GSB# 2002-2393

UNION# 2002-0429-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ladouceur et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

July 7 & 8, 2005.

Decision

On December 2, 2002, four employees of the Ministry of the Environment filed a grievance that alleged the following:

Employer refuses to recognize that the grievors have been on “stand-by” while having performed or while performing “designated employee” duties/responsibilities for the Province of Ontario Nuclear Emergency Plan/General Province – Wide Monitoring Plan.

By way of remedy they requested:

Recognize grievors’ duties/responsibilities have in the past and still presently require grievors to be on “stand-by” at all times other than normal working hours. Grievors receive remuneration with interest compounded bi-weekly for all lost wages from the time the grievors became “designated employees”.

After it became apparent that this matter could not be resolved by way of mediation, the parties held a discussion to discuss the process whereby this matter would be litigated. It was agreed that the Union would provide fulsome particulars to the Employer and the Employer would then provide disclosure and its particular to the Union. The Union would have an opportunity to reply to those particulars. It was hoped that, at the very least, this exchange would allow the parties to narrow the dispute.

The Employer made known to the Union in a letter dated June 1, 2005, that it would raise three preliminary objections and would request that the grievance be summarily dismissed. Further, it would ask this Board to determine this preliminary matter prior to hearing the merits.

The Employer’s first reason to dismiss the matter is because, based on the particulars, there is no prima facie breach of the collective agreement. Second, the Union should have brought this matter forward much earlier because the practice relied upon by the Union has been in place for a number of years and there have been many renewals to the collective agreement in the interim. For that reason the Union is estopped. The final reason for this matter to be summarily dismissed is because the requested remedy would provide these grievors with a substantial, indeed enormous, monetary benefit. The absence of clear language in the present collective agreement entitling these grievors to such an extraordinary benefit must lead to the dismissal of the grievance.

The Union’s particulars are contained in a twenty seven-page letter, dated December 23, 2004, to the Employer. Six further pages were provided on January 10, 2005. In April of 2005 the Employer sent to the Union thirty-one pages of its particulars. Finally, the Union responded to the Employer’s particulars with a twenty-six page letter dated April 29, 2005.

In my view, it is fair to characterize the Union’s particulars as a “road map” of their litigation intentions. The documents referred to above state the Union’s view of the salient facts as well as the various statutes that touch upon this matter such as The Province of Ontario Nuclear Emergency Plan. Also contained therein are references to the sections of the collective agreement and earlier Grievance Settlement Board jurisprudence upon which the Union will rely.

I am of the view that in order to have some appreciation for the grievors’ view of this matter, it would be helpful to set out the Introduction to their particulars. It was stated:

To protect the public’s health and welfare during nuclear emergencies around the world, the grievors were assigned roles and responsibilities to implement the General Province-wide Monitoring Program (GPMP) on or about January, 1995 for the Eastern Region of the Ministry of the Environment. The General Province-wide Monitoring Plan (GPMP) was issued in May 1992 by the former Solicitor General (now called the Minister of Community Safety and Correctional Services). The GPMP is an “implementing document” and considered part of the Provincial Nuclear Emergency Plan (PNEP).

By November 1993 training session and again later in November 1994 the grievors were told by their supervisors that they were not to be placed on a “stand-by” [sic] to implement the GPMP (when activated by training or real event). Instead, the grievors were told by the above noted parties that they would be called day or night if the plan needed to be activated and that they would not be able to refuse the assignment due to the urgency of the matter.

If the grievors received a telephone call regarding the plan, the grievors would be informed by a designated management person that a nuclear incident had occurred and that they would be placed on “stand-by” to implement the Ministry of the Environment’s Eastern Region portion of the General Province-wide Monitoring Plan. When the grievors received a second call from the employer, the grievors would “immediately” respond to the workplace and begin to sample at pre-designated areas using the Ministry of the Environment’s “Eastern Region’s Implementation document of the General Province-wide Monitoring Plan”.

In August 2002, a GPMP training exercise occurred. This was the first exercise that grievor Lusk had been part of in many years. At that time, Mr. Lusk began to look at all of the other plans that make up the PNEP instead of just the “Eastern Region’s Implementation document of the General Province-side Monitoring Plan” which had been the only document provided to him. Based on a review of all of the plans and Statutes involving the PNEP, the grievors determined that they are actually expected to be immediately available to answer a call and immediately respond to certain incidents involving the GPMP.

It appears the Employer’s Supervisor’s have informed the grievors that they will not be disciplined if they refuse to work. However, paragraph 1.5.10 of the Provincial Master Plan and s. 11 of the Emergency Management Act make clear that those assigned a position can be penalized by being sued by anyone – members of the public or even the Crown since refusal of work could result in the loss of life, threaten the safety of humans and threaten the natural environment. The grievors now believe they were actually placed on “stand-by” by the Employer in 1995 and have been on stand-by since that time or until their employment ended with the Ministry.

At the commencement of this hearing the parties agreed to put certain documents before the Board on consent. However, the Union made clear that its agreement was given for the limited purposes of litigating the merits of the dispute. Specifically, it did not agree that these documents were before me for the purpose of arguing this preliminary motion. To some extent, the Employer relied upon these documents during the course of its preliminary motion. The Union objected strongly to this reliance.

I am of the view it would be improper for me to consider information contained in those documents for the purposes of this motion. In the absence of consent, the exhibits have not been properly entered into evidence.

Mr. Baker, for the Employer, in his submissions, referred to various sections of the Employer’s particulars. Those particulars were divided into two sections. It was stated therein that the first section “contains a description of how the Ministry of the Environment is organized to deal with spills and emergencies, summarizes key requirements under The Emergency Management Act and outlines the Ministry’s involvement in response to a nuclear emergency”. The Introduction to Part 1 further illustrates the information contained. It stated:

This part of the submission is divided into two sections. Section 1 describes how the Ministry of Environment is organized to deal with spill and emergencies. The intent is to provide some context for considering OPSEU grievance GSB #2002-2393 – in which the grievors claim they are on a permanent state of “stand-by” readiness just in case they are ever contacted during the after-hours to take samples under the General Province-side Monitoring Plan. Section 2 includes information on the requirements under the Emergency Management Act, and expectations placed on Ministry of the Environment as one of several support agencies under the Provincial Nuclear Emergency Response Plan.

The second part of the Employer’s particulars “contains specific comments in response to the grievors’ submissions”.

It was the Union’s position that a motion of dismissal based on no prima facie case must be decided with reliance solely upon the Union’s factual allegations. For this Board to consider the Employer’s factual response would be improper when ruling on such a preliminary motion.

I agree with the Union in this regard. I cannot consider and rely upon the Employer’s alleged facts and views of the outstanding issues at this point in the proceedings. The test in this consideration is relatively straightforward. It is whether the Union’s case, as alleged, manifests a prima facie breach of the collective agreement.

The Union also asserted that this Board cannot consider the many facts that were put forward by the Employer in its submissions regarding this preliminary motion. It was stated by the Employer that some of those facts are “undeniable”. For example, the cost to the Employer if the grievance was upheld was disclosed. It was suggested if the grievors received the monetary remedy requested they would receive a compensation package similar to that of a Deputy Ministry. The Board also heard about the potential ripple effect throughout this and other Ministries if this matter were decided in the Union’s favour. It was the Union’s position that those are assertions of fact which were not be alleged by the Union in its particulars nor have they been proven. For those reasons they cannot be considered.

Again, I must agree with the Union for the same reasons stated above. It might be that the facts asserted by the Employer in its particulars and in its submissions will ultimately be sufficient to have the grievances dismissed. However, a determination that includes a consideration of the Employer’s evidence and views would be made after hearing the merits of the matter.

EMPLOYER SUBMISSIONS

Mr. Baker, for the Employer, asserted that this matter has been litigated previously before this Board and it has been determined that the Union must prove that employees are entitled to stand-by. It is apparent from the exchanged particulars that the grievors do not meet the threshold needed for this Board to uphold the grievances.

It was submitted by the Employer that the test for a stand-by is not complex. The assignment must be authorized, it must have a beginning and an end and one cannot be unavailable due to vacation or other absences. There is no assertion in the Union’s particulars that a manager actually assigned the grievors to be on stand-by. The particulars disclosed no recitation of a discussion regarding the assignment of stand-by and there was no production of an email or a memo with such an assignment set out. Indeed, the grievors admitted in their own particulars that they have not been assigned to be on stand-by. There is no written authorization of stand-by. They have not been told that they have to be immediately available for work. Further, they did not provide evidence of the threat of discipline in the event they failed to be available. at most, the grievors have alleged that they have been told that they may be placed on stand-by. Simply put, that is not sufficient for a finding of a breach of the collective agreement.

In this regard the Employer relied upon Re OPSEU (Union) & Management Board Secretariat (January 26, 2004) GSB#2002-2427 (Brown); Re OPSEU (Adams) and Ministry of Solicitor General and Correctional Services (March 20, 2000) GSB#0389/97 (Brown); and Re OPSEU (Jones) and Ministry of Solicitor General and Correctional Services (September 12, 1994) GSB#1099/93 (Devlin).

Regarding the estoppel, it was submitted by the Employer that the grievors have known of the situation for 12 years and they failed to grieve prior to December of 2002. They are now asking this Board to award compensation for this alleged breach back many years. The detriment to the Employer is obvious.

The necessary elements of estoppel have been met in this matter Mr. Baker stated. First, there has been acquiescence of a practice. Second, there has been a representation by conduct by the grievors that they would not enforce certain provisions of the collective agreement. Finally, the Employer relied upon these representations to its detriment. In this matter the Employer might have attempted to alter the language in the collective agreement had it known the Union’s view of this matter. These facts are irrefutable. In his regard the Employer relied upon Re OPSEU (Lasalle) and Royal City Ambulance Services (October 6, 1999) GSB#0284/98 (Petryshen); and Re OPSEU (Johns) and Ministry of Revenue (February 8, 1991) GSB#308/90 (Stewart).

The final aspect of the Employer’s preliminary motion is that this Board cannot take jurisdiction of this matter because it is well established that for a Board of Arbitration to provide a remedy that confers a very large monetary benefit there must be clear and precise language in the collective agreement and that is not the case in this instance. The grievors cannot ask this Board to award what would be a significant cost benefit without an unambiguous provision in the collective agreement. It is evident from the particulars that the grievors seek an order that they have been on stand-by for twenty-four hours a day, three hundred and sixty five days per year for a number of years. If this assertion cannot be determined by a review of the particulars, the Board only has to look at the stand-by and salary provisions. The stand-by clause in the collective agreement cannot be twisted in the fashion sought by the grievors to expand the salary rates. In this regard the Employer relied upon Re Cardinal Transportation B.C. Inc. and CUPE – Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4th) 230 (Devine); and Re Canada Post Corp. and CUPW (Schlosser) (1993), 1993 CanLII 16663 (CA LA), 39 L.A.C. (4th) 6 (Bird).

The grievors, in their particulars, are picking and choosing words and attempting to have this Board determine that there is more to this matter than there is, in fact. They cannot, in essence, assign themselves stand-by. There was no reference to authorization in the particulars and so this grievance must be dismissed because there is no prima facie case established.

UNION SUBMISSIONS

Mr. Roland, for the Union, first addressed the argument regarding estoppel. It was submitted that the Union’s particulars were constructed for the purposes of setting out the merits of this matter. The certainly were not drafted with any knowledge of an impending estoppel argument. Indeed, in this instance it would be wrong to determine an estoppel because there is no evidence. In order to find an estoppel this Board would have to hear evidence of acquiescence of a long-standing practice and detrimental reliance. Indeed, the Union should have an opportunity to challenge through cross-examination the Employer’s evidence about whether there has been a long-standing practice or detrimental reliance. The jurisprudence put forward in this regard by the Employer was written, in each case, after evidence was heard. Further, estoppel is a doctrine of fairness. In order for a finding of estoppel in this matter there would first have to be a finding for the Union on the merits.

The Union concedes that the Employer has not told the grievors that they are on stand-by. However, that is not the end of the matter. The Union is entitled to call evidence that this is wrong and that the grievors are, by their conduct, in actual fact, on stand-by. This is not, as asserted by the Employer, a Union attempt to create a new right under the collective agreement. There is an article regarding stand-by and the grievors allege that the Employer has breached the provision by failing to assign them this duty. As set out in the Union’s particulars, the grievors are included in management plans and by virtue of various statutes, as well as their place on call lists, they do fall under the stand-by provision. The success of this grievance will depend on the long-standing stand-by provisions in the collective agreement.

The grievors have set out in their particulars that the Employer has said that the Ministry must be at the highest state of readiness. This is the issue at hand, in the Union’s submission. It is a matter of degree. What is the state of the grievors’ readiness, in actual fact, expected by the Employer and does it meet the requirements for stand-by. Do the various statutes and plans advertently or inadvertently put the grievors on stand-by? The question that this Board will have to address at the conclusion of hearing evidence is whether these grievors have a factual right to stand-by and it cannot be addressed in this preliminary motion.

The Union stated that the Employer is asking this Board to consider the Union’s particulars as if they have the same status as pleadings. To do so would be wrong. This Employer argument has been made prematurely. A decision as to whether the Union has a prima facie case should be determined after the evidence is heard and tested in cross examination.

Mr. Roland noted that, in its submissions, the Employer suggested that “at best, this is a question of general availability”. That concession illustrates precisely why this matter cannot be dismissed on the basis of a preliminary motion. This grievance will require the Board hearing the evidence and assessing the degree of the grievor’s availability and responsibilities as well as what the Employer’s actual expectations are in this regard. Only after that evidence is heard, the Board will then be able to determine whether the standby provisions of the collective agreement has been violated.

The Union relied upon Re OPSEU (Bennett et al) & Ministry of Labour (November 6, 1989), GSB#276/88 (Wilson); Re OPSEU (Bedard) & Ministry of Health (August 12, 1987), GSB#1281/85 (Brandt); and OPSEU (Walker and Taylor) & Ministry of Solicitor General (November 10, 1982), GSB#417/82.

By way of reply the Employer re-stated its view that this matter must be dismissed preliminarily because the Union failed to assert evidence that the grievors were expressly told of an assignment of stand-by. All of the subjective views of the grievors set out in their particulars are irrelevant. In conclusion it was asserted that the grievors are all “foot-soldiers” who are attempting to pull themselves up to the top levels of management. That cannot be achieved through this process.

DECISION

The Employer asked that I dismiss the grievance summarily for three reasons:

1. No prima facie violation of the collective agreement.

2. The Union is estopped from bringing asserting any rights in this regard.

3. When such a large monetary remedy is being sought, clear and precise language is required and the Union cannot attempt through litigation to achieve what it could not at bargaining.

After consideration, I am not prepared to dismiss this grievance at this point in the proceedings as suggested by the Employer. A review of the Board’s jurisprudence regarding stand-by entitlement reveals that each decision was rendered after a comprehensive consideration of the evidence led by the parties.

The Employer suggested that the grievor’s failure to point to an actual management assignment of stand-by must lead to upholding its preliminary objection. I disagree. If the success of litigation regarding on call and stand-by depended solely upon a management designation of the assignment, it seems to me that virtually all of these cases would fail. Indeed, a review of the Board’s jurisprudence reveals that the test for the determination of whether an employee should receive stand-by includes a number of factors not merely whether he was specifically assigned or authorized to be on stand-by.

In Re OPSEU (Adams Group) (supra), the Board had to determine whether approximately fifty-five unclassified employees were entitled to stand-by or on-call pay. In the decision, Vice Chair Brown stated, after hearing days of evidence, that he had to determine “were the grievors required only to be generally available or were they required instead to maintain of one of the states of readiness described in the collective agreement”.

In Re OPSEU (Walker) (supra) it was said at page 13:

While each of these cases turned on its own facts, there are some general conclusions which can be drawn from the jurisprudence. Firstly, the matter is not decided simply on the language which the Employer uses. Merely calling the pager system “on-call” does not make it an Article 16 situation. The question is what are the real requirements of the duty. Secondly, one gets at the real requirements by examining the circumstances of the job, and the written and verbal instructions to the employees.

I agree with and adopt those comments. As mentioned above, the grievors did not contend in their particulars that the Employer had, in some fashion, authorized stand-by. However, the Employer asserting though Counsel’s submissions various facts including no assignment of or expectation of stand-by does not lead to a preliminary dismissal of the grievance. The grievors set out complicated and detailed particulars regarding the various statutes and their application to their workplace, history of their work, their duties and responsibilities and their view of the real management expectations of them as employees in cases of emergencies. I understand that the Employer disagrees with much of that evidence and certainly disputes the characterization of most of it. That is precisely what it is necessary to have that evidence called by the Union and challenged by the Employer in cross-examination. For those reasons I cannot accede to the Employer’s preliminary motion to dismiss this grievance without hearing the Union’s evidence.

At this point in the proceedings, given the complex particulars and the fact that I have heard no evidence, I am also not prepared to determine whether there is an estoppel. The Employer is, of course, free to make submissions in this regard at the conclusion of the evidence.

Finally, the third basis raised by the Employer for dismissing this grievance on a preliminary basis is also a matter more properly raised after I have heard the evidence that would allow me to consider and determine the submission.

As noted above, the Employer provided jurisprudence for consideration in this matter. All of those decisions, both of the Grievance Settlement Board as well as other Boards of Arbitration were rendered after hearing evidence. None were issued in response to a preliminary objection.

It is apparent from the considerable particulars that this matter will involve many days of evidence. I accept that the Employer has, by way of this preliminary motion, merely attempted to eliminate the need to litigate a matter which it sincerely believes the Union has little likelihood of winning. The Employer may ultimately be right in this regard. However, it would be wrong to dismiss a matter at this stage for those reasons. The hearing will continue on the scheduled days.

Dated in Toronto this 14th day of September, 2005.