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Home My WebLink About2002-2441.Union.12-10-31 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#2002-2441 UNION#2002-0999-0018 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 Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Omar Shahab Ministry of Government Services Labour Practice Group Counsel HEARING October 23, 2012. - 2 - Decision [1] I have two Union grievances before me which can be described as bargaining unit integrity grievances. Grievance 1 is dated August 17, 2011. It alleges that “The Employer is in violation of Article 1 and any relevant employment legislation by allowing non-ministry employees (agency staff) to perform bargaining unit work of Court Services Representatives in the Brampton Court (Mandatory Information Program).” Grievance 2 is dated August 24, 2011. It raises the same issue, but is broader in scope. Grievance 2 claims that “The Employer is in violation of Article 1 and any relevant employment legislation by allowing non-ministry employees to perform the bargaining unit work in the FLIC and MIP in various courts (eg. Milton etc.).” [2] The parties agreed to proceed first with the bargaining unit integrity issue at the Brampton Court. The central issue is whether Information and Referral Coordinators (IRCs) supplied by an external agency are performing bargaining unit work at the Family Law Information Centre at the Brampton Court. The IRCs were introduced to the Brampton Court in 2011. The Union takes the position that the IRCs at the Brampton Court are performing the work of the Court staff. More specifically it contends that the IRCs are doing the work of Court Service Representatives (CSRs). The Employer contests grievance 1 on a number of grounds, including its claim that the IRC’s are not engaged in the performance of bargaining unit work. The parties expect that a decision on this bargaining unit integrity issue at Brampton will provide some guidance on that issue for the approximately seventeen Courts covered by grievance 2. [3] The Employer agreed to present its evidence first. The testimony of its first witness has been completed. Employer counsel has indicated that the Employer’s second witness will - 3 - testify about the work performed by IRCs at seventeen other Courts in the Province over a period of many years. Based on its understanding of what evidence the Employer’s second witness will provide, the Union took the position that I should not admit the testimony of this witness. Counsel made submissions on this issue at the hearing on October 23, 2012. [4] The Union objected to the evidence in question for a number of reasons, some of which are interrelated. It argued that evidence is not arguably relevant, particularly in light of the understanding to focus on the situation at the Brampton Court first. It also submitted that calling evidence about the work of IRCs at other Courts flies in the face of the understanding to deal only with the Brampton Court at this stage of the proceeding. It argued that the practical reasons for first limiting the hearing to the Brampton Court will be undermined if the Employer is permitted to call evidence about the work performed by IRCs at other Courts. The Union also claimed that the testimony of the Employer’s second witness will not have any probative value given its understanding that she will be in a position to only provide indirect evidence. It submitted that her testimony on the practice of using IRCs in other Courts cannot meet the test of being unambiguous and unequivocal. In support of his submissions, Union counsel referred me to a section at page 25 from The Law of Evidence in Canada, Second Edition, Sopinka, Lederman and Bryant and to the following decisions: OPSEU (Deprophetis) and Ministry of Labour (2010), GSB No. 2008-3994 (Dissanayake); Re Horizen Plastics Co. and UFCW Canada, Local 175 (2009), 187 L.A.C. (4th) 52 (Springate); Re Vancouver Shipyards Co. and IBEW, Local 213 (1999), 80 L.A.C. (4th) 207 (McPhillips); Re Redpath Sugars and Canadian Conference of Teamsters, Local 1688 (1998), 73 L.A.C. (4th) 304 (Barrett); Re Hydro Ottawa Ltd. and IBEW, Local 636 (2009), 189 L.A.C. (4th) 33 (Weatherill); and, Re Marnwood Lifecare Centre and CUPE, Local 2225-06 (1997), 62 L.A.C. (4th) 1 (Briggs). - 4 - [5] Without detailing the submissions made on behalf of the Employer. I simply note that Employer counsel addressed all of the points referenced by the Union in the course of arguing that the testimony of the Employer’s witness is arguably relevant and on this basis should be admitted. Employer counsel emphasized that it will be critical to examine the work performed by IRCs at other Courts in order to assess whether the work performed by IRCs at the Brampton Court constitutes bargaining unit work. Employer counsel relied on the following decisions: OPSEU (Union) and Ministry of Health and Long-Term Care (2002), GSB Nos. 1942/94, 0952/00 (Fisher); OPSEU (Pilon) and Ministry of Community and Social Services (2003), GSB Nos. 0573/99 et al. (Brown); OPSEU (Hunt et al.) and Ministry of Attorney General ( 2006), GSB Nos. 2001-0534, 2003-2944 (Abramsky); and, OPSEU (Union) and Ministry of Revenue (2010), GSB No. 2008-0647 (Herlich). [6] After considering the submissions of counsel on the admissibility of the evidence which the Employer intends to call, I am satisfied that the evidence is arguably relevant and that there is not a sound basis for excluding it. [7] Employer counsel indicated that the testimony of the witness will include direct evidence about the work performed by IRCs who are not in the bargaining unit at seventeen Courts on order to establish that the work performed by IRCs at the Brampton Court is not bargaining unit work. Given that there are IRCs and CSRs in other Courts, evidence about the work performed by IRCs at other Courts would be at least arguably relevant to the question of whether the IRCs at the Brampton Court are performing bargaining unit work. It would be premature to exclude the evidence at this stage by prejudging its probative value. Without - 5 - hearing the evidence, it is difficult to determine its quality and whether it unambiguously or unequivocally supports a particular practice. [8] The primary basis the Union relies upon to exclude the evidence in question is the agreement to deal with the bargaining unit integrity issue at the Brampton Court first. The Union does not suggest that the Employer is acting in bad faith in its attempt to call the evidence at issue. The Employer is not attempting to resile from an agreement because the proceeding at this stage will still only resolve the bargaining unit integrity issue at the Brampton Court. I agree with Employer counsel’s submission that the agreement to deal with the Brampton Court first did not include an understanding that no arguably relevant evidence would be called about the work performed by IRCs at other Courts. Indeed, Employer counsel clearing indicated in his opening statement that the Employer intended to call the evidence at issue. I appreciate that the admission of this evidence and the Union’s efforts to address the evidence will likely mean that it will take longer to complete the first stage of this proceeding. However, this is not a valid basis in these circumstances for excluding arguably relevant evidence. [9] Accordingly, the Union’s motion to exclude the evidence in question is hereby denied. The Employer can call the evidence and counsel can argue about what weight, if any, the evidence should be given in final argument. Dated at Toronto this 31st day of October 2012. Ken Petryshen, Vice-Chair