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HomeMy WebLinkAbout2011-2449.Union.12-07-31 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2449 UNION#2011-0999-0048 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Robert Fredericks Ministry of Government Services Legal Services Counsel HEARING February 16 and June 25, 2012. Decision [1] In a grievance dated September 13, 2011, the Union complains that “the Employer’s actions with regards to parking issues at the Downsview Complex are a violation of the Collective Agreement, including but not limited to Articles 1, 2, 3 and 9, related legislation and common law.” Article 1 contains the recognition provision, article 2 is the management rights clause, article 3 is the no discrimination clause and article 9 is the health and safety provision. Under desired settlement, the Union seeks “Full redress included but not limited to a delay in the implementation of current parking plans until the matter is satisfactorily resolved, full consultation with the Union regarding the issue, and final plans consistent with the Collective Agreement and all other legal obligations.” [2] At the hearing on February 16, 2012, the parties agreed that the Union would provide particulars to further assist the Employer in understanding the issues underlying the Union’s grievance. The particulars from Union counsel are set out in a letter to Employer counsel dated April 26, 2012. [3] When the hearing resumed on June 25, 2012, the Employer pursued its request to have the grievance dismissed without a hearing. The Employer’s motion to dismiss has two components. On the one hand, it took the position that the GSB has no jurisdiction to deal with some of the issues raised by the particulars because the subject matter is not referenced in the Collective Agreement. With respect to the remaining particulars, the Employer maintains that they are vague at best and do not disclose a prima facie case. - 2 - [4] For the purpose of addressing the Employer’s motion, it is assumed that the facts relied on by the Union are true. The particulars as set out in Union counsel’s letter dated April 26, 2012, are as follows. 1. In August 2007, the Employer advised the Union of plans to redevelop the Employer’s “Downsview Complex”, which is located at 1201 Wilson Avenue. The redevelopment was to include a lease of part of the 74-acre site to the Humber River Regional Hospital for the construction of a new acute-care hospital complex. 2. The Downsview Complex, although most widely associated with the Ministry of Transportation, is in fact home to employees in seven different Ministries of the government, including employees in the Ministries who are members of OPSEU’s Unified and Correctional bargaining unit. There were, at the time of the announcement of redevelopment, approximately 1396 such employees. Several hundred other employees, outside the Union’s bargaining units, also worked at the site. 3. At that time, employees were able to park on site at the Downsview complex, and were not charged for parking. Free parking for employees has been a longstanding feature of employment for those employed at the Downsview complex. There were approximately 2000 parking spaces on site, which were already, from the Union’s perspective, insufficient for the needs of all of the employees. 4. In June of 2008, the Union was advised of the Employer’s proposal for a “subdivision block plan” related to the redevelopment of the Downsview site, and of the timeline for seeking and obtaining approval for the rezoning of the property and the registration of the plan of subdivision. At that time, the Union was advised that alternate parking arrangements for employees would be made during the Hospital’s construction. 5. In November 2008, the Employer disclosed the proposed relocation of the Centre for Forensic Sciences and the Coroner to a Forensic Services and Coroner’s Complex to the Downsview site as part of the redevelopment. 6. In February 2009, the Union was provided with a written update of the Redevelopment Project by the Employer. No further information regarding parking was provided at that time. 7. A new Collective Agreement was ratified by the Union and Employer in February and March 2009. 8. In July 2010, by memo dated July 13, 2010, the Union was advised through disclosure from the Employer that the Employer, through an “analysis of the existing daily utilization rate” and a new “Transportation Demand Management strategy”, had determined that a future need for 1345 parking spaces was identified at the redeveloped site. - 3 - 9. The Union was also advised that “[W]ith the reduction of available on-site parking, introduction of paid parking is being pursued. The current Parking Policy governing employee parking indicates that charges are to be levied in all government parking lots where employees have an alternative to parking on the lots and public transit is available”. Although that policy had existed since 1998, unpaid parking had persisted through several collective agreements at the Downsview site, and the issue of pay parking at Downsview had not been raised by the Employer during negotiations for the 2009 – 2012 collective agreement. The policy itself requires that there be available public transit and that employees have an alternative to parking in the lots, neither of which was realistically the case in respect of the Downsview site. The policy also requires that cost be related to the location, implying an objective standard of comparison for determining cost of parking. 10. The employer did not provide details of the manner, cost or timing of the implementation, nor did it actually confirm that paid parking would in fact be implemented, but stated that the Ontario Realty Corporation (“ORC”) would be hosting information sessions with employees to update them on the “status of the redevelopment activity and the implications for parking”, scheduled for mid to late July 2010. 11. Subsequently, the ORC and the Ministry of Infrastructure advised on its information boards that paid parking would be implemented November 1, 2011, which was not consistent with the original information provided in the disclosure that paid parking “was being pursued”. Details of the manner and cost were not revealed. 12. In September of 2010, information was provided by the Employer at “open houses” on September 9 and 16 that there would be 1195 available parking spaces. The City of Toronto had originally identified in a report on the Government’s rezoning application that 1145 spaces would be permitted. 13. In October, by email of October 15 2010, the Union together with three of the other bargaining agents that represent employees of the Employer advised the Employer of the bargaining agents’ concerns regarding the inconsistency of information provided, both with the previous disclosure and with the City of Toronto report of which the Union was aware; that the parking strategy had been based on data concerning Humber River Regional employees and ORC employees, and not the employees in the various Ministries working at the Downsview Complex; and reiterated its request, which had been made at previous information sessions, for a copy of the Employer’s “Downsview Redevelopment Parking Strategy”. 14. On October 27, by email, and November 1, 2010, by regular mail, the Employer responded to the Union, advising that the City had reconsidered and increased the number of available spots to 1195; that the ORC and MOI had subsequent to the July disclosure confirmed that paid parking would be implemented Nov. 1 2011; and identifying some putative measures to assist with parking shortfall issues arising during the significant construction then underway. 15. By memo June 8, 2011, the Employer advised all staff that paid parking would be introduced November 1, and confirmed the number of available spots. Rates were not - 4 - provided, and information regarding parking details was speculative. No details were provided as to how parking spots would be claimed or designated. 16. Despite the absence of sufficient parking places on site, and the absence of clear viable alternatives, the Employer’s advice to staff threatened employees with discipline if they were late for work once the new parking strategy was implemented. 17. The Union immediately requested a meeting with the employer to discuss its concerns, most acutely the lack of sufficient available parking and related parking issues. A meeting was confirmed for July 28. At the meeting, OPSEU and the other bargaining agents objected to the memo, including the comment regarding discipline, and raised again concerns regarding the parking issue. The Employer advised that a parking allocation process would begin August 2. 18. On August 3, a special bulletin was sent from the Employer to all OPS staff at the Downsview complex which for the first time identified particulars of the parking cost, process, provider, and registration details, with a registration deadline of September 9, 2011. Among the details was a “lottery” process for determining who would get spots if registration outstripped existing parking spots once registration was completed, a monthly rate of $110.00, and a process for applying for designated carpool parking spaces. No information was provided concerning accessible options for disabled parking. No regard was taken in the process for seniority, location of residence, existence of a requirement for accommodation, including nature of disability or accommodation needed, or type of vehicle required. 19. On August 5, senior Ministry of Transportation management sent a further memo to MTO employees on the site regarding parking. This memo reiterated that there was no flexibility in the number of available spots, and that employees must engage in the registration process. 20. Following the August 5 email, OPSEU MERC member Chris Blaney sent an email to Ministry management expressing concern that the proposed parking plans would be in violation of City of Toronto safety standards and subdivision agreements. 21. On August 13, bargaining agent representatives in the MTO sent a memo imploring the Ministry to investigate all “creative options” to relieve the parking crisis, which they noted had left many employees “in tears”, with no viable alternatives if they were unable to get a spot by lottery. 22. No substantive responses to the Union’s concerns were received. The Union filed the grievance September 13, 2011. 23. Parking spots for disabled persons are non-compliant with the City of Toronto’s standards for accessible parking, and in any event are not sufficiently close to the building so as to provide appropriate parking accommodation for disabled employees. Not only are they too far from the building, there is no assurance of closer parking in inclement weather. - 5 - 24. There is no appropriate security plan to ensure that employees are safe walking from their vehicles. Many employees work shift work or hours that require them to park their vehicles or return to their vehicles in the dark. 25. Safety of persons parking in the lots remains compromised by ongoing construction, and by overcrowding of the lot and parking illegally, blocking pedestrian walkways, etc. 26. At least 150 of the spots been assigned to employees are spots which are designated by the City of Toronto as spots for fleet vehicles, which puts those employees parking in those spots at risk of liability for breaches of City ordinances. This is unreasonable. 27. The process for provision of parking spots failed to consider religious objections to the use of a lottery system for obtaining parking spots. In addition to being discriminatory, the use of a lottery system is arbitrary and unreasonable. 28. The process for obtaining parking places was unreasonable, as it gave no regard for the seniority of employees, or for the distance employees must travel to work. 29. The process for obtaining parking places was unreasonable, inasmuch as it left employees not knowing whether they had successfully obtained parking until the end of September, by which time alternatives for parking as of November 1 were limited. 30. The Employer violated the Collective Agreement as well as provisions of the Labour Relations Act as incorporated by the Crown Employees Collective Bargaining Act by altering the terms and conditions of employment and dealing directly with bargaining unit employees regarding those changes rather than negotiating the changes concerning the terms – relating to parking – with the Union. 31. The Employer acted improperly by introducing the paid parking during the life of the existing collective agreement, thereby depriving the Union of an opportunity to bargain collectively about an issue affecting a very large number of its members. The first indication of paid parking was made in July, 2010, during the currency of a collective agreement running from 2009 to 2012. The Employer is estopped from introducing this change during the life of the Agreement. 32. The implementation of paid parking is unreasonable and in breach of the Employer’s own policy, as given the high volume of employment at the site and the considerable number of people who commute to the site from locations outside Toronto, which is well known to the employer, public transit options are not viable, nor are there realistic alternatives to parking in the lots. 33. The process used to determine the cost of the parking was unreasonable, as it did not involve appropriate comparators; comparisons, for example, to parking situated in downtown Toronto, or in the Yonge St. commercial corridor, in appropriately skews any reasonable assessment of rates for parking at this compound at Keele and Wilson. 34. The implementation of the parking strategy constitutes an unreasonable exercise of the Employer’s rights, and violates Articles 1, 2 3, and 9 of the Collective Agreement, as - 6 - well as the Ontario Human Rights Code as it relates to discrimination on the basis of disability and religion, including the duty to accommodate. 35. The Union seeks a declaration that the provisions of the Collective Agreement set out above and the Ontario Human Rights Code have been violated; a rescission of the requirement that employees pay for parking; An order that the terms on which parking is to be provided by subject to negotiation between the Union and the Employer; damages payable to the Union and its membership in respect of parking and other costs related to the Employer’s breaches; and any other remedies which are just in the circumstances. [5] The parties referred to some additional facts and introduced some documents at the hearing. The lottery mentioned in paragraph 18 of the particulars did not take place because it turned out that there were enough parking spots for the employees who requested one. The Parking Policy introduced in September of 1998 providing for paid employee parking indicated that it would be introduced in 1998. I note that one of the objectives of the policy is to recognize the needs of physically disabled employees. The Travel, Meal and Hospitality Expenses Directive provides on page 9 that “expenses related to a person’s regular commute are not reimbursable” and on page 19 that “Parking costs incurred in the office area as part of a regular commute to work will not be reimbursed”. [6] Once counsel provided the factual context, I entertained their submissions on the Employer’s motion to dismiss all aspects of the grievance. I have considered those submissions in light of the facts and the decisions referred to me by counsel. In concisely addressing the issues, I find it unnecessary to set out the submissions of counsel and to refer in any detail to the decisions upon which they relied. I am satisfied that many of the Employer’s objections to the grievance have considerable merit, but that the Union is entitled to proceed to a hearing on some of its claims alleging a contravention of the Collective Agreement and the Human Rights Code. - 7 - [7] Employer counsel referred me to the following decisions: OPSEU (Nunn) and Ministry of Correctional Services (1995), GSB No. 141/93 (Kaufman); OPSEU (Group Grievance, Andersen et al.) and Ministry of Correctional Services (June 2002), GSB. No 1093/01 (R. Brown); OPSEU (Group Grievance, Andersen et al.) and Ministry of Correctional Services (November 2002), GSB. No. 1093/01(R. Brown); OPSEU (Cherwonogrodzky et al.) and Ministry of Finance (2004), GSB. Nos. 2002-0994 et al. (Gray); OPSEU (Lesieur et al.) and Ministry of the Environment (2005), GSB Nos. 2002-1756 et al. (Briggs); OPSEU (Belanger et al.) and Ministry of Community Safety and Correctional Services (2006), GSB Nos. 1999-1782 et al. (Harris); OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB Nos. 2003- 0905 et al. (Dissanayake); OPSEU (Perretta et al.) and Ministry of Revenue (2012), GSB Nos. 2011-0758 et al. (Petryshen); OPSEU (Union) and Ministry of Transportation and Communications (1981), GSB No. 455/80 (Palmer); Re St. John’s Convalescent Hospital and CUPE, Local 790 (1983), 11 L.A.C. (3d) 278 (Devlin); Re Manitoba Housing Authority and I.U.O.E., Local 827 (1994), 41 L.A.C. (4th) 225 (Teskey); OLBEU (Kampman/Skelding) and Liquor Licence Board of Ontario (1990), GSB Nos. 1193/89 et al. (Roberts); Re Durham College and OPSEU (2004), an unreported decision dated October 20, 2004 (Carter); OPSEU (Nadeau et al.) and Ministry of Transportation (2009), GSB No. 2007-3497 (Gray); OPSEU (Couture et al.) and Ministry of Government Services (2010), GSB No. 2008-3329 (Dissanayake); OPSEU (Press) and Ministry of Health and Long-Term Care (2007), GSB. No. 2003-1461 (Mikus); OPSEU (Roberts, Rabley, Hugo & Bain) and Ministry of Correctional Services (1988), GSB Nos. 2545/87 et al. (Verity); Re Atomic Energy of Canada Ltd. and Atomic Energy Labour Alliance (1986), 22 L.A.C. (3d) 225 (Swan); OPSEU (Brown) and Ministry of Community and Social Services (1988), GSB No. 0513/86 (Barrett); OPSEU (Carter et al.) and - 8 - Ministry of Correctional Services (1988), GSB Nos. 2291/86 et al. (Knopf); and, OPSEU (Union) and Ministry of Health and Long-Term Care (2007), GSB No. 2005-3289 (Gray). [8] Union counsel relied on the following decisions: OPSEU (Evangelista et al) and Ministry of Attorney General (2011), GSB Nos. 2009-1091 et al. (Harris); and OPSEU (Pinazza et al.) and Ministry of Community Safety and Correctional Services (2004), GSB Nos. 2002-0840 (Herlich). [9] The primary basis for the Union’s grievance is the decision of the Employer to introduce a system of employee paid parking at the Downsview Complex during the current Collective Agreement. For many years employees working at the Downsview Complex parked for free. In addition to challenging the introduction of paid parking, the Union contends that the Employer’s actions were unreasonable in a number of respects, such as in its determination of the monthly parking rate. However, there is no provision in the Collective Agreement that creates any restriction on management’s right to introduce paid parking. The arbitral jurisprudence, including the decisions of the GSB, clearly establishes that an arbitrator does not have the jurisdiction over a subject which is not addressed in the Collective Agreement. Since the Collective Agreement does not contain any explicit or implied provision that precludes the Employer from introducing paid parking, the GSB has no jurisdiction to deal with the Union’s claim that the Employer cannot introduce paid parking or its claim that the Employer was unreasonable in the way it introduced paid parking or its contention that certain aspects of the paid parking scheme are unreasonable. This determination applies, for example, to those matters addressed in paragraphs 26, 28, 29, 32 and 33 of the Union’s particulars. - 9 - [10] Union counsel referred to the section of the management rights provision which obliges the Employer to “make reasonable rules and regulations” and he argued that this obligation was breached when the Employer acted unreasonably with respect to the parking issues. I disagree. This section of the management rights provision is not intended to apply to the type of alleged unreasonable Employer conduct which the Union challenges in this grievance. I adopt the comment of Vice-Chair Gray on this point when he wrote in OPSEU (Cherwonogrodzky) and Ministry of Finance, supra, at paragraph 26 that “It is difficult to imagine that by agreeing that “rules and regulations” would be reasonable the employer intended or the union believed that any decision of general application that the employer might announce concerning how it would thereafter manage its operations would be exposed to arbitral review for reasonableness.” [11] I am also satisfied that the particulars do not establish any basis for an estoppel. This is not a case where management now attempts to rely on a provision in the Collective Agreement which it has ignored for many years. There is no suggestion that the Employer made a representation to the Union about parking which can form the basis an estoppel. I agree with Employer’s counsel’s submission that the Employer’s failure to implement the paid parking policy it introduced in 1998 until 2011 cannot base an estoppel. [12] The particulars disclose the Employer’s efforts over the years to communicate with the Union and employees about parking. There are no particulars which illustrate that the Employer dealt with bargaining unit employees inappropriately or inappropriately altered terms and conditions of employment. Since the lottery was not implemented, I agree with the - 10 - Employer’s contention that this issue is moot. I am satisfied that there is no basis for proceeding to a hearing on these issues. [13] Finally, there is the issue of whether the Union’s particulars are sufficient to establish a prima facie breach of articles 3 and 9 of the Collective Agreement. As noted previously, these provisions deal with discrimination and health and safety. There is also some merit to the Employer’s contention that the particulars relating to these alleged breaches are skimpy and vague. However, the facts upon which the Union intends to rely do relate to a breach of the Collective Agreement and their adequacy is not a basis for finding that they fail to establish a prima facie case. As Vice-Chair Harris noted in OPSEU (Evangelista et al.) and Ministry of Attorney General, supra, it not appropriate at this stage to assess the quality of the Union’s evidence. I am not prepared to conclude at this stage that the facts relied on by the Union cannot amount to a contravention of these articles in the Collective Agreement and the Human Rights Code. [14] Accordingly, the GSB will hear the allegations of the Union relating to it contention that the Employer has contravened articles 3 and 9 of the Collective Agreement. For the reasons set out above, the GSB will not hear the other allegations made by the Union which form part of the basis for its grievance. [15] In light of this decision, I suggest that the parties consider a further attempt to resolve the outstanding issues before proceeding to a hearing. I have the sense that these issues did not receive much attention in the face of the other issues concerning paid parking. If the Union intends to proceed with the outstanding issues, it can request the Register to schedule - 11 - another hearing date. Before any further hearing, I direct the Union to fully particularize its allegations that the Employer has breached articles 3 and 9 of the Collective Agreement. Dated at Toronto, this 31st day of July 2012. Ken Petryshen, Vice-Chair