GSB#2009-2072

UNION#2009-0555-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Savdie)

Union

• and -

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

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Adrienne Liang Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Service Counsel

HEARING

March 14, 2011.

Decision

1This matter was scheduled before me by way of the mediation/arbitration process contemplated by Article 22.16 of the collective agreement. In the interest of expedition, that process results, where mediation is unsuccessful, in a succinct arbitration award without precedential value. This is that award.

The statement of grievance in the matter reads as follows:

The employer has violated articles 2, 3, 9 and 10 and any other relevant articles of the collective agreement by: failing to offer and improperly denying my request for a compressed work week, harassing and discriminating against me i.e. by assigning the work I would normally perform in my job description to others and giving me more routine and demeaning work to do; treating me with disrespect and total disregard by not allowing for my input on the retention and disposal of my files.

The settlement desired is set out as follows:

The employer shall cease and desist from all forms of harassing and discriminatory actions. The employer shall ensure that I am assigned the duties relevant to my job description and treat me with dignity and respect. The employer shall identify clear activities relevant to my position and meaningful assignments commensurate with my position. I should be kept informed and included on a regular basis on all current work related communications and forums of discussions and input to the planning process. A clear action plan addressing these grievances should be developed and monitored by senior management to ensure that they are fully addressed and not repeated in the future.

2It would appear that there had been some dispute between the parties regarding the provision of particulars prior to the commencement of the hearing before me. In light of that, the parties agreed that the union would set out its particulars orally during the course of its opening statement. It did so and the employer then moved that the grievance be dismissed as, it submitted, the facts alleged by the union, even if true and provable, failed to disclose a prima facie basis to establish any violation of the collective agreement.

3I will briefly set out the nature of the case as alleged by the union and then briefly set out the employer’s position and conclude by briefly explaining why I am persuaded that the employer’s motion must prevail.

4I note first of all, however, that while the grievance form adverted to four different provisions of the collective agreement, the union, in its presentation, wisely chose to rely upon only two: Article 2, which deals with management rights and Article 10, which addresses aspects of Compressed Work Weeks.

5The union’s principal allegations were threefold. First, the grievor was improperly denied the opportunity to participate in a Compressed Work Week. To be clear, however, the Compressed Work Week in question was a pilot project implemented on a trial basis in three different locations. The grievor’s location was not included. However, because he reports to a manager who does work out of one of the locations that was selected and because he feels that his work is integrated into the work performed at that location, the grievor believes that he should have been included or otherwise permitted to participate in the experiment.

6Second, the grievor is unhappy with the nature and quality of the work being assigned to him. He asserts that it is less meaningful and challenging than it had been in the past. In this respect, he claims he is being treated differently from other employees in similar positions. His work is more clerical and less analytical than theirs. He also claims to have been excluded from meetings and belittled in the workplace, thereby suffering a reduction in stature.

7Finally, the grievor asserts that the employer has unfairly targeted him by destroying some the files on which he had worked. Prior to August 2008 the grievor had been working at a Sheppard Avenue location. From August to December 2008 he was absent on leave. Prior to his return to work, he was advised that he would be working out of a different location on Yonge Street. On his arrival he discovered that certain files he had stored at his prior location had not been transferred to the new one. It was then determined that the contents of these files had been shredded. These files included examples of the grievor’s prior work as well as educational materials.

8The employer moved that the grievance be dismissed as failing to disclose any possible violation of the collective agreement. It claims that no case is made out of any possible violation of either of the 2 collective agreement provisions relied upon by the union.

9First, with respect to Article 10 and the Compressed Work Week, the employer points out that the collective agreement contemplates that the parties may, on a local basis, enter into agreements regarding the implementation of Compressed Work Week Arrangements. But Article 10 is merely a possible template for such agreements and even if it applied to the instant case, which it does not, there is nothing in it to support the claim that the employer violated its terms by not requiring or permitting the grievor to participate. Indeed, even when formal Compressed Work Week agreements are implemented, that may not constitute a guarantee that any or all affected employees will, in fact, be assigned/permitted to participate in a Compressed Work Week schedule. But the instant facts do not even go that far. This was merely a trial feasibility project. It was not disputed that the union did not object to its implementation and that upon its conclusion, the employer determined not to take steps to implement any Compressed Work Week schedule. Neither was it disputed that by the time the grievor voiced any complaint regarding this aspect of the grievance, the trial period had already expired and there was no Compressed Work Week arrangement, formal or otherwise, in place.

10Since Article 10 is of no assistance to the grievor, that leaves the balance of his claim, whether in respect of the Compressed Work Week or otherwise to be assessed exclusively on the basis of Article 3. Here too, the grievor’s claim must fail. It amounts to nothing more than a bald challenge to the legitimate exercise of management discretion. Obviously, no other collective agreement provision or right is engaged or affected by the grievor’s claim.

11Having considered the positions of the parties, I am satisfied that the grievance must be dismissed.

12The grievor has no legal basis to assert any claimed entitlement to participate in the employer’s Compressed Work Week trial experiment. Three locations were selected; the grievor was not located at any of them. His assertion that because he is supervised by someone in one of those locations and because his work may be integrated with the work in that location as the basis of his claim resembles, at least in form, the other claims he makes in relation to the exercise by the employer of its management rights. He advances no specific legal collective agreement entitlement but essentially asserts that there was a better way for the employer to have administered the workplace and his working life. Even if I were persuaded that the “grievor’s way” is “better” (and I make no such finding) that is not a basis upon which to have his views supplant those of the employer in the legitimate exercise of its discretion.

13The Compressed Work Week experiment was one that could have, but did not, include the grievor. Nothing in the collective agreement mandates or requires either option.

14The grievor’s complaints about the quality of his work similarly do not engage any collective agreement rights. While he may truly subjectively feel that his work is insufficiently challenging or that he is being demeaned, there is nothing in his presentation of the case which either affords or necessitates such conclusions on any objective basis. In any event, the assignment of work is, presumptively, within the employer’s legitimate domain, particularly where, as here, there can be no demonstrated impact on any collective agreement rights.

15Finally, there was no assertion that the files that were destroyed during the grievor’s absence were anything but the employer’s property – there was no suggestion any improper conversion of the grievor’s personal property. This entire event may have been little more than an unfortunate accident of timing. We simply cannot know how events might have transpired had the grievor been at work at the time. There was no indication that he had taken any steps to protect the files he now claims to have so valued or communicated the nature of his attachment to them to the employer. In any event, I simply am unable to see how the facts of this case, insofar as they relate to an employer decision to shred files, is one that engages collective agreement rights.

16In view of the foregoing, the grievance is hereby dismissed.