GSB# 2003-3764
UNION# 2003-0999-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Janice Johnston
Vice-Chair
FOR THE UNION
Nelson Roland Barrister and Solicitor
FOR THE EMPLOYER
Fateh Salim Counsel Ministry of Government Services
HEARING
October 18, 2005.
Decision
This decision deals with a request for interim relief which was made by the union. The hearing in this matter was held on October 18, 2005.
The grievance at issue in this case is dated December 19, 2003. It alleges, inter alia, that the Ministry has violated articles 9.5 and 9.6 of the Collective Agreement, which deal with video display terminals (VDTs).
The relevant language, in part, in the collective agreement is:
9.5 After each hour of continuous operation of a VDT, a VDT operator shall be relieved of such duties for a period of ten (10) minutes.
9.6 At the beginning of assignment to a VDT and annually thereafter, a VDT operator who is regularly required to operate a VDT for two (2) hours or more per day shall be required to undergo an eye examination by an optometrist or an ophthalmologist who is qualified to conduct the following tests:
(a) unaided visual acuity (letter chart test)
(b) refractive findings
(c) corrected visual acuity
(d) amplitude accommodation
(e) suppression
(f) muscle balance (near, one metre, distant)
(g) slit lamp biomicroscopy.
The cost of the eye examination, not to exceed the OHIP fee schedule for such examinations, shall be borne by the Employer, and the VDT operator shall authorize release of a copy of the examination report to the Employer.
The issue in dispute is framed by counsel for the Ministry in a letter dated May 9, 2005. In it counsel confirmed the employer’s legal position with respect to the VDTs located in the control rooms at correctional institutions. Counsel stated:
“To confirm, for the purposes of the present proceeding, the Employer’s position is that the equipment used in central and sub-control rooms of all MCSCS Correctional Institutions, which meet the CSA definition of a VDT, are VDT’s as per the current Article 9 of the Collective Agreement. However, it continues to be the Employer’s position that Correctional Officers are not VDT Operators and that they do not operate the VDT’s in the manner contemplated by the collective agreement. Consequently, the provisions do not apply to Correctional Officers working in the control and sub-control rooms of the institutions”.
Therefore, this letter confirms that the Ministry was no longer maintaining a position that it had initially taken, namely that the equipment at issue in the case before me was not a VDT. The Ministry conceded that the equipment was a VDT. The central issue remaining in dispute is the meaning of the terms “operate” and “continuous” as used in article 9.5 and whether or not corrections officers (C.O.’s) “operate” the VDTs in a “continuous” manner as stated in Article 9.5. In other words, does the work of the C.O.’s meet the requirements of Article 9.5 of the collective agreement. The union alleges that it does; the Ministry does not agree.
This matter first came on for mediation/arbitration on the merits on June 8, 2004. On June 8, 2004, the parties signed Minutes of Settlement in which they agreed to refer the issues raised in the grievance to the next “MERC” meeting scheduled for later the same month. Unfortunately, this attempt by the parties to resolve this case was unsuccessful.
The case came back on for hearing on October 8, 2004. At this time, some procedural matters were raised and it was agreed that we would take a view of the Central East Correctional Centre on December 7, 2004. Previously scheduled hearing dates for October 13 and October 14, 2004, were adjourned. The procedural issues are dealt with in a decision dated October 21, 2004. The viewing of the institution and another short hearing took place on December 7, 2004.
This case next came on for hearing on January 14, 2005. At that hearing, procedural matters were again raised and a decision dated January 18, 2005, dealt with the issues. After a couple of adjournments, the hearing of this matter continued on May 3, 2004. On that day and the next date, May 13, 2005, procedural issues were again addressed and resulted in another decision dated May 31, 2005. It was agreed that the case would continue on October 18, 2005.
On July 11, 2005, counsel for the union wrote to the board requesting that an emergency hearing be scheduled to deal with an interim relief application. In discussions between the parties and the Board, it became apparent that it would not be possible to schedule a hearing to deal with the request for interim relief before the next date we had scheduled to deal with the merits of this case (which as noted above was October 18th) . At that time, the parties were advised that as the application for interim relief was a separate matter, it could be dealt with in an expedited fashion by another Vice-Chair of the Board. The union indicated that it did not wish to proceed before another Vice-Chair. Accordingly, the application for interim relief was heard on October 18, 2005.
The application for interim relief states as follows:
... the Union is requesting that the G.S.B., by way of interim relief, order the Ministry to provide all employees working at V.D.T.s in any and all provincial correctional institutions:
i) relief from V.D.T. duties of a period of 10 minutes after each hour of continuous operation of the V.D.T.s (as described in Article 9.5 of the Collective Agreement); and
ii) at the beginning of the assignment of the employees to V.D.T. and annually thereafter an eye examination (as described in 9.6) of the Collective Agreement.
The Ministry had conceded, after long denying it, that V.D.T.s are used in the Ministry’s institutions. The Union is simply requesting that an interim order be issued that those using the Ministry V.D.T.s, in the course of their duties, be afforded the Health and Safety provisions of 9.5 and 9.6 of the Collective Agreement, at the very least. Again we are requesting this, at present, on only an interim basis, pending the outcome of this long delayed case involving the Health and Safety of Ministry employees.
Therefore, the union is seeking the same relief by way of an interim order as is sought in the main proceeding.
The collective agreement language at issue in this case has been in place for a long period of time. It was addressed previously in a decision of the Grievance Settlement Board, OPSEU (Forester) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 360/83 (the “Forester” case). As is apparent from the citation, the decision in that case was issued in 1983. In the Forester case, the Board dealt with the same collective agreement language as is before me and a similar issue.
The employer called one witness in the interim relief application. The union did not call any witnesses. The employer’s only witness, Mr. Don Poynter, primarily testified as to the costs associated with the granting of the relief requested by the union. Although he conceded that his estimates represented a “worst case scenario”, he suggested that the cost associated with the granting of this application for interim relief would be approximately 10.6 million dollars.
DECISION
Counsel for the Ministry took the position that I did not have the jurisdiction to order interim relief in this case. He suggested that my authority to make interim orders was based on Section 48(12)(i), which states that an arbitrator has power “to make interim orders concerning procedural matters”. Counsel argued that my jurisdiction is limited to the granting of interim relief on procedural matters and that no matter how expansively “procedural” is defined, it does not include the kind of remedy the union is seeking in this case.
Given the conclusions that follow, it is not necessary to determine this issue. Even if I had the jurisdiction to grant the union the interim relief it is seeking in this case, I would not do so.
The parties agreed that for this application to succeed, the union must establish the existence of an arguable case in the main application. In addition, prior to ordering any interim relief, it was agreed that the Board must balance the potential harm to the parties which could result from granting or not granting the relief sought.
In OPSEU (Stewart) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 1000/94 the Board listed a number of factors to be considered in deciding what circumstances should attract an interim order. The factors relevant in the situation before me are:
The application for interim relief is not the time to examine the merits of the case.
The granting of interim relief is not limited to rare and exceptional circumstances.
The granting of interim relief in a labour relations context requires a consideration of “a very specific social and economic landscape.” (Loeb Highland, supra at paragraphs 13 and 14.
There can be no “boilerplate” or “one-size-fits-all“ approach to granting interim relief. See Radio Shack, (1979) OLRB Rep. Dec. 1220, referred to at p. 7 of Leeder.
A board of arbitrations must “consider both what harm may occur if an interim order is not granted, and what harm may occur if it is.” Reference to Loeb at p. 9 of Leeder, where emphasis was added.
The principles utilized by some courts governing the granting of interlocutory injunctions, being the test of “irreparable harm” has been rejected in favour of “a balancing of harm done to the parties.” (See Leeder at p 13.)
...
...
Delay in making the application may be a factor in denying it.
Where issues of safety are raised on an application for interim relief, “there should be evidence before the Board which would lead the Board to believe that there is a risk of unsafe conduct occurring should the employee be reinstated for the interim period pending the disposition of the main application.” See United Food and Commercial Workers’ International Union v. Shirlon Plastics Inc. OLRB (Shouldice), dated August 8, 1994, referred to a pp. 18-19 of Leeder, where emphasis was added.
In applying the tests set out above, I am satisfied that the union has made out an arguable case in the main application. However, in balancing the potential harm to the parties should I grant or not grant the relief requested, I have concluded that the balance of potential harm favours the Ministry. In coming to this conclusion, I have taken into consideration several factors. First and foremost is the delay on the part of the union in making the application for interim relief. There are several aspects to the union’s delay. The same language as is before me was the subject of proceedings in 1983. Since that time, the language at issue has remained in the collective agreement and it is my understanding that this is the first time the union has again alleged that the Ministry’s has failed and continues to fail to comply with it. Twenty-five years have passed. No explanation for this lengthy delay was provided.
I am also troubled by the delay of the union in bringing this application for interim relief within the context of the current proceedings. The grievance before me is dated December 19, 2003, and the first day scheduled to deal with it was June 8, 2004. The union made its application for interim relief on July 5, 2005. While there has been a great deal of procedural wrangling in this case and a lot of time has been spent on it, there was nothing preventing the union from making its application for interim relief over a year ago.
In support of the need for an interim order, union counsel suggested that there were ongoing health and safety concerns in this case. He argued that while this case is being litigated, employees continue to sit before and operate VDT’s in contravention of the collective agreement. In counsel’s view, the existing situation raised serious potential health risks and that it was dangerous to wait for actual harm to occur. Counsel for the Ministry pointed out that no evidence was called by the union to support these allegations. If in fact employees are suffering harm or there was the potential for serious harm to occur, he should have called evidence to this effect but he did not. I agree with counsel for the Ministry. This is not a typical interim relief case in that the situation the union seeks to remedy has existed for a long time. The language at issue in the collective agreement has been there for many years. In addition, the grievance before me was filed in December, 2003, and it first came on for hearing in June, 2004. Therefore, in the absence of any evidence at all on the issue of harm or the potential for harm to employees, I am not prepared to come to any conclusions on the point.
Counsel for the Ministry pointed out that the relief being sought in this interim application was the same relief as was being sought in the main application and that the costs associated with granting the interim relief were very high. Even if I accept that the figures given by Mr. Poynter were high and represented a worst-case scenario, there is no doubt that to grant the relief requested by the union would cost millions of dollars.
Accordingly, for all of the above reasons I have concluded that the balance of potential harm favours the Ministry. I agree with the observations made in OPSEU and the Crown in Right of Ontario (Management Board Secretariat), GSB Decision 0610/02 where Vice-Chair Petryshen states:
“As the decisions in this area suggest, the primary focus in an interim relief application is on whether the applicant has established that there are compelling reasons to alter the status quo. An alteration of the status quo may be appropriate if the harm to the applicant as a result of the alleged breach of the collective agreement cannot be adequately addressed with a remedial response at the conclusion of the proceeding.”
In this case, the union has not established that there are compelling reasons to alter the status quo.
It is not appropriate to grant the union the interim relief it is seeking and this application is dismissed.
Dated at Toronto this 8th day of February, 2006.