GSB# 2003-0905, 2003-0906, 2004-3397

UNION# 2003-0205-0016, 2003-0429-0004, 2003-0103-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dobroff et al.)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Counsel Ministry of Government and Consumer Services

HEARING

December 7 of 2005; April 11, May 24, 25, 29, 30, June 22, 27, 28, July 6, 2006; March 1, 15, 16, August 10, 16, October 11, 2007; February 12 & 19, 2008.

Decision

This decision relates to individual grievances filed by Mr. Frank Dobroff, Mr. Gerald Diamond and Mr. Mike Ladouceur, three of the five Air Quality Analysts (“AQA”) employed in Ontario by the Ministry of Environment (“Employer”).

In February 2003 the employer announced its decision to reclassify its five AQAs and approximately fifteen Water Group Leaders (“WGL”) to the classification of Scientist 4, retroactively to January 1, 2002. Prior to this reclassification the WGLs were classified as Resource Manager (“RM”) 4, and the AQAs as Air Quality Analyst. In those respective classifications both groups received the same pay rates. Having reclassified both groups to Scientist 4, however, the employer proceeded to temporarily assign only the WGLs as Acting Geoscientist 4. This resulted in the WGLs receiving a higher rate of pay than the AQAs. That resulted in the instant grievances.

The union, claims that the employer’s differential treatment of the two groups, i.e. the grant of the higher rated temporary assignments to WGLs only, violated the collective agreement in two ways. First, it is asserted that the employer’s action constituted a bad faith, arbitrary, and discriminatory exercise of its management rights under article 2.1 that did not serve any legitimate business purpose. In the alternative, it was the union’s position that the employer action was motivated, at least in part, because of the union activity of the grievors – primarily that of Mr. Ladouceur -, and that therefore, such action was contrary to article 3.2.

Article 2.1 reads:

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

Article 3.2 provides:

3.2 There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the union.

With regard to the anti-union animus allegation, the grievors – particularly Mr. Ladouceur – testified about complaints and allegations they had made of wrong-doing on the part of members of management. While I have set out that evidence as necessary, I wish to make it clear that I do so only to note the fact that the complaints and allegations were made. I do not make any findings as to whether or not any of the complaints or allegations was well-founded.

The employer’s primary position is that its decision to reclassify WGLs and AQAs to Scientist 4, and then to subsequently temporarily assign only the WGLs to Geoscientist 4, was taken for bona fide business reasons. It was submitted that in any event, for the Board to have jurisdiction to review the employer’s exercise of an exclusive management right, (i.e. to temporarily assign employees) the union must establish that such exercise had some adverse impact on a right accorded to the grievors by the collective agreement. It was the employer’s position that the evidence did not establish that.

Employer counsel acknowledged, however, that if the Board concludes on the evidence that the employer’s decision was motivated solely or in part by an anti-union animus, the Board would have the authority to intervene, since it would impact on the grievors’ rights under article 3.2. His position, however, was that the employer’s decision was not in anyway tainted by an anti-union animus.

The union has in no uncertain terms claimed that the employer’s action was unfair and unreasonable. As I had noted in my previous decision dated January 31, 2005, the union has claimed that “equals were treated differently”. The union led extensive evidence in an attempt to demonstrate that WGLs and AQAs had substantially similar duties and responsibilities, the only difference being the media they dealt with. That is, the WGLs had duties and responsibilities with respect to the quality of water, while the AQAs had similar duties and responsibilities with respect to the quality of the air. The union further relied on the fact that historically there had been parity in pay between the two groups, and that parity ended as a result of denial of the temporary assignments to the AQAs. The union further asserts that historically AQAs had been paid a higher wage rate than water scientists, who were group led by the WGLs. The end result of the employer’s reclassification exercise and its decision to temporarily assign only the WGL group as Acting Geoscientist 4 was to put the AQAs at the same pay levels as the Water Scientists. The union asserts that all of this is a departure from historical practice, and therefore improper.

The employer disagreed that WGLs and AQAs performed substantially similar duties and responsibilities. It led evidence designed to establish that there were significant differences between the two groups in that respect. The employer acknowledged that pay parity had existed previously between WGLs and AQAs, and that as a result of the temporary assignments given to WGLs, that parity ceased. It also did not dispute that previously AQAs were paid a higher rate than the water scientists group led by the WGLs and that as a result of the employer’s decision in February 2003, the AQAs were left at the same pay levels as the water scientists. However, it was the employer’s position that the particular decisions were taken after a very careful and thorough review of legitimate business considerations, and to address serious operational concerns faced by the employer at the time. It was the employer’s contention that while pay parity may have existed in the past, such parity was not “frozen indefinitely”, and that the employer was entitled to respond to its business concerns as long as it did not directly or indirectly impact adversely on any collective agreement rights. The employer asserted that it has paid wages to all of its employees, including the grievors, in compliance with the negotiated wage rates in the collective agreement, and that in the absence of any impact on a right of the grievors under the collective agreement, the Board would have no jurisdiction to intervene.

In his submissions, counsel for the union submitted that Ms. Debra Sikora, the Director of Human Resources who made the final recommendation to the Business Development Committee, did not offer any “justifiable reason” for the decision to depart from the historical parity in pay. Counsel further submitted that the individual who had the most input into the recommendation, Mr. Robert Campbell, Technical Support Manager, Northern Region, offered a justification which did not “stand-up on the evidence”. He submitted that to the extent that Ms. Sikora and Mr. Campbell offered reasons for their recommendation, those reasons were not reflected in any of the documentation filed in evidence. In the circumstances, counsel urged me to conclude that the reasons offered at arbitration were nothing more than ex-post facto justifications on the part of the employer for a decision made in bad faith. Counsel submitted that the evidence does not disclose any legitimate government objective to justify the differential treatment. He submitted that no justification was offered why at some point it was decided “to de-link AQAs and WGLs”. He reminded the Board that in the preliminary proceedings the employer had taken the position that the WGLs had not obtained their Geoscientist 4 status through temporary assignments. This was an attempt to mislead the Board, in the face of clear evidence, including the employer’s own documents, to the contrary. He submitted that the employer had subsequently offered justifications which do not “stand-up”. The employer had suggested that the WGL job had evolved in the post-Walkerton years. This was not supported by any documentation. Then it had taken the position that the distinction between the two groups was that the WGL’s group-led scientists, while the AQA’s group-led lesser qualified technicians. This, according to counsel, was also a ex-post facto justification, which is not evidenced in any of the documentation created at the time. In the circumstances he submitted that the Board should conclude that the employer had acted in bad faith, with or without an anti-union animus.

The extent of the Board’s jurisdiction to review the exercise of an exclusive management right

Union counsel took the position that even if the Board concludes that the employer actions were not tainted by anti-union animus, the grievances should succeed because the employer had an obligation to reasonably administer the collective agreement, and that the employer had not done so in the manner it treated the grievors. He relied on the “Weber doctrine”, a reference to the judgment of the Supreme Court of Canada in Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, and subsequent decisions that applied it. He submitted that under that doctrine, it was not necessary to ground a grievance on an explicit provision of the collective agreement. The effect of the Supreme Court decision is that if a dispute arises expressly or inferentially out of the collective agreement, the Board has jurisdiction over the matter. And under the Weber doctrine, submitted counsel, what arises out of the collective agreement is to be interpreted liberally. Counsel submitted that in these grievances the ultimate dispute is about appropriate pay levels, and that there is nothing more fundamental in any collective agreement than pay levels. Therefore, the Board should take jurisdiction over the grievances.

Counsel acknowledged that past GSB jurisprudence had required that the impugned employer conduct have a direct or inferential impact on some collective agreement right before it can seize jurisdiction. However, counsel submitted that the law had evolved recently moving away from that approach. He urged me to follow this new expansive approach to jurisdiction that had evolved out of the Weber line of cases. Counsel placed particular reliance on the decision of arbitrator Shime in Re Toronto Transit Commission, (2004) 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225. He urged me not to follow Re Belanger et al, 1999-1782 etc. (Harris) because, in his view, it was at variance with the Supreme Court of Canada decision in Weber.

Counsel submitted that the Board broke new ground in Re Bousquet, 541/90 etc. (Gorsky), when it held that where the exercise of a management right impacts on a negotiated collective agreement right, the Board had jurisdiction to review that employer action, even though the subject matter itself – in that case training – was a management right which was not a bargainable subject. Counsel submitted that it was time for the Board to “revisit its law again”, in order to bring it into line with the directions issued by the Supreme Court of Canada. He submitted that to the extent that the Board decisions have failed to follow the Weber line of cases they are in manifest error, and should not be followed.

Counsel for the employer submitted that the Board has had occasion to consider the Weber doctrine, and had determined that despite Weber, it had no jurisdiction to enforce a standard of reasonableness in the exercise of an exclusive management right, unless such exercise impacted directly, or at least indirectly, on a collective agreement right. Thus, he conceded that if the Board concludes on the basis of the evidence that the employer’s decisions were motivated in whole or in part by the grievors’ involvement in union activity, the Board would have jurisdiction to intervene, because in those circumstances the employer action would have impacted on the grievors’ rights under article 3.2 to be free from discrimination because of union activity. It was his position that despite Weber, the Board has no “stand alone” jurisdiction to review the employer’s exercise of an exclusive management right for reasonableness. Employer counsel relied upon a number of decisions of the Board, which explicitly considered the impact of the “Weber doctrine”. Counsel urged me to reject any notion of a general duty to exercise management rights reasonably, and that my inquiry should be confined to the union’s argument based on anti-union animus.

The employer relied on the often cited decision in Re Bousquet, 541/90 (Gorsky), which has been followed by the Board in numerous subsequent decisions. In Re Ashley et al, 2001-1700 (Abramsky), at pp. 14-15, the Board summarized the legal principles established in Re Bousquet et al as follows:

The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights. At issue was management’s denial of a training and development opportunity to an employee, allegedly because he was francophone. The Employer argued that since training and development was a function reserved to management under Section 18(1) of CECBA, the Board had no jurisdiction to hear the grievance. The Board determined, at p. 67, that “the Grievor has no statutory right to grieve because he has been denied a training and development opportunity. … Here, the right to raise the subjects of training and development by way of a grievance has been restricted by means of a clear indication on the part of the Legislature.”

Nevertheless, the Board also concluded that the employer did not have “carte blanche to do what it wishes under the purported exercise of an exclusive management function with respect to training and development.” (p. 58). Instead, the Board had the right to review the employer’s exercise of its discretion for good faith and reasonableness because developmental opportunities impacted an employee’s ability to compete in job competitions under then Article 4 of the collective Agreement. The Board held at p. 35: “[T]he significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by a particular application of such right.” Consequently, under Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s action.

At p. 16 Vice-Chair Abramsky reiterated:

In Bousquet, supra the Board determined that there is no general requirement of good faith and reasonableness in the exercise of rights reserved to management, unless it impacts a right contained in the collective agreement.

In Re Bousquet itself, at pp. 63-64, the Board stated:

All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer as long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decision. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct.

(Emphasis added)

In Re Boulet et al, 1189/99 (R.M. Brown), the Vice-Chair quoted the above-noted passage among others, and at p. 12 concluded:

The standard to be applied is not whether the decision was “correct”, but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.

In Re Bousquet, the Board also considered the relationship between the rationality of employer action and good faith. At pp. 61-62 Vice-Chair Gorsky wrote:

The requirement that the exercise of the exclusive function of management with respect to training and development be carried out in good faith is the same as the obligation imposed on a deputy minister under s. 22(5) of the Public Service Act, and for the same reasons. In order to be carried out in good faith, an employer must have had a genuine intention to carry out a legitimate government purpose which has the effect of denying an employee a training or development opportunity.

As held in the Shaw case, at p. 6, if there was simply no evidence as to why a grievor had been denied a training or development opportunity, this would go to the reasonableness aspect of the good faith test referred to in Shaw.

If the facts relied upon by an employer in support of development opportunity for the purpose of achieving a legitimate government objective are “’irrational’ on any half-intelligent view of the matter,” this would also go to the question of good faith. As was noted in Shaw, in examining the employer’s rationale, the Board should avoid finding the absence of a rational relationship between the facts and the decision to deny the requested training or development opportunity unless it concludes that, on the facts, no such conclusion could have been reached rationally.

As also noted by the Board in Shaw, the rational relationship factor is nearly synonymous with reasonableness. And reasonableness, in the context of the case, is a species of good faith. In the case before us, in outlining the good faith obligations of the Employer, we include the further elements of reasonableness and a rational relationship between the facts leading to the making of the decision and the decision itself. Where the Employer cannot be shown to have denied the Grievor’s requests for reasons which are “improperly motivated or maliciously intended,” such as his being a francophone; for reasons prohibited by s. 4 of the Code; or because of a desire to impose disguised discipline, the Employer will have satisfied the first aspect of the good faith test identified in Shaw. As stated in Shaw (at p.5): “Clearly the bad faith, if found, must be relatively serious.”

Where there is some evidence permitting an objective assessment that the decision flowed logically from the facts, the Employer will have satisfied the second aspect of the good faith test (reasonableness).

If the conclusion arrived at by an employer is one that is reasonably possible based on the last mentioned evidence, then the necessary rational relationship between the facts and the decision will exist.

From the submissions made by union counsel in chief, I understood him to be stating that the Bousquet line of Board decisions was outdated in light of the Court’s directions in Weber. Employer counsel, in response, relied upon several decisions of the Board that had directly considered the impact of the Weber line of decisions, as well as Re Toronto Transit Commission (supra). Based on those authorities, employer counsel submitted that the law remains unchanged Post-Weber, that the Board has no jurisdiction to review the employer’s exercise of an exclusive management right unless the Board is satisfied that such employer action adversely impacted upon a collective agreement right, directly or indirectly.

In his reply submissions, union counsel clarified that he was not taking the position that the Board has a “free standing” jurisdiction to review exercise of management rights for reasonableness and good faith in the absence of a link to the collective agreement. He submitted that the effect of Weber and Re Toronto Transit Commission (supra) is that the Board must now approach more liberally and flexibly when considering whether or not a dispute is linked to the collective agreement. In other words, the test for determining whether a dispute “arises out of the collective agreement” has changed since Weber. Now the linkage need not be direct but may be inferred, as arbitrator Shime did in Re Toronto Transit Commission (supra). Counsel submitted that the present grievances, when viewed from this new perspective, are linked to the collective agreement in two ways. First, the employer action denied the grievors their right under article 3.2 to be free from discrimination because of their union activity. In addition counsel submitted that, in its substance, the dispute that led to the grievances had to do with a “pay dispute”. He contended that nothing could be more fundamental in a collective agreement than the appropriate pay levels of groups of employees. Therefore the grievances are linked to the wage provisions of the collective agreement, and the Board possessed jurisdiction on that basis also.

The issue then is what was the effect, if any, of the “Weber doctrine” on this Grievance Settlement Board jurisprudence. A number of decisions have addressed this. In Re Belanger et al, 1999-1782 etc (Harris), the Board considered the union’s submission “that there is a notion of contract administration that does indeed support a right to advance a breach of the management rights article alone”. The union had relied on, inter alia, the Shime award in Toronto Transit Commission. At pp. 5-7, Vice-Chair Harris wrote:

Arbitrator Shime drew upon the comments of the Ontario Court of Appeal in Metropolitan Toronto (Municipality) v. C.U.P.E., Local 43 (1990), 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 collective 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] I 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.

In Re Belanger, the union had also relied on Re Toronto Transit Commission, (1999), 1999 CanLII 35942 (ON LA), 82 L.A.C. (4th) 335 (Harris). Vice-Chair Harris observed at p. 7 as follows:

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.

With regard to the grievances before him, Vice-Chair Harris held at p. 7:

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.

In Re Andersen et al, 1093/01 (R.M. Brown), the Board had occasion to directly consider the impact of Weber on the jurisdiction of the Grievance Settlement Board. At p. 2, the nature of the grievance was set out as follows:

This group grievance was filed on behalf of seven correctional officers employed at the Rideau Correctional Centre. The grievors claimed compensation for vandalism to their vehicles which occurred in the parking lot at their workplace. The union contended that the damage was done by persons loitering in the parking lot while awaiting admission to serve intermittent sentences. According to this line of argument, the employer did not take reasonable precautions to protect the automobiles in the lot.

Vice-Chair Brown was called upon to determine his jurisdiction in light of Weber. In doing so he undertook the following analysis of the Supreme Court of Canada decision.

The scenario in Weber is succinctly summarized in the judgement of the

Supreme Court:

Mr. Weber was employed by Ontario Hydro. As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that Mr. Weber was malingering. It hired private investigators to investigate its concerns. The investigators came on Mr. Weber's property. Pretending they were someone else, they gained entry to his home. As a result of the information it obtained, Hydro suspended Mr. Weber for abusing his sick leave benefits.

Mr. Weber responded by taking the matter to his union, which filed grievances against Hydro on August 28, 1989. One of the grievances alleged that Hydro's hiring of the private investigators violated the terms of the collective agreement. Among other things, the union asked the arbitrator to require Hydro to give an undertaking to discontinue using private security firms to monitor health absences, and to pay Mr. Weber and his family damages for mental anguish and suffering arising out of the surveillance. The arbitration commenced on March 8, 1990, and was subsequently settled.

In the meantime, on December 27, 1989, Mr. Weber commenced a court action based on tort and breach of his Charter rights, claiming damages for the surveillance. The torts alleged were trespass, nuisance, deceit, and invasion of privacy. Weber's claims under the Canadian Charter of Rights and Freedoms were for breaches of his rights under ss. 7 and 8. (page 949)

Ontario Hydro contended the courts could not hear Weber’s suit because the matters about which he complained fell within the jurisdiction of an arbitrator.

Speaking for the Court, Madame Justice McLachlin considered the sorts of disputes which only an arbitrator may adjudicate. She quoted with approval the following passage from the judgement of Mr. Justice Estey in St Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, [1986] S.C.R. 704:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at colon law …. The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum t which the legislature has not assigned these tasks. (page 718-719; emphasis added)

According to this ruling, matters “addressed and governed” by a collective agreement” fall exclusively within the scope of arbitration.

As in St. Ann Nackawic, the Supreme Court in Weber based its decision on the legislative requirement that disputes arising under a collective agreement be resolved by arbitration:

Section 45(1) of the Ontario Labour Relations Act, like the [statutory] provision under consideration in St. Anne Nackawic, refers to “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement.” The Ontario statute makes arbitration the only available remedy for such differences ….

It is important that disputes be resolved quickly and economically, with a minimum of disruption to the parties and the economy. To permit concurrent court actions whenever it can be said that the cause of action stands independent of the collective agreement undermines this goal, as this Court noted in St. Anne Nackawic. (page 954; emphasis added)

Elaborating on the test to be applied in determining whether a particular controversy is within the sole jurisdiction of arbitration, the Supreme Court stated:

[T]he analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement". (page 953; emphasis added)

Having emphasized what matters is the factual basis of a conflict, not the legal labels applied to it, the Court went on to address the proper way to determine whether a dispute belongs in arbitration:

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts ...

This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter. (pages 756-758)

The Court directed labour arbitrators to adjudicate controversies “which expressly or inferentially arise out of the collective agreement” and to consider “whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter”. Arbitrators were told not to “consider separate ‘cases’ of tort, contract or Charter.”

The union in Re Andersen had taken the position that the grievance about property damage arises “inferentially” from articles 2.1 and 9.1 of the collective agreement, within the meaning of the ruling in Weber. With regard to the management rights clause article 2.1, counsel had submitted that the damage to the grievors’ vehicles resulted from the employer’s improper decisions about staffing levels, the kinds and location of security equipment, management’s failure to enforce rules concerning the consumption of alcohol by inmates, and where they park their own vehicles. Union counsel had submitted that the same improper decisions and failures on the part of management lead to the conclusion that the dispute arises “inferentially” under the health and safety provision article 9.1.

Vice-Chair Brown reviewed the case law (pp. 6-9):

Counsel for the employer relies upon Abbott Laboratories Ltd. and Retail, Wholesale Canada (1998), 1998 CanLII 30005 (ON LA), 74 L.A.C. (4th) 331 (R.M. Brown) where I commented on the meaning of the phrase “expressly or inferentially” in Weber:

[T]he Supreme Court said the jurisdiction of an arbitrator encompasses disputes arising from the express or implied terms of a collective agreement. This is how the Court’s reference to “expressly or inferentially” was interpreted by Mr. Hope in Canada Safeway. ... I agree with his interpretation. (page 347; emphasis added)

This understanding of Weber subsequently was adopted by the Supreme Court of Canada as well as by the Ontario Court of Appeal. Mr. Justice Bastarache spoke for the Supreme Court in Board of Commissioners of the City of Regina v. Regina Police Association Inc., 2000 SCC 14, [2000] 1 S.C.R. 360:

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. ... 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. (page 373)

To say that the subject of a dispute is “covered by the collective agreement” and arises from it “either explicitly or implicitly” is another way of saying the matter is governed by an express or implied term of that agreement.

In London Life Insurance Co. v. Dubreuil Brothers Employees Assoc. (2000), 2000 CanLII 5757 (ON CA), 49 O.R. (3d) 766, the Court of Appeal explained the ruling in Weber by using the precise terminology of implied rights under a collective agreement. Mr. Justice Goudge wrote:

Both Weber and Regina Police Association Inc. provide that the arbitrator’s exclusive jurisdiction extends to disputes that arise not just expressly, but also inferentially out of the collective agreement. Those that arise implicitly must, nonetheless, be rooted in that agreement. New Brunswick v. O’Leary, [1995] 2 S.R.C. 967 is such a case. There, McLachlin J. found that the collective agreement conferred an implied right on the employer to claim for breach of the employee’s express obligation to ensure the safety and dependability of the employer’s property and equipment. Hence, where the essence of the dispute was the employee’s failure to preserve the employer’s property and equipment, it was found to fall within the exclusive jurisdiction of the arbitrator. It was the implied right of the employer contained in the collective agreement that made the jurisdictional difference. (page 773; emphasis added)

The Court of Appeal limited arbitral jurisdiction to matters governed by the express or implied terms of a collective agreement and stated this limitation is consistent with the outcome in O’Leary.

This conception of the role of arbitration is also consistent with the outcome in Weber. Addressing the facts in that case, Madame Justice McLachlin wrote:

The [employer’s] act of hiring private investigators who used deception to enter [Weber’s] family home and report on him does not, he contends, relate to the interpretation, application or administration of the collective agreement. ...

Isolated from the collective agreement, the conduct complained of in this case might well be argued to fall outside the normal scope of employer-employee relations. However, placed in the context of that agreement, the picture changes. The provisions of the agreement are broad, and expressly purport to regulate the conduct at the heart of this dispute.

Article 2.2 of the collective agreement extends the grievance procedure to "[a]ny allegation that an employee has been subjected to unfair treatment or any dispute arising out of the content of this Agreement. . .". The dispute in this case arose out of the content of the Agreement. Item 13.0 of Part A of the Agreement provides that the "benefits of the Ontario Hydro Sick Leave Plan ... shall be considered as part of this Agreement". ... Under the plan, Hydro had the right to decide what benefits the employee would receive, subject to the employee's right to grieve the decision. In the course of making such a decision, Hydro is alleged to have acted improperly. That allegation would appear to fall within the phrase "unfair treatment or any dispute arising out of the content of [the] Agreement" within Article 2.2. (page 963-965; emphasis added)

In short, the Supreme Court characterized management’s impugned treatment of Mr. Weber as being “expressly” regulated by specific articles in the collective agreement. Based upon this characterization, the Court held Weber’s claim fell within the exclusive jurisdiction of an arbitrator.

Vice-Chair Brown then wrote as follows at pp. 9-11 on the impact of Weber on an arbitrator’s jurisdiction:

The foregoing review of the case law leads me to conclude that the exclusive jurisdiction of arbitration includes all controversies with a factual basis governed by the express or implied terms of a collective agreement but extends no further.

The Supreme Court’s decision in Weber did not broaden the range of disputes coming within the scope of arbitration, even though the Court curtailed the range of disputes judges may decide. This point can be illustrated by considering two types of conflicts between an employer and employees governed by a collective agreement. In the first, the factual basis of the dispute gives rise to an alleged violation of some common-law right but not to any allegation that the collective agreement has been breached. The courts had exclusive jurisdiction over matters of this sort before Weber and continue to have it after. The Supreme Court’s decision does not give arbitrators any role in this context. The impact of Weber is limited to another sort of controversy, one where the factual basis of the dispute gives rise to both an alleged contravention of the collective agreement and an allegation of some common-law wrong. In this scenario before Weber, an arbitrator had authority to interpret and apply the express and implied terms of the agreement, and a court could entertain an action at common law based on the same facts. The Supreme Court’s decision precludes a judge from playing any part in the resolution of such a conflict and relegates it to the exclusive jurisdiction of arbitration. Now all legal issues arising from a common set of facts must be adjudicated in the single forum of arbitration. Weber does not widen the range of disputes which may be arbitrated, but it does alter in two ways the role of arbitrators when dealing with the sorts of controversies with which they always have dealt. The Supreme Court’s decision gives arbitrators a larger set of legal tools to use in fashioning resolutions to these problems. For example, an arbitrator may award damages for defamation based upon facts which also constitute a violation of a collective agreement. (See Bhaduria and Toronto Board of Education, [1999] O.J. 582 (C. A.) holding only an arbitrator could entertain a claim for defamation based upon allegations which resulted in a teacher’s termination.) The second impact of Weber on the role of arbitrators is less obvious than the first but just as significant. By empowering arbitrators to apply the common law, the Court assigned to them the task of determining to what extent this judge-made law has been displaced or modified by a collective agreement. In a case like O’Leary, an arbitrator will be the one to decide whether a contractual prohibition against discipline without just cause modifies or negates an employer’s common law right to be compensated for a loss caused by the negligence of an employee.

Turning to the matter before him, Vice-Chair Brown quoted the relevant portion of the management rights clause article 2.1, and concluded as follows at pp. 11-13:

Counsel for the union submitted the employer contravened this article by failing to enforce existing “rules and regulations” in a manner which would have prevented the property damage for which compensation is claimed. Article 2.1 was mentioned by counsel during her opening statement but she did not return to it in argument. The essence of the management rights article is an acknowledgement that “the right and authority” to do certain things is “vested exclusively” in the employer, so long as the doing of these things does not violate any other provision of the collective agreement. In my view, there is nothing in the language of this article to suggest it places the employer under any sort of positive obligation to protect the property of employees.

The union relies primarily upon article 9.1 dealing with health and safety which states:

The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

This article is identical to the contract provision applied in two decisions of this Board upon which the union relies: OPSEU (Gonneau) and Ministry of Attorney General, File 227/81, decision dated February 1, 1982, (Teplitsky); and OPSEU (Kelly) and Ministry of Correctional Services, File 371/84, decision dated April 19, 1987 (Saltman). ...

In short, as noted by counsel for the employer in her written submission, compensation for property damage was awarded in Gonneau and Kelly because it flowed directly from carelessness which violated the collective agreement by placing the grievor at risk of bodily injury.

The language of article 9.1 leaves no doubt that it creates an obligation to protect employees. The absence of any reference to property indicates this article does not place the employer under an independent obligation to protect their belongings. ... To recover compensation for damage to an employee’s property, the union must demonstrate the loss resulted from carelessness which contravened the agreement by placing the employee in peril. In a scenario of this sort, article 9.1 is violated and, according to the decisions in Gonneau and Kelly, the employee is entitled to compensation for property damage flowing directly from such a violation.

Turning to the case at hand, I agree with counsel for the employer that the facts alleged are significantly different than the scenario addressed in Gonneau and Kelly. Here the union did not suggest the seven grievors themselves were endangered by any failure on the employer’s part to take reasonable precautions in the parking lot. Indeed, there was no suggestion that any employee was in the vicinity of the lot when the vandals were there. Rather, the union alleges only that adequate measures were not implemented to protect the grievors’ automobiles. Any failure to provide appropriate safeguards for property, standing alone, could not constitute a violation of article 9.1. (pages 3 to 6)

My jurisdiction does not extend beyond controversies with a factual basis governed by the express or implied terms of the collective agreement. As the interim award held the facts alleged by the grievors would not constitute a breach of the agreement, I am without jurisdiction to entertain their grievance. It is dismissed.

I adopt the reasoning in Re Andersen. It sets out correctly the impact of the Weber ruling on the jurisdiction of an arbitrator. Therefore, this Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. In other words, the matter must be governed by an express or implied term of the collective agreement. As I have noted, union counsel appeared to concede this limitation in his reply submissions when he clarified that he was not asserting that the Board has a “free standing” jurisdiction to review the exercise of management rights for reasonableness. He submitted, however, that the effect of Weber was to make it easier for a party to establish the required link to the collective agreement by directing arbitrators to be more liberal and flexible in recognizing that required link. I find no such direction by the Supreme Court of Canada in Weber. To the contrary, as observed in Re Andersen (supra), “the Supreme Court’s decision in Weber did not broaden the scope of arbitration, even though the Court curtailed the range of disputes judges may decide” (p.9). However, it did broaden the jurisdiction of an arbitrator, once an arbitrator has determined that a dispute arises from the collective agreement, either explicitly or implicitly. (See Re Andersen at p. 10 for a discussion of the manner in which this jurisdiction has been broadened).

In the instant case, the union has asserted that the employer’s denial of temporary assignments as Geoscientist 4 to the grievors contravenes an explicit provision of the collective agreement, i.e. article 3.2. Employer counsel has conceded that if the evidence supports such a finding, the Board would have authority to intervene. Therefore, in that regard the task of the Board is clear. It has to determine, on the basis of the evidence whether the employer’s exercise of its management rights was tainted in whole or in part by an anti-union animus. The union also claims, however, that the employer’s action inferentially contravenes the wage provisions of the collective agreement, and that even if no anti-union animus is found, the Board would have jurisdiction to intervene on that basis. The Board must, therefore, also determine whether the instant grievances arise inferentially out of a dispute about the wage provisions of the collective agreement.

Do the instant grievances arise out of the wage provisions of the collective agreement?

The union argued that the ultimate reason that caused the grievors to file their grievances was the pay differential between WGLs and the AQAs that resulted from the employer’s exercise of management rights. The union does not contend that the employer has failed to pay the grievors wages in accordance with the wage schedules set out in the collective agreement. The evidence is undisputed to the contrary. The contention in essence is that, if the employer had exercised its management rights differently by granting the same temporary assignments to the AQAs as accorded to WGLs, the grievors would have received more in wages. The union went to great lengths in an attempt to convince the Board that WGLs and AQAs had similar duties and responsibilities. The contention in effect was that equals should be treated equally, and that equal work should merit equal pay. It was the union’s position that to pay the AQAs less than WGLs was unfair and improper. The union submits that the employer’s action also resulted in another group of employees, water scientists, receiving increased pay, which brought water scientists into a position of pay parity with the AQAs. This, according to the union is also unfair and improper, because it resulted in the water scientists being paid wages equal to that paid to AQAs, even though water scientist performed work of lesser value.

In Re Cherwonogrodzky et al, 2002-0994 etc. (Gray) a group of tax auditors grieved the employer’s refusal to reimburse the annual fees they paid to maintain membership in a professional accountants’ organizations. It was alleged that the employer had thereby breached an implied obligation to exercise management rights in a manner that is reasonable, and not arbitrary, discriminatory or in bad faith. The employer argued that since its decision did not adversely impact any right under the collective agreement, the Board had no jurisdiction to review it for reasonableness. The union responded that the wage provisions of the collective agreement can be affected by a decision whether to reimburse membership fees, because reimbursement would be akin to a wage increase. At pp. 16-17, the Board held:

44It does not follow that the Board has jurisdiction on that basis to review these decisions not to reimburse dues, particularly dues of a sort that have never before been reimbursed. Such a decision cannot be characterized as inconsistent with compensation provisions which make no provision for reimbursement. That is not to say that a decision not to reimburse could never be the subject of a grievance. It could if, for example, if it was alleged that the decision amounted to discrimination on a basis prohibited by Article 3 of the collective agreement or by the Ontario Human Rights Code. That is not alleged here. The actual exercise of reserved managerial rights complained of in these grievances does not interfere with the compensation provision of the agreement.

45In short, there is no provision of the collective agreement that the employer is alleged to have breached by refusing to reimburse the grievors’ professional dues, and no provision of the collective agreement capable of being adversely impacted by that exercise of management’s discretion. Accordingly, I agree with the employer that its decision not to reimburse the grievors’ dues in professional accounts’ organizations is not subject to review by this Board for reasonableness.

In Re Lesieur et al, 2002-1756 (Briggs), a post Weber decision, the union had argued that the dispute was linked to the collective agreement through its compensation provisions. The Board reviewed the Board’s case law on the meaning and impact of the Weber ruling on its jurisdiction, and at pp. 16-17 wrote:

As stated from the outset, the Union’s position is twofold. First the Employer’s decision to oblige the grievors to become members of and pay dues to APGO was a misapplication of the Act and constitutes a violation of the collective agreement because it has significant impact on the grievors’ compensations and their terms of employment. Second, if the grievors are required to be members the Employer must pay for the fees because it has derived a benefit.

After much consideration I am of the view that the Employer’s preliminary objection must be upheld. According to the Crown Employees’ Collective Bargaining Act, in order for this Board to take jurisdiction of a matter there must exist a dispute between the parties that constitutes a difference between them “rising from the interpretation, application, administration or alleged contravention of the [collective] agreement”. The Union contended that the Management’s Rights provision has been violated and the grievances suggest that the Employer “misused” its rights. It think not. As set out in Re Bousquet (supra), a restriction of the “unfettered exercise of a management right” would require the negation or undue limitation of the application of a specific provision in the collective agreement. There is no provision in the collective agreement that has been negated or unduly limited. While the Union might suggest that the compensation provisions are affected, this Board has previously determined that there is no violation of the compensation provisions when employees are required to pay dues to professional associations.

In Re May et al, 2001-1151 (Abramsky), the Board had before it 193 individual grievances which alleged as follows:

I grieve that management violated, but not limited to Art. 2, Art. 6 and the correctional salary schedule of the collective agreement by providing unequal pay for the same work.

In Re May, the employer had invited correctional officers at the Vanier and Maplehurst correctional institutions to apply for temporary assignments to the Toronto East Detention Centre and the Don Jail, to address staffing pressures at the latter institutions. The temporary reassignments carried with it compensation in addition to the collective agreement entitlement. The grievors had not applied for the temporary reassignments, and continued to be compensated in accordance with the collective agreement. At p.5 the Board set out the employer’s position:

The Employer raised a preliminary issue in regard to the grievor’s ability to grieve about compensation paid to other employees. It asserts that the grievors’ have no individual claim since it is undisputed that they were paid in accordance with the collective agreement. It asserts that they may not bring a “me too” claim when they have suffered no loss or had any of their rights violated. To rule otherwise, the Employer asserts, would allow employees to challenge actions that the Employer has made in relation to other employees. It asserts that this would be inconsistent with GSB case law which requires that a grievor be materially affected by the Employer’s action.

Article 6, which the union relied upon, was the job posting provision. It suffices to note that the Board concluded that there was no violation of that provision. Therefore, the remaining issue was whether the Board had jurisdiction to review the employer’s exercise of management rights under article 2. The employer argued that “there can be no independent violation of article 2, - that any claim that the employer is not acting fairly must be in relation to rights under the collective agreement”.

The union’s response to this preliminary objection is set out at p. 7 as follows:

It claims that one of the fundamental purposes of a collective bargaining agreement is to ensure consistency in compensation – equal pay for equal work. Where the Employer pays other employees more for doing the same work, it asserts that this gives rise to an individual claim under the collective agreement.

At pp. 8-10, the Board held:

Upon careful consideration of the facts and case law, I conclude that the grievors may not raise a claim concerning the wages or compensation paid to other employees. The case law is clear that an employee “should be able to grieve any employer conduct which affects him/her in a material way and which he/she feels is in contravention of the collective agreement”. OPSEU (ARLENE Hawley) and Ministry of Natural Resources, supra at p. 5. Or, put differently, an individual “cannot pursue a grievance if the individual is not directly affected by circumstances giving rise to the grievance.” OPSEU (Meades) and Ministry of Correctional Services, supra at p. 7.

In OPSEU (Anthony et al.) and Ministry of Labour, supra, a similar situation arose. In that case, among other claims, three individual grievors alleged that two other employees, with substantially less seniority, had been unfairly given merit increases which resulted in their being paid the same as the grievors. The Employer moved to dismiss these claims asserting that the Employer’s actions did not discriminate against the grievors and that they had not been detrimentally impacted by the Employer’s actions. The Union claimed that the Board had jurisdiction to determine whether the administration of the pay provisions of the collective agreement was done in a fair and equitable manner, free from arbitrariness and bad faith. It claimed that the salary treatment of the two favoured individuals created an invidious situation in which employees with substantially different years of experience were being paid the same amount for the work in question.

In dismissing the grievances, the Board stated as follows at pp. 7-8:

It is easy to appreciate the grievors’ frustration and their feelings of unfairness in relation to the April 18, 2000 memorandum of agreement. The terms of that agreement, in light of the number of steps in their former pay scale, combined with the impact of the Social Contract Act, created, as the Union asserts, “significant anomalies”. It is also easy to appreciate their frustration in regard to the merit increases received by Ms. McCourt and Mr. Hughes. Unfortunately, despite the sympathy I feel for the grievors, I find that this is not a case over which the Board has jurisdiction.

The problem is that the Union has not alleged any unfairness or discrimination in regard to the Employer’s actions in relation to the grievors. It has alleged improper action in relation to two other individuals – Mr. Hughes and Ms. McCourt – which is asserts resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable situation is not enough …

The Board’s jurisdiction depends on an allegation that the Employer’s action interfered with the grievors’ rights under the collective agreement. In this case, those elements are missing. There is no allegation that the Employer improperly denied the grievors a merit pay increase – only that the Employer improperly granted it to Hughes and McCourt. Nor is there an allegation that the Employer’s actions impacted any rights of the grievors’ under the collective agreement.

The same reasoning applies here in terms of the grievors’ claim pertaining to “the correctional salary schedule of the collective agreement by providing unequal pay for the same work”. It is undisputed that the grievors were paid in accordance with the collective agreement. Their claim is that the Employer paid six other employees – the ones who were reassigned to the Toronto East Detention Centre – more. Although this may have created an inequity, it does not give rise to claim or difference that directly affects the grievors. As established in OPSEU (Anthony et al.), supra, an individual may not grieve the Employer’s actions in regard to the compensation of other employees.

As to the claim that the Employer violated Article 2 in its actions, I must agree with the Employer that, standing alone, there is no independent claim that may be made under Article 2. It must be tied to the exercise of some right under the collective agreement. OPSEU (D’Silva) and Ministry of Environment, supra; OPSEU (Anthony et al.) and Ministry of Labour, supra.

The union in the instant case also did not dispute that the grievors were paid in accordance with the wage schedules in the collective agreement. The argument was essentially one of “equal pay for equal work”, with the additional grounds that pay parity between the grievors and WGLs had existed historically. For purposes of this decision, I shall assume without finding, that the grievors perform equal work as the WGLs did. There is no dispute that the WGLs and AQAs had historically enjoyed pay parity, and that this parity ended as a result of the temporary assignments received by the WGL’s.

Union counsel attempted to distinguish the present case from cases such as Re Anthony (supra) which had held that the grievor’s were not entitled to grieve about favourable treatment of others, where the grievors’ collective agreement rights have not been affected. Counsel submitted that the grievors were not grieving the temporary assignments given to WGLs. Their complaint is that they were denied similar temporary assignments. I find that to be a distinction without a difference. However characterized, the claim is that equals should be treated equally. It is the same kind of “me too” claim referred to in Re May. As in the cases reviewed, such a claim cannot be sustained in the absence of evidence that some collective agreement right of the grievors had been affected adversely by the manner the employer treated the WGLs. There is no question that the grievors are deeply disappointed. They believe that they are equally qualified, and perform the same work as the WGLS. They also believe that they are more qualified and perform more complex duties and responsibilities than water scientists. Therefore, it is not difficult to understand why they feel aggrieved that there is an inequity. Nevertheless, assuming that there is that inequity in pay among the groups of employees, that does not form a basis for the Board to intervene. That is a matter that may be addressed through collective bargaining. The employer action has not adversely affected, explicitly or inferentially, any entitlement the grievors have under the pay provisions of the collective agreement. I have not been directed to any collective agreement provision or legislation which could be said to mandate parity in pay between WGLs and AQAs, or a notion of equal pay for equal pay that could possibly arise in these circumstances. The pay provisions of the collective agreement certainly do not include such principles, either explicitly or inferentially. It is true, as counsel submitted, that the grievances are ultimately about the pay entitlement of the grievors. That however, is not a sufficient basis to find that the grievors have been adversely affected with respect to their rights under the collective agreement. The undisputed fact is that the employer had fully complied with the pay provisions of the collective agreement with respect to all of its employees including the grievors.

The parties have, in article 2 reserved certain functions as exclusive management rights. Any time the employer exercises a management right, there is the potential that it may have a bearing on the earnings of employees. However, provided the employees’ entitlement under the collective agreement is honored, and provided the employer does not act contrary to any other provision of the collective agreement or law, the employer is entitled to act. For example, the employer may decide to increase its staffing complement in the exercise of its management rights. That decision may have the result of reducing the overtime opportunities the existing employees had previously enjoyed. That results in reduced earnings for them. Does that fact provide the Board the authority to review the reasonableness of the employer’s decision to increase staffing levels? Could it be said that the employees’ rights under the pay provisions of the collective agreement have been adversely affected? The answer must be in the negative. There is no question that the grievors would have received greater pay if the employer had exercised its management rights differently by according the temporary assignments to both groups. That however, is not a sufficient link to the pay provisions of the collective agreement, so as to confer jurisdiction on the Board to review the employer’s actions for reasonableness or fairness.

The employer offered its rationale for the decision to temporarily assign the WGLs. Whether the reasoning of the employer was proper is not for this Board to determine. As the decisions I have cited above have held, the employer, “need not be correct”. Nor does it matter whether the employer’s reasons “are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.” As long as the employer was pursuing a business or operational objective, and not motivated by improper considerations, (such as a desire to circumvent a provision of the collective agreement or legislation), the Board cannot intervene, even if it is convinced that the employer action was inefficient or unfair. As I held in Re Dhanju, (2007) 158 L.A.C. (4th) 32, as long as I believe the reasoning offered by the employer, I am not entitled to intervene.

In the present case I have no basis to conclude that the reasons offered by the employer are an ex post facto fabrications, as the union asserts. There is ample evidence in the documentation that there was a serious concern about the employer’s inability to attract/retain qualified scientists on the water side. The Board heard evidence that on the water side the employer was forced to hire candidates who ranked 4th or 5th in job competitions because the higher ranking candidates would not accept job offers. The evidence is that wages was a major reason for this hiring /retention problem. There were no similar concerns with respect to the air side of the operations. The foregoing was not disputed. Even the union’s own witnesses confirmed that only the water side experienced this problem of attracting and retaining of qualified staff. Moreover, the evidence is to the effect that as a result of the Walkerton incident, the employer’s water programs came under greater scrutiny and was under pressure to enhance the quality of its services. In light of all of this, there is no sufficient basis for me to disbelieve the employer’s reasons for treating the WGLs (as well as the water scientists) more favourably than the AQAs. Therefore, I conclude that the Board has no jurisdiction to intervene, subject to the determination of the union’s alternate position based on anti-union animus.

Anti-Union Animus

The onus is on the union to establish that the employer’s decision not to temporarily assign the grievors as Geoscientist 4, was tainted by anti-union animus. Vice-Chair Briggs in Re Kerna, 2002-0944 observed at p. 38 that “… the onus was on the union to establish anti-union animus. It has long been established that clear and cogent evidence is needed for such a finding …”. Counsel for the union submitted that in this regard arbitrators have recognized that employers usually do not advertise their anti-union motivations, and that the union does not need “a smoking gun” to establish anti-union animus. Counsel referred me to Re Horizon Operations (Canada) Ltd. (2000) 2000 CanLII 50129 (BC LA), 93 L.A.C. (4th) 47 (Coleman) where the arbitrator quotes from a decision of the B.C. Labour Relations Board in Re Forano Ltd., [1974] 1 C.L.R.B.R. 13. In the latter decision at pp. 66-67, the Board wrote:

If the real purpose of a firing was the union involvement, an employer may not search for some arguable justification in the employee’s earlier behaviour and advance this as the cause, ex post facto. The crux of such an unfair labour practice case is the employer’s motivation in the discharge, something which rarely will be disclosed by admissions. Employers don’t ordinarily advertise their anti-union activities. Such intention must be pieced together from a pattern of circumstantial evidence.

I agree that an admission or “a smoking gun” would rarely be found in anti-union animus cases or cases of discrimination on the basis of a prohibited ground. Thus in appropriate circumstances, anti-union animus may be inferred from circumstantial evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98, proof is nevertheless necessary. Anti-union animus will not be inferred merely because a grievor believes that it exists.

At para: 17-18, Mr. Gray wrote:

17I accept as a general matter that racism “is out there”, as the grievor put it at one point. I agree with union counsel’s submission that racism often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it. It is not necessary for the union to prove that discrimination on the basis of race was the sole or even a major reason for employer conduct detrimental to the grievor. If discrimination on the basis of race played any part in the employer’s treatment of the grievor, then it breached the collective agreement provision that prohibited such discrimination. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity.

18The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis of her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is. This would be so even in the absence of evidence that she is inclined to exaggeration in labeling her experiences.

At para: 20-22 he stated:

20The failure of management to either do as Ms. Hill recommended or explain why it would not or did not do so is perplexing. So is management’s failure to either do as the Minister’s delegate directed or explain why it would not or did not. In all the circumstances, however, these things are not a sufficient basis for the inference the union asks me to draw. Certainly there is no other basis for such an inference.

21There is no suggestion, and no evidence, that the grievor was the only classified employee allegedly disadvantaged by the management practices about which she and the union were complaining in 1995 and afterwards. There is no evidence concerning the actual or apparent racial origins of other allegedly disadvantaged employees, or of those members of management responsible for the practices, or of those employees alleged to have benefited from them. In so far as the employer had work opportunities to assign that were not subject to posting and competition, the grievor asserts in a general way that she was denied opportunities afforded other employees and that the opportunities she got were not as advantageous as those that others got. Again, the evidence does not identify the actual or apparent racial origins of the decision-makers or of the other employees to who they allegedly gave preferential treatment. I do not suggest that evidence of the matters just referred to would have been necessary, or sufficient, for these grievances to succeed. These observations are simply meant to illustrate and underscore my conclusion that the evidence before me is not an adequate basis on which to sustain the claims made.

22Disappointing as it undoubtedly is for Ms. Damani, the fact that an employee with her years of satisfactory service did not get the sort of work opportunities she sought during the period in question is not so surprising as to warrant, without other objective evidence of it, an inference that discrimination played a part in the outcome. The evidence put before me does not support the grievances.

Grievor Ladouceur’s testimony on anti-union animus

Mr. Ladouceur testified that he was hired by the Ministry in 1980 as a AQA and following the probationary period his position was classified as RM3. At the time the WGLs were also classified as RM3. However, in 1989 the WGLs had grieved their classification, and at stage 2 a settlement was reached changing their classification to RM4. Mr. Ladouceur filed his own classification grievance and in a decision dated January 21, 1992 the Board issued a “Berry order”. The employer created an Air Quality Analyst classification for Mr. Ladouceur’s position in response to the Board order.

Mr. Ladouceur testified that his retroactive pay was not received until March or April of 1995. Mr. Ladouceur testified that he wrote numerous memoranda to his superiors, and even discussed the possibility of a law suit with a lawyer. The union filed in evidence a lengthy letter dated March 9, 1995 Mr. Ladouceur wrote to the then Minister of Environment complaining about the delay in the payout of his retroactive pay. He testified that he received payment within days of writing that letter. Mr. Ladouceur testified that subsequently all AQAs had their positions reclassified to the same classification the grievor had secured through his grievance.

Mr. Ladouceur has held practically every local union office since 1985, including President, Vice-President, Secretary, Treasurer and Chief Steward. At the time of his testimony he was a steward and treasurer of the local, and was also a MERC member. In addition, Mr. Ladouceur had been an alternate on the union’s negotiating team for the 2005 collective agreement. Mr. Ladouceur testified that as a member of the union executive and steward, he had been involved in several health and safety issues. He testified that there was a concern about the handling and storage of chemicals at the Ministry’s laboratory at Kingston, Ontario. At the invitation of his superiors, he conducted an assessment of the air quality in the building and issued a report dated May 23, 1990 to the supervisor of the Laboratory. In his report he expressed his view that the practices at the laboratory failed to properly contain designated chemicals such as mercury and lead. In response to his report, the management took steps to determine the extent of contamination, and repairs were undertaken to the building. Female employees of child-bearing age were designated other duties. Eventually outside consultants were retained. They concluded that since there were already plans to move out of the building, if surfaces were cleaned, no other action would be required as long as the ceiling tiles were left undisturbed. Mr. Ladouceur testified that health and safety issues continued in that building. His manager at the time requested him to investigate. Mr. Ladouceur investigated and issued a memorandum dated July 10, 1997. Mr. Ladouceur testified that there were on-going concerns that the contractors carrying out repairs to the building may disturb the ceiling tiles, and opined that even to date only parts of the building had been properly cleaned up. When asked by union counsel what the management’s reaction was to his raising these health and safety issues, Mr. Ladouceur replied, “I am of the impression that their plans had been upset and it forced the relocation”.

Mr. Ladouceur referred in his evidence to the following letter he wrote on August 11, 2000 to the then Premier, Mr. Michael Harris.

I am the President of OPSEU local 429, Ministry of the Environment. I am writing to express my concerns over recent comments made in a CBC radio interview by a member of your caucus, Hon. Bill Murdoch. Mr. Murdoch made several comments regarding that the “wrong people were fired, we should bring them back, and fire the ones who are there now”. He alluded to laziness and an unwillingness to do our jobs.

I work at the Kingston Regional Office of the Ministry of the Environment, a site where a water testing laboratory was closed. Mr. Murdoch’s comments have generated a tremendous feeling of anger and further distrust of the government. The layoffs caused huge personal disruptions to many families, and Mr. Murdoch’s insensitive and ill-informed comments will only further demoralize us. Is Mr. Murdoch representing the Government with his comments? Is that your opinion? Cabinet’s? Minister Newman’s?

We are struggling to cope with reduced staffing levels and slashed budgets. To accuse us of being the cause of problems is the height of arrogance. We are doing our best in difficult times.

Unless Mr. Murdoch is representing the Government with his comments I demand an apology and a retraction. If he is representing the Government then perhaps OPSEU has grounds for a Wrongful Dismissal lawsuit of Herculean proportions.

Personally I believe that the Honorable Mr. Murdoch is speaking without support. Your earliest response would be appreciated. I can be contacted during the day at the MOE Kingston, office, 613-549-4000 x 2655, or via e-mail at …., if you or your staff wish to discuss the matter further.

The premier responded by letter dated September 6, 2000 to Mr. Ladouceur, with copy to Mr. Murdoch, as follows:

Thank you for your August 11th e-mail regarding comments reportedly made by Bill Murdoch, MPP for Bruce-Grey-Owen Sound. I have noted your concerns.

Let me assure you that I recognize that staff at the Ministry of the Environment are hard-working and dedicated. My colleagues and I fully realize the important work that ministry staff perform to protect and preserve our environment. We are committed to ensuring that staff have the tools and resources they need to fulfill their vitally important duties and responsibilities.

I appreciate having this opportunity to respond.

Mr. Ladouceur testified at length about his involvement in the Walkerton Inquiry. He testified that OPSEU received standing at the inquiry. He was a member of the union’s delegation. On September 19, 2001, Mr. Ladouceur made a presentation to the Commission, a copy of which was filed in evidence. The focus of his presentation is captured in the following excerpt:

The current staff participated in the meetings and consultations that OPSEU conducted to produce it’s [sic] various papers submitted to the Inquiry. I am not here to represent OPSEU’s “Big Picture” issues. Those matters have already been well documented.

I hope to express some “local colour” to the Commission. I am here giving voice to some of the concerns and opinions expressed by my MOE members.

• The value lost to Ontario with the closure of the Kingston Regional Laboratory

• The need for whistleblower protection for civil servants

• The Ministry of the Environment is the still the best candidate for the lead responsibility for drinking water protection.

• Resourcing issues as seen by front-line staff

• The recruitment and retention crisis in the MOE

• Head office / Field office problems

• Summary and questions you may wish to pose.

He stated that when the Walkerton Inquiry was first set up, employees hesitated to come forward. OPSEU submitted a petition, which resulted in the amendment of the Public Inquiries Act to provide some measure of protection to “Whistle-blowers”. OPSEU then organized meetings where staff could bring forward their concerns and complaints. The results of these meetings formed part of OPSEU’s submission to the inquiry. Mr. Ladouceur testified that even though the whistle-blower protection amendments were in place at the time of the Walkerton Inquiry, staff still had a fear of coming forward. After he had made his presentation, a colleague joked with him, suggesting that he may not be employed with the Ministry for much longer. Mr. Ladouceur testified that as far as he was aware no members of management were present at the time he made his presentation to the commission.

Mr. Ladouceur testified about particular issues he had brought to the attention of the commission. In the Commission’s report Part I, the Ministry had been instructed to develop a computerized tracking system for drinking water. Mr. Ladouceur e-mailed the commission on March 6, 2002 pointing out that the Eastern Region had such a tracking system in place, but had ceased to operate when the laboratory was closed. The administrative Assistant to the Commission thanked Mr. Ladouceur for his e-mail and stated that it will be forwarded to appropriate staff.

Mr. Ladouceur testified that he provided Mr. Tim Hadwin, General Counsel of OPSEU, with information relating to “a past incident of human impact due to bacterial contamination”. Mr. Hadwin, in turn wrote a letter dated October 11, 2001 to the Director of Research of the Walkerton Commission.

Mr. Ladouceur testified that the foregoing incident was the subject of a large prosecution by the Investigation and Enforcement Branch. In 1998, a colleague Mr. Robert Holland used this incident as his case study during a training course. Mr. Ladouceur was not aware whether any manager was present during the presentation of Mr. Holland’s case study. He further testified that he was told by staff that the documentation relating to this incident had been shipped to the archives in Cooksville, Ontario and subsequently disposed of in accordance with the archives’ usual schedule, even though he had informed the supervisor who was preparing the shipment that the documents must be secured and brought to the attention of the Walkerton Inquiry. Mr. Ladouceur did not see any reference to this incident in any of the reports issued by the Commission.

Mr. Ladouceur further testified that he was a contributing author to Part II of OPSEU’s submissions to the Commission, which dealt with the government’s role and policy in the protection of drinking water. He was also appointed as the official media spokesperson. Mr. Ladouceur testified that the employer would have been aware of his role in the Walkerton Inquiry because the meetings he had with union members were held at the Ministry offices with the permission of management. He also believed that management would have been aware of his role because he had direct discussions with Mr. Karl Griffith (ADM) and Mr. Brian Ward (Regional Director) about the fact that he and Mr. Robert Holland would be absent from work on days they were attending the inquiry sessions, and urged them to encourage staff to participate in the inquiry.

Mr. Ladouceur testified that as Local Union President, he was involved in a grievance filed by an employee alleging sexual harassment and breach of the Workplace Discrimination and Harassment Policy by a supervisor in the Investigation and Enforcement Branch. As the grievor’s representative, he negotiated a settlement of the grievance. However, according to Mr. Ladouceur, management subsequently reneged on the terms of settlement. The union held a press conference on the issue. He stated that a report on his interview with the Canadian Broadcasting Company was carried on its web-site and on the C.B.C. National news. Subsequently other news media picked up the story. An article that appeared in the Belleville Intelligencer was filed in evidence. The CBC web-site report describes Mr. Ladouceur as an Air Quality Scientist and union steward. It reports in essence Mr. Ladouceur’s claim that he has “a thick file of incidents where investigators and other staff members have allegedly been harassed, that nothing was done when employees lodged an official complaint”. Mr. Ladouceur is further quoted as claiming that subsequently a formal grievance was filed and a settlement reached, but that the ministry reneged on the deal by altering a key part of the agreement. The same report quotes a Ministry spokesperson who admits that one of the allegations was true, and that appropriate action had been taken, through discussion with the union.

The article in The Intelligencer makes no reference to Mr. Ladouceur. However, it refers to a claim by the union that a sexual harassment flap in the Eastern Region Offices of the Ministry of Environment has jeopardized the effectiveness of the Investigations and Enforcement Branch. The essence of the article is an allegation by a union spokesperson (not Mr. Ladouceur) to the effect that while the employer had retained an outside consultant to investigate the allegations, the Ministry had failed to disclose the full report issued by that consultant. During his testimony Mr. Ladouceur suggested that management would have become aware of those media reports because media material is often distributed to managers for preparation of briefing notes for directors and ADMs.

Mr. Ladouceur testified that he was the chief spokesperson for some 65 grievors (including himself), who had filed a group grievance seeking reclassification. At the stage 2 meeting held on May 9, 2001, Mr. Ladouceur made a presentation on behalf of the grievors. He testified that he brought to the attention of the Deputy Minister’s designee a decision of the GSB, in support of his position that the Scientist 4 class was inappropriate for field scientists. The employer denied the grievance, which remained outstanding before the JSSC at the time of Mr. Ladouceur’s testimony. Mr. Ladouceur testified that the employer took no action to resolve the classification issue, despite its undertaking to discuss the matter with Management Board Secretariat. Filed in evidence was a memorandum dated May 27, 2002 Mr. Ladouceur wrote to Mr. Robert Campbell, Technical Support Manager, Northern Region. In it Mr. Ladouceur draws Mr. Campbell’s attention to comments by Justice O’Connor in Part II of his Walkerton Inquiry Report, about the need to have a salary structure which will encourage MOE staff to develop a high level of technical proficiency. Mr. Ladouceur urged Mr. Campbell to keep those comments in mind when developing a resolution to the classification dispute.

Following the strike in May 2002, Mr. Ladouceur advised Mr. Brian Ward (Regional Director, Eastern Region) who was a co-designee at stage 2, to the effect that the OPSEU President had authorized him to undertake “political public action” in order to resolve the classification dispute. He told Mr. Ward that he intended to organize a protest at Queen’s Park. He testified that while he had started to organize the protest, it was not carried out because Mr. Ward arranged for himself and Mr. Holland to meet with the Assistant Deputy Minister, Mr. Michael Williams. At the meeting, Mr. Williams mentioned that the employer was considering using the Forensic Scientist category for AQAs as a resolution of their grievance. Following the meeting, Mr. Ladouceur felt satisfied that “something positive was happening.”

However, Mr. Ladouceur testified that a local union president from Northern Ontario had informed him that Mr. Campbell had commented that the protest at Queens Park being organized was “inappropriate”. Mr. Ladouceur wrote the following e-mail to his manager, Ms. Mary Hennessy, on January 24, 2003:

I have received eyewitness accounts that R. Campbell has decried my actions with respect to our grievance as inappropriate. Is Mr. Campbell speaking on behalf of the Deputy in this matter? Is he representing the official position of Management?

Allow me to recap and clarify:

1. I have requested a meeting with the ADM to receive some official and substantive word on the matter to replace the rumors and speculation that are sapping everyone’s energy.

2. I have advised Brian Ward that I have the support of OPSEU’s Executive Board in my choice of action, including an information picket and news conference.

3. I have advised Brian Ward that the choice of action is dependent on the results of discussions with the ADM.

I consider this to be a prudent, measured plan of action. I am extending a courtesy to Brian by advising him of the options I am considering. Brian is the Deputy’s designee on this matter, and my official contact with Management until I am told otherwise.

I would like to remind Management that an information picket is a legal form of expression and assembly in Canada, and certainly open to OPSEU members. The suggestion that exercising our constitutionally protected rights is “inappropriate” reminds me of the situation that occurred in Peterborough wrt BU staff participation in the Walkerton Inquiry Town Hall meetings.

My own opinion is that Rob has offered his personal views, which I welcome him to express. I suggest that the grievors, myself included, are sensitized to this matter and may take his words as carrying some official credence. I look forward to some discussions with an empowered party. It is for this reason that I would like to meet with the ADM, and bring the communication on this matter into focus.

Please convey my concerns to the appropriate parties.

Mr. Ladouceur testified that in 2001 or 2002, The Professional Geosciences Act came into effect. It made professional certification by the Association of Professional Geoscientists of Ontario a pre-requisite for practising geo-science. Mr. Ladouceur believed that he met the requirements for certification as a geoscientist under the Act. He spoke to a manager who agreed, and encouraged him to pursue certification. While his application for certification was pending, he filed a grievance dated September 12, 2002, alleging that his job description requires him to practise geoscience despite the fact that he was not certified under the Act, thereby potentially exposing him to a fine of $ 25,000.00. He subsequently withdrew the grievance when the Association ruled that his job duties did not constitute practice of geoscience.

Filed in evidence was an e-mail Mr. Ladouceur sent to Mr. Campbell on June 11, 2003, expressing his view that he was eligible for certification and suggesting that the Geoscience class standards are a better fit for AQAs than the scientist series. That e-mail elicited the following response from Mr. Campbell:

Thank you for this information Michael. I will hold it in confidence. As a Geoscientist myself, I respectfully disagree with your position. However it is out of both of our hands on all counts. We will have to see what the APGO says in writing and what the stage two chair has to say.

As a manager I am bound to uphold the rules and integrity of management rights and the classification system. As a result, many times managers and employees disagree with a position and that is why we have the grievance/dispute resolution system. I want you and your colleagues to know I have the utmost regard for the Air Program and respect for the staff that work in it. I hope that, what ever the outcome, it will not affect our ability to work together. At times we have to agree to disagree and let the system decide for us.

Cross-examination of grievor Ladouceur on anti-union animus allegation

Mr. Ladouceur agreed that Mr. Robert Campbell was himself a geoscientist, and that Mr. Campbell was Technical Support Manager in the Northern Region and lived and worked in Sudbury. He confirmed that he worked in the Eastern Region out of Kingston and that his grievance relating to his lack of geoscientist certification was filed with his supervisor in the Eastern Region. Mr. Ladouceur stated that when as a geoscientist, Mr. Campbell disagreed with him that Atmospheric Science was a discipline within Geoscience, Mr. Campbell had “denigrated his position in the Ministry”.

When employer counsel referred Mr. Ladouceur to p. 5 of the Board’s preliminary decision dated January 31, 2005 in this matter, where it is recorded “It is alleged that the denial of the temporary assignments to AQAs was in part an improper reprisal for Mr. Ladouceur’s active role in the union, particularly in relation to the Walkerton issue”, and asked whether he was making that allegation. Mr. Ladouceur responded, “You cannot ascribe that to me because I didn’t write that”, and stated that his allegations are as set out in the particulars. Then the following exchange occurred:

Q: Are you not making the allegation as set out in the decision?

A: What we have said is that we haven’t seen a legitimate or business reason, and in that absence I suggest there were illegitimate reasons.

Q: So it is not necessarily a reprisal for your union activity?

A: I rely on the particulars.

Q: Are you alleging a series of events which you say is a reprisal because of your union activity?

A: I believe I have been treated unfairly.

Q: But not as a reprisal?

A: I believe in the absence of a proper explanation that a motive exists for a reprisal.

Mr. Ladouceur agreed under cross-examination that the MPP’s comments to the effect that MOE staff were lazy and incompetent, and should be fired, affected bargaining unit employees as well as management staff because the layoffs had involved both groups. He agreed that Mr. Ward was also very disturbed by the MPP’s comments, that Mr. Ward had thanked him for taking the initiative to write to the Premier, and had complimented him on getting a written response from the Premier.

Mr. Ladouceur agreed that the following memorandum dated April 8, 2003 from his Technical Support Manager, Ms. Mary Hennessy, was received by him prior to the filing of these grievances:

You and your colleagues have raised a number of questions related to management’s recent decision to reclassify a variety of scientific and professional positions throughout the Ministry. I would like to take this opportunity to provide you with the clarification you have requested, and address certain other issues that may not have been raised by you, but by other Air Quality Analysts in other Regional Offices.

As noted in the announcement to staff on February 18, 2003, a review has been completed of a number of OSPEU positions throughout the ministry that are involved in scientific and professional work. This review was initiated by management to address a number of issues including: the ministry’s ability to attract and retain qualified staff in these areas, and concern about the continued use of the Resource Manager Class Standards which do not accurately reflect the scientific and professional responsibilities of staff. This initiative is considered to be an interim solution, as it would not/could not address all issues raised through the ongoing classification grievances.

As part of this exercise, the duties of the Air Quality Analyst position were reviewed against the available Class Standards, and a classification was identified that most appropriately fit the positions’ duties and responsibilities. As per the standard approach applied when classifying positions, the criteria identified in each Class Standard were reviewed and considered.

Of those class standards that were available for consideration, the Scientist 4 classification was determined to be the most appropriate interim classification for the Air Quality Analysts in Operations Division. The Scientist Series Class Standard recognizes analytical work performed to support law enforcement agencies, other government agencies or the general public. It also references regular appearances in courts of law to give evidence as a scientific expert. In addition, the salary range provided a salary differential between the group leader and the technical staff they are leading. The Ground water and Surface water Group Leaders were temporarily assigned to a classification whose assigned salary provided a salary differential between them and the professional and technical staff they were group leading.

In the recent past the Air Quality Analyst Group Leader positions were compensated at a rate equal to that of the Ground and Surface Water Group Leaders, and questions have been raised as to why this practice is not being continued.

As noted previously, this reclassification is an interim solution to address a number of issues including: attraction and retention of qualified staff, and complaints that the previous classification series and associated compensation grid, that of Resource Manager, no longer accurately reflected the scientific and professional responsibilities of staff. While there may have been parity in the past, decisions on classification are made on a position by position basis, in consideration of the duties and responsibilities. However, at this point in time, appropriate classifications of a higher level of scientific expertise were not available for consideration.

I trust that this clarification and information provide you answers to your questions. I want to reiterate that while the reclassification was identified as an interim solution, and it did not/could not address all issues, we feel that it goes a long way to address the major concerns raised by both management and staff with respect to the Ministry’s recognition of, and approach to compensation for, the professional and scientific work being performed by OPSEU staff in the regional Technical Support Sections.

Mr. Ladouceur agreed that the Ministry’s inability to attract or retain qualified staff, and the inappropriateness of the use of the Resource Manager class series for scientists, were concerns that existed at the time. When counsel suggested that Ms. Hennessy’s memorandum provides reasons for the employer’s actions, including the reasons for temporarily assigning the WGLs, Mr. Ladouceur replied that the memorandum did not answer his questions and that once he read it he decided to grieve. Then the following exchange took place.

Q: So because the explanation was not satisfactory to you, you say you were treated unfairly?

A: The rationale in the memo has serious flaws and leads me to conclude that the analysis leading to the reclassification is incorrect.

Q: But you agreed that the inability to attract or retain qualified staff and the use of the RM class series were concerns?

A: Yes.

Q: Do you agree that both of those were motivations for the Ministry?

A: Yes.

Q: But in your view those explanations are not satisfactory to you?

A: I expect management to exercise rights in a fair manner which withstands scrutiny.

With regard to the complaints he had made about the delay in the payout of the retroactive pay following his successful classification grievance, Mr. Ladouceur agreed that regional management had acted promptly and professionally and that “any hold up in payment was not a result of problems at the regional office”. He agreed with counsel’s suggestion that the regional management had in fact thought that he had already been paid. When counsel suggested that his managers were also very frustrated with Human Resources for the delay, Mr. Ladouceur agreed.

Mr. Ladouceur agreed that when he did the analysis and report dated May 23, 1990 on the handling and storage of designated substances at the Kingston laboratory, he did so as a scientist, and not as a union officer. He agreed that he did the investigation and the report at the request of management, that his report was approved by the main laboratory in Rexdale, and that there was a consensus that as an interim solution it was best to leave the contamination alone undisturbed until the relocation of the MOE office. Mr. Ladouceur agreed that Mr. Hadwin’s letter to the Walkerton Inquiry was not copied or otherwise provided to management, and that management would not have known about the letter until it was disclosed in this proceeding. Similarly, Mr. Ladouceur agreed under cross-examination that his communication with the Walkerton Inquiry about the Ministry’s failure to maintain a data base on water quality was not copied to the employer.

When asked about his e-mail dated January 24, 2003 about Mr. Campbell’s alleged comment that his planned protest at Queens Park was inappropriate, Mr. Ladouceur corrected his evidence as to who he had heard that from, and confirmed that it was his belief that Mr. Campbell was expressing his personal views. Mr. Ladouceur admitted that the joke about him possibly not working for the Ministry for much longer was made by a fellow-employee, and not a member of management.

Employer counsel named 5 employees of the Ministry, and asked Mr. Ladouceur whether he was aware that they had all held union offices, two as local president. Mr. Ladouceur replied that he knew 4 of them, including the two local presidents. When counsel asked whether Mr. Ladouceur was aware that those 4 employees were among those who received temporary assignments to GeoScience 4, he said that he was.

Testimony in-chief of grievor Diamond on the allegation of anti-union animus

Mr. Diamond testified that he started his employment with the employer in May of 1966, as a AQA for the South-West Region, and worked out of London, Ontario. He testified that he had served as a Steward for Local 123 for approximately 6 years, that during the 2002 strike he had been a picket captain, and that in the five years just prior to the Walkerton Inquiry he had served as the worker co-chair of the Joint Health and Safety Committee.

Mr. Diamond confirmed that he was part of the group classification grievance, and testified that he had previously filed one individual grievance. In the latter, he grieved that with his seniority he should be entitled to bump within his own unit when his position of Senior Program Scientist was declared surplus. He testified that the grievance was settled wherein he received a “bump up of 2 or 3 steps in the salary grid”.

Mr. Diamond testified that as union steward he had involvement in “a few grievances” filed by other employees. When asked whether he had any conflicts with local management as a result, he said “Yes, one or two”. When asked to elaborate, he said the first conflict related to a woman systems officer who was unhappy with the manner the employer dealt with her request for accommodation. He testified that he had several meetings with management on her behalf, and that “once or twice the discussions got somewhat heated”. Mr. Diamond testified that on another occasion the employer representative had left him a message which he had not received. The employer representative had believed that Mr. Diamond deliberately ignored his message and had hung up on him when he called. The second “conflict” as described by Mr. Diamond was as follows. A female employed on contract as receptionist, sought to return to work following maternity leave. The office manager informed her that her position was no longer available. The employee grieved. Following discussion at the stage two meeting, before the designee issued her report, the office manager offered the employee a position and the grievance was withdrawn.

Mr. Diamond testified that he had a conflict with Mr. Robert Campbell also. He stated that AQAs, WGLs and a few supervisors attended a training session in Hamilton, Ontario. According to Mr. Diamond, Mr. Campbell suggested at a session that those employees who were part of the group classification were deliberately “not performing up to capacity” to pressure management to deal with the grievance. Mr. Diamond testified that he stood up and told Mr. Campbell “that he possibly couldn’t know all the staff involved in the grievance, and asked if he had any proof of his accusation”. Mr. Diamond recalled that “several staff” applauded in support.

Cross-Examination of grievor Diamond on the issue of anti-union animus

Mr. Diamond agreed that he was one of five picket captains for his local during the 2002 strike, and that he had no conflict on the picket line with Mr. Lafrance or any other manager. Mr. Diamond agreed that he met Mr. Campbell for the first time at the training session in Hamilton in January 2003. He also agreed that all five AQAs including grievors Ladouceur and Dobroff, and all of the WGLs were present at the session during which Mr. Campbell made the alleged statement. He agreed that at the end of a session, the floor was opened up for questions and during this period the group classification grievance came up. Employer counsel stated that while Mr. Campbell will admit that the grievance came up, he will deny the statement attributed to him, and will testify that he would never have said that because he never believed that the employees were deliberately not performing to provoke management. Mr. Diamond reiterated that he recalled Mr. Campbell’s remarks.

Testimony in-chief of grievor Dobroff on the allegation of a anti-union animus

In 1981 Mr. Dobroff commenced employment as an AQA (classified as Resource Manager 3) in the West Central Region, working out of the Hamilton District Office. He testified that after Mr. Ladouceur had won a Berry order following his grievance, and had been reclassified as AQA, he felt that his position also should not be classified as RM 3 since he did similar work as Mr. Ladouceur. Therefore in 1992 he grieved, and following a hearing in 1997 it was held by the Grievance Settlement Board that his position was the same as Mr. Ladouceur’s. Thus in 1999, Mr. Dobroff’s position was also reclassified as AQA.

Under cross-examination, Mr. Dobroff agreed that apart from the aforementioned grievance, he had not filed any other grievance. However, he was part of the group classification grievance filed by some 65 employees. He also agreed that he had never held any union office.

DECISION

I agree that direct evidence of anti-union animus is rarely available, and is not necessary for the union to meet its onus. Nevertheless, there must be sufficient evidence to establish that the employer action was tainted by anti-union animus. If such an animus can be pieced together from a pattern of circumstantial evidence, the union would have met its onus. The issue then is whether the evidence before me provides a sufficient basis to draw the inference the union urges me to make. That is, that the reasons the employer offered at arbitration are mere ex-post facto justifications to cover up a decision made for the illegitimate purpose of taking reprisals against the grievors because of their union activity. In other words, I will have to be satisfied from the totality of evidence that the reasons offered are fabrications, and that the real reason, in whole or part, was an intention to penalize the grievors because of their union activity. The union’s position was that the primary target of the employer’s anti-union motivation was grievor Ladouceur, because he was seen as “a thorn” in the employer’s side.

Grievor Dobroff has not been involved in any union activity beyond being one of some 65 employees who formed part of the classification group grievance. The union did not suggest that there was evidence justifying an inference that the employer formed an intention to take reprisal against Mr. Dobroff because he joined in that grievance.

Grievor Diamond was also part of that classification group grievance. In addition, he had been a union steward for several years and was picket captain during the strike. He also testified about “conflicts” he had with management. Although he did not directly assert to that effect, presumably the evidence was adduced to suggest that it is reasonable to infer from this union activity and the alleged “conflicts” that the employer had a motive to, and did, retaliate against Mr. Diamond by denying him a temporary assignment as Geoscientist 4. The evidence relating to Mr. Diamond does not provide any basis whatsoever to make the inference urged upon me. Mr. Diamond’s testimony was that as union steward he had been involved in “a few” grievances on behalf of employees. There was no evidence that there was any unusual hostility or acrimony between Mr. Diamond as steward and the employer in any of those matters. To the contrary, the evidence is that the employer recognized the merits of the grievances presented by Mr. Diamond and the grievances were resolved to the satisfaction of both parties. Similarly the “conflict” with regard to a human resources advisor hanging up on Mr. Diamond cannot reasonably seen as anything more than normal interaction in an inherently adversarial relationship between a union steward and a human resources official. Besides, there is no evidence to suggest that this “hanging up” incident ever came to the attention of anyone having anything to do with the employer’s decision on the temporary assignments.

Mr. Campbell testified that he recalled Mr. Diamond asking a question about the classification dispute, at the end of a training session. While he could not recall the specifics of Mr. Diamond’s question or his answer, he recalled that Mr. Diamond asked the question aggressively and was upset about the answer he received. However, Mr. Campbell insisted that he would not have stated that the staff were not performing to capacity, because he did not at any time believe that to be the case. While Mr. Diamond claimed that grievors Dobroff and Ladouceur were present at the meeting when Mr. Campbell made the alleged comment, neither Mr. Dobroff nor Mr. Ladouceur corroborated Mr. Diamond’s testimony. In any event, even if the incident had occurred as claimed by Mr. Diamond, there is no evidence that it created any bad blood between Mr. Campbell and Mr. Diamond. In fact the evidence is that following that meeting, Mr. Diamond and Mr. Campbell returned to the hotel sharing a cab. That evidence hardly suggests that there was any lingering hostility between the two.

In summary, the evidence suggests that while Mr. Diamond had been a steward and a picket captain he had hardly any union activity which brought him into conflict with management. There is no basis to infer that the employer formed an intention to retaliate against Mr. Diamond because of his union activity.

The union’s position in effect appeared to be that the employer’s motivation was to retaliate against Mr. Ladouceur, and that to achieve that retaliation, action was taken which impacted upon all AQAs.

Having reviewed the evidence in its totality, I have concluded that it does not reasonably allow an inference that the employer’s decision to deny AQAs the temporary assignments given to the WGLs was in any way tainted by an anti-union animus.

There is no question that Mr. Ladouceur has been a very active and persistent union activist asserting rights on behalf of union members. However, the fact that a union official carries out the duties of his office with diligence and persistence as Mr. Ladouceur appears to have done, by itself, does not justify an inference that any employer decision which adversely impacts him, was tainted by an anti-union animus. The decision in this case, it must be remembered, affected not only Mr. Ladouceur. It affected all five AQAs employed in different regions of the province. For an employer to victimize four other employees due to a desire to penalize Mr. Ladouceur, the employer had to have significant ill-will against Mr. Ladouceur. There is simply no evidence of hostility between him and his superiors. The union’s contention was that the employer retaliated against Mr. Ladouceur primarily because of his role in the Walkerton Inquiry. However, there is no evidence to indicate that the employer in any manner opposed or objected to his participation in the inquiry. Thus, in the course of making the point that the employer was aware of his participation in the inquiry, Mr. Ladouceur testified that the submissions on behalf of OPSEU were prepared on the basis of information gathered at meetings with ministry employees. He asserted that the employer would have known that he was gathering information from employees to be presented to the inquiry, because those meetings were held in Ministry offices with the permission of the employer. That suggests that the employer in fact co-operated with Mr. Ladouceur in his efforts. In similar vein, Mr. Ladouceur testified that he had direct discussions with the Assistant Deputy Minister, Mr. Karl Griffith and Regional Director, Mr. Brian Ward, about the fact that he and Mr. Robert Holland would be absent from work on days they were attending the inquiry hearings. There was no suggestion that either manager opposed or objected to their absenting themselves. Similarly, Mr. Ladouceur did not suggest that they responded in a negative manner when he sought assurances that staff will be encouraged to participate in the inquiry. In short, there is no evidence that any member of management opposed or discouraged staff participation in the Walkerton Inquiry generally or Mr. Ladouceur’s participation specifically. To the contrary the evidence is that whenever Mr. Ladouceur sought the employer’s cooperation he received that cooperation. In this regard it is to be noted that Mr. Robert Holland, who testified on behalf of the union in the instant hearing, also participated on behalf of the union in the Walkerton Inquiry. The uncontradicted evidence is that despite that role, Mr. Holland was subsequently promoted to the position of Acting Supervisor. That evidence is inconsistent with an inference that the employer was hostile towards employees because of their participation in the Inquiry on behalf of the union.

While Mr. Ladouceur testified about a joke to the effect that because of his role in the Walkerton Inquiry he may not be employed with the Ministry for much longer, that came from a co-worker, and not a manager. It is quite a stretch to infer from a co-worker’s opinion, that the employer bore some ill-will against Mr. Ladouceur because of his role in the inquiry and would retaliate. Mr. Ladouceur testified that although the legislation was amended as a result of an OPSEU petition, to provide some measure of protection to “whistle-blowers”, staff still continued to be hesitant to come forward. However there is absolutely no evidence that this hesitation was a result of anything the management did or said. In light of the evidence before me, it is not reasonable to infer that the employer was motivated to retaliate against union officials. The uncontradicted evidence is that five union officials, including two local union presidents, were among those who received temporary assignments as Geoscientist 4.

Mr. Ladouceur appeared to suggest that the delay in the pay out of his retroactivity following his successful classification grievance was indicative of an anti-union attitude on the part of the employer. Union counsel characterized this as a refusal to accept the Board’s decision in favour of Mr. Ladouceur. However, the evidence is to the contrary. There is no question that Mr. Ladouceur was extremely upset about the delay, and even contemplated a law suit. However, he agreed under cross-examination, that the regional managers had acted promptly and professionally in this regard and were not responsible for the delay, and were also very frustrated about the delay. Indeed, Mr. Ladouceur was aware that his managers had mistakenly believed that he had already been paid.

With respect to the concerns Mr. Ladouceur raised about the handling and storage of chemicals at the Kingston laboratory, all of the evidence indicates that the employer responded positively to his complaint, albeit not to his full satisfaction. Thus he testified that the employer retained an outside consultant to determine the extent of the contamination. The consultant’s recommendation, in view of the planned move from that location, was that as long as the ceiling tiles are not disturbed, it would be sufficient if the surfaces are cleaned. The employer accepted this recommendation and also took steps to carry out some repairs to the building. Also female employees of child-bearing age were relocated. Therefore, the evidence is that the employer responded to the concerns Mr. Ladouceur raised. There is no suggestion in the evidence that the management was in any way upset with the Mr. Ladouceur because he raised those concerns. Mr. Ladouceur testified that despite the steps taken, health and safety issues continued in the building, and Mr. Ladouceur raised his concern again. His own evidence was that his manager invited him to investigate and report. If there was any hostility towards Mr. Ladouceur, because of his raising safety concerns, it is very improbable that he would receive such an invitation.

The evidence relating to Mr. Ladouceur’s interaction with the employer, (in this case his employment as well as political superiors) with regard to his letter to the premier about derogatory comments made by a MPP is quite revealing. Mr. Ladouceur’s own testimony is that the Premier himself replied in writing to his letter of protest. The Premier’s letter was a very supportive one. Moreover, during cross-examination he agreed that his Regional Director was also very disturbed by the MPP’s comments, and had personally thanked him for writing to the Premier. There is no evidence that anyone in management was critical of him for his actions. On the contrary, his Regional Manager complimented him when he received a written reply from the Premier. That evidence does not support an inference of hostility towards Mr. Ladouceur because he wrote to the Premier.

Mr. Ladouceur asserted in his testimony that despite an undertaking to discuss the classification group grievance with Management Board Secretariat, the employer took no action to resolve that grievance. However, the evidence is that the employer did in fact discuss with MBS a resolution of the grievance by using the classification of Forensic Scientist. However, MBS insisted that that classification could not be used.

Mr. Ladouceur testified that the discussion with Mr. Ward about his planned protest rally at Queen’s park took place “just weeks” before the temporary assignment decision was made, appearing to suggest a link between the two. The evidence is that Mr. Ward’s response was to arrange for a meeting between the Assistant Deputy Minister and the union representatives. Mr. Ladouceur’s own testimony was that he felt positive following the meeting with the ADM and dropped the idea of a protest rally at Queen’s Park. The fact that the employer would prefer that no protest rally takes place is hardly surprising. The evidence indicates that the employer acted in a constructive manner to address the union’s concerns by arranging a meeting with the ADM, making political action unnecessary.

Mr. Ladouceur testified about his dealings with Mr. Robert Campbell. He had received some hearsay information that Mr. Campbell had commented that the planned protest rally was “inappropriate”, and Mr. Ladouceur wrote to his manager about that. Mr. Campbell recalled during his testimony that he had a discussion about the planned protest rally with Mr. Bill Trayling, an air-technician in the Northern Region and President of the Sudbury OPSEU Local. He agreed that he told Mr. Trayling that he was very disappointed about the planned protest rally. He explained that he felt frustrated that despite the extent to which management had gone to resolve the classification issue, the employees were not patient. At that point the regional management had convinced senior management, over the objections of MBS, to allocate $1.5 to $2 million plus on-going costs of $ 600,000 to $ 700,000 per year, in order to resolve the grievance. He did not think a political protest was a good idea because “the folks at Queen’s Park could start asking questions and challenge our plan, potentially delaying or even unravelling our plan”. Again, I find that this evidence does not permit an inference that Mr. Campbell harbored any ill-will towards Mr. Ladouceur because of his planning a protest. In any event, the evidence is that the decision on the temporary assignments had already been made prior to these events.

Mr. Ladouceur also testified about a disagreement he had with Mr. Campbell about his application to be certified as a professional geoscientist. Mr. Campbell candidly admitted that he believed that AQAs do not practise geoscience, and that Mr. Ladouceur was not eligible to be certified as geoscientists under the Act. This cannot in my view lead to an inference that Mr. Campbell was hostile towards Mr. Ladouceur, particularly when the Association’s ruling confirmed that Mr. Campbell’s belief was well-founded. I cannot agree that Mr. Campbell denigrated Mr. Ladouceur’s work by expressing his opinion in those circumstances. Indeed, in his response Mr. Campbell explicitly states that he had “utmost regard for the air programs and respect for the staff that work in it” and recognizes that despite his own opinion, the decision on eligibility is ultimately up to the association. He also expresses his hope that “whatever the outcome, it will not affect our ability to work together”. That is hardly indicative of hostility towards Mr. Ladouceur.

A careful review of the union’s testimony and submissions of counsel clearly indicates to me that the real complaint in these grievances is the perceived unfairness and inappropriateness of ending a long standing history of parity in pay between WGLs and AQAs. Thus during his submissions union counsel described the employer’s action as “unfounded”, “not justified” and “irrational”. Where an employer action is so irrational in the sense that no half-intelligent person would do that, there may be reason to question credibility and to suspect that there may be a hidden agenda behind the decision. However, that is not the case here. There is ample evidence that the employer had for several years faced a crisis in its in ability to recruit and retain qualified scientific staff on its water programs. Mr. Ladouceur himself admitted that these were concerns faced by the employer at the time, and also that no such concerns existed on the air side. The employer had no difficulty recruiting and retaining qualified air scientists. On the water side there was an exodus of scientists from the Ministry, particularly to the private sector. When competitions were held for water scientists, few qualified candidates applied. The top ranking candidates refused job offers and the employer was forced to hire fourth and even fifth ranked candidates. Moreover, the Walkerton incident and the inquiry that followed brought into focus the need to have highly qualified water scientists. The Ministry’s water programs came under greater public scrutiny. The evidence is that the primary reason for the recruitment and retention crisis on the water side was the significant difference in the pay scales between the Ministry and the private sector. Justice O’Connor’s Report on Walkerton makes reference to the recruitment and retention difficulties and the need to revise wage structures.

Mr. Campbell testified about his thinking in making his recommendation as he did. His first goal was to bring both groups - WGLs and AQAs – into science classifications, so that they would benefit from the planned science review. He also wanted to address the recruitment/retention crisis on the water side by increasing the wage scales of water scientists at least to the bottom of the private sector wage scales. This was to be achieved through temporary assignments as Geoscientist 4. Mr. Campbell testified that he fully realized that this recommendation would result in a departure from the historical pay parity that had existed between the WGLs and AQAs. He realized that this decision would disappoint AQAs. He testified that even some of his management colleagues challenged the appropriateness of his recommendation. He testified, however, that he was not prepared to perpetuate mistakes made by his forefathers. He was prepared to take the criticism, because he believed that there was a significant difference between the work performed by WGLs and AQAs.

There is ample evidence, including documentary evidence created at the time, that the recruitment/retention problem existed on the water side and was a serious concern for the employer. This was recognized by Justice O’Connor’s Walkerton Report itself. Even Mr. Ladouceur accepted that. The reason offered by Mr. Campbell, who made the effective recommendation that resulted in only the WGLs receiving the higher rated temporary assignments, for making that recommendation was his desire to address that problem. Particularly considering the absence of any evidence of conflict or hostility between Mr. Ladouceur and Mr. Campbell (or any other manager) in relation to his union activity, I have no basis to draw an inference that the employer acted pursuant to an ulterior motive – a desire to retaliate against Mr. Ladouceur because of his union activity.

This conclusion I come to is further buttressed by the testimony I have set out verbatim in the exchanges between employer counsel and Mr. Ladouceur at pp. 49-50 and 52-53 (supra). In most unsuccessful grievances involving allegations of anti-union animus, it becomes evident that the grievor genuinely and strongly believes that the employer acted out of an anti-union motivation, but there is no evidence to support such a finding. In the present case, however, when asked a direct question, the grievor did not assert that the employer had retaliated against him because of his union activity. His responses suggest that because the employer’s decision was unfair and unacceptable to him, the Board should conclude that the decision was motivated because of his union activity. His responses suggest that he himself was not convinced that the employer acted out of an anti-union motivation. While the Board understands the feeling of the disappointment and the unfairness experienced by the grievors as a result of the loss of their long standing status of parity in pay with the WGLs, that is not an inference the Board is entitled to, or prepared to make, based on the evidence before it. Any inequity in pay rates that exist must be addressed in a different forum.

In summary, the evidence before me does not permit an inference that the employer’s action was tainted by any anti-union animus, in whole or in part.

Given the conclusions I have reached, these grievances are hereby dismissed.