GSB#2009-2699, 2009-2700, 2009-2701, 2010-0572, 2010-0589, 2010-0590, 2010-0591, 2010-0592, 2010-0593

UNION#2009-0368-0161, 2009-0368-0162, 2009-0368-0163, 2009-0368-0202, 2010-0368-0018, 2010-0368-0019, 2010-0368-0020, 2010-0368-0021, 2010-0368-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hyland)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Suneel Bahal and Jonathan Rabinovitch Ministry of Government Services Labour Practice Group Counsel

HEARING

March 19, 2012.

Decision

1In a proceeding arising from grievances filed by Mr. B. Hyland, a Correctional Officer (“CO”), the Union alleges that management has failed to properly accommodate Mr. Hyland at the Central East Correctional Centre (“CECC”) at Lindsay. Mr. Hyland has asthma, with a particular sensitivity to cigarette smoke. He requires a smoke free environment. Thus far the Union has called two witnesses, including Mr. Hyland. The Union wants to call Mr. Moss, the Local Union President, and Mr. Butsch, the Local Union Vice-President, to testify about their observations concerning smoking at the workplace and management’s failure to enforce the smoking policy. These witnesses will not volunteer to testify and the Union will not compel them to do so if they are required to provide the names of bargaining unit employees who they observed smoking at the workplace contrary to the smoking policy. The Employer takes the position that it would ask the Union officers during cross-examination to disclose the names, given its view that this evidence is relevant and necessary for its defense to the allegations made by the Union. The parties agreed to address this evidentiary issue on March 19, 2012. This decision addresses the motion by the Union that the Local Union officers be permitted to testify without disclosing the names of bargaining unit members who they observed contravening the smoking policy.

2After considering the submissions of counsel and in balancing the competing interests that are at stake, it is my conclusion that it is appropriate in the circumstances to dismiss the Union’s motion. I advised counsel by email of my decision prior to the next scheduled hearing date. My reasons for dismissing the motion are as follows.

3Mr. Hyland has filed similar grievances in the past while employed at other provincial correctional institutions, resulting in many decisions which determined that the Employer had failed to properly accommodate him. Although smoking is now prohibited at correctional facilities, there is evidence in this preceding that staff at the CECC smoke at the institution contrary to the smoking policy. The Union takes the position that management’s failure to adequately enforce the smoking policy at the CECC has contributed to an environment where cigarette smoke is often present at the workplace, with the result that the Employer has failed to properly accommodate Mr. Hyland. The issue of whether management reasonably enforces the smoking policy has been an important feature of the previous cases involving Mr. Hyland. The Union intends to rely on aspects of the testimony of the two witnesses who have testified already to support its position that the management at the CECC does not adequately enforce the smoking policy. If called, the Union officers would testify, among other things, about bargaining unit employees smoking in the presence of a manager without any action being taken against the employee. They would also testify about their efforts to bring the prevalence of staff smoking in the workplace to the attention of senior management. Their efforts in this regard did not include disclosing names of those who contravened the smoking policy and they were not compelled to disclose names by senior management.

4The Union submitted that I should allow its motion for essentially two reasons. It claims that providing the name of an employee who contravened the smoking policy is of marginal relevance at best in the circumstances of this case. Counsel argued that managers can be called to testify about their efforts to enforce the smoking policy without being advised of the name of an employee who contravened the policy. He therefore submitted that the Employer does not require the Union officers to provide the names of these employees in order for it to defend the grievances. The Union also takes the position that I should exercise my discretion under Section 48(12)(f) of the Labour Relations Act to not admit evidence of the names even if this evidence is relevant because there is a labour relations interest at stake here worth protecting. The Union maintains that the confidence of the membership in their bargaining agent will be undermined if the Union officers are required to disclose names, thereby detrimentally affecting the Union’s statutory obligation to represent its members. Counsel argued that highly relevant testimony about management’s failure to enforce the smoking policy will not be presented if the Union officers are compelled to provide names, thereby hampering the Board’s ability to get at the truth in this case. Counsel argued that an appropriate balancing of the competing interests at stake here favours an approach which does not undermine the confidence of the membership in its representatives.

5The Employer takes the position that allowing the Union’s motion would deny it the opportunity to fully cross-examine the Union officers on a matter which is relevant to an important issue in this case. It maintains that denying it the right to fully test the evidence of these witnesses would hamper getting at the truth and in effect would serve to endorse the code of silence that exits at correctional institutions. Mr. Rabinovitch argued that even if there is a labour relations interest here that the Union can rely on, the right to fully cross-examine witnesses outweighs that interest in the circumstances of this case.

6In support of his submissions, Union counsel referred me to the following decisions: Re Thunder Bay Regional Health Sciences Centre and O.N.A. (2010), 192 L.A.C. (4th) 442 (Simmons); Merriman v. MacNeil, [2011] C.P.S.L.R.B. No. 88 (Steeves); Re Centre for Addiction and Mental Health and O.P.S.E.U. (2004), 133 L.A.C. (4th) (Nairn); Re Toronto, Transit Commission and A.T.U., Local 113 (1999), 1999 CanLII 35941 (ON LA), 80 L.A.C. (4th) 53 (J. Johnston); and, Re Hercules Moulded Products Inc. and U.F.C.W., Local 1993 (2001), 2001 CanLII 62033 (ON LA), 94 L.A.C. (4th) 176 (Crljenica). Counsel for the Employer relied on the following decisions: Michael Garfield Lyttle v. Her Majesty the Queen, 2004 SCC 5, [2004] 1 S.C.R. 193; Regina v. Conrad Huber, [2007] BCSC 1074; Re R. Laidlaw Lumber Co. Ltd. and I.W.A., Local 2-700 (1975), 1975 CanLII 2074 (ON LA), 10 L.A.C. (2d) 330 (Weatherill); Re Kawartha Pine Ridge District School Board and O.S.S.T.F., District 14 (2010), 197 L.A.C. (4th) 83 (Knopf); OPSEU (McCormick) and Ministry of Transportation (2006), GSB Nos. 2002-2964 et al. (Abramsky); Re Government of British Columbia and British Columbia Government Employees Union (1997), 1997 CanLII 25011 (BC LA), 68 L.A.C. (4th) 440 (Greyell); Re McRae Waste Management Ltd. and I.U.O.E., Loc. 115 (1998), 1998 CanLII 30022 (BC LA), 73 L.A.C. (4th) 174 (McEwen); OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services (2008), GSB Nos. 2003-3597 et al. (Petryshen); and, OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services (2008), GSB Nos. 2003-1520 (Abramsky).

7I have no difficulty in accepting the principles set out in the decisions relied on by the Union. One of them recognizes that communications between union members and their representatives can be protected by a privilege. I also agree that I have the power under Section 48(12)(f) of the Labour Relations Act not to admit evidence that is relevant if there is a compelling labour relations reason for doing so. The Union’s cases which address this issue involve the admission of video surveillance evidence. The labour relations interest the Union seeks to protect in this case is the confidence of its membership in the Local Union officers at the CECC. As Union counsel noted in his submissions, there is no case on point which deals with this particular union interest in an evidentiary context. As a general proposition, I am not convinced that confidence of members in their Local Union officers is a compelling labour relations justification for not admitting relevant evidence in the circumstances of this case. It is not obvious that the confidence of members in their Union officers would be affected if they are compelled by law during their testimony to provide the names of members who contravened the smoking policy. I am also not convinced that the ability of these key Union officers to represent their members will necessarily be affected if there is loss of confidence in them by members. In any event, if preventing a loss of confidence of union members in their representatives is a sound labour relations goal, the reason for the loss of confidence in any case is worth some consideration. In my view, it is not reasonable for members to lose confidence in representatives who are compelled to honestly and completely testify about their observations about smoking in the workplace in order to advance the grievances of a fellow bargaining unit member. A loss of confidence that is not reasonable does not justify the exclusion of names in this case. Indeed, the effect of finding a labour relations justification on the basis advanced by the Union would indirectly endorse the code of silence, which would not be a desirable outcome.

8Even if I were to assume that protecting the confidence of Union members in their representatives is an interest worth protecting in this case, that interest must be considered in light of the competing interest of the Employer’s right to fully cross-examine witnesses. Although Union counsel argued otherwise, it is my view that the names of bargaining unit employees who contravened the smoking policy in the presence of managers is very relevant to the significant issue of whether the Employer adequately enforced the smoking policy. The Employer is entitled to test the assertion that a manager ignored a violation of the smoking policy and it would be difficult to effectively do so without having the name of the employee involved. Therefore, even if the Union had succeeded in establishing a labour relations basis for the Union officers not to provide names in these circumstances, that interest is outweighed by the Employer’s right to cross-examine Union witnesses on a very relevant issue in this case.

9It is for the above reasons that I dismissed the Union’s motion.