GSB#2008-3123

UNION#2008-0139-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Coultes et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

M. V. Watters

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Counsel

HEARING

March 17, 2010.

Decision

1At the outset of this proceeding, the parties agreed that the grievance should be heard under the expedited procedure provided for by article 22.16 of the collective agreement. They further agreed to extend the time for the giving of this Decision.

2The parties filed an Agreed Statement of Facts. The Statement is appended to this Decision.

3The issue arising from the facts is whether the Employer’s actions on April 9, April 10 and April 11, 2008, and more specifically its use of Toledo-Mettler staff on those days, served to compromise the integrity of the bargaining unit.

4The position of the Employer may be summarized as follows:

i. Toledo-Mettler employees performed maintenance and testing work on the scales on the three (3) days in issue. They did not perform the enforcement duties outlined in the grievors’ Transportation Enforcement Officer 2 (TE02) Position Description Report;

ii. In the alternative, the task of directing traffic off the highway, through the scales, and then back onto the highway is not the exclusive work of TE02s. Other categories of employees engage in analogous work around construction sites;

iii. In the further alternative, the qualitative nature of the work performed by Toledo-Mettler staff does not support a conclusion that the integrity of the bargaining unit was compromised. From the Employer’s perspective, it cannot be claimed that the grievors lost an important part of their job. Put another way, it was asserted that the work performed by the outside contractors was largely incidental to the core enforcement duties of the TE02s; and

iv. In the final alternative, the volume of work performed by Toledo-Mettler staff would be captured by the de minimus principle. Simply stated, it was submitted that the work was quantitatively insufficient to constitute a breach of bargaining unit integrity. It was noted that such work was only done intermittently over the course of three (3) days, and that the majority of the time was spent on maintenance and testing.

5The position of the Union, in response, may be summarized as follows:

i. The work performed by Toledo-Mettler staff was bargaining unit work, as they directed vehicles off the highway and into and through the scales. In the Union’s submission, the work normally performed by TE02s cannot be equated with that done by other persons around a construction site; and

ii. It was emphasized that the Employer did, in fact, call TE02s into work on April 7 and April 8, 2008 and that they then performed the same duties that Toledo-Mettler staff did on the following three (3) days. On the Union’s view, TE02s should have been similarly resorted to on April 9, April 10 and April 11, 2008. It was claimed that the use of the outside contractors on these latter dates “undervalued” the work normally performed by TE02s, and that it also served to compromise public safety.

6In reply, the Employer noted that the TE02s called into work after their regular shifts on April 7 and April 8, 2008 were brought in to assist Toledo-Mettler personnel, and not to engage in enforcement duties. The Employer argued that the use of TE02s on those days for that purpose did not obligate it to similarly call in TE02s on the next three (3) days. Lastly, counsel observed that the question of public safety is not an issue arising in this case.

7The parties filed the following authorities: OPSEU (Pilon et al.) and Ministry of Community and Social Services (Brown), GSB File No. 0573/99 et al.; International Union of Operating Engineers, Local 772 v. Cabot Canada Ltd. (2001), 2001 CanLII 62151 (ON LA), 103 L.A.C. (4^th) 137 (Howe); Hamilton Health Sciences v. Canadian Union of Public Employees, Local 4800 (2006), 2006 CanLII 93294 (ON LA), 146 L.A.C. (4^th) 332 (Surdykowski); MIC’s Group of Health Services (Lady Minto Hospital) v. Service Employees International Union, Local 204 (2005), 146 L.A.C. (4^th) 84 (Stephens); Bowater Mersey Paper Co. and C.E.P., Local 259 (2002), 2002 CanLII 79092 (NS LA), 116 L.A.C. (4^th) 438 (Outhouse); ACF Flexible Inc. and G.C.I.U., Local 500M (1990), 1990 CanLII 12846 (ON LA), 13 L.A.C. (4^th) 66 (Mitchnick); Ontario Public Service Employees Union (Wozniak et al.) and Ministry of Transportation (Devins), GSB File No. 2005-0133 et al.; and Ontario Public Service Employees Union (Union) and Ministry of Health (Fisher), GSB File No. 1942-94 et al.

8After consideration of the Agreed Statement of Facts, the submissions of the parties, and the authorities filed, I conclude that the integrity of the bargaining unit was not breached or compromised by the Employer’s use of the Toledo-Mettler staff on April 9, April 10 and April 11, 2008. I have been persuaded that their work on these days was focused on maintenance and testing of the weigh scales and that they did not perform enforcement work as contemplated by the TE02 Position Description Report. Additionally, I am satisfied that the volume of the work performed by Toledo-Mettler staff on the three (3) days in issue would be captured by the de minimus principle.

9Nothing in this Decision should be read as detracting from the valuable work engaged in by TE02s in their efforts to make the Province’s highways safe for the travelling public.

10I note that this dispute arose, in large part, as the result of the Employer adopting an inconsistent approach over the five (5) day period here in question. In view of the problems this occasioned in this instance, it may be prudent for the Employer to review how it manages similar issues going forward.

11The grievance is accordingly dismissed.

Dated at Toronto this 7^th day of April 2010.

Agreed Statement of Facts

The parties agree to the following facts for the sole purpose of the grievance arbitration under section 22.16 of the above noted grievance.

The parties request that the GSB issue a finding on liability and remit remedial issues to the parties if the grievance is granted.

1. The grievance is dated October 8, 2008. It is a group grievance filed by Kevin Coultes, James Deisley, Diane Hadley and Randy Middleton. The grievance is attached.

2. All four Grievors are Transportation Enforcement officers (TE02). The job specification is entered as an exhibit or consent.

3. The four Grievors perform work at the Sarnia South Commercial Vehicle Inspection Facility.

4. The Sarnia Inspection Facility has WIM (scales) which are used to weigh commercial vehicles to determine if they are in compliance with weight regulations.

5. Commercial traffic is directed into the Sarnia Inspection station through a ramp. A signal at the ramp entrance indicates when vehicles are to enter the station. The signal is activated from a control module located in the Inspection Facility at the end of the ramp. Failure to abide with the signal is an offence.

6. The WIM (scales) register the weight of the vehicle as they pass through the ramp in the station. The vehicles do not need to stop to be weighed.

7. Once the vehicle passes over the scales, the vehicle is directed to either proceed on the ramp and back onto the highway, or is directed to stop for inspection.

8. Toledo-Mettler is a private contractor responsible for installing and servicing and maintaining the WIM scales and associated equipment.

9. On April 7 and 8, 2008, employees of Toledo-Mettler were at the Sarnia Inspection Facility installing and testing WIM scales. On April 7, the Toledo-Mettler staff were present for 8 hours. On April 8, they were present for 10 hours.

10. On April 7 and April 8, TEO staff worked their regular day time shifts.

11. On April 7, Kevin Coultes was called in to work for three additional hours to assist Toledo-Mettler staff.

12. On April 8, Randy Middleton was called in to work for six and a half hours to assist the Toledo-Mettler staff.

13. On April 9, 10 and 11, Toledo-Mettler staff performed testing on the WIM scales and associated equipment. No MTO staff were present on these days.

14. On April 9, the Toledo-Mettler staff worked 12 hours. On April 10, they worked 12 hours. On April 11, they worked 11 hours.

15. On April 9, 10, and 11 the Toledo-Mettler staff would direct approximately 5 to 10 vehicles on to the ramp and the scales in the Sarnia Inspection Station. They did this by activating the signal from the control module.

16. The vehicles would enter the station ramp, pass over the scales and then be waved through on to the highway by a Toledo-Mettler employee. No vehicles were stopped.

17. The Toledo-Mettler employees would direct 5-10 vehicles into the station. They would then spend approximately four hours inspecting and calibrating the WIM scales and associated equipment, before having another 5 -10 vehicles pass through the station. This was the general practice for all three days on April 9, 10 and 11.

18. The four Grievors are schedule 3.7 employees and work 36¼ hours a week. They work 3, 9 hour shifts, and 1, 9¼ hour shift per week.