GSB# 1999-1782, 2000-0465, 2001-0019, 2001-1775, 2001-1776, 2001-1622, 2001-1623

UNION# 1999-0618-0001, 00E298, 2001-0618-0009, 2002-0618-0002, 2002-0618-0010, 2002-0618-0015, 2002-0618-0004, 2002-0618-0001, 2002-0618-0003, 2002-0618-0011, 2002-0618-0014, 2001-0618-0030, 2001-0618-0008, 2001-0618-0003, 2001-0618-0026, 2001-0618-0022, 2001-0618-0005, 2001-0618-0012, 2001-0618-0014, 2001-0618-0029, 2001-0618-0025, 2001-0618-0023, 2001-0618-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Belanger et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker Counsel Ministry of Government Services

HEARING

February 10, 2006.

Decision

These grievances arise out of the Cecil Facer Youth Centre. There are two issues. The first issue relates to claims that came about because the correctional officers there were not issued uniforms between 1999 and 2002. The union claims damages on behalf of the 19 grievors.

The employer submits that the grievances, on their face, do not disclose a violation of the collective agreement in respect of that issue and it seeks to have them dismissed to that extent. This decision deals with that submission.

The factual background is set out in correspondence from counsel to the union to employer’s counsel, dated December 16, 2004 in paragraphs 1 to 14 as follows:

1. I enclosed a copy of the grievances for your records. The first grievance was filed October 28, 1999.

2. The Employer had a Standard Clothing Manual dated August 24, 1992 in operation. The document provided that:

"Staff on duty in young offender facilities are encouraged to wear their personal clothing, subject to the standards of the superintendent. The wearing of personal clothing, however, is not compulsory and employees may wear the regulation correctional officer uniform in the young offender units if they desire".

3. This policy applied to Cecil Facer Youth Centre.

4. On or about October 1, 1999 CO Belanger requested of Mr. Boucher that he be allowed to receive and wear an issue uniform. His request was denied.

5. Messrs. Boucher and Belanger had further discussion on October 6, 1999 regarding the request.

6. Mr. 'Belanger filed a grievance dated October 28, 1999. On a stage one tracking form the Employer notes his grievance and request was denied.

7. Many grievances followed in 2001 regarding continued denials for uniform requests. The denials were followed by the filing of the grievances — see dates on grievances.

8. I enclose a number of letters of denial for your records.

9. I enclose copies of ERC Minutes to show the issue of uniforms has been discussed since January 9, 1997. Please note the minutes dated October 14, 1999 wherein it states the uniform matter will not be pursued further at this time. The first grievance followed this meeting.

10. The grievance led to an Employer letter being issued to the Regional Director on October 29, 1999 supporting a uniform/clothing allowance for youth workers. We submit such policy was already in place in part — see earlier paragraph.

11. In the 1990's a survey was undertaken at the workplace which resulted in 90% of employees endorsing a uniform/clothing allowance program.

12. The uniform/staff clothing policy was amended on May 23, 2003. I enclose those for your records. The changes are obvious when the policy is reviewed.

13. The Employer did not implement its policy appropriately and in fact did so in an arbitrary and unreasonable manner in violation of the Management Rights provisions.

14. I refer you to our letter dated December 8, 2003, upon which the Union also relies.

The particulars provided December 8, 2003 are as follows:

Clothing/Uniform Allowance

Employees are not obliged to wear uniforms. They have a choice whether to wear street clothes or to wear uniforms provided by the Employer. This option is a longstanding practice and is an option specific to the employee. In 1999 employees started to request that the employer provide such uniforms. The superintendent denied the requests and uniforms were not provided. This resulted in grievances being filed in 1999, 2000, and 2001. A copy of the grievances will follow by courier.

Commencing in 2002, employees requests for uniforms were granted and therefore, as I understand the facts, the matter is resolved on a prospective basis. Regarding the breach during the period between 1999- 2002 a declaration will be sought. In addition, since a declaration does not sufficiently address the violation of the policy we will seek monetary damages equivalent to the costs of the uniforms that should have been granted upon request pursuant to the policy. I understand that the amount is approximately $800.00 - 1 year.

We will be calling Yvon Constantineau as our witness on this matter.

The employer noted that the bulk of the grievances claim a “Violation of the Ministry Agreement and Apparel Policy” or “Breach of the Ministry Agreement and Apparel policy concerning denial of uniform allowance … and any other related articles”. It is common ground that “Agreement” in the grievances is not a reference to the collective agreement but to the Ministry’s policy. The employer brings its application to dismiss the grievances on the grounds that they do not allege a breach of the collective agreement. It is also of the view that the union may attempt to assert that the failure to provide uniforms was a health and safety concern. However, it says that there is no such allegation in the grievances and no such position has been advanced since the grievances were filed between 1999 and 2001. For the union to take that approach now would be an improper expansion of the grievance.

The employer also submitted that the Board has no jurisdiction to deal with the grievances as filed because they allege only a breach of the management rights clause. There is no specific article alleged to have been violated other than article 2, nor is there any article adversely impacted. There is no jurisdiction in the Board to generally review management actions. Here the claim is for payment of money damages because uniforms were not provided, yet there is no obligation in the collective agreement to provide uniforms. In this matter, reference has been made only to article 2 of the collective agreement and there is no nexus to any breach of any other provision.

The union agreed that the grievances do not give rise to a claim that article 9 (health and safety) has been breached; nor do the particulars raise a claim with respect to health and safety. Accordingly, there is no attempt to expand the grievance. The union points to paragraph 13 of the letter of December 16, 2004 as capturing its claim:

The Employer did not implement its policy appropriately and in fact did so in an arbitrary and unreasonable manner in violation of the Management Rights provisions.

The union submitted that it is not necessary to specifically grieve another provision along with article 2; it is sufficient to confer jurisdiction where a provision exists in the collective agreement which might be adversely affected by management action. As set out above, the employer agrees with that characterization. The union says that it is the health and safety provision, article 9, that might be adversely affected. The union submitted that the Board needs to hear the evidence in order to determine whether there might be an adverse impact on the health and safety article.

I find no merit in this latter proposition. These are old grievances. The union was required by the Board to provide particulars of its claims. No particulars were provided that relate in any way to an adverse impact on article 9, nor does the union now put forward any basis to support such an inference. Without a clear statement of the particulars that might give rise to the inference that the health and safety article has been adversely affected by management action, embarking upon a hearing could only be a conjuring exercise.

In the alternative, the union submitted that there is a notion of reasonable contract administration that does indeed support a right to advance a breach of the management rights article alone. In support of that proposition the union relies on the following authorities: TTC v. ATU, Local 113 (1999), 82 L.A.C. 94th) 335 (Harris); TTC v. ATU, Local 113 (2004), 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Shime) and the cases cited therein.

Arbitrator Shime drew upon the comments of the Ontario Court of Appeal in Metropolitan Toronto (Municipality) v. C.U.P.E., Local 43 (1990), 1990 CanLII 6974 (ON CA), 69 D.L.R. (4th) 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:

(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 collection 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 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), 1981 CanLII 1689 (ON CA), 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 SCC 14, [2000] 1 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 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.

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.

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.

Dated at Toronto this 10th day of March, 2006.