GSB#2009-0172, 2009-0173, 2009-3109

UNION#2009-0585-0001, 2009-0585-0002, 2009-0999-0090

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Spicer/Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris and Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

March 17, April 6, September 20, October 7, 11 and 20, 2011.

Decision

1Three grievances have been referred to me, two individual grievances of Dwain Spicer (“the grievor”) and a related union grievance. The grievances all raise the same issue; the facts of the individual grievances formed the basis of the union grievance. The grievor is an Occupational Health and Safety Inspector employed in the Ministry of Labour (“MOL”). Among his various duties is handling of work refusals on behalf of the Ministry. He claims that the employer, at around the time his grievances were filed in March 2009 (the union grievance followed in November 2009), instituted a change in its manner of assigning work related to work refusals and that this change had a negative impact on him and was contrary to the terms of the collective agreement. The essence of the issue is captured in the wording of the union grievance, which alleges:

The Employer is in violation of Article 1 and any relevant employment legislation by allowing managers to perform bargaining unit work. The Ministry is allowing managers to receive and investigate work refusals and/or complaints in Correctional facilities.

2We heard the evidence of the grievor as well as that of Marc Dugas. The latter has been an Occupational Health and Safety Inspector in the MOL since December 2004. However, the bulk of his direct experience with respect to the MOL handling of work refusals comes from his tenure as an employee in the Ministry of Community Safety and Correctional Services (“Corrections”) for some 16 years prior to assuming his current position. He also testified as to the results of some quantitative research involving MOL data – research he conducted in preparation for an in-house presentation he made. He acknowledged, however, that he had little experience with work refusals in Corrections in his capacity as an inspector and, indeed, none as the lead inspector in relation to any work refusal at a Corrections facility.

3At the conclusion of the union’s case, the employer moved a non-suit. Acknowledging this Board’s usual practice, the union did not seek to put the employer to its election. I then heard argument in support of and in opposition to the employer’s motion.

4Before outlining the facts in slightly more detail, I note the following. The union’s case is predicated on an assertion that the employer has implemented a new policy with respect to the handling of work refusals arising out of Corrections facilities. Specifically, it claims that the practice of referring such work refusals to bargaining unit inspectors has changed. The employer now refers such refusals to managers, although, even on the union’s asserted facts, this referral is in the nature of “triage” only and does not result in any managers attending on-site to perform investigations related to work refusals. Rather, the managers assess the propriety of the purported work refusal; if the matter is considered to be an actual work refusal it would then be referred to a bargaining unit inspector. If not, it is dealt with in a manner other than a work refusal and therefore does not require any immediate inspector attendance on-site. There is no suggestion by the union that this “change” has resulted in managers performing any on-site inspections. Rather, they are said to be assessing purported work refusals and referring them (or not) to inspectors in accordance with the manager’s assessment of whether the matter is indeed a work refusal.

5I also note that, while we heard no evidence on the point from the employer, counsel advised that its ultimate position would be that the work in question can and always has been performed by managers (though not necessarily to the complete exclusion of bargaining unit inspectors). And while it thus would be disputing any wholesale change in its practice, it allowed that a memo had issued to managers, at about the same time the union asserts a change in practice, reminding them to perform the “triage” function that is at the heart of this dispute.

6Turning to the evidence we did hear, the grievor testified as to his personal experience in handling work refusals (again the focus is on work refusals at Corrections facilities and, in particular, refusals that occur outside of normal business hours, including weekends and holidays). Up until the events giving rise to the grievances, the grievor described his practice with respect to off-hours work refusal calls originating in Corrections facilities as follows. Calls would be taken initially by the “spills desk”, staffed by Ministry of the Environment employees, and would be forwarded to him when he was on-call. His invariable practice, a practice which was permitted and approved by his (former) manager was to then attend on-site to inquire into the matter. In other words, he made few, if any, inquiries to determine whether the matter was a proper work refusal in advance of attending on-site to inquire further. He testified that, in his view, his personal attendance on-site, even if the matter was ultimately determined not to have been a work refusal, was a more salutary approach in relation to both the process itself and the ongoing relationships of the parties involved.

7Without attempting to paint a comprehensive picture, it may be useful to provide some indication of how or why a purported work refusal might be found to not be a proper work refusal. Obvious examples (which are provided for illustrative purposes only since, by definition, they would not apply in the cases of Correctional facilities) could include calls originating from institutions not subject to provincial regulation or calls from private residences. No one suggested that such calls would necessitate an on-site visit. Indeed, the grievor appeared to allow that such a call might well be disposed of early in the process and never even find its way to him.

8Other examples may prove somewhat more complex. The two incidents which led to the filing of the individual grievances in this case are useful to review, if only for the purposes of illustration. (I refer to the reports prepared by the manager who handled the calls – again not for the purpose of making any definitive findings of fact, but merely to illustrate the considerations that may be involved.)

9In the first case, the refusal arose out of a claim that work was unsafe because of a shortage of managers in the Corrections facility. The MOL manager who handled the matter concluded it was not a proper work refusal for several reasons, including its hypothetical nature and the absence of any imminent or specific hazard. He also pointed to the normal and inherent part of the guards’ duties as well as the fact that the references to ratios of workers to managers were not supported by the relevant statutory definitions.

10In the second case, the purported refusal related to worker concerns regarding the fire alarm system. In this case, the parties were able to resolve the matter when a fire drill demonstrated a functioning and safe fire alarm system was in place. That was considered to be a successful resolution of the matter at “stage 1”, which is typically a condition precedent to any work refusal and resulting on-site visit.

11In other words, both of these cases appear to have been disposed of by the manager without the need for any on-site attendance by an MOL inspector. Further, the result in both cases was that the grievor, who was on-call (though not the “lead” on-call inspector) was never even contacted with respect to either of the two purported refusals.

12The grievor testified that it was his practice and expectation to have been contacted in such cases, either by the person (at the spills desk) who initially fielded the call when he (the grievor) was the “lead” on-call bargaining unit inspector or by the “lead” on-call bargaining unit inspector when he (the grievor) was the “assist” (i.e. not the lead on-call person). And as already indicated, the grievor would, in all likelihood, have attended on-site in these two or other similar cases.

13The practice the grievor described obviously had compensation consequences. The grievor would be paid a nominal premium for the hours he was on-call. However, if was actually called to deal with a matter (particularly during off-hours or holidays), he would then be entitled to a minimum of four hours pay at a premium rate. The grievor indicated that he would expect to benefit from that entitlement whether he was the “lead” on-call person or the “assist”. He testified that if he were the “lead”, he would be certain to call the “assist” person so as to generate that entitlement and that he would expect his “brother co-worker” to do the same for him when the shoes were on other feet.

14The grievor estimated that, in the approximately 3-1/2 years leading up to the filing of the grievances, there were somewhere between 15 and 25 work refusals that he dealt with, virtually all arising out of Corrections facilities. And most of these occurred “off-hours”.

15The evidence of Mr. Dugas, while interesting, added little to the relevant matrix of facts. His direct experience came from his tenure in Corrections and, perhaps apart from his indication that he was unaware, during that time, of any situation where a manager dealt directly with the parties in a work refusal or any instance where a manager attended on-site as a (non-bargaining unit) inspector, nothing in that experience would permit him to directly comment on the internal workings of the MOL, at least at that time. He also shared some empirical conclusions garnered from a review he had more recently done in his capacity as an employee in MOL. In particular, he advised that the statistics for a number of Toronto Corrections facilities indicated that each one would generate approximately a dozen work refusals per year. And finally, he did assert some second hand knowledge of unparticularized and unspecified instances (i.e. beyond the two which were grieved) consistent with the union’s assertion of a wholesale change in the employer’s practice.

16Although the submissions of the parties perhaps covered a broader field, the issue joined in the case is quite simple.

17There was no dispute between the parties as to the test to be applied in respect of a non-suit motion. This Board’s approach has been reviewed in a number of cases and summarized as follows in Re Allin, 2008-1407 (Dissanayake) at para 10:

… the instant motion must be upheld if the union has failed to adduce evidence sufficient to support its claim. In assessing sufficiency, the Board must determine whether the union has proven its case on a balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the union’s favour.

18The employer addressed a number of points that were not seriously pursued by the union. For example, the employer asserted that the union had failed to establish that the work in question was exclusive to the bargaining unit. And, in any event, even if it were, the employer asserted that the authorities suggest that, in the instant case (if for no other reason than the paucity of the work in question) the facts do not support any significant undermining of the integrity of the bargaining unit that might otherwise warrant protection.

19But the union, while it asserted that the work in question was bargaining unit work (an assertion not seriously challenged by the employer), did not claim any proprietary interest in the work. In other words, there is no claim that the work is exclusive to the bargaining unit. In that context, it is not necessary for me to review the documents (including the Position Descriptions and the Ministry Policy and Procedures Manual), it is sufficient to note that there is no real dispute between the parties that the work in question (i.e. the “triage” function) may, at least in theory, be performed by bargaining unit employees or by managers. That conclusion is consistent with the evidence adduced.

20But the thrust of the union’s submissions do not depend any an assertion that the facts giving rise to the grievances constitute a threat to the integrity of the bargaining unit – as counsel put it: the impugned assignments are not ones which shatter bargaining unit integrity. In view of the relatively small number of instances of work refusals involved (in the realm of one a month per institution or perhaps in the neighbourhood of five to seven annual incidents for the grievor), this is clearly not a case where there is anything approaching a full job of bargaining unit work being performed by non-bargaining unit personnel.

21The union grounds its claim on a basis which differs from the traditional approach of cases dealing with implied restrictions on an employer’s ability to assign bargaining unit work to non-bargaining unit personnel.

22This argument proceeds on the basis that the evidence demonstrates, or at least suggests, an established uniform provincial practice whereby bargaining unit personnel have historically been the ones to perform the “triage” function. In that context, to alter that practice and assign that work to non-bargaining unit personnel where it would otherwise be expected to generate overtime work and consequent premium entitlements is to improperly undermine the provisions of the collective agreement which apply to overtime assignments and consequent premiums. While the union concedes that there is no guarantee of overtime work (the employer reminded us that the collective agreement regulates the relative distribution of such work without providing any guarantee of its assignment), it asserts that once there is such work to be performed (i.e. once there is a purported work refusal to be dealt with) and given the practice asserted, to not assign that work to bargaining unit personnel is to deprive them of their collective agreement rights and entitlements.

23While I may well have significant doubts in that regard, it is not necessary for me to enumerate them or to assess the soundness of the legal theory of the union’s case. Regardless of the viability of that theory, the union’s case falls short on the facts.

24Practice may be a significant factor in determinations regarding the scope of bargaining unit work. The union pushes the envelope slightly further – it relies on what it asserts is a province wide uniform employer practice to support its argument, not that the work is necessarily within the exclusive domain of the bargaining unit, but that to assign it to a manager when there is a bargaining unit employee available to do it on an overtime basis is to undermine the overtime provisions of the collective agreement.

25While it is not my function, in the context of a non-suit motion, to make determinative findings of fact and while I am similarly bound to provide the union with the benefit of every evidentiary doubt, I am simply not persuaded that there is sufficient evidence before me that would permit any conclusion regarding the existence of any relevant uniform province wide employer work assignment practice (whether before or after the impugned change asserted by the union). The specific evidence before me is restricted to two isolated incidents involving the grievor. And neither is there any reason to conclude that the grievor’s personal experience is typical or otherwise indicative of any uniform provincial practice. And all of the other evidence of the union, even to the extent that it might be generously described as containing inchoate suggestions, was so vague and non-specific as to be of no significant probative value with respect to any evidentiary effort to establish any uniform province wide employer work assignment practice.

26The union’s legal theory is premised on its assertion of province-wide practices. There is insufficient evidence before me to warrant any conclusion that any such practices exist.

27Having regard to the foregoing, the employer’s non-suit motion is allowed and these grievances are hereby dismissed.