Ontario Public Service Employees Union (Huitema) v. The Crown in Right of Ontario (Ministry of Government Services), 2011 CanLII 17009

GSB#2008-0654, 2008-3116, 2008-3510

UNION#2008-0221-0005, 2008-0221-0022, 2009-0221-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Huitema)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Michael Fenrick Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

September 27, 2010.

Decision

1This case deals with three different grievances.

1 – Name Attached to Polaris System

Union Submissions

2The grievor challenges the practice of providing printouts from the Polaris system, which include the name of the employee who has worked on the file.

3Polaris is a computer system used to store and access records related to the certification of title to property. The employees in the office where the grievor works are responsible for accessing the Polaris system in order to enter and verify the accuracy of the information. The grievor has been using the Polaris system since approximately 1999 or 2000. During that time she has accessed the system through an account that, she alleges, is identified with her name. As a result of this, when abstracts are printed for customers, her name is printed on the abstract, which is, the grievance states, a breach of management rights.

4The grievor testified that she did not file a grievance about the issue until after a convention she attended in 2008, where she spoke to another employee from a different registry office and was told that the employees in the other office accessed the Polaris system through a “general account”, and their names did not appear on printed extracts. The grievor asserted the system used in her office was a breach of her privacy. She also testified that, prior to filing the grievance, she raised the issue with the employer and was told that the employer’s policy was to have employee names attached to accounts. She said there was no response from the employer when she raised the issue of the practice at the other office.

5The union acknowledged that the circumstances appear to have changed since the filing of the grievance, but seeks declaratory relief with respect to the employer’s previous practice.

Employer Submissions

6The employer argued the grievance regarding the Polaris issue should be dismissed on the basis of two preliminary objections. First, the employer submitted the grievance alleged a violation of the management rights clause, and GSB jurisprudence holds that no grievance can be founded on Article 2 alone. Second, the employer argues the grievor is untimely, since the grievor started using the Polaris system in 1999 but did not file a grievance until 2008.

7With respect to the merits of the grievance, the Registrar, Cathy Bufalino, testified that employees were required to log in to the database using their full name as a result of an order from the Director of Land Registration. She testified that she was “reminded often” of this requirement, which was intended to protect the integrity of the land registry system by ensuring the ability to track changes. She could not say whether other offices followed the directive. Ms. Bufalino confirmed that the grievor’s account was created some time in 1999, but that she only raised a concern about the matter in 2008. She further testified that, currently, clients print off documentation from a kiosk, and that such documents do not identify who certified or amended the information.

Decision

8I agree with the employer’s submission that this grievance is improper on the basis that it is founded solely on the management rights clause, and does not rely on any other article in the collective agreement. Furthermore, I am not persuaded that having one’s name attached to an official government document is a breach of the collective agreement or the rights of employees. As a result, the grievance is dismissed.

2 – Release for Local President Duties

Union Submissions

9The grievor alleges that the employer improperly denied her leave on December 24, 2008 to attend to her duties as local union president, contrary to a Memorandum of Settlement (MOS) signed on May 31, 2005 with respect to union president leave under Art. 23.9 of the collective agreement.

10The MOS sets out an agreement with respect to the dates the grievor would be permitted to take off for her union duties, stipulating that she would be released for this purpose every second Thursday. By mutual agreement, this understanding was amended in January 2008, such that the grievor took every second Wednesday, instead of Thursday. This understanding was reached by email exchange between the grievor and Ms. Bufalino, and in the confirming email Ms. Bufalino requested that the grievor continue to show “flexibility” towards scheduling issues. For the first six months there were no issues. In June, the grievor provided Ms. Bufalino with the list of Wednesdays for the remainder of the calendar year. Within five minutes of giving her agreement to these dates, Ms. Bufalino, wrote back to the grievor noting that one of the Wednesday’s in question was Christmas Eve, and she asked the grievor to pick another day that week. There followed an exchange about whether there was an employer policy governing vacation priority and, if so, whether it would give the grievor priority to take Christmas Eve as a vacation day. The grievor argued that the MOS should take precedence over the employer’s policy. The grievor was offered December 22 or 23 as alternative days for her president’s duties, and, as far as she could recall, she used one of those two days, or possibly December 31, instead of December 24.

Employer Submissions

11Ms. Bufalino testified that she agreed to move the president’s day from Thursday to Wednesday, on the understanding that the grievor would be flexible. She noted that, according to the employer’s vacation policy, the grievor would not be eligible to book December 24 as a vacation day, since this day was offered to staff on a rotational basis, and the grievor was not the next employee in the rotation. Moreover, given the staffing, there was only one other employee available to work December 24 and Ms. Bufalino did not want to run the office with only one person. She conceded that, although this does happen from time to time, it is not the preferred staffing level. Ms. Bufalino offered the grievor days before and after December 24 as an alternative, and the grievor took December 31.

Decision

12The parties agreed that the grievor would take her time off as local union president every other Thursday, and then agreed to change that to Wednesdays. At the same time, they agreed that the leave would continue to be governed by Art. 23.9. The article stipulates that the schedule for the local president will be honoured, “to the extent possible.” In my view, this calls for a balancing of the needs of both parties. The language is broad enough to capture circumstances when the schedule becomes problematic for either side, and calls for flexibility on the other side. The question of whether it is “possible” for the schedule to be followed or amended should be assessed in the context of competing pressures on both parties. There was no evidence that there was any particular urgency for the president to hold her office hours on December 24. The employer was faced with a situation in which there was only one other employee available to work on December 24. I note that Ms. Bufalino flagged the problem with the date at the earliest opportunity. I do not think it was necessary for the employer to operate with one employee or to take any extraordinary measures in order to accommodate the president’s schedule. In my view, the employer reasonably concluded it was not possible to adhere to the president’s schedule on December 24, and the employer acted reasonably in offering alternate dates in the same time period.

13For the above reasons, the grievance is dismissed.

3 - Time off for Union Voting

Union Submissions

14The grievor alleges that she was improperly denied union leave to participate in union voting on January 30, 2009. At the time, the grievor was local union president, and also had past experience in central bargaining. She requested time off to assist and be present at the voting process, including the count that took place in Hamilton on December 30, 2009. She alleges that she received no response to the request, and was simply not permitted to attend the voting process. She stated she was not aware of any reason why she could not attend the vote, and thought it was important that, as union president, she attend the event. She also stated that she had previous issues with respect to the granting of time off for union activities.

15The union relied on the memorandum from David Logan, the Assistant Deputy Minister, dated January 16, 2009, in which employer was directed to assist the voting process by providing “…reasonable time off for the employees and local presidents.”

Employer Submissions

16Ms. Bufalino testified that, initially, the grievor had requested union leave on January 27, 28, and 29 to attend the voting. Later, the grievor requested January 30 as well. By that time, another employee had already been granted time off. For this reason, the request was denied. She stated she offered to change the grievor’s reporting time so that she could attend the voting on January 30 for at least half of the day, but that the grievor declined this offer. The grievor testified that such an arrangement was not feasible because the vote in question involved a lock down, and those who participated had to be present at the beginning and remain in the room throughout the counting process. Ms. Bufalino stated she did not remember the grievor advising her of this.

Decision

17In my view, the employer took reasonable steps to allow the grievor time off to participate in the voting. The grievor was granted three of the four days off she requested. With respect to the fourth day, the employer did not have sufficient coverage due to the absence of other another employee. Even so, the employer offered to make arrangements to permit the grievor to take off part of the day. As it turned out, this was not a workable option for the grievor. However, in the circumstances, I do not agree that the employer’s actions were a breach of the collective agreement, or any other understanding between the parties. On the contrary, it is my conclusion that the employer acted reasonably and showed appropriate flexibility in accommodating the grievor’s request.

18As a result, this grievance is also dismissed.