HomeMy WebLinkAbout2003-0905.Dobroff et al.08-04-28 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2003-0905, 2003-0906, 2004-3397
UNION# 2003-0205-0016, 2003-0429-0004, 2003-0103-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dobroffet al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE UNION
David Wright
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Paul Meier
Counsel
Ministry of Government and Consumer
Services
HEARING December 7 of 2005; April 11, May 24, 25, 29, 30,
June 22, 27, 28, July 6, 2006; March 1, 15, 16,
August 10, 16, October 11, 2007;
February 12 & 19, 2008.
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Decision
This decision relates to individual grievances filed by Mr. Frank Dobroff, Mr.
Gerald Diamond and Mr. Mike Ladouceur, three of the five Air Quality Analysts
(?AQA?) employed in Ontario by the Ministry of Environment (?Employer?).
In February 2003 the employer announced its decision to reclassify its five AQAs
and approximately fifteen Water Group Leaders (?WGL?) to the classification of
Scientist 4, retroactively to January 1, 2002. Prior to this reclassification the WGLs were
classified as Resource Manager (?RM?) 4, and the AQAs as Air Quality Analyst. In
those respective classifications both groups received the same pay rates. Having
reclassified both groups to Scientist 4, however, the employer proceeded to temporarily
assign only the WGLs as Acting Geoscientist 4. This resulted in the WGLs receiving a
higher rate of pay than the AQAs. That resulted in the instant grievances.
The union, claims that the employer?s differential treatment of the two groups, i.e.
the grant of the higher rated temporary assignments to WGLs only, violated the collective
agreement in two ways. First, it is asserted that the employer?s action constituted a bad
faith, arbitrary, and discriminatory exercise of its management rights under article 2.1
that did not serve any legitimate business purpose. In the alternative, it was the union?s
position that the employer action was motivated, at least in part, because of the union
activity of the grievors ? primarily that of Mr. Ladouceur -, and that therefore, such
action was contrary to article 3.2.
3
Article 2.1 reads:
2.1For 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 this Central Collective Agreement and any
other Collective Agreement to which the parties are subject.
Article 3.2 provides:
3.2There shall be no discrimination or harassment practised by reason of
an employee?s membership or activity in the union.
With regard to the anti-union animus allegation, the grievors ? particularly Mr.
Ladouceur ? testified about complaints and allegations they had made of wrong-doing on
the part of members of management. While I have set out that evidence as necessary, I
wish to make it clear that I do so only to note the fact that the complaints and allegations
were made. I do not make any findings as to whether or not any of the complaints or
allegations was well-founded.
The employer?s primary position is that its decision to reclassify WGLs and AQAs
to Scientist 4, and then to subsequently temporarily assign only the WGLs to Geoscientist
4, was taken for bona fide business reasons. It was submitted that in any event, for the
4
Board to have jurisdiction to review the employer?s exercise of an exclusive management
right, (i.e. to temporarily assign employees) the union must establish that such exercise
had some adverse impact on a right accorded to the grievors by the collective agreement.
It was the employer?s position that the evidence did not establish that.
Employer counsel acknowledged, however, that if the Board concludes on the
evidence that the employer?s decision was motivated solely or in part by an anti-union
animus, the Board would have the authority to intervene, since it would impact on the
grievors? rights under article 3.2. His position, however, was that the employer?s
decision was not in anyway tainted by an anti-union animus.
The union has in no uncertain terms claimed that the employer?s action was unfair
and unreasonable. As I had noted in my previous decision dated January 31, 2005, the
union has claimed that ?equals were treated differently?. The union led extensive
evidence in an attempt to demonstrate that WGLs and AQAs had substantially similar
duties and responsibilities, the only difference being the media they dealt with. That is,
the WGLs had duties and responsibilities with respect to the quality of water, while the
AQAs had similar duties and responsibilities with respect to the quality of the air. The
union further relied on the fact that historically there had been parity in pay between the
two groups, and that parity ended as a result of denial of the temporary assignments to the
AQAs. The union further asserts that historically AQAs had been paid a higher wage
rate than water scientists, who were group led by the WGLs. The end result of the
employer?s reclassification exercise and its decision to temporarily assign only the WGL
5
group as Acting Geoscientist 4 was to put the AQAs at the same pay levels as the Water
Scientists. The union asserts that all of this is a departure from historical practice, and
therefore improper.
The employer disagreed that WGLs and AQAs performed substantially similar
duties and responsibilities. It led evidence designed to establish that there were
significant differences between the two groups in that respect. The employer
acknowledged that pay parity had existed previously between WGLs and AQAs, and that
as a result of the temporary assignments given to WGLs, that parity ceased. It also did
not dispute that previously AQAs were paid a higher rate than the water scientists group
led by the WGLs and that as a result of the employer?s decision in February 2003, the
AQAs were left at the same pay levels as the water scientists. However, it was the
employer?s position that the particular decisions were taken after a very careful and
thorough review of legitimate business considerations, and to address serious operational
concerns faced by the employer at the time. It was the employer?s contention that while
pay parity may have existed in the past, such parity was not ?frozen indefinitely?, and
that the employer was entitled to respond to its business concerns as long as it did not
directly or indirectly impact adversely on any collective agreement rights. The employer
asserted that it has paid wages to all of its employees, including the grievors, in
compliance with the negotiated wage rates in the collective agreement, and that in the
absence of any impact on a right of the grievors under the collective agreement, the
Board would have no jurisdiction to intervene.
6
In his submissions, counsel for the union submitted that Ms. Debra Sikora, the
Director of Human Resources who made the final recommendation to the Business
Development Committee, did not offer any ?justifiable reason? for the decision to depart
from the historical parity in pay. Counsel further submitted that the individual who had
the most input into the recommendation, Mr. Robert Campbell, Technical Support
Manager, Northern Region, offered a justification which did not ?stand-up on the
evidence?. He submitted that to the extent that Ms. Sikora and Mr. Campbell offered
reasons for their recommendation, those reasons were not reflected in any of the
documentation filed in evidence. In the circumstances, counsel urged me to conclude
that the reasons offered at arbitration were nothing more than ex-post facto justifications
on the part of the employer for a decision made in bad faith. Counsel submitted that the
evidence does not disclose any legitimate government objective to justify the differential
treatment. He submitted that no justification was offered why at some point it was
decided ?to de-link AQAs and WGLs?. He reminded the Board that in the preliminary
proceedings the employer had taken the position that the WGLs had not obtained their
Geoscientist 4 status through temporary assignments. This was an attempt to mislead the
Board, in the face of clear evidence, including the employer?s own documents, to the
contrary. He submitted that the employer had subsequently offered justifications which
do not ?stand-up?. The employer had suggested that the WGL job had evolved in the
post-Walkerton years. This was not supported by any documentation. Then it had taken
the position that the distinction between the two groups was that the WGL?s group-led
scientists, while the AQA?s group-led lesser qualified technicians. This, according to
counsel, was also a ex-post facto justification, which is not evidenced in any of the
7
documentation created at the time. In the circumstances he submitted that the Board
should conclude that the employer had acted in bad faith, with or without an anti-union
animus.
The extent of the Board?s jurisdiction to review the exercise of an exclusive management
right
Union counsel took the position that even if the Board concludes that the employer
actions were not tainted by anti-union animus, the grievances should succeed because the
employer had an obligation to reasonably administer the collective agreement, and that
the employer had not done so in the manner it treated the grievors. He relied on the
?Weber doctrine?, a reference to the judgment of the Supreme Court of Canada in Weber
v. Ontario Hydro [1995] 2 S.C.R. 929, and subsequent decisions that applied it. He
submitted that under that doctrine, it was not necessary to ground a grievance on an
explicit provision of the collective agreement. The effect of the Supreme Court decision
is that if a dispute arises expressly or inferentially out of the collective agreement, the
Board has jurisdiction over the matter. And under the Weber doctrine, submitted
counsel, what arises out of the collective agreement is to be interpreted liberally. Counsel
submitted that in these grievances the ultimate dispute is about appropriate pay levels,
and that there is nothing more fundamental in any collective agreement than pay levels.
Therefore, the Board should take jurisdiction over the grievances.
Counsel acknowledged that past GSB jurisprudence had required that the
impugned employer conduct have a direct or inferential impact on some collective
8
agreement right before it can seize jurisdiction. However, counsel submitted that the law
had evolved recently moving away from that approach. He urged me to follow this new
expansive approach to jurisdiction that had evolved out of the Weber line of cases.
Counsel placed particular reliance on the decision of arbitrator Shime in Re Toronto
th
Transit Commission, (2004) 132 L.A.C. (4) 225. He urged me not to follow Re
Belanger et al, 1999-1782 etc. (Harris) because, in his view, it was at variance with the
Supreme Court of Canada decision in Weber.
Counsel submitted that the Board broke new ground in Re Bousquet, 541/90 etc.
(Gorsky), when it held that where the exercise of a management right impacts on a
negotiated collective agreement right, the Board had jurisdiction to review that employer
action, even though the subject matter itself ? in that case training ? was a management
right which was not a bargainable subject. Counsel submitted that it was time for the
Board to ?revisit its law again?, in order to bring it into line with the directions issued by
the Supreme Court of Canada. He submitted that to the extent that the Board decisions
have failed to follow the Weber line of cases they are in manifest error, and should not be
followed.
Counsel for the employer submitted that the Board has had occasion to consider
the Weber doctrine, and had determined that despite Weber, it had no jurisdiction to
enforce a standard of reasonableness in the exercise of an exclusive management right,
unless such exercise impacted directly, or at least indirectly, on a collective agreement
right. Thus, he conceded that if the Board concludes on the basis of the evidence that the
9
employer?s decisions were motivated in whole or in part by the grievors? involvement in
union activity, the Board would have jurisdiction to intervene, because in those
circumstances the employer action would have impacted on the grievors? rights under
article 3.2 to be free from discrimination because of union activity. It was his position
that despite Weber, the Board has no ?stand alone? jurisdiction to review the employer?s
exercise of an exclusive management right for reasonableness. Employer counsel relied
upon a number of decisions of the Board, which explicitly considered the impact of the
?Weber doctrine?. Counsel urged me to reject any notion of a general duty to exercise
management rights reasonably, and that my inquiry should be confined to the union?s
argument based on anti-union animus.
The employer relied on the often cited decision in Re Bousquet, 541/90 (Gorsky),
which has been followed by the Board in numerous subsequent decisions. In Re Ashley
et al, 2001-1700 (Abramsky), at pp. 14-15, the Board summarized the legal principles
established in Re Bousquet et al as follows:
The Board in that case did not adopt a general duty of good faith and
reasonableness in the exercise of management rights. At issue was
management?s denial of a training and development opportunity to an
employee, allegedly because he was francophone. The Employer argued that
since training and development was a function reserved to management under
Section 18(1) of CECBA, the Board had no jurisdiction to hear the grievance.
The Board determined, at p. 67, that ?the Grievor has no statutory right to
grieve because he has been denied a training and development opportunity. ?
Here, the right to raise the subjects of training and development by way of a
grievance has been restricted by means of a clear indication on the part of the
Legislature.?
Nevertheless, the Board also concluded that the employer did not have ?carte
blanche to do what it wishes under the purported exercise of an exclusive
10
management function with respect to training and development.? (p. 58).
Instead, the Board had the right to review the employer?s exercise of its
discretion for good faith and reasonableness because developmental
opportunities impacted an employee?s ability to compete in job competitions
under then Article 4 of the collective Agreement. The Board held at p. 35:
?[T]he 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 a particular
application of such right.? Consequently, under Bousquet, supra, the
jurisdiction of the Board to review the Employer?s exercise of a right reserved
to management is derivative ? it depends on the existence of a provision in the
collective agreement which might be adversely affected by management?s
action.
At p. 16 Vice-Chair Abramsky reiterated:
In Bousquet, supra the Board determined that there is no general requirement
of good faith and reasonableness in the exercise of rights reserved to
management, unless it impacts a right contained in the collective agreement.
In Re Bousquet itself, at pp. 63-64, the Board stated:
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 as 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 decision. 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 above described, need not
be correct.
(Emphasis added)
In Re Boulet et al, 1189/99 (R.M. Brown), the Vice-Chair quoted the above-noted
passage among others, and at p. 12 concluded:
The standard to be applied is not whether the decision was ?correct?, but
rather whether it was made on grounds ?relevant to legitimate government
11
purposes?. In other words, what matters is the nature of the reasons
underlying the decision and not whether those reasons are of sufficient weight
to make the decision appear sound in the eyes of an adjudicator. The
sufficiency of the reasons is for the employer to determine.
In Re Bousquet, the Board also considered the relationship between the rationality
of employer action and good faith. At pp. 61-62 Vice-Chair Gorsky wrote:
The requirement that the exercise of the exclusive function of management
with respect to training and development be carried out in good faith is the
same as the obligation imposed on a deputy minister under s. 22(5) of the
Public Service Act, and for the same reasons. In order to be carried out in
good faith, an employer must have had a genuine intention to carry out a
legitimate government purpose which has the effect of denying an employee a
training or development opportunity.
As held in the Shaw case, at p. 6, if there was simply no evidence as to why a
grievor had been denied a training or development opportunity, this would go
to the reasonableness aspect of the good faith test referred to in Shaw.
If the facts relied upon by an employer in support of development
opportunity for the purpose of achieving a legitimate government objective are
??irrational? on any half-intelligent view of the matter,? this would also go to
the question of good faith. As was noted in Shaw, in examining the
employer?s rationale, the Board should avoid finding the absence of a rational
relationship between the facts and the decision to deny the requested training
or development opportunity unless it concludes that, on the facts, no such
conclusion could have been reached rationally.
As also noted by the Board in Shaw, the rational relationship factor is nearly
synonymous with reasonableness. And reasonableness, in the context of the
case, is a species of good faith. In the case before us, in outlining the good
faith obligations of the Employer, we include the further elements of
reasonableness and a rational relationship between the facts leading to the
making of the decision and the decision itself. Where the Employer cannot be
shown to have denied the Grievor?s requests for reasons which are
?improperly motivated or maliciously intended,? such as his being a
; or because of a desire
francophone; for reasons prohibited by s. 4 of the Code
to impose disguised discipline, the Employer will have satisfied the first aspect
of the good faith test identified in Shaw. As stated in Shaw (at p.5): ?Clearly
the bad faith, if found, must be relatively serious.?
12
Where there is some evidence permitting an objective assessment that the
decision flowed logically from the facts, the Employer will have satisfied the
second aspect of the good faith test (reasonableness).
If the conclusion arrived at by an employer is one that is reasonably possible
based on the last mentioned evidence, then the necessary rational relationship
between the facts and the decision will exist.
From the submissions made by union counsel in chief, I understood him to be
stating that the Bousquet line of Board decisions was outdated in light of the Court?s
directions in Weber. Employer counsel, in response, relied upon several decisions of the
Board that had directly considered the impact of the Weber
line of decisions, as well as
Re Toronto Transit Commission (supra). Based on those authorities, employer counsel
submitted that the law remains unchanged Post-Weber, that the Board has no jurisdiction
to review the employer?s exercise of an exclusive management right unless the Board is
satisfied that such employer action adversely impacted upon a collective agreement right,
directly or indirectly.
In his reply submissions, union counsel clarified that he was not taking the
position that the Board has a ?free standing? jurisdiction to review exercise of
management rights for reasonableness and good faith in the absence of a link to the
collective agreement. He submitted that the effect of Weber and Re Toronto Transit
Commission (supra) is that the Board must now approach more liberally and flexibly
when considering whether or not a dispute is linked to the collective agreement. In other
words, the test for determining whether a dispute ?arises out of the collective agreement?
has changed since Weber
. Now the linkage need not be direct but may be inferred, as
arbitrator Shime did in Re Toronto Transit Commission (supra). Counsel submitted that
13
the present grievances, when viewed from this new perspective, are linked to the
collective agreement in two ways. First, the employer action denied the grievors their
right under article 3.2 to be free from discrimination because of their union activity. In
addition counsel submitted that, in its substance, the dispute that led to the grievances had
to do with a ?pay dispute?. He contended that nothing could be more fundamental in a
collective agreement than the appropriate pay levels of groups of employees. Therefore
the grievances are linked to the wage provisions of the collective agreement, and the
Board possessed jurisdiction on that basis also.
The issue then is what was the effect, if any, of the ?Weber doctrine? on this
Grievance Settlement Board jurisprudence. A number of decisions have addressed this.
In Re Belanger et al, 1999-1782 etc (Harris), the Board considered the union?s
submission ?that there is a notion of contract administration that does indeed support a
right to advance a breach of the management rights article alone?. The union had relied
on, inter alia, the Shime award in Toronto Transit Commission. At pp. 5-7, Vice-Chair
Harris wrote:
Arbitrator Shime drew upon the comments of the Ontario Court of Appeal in
Metropolitan Toronto (Municipality) v. C.U.P.E., Local 43 (1990), 69 D.L.R.
th
(4 ) 268 (Ont. C.A.) That case involved the imposition of a rule by the
employer that required ambulance drivers to use their ?lights and sirens? on all
?emergency? calls. Tarnopolsky J.A. summarized the issues before the Court
at page 270 as follows:
The issues in this appeal are whether the Divisional Court erred in
holding that the Board?s decision should be quashed on the ground
that the Board fell into reviewable error, in holding that:
14
(1)the grievances in the instant case were arbitrable in the absence of
actual discipline, and
(2)the Employer was required to act reasonably in promulgating
rules with disciplinary consequences.
It can be readily seen that that case did not involve an allegation of a breach of
only the management rights clause. The unjust discipline article was fully
engaged by the ?lights and sirens? rule.
In his reasons, Arbitrator Shime reviewed a number of authorities and
concluded as follows:
Moreover, for reasons which are explored below, I am unable to
conclude that there are substantive reasons for prohibiting the
implication of normative terms to a management rights clause, while
at the same time allowing implied conditions to be imposed on the
union (Polymer) and the employees (O?Leary). In that respect, I feel
bound by the approach taken by the Supreme Court of Canada.
Having regard to the foregoing, it is my view, that there are a number
of alternate grounds for rejecting the Commission?s objection to
jurisdiction. . . .
Arbitrator Shime then went on to consider the express terms of the collective
agreement and laws of general application and to consider the implied
conditions of the collective agreement, as the basis for examining the
reasonableness of management actions regarding the psychological harassment
of an employee by a supervisor:
First ? I determine it is an implied term of the collective agreement
that the work of a supervisor must be exercised in a non-abusive,
non-harassing manner.
Second, adopting the approach of Tarnopolsky J.A. to consider the
agreement in a holistic way, I now turn to consider the collective
agreement. I determine that Section 39 ? implies the management
rights clause be exercised with a view to the safety of employees.
Accordingly, I determine that a supervisor who abuses her/his
authority is acting contrary to an implied term in the management
15
rights clause that requires the supervisor to ensure the safety of an
employee.
I also determine ? a supervisor who acts in a manner that
jeopardizes the psychological safety of the employee is acting
contrary to the collective agreement.
Fourth, as I have indicated earlier, it is my respectful view that the
decision of Tarnopolsky J.A. either modifies or supercedes the earlier
decision of Houlden J.A. in [Metropolitan Toronto Board of
Commissioners of Police and MTPA (1981), 124 D.L.R. (3ed) 684
(C.A.)]?
And finally, I am of the view that a supervisor who abuses or harasses
employees is acting in bad faith ?
In my view, the reasons of Arbitrator Shime in TTC V. ATU,Local 113, supra,
are in accordance with the reasons of Bastarache J. for the Supreme Court of
Canada in Regina Police Assn. Inc. v. Regina (City) Board of Police
Commissioners, [2000] I S.C.R. 360 at paragraph 25:
25.To determine whether a dispute arises out of the collective
agreement, we must therefore consider two elements: the nature of
the dispute and the ambit of the collective agreement. In
considering the nature of the dispute, the goal is to determine its
essential character. This determination must proceed on the basis of
the facts surrounding the dispute between the parties, and not on the
basis of how the legal issues may be framed: See Weber, supra at
para. 43. Simply, the decision-maker must determine whether
having examined the factual context of the dispute, its essential
character concerns a subject matter that is covered by the collective
agreement. Upon determining the essential character of the dispute,
the decision-maker must examine the provisions of the collective
agreement to determine whether it contemplates such factual
situations. It is clear that the collective agreement need not provide
for the subject matter of the dispute explicitly. If the essential
character of the dispute arises either explicitly, or implicitly, from
the interpretation,, application, administration or violation of the
collective agreement, the dispute is within the sole jurisdiction of an
16
arbitrator to decide: see, e.g. Weber, at para. 54; New Brunswick v.
O?Leary, supra, at para. 6.
Not surprisingly, Arbitrator Shime found that by implication the subject matter
of the TTC/ATU collective agreement includes on-the-job harassment of an
employee by a supervisor. The advance in the law represented by Arbitrator
Shime?s case is with respect to the remedies awarded.
In Re Belanger, the union had also relied on Re Toronto Transit Commission,
th
(1999), 82 L.A.C. (4) 335 (Harris). Vice-Chair Harris observed at p. 7 as follows:
As to the case of TTC V. ATU, Local 113 (Harris), supra, it dealt with the
fetter on management?s right to discharge a probationary employee, a clear
link into a provision of the collective agreement. That was not a grievance
against a management action outside of the explicit or implicit subject matters
of the collective agreement. It was a discipline case.
With regard to the grievances before him, Vice-Chair Harris held at p. 7:
The instant grievances are, in their essential character, about whether the
employer was required to provide uniforms to C.O.?s at Cecil Facer between
1999 and 2002. It is common ground that there was no explicit provision in
the collective agreement addressing that subject matter. Further, there is no
basis upon which such a provision is implied, given the absence of any
particulars, or claim in the grievance, that might provide any rationale for
embarking upon such an enquiry. Accordingly the Board is without
jurisdiction to consider these grievances as they relate to the provision of
uniforms, and they are dismissed to that extent.
In Re Andersen et al, 1093/01 (R.M. Brown), the Board had occasion to
directly consider the impact of Weber on the jurisdiction of the Grievance
Settlement Board. At p. 2, the nature of the grievance was set out as follows:
This group grievance was filed on behalf of seven correctional
officers employed at the Rideau Correctional Centre. The grievors
17
claimed compensation for vandalism to their vehicles which occurred
in the parking lot at their workplace. The union contended that the
damage was done by persons loitering in the parking lot while
awaiting admission to serve intermittent sentences. According to this
line of argument, the employer did not take reasonable precautions to
protect the automobiles in the lot.
Vice-Chair Brown was called upon to determine his jurisdiction in light of Weber.
In doing so he undertook the following analysis of the Supreme Court of Canada
decision.
The scenario in Weber is succinctly summarized in the judgement of the
Supreme Court:
Mr. Weber was employed by Ontario Hydro. As a result of back problems, he
took an extended leave of absence. Hydro paid him the sick benefits stipulated
by the collective agreement. As time passed, Hydro began to suspect that Mr.
Weber was malingering. It hired private investigators to investigate its
concerns. The investigators came on Mr. Weber's property. Pretending they
were someone else, they gained entry to his home. As a result of the
information it obtained, Hydro suspended Mr. Weber for abusing his sick
leave benefits.
Mr. Weber responded by taking the matter to his union, which filed grievances
against Hydro on August 28, 1989. One of the grievances alleged that Hydro's
hiring of the private investigators violated the terms of the collective
agreement. Among other things, the union asked the arbitrator to require
Hydro to give an undertaking to discontinue using private security firms to
monitor health absences, and to pay Mr. Weber and his family damages for
mental anguish and suffering arising out of the surveillance. The arbitration
commenced on March 8, 1990, and was subsequently settled.
In the meantime, on December 27, 1989, Mr. Weber commenced a court
action based on tort and breach of his Charter rights, claiming damages for the
surveillance. The torts alleged were trespass, nuisance, deceit, and invasion of
privacy. Weber's claims under the Canadian Charter of Rights and Freedoms
were for breaches of his rights under ss. 7 and 8. (page 949)
18
Ontario Hydro contended the courts could not hear Weber?s suit
because the matters about which he complained fell within the
jurisdiction of an arbitrator.
Speaking for the Court, Madame Justice McLachlin considered
the sorts of disputes which only an arbitrator may adjudicate. She
quoted with approval the following passage from the judgement
of Mr. Justice Estey in St Anne Nackawic Pulp & Paper Co. v.
Canadian Paper Workers Union, [1986] S.C.R. 704:
The collective agreement establishes the broad parameters
of the relationship between the employer and his
employees. This relationship is properly regulated through
arbitration and it would, in general, subvert both the
relationship and the statutory scheme under which it arises
to hold that matters addressed and governed by the
collective agreement may nevertheless be the subject of
actions in the courts at colon law ?. The more modern
approach is to consider that labour relations legislation
provides a code governing all aspects of labour relations,
and that it would offend the legislative scheme to permit the
parties to a collective agreement, or the employees on
whose behalf it was negotiated, to have recourse to the
ordinary courts which are in the circumstances a duplicative
forum t which the legislature has not assigned these tasks.
(page 718-719; emphasis added)
According to this ruling, matters ?addressed and governed? by a
collective agreement? fall exclusively within the scope of
arbitration.
As in St. Ann Nackawic, the Supreme Court in Weber based its
decision on the legislative requirement that disputes arising under
a collective agreement be resolved by arbitration:
Section 45(1) of the Ontario Labour Relations Act, like the
[statutory] provision under consideration in St. Anne
Nackawic, refers to ?all differences between the parties
arising from the interpretation, application, administration
or alleged violation of the agreement.? The Ontario statute
19
makes arbitration the only available remedy for such
differences ?.
It is important that disputes be resolved quickly and
economically, with a minimum of disruption to the parties
and the economy. To permit concurrent court actions
whenever it can be said that the cause of action stands
independent of the collective agreement undermines this
goal, as this Court noted in St. Anne Nackawic. (page 954;
emphasis added)
Elaborating on the test to be applied in determining whether a
particular controversy is within the sole jurisdiction of
arbitration, the Supreme Court stated:
[T]he analysis of whether a matter falls within the exclusive arbitration
clause must proceed on the basis of the facts surrounding the dispute
between the parties, not on the basis of the legal issues which may be
framed.The issue is not whether the action, defined legally, is
independent of the collective agreement, but rather whether the dispute
is one "arising under [the] collective agreement". (page 953; emphasis
added)
Having emphasized what matters is the factual basis of a
conflict, not the legal labels applied to it, the Court went on to
address the proper way to determine whether a dispute belongs
in arbitration:
This approach does not preclude all actions in the courts between
employer and employee. Only disputes which expressly or inferentially
arise out of the collective agreement are foreclosed to the courts ...
This does not mean that the arbitrator will consider separate "cases" of
tort, contract or Charter. Rather, in dealing with the dispute under the
collective agreement and fashioning an appropriate remedy, the
arbitrator will have regard to whether the breach of the collective
agreement also constitutes a breach of a common law duty, or of the
Charter. (pages 756-758)
The Court directed labour arbitrators to adjudicate controversies ?which
expressly or inferentially arise out of the collective agreement? and to consider
?whether the breach of the collective agreement also constitutes a breach of a
20
common law duty, or of the Charter?. Arbitrators were told not to ?consider
separate ?cases? of tort, contract or Charter.?
The union in Re Andersen had taken the position that the grievance about property
damage arises ?inferentially? from articles 2.1 and 9.1 of the collective agreement, within
the meaning of the ruling in Weber. With regard to the management rights clause article
2.1, counsel had submitted that the damage to the grievors? vehicles resulted from the
employer?s improper decisions about staffing levels, the kinds and location of security
equipment, management?s failure to enforce rules concerning the consumption of alcohol
by inmates, and where they park their own vehicles. Union counsel had submitted that
the same improper decisions and failures on the part of management lead to the
conclusion that the dispute arises ?inferentially? under the health and safety provision
article 9.1.
Vice-Chair Brown reviewed the case law (pp. 6-9):
Counsel for the employer relies upon Abbott Laboratories Ltd. and Retail,
Wholesale Canada (1998), 74 L.A.C. (4th) 331 (R.M. Brown) where I
commented on the meaning of the phrase ?expressly or inferentially? in
Weber:
[T]he Supreme Court said the jurisdiction of an arbitrator encompasses
disputes arising from the express or implied terms of a collective
agreement. This is how the Court?s reference to ?expressly or
inferentially? was interpreted by Mr. Hope in Canada Safeway. ... I
agree with his interpretation. (page 347; emphasis added)
This understanding of Webersubsequently was adopted by the Supreme Court
of Canada as well as by the Ontario Court of Appeal. Mr. Justice Bastarache
spoke for the Supreme Court in Board of Commissioners of the City of Regina
v. Regina Police Association Inc., [2000] 1 S.C.R. 360:
21
Simply, the decision-maker must determine whether, having examined
the factual context of the dispute, its essential character concerns a
subject matter that is covered by the collective agreement. ... It is clear
that the collective agreement need not provide for the subject matter of
the dispute explicitly. If the essential character of the dispute arises
either explicitly, or implicitly, from the interpretation, application,
administration or violation of the collective agreement, the dispute is
within the sole jurisdiction of an arbitrator to decide. (page 373)
To say that the subject of a dispute is ?covered by the collective agreement?
and arises from it ?either explicitly or implicitly? is another way of saying the
matter is governed by an express or implied term of that agreement.
In London Life Insurance Co. v. Dubreuil Brothers Employees Assoc.
(2000), 49 O.R. (3d) 766, the Court of Appeal explained the ruling in Weber
by using the precise terminology of implied rights under a collective
agreement. Mr. Justice Goudge wrote:
Both Weber andRegina Police Association Inc. provide that the
arbitrator?s exclusive jurisdiction extends to disputes that arise not just
expressly, but also inferentially out of the collective agreement. Those
that arise implicitly must, nonetheless, be rooted in that agreement.
New Brunswick v. O?Leary, [1995] 2 S.R.C. 967 is such a case. There,
McLachlin J. found that the collective agreement conferred an implied
right on the employer to claim for breach of the employee?s express
obligation to ensure the safety and dependability of the employer?s
property and equipment. Hence, where the essence of the dispute was
the employee?s failure to preserve the employer?s property and
equipment, it was found to fall within the exclusive jurisdiction of the
arbitrator. It was the implied right of the employer contained in the
collective agreement that made the jurisdictional difference. (page
773; emphasis added)
The Court of Appeal limited arbitral jurisdiction to matters governed by the
express or implied terms of a collective agreement and stated this limitation is
consistent with the outcome in O?Leary.
This conception of the role of arbitration is also consistent with the outcome
inWeber. Addressing the facts in that case, Madame Justice McLachlin wrote:
The [employer?s] act of hiring private investigators who used
deception to enter [Weber?s] family home and report on him does not,
he contends, relate to the interpretation, application or administration
of the collective agreement. ...
22
Isolated from the collective agreement, the conduct complained of in
this case might well be argued to fall outside the normal scope of
employer-employee relations. However, placed in the context of that
agreement, the picture changes. The provisions of the agreement are
broad, and expressly purport to regulate the conduct at the heart of this
dispute.
Article 2.2 of the collective agreement extends the grievance
procedure to "[a]ny allegation that an employee has been subjected to
unfair treatment or any dispute arising out of the content of this
Agreement. . .". The dispute in this case arose out of the content of the
Agreement. Item 13.0 of Part A of the Agreement provides that the
"benefits of the Ontario Hydro Sick Leave Plan ... shall be considered
as part of this Agreement". ... Under the plan, Hydro had the right to
decide what benefits the employee would receive, subject to the
employee's right to grieve the decision. In the course of making such a
decision, Hydro is alleged to have acted improperly. That allegation
would appear to fall within the phrase "unfair treatment or any dispute
arising out of the content of [the] Agreement" within Article 2.2. (page
963-965; emphasis added)
In short, the Supreme Court characterized management?s impugned treatment
of Mr. Weber as being ?expressly? regulated by specific articles in the
collective agreement. Based upon this characterization, the Court held
Weber?s claim fell within the exclusive jurisdiction of an arbitrator.
Vice-Chair Brown then wrote as follows at pp. 9-11 on the impact of Weber on an
arbitrator?s jurisdiction:
The foregoing review of the case law leads me to conclude that the exclusive
jurisdiction of arbitration includes all controversies with a factual basis
governed by the express or implied terms of a collective agreement but
extends no further.
The Supreme Court?s decision in Weberdid not broaden the range of disputes
coming within the scope of arbitration, even though the Court curtailed the
range of disputes judges may decide. This point can be illustrated by
considering two types of conflicts between an employer and employees
governed by a collective agreement. In the first, the factual basis of the dispute
gives rise to an alleged violation of some common-law right but not to any
23
allegation that the collective agreement has been breached. The courts had
exclusive jurisdiction over matters of this sort before Weber and continue to
have it after. The Supreme Court?s decision does not give arbitrators any role
in this context. The impact of Weber is limited to another sort of controversy,
one where the factual basis of the dispute gives rise to both an alleged
contravention of the collective agreement and an allegation of some common-
law wrong. In this scenario before Weber, an arbitrator had authority to
interpret and apply the express and implied terms of the agreement, and a
court could entertain an action at common law based on the same facts. The
Supreme Court?s decision precludes a judge from playing any part in the
resolution of such a conflict and relegates it to the exclusive jurisdiction of
arbitration. Now all legal issues arising from a common set of facts must be
adjudicated in the single forum of arbitration. Weberdoes not widen the range
of disputes which may be arbitrated, but it does alter in two ways the role of
arbitrators when dealing with the sorts of controversies with which they
always have dealt. The Supreme Court?s decision gives arbitrators a larger set
of legal tools to use in fashioning resolutions to these problems. For example,
an arbitrator may award damages for defamation based upon facts which also
constitute a violation of a collective agreement. (See Bhaduria and Toronto
Board of Education, [1999] O.J. 582 (C. A.) holding only an arbitrator could
entertain a claim for defamation based upon allegations which resulted in a
teacher?s termination.) The second impact of Weberon the role of arbitrators
is less obvious than the first but just as significant. By empowering arbitrators
to apply the common law, the Court assigned to them the task of determining
to what extent this judge-made law has been displaced or modified by a
collective agreement. In a case like O?Leary, an arbitrator will be the one to
decide whether a contractual prohibition against discipline without just cause
modifies or negates an employer?s common law right to be compensated for a
loss caused by the negligence of an employee.
Turning to the matter before him, Vice-Chair Brown quoted the relevant portion of
the management rights clause article 2.1, and concluded as follows at pp. 11-13:
Counsel for the union submitted the employer contravened this article by
failing to enforce existing ?rules and regulations? in a manner which would
have prevented the property damage for which compensation is claimed.
Article 2.1 was mentioned by counsel during her opening statement but she
did not return to it in argument. The essence of the management rights
article is an acknowledgement that ?the right and authority? to do certain
things is ?vested exclusively? in the employer, so long as the doing of these
24
things does not violate any other provision of the collective agreement. In my
view, there is nothing in the language of this article to suggest it places the
employer under any sort of positive obligation to protect the property of
employees.
The union relies primarily upon article 9.1 dealing with health and safety
which states:
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.
This article is identical to the contract provision applied in two decisions of
this Board upon which the union relies: OPSEU (Gonneau) and Ministry of
Attorney General, File 227/81, decision dated February 1, 1982, (Teplitsky);
and OPSEU (Kelly) and Ministry of Correctional Services, File 371/84,
decision dated April 19, 1987 (Saltman). ...
In short, as noted by counsel for the employer in her written submission,
compensation for property damage was awarded in Gonneau and Kelly
because it flowed directly from carelessness which violated the collective
agreement by placing the grievor at risk of bodily injury.
The language of article 9.1 leaves no doubt that it creates an obligation to
protect employees. The absence of any reference to property indicates this
article does not place the employer under an independent obligation to protect
their belongings. ... To recover compensation for damage to an employee?s
property, the union must demonstrate the loss resulted from carelessness
which contravened the agreement by placing the employee in peril. In a
scenario of this sort, article 9.1 is violated and, according to the decisions in
Gonneau and Kelly, the employee is entitled to compensation for property
damage flowing directly from such a violation.
Turning to the case at hand, I agree with counsel for the employer that the
facts alleged are significantly different than the scenario addressed in Gonneau
and Kelly. Here the union did not suggest the seven grievors themselves were
endangered by any failure on the employer?s part to take reasonable
precautions in the parking lot. Indeed, there was no suggestion that any
employee was in the vicinity of the lot when the vandals were there. Rather,
25
the union alleges only that adequate measures were not implemented to protect
the grievors? automobiles. Any failure to provide appropriate safeguards for
property, standing alone, could not constitute a violation of article 9.1. (pages
3 to 6)
My jurisdiction does not extend beyond controversies with a factual basis
governed by the express or implied terms of the collective agreement. As the
interim award held the facts alleged by the grievors would not constitute a
breach of the agreement, I am without jurisdiction to entertain their grievance.
It is dismissed.
I adopt the reasoning in Re Andersen. It sets out correctly the impact of the
Weber ruling on the jurisdiction of an arbitrator. Therefore, this Board?s jurisdiction
remains restricted to matters arising either explicitly or implicitly from the collective
agreement. In other words, the matter must be governed by an express or implied term of
the collective agreement. As I have noted, union counsel appeared to concede this
limitation in his reply submissions when he clarified that he was not asserting that the
Board has a ?free standing? jurisdiction to review the exercise of management rights for
reasonableness. He submitted, however, that the effect of Weber was to make it easier
for a party to establish the required link to the collective agreement by directing
arbitrators to be more liberal and flexible in recognizing that required link. I find no such
direction by the Supreme Court of Canada in Weber. To the contrary, as observed in Re
Andersen (supra), ?the Supreme Court?s decision in Weber did not broaden the scope of
arbitration, even though the Court curtailed the range of disputes judges may decide?
(p.9). However, it did broaden the jurisdiction of an arbitrator, once an arbitrator has
determined that a dispute arises from the collective agreement, either explicitly or
26
implicitly. (See Re Andersen at p. 10 for a discussion of the manner in which this
jurisdiction has been broadened).
In the instant case, the union has asserted that the employer?s denial of temporary
assignments as Geoscientist 4 to the grievors contravenes an explicit provision of the
collective agreement, i.e. article 3.2. Employer counsel has conceded that if the
evidence supports such a finding, the Board would have authority to intervene.
Therefore, in that regard the task of the Board is clear. It has to determine, on the basis of
the evidence whether the employer?s exercise of its management rights was tainted in
whole or in part by an anti-union animus. The union also claims, however, that the
employer?s action inferentially contravenes the wage provisions of the collective
agreement, and that even if no anti-union animus is found, the Board would have
jurisdiction to intervene on that basis. The Board must, therefore, also determine whether
the instant grievances arise inferentially out of a dispute about the wage provisions of the
collective agreement.
Do the instant grievances arise out of the wage provisions of the collective agreement?
The union argued that the ultimate reason that caused the grievors to file their
grievances was the pay differential between WGLs and the AQAs that resulted from the
employer?s exercise of management rights. The union does not contend that the
employer has failed to pay the grievors wages in accordance with the wage schedules set
out in the collective agreement. The evidence is undisputed to the contrary. The
contention in essence is that, if the employer had exercised its management rights
27
differently by granting the same temporary assignments to the AQAs as accorded to
WGLs, the grievors would have received more in wages. The union went to great lengths
in an attempt to convince the Board that WGLs and AQAs had similar duties and
responsibilities. The contention in effect was that equals should be treated equally, and
that equal work should merit equal pay. It was the union?s position that to pay the AQAs
less than WGLs was unfair and improper. The union submits that the employer?s action
also resulted in another group of employees, water scientists, receiving increased pay,
which brought water scientists into a position of pay parity with the AQAs. This,
according to the union is also unfair and improper, because it resulted in the water
scientists being paid wages equal to that paid to AQAs, even though water scientist
performed work of lesser value.
In Re Cherwonogrodzky et al, 2002-0994 etc. (Gray) a group of tax auditors
grieved the employer?s refusal to reimburse the annual fees they paid to maintain
membership in a professional accountants? organizations. It was alleged that the
employer had thereby breached an implied obligation to exercise management rights in a
manner that is reasonable, and not arbitrary, discriminatory or in bad faith. The employer
argued that since its decision did not adversely impact any right under the collective
agreement, the Board had no jurisdiction to review it for reasonableness. The union
responded that the wage provisions of the collective agreement can be affected by a
decision whether to reimburse membership fees, because reimbursement would be akin to
a wage increase. At pp. 16-17, the Board held:
28
[44] It does not follow that the Board has jurisdiction on that basis to review
these decisions not to reimburse dues, particularly dues of a sort that have
never before been reimbursed. Such a decision cannot be characterized as
inconsistent with compensation provisions which make no provision for
reimbursement. That is not to say that a decision not to reimburse could never
be the subject of a grievance. It could if, for example, if it was alleged that the
decision amounted to discrimination on a basis prohibited by Article 3 of the
collective agreement or by the Ontario Human Rights Code. That is not
alleged here. The actual exercise of reserved managerial rights complained of
in these grievances does not interfere with the compensation provision of the
agreement.
[45] In short, there is no provision of the collective agreement that the
employer is alleged to have breached by refusing to reimburse the grievors?
professional dues, and no provision of the collective agreement capable of
being adversely impacted by that exercise of management?s discretion.
Accordingly, I agree with the employer that its decision not to reimburse the
grievors? dues in professional accounts? organizations is not subject to review
by this Board for reasonableness.
In Re Lesieur et al, 2002-1756 (Briggs), a post Weber decision, the union had
argued that the dispute was linked to the collective agreement through its compensation
provisions. The Board reviewed the Board?s case law on the meaning and impact of the
Weber ruling on its jurisdiction, and at pp. 16-17 wrote:
As stated from the outset, the Union?s position is twofold. First the
Employer?s decision to oblige the grievors to become members of and pay
dues to APGO was a misapplication of the Act and constitutes a violation of
the collective agreement because it has significant impact on the grievors?
compensations and their terms of employment. Second, if the grievors are
required to be members the Employer must pay for the fees because it has
derived a benefit.
After much consideration I am of the view that the Employer?s preliminary
objection must be upheld. According to the Crown Employees? Collective
Bargaining Act, in order for this Board to take jurisdiction of a matter there
must exist a dispute between the parties that constitutes a difference between
them ?rising from the interpretation, application, administration or alleged
29
contravention of the [collective] agreement?. The Union contended that the
Management?s Rights provision has been violated and the grievances suggest
Re
that the Employer ?misused? its rights. It think not. As set out in
Bousquet
(supra)
, a restriction of the ?unfettered exercise of a management
right? would require the negation or undue limitation of the application of a
specific provision in the collective agreement. There is no provision in the
collective agreement that has been negated or unduly limited. While the
Union might suggest that the compensation provisions are affected, this Board
has previously determined that there is no violation of the compensation
provisions when employees are required to pay dues to professional
associations.
In Re May et al, 2001-1151 (Abramsky), the Board had before it 193 individual
grievances which alleged as follows:
I grieve that management violated, but not limited to Art. 2, Art. 6 and the
correctional salary schedule of the collective agreement by providing unequal
pay for the same work.
In Re May, the employer had invited correctional officers at the Vanier and
Maplehurst correctional institutions to apply for temporary assignments to the Toronto
East Detention Centre and the Don Jail, to address staffing pressures at the latter
institutions. The temporary reassignments carried with it compensation in addition to the
collective agreement entitlement. The grievors had not applied for the temporary
reassignments, and continued to be compensated in accordance with the collective
agreement. At p.5 the Board set out the employer?s position:
The Employer raised a preliminary issue in regard to the grievor?s ability to
grieve about compensation paid to other employees. It asserts that the
grievors? have no individual claim since it is undisputed that they were paid in
accordance with the collective agreement. It asserts that they may not bring a
?me too? claim when they have suffered no loss or had any of their rights
violated. To rule otherwise, the Employer asserts, would allow employees to
challenge actions that the Employer has made in relation to other employees.
30
It asserts that this would be inconsistent with GSB case law which requires
that a grievor be materially affected by the Employer?s action.
Article 6, which the union relied upon, was the job posting provision. It suffices
to note that the Board concluded that there was no violation of that provision. Therefore,
the remaining issue was whether the Board had jurisdiction to review the employer?s
exercise of management rights under article 2. The employer argued that ?there can be
no independent violation of article 2, - that any claim that the employer is not acting
fairly must be in relation to rights under the collective agreement?.
The union?s response to this preliminary objection is set out at p. 7 as follows:
It claims that one of the fundamental purposes of a collective bargaining
agreement is to ensure consistency in compensation ? equal pay for equal
work. Where the Employer pays other employees more for doing the same
work, it asserts that this gives rise to an individual claim under the collective
agreement.
At pp. 8-10, the Board held:
Upon careful consideration of the facts and case law, I conclude that the
grievors may not raise a claim concerning the wages or compensation paid to
other employees. The case law is clear that an employee ?should be able to
grieve any employer conduct which affects him/her in a material way and
which he/she feels is in contravention of the collective agreement?. OPSEU
(ARLENE Hawley) and Ministry of Natural Resources, supra at p. 5. Or, put
differently, an individual ?cannot pursue a grievance if the individual is not
directly affected by circumstances giving rise to the grievance.? OPSEU
(Meades) and Ministry of Correctional Services, supra at p. 7.
In OPSEU (Anthony et al.) and Ministry of Labour, supra, a similar situation
arose. In that case, among other claims, three individual grievors alleged that
two other employees, with substantially less seniority, had been unfairly given
merit increases which resulted in their being paid the same as the grievors.
The Employer moved to dismiss these claims asserting that the Employer?s
31
actions did not discriminate against the grievors and that they had not been
detrimentally impacted by the Employer?s actions. The Union claimed that
the Board had jurisdiction to determine whether the administration of the pay
provisions of the collective agreement was done in a fair and equitable
manner, free from arbitrariness and bad faith. It claimed that the salary
treatment of the two favoured individuals created an invidious situation in
which employees with substantially different years of experience were being
paid the same amount for the work in question.
In dismissing the grievances, the Board stated as follows at pp. 7-8:
It is easy to appreciate the grievors? frustration and their feelings of
unfairness in relation to the April 18, 2000 memorandum of
agreement. The terms of that agreement, in light of the number of
steps in their former pay scale, combined with the impact of the
Social Contract Act, created, as the Union asserts, ?significant
anomalies?. It is also easy to appreciate their frustration in regard
to the merit increases received by Ms. McCourt and Mr. Hughes.
Unfortunately, despite the sympathy I feel for the grievors, I find
that this is not a case over which the Board has jurisdiction.
The problem is that the Union has not alleged any unfairness or
discrimination in regard to the Employer?s actions in relation to the
grievors. It has alleged improper action in relation to two other
individuals ? Mr. Hughes and Ms. McCourt ? which is asserts
resulted in an inequitable situation. But for the Board to have
jurisdiction, an inequitable situation is not enough ?
The Board?s jurisdiction depends on an allegation that the
Employer?s action interfered with the grievors? rights under the
collective agreement. In this case, those elements are missing.
There is no allegation that the Employer improperly denied the
grievors a merit pay increase ? only that the Employer improperly
granted it to Hughes and McCourt. Nor is there an allegation that
the Employer?s actions impacted any rights of the grievors? under
the collective agreement.
The same reasoning applies here in terms of the grievors? claim pertaining to
?the correctional salary schedule of the collective agreement by providing
unequal pay for the same work?. It is undisputed that the grievors were paid
in accordance with the collective agreement. Their claim is that the Employer
32
paid six other employees ? the ones who were reassigned to the Toronto East
Detention Centre ? more. Although this may have created an inequity, it does
not give rise to claim or difference that directly affects the grievors. As
established in OPSEU (Anthony et al.), supra, an individual may not grieve the
Employer?s actions in regard to the compensation of other employees.
. . .
As to the claim that the Employer violated Article 2 in its actions, I must agree
with the Employer that, standing alone, there is no independent claim that may
be made under Article 2. It must be tied to the exercise of some right under
the collective agreement. OPSEU (D?Silva) and Ministry of Environment,
supra; OPSEU (Anthony et al.) and Ministry of Labour, supra.
The union in the instant case also did not dispute that the grievors were paid in
accordance with the wage schedules in the collective agreement. The argument was
essentially one of ?equal pay for equal work?, with the additional grounds that pay parity
between the grievors and WGLs had existed historically. For purposes of this decision, I
shall assume without finding, that the grievors perform equal work as the WGLs did.
There is no dispute that the WGLs and AQAs had historically enjoyed pay parity, and
that this parity ended as a result of the temporary assignments received by the WGL?s.
Union counsel attempted to distinguish the present case from cases such as Re
Anthony (supra) which had held that the grievor?s were not entitled to grieve about
favourable treatment of others, where the grievors? collective agreement rights have not
been affected. Counsel submitted that the grievors were not grieving the temporary
assignments given to WGLs. Their complaint is that they were denied similar temporary
assignments. I find that to be a distinction without a difference. However characterized,
the claim is that equals should be treated equally. It is the same kind of ?me too? claim
33
referred to in Re May. As in the cases reviewed, such a claim cannot be sustained in the
absence of evidence that some collective agreement right of the grievors had been
affected adversely by the manner the employer treated the WGLs. There is no question
that the grievors are deeply disappointed. They believe that they are equally qualified,
and perform the same work as the WGLS. They also believe that they are more qualified
and perform more complex duties and responsibilities than water scientists. Therefore, it
is not difficult to understand why they feel aggrieved that there is an inequity.
Nevertheless, assuming that there is that inequity in pay among the groups of employees,
that does not form a basis for the Board to intervene. That is a matter that may be
addressed through collective bargaining. The employer action has not adversely affected,
explicitly or inferentially, any entitlement the grievors have under the pay provisions of
the collective agreement. I have not been directed to any collective agreement provision
or legislation which could be said to mandate parity in pay between WGLs and AQAs, or
a notion of equal pay for equal pay that could possibly arise in these circumstances. The
pay provisions of the collective agreement certainly do not include such principles, either
explicitly or inferentially. It is true, as counsel submitted, that the grievances are
ultimately about the pay entitlement of the grievors. That however, is not a sufficient
basis to find that the grievors have been adversely affected with respect to their rights
under the collective agreement. The undisputed fact is that the employer had fully
complied with the pay provisions of the collective agreement with respect to all of its
employees including the grievors.
The parties have, in article 2 reserved certain functions as exclusive management
rights. Any time the employer exercises a management right, there is the potential that it
34
may have a bearing on the earnings of employees. However, provided the employees?
entitlement under the collective agreement is honored, and provided the employer does
not act contrary to any other provision of the collective agreement or law, the employer is
entitled to act. For example, the employer may decide to increase its staffing
complement in the exercise of its management rights. That decision may have the result
of reducing the overtime opportunities the existing employees had previously enjoyed.
That results in reduced earnings for them. Does that fact provide the Board the authority
to review the reasonableness of the employer?s decision to increase staffing levels?
Could it be said that the employees? rights under the pay provisions of the collective
agreement have been adversely affected? The answer must be in the negative. There is
no question that the grievors would have received greater pay if the employer had
exercised its management rights differently by according the temporary assignments to
both groups. That however, is not a sufficient link to the pay provisions of the collective
agreement, so as to confer jurisdiction on the Board to review the employer?s actions for
reasonableness or fairness.
The employer offered its rationale for the decision to temporarily assign the
WGLs. Whether the reasoning of the employer was proper is not for this Board to
determine. As the decisions I have cited above have held, the employer, ?need not be
correct?. Nor does it matter whether the employer?s reasons ?are of sufficient weight to
make the decision appear sound in the eyes of an adjudicator. The sufficiency of the
reasons is for the employer to determine.? As long as the employer was pursuing a
business or operational objective, and not motivated by improper considerations, (such as
35
a desire to circumvent a provision of the collective agreement or legislation), the Board
cannot intervene, even if it is convinced that the employer action was inefficient or
th
unfair. As I held in Re Dhanju, (2007) 158 L.A.C. (4) 32, as long as I believe the
reasoning offered by the employer, I am not entitled to intervene.
In the present case I have no basis to conclude that the reasons offered by the
employer are an ex post facto fabrications, as the union asserts. There is ample evidence
in the documentation that there was a serious concern about the employer?s inability to
attract/retain qualified scientists on the water side. The Board heard evidence that on the
thth
water side the employer was forced to hire candidates who ranked 4 or 5 in job
competitions because the higher ranking candidates would not accept job offers. The
evidence is that wages was a major reason for this hiring /retention problem. There were
no similar concerns with respect to the air side of the operations. The foregoing was not
disputed. Even the union?s own witnesses confirmed that only the water side experienced
this problem of attracting and retaining of qualified staff. Moreover, the evidence is to
the effect that as a result of the Walkerton incident, the employer?s water programs
came under greater scrutiny and was under pressure to enhance the quality of its services.
In light of all of this, there is no sufficient basis for me to disbelieve the employer?s
reasons for treating the WGLs (as well as the water scientists) more favourably than the
AQAs. Therefore, I conclude that the Board has no jurisdiction to intervene, subject to
the determination of the union?s alternate position based on anti-union animus.
36
Anti-Union Animus
The onus is on the union to establish that the employer?s decision not to
temporarily assign the grievors as Geoscientist 4, was tainted by anti-union animus.
Vice-Chair Briggs in Re Kerna, 2002-0944 observed at p. 38 that ?? the onus was on the
union to establish anti-union animus. It has long been established that clear and cogent
evidence is needed for such a finding ??. Counsel for the union submitted that in
this regard arbitrators have recognized that employers usually do not advertise their anti-
union motivations, and that the union does not need ?a smoking gun? to establish anti-
union animus. Counsel referred me to Re Horizon Operations (Canada) Ltd. (2000) 93
th
L.A.C. (4) 47 (Coleman) where the arbitrator quotes from a decision of the B.C. Labour
Relations Board in Re Forano Ltd., [1974] 1 C.L.R.B.R. 13. In the latter decision at pp.
66-67, the Board wrote:
If the real purpose of a firing was the union involvement, an employer may not
search for some arguable justification in the employee?s earlier behaviour and
advance this as the cause, ex post facto. The crux of such an unfair labour
practice case is the employer?s motivation in the discharge, something which
rarely will be disclosed by admissions. Employers don?t ordinarily advertise
their anti-union activities. Such intention must be pieced together from a
pattern of circumstantial evidence.
I agree that an admission or ?a smoking gun? would rarely be found in anti-union
animus cases or cases of discrimination on the basis of a prohibited ground. Thus in
appropriate circumstances, anti-union animus may be inferred from circumstantial
evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98,
proof is nevertheless necessary. Anti-union animus will not be inferred merely because a
grievor believes that it exists.
37
At para: 17-18, Mr. Gray wrote:
[17] I accept as a general matter that racism ?is out there?, as the grievor put it
at one point. I agree with union counsel?s submission that racism often is
latent, in the sense that those whose conduct is influenced by racist attitudes
may not openly acknowledge it. It is not necessary for the union to prove that
discrimination on the basis of race was the sole or even a major reason for
employer conduct detrimental to the grievor. If discrimination on the basis of
race played any part in the employer?s treatment of the grievor, then it
breached the collective agreement provision that prohibited such
discrimination. The presence and effect of racist attitudes may be difficult to
detect and prove. It does not follow, and the union does not suggest, that
proof is therefore unnecessary, or that the mere allegation of racial
discrimination shifts the burden of disproving the allegation to those accused
of it. The same may be said about anti-union animus and discrimination on
the basis of union activity.
[18] The grievor says she cannot understand why she has not advanced in the
civil service unless it is because she is the victim of discrimination on the basis
of her race or union activity or both. Her subjective belief that she is the
victim of discrimination, however strong, is not proof that she is. This would
be so even in the absence of evidence that she is inclined to exaggeration in
labeling her experiences.
At para: 20-22 he stated:
[20] The failure of management to either do as Ms. Hill recommended or
explain why it would not or did not do so is perplexing. So is management?s
failure to either do as the Minister?s delegate directed or explain why it would
not or did not. In all the circumstances, however, these things are not a
sufficient basis for the inference the union asks me to draw. Certainly there is
no other basis for such an inference.
[21] There is no suggestion, and no evidence, that the grievor was the only
classified employee allegedly disadvantaged by the management practices
about which she and the union were complaining in 1995 and afterwards.
There is no evidence concerning the actual or apparent racial origins of other
allegedly disadvantaged employees, or of those members of management
responsible for the practices, or of those employees alleged to have benefited
from them. In so far as the employer had work opportunities to assign that
were not subject to posting and competition, the grievor asserts in a general
38
way that she was denied opportunities afforded other employees and that the
opportunities she got were not as advantageous as those that others got.
Again, the evidence does not identify the actual or apparent racial origins of
the decision-makers or of the other employees to who they allegedly gave
preferential treatment. I do not suggest that evidence of the matters just
referred to would have been necessary, or sufficient, for these grievances to
succeed. These observations are simply meant to illustrate and underscore my
conclusion that the evidence before me is not an adequate basis on which to
sustain the claims made.
[22] Disappointing as it undoubtedly is for Ms. Damani, the fact that an
employee with her years of satisfactory service did not get the sort of work
opportunities she sought during the period in question is not so surprising as to
warrant, without other objective evidence of it, an inference that
discrimination played a part in the outcome. The evidence put before me does
not support the grievances.
Grievor Ladouceur?s testimony on anti-union animus
Mr. Ladouceur testified that he was hired by the Ministry in 1980 as a AQA and
following the probationary period his position was classified as RM3. At the time the
WGLs were also classified as RM3. However, in 1989 the WGLs had grieved their
classification, and at stage 2 a settlement was reached changing their classification to
RM4. Mr. Ladouceur filed his own classification grievance and in a decision dated
January 21, 1992 the Board issued a ?Berry order?. The employer created an Air Quality
Analyst classification for Mr. Ladouceur?s position in response to the Board order.
Mr. Ladouceur testified that his retroactive pay was not received until March or
April of 1995. Mr. Ladouceur testified that he wrote numerous memoranda to his
superiors, and even discussed the possibility of a law suit with a lawyer. The union filed
in evidence a lengthy letter dated March 9, 1995 Mr. Ladouceur wrote to the then
39
Minister of Environment complaining about the delay in the payout of his retroactive pay.
He testified that he received payment within days of writing that letter. Mr. Ladouceur
testified that subsequently all AQAs had their positions reclassified to the same
classification the grievor had secured through his grievance.
Mr. Ladouceur has held practically every local union office since 1985, including
President, Vice-President, Secretary, Treasurer and Chief Steward. At the time of his
testimony he was a steward and treasurer of the local, and was also a MERC member. In
addition, Mr. Ladouceur had been an alternate on the union?s negotiating team for the
2005 collective agreement. Mr. Ladouceur testified that as a member of the union
executive and steward, he had been involved in several health and safety issues. He
testified that there was a concern about the handling and storage of chemicals at the
Ministry?s laboratory at Kingston, Ontario. At the invitation of his superiors, he
conducted an assessment of the air quality in the building and issued a report dated May
23, 1990 to the supervisor of the Laboratory. In his report he expressed his view that the
practices at the laboratory failed to properly contain designated chemicals such as
mercury and lead. In response to his report, the management took steps to determine the
extent of contamination, and repairs were undertaken to the building. Female employees
of child-bearing age were designated other duties. Eventually outside consultants were
retained. They concluded that since there were already plans to move out of the building,
if surfaces were cleaned, no other action would be required as long as the ceiling tiles
were left undisturbed. Mr. Ladouceur testified that health and safety issues continued in
that building. His manager at the time requested him to investigate. Mr. Ladouceur
40
investigated and issued a memorandum dated July 10, 1997. Mr. Ladouceur testified that
there were on-going concerns that the contractors carrying out repairs to the building may
disturb the ceiling tiles, and opined that even to date only parts of the building had been
properly cleaned up. When asked by union counsel what the management?s reaction was
to his raising these health and safety issues, Mr. Ladouceur replied, ?I am of the
impression that their plans had been upset and it forced the relocation?.
Mr. Ladouceur referred in his evidence to the following letter he wrote on August
11, 2000 to the then Premier, Mr. Michael Harris.
I am the President of OPSEU local 429, Ministry of the Environment. I am
writing to express my concerns over recent comments made in a CBC radio
interview by a member of your caucus, Hon. Bill Murdoch. Mr. Murdoch
made several comments regarding that the ?wrong people were fired, we
should bring them back, and fire the ones who are there now?. He alluded to
laziness and an unwillingness to do our jobs.
I work at the Kingston Regional Office of the Ministry of the Environment, a
site where a water testing laboratory was closed. Mr. Murdoch?s comments
have generated a tremendous feeling of anger and further distrust of the
government. The layoffs caused huge personal disruptions to many families,
and Mr. Murdoch?s insensitive and ill-informed comments will only further
demoralize us. Is Mr. Murdoch representing the Government with his
comments? Is that your opinion? Cabinet?s? Minister Newman?s?
We are struggling to cope with reduced staffing levels and slashed budgets.
To accuse us of being the cause of problems is the height of arrogance. We
are doing our best in difficult times.
Unless Mr. Murdoch is representing the Government with his comments I
demand an apology and a retraction. If he is representing the Government
then perhaps OPSEU has grounds for a Wrongful Dismissal lawsuit of
Herculean proportions.
41
Personally I believe that the Honorable Mr. Murdoch is speaking without
support. Your earliest response would be appreciated. I can be contacted
during the day at the MOE Kingston, office, 613-549-4000 x 2655, or via e-
mail at ?., if you or your staff wish to discuss the matter further.
The premier responded by letter dated September 6, 2000 to Mr. Ladouceur, with
copy to Mr. Murdoch, as follows:
th
Thank you for your August 11 e-mail regarding comments reportedly made
by Bill Murdoch, MPP for Bruce-Grey-Owen Sound. I have noted your
concerns.
Let me assure you that I recognize that staff at the Ministry of the
Environment are hard-working and dedicated. My colleagues and I fully
realize the important work that ministry staff perform to protect and preserve
our environment. We are committed to ensuring that staff have the tools and
resources they need to fulfill their vitally important duties and responsibilities.
I appreciate having this opportunity to respond.
Mr. Ladouceur testified at length about his involvement in the Walkerton Inquiry.
He testified that OPSEU received standing at the inquiry. He was a member of the
union?s delegation. On September 19, 2001, Mr. Ladouceur made a presentation to the
Commission, a copy of which was filed in evidence. The focus of his presentation is
captured in the following excerpt:
The current staff participated in the meetings and consultations that OPSEU
conducted to produce it?s [sic] various papers submitted to the Inquiry. I am
not here to represent OPSEU?s ?Big Picture? issues. Those matters have
already been well documented.
I hope to express some ?local colour? to the Commission. I am here giving
voice to some of the concerns and opinions expressed by my MOE members.
42
-The value lost to Ontario with the closure of the Kingston Regional
Laboratory
-The need for whistleblower protection for civil servants
-The Ministry of the Environment is the still the best candidate for the lead
responsibility for drinking water protection.
-Resourcing issues as seen by front-line staff
-The recruitment and retention crisis in the MOE
-Head office / Field office problems
-Summary and questions you may wish to pose.
He stated that when the Walkerton Inquiry was first set up, employees hesitated to
come forward. OPSEU submitted a petition, which resulted in the amendment of the
Public Inquiries Act to provide some measure of protection to ?Whistle-blowers?.
OPSEU then organized meetings where staff could bring forward their concerns and
complaints. The results of these meetings formed part of OPSEU?s submission to the
inquiry. Mr. Ladouceur testified that even though the whistle-blower protection
amendments were in place at the time of the Walkerton Inquiry, staff still had a fear of
coming forward. After he had made his presentation, a colleague joked with him,
suggesting that he may not be employed with the Ministry for much longer. Mr.
Ladouceur testified that as far as he was aware no members of management were present
at the time he made his presentation to the commission.
Mr. Ladouceur testified about particular issues he had brought to the attention of
the commission. In the Commission?s report Part I, the Ministry had been instructed to
develop a computerized tracking system for drinking water. Mr. Ladouceur e-mailed the
commission on March 6, 2002 pointing out that the Eastern Region had such a tracking
system in place, but had ceased to operate when the laboratory was closed. The
43
administrative Assistant to the Commission thanked Mr. Ladouceur for his e-mail and
stated that it will be forwarded to appropriate staff.
Mr. Ladouceur testified that he provided Mr. Tim Hadwin, General Counsel of
OPSEU, with information relating to ?a past incident of human impact due to bacterial
contamination?. Mr. Hadwin, in turn wrote a letter dated October 11, 2001 to the
Director of Research of the Walkerton Commission.
Mr. Ladouceur testified that the foregoing incident was the subject of a large
prosecution by the Investigation and Enforcement Branch. In 1998, a colleague Mr.
Robert Holland used this incident as his case study during a training course. Mr.
Ladouceur was not aware whether any manager was present during the presentation of
Mr. Holland?s case study. He further testified that he was told by staff that the
documentation relating to this incident had been shipped to the archives in Cooksville,
Ontario and subsequently disposed of in accordance with the archives? usual schedule,
even though he had informed the supervisor who was preparing the shipment that the
documents must be secured and brought to the attention of the Walkerton Inquiry. Mr.
Ladouceur did not see any reference to this incident in any of the reports issued by the
Commission.
Mr. Ladouceur further testified that he was a contributing author to Part II of
OPSEU?s submissions to the Commission, which dealt with the government?s role and
policy in the protection of drinking water. He was also appointed as the official media
44
spokesperson. Mr. Ladouceur testified that the employer would have been aware of his
role in the Walkerton Inquiry because the meetings he had with union members were held
at the Ministry offices with the permission of management. He also believed that
management would have been aware of his role because he had direct discussions with
Mr. Karl Griffith (ADM) and Mr. Brian Ward (Regional Director) about the fact that he
and Mr. Robert Holland would be absent from work on days they were attending the
inquiry sessions, and urged them to encourage staff to participate in the inquiry.
Mr. Ladouceur testified that as Local Union President, he was involved in a
grievance filed by an employee alleging sexual harassment and breach of the Workplace
Discrimination and Harassment Policy by a supervisor in the Investigation and
Enforcement Branch. As the grievor?s representative, he negotiated a settlement of the
grievance. However, according to Mr. Ladouceur, management subsequently reneged on
the terms of settlement. The union held a press conference on the issue. He stated that a
report on his interview with the Canadian Broadcasting Company was carried on its web-
site and on the C.B.C. National news. Subsequently other news media picked up the
story. An article that appeared in the Belleville Intelligencer was filed in evidence. The
CBC web-site report describes Mr. Ladouceur as an Air Quality Scientist and union
steward. It reports in essence Mr. Ladouceur?s claim that he has ?a thick file of incidents
where investigators and other staff members have allegedly been harassed, that nothing
was done when employees lodged an official complaint?. Mr. Ladouceur is further
quoted as claiming that subsequently a formal grievance was filed and a settlement
reached, but that the ministry reneged on the deal by altering a key part of the agreement.
45
The same report quotes a Ministry spokesperson who admits that one of the allegations
was true, and that appropriate action had been taken, through discussion with the union.
The article in The Intelligencer makes no reference to Mr. Ladouceur. However, it
refers to a claim by the union that a sexual harassment flap in the Eastern Region Offices
of the Ministry of Environment has jeopardized the effectiveness of the Investigations
and Enforcement Branch. The essence of the article is an allegation by a union
spokesperson (not Mr. Ladouceur) to the effect that while the employer had retained an
outside consultant to investigate the allegations, the Ministry had failed to disclose the
full report issued by that consultant. During his testimony Mr. Ladouceur suggested
that management would have become aware of those media reports because media
material is often distributed to managers for preparation of briefing notes for directors
and ADMs.
Mr. Ladouceur testified that he was the chief spokesperson for some 65 grievors
(including himself), who had filed a group grievance seeking reclassification. At the
stage 2 meeting held on May 9, 2001, Mr. Ladouceur made a presentation on behalf of
the grievors. He testified that he brought to the attention of the Deputy Minister?s
designee a decision of the GSB, in support of his position that the Scientist 4 class was
inappropriate for field scientists. The employer denied the grievance, which remained
outstanding before the JSSC at the time of Mr. Ladouceur?s testimony. Mr. Ladouceur
testified that the employer took no action to resolve the classification issue, despite its
undertaking to discuss the matter with Management Board Secretariat. Filed in evidence
46
was a memorandum dated May 27, 2002 Mr. Ladouceur wrote to Mr. Robert Campbell,
Technical Support Manager, Northern Region. In it Mr. Ladouceur draws Mr.
Campbell?s attention to comments by Justice O?Connor in Part II of his Walkerton
Inquiry Report, about the need to have a salary structure which will encourage MOE staff
to develop a high level of technical proficiency. Mr. Ladouceur urged Mr. Campbell to
keep those comments in mind when developing a resolution to the classification dispute.
Following the strike in May 2002, Mr. Ladouceur advised Mr. Brian Ward
(Regional Director, Eastern Region) who was a co-designee at stage 2, to the effect that
the OPSEU President had authorized him to undertake ?political public action? in order
to resolve the classification dispute. He told Mr. Ward that he intended to organize a
protest at Queen?s Park. He testified that while he had started to organize the protest, it
was not carried out because Mr. Ward arranged for himself and Mr. Holland to meet with
the Assistant Deputy Minister, Mr. Michael Williams. At the meeting, Mr. Williams
mentioned that the employer was considering using the Forensic Scientist category for
AQAs as a resolution of their grievance. Following the meeting, Mr. Ladouceur felt
satisfied that ?something positive was happening.?
However, Mr. Ladouceur testified that a local union president from Northern
Ontario had informed him that Mr. Campbell had commented that the protest at Queens
Park being organized was ?inappropriate?. Mr. Ladouceur wrote the following e-mail to
his manager, Ms. Mary Hennessy, on January 24, 2003:
47
I have received eyewitness accounts that R. Campbell has decried my actions
with respect to our grievance as inappropriate. Is Mr. Campbell speaking on
behalf of the Deputy in this matter? Is he representing the official position of
Management?
Allow me to recap and clarify:
1)I have requested a meeting with the ADM to receive some official and
substantive word on the matter to replace the rumors and speculation that are
sapping everyone?s energy.
2)I have advised Brian Ward that I have the support of OPSEU?s Executive
Board in my choice of action, including an information picket and news
conference.
3)I have advised Brian Ward that the choice of action is dependent on the
results of discussions with the ADM.
I consider this to be a prudent, measured plan of action. I am extending a
courtesy to Brian by advising him of the options I am considering. Brian is
the Deputy?s designee on this matter, and my official contact with
Management until I am told otherwise.
I would like to remind Management that an information picket is a legal form
of expression and assembly in Canada, and certainly open to OPSEU
members. The suggestion that exercising our constitutionally protected rights
is ?inappropriate? reminds me of the situation that occurred in Peterborough
wrt BU staff participation in the Walkerton Inquiry Town Hall meetings.
My own opinion is that Rob has offered his personal views, which I welcome
him to express. I suggest that the grievors, myself included, are sensitized to
this matter and may take his words as carrying some official credence. I look
forward to some discussions with an empowered party. It is for this reason
that I would like to meet with the ADM, and bring the communication on this
matter into focus.
Please convey my concerns to the appropriate parties.
Mr. Ladouceur testified that in 2001 or 2002, The Professional Geosciences Act
came into effect. It made professional certification by the Association of Professional
Geoscientists of Ontario a pre-requisite for practising geo-science. Mr. Ladouceur
48
believed that he met the requirements for certification as a geoscientist under the Act. He
spoke to a manager who agreed, and encouraged him to pursue certification. While his
application for certification was pending, he filed a grievance dated September 12, 2002,
alleging that his job description requires him to practise geoscience despite the fact that
he was not certified under the Act, thereby potentially exposing him to a fine of $
25,000.00. He subsequently withdrew the grievance when the Association ruled that his
job duties did not constitute practice of geoscience.
Filed in evidence was an e-mail Mr. Ladouceur sent to Mr. Campbell on June 11,
2003, expressing his view that he was eligible for certification and suggesting that the
Geoscience class standards are a better fit for AQAs than the scientist series. That e-mail
elicited the following response from Mr. Campbell:
Thank you for this information Michael. I will hold it in confidence. As a
Geoscientist myself, I respectfully disagree with your position. However it is
out of both of our hands on all counts. We will have to see what the APGO
says in writing and what the stage two chair has to say.
As a manager I am bound to uphold the rules and integrity of management
rights and the classification system. As a result, many times managers and
employees disagree with a position and that is why we have the
grievance/dispute resolution system. I want you and your colleagues to know
I have the utmost regard for the Air Program and respect for the staff that work
in it. I hope that, what ever the outcome, it will not affect our ability to work
together. At times we have to agree to disagree and let the system decide for
us.
49
Cross-examination of grievor Ladouceur on anti-union animus allegation
Mr. Ladouceur agreed that Mr. Robert Campbell was himself a geoscientist, and
that Mr. Campbell was Technical Support Manager in the Northern Region and lived and
worked in Sudbury. He confirmed that he worked in the Eastern Region out of Kingston
and that his grievance relating to his lack of geoscientist certification was filed with his
supervisor in the Eastern Region. Mr. Ladouceur stated that when as a geoscientist, Mr.
Campbell disagreed with him that Atmospheric Science was a discipline within
Geoscience, Mr. Campbell had ?denigrated his position in the Ministry?.
When employer counsel referred Mr. Ladouceur to p. 5 of the Board?s preliminary
decision dated January 31, 2005 in this matter, where it is recorded ?It is alleged that the
denial of the temporary assignments to AQAs was in part an improper reprisal for Mr.
Ladouceur?s active role in the union, particularly in relation to the Walkerton issue?, and
asked whether he was making that allegation. Mr. Ladouceur responded, ?You cannot
ascribe that to me because I didn?t write that?, and stated that his allegations are as set out
in the particulars. Then the following exchange occurred:
Q: Are you not making the allegation as set out in the decision?
A: What we have said is that we haven?t seen a legitimate or business reason, and in that
absence I suggest there were illegitimate reasons.
Q: So it is not necessarily a reprisal for your union activity?
A: I rely on the particulars.
Q: Are you alleging a series of events which you say is a reprisal because of your union
activity?
50
A: I believe I have been treated unfairly.
Q: But not as a reprisal?
A: I believe in the absence of a proper explanation that a motive exists for a reprisal.
Mr. Ladouceur agreed under cross-examination that the MPP?s comments to the
effect that MOE staff were lazy and incompetent, and should be fired, affected bargaining
unit employees as well as management staff because the layoffs had involved both
groups. He agreed that Mr. Ward was also very disturbed by the MPP?s comments, that
Mr. Ward had thanked him for taking the initiative to write to the Premier, and had
complimented him on getting a written response from the Premier.
Mr. Ladouceur agreed that the following memorandum dated April 8, 2003 from
his Technical Support Manager, Ms. Mary Hennessy, was received by him prior to the
filing of these grievances:
You and your colleagues have raised a number of questions related to
management?s recent decision to reclassify a variety of scientific and
professional positions throughout the Ministry. I would like to take this
opportunity to provide you with the clarification you have requested, and
address certain other issues that may not have been raised by you, but by other
Air Quality Analysts in other Regional Offices.
As noted in the announcement to staff on February 18, 2003, a review has
been completed of a number of OSPEU positions throughout the ministry that
are involved in scientific and professional work. This review was initiated by
management to address a number of issues including: the ministry?s ability to
attract and retain qualified staff in these areas, and concern about the
continued use of the Resource Manager Class Standards which do not
accurately reflect the scientific and professional responsibilities of staff. This
51
initiative is considered to be an interim solution, as it would not/could not
address all issues raised through the ongoing classification grievances.
As part of this exercise, the duties of the Air Quality Analyst position were
reviewed against the available Class Standards, and a classification was
identified that most appropriately fit the positions? duties and responsibilities.
As per the standard approach applied when classifying positions, the criteria
identified in each Class Standard were reviewed and considered.
Of those class standards that were available for consideration, the Scientist 4
classification was determined to be the most appropriate interim classification
for the Air Quality Analysts in Operations Division. The Scientist Series
Class Standard recognizes analytical work performed to support law
enforcement agencies, other government agencies or the general public. It also
references regular appearances in courts of law to give evidence as a scientific
expert. In addition, the salary range provided a salary differential between the
group leader and the technical staff they are leading. The Ground water and
Surface water Group Leaders were temporarily assigned to a classification
whose assigned salary provided a salary differential between them and the
professional and technical staff they were group leading.
In the recent past the Air Quality Analyst Group Leader positions were
compensated at a rate equal to that of the Ground and Surface Water Group
Leaders, and questions have been raised as to why this practice is not being
continued.
As noted previously, this reclassification is an interim solution to address a
number of issues including: attraction and retention of qualified staff, and
complaints that the previous classification series and associated compensation
grid, that of Resource Manager, no longer accurately reflected the scientific
and professional responsibilities of staff. While there may have been parity in
the past, decisions on classification are made on a position by position basis, in
consideration of the duties and responsibilities. However, at this point in time,
appropriate classifications of a higher level of scientific expertise were not
available for consideration.
I trust that this clarification and information provide you answers to your
questions. I want to reiterate that while the reclassification was identified as
an interim solution, and it did not/could not address all issues, we feel that it
goes a long way to address the major concerns raised by both management and
staff with respect to the Ministry?s recognition of, and approach to
52
compensation for, the professional and scientific work being performed by
OPSEU staff in the regional Technical Support Sections.
Mr. Ladouceur agreed that the Ministry?s inability to attract or retain qualified
staff, and the inappropriateness of the use of the Resource Manager class series for
scientists, were concerns that existed at the time. When counsel suggested that Ms.
Hennessy?s memorandum provides reasons for the employer?s actions, including the
reasons for temporarily assigning the WGLs, Mr. Ladouceur replied that the
memorandum did not answer his questions and that once he read it he decided to grieve.
Then the following exchange took place.
Q: So because the explanation was not satisfactory to you, you say you were treated
unfairly?
A: The rationale in the memo has serious flaws and leads me to conclude that the analysis
leading to the reclassification is incorrect.
Q: But you agreed that the inability to attract or retain qualified staff and the use of the
RM class series were concerns?
A: Yes.
Q: Do you agree that both of those were motivations for the Ministry?
A: Yes.
Q: But in your view those explanations are not satisfactory to you?
A: I expect management to exercise rights in a fair manner which withstands scrutiny.
With regard to the complaints he had made about the delay in the payout of the
retroactive pay following his successful classification grievance, Mr. Ladouceur agreed
53
that regional management had acted promptly and professionally and that ?any hold up in
payment was not a result of problems at the regional office?. He agreed with counsel?s
suggestion that the regional management had in fact thought that he had already been
paid. When counsel suggested that his managers were also very frustrated with Human
Resources for the delay, Mr. Ladouceur agreed.
Mr. Ladouceur agreed that when he did the analysis and report dated May 23,
1990 on the handling and storage of designated substances at the Kingston laboratory, he
did so as a scientist, and not as a union officer. He agreed that he did the investigation
and the report at the request of management, that his report was approved by the main
laboratory in Rexdale, and that there was a consensus that as an interim solution it was
best to leave the contamination alone undisturbed until the relocation of the MOE office.
Mr. Ladouceur agreed that Mr. Hadwin?s letter to the Walkerton Inquiry was not copied
or otherwise provided to management, and that management would not have known
about the letter until it was disclosed in this proceeding. Similarly, Mr. Ladouceur agreed
under cross-examination that his communication with the Walkerton Inquiry about the
Ministry?s failure to maintain a data base on water quality was not copied to the
employer.
When asked about his e-mail dated January 24, 2003 about Mr. Campbell?s
alleged comment that his planned protest at Queens Park was inappropriate, Mr.
Ladouceur corrected his evidence as to who he had heard that from, and confirmed that it
was his belief that Mr. Campbell was expressing his personal views. Mr. Ladouceur
54
admitted that the joke about him possibly not working for the Ministry for much longer
was made by a fellow-employee, and not a member of management.
Employer counsel named 5 employees of the Ministry, and asked Mr. Ladouceur
whether he was aware that they had all held union offices, two as local president. Mr.
Ladouceur replied that he knew 4 of them, including the two local presidents. When
counsel asked whether Mr. Ladouceur was aware that those 4 employees were among
those who received temporary assignments to GeoScience 4, he said that he was.
Testimony in-chief of grievor Diamond on the allegation of anti-union animus
Mr. Diamond testified that he started his employment with the employer in May of
1966, as a AQA for the South-West Region, and worked out of London, Ontario. He
testified that he had served as a Steward for Local 123 for approximately 6 years, that
during the 2002 strike he had been a picket captain, and that in the five years just prior to
the Walkerton Inquiry he had served as the worker co-chair of the Joint Health and Safety
Committee.
Mr. Diamond confirmed that he was part of the group classification grievance, and
testified that he had previously filed one individual grievance. In the latter, he grieved
that with his seniority he should be entitled to bump within his own unit when his
position of Senior Program Scientist was declared surplus. He testified that the grievance
was settled wherein he received a ?bump up of 2 or 3 steps in the salary grid?.
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Mr. Diamond testified that as union steward he had involvement in ?a few
grievances? filed by other employees. When asked whether he had any conflicts with
local management as a result, he said ?Yes, one or two?. When asked to elaborate, he
said the first conflict related to a woman systems officer who was unhappy with the
manner the employer dealt with her request for accommodation. He testified that he had
several meetings with management on her behalf, and that ?once or twice the discussions
got somewhat heated?. Mr. Diamond testified that on another occasion the employer
representative had left him a message which he had not received. The employer
representative had believed that Mr. Diamond deliberately ignored his message and had
hung up on him when he called. The second ?conflict? as described by Mr. Diamond was
as follows. A female employed on contract as receptionist, sought to return to work
following maternity leave. The office manager informed her that her position was no
longer available. The employee grieved. Following discussion at the stage two meeting,
before the designee issued her report, the office manager offered the employee a position
and the grievance was withdrawn.
Mr. Diamond testified that he had a conflict with Mr. Robert Campbell also. He
stated that AQAs, WGLs and a few supervisors attended a training session in Hamilton,
Ontario. According to Mr. Diamond, Mr. Campbell suggested at a session that those
employees who were part of the group classification were deliberately ?not performing
up to capacity? to pressure management to deal with the grievance. Mr. Diamond
testified that he stood up and told Mr. Campbell ?that he possibly couldn?t know all the
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staff involved in the grievance, and asked if he had any proof of his accusation?. Mr.
Diamond recalled that ?several staff? applauded in support.
Cross-Examination of grievor Diamond on the issue of anti-union animus
Mr. Diamond agreed that he was one of five picket captains for his local during
the 2002 strike, and that he had no conflict on the picket line with Mr. Lafrance or any
other manager. Mr. Diamond agreed that he met Mr. Campbell for the first time at the
training session in Hamilton in January 2003. He also agreed that all five AQAs
including grievors Ladouceur and Dobroff, and all of the WGLs were present at the
session during which Mr. Campbell made the alleged statement. He agreed that at the
end of a session, the floor was opened up for questions and during this period the group
classification grievance came up. Employer counsel stated that while Mr. Campbell will
admit that the grievance came up, he will deny the statement attributed to him, and will
testify that he would never have said that because he never believed that the employees
were deliberately not performing to provoke management. Mr. Diamond reiterated that
he recalled Mr. Campbell?s remarks.
Testimony in-chief of grievor Dobroff on the allegation of a anti-union animus
In 1981 Mr. Dobroff commenced employment as an AQA (classified as Resource
Manager 3) in the West Central Region, working out of the Hamilton District Office. He
testified that after Mr. Ladouceur had won a Berry order following his grievance, and had
been reclassified as AQA, he felt that his position also should not be classified as RM 3
since he did similar work as Mr. Ladouceur. Therefore in 1992 he grieved, and following
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a hearing in 1997 it was held by the Grievance Settlement Board that his position was the
same as Mr. Ladouceur?s. Thus in 1999, Mr. Dobroff?s position was also reclassified as
AQA.
Under cross-examination, Mr. Dobroff agreed that apart from the aforementioned
grievance, he had not filed any other grievance. However, he was part of the group
classification grievance filed by some 65 employees. He also agreed that he had never
held any union office.
DECISION
I agree that direct evidence of anti-union animus is rarely available, and is not
necessary for the union to meet its onus. Nevertheless, there must be sufficient evidence
to establish that the employer action was tainted by anti-union animus. If such an animus
can be pieced together from a pattern of circumstantial evidence, the union would have
met its onus. The issue then is whether the evidence before me provides a sufficient basis
to draw the inference the union urges me to make. That is, that the reasons the employer
offered at arbitration are mere ex-post facto justifications to cover up a decision made for
the illegitimate purpose of taking reprisals against the grievors because of their union
activity. In other words, I will have to be satisfied from the totality of evidence that the
reasons offered are fabrications, and that the real reason, in whole or part, was an
intention to penalize the grievors because of their union activity. The union?s position
was that the primary target of the employer?s anti-union motivation was grievor
Ladouceur, because he was seen as ?a thorn? in the employer?s side.
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Grievor Dobroff has not been involved in any union activity beyond being one of
some 65 employees who formed part of the classification group grievance. The union did
not suggest that there was evidence justifying an inference that the employer formed an
intention to take reprisal against Mr. Dobroff because he joined in that grievance.
Grievor Diamond was also part of that classification group grievance. In addition,
he had been a union steward for several years and was picket captain during the strike.
He also testified about ?conflicts? he had with management. Although he did not directly
assert to that effect, presumably the evidence was adduced to suggest that it is reasonable
to infer from this union activity and the alleged ?conflicts? that the employer had a
motive to, and did, retaliate against Mr. Diamond by denying him a temporary
assignment as Geoscientist 4. The evidence relating to Mr. Diamond does not provide
any basis whatsoever to make the inference urged upon me. Mr. Diamond?s testimony
was that as union steward he had been involved in ?a few? grievances on behalf of
employees. There was no evidence that there was any unusual hostility or acrimony
between Mr. Diamond as steward and the employer in any of those matters. To the
contrary, the evidence is that the employer recognized the merits of the grievances
presented by Mr. Diamond and the grievances were resolved to the satisfaction of both
parties. Similarly the ?conflict? with regard to a human resources advisor hanging up on
Mr. Diamond cannot reasonably seen as anything more than normal interaction in an
inherently adversarial relationship between a union steward and a human resources
official. Besides, there is no evidence to suggest that this ?hanging up? incident ever
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came to the attention of anyone having anything to do with the employer?s decision on
the temporary assignments.
Mr. Campbell testified that he recalled Mr. Diamond asking a question about the
classification dispute, at the end of a training session. While he could not recall the
specifics of Mr. Diamond?s question or his answer, he recalled that Mr. Diamond asked
the question aggressively and was upset about the answer he received. However, Mr.
Campbell insisted that he would not have stated that the staff were not performing to
capacity, because he did not at any time believe that to be the case. While Mr. Diamond
claimed that grievors Dobroff and Ladouceur were present at the meeting when Mr.
Campbell made the alleged comment, neither Mr. Dobroff nor Mr. Ladouceur
corroborated Mr. Diamond?s testimony. In any event, even if the incident had occurred
as claimed by Mr. Diamond, there is no evidence that it created any bad blood between
Mr. Campbell and Mr. Diamond. In fact the evidence is that following that meeting, Mr.
Diamond and Mr. Campbell returned to the hotel sharing a cab. That evidence hardly
suggests that there was any lingering hostility between the two.
In summary, the evidence suggests that while Mr. Diamond had been a steward
and a picket captain he had hardly any union activity which brought him into conflict
with management. There is no basis to infer that the employer formed an intention to
retaliate against Mr. Diamond because of his union activity.
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The union?s position in effect appeared to be that the employer?s motivation was
to retaliate against Mr. Ladouceur, and that to achieve that retaliation, action was taken
which impacted upon all AQAs.
Having reviewed the evidence in its totality, I have concluded that it does not
reasonably allow an inference that the employer?s decision to deny AQAs the temporary
assignments given to the WGLs was in any way tainted by an anti-union animus.
There is no question that Mr. Ladouceur has been a very active and persistent
union activist asserting rights on behalf of union members. However, the fact that a
union official carries out the duties of his office with diligence and persistence as Mr.
Ladouceur appears to have done, by itself, does not justify an inference that any employer
decision which adversely impacts him, was tainted by an anti-union animus. The
decision in this case, it must be remembered, affected not only Mr. Ladouceur. It
affected all five AQAs employed in different regions of the province. For an employer to
victimize four other employees due to a desire to penalize Mr. Ladouceur, the employer
had to have significant ill-will against Mr. Ladouceur. There is simply no evidence of
hostility between him and his superiors. The union?s contention was that the employer
retaliated against Mr. Ladouceur primarily because of his role in the Walkerton Inquiry.
However, there is no evidence to indicate that the employer in any manner opposed or
objected to his participation in the inquiry. Thus, in the course of making the point that
the employer was aware of his participation in the inquiry, Mr. Ladouceur testified that
the submissions on behalf of OPSEU were prepared on the basis of information gathered
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at meetings with ministry employees. He asserted that the employer would have known
that he was gathering information from employees to be presented to the inquiry, because
those meetings were held in Ministry offices with the permission of the employer. That
suggests that the employer in fact co-operated with Mr. Ladouceur in his efforts. In
similar vein, Mr. Ladouceur testified that he had direct discussions with the Assistant
Deputy Minister, Mr. Karl Griffith and Regional Director, Mr. Brian Ward, about the fact
that he and Mr. Robert Holland would be absent from work on days they were attending
the inquiry hearings. There was no suggestion that either manager opposed or objected to
their absenting themselves. Similarly, Mr. Ladouceur did not suggest that they responded
in a negative manner when he sought assurances that staff will be encouraged to
participate in the inquiry. In short, there is no evidence that any member of management
opposed or discouraged staff participation in the Walkerton Inquiry generally or Mr.
Ladouceur?s participation specifically. To the contrary the evidence is that whenever Mr.
Ladouceur sought the employer?s cooperation he received that cooperation. In this
regard it is to be noted that Mr. Robert Holland, who testified on behalf of the union in
the instant hearing, also participated on behalf of the union in the Walkerton Inquiry.
The uncontradicted evidence is that despite that role, Mr. Holland was subsequently
promoted to the position of Acting Supervisor. That evidence is inconsistent with an
inference that the employer was hostile towards employees because of their participation
in the Inquiry on behalf of the union.
While Mr. Ladouceur testified about a joke to the effect that because of his role in
the Walkerton Inquiry he may not be employed with the Ministry for much longer, that
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came from a co-worker, and not a manager. It is quite a stretch to infer from a co-
worker?s opinion, that the employer bore some ill-will against Mr. Ladouceur because of
his role in the inquiry and would retaliate. Mr. Ladouceur testified that although the
legislation was amended as a result of an OPSEU petition, to provide some measure of
protection to ?whistle-blowers?, staff still continued to be hesitant to come forward.
However there is absolutely no evidence that this hesitation was a result of anything the
management did or said. In light of the evidence before me, it is not reasonable to infer
that the employer was motivated to retaliate against union officials. The uncontradicted
evidence is that five union officials, including two local union presidents, were among
those who received temporary assignments as Geoscientist 4.
Mr. Ladouceur appeared to suggest that the delay in the pay out of his retroactivity
following his successful classification grievance was indicative of an anti-union attitude
on the part of the employer. Union counsel characterized this as a refusal to accept the
Board?s decision in favour of Mr. Ladouceur. However, the evidence is to the contrary.
There is no question that Mr. Ladouceur was extremely upset about the delay, and even
contemplated a law suit. However, he agreed under cross-examination, that the regional
managers had acted promptly and professionally in this regard and were not responsible
for the delay, and were also very frustrated about the delay. Indeed, Mr. Ladouceur was
aware that his managers had mistakenly believed that he had already been paid.
With respect to the concerns Mr. Ladouceur raised about the handling and storage
of chemicals at the Kingston laboratory, all of the evidence indicates that the employer
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responded positively to his complaint, albeit not to his full satisfaction. Thus he testified
that the employer retained an outside consultant to determine the extent of the
contamination. The consultant?s recommendation, in view of the planned move from that
location, was that as long as the ceiling tiles are not disturbed, it would be sufficient if the
surfaces are cleaned. The employer accepted this recommendation and also took steps to
carry out some repairs to the building. Also female employees of child-bearing age were
relocated. Therefore, the evidence is that the employer responded to the concerns Mr.
Ladouceur raised. There is no suggestion in the evidence that the management was in
any way upset with the Mr. Ladouceur because he raised those concerns. Mr. Ladouceur
testified that despite the steps taken, health and safety issues continued in the building,
and Mr. Ladouceur raised his concern again. His own evidence was that his manager
invited him to investigate and report. If there was any hostility towards Mr. Ladouceur,
because of his raising safety concerns, it is very improbable that he would receive such an
invitation.
The evidence relating to Mr. Ladouceur?s interaction with the employer, (in this
case his employment as well as political superiors) with regard to his letter to the premier
about derogatory comments made by a MPP is quite revealing. Mr. Ladouceur?s own
testimony is that the Premier himself replied in writing to his letter of protest. The
Premier?s letter was a very supportive one. Moreover, during cross-examination he
agreed that his Regional Director was also very disturbed by the MPP?s comments, and
had personally thanked him for writing to the Premier. There is no evidence that anyone
in management was critical of him for his actions. On the contrary, his Regional
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Manager complimented him when he received a written reply from the Premier. That
evidence does not support an inference of hostility towards Mr. Ladouceur because he
wrote to the Premier.
Mr. Ladouceur asserted in his testimony that despite an undertaking to discuss the
classification group grievance with Management Board Secretariat, the employer took no
action to resolve that grievance. However, the evidence is that the employer did in fact
discuss with MBS a resolution of the grievance by using the classification of Forensic
Scientist. However, MBS insisted that that classification could not be used.
Mr. Ladouceur testified that the discussion with Mr. Ward about his planned
protest rally at Queen?s park took place ?just weeks? before the temporary assignment
decision was made, appearing to suggest a link between the two. The evidence is that
Mr. Ward?s response was to arrange for a meeting between the Assistant Deputy Minister
and the union representatives. Mr. Ladouceur?s own testimony was that he felt positive
following the meeting with the ADM and dropped the idea of a protest rally at Queen?s
Park. The fact that the employer would prefer that no protest rally takes place is hardly
surprising. The evidence indicates that the employer acted in a constructive manner to
address the union?s concerns by arranging a meeting with the ADM, making political
action unnecessary.
Mr. Ladouceur testified about his dealings with Mr. Robert Campbell. He had
received some hearsay information that Mr. Campbell had commented that the planned
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protest rally was ?inappropriate?, and Mr. Ladouceur wrote to his manager about that.
Mr. Campbell recalled during his testimony that he had a discussion about the planned
protest rally with Mr. Bill Trayling, an air-technician in the Northern Region and
President of the Sudbury OPSEU Local. He agreed that he told Mr. Trayling that he was
very disappointed about the planned protest rally. He explained that he felt frustrated that
despite the extent to which management had gone to resolve the classification issue, the
employees were not patient. At that point the regional management had convinced senior
management, over the objections of MBS, to allocate $1.5 to $2 million plus on-going
costs of $ 600,000 to $ 700,000 per year, in order to resolve the grievance. He did not
think a political protest was a good idea because ?the folks at Queen?s Park could start
asking questions and challenge our plan, potentially delaying or even unravelling our
plan?. Again, I find that this evidence does not permit an inference that Mr. Campbell
harbored any ill-will towards Mr. Ladouceur because of his planning a protest. In any
event, the evidence is that the decision on the temporary assignments had already been
made prior to these events.
Mr. Ladouceur also testified about a disagreement he had with Mr. Campbell
about his application to be certified as a professional geoscientist. Mr. Campbell
candidly admitted that he believed that AQAs do not practise geoscience, and that Mr.
Ladouceur was not eligible to be certified as geoscientists under the Act. This cannot in
my view lead to an inference that Mr. Campbell was hostile towards Mr. Ladouceur,
particularly when the Association?s ruling confirmed that Mr. Campbell?s belief was
well-founded. I cannot agree that Mr. Campbell denigrated Mr. Ladouceur?s work by
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expressing his opinion in those circumstances. Indeed, in his response Mr. Campbell
explicitly states that he had ?utmost regard for the air programs and respect for the staff
that work in it? and recognizes that despite his own opinion, the decision on eligibility is
ultimately up to the association. He also expresses his hope that ?whatever the outcome,
it will not affect our ability to work together?. That is hardly indicative of hostility
towards Mr. Ladouceur.
A careful review of the union?s testimony and submissions of counsel clearly
indicates to me that the real complaint in these grievances is the perceived unfairness and
inappropriateness of ending a long standing history of parity in pay between WGLs and
AQAs. Thus during his submissions union counsel described the employer?s action as
?unfounded?, ?not justified? and ?irrational?. Where an employer action is so irrational
in the sense that no half-intelligent person would do that, there may be reason to question
credibility and to suspect that there may be a hidden agenda behind the decision.
However, that is not the case here. There is ample evidence that the employer had for
several years faced a crisis in its in ability to recruit and retain qualified scientific staff on
its water programs. Mr. Ladouceur himself admitted that these were concerns faced by
the employer at the time, and also that no such concerns existed on the air side. The
employer had no difficulty recruiting and retaining qualified air scientists. On the water
side there was an exodus of scientists from the Ministry, particularly to the private sector.
When competitions were held for water scientists, few qualified candidates applied. The
top ranking candidates refused job offers and the employer was forced to hire fourth and
even fifth ranked candidates. Moreover, the Walkerton incident and the inquiry that
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followed brought into focus the need to have highly qualified water scientists. The
Ministry?s water programs came under greater public scrutiny. The evidence is that the
primary reason for the recruitment and retention crisis on the water side was the
significant difference in the pay scales between the Ministry and the private sector.
Justice O?Connor?s Report on Walkerton makes reference to the recruitment and
retention difficulties and the need to revise wage structures.
Mr. Campbell testified about his thinking in making his recommendation as he
did. His first goal was to bring both groups - WGLs and AQAs ? into science
classifications, so that they would benefit from the planned science review. He also
wanted to address the recruitment/retention crisis on the water side by increasing the
wage scales of water scientists at least to the bottom of the private sector wage scales.
This was to be achieved through temporary assignments as Geoscientist 4. Mr. Campbell
testified that he fully realized that this recommendation would result in a departure from
the historical pay parity that had existed between the WGLs and AQAs. He realized that
this decision would disappoint AQAs. He testified that even some of his management
colleagues challenged the appropriateness of his recommendation. He testified, however,
that he was not prepared to perpetuate mistakes made by his forefathers. He was
prepared to take the criticism, because he believed that there was a significant difference
between the work performed by WGLs and AQAs.
There is ample evidence, including documentary evidence created at the time, that
the recruitment/retention problem existed on the water side and was a serious concern for
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the employer. This was recognized by Justice O?Connor?s Walkerton Report itself. Even
Mr. Ladouceur accepted that. The reason offered by Mr. Campbell, who made the
effective recommendation that resulted in only the WGLs receiving the higher rated
temporary assignments, for making that recommendation was his desire to address that
problem. Particularly considering the absence of any evidence of conflict or hostility
between Mr. Ladouceur and Mr. Campbell (or any other manager) in relation to his union
activity, I have no basis to draw an inference that the employer acted pursuant to an
ulterior motive ? a desire to retaliate against Mr. Ladouceur because of his union activity.
This conclusion I come to is further buttressed by the testimony I have set out
verbatim in the exchanges between employer counsel and Mr. Ladouceur at pp. 49-50
and 52-53 (supra). In most unsuccessful grievances involving allegations of anti-union
animus, it becomes evident that the grievor genuinely and strongly believes that the
employer acted out of an anti-union motivation, but there is no evidence to support such a
finding. In the present case, however, when asked a direct question, the grievor did not
assert that the employer had retaliated against him because of his union activity. His
responses suggest that because the employer?s decision was unfair and unacceptable to
him, the Board should conclude that the decision was motivated because of his union
activity. His responses suggest that he himself was not convinced that the employer
acted out of an anti-union motivation. While the Board understands the feeling of the
disappointment and the unfairness experienced by the grievors as a result of the loss of
their long standing status of parity in pay with the WGLs, that is not an inference the
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Board is entitled to, or prepared to make, based on the evidence before it. Any inequity
in pay rates that exist must be addressed in a different forum.
In summary, the evidence before me does not permit an inference that the
employer?s action was tainted by any anti-union animus, in whole or in part.
Given the conclusions I have reached, these grievances are hereby dismissed.
th
Dated this 28 day of April, 2008 at Toronto, Ontario.
Nimal Dissanayake
Vice-Chairperson