a VDT The central Issue remaInIng In dIspute IS the meamng of the terms "operate" and "contInUOUS" as used In artIcle 9 5 and whether or not correctIOns officers (C 0 's) "operate" the VDTs In a "contInuous" manner as stated In ArtIcle 9 5 In other words, does the work of the CO' s meet the reqUIrements of ArtIcle 9 5 of the collectIve agreement. The umon alleges that It does, the Mimstry does not agree ThIS matter first came on for medIatIOn/arbItratIOn on the ments on June 8 2004 On June 8 2004 the partIes sIgned Minutes of Settlement In whIch they agreed to refer the Issues raised In the gnevance to the next "MERC" meetIng scheduled for later the same month. Unfortunately thIS attempt by the partIes to resolve thIS case was unsuccessful The case came back on for heanng on October 8 2004 At thIS tIme some procedural matters were raised and It was agreed that we would take a VIew of the Central East CorrectIOnal Centre on December 7 2004 PrevIOusly scheduled heanng dates for October 13 and October 14 2004 were adJourned. The procedural Issues are dealt wIth In a decIsIOn dated October 21 2004 The VIeWIng of the InstItutIOn and another short heanng took place on December 7 2004 ThIS case next came on for heanng on January 14 2005 At that heanng, procedural matters were agaIn raised and a decIsIOn dated January 18 2005 dealt wIth the Issues After a couple of adJ ournments, the heanng of thIS matter contInued on May 3 2004 On that day and 4 the next date May 13 2005 procedural Issues were agaIn addressed and resulted In another decIsIOn dated May 31 2005 It was agreed that the case would contInue on October 18 2005 On July 11 2005 counsel for the umon wrote to the board requestIng that an emergency heanng be scheduled to deal wIth an Intenm relIef applIcatIOn. In dIscussIOns between the partIes and the Board, It became apparent that It would not be possible to schedule a heanng to deal wIth the request for Intenm relIef before the next date we had scheduled to deal wIth the ments of thIS case (whIch as noted above was October 18th) At that tIme, the partIes were advIsed that as the applIcatIOn for Intenm relIef was a separate matter It could be dealt wIth In an expedIted fashIOn by another Vice-Chair of the Board. The umon IndIcated that It dId not wIsh to proceed before another Vice-Chair AccordIngly the applIcatIOn for Intenm relIef was heard on October 18 2005 The applIcatIOn for Intenm relIef states as follows the Umon IS requestIng that the G S.B by way of Intenm relIef, order the Mimstry to provIde all employees workIng at V.D T s In any and all provIncIal correctIonal InstItutIons 1) relIef from V.D T dutIes ofa penod of 10 mInutes after each hour of contInUOUS operatIOn of the V.D T s (as descnbed In ArtIcle 9 5 of the CollectIve Agreement) and 11) at the begInmng of the assIgnment of the employees to V.D T and annually thereafter an eye eXamInatIOn (as descnbed In 9 6) of the CollectIve Agreement. The Mimstry had conceded, after long denYIng It, that V.D T s are used In the Mimstry's InstItutIOns The Umon IS sImply requestIng that an Intenm order be Issued that those USIng the Mimstry V.D T s, In the course of theIr dutIes, be afforded the Health and Safety provIsIOns of 9 5 and 9 6 of the CollectIve Agreement, at the very least. AgaIn we are requestIng thIS, at present, on only an Intenm basIs, pendIng the outcome of thIS long delayed case InvolvIng the Health and Safety ofMimstry employees Therefore, the umon IS seekIng the same relIef by way of an Intenm order as IS sought In the maIn proceedIng 5 The collectIve agreement language at Issue In thIS case has been In place for a long penod of tIme It was addressed prevIOusly In a decIsIOn of the Gnevance Settlement Board, OPSEU (Forester) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 360/83 (the "Forester" case) As IS apparent from the cItatIOn, the decIsIOn In that case was Issued In 1983 In the Forester case the Board dealt wIth the same collectIve agreement language as IS before me and a sImIlar Issue The employer called one wItness In the Intenm relIef applIcatIOn. The umon dId not call any wItnesses The employer's only wItness, Mr Don Poynter pnmanly testIfied as to the costs assocIated wIth the grantIng of the relIef requested by the umon. Although he conceded that hIS estImates represented a "worst case scenano" he suggested that the cost assocIated wIth the grantIng of thIS applIcatIOn for Intenm relIef would be approxImately 106 mIllIon dollars DECISION Counsel for the Mimstry took the posItIOn that I dId not have the JunsdIctIOn to order Intenm relIef In thIS case He suggested that my authonty to make Intenm orders was based on SectIOn 48(l2)(i) whIch states that an arbItrator has power "to make Intenm orders concermng procedural matters" Counsel argued that my JunsdIctIOn IS lImIted to the grantIng of Intenm relIef on procedural matters and that no matter how expansIvely "procedural" IS defined, It does not Include the kInd of remedy the umon IS seekIng In thIS case GIven the conclusIOns that follow It IS not necessary to determIne thIS Issue Even If I had the JunsdIctIOn to grant the umon the Intenm relIef It IS seekIng In thIS case, I would not do so The partIes agreed that for thIS applIcatIOn to succeed, the umon must establIsh the eXIstence of an arguable case In the maIn applIcatIOn. In addItIOn, pnor to ordenng any Intenm relIef, It was agreed that the Board must balance the potentIal harm to the partIes whIch could result from grantIng or not grantIng the relIef sought. In OPSEU (Stewart) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 1000/94 the Board lIsted a number of factors to be consIdered In 6 decIdIng what CIrcumstances should attract an Intenm order The factors relevant In the sItuatIOn before me are 1 The applIcatIOn for Intenm relIef IS not the tIme to examIne the ments of the case 2 The grantIng of Intenm relIef IS not lImIted to rare and exceptIOnal CIrcumstances 3 The grantIng of Intenm relIef In a labour relatIOns context reqUIres a consIderatIOn of "a very specIfic socIal and economIC landscape" (Loeb Highland, supra at paragraphs 13 and 14 4 There can be no "bOIlerplate" or "one-sIze-fits-all" approach to grantIng Intenm relIef See RadIO Shack, (1979) OLRB Rep Dec 1220 referred to at p 7 of Leeder 5 A board of arbItratIOns must "consIder both what harm may occur If an Intenm order IS not granted, and what harm may occur If It IS." Reference to Loeb at p 9 of Leeder, where emphasIs was added. 6 The pnncIples utIlIzed by some courts governIng the grantIng of Interlocutory InJunctIOns, beIng the test of "Irreparable harm" has been reJected In favour of "a balancIng of harm done to the partIes" (See Leeder at p 13 ) 7 8 9 Delay In makIng the applIcatIOn may be a factor In denYIng It. 10 Where Issues of safety are raised on an applIcatIOn for Intenm relIef, "there should be eVIdence before the Board whIch would lead the Board to belIeve that there IS a nsk of unsafe conduct OCCUrrIng should the employee be reInstated for the Intenm penod pendIng the dISposItIOn of the maIn applIcatIOn." See Umted Food and CommercIal Workers' InternatIOnal Umon v. ShIrlon PlastIcs Inc. OLRB (ShouldIce), dated August 8 1994 referred to a pp 18-19 of Leeder, where emphasIs was added. In applYIng the tests set out above, I am satIsfied that the umon has made out an arguable case In the maIn applIcatIOn. However In balancIng the potentIal harm to the partIes should I grant or not grant the relIef requested, I have concluded that the balance of potentIal harm favours the Mimstry In comIng to thIS conclusIOn, I have taken Into consIderatIOn several factors FIrst and foremost IS the delay on the part of the umon In makIng the applIcatIOn for 7 Intenm relIef There are several aspects to the umon's delay The same language as IS before me was the subJect of proceedIngs In 1983 SInce that tIme the language at Issue has remaIned In the collectIve agreement and It IS my understandIng that thIS IS the first tIme the umon has agaIn alleged that the Mimstry's has faIled and contInues to fall to comply wIth It. Twenty-five years have passed. No explanatIOn for thIS lengthy delay was provIded. I am also troubled by the delay of the umon In bnngIng thIS applIcatIOn for Intenm relIef wIthIn the context of the current proceedIngs The gnevance before me IS dated December 19 2003 and the first day scheduled to deal wIth It was June 8 2004 The umon made ItS applIcatIOn for Intenm relIef on July 5 2005 WhIle there has been a great deal of procedural wranglIng In thIS case and a lot of tIme has been spent on It, there was nothIng preventIng the umon from makIng ItS applIcatIOn for Intenm relIef over a year ago In support of the need for an Intenm order umon counsel suggested that there were ongOIng health and safety concerns In thIS case He argued that whIle thIS case IS beIng lItIgated, employees contInue to SIt before and operate VDT's In contraventIOn of the collectIve agreement. In counsel's VIew the eXIstIng sItuatIOn raised senous potentIal health nsks and that It was dangerous to Wait for actual harm to occur Counsel for the Mimstry pOInted out that no eVIdence was called by the umon to support these allegatIOns If In fact employees are suffenng harm or there was the potentIal for senous harm to occur he should have called eVIdence to thIS effect but he dId not. I agree wIth counsel for the Mimstry ThIS IS not a tYPIcal Intenm relIef case In that the sItuatIOn the umon seeks to remedy has eXIsted for a long tIme The language at Issue In the collectIve agreement has been there for many years In addItIOn, the gnevance before me was filed In December 2003 and It first came on for heanng In June 2004 Therefore In the absence of any eVIdence at all on the Issue of harm or the potentIal for harm to employees, I am not prepared to come to any conclusIOns on the pOInt. Counsel for the Mimstry pOInted out that the relIef beIng sought In thIS Intenm applIcatIOn was the same relIef as was beIng sought In the maIn applIcatIOn and that the costs assocIated wIth grantIng the Intenm relIef were very hIgh. Even If! accept that the figures gIven by Mr Poynter were hIgh and represented a worst-case scenano there IS no doubt that to grant the relIef requested by the umon would cost mIllIons of dollars 8 AccordIngly for all of the above reasons I have concluded that the balance of potentIal harm favours the Mimstry I agree wIth the observatIOns made In OPSEU and the Crown in Right of Ontario (Management Board Secretariat), GSB Decision 0610/02 where Vice-Chair Petryshen states "As the decIsIOns In thIS area suggest, the pnmary focus In an Intenm relIef applIcatIOn IS on whether the applIcant has establIshed that there are compellIng reasons to alter the status quo An alteratIOn of the status quo may be appropnate If the harm to the applIcant as a result of the alleged breach of the collectIve agreement cannot be adequately addressed wIth a remedIal response at the conclusIOn of the proceedIng." In thIS case, the umon has not establIshed that there are compellIng reasons to alter the status quo It IS not appropnate to grant the umon the Intenm relIef It IS seekIng and thIS applIcatIOn IS dIsmIssed. Dated at Toronto thIS 8th day of February 2006