GSB#2013-0015

UNION#2013-0999-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

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

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Legal Services Branch Counsel

HEARING

May 30, 2013

Decision

1The grievance before me is a Union grievance, dated March 5, 2013. The grievance, as described in the Union’s particulars, “… relates to the refusal of the Employer to permit an elected representative of the Union to participate in MERC [Ministry Employee Relations Committee] meetings in person, and to instead insist that this member participate by way of conference call”.

2The Employer made reference to s. 7 (3) of the Crown Employees Collective Bargaining Act and Article 22.1 of the Collective Agreement, emphasizing that the Board’s jurisdiction derives from disputes arising under the Collective Agreement. The Employer was prepared to accept the particulars as alleged by the Union only for the purposes of this motion. The Employer reserved the right to call contradictory and supplementary evidence if its motion did not succeed. It is the position of the Union that the Employer’s motion ought to be dismissed and the grievance allowed to proceed.

3As previously indicated, the grievance relates to the participation of an individual as a Union representative on MERC, at meetings on the Employer’s premises. The Employer advised the Union that due to safety concerns, the individual would only be able to participate in MERC meetings by teleconference, and would not be permitted access to employer premises. The Employer’s concern arises from an action taken by the individual outside of the workplace. The individual’s employment was terminated in October of 2012, however the parties have since entered into minutes of settlement that contemplate the potential for his return to the employment. The process dealing with that matter has yet to fully unfold. There was some suggestion from the Employer that the settlement affected this matter however, I am not persuaded that there is a sound basis for such a conclusion.

4The particulars state that medical evidence indicating that the individual presents no risk of harm has been provided to the Employer. They also indicate that while the Union concluded that there was no reasonable basis for concern, it agreed to have the individual attend one meeting by teleconference. The particulars state further that:

The Union’s experience was that [the individual] did

not have a full and equal opportunity to participate

in the MERC meeting when he was on a phone line

and all other members were there in person. He lost

the opportunity for face to face contact and the opportunity

to read and respond to body language and other non-

verbal communication.

The particulars go on to note that all Union members opted to attend a subsequent MERC meeting by conference call and state that: “This was not an effective manner to conduct the meeting and that “… the Employer’s actions are impeding the effective operation of the MERC and preventing the MERC from accomplishing its important objectives”.

5The Union claims that the Employer’s actions are inconsistent with the provisions of Article 1 of the Collective Agreement, the recognition clause, on the basis that its ability to provide representation of its members has been compromised. The Union also claims that the Employer’s actions were not a valid exercise of Article 2 management rights as contemplated by the Bosquet line of cases, more recently addressed in Dobroff, 2003-0905, to which both counsel made reference. The Union characterized the decision as arbitrary and unreasonable and claims that specific provisions of the Collective Agreement have been undermined. As well as Article 1, the Union referred me to Article 16 of the Collective Agreement, the provision that contemplates the committee and provides, in 16.1, in part, that: “… all ministries may enter into local and ministry employee relations negotiations such that are appropriate as not being excluded by the provisions of the Crown Employees Collective Bargaining Act, 1993”. I was also referred to Appendix 29, a Letter of Understanding dated June 24, 2005, which states that:

… the parties have agreed on the value of communication

at the local level. To that end, it is agreed that a Ministry

Employee Relations Committee will be established within

each Ministry, which shall be deemed to be the ERC as

referred to in Article 16.2

The letter goes on to refer to terms of reference for the committee, which set out the purpose of the MERC in the following language:

The parties recognize the value of discussing issues

of mutual interest in order to achieve understanding

and where required resolution and thus enhance the

relationship between Management, the Union and

the Employees. It is understood that resolutions

reached at these meetings shall respect the rights

and entitlements contained in the collective agreement.

The terms provide for composition of up to five members of the Union, with an equal number from Management. Under the heading “Time Off”, the terms provide that:

Union members of the committee shall have the time

spent traveling to scheduled meetings, and the time

spent at the joint meetings of the committee with no

loss of regular pay, seniority and credits.

6The Union argues that the provisions of the Collective Agreement are to be read in the context of s. 70 the Ontario Labour Relations Act, which prohibits interference with the representation of employees by a trade union. In this regard I was referred to McDonnell Douglas Canada Ltd., [1988] OLRB Rep. May 498 and Vale Inco Ltd., [2011] OLRB Rep. November/December 884. In the former case the OLRB found the Employer’s prohibition of a discharged union representative from attending its premises to engage in union/employer business to have violated the Act. In the latter case, also involving the refusal of an employer to allow a representative of the union to attend its premises, the reasoning in McDonnell Douglas was endorsed and the Board rejected the Employer’s position that the employee’s presence presented a health and safety risk.

7The Employer argues that the Collective Agreement does not contain a specific requirement that attendance at MERC meetings be in person. With respect to the part of the terms that refer to travel to the meetings, the Employer’s position is that while those terms contemplate in person meetings, in person meetings are not made mandatory. It is the Employer’s position that its decision was based on legitimate health and safety concerns. It is the Employer’s further position that the functioning of the committee has not been compromised. The Employer submits that any alleged violation of the provisions of s.70 of the Labour Relations Act should have been raised before the Labour Relations Board and that in any event the facts of this case are distinguishable from the facts in the decisions I was referred to. It is the Employer’s position that there is no basis upon which a violation of the Collective Agreement could be established and that the grievance before me should therefore be dismissed.

8As noted in Couture, 2008-3329, a case referred to by both counsel, at paragraph 6, a motion of the sort that is before me will succeed only if it is established that the facts, if proven, are “not capable” of establishing the violation alleged. I am not persuaded that the facts as alleged are not capable of establishing a violation of the Collective Agreement. Of course, whether a violation is ultimately established is yet to be determined. Should the parties remain unable to resolve this grievance, a hearing will be convened at a mutually agreeable date.