GSB#2002-2441

UNION#2002-0999-0018

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 (Treasury Board Secretariat)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 5, 17, October 16, 2012, June 18, July 10, 16 & 17, August 12, November 8, December 20, 2013.

Decision

[1] In August of 2011, the Union filed two policy grievances which claim that the Employer contravened the Collective Agreement when it assigned bargaining unit work to persons outside of the bargaining unit. More specifically, these bargaining unit integrity grievances allege that bargaining unit work that had been performed by Court Services Representatives (“CSRs”) working in certain Family Law Information Centres (“FLICs”) is now being performed by Information and Referral Coordinators (“IRCs”) supplied by an external service provider. The policy grievance dated August 17, 2011, refers to the Brampton Court and the policy grievance dated August 24, 2011, refers to “various courts (eg. Milton etc.).” The parties agreed to proceed first with the grievance and the bargaining unit integrity issue at the Brampton Court FLIC with the view that a decision on this grievance will provide guidance for similar issues involving FLICs at other Courts. To remedy the alleged breach of the Collective Agreement, the Union requested that I direct the Employer to post and fill one additional CSR position at the Brampton Court FLIC.

2To support its claim, the Union called Mr. J. Fraser and Ms. A. Russon to testify. Both of these witnesses are CSRs at the Brampton Court who at certain times worked in the FLIC. Mr. Fraser started working for the Employer at the Brampton Court in 1997 and he became a CSR in 2004. Mr. Fraser completed grade twelve and one year of college where his interest was in radio and television broadcasting. Before joining the Court at Brampton, his prior employment had no connection with family law issues. What knowledge he acquired about these issues came from his work at the Brampton Court. Mr. Fraser testified about his duties in the FLIC during the approximately 2½ years he worked there starting in 2004 and during the approximately six months he worked there starting in February 2013. He also testified about what he observed the IRCs doing when he was in the FLIC in 2013. Ms. Russon started working for the Employer as a file clerk on contract at the Brampton Court in March 2009. She started as a full-time permanent CSR at the Ontario Court of Justice (“OCJ”) at Brampton in March 2010. She had completed grade twelve and had obtained a college diploma in Tourism and Hospitality. Before starting at the Brampton Court, her prior Ontario Public Service employment had no connection with family law issues. Ms. Russon testified about her duties and the IRCs duties in the Brampton Court FLIC when she worked there for four months starting April 2011 and for an additional six months starting September 2011.

3The Employer called three witnesses. Mr. D. Medeiros is the Manager of Court Operations, Brampton OCJ. After holding a number of positions in the Court system, he has occupied his current position at Brampton since 2007. Among other issues, he testified about the duties of CSRs and IRCs at the Brampton Court FLIC. Ms. M. Dwyer-Hunte works in the Family Policy and Programs Branch, Court Services Division (“CSD”). She testified about the introduction of family mediation and information services and IRCs to various Courts in 2011, including Brampton, by means of contracting for these services with external service providers. She also testified about the history of the provision of IRC services by external service providers in the Court system. The Employer’s last witness was Ms. C. Felstiner. She works through a service provider as an IRC and Mediator at the Brampton Court FLIC. She also works at a Toronto Court FLIC as an IRC and Mediator through a different service provider. She started working at the Brampton Court FLIC as an IRC in August 2011. She worked two days a week and after about one year she transitioned into IRC and Mediator work. During the last four months before she testified she worked two days a month as an IRC at the Brampton Court FLIC. Ms. Felstiner holds both a Bachelor of Social Work (1992) and a Master of Social Work (2001). She also holds a Certificate in Family Mediation and a Certificate in Dispute Resolution. Without referring in detail to her resume, I simply note that Ms. Filstiner has extensive knowledge of and experience with family law issues.

4In determining the facts, I have reviewed the oral testimony of these witnesses, the voluminous documentary evidence and the submissions of counsel relating to all of this evidence. I resolved any conflicts in the evidence by utilizing the usual criteria and in particular by determining what is most probable in light of the totality of the evidence.

5Each counsel reviewed the evidence in detail during their submissions. Relying on a number of grounds, Employer counsel argued that the Employer did not contravene the Collective Agreement when it introduced IRCs at the Brampton Court FLIC through an external service provider. Counsel first submitted that the family information services provided by the IRCs at the Brampton Court FLIC are not bargaining unit work. In this regard he submitted that these information services are enhanced services which had not been previously performed by CSRs. Employer counsel then made a number of alternative submissions on the assumption that the IRCs at the Brampton Court FLIC were engaged in the performance of bargaining unit work. I will reference two of his alternative submissions. Counsel submitted that the work performed by the IRCs at the Brampton Court FLIC was not work that had been exclusively performed by CSRs, with the result that the Employer was not restricted from assigning that work to IRCs. Counsel also submitted that the bargaining unit work at issue had been legitimately contracted out to an external service provider. Employer counsel submitted that any one of these positions is a full answer to the Brampton Court grievance.

6In support of his submissions, Employer counsel relied to the following decisions: OPSEU (Pilon et al.) and Ministry of Community and Social Services (2003), GSB Nos. 0573/99 et al. (R. Brown); OPSEU (Hunt et al.) and Ministry of the Attorney General (2006), GSB. Nos. 2001-0534 et al. (Abramsky); J.M. Schneider Inc. v. Schneider Office Employees’ Assn., [2003] O.L.A.A. No. 20 (Haefling); Re Kincardine and District General Hospital and O.N.A. (1994), 1994 CanLII 18623 (ON LA), 42 L.A.C. (4th) 199 (Verity); Windsor (City) v. C.U.P.E., Local 543, [2006] O.L.A.A. No. 201 (McLaren); Metroland Media Group Ltd. v. C.E.P.U. of Canada, Local 87-M, [2010] O.L.A.A. No. 501 (Luborsky); Re Lincoln (Town) and C.U.P.E., Local 1287 (2000), 2000 CanLII 50241 (ON LA), 85 L.A.C. (4th) 144 (Verity); Central York Fire Service v. International Assn. of Fire Fighters, Local 2511, [2012] O.L.A.A. No. 42 (Luborsky); Commonwealth Plywood Co. v. United and Allied Workers Council 1-1000, [2008] O.L.A.A. No. 585 (Dumoulin); Hemlo Gold Mines Inc. v. U.S.W.A., Local 9364, [1996] O.L.A.A. No.541 (Marcotte); Algonquin College v. Ontario Public Service Employees Union, [2005] O.L.A.A. No. 471 (Tacon); OPSEU (Union) and Ministry of Revenue (2010), GSB No. 2008-0647 (Herlich); Re Fairhaven Home for Senior Citizens and Ontario Nurses’ Assn. (1992), 1992 CanLII 14585 (ON LA), 28 L.A.C. (4th) 399 (Thorne); Re ACF Flexible Inc. and G.C.I.U., Loc. 500M (1990), 1990 CanLII 12846 (ON LA), 13 L.A.C. (4th) 66 (Mitchnick); Re Bowater Mersey Paper Co. and C.E.P., Loc. 259 (2002), 2002 CanLII 79092 (NS LA), 116 L.A.C. (4th) 438 (Outhouse); Re International Electrical Workers, Local 510 and Phillips Electrical Co. Ltd. (1963), 13 L.A.C. 249 (Bennett); OPSEU (Gallagher) and Ministry of Correctional Services (1996), GSB No. 493/94 (Watters); Re University of Western Ontario and C.U.P.E., Local 2361 (2007), 163 L.A.C. (4th) 1 (Brandt); British Columbia v. British Columbia Government and Service Employees’ Union, [2001] B.C.C.A.A.A. No. 48 (Sigurdson); and, Re OPSEU (Union) and Ministry of Government Services (2013), 229 L.A.C. (4th) 211 (Petryshen).

7Union counsel argued that the evidence supported the Union’s contention that the Employer had breached the implied restriction in the Collective Agreement by assigning certain bargaining unit work performed by CSRs at the Brampton Court FLIC to IRCs supplied by an external service provider. Counsel also made submissions on most of the alternative positions taken by the Employer. On the issue of whether there had been a valid contracting out of the work, the Union simply disagreed that there had been a valid contracting out and it took the position that whether the contracting out was valid or not did not affect the post and fill remedy it was seeking.

[8] Union counsel relied on the following decisions during his submissions: OPSEU (Pilon et al.) and Ministry of Community and Social Services (2001), GSB Nos. 1254/99 et al. (R. Brown); OPSEU (Union) and Ministry of Health and Long-Term Care (2001), GSB Nos. 1942/94 et al. (Fisher); OPSEU (Pilon) v. Ministry of Community and Social Services, [2003] O.G.B.A. No. 38 (R. Brown); OPSEU (Union) v. Ministry of the Attorney General, [2010] O.G.S.B.A. No. 254 (Herlich); Re Rideaucrest Home for the Aged and Ontario Nurses’ Assn. (1995), 48 L.A.C. (4) 1 (H.D. Brown); Re Network North and OPSEU, Local 666 (1998), 1998 CanLII 30016 (ON LA), 77 L.A.C. (4th) 86 (Thorne); Thompson Products Employees’ Assn. v. TRW Canada Ltd., [2002] O.L.A.A. No. 179 (Baum); Northumberland and Clarington Board of Education and U.F.C.W., [1994] O.L.A.A. No. 817 (Starkman); Re Via Rail and I.A.M. (1993), 1993 CanLII 16741 (CA LA), 35 L.A.C. (4th) 267 (Frumkin); Ontario Nurses’ Assn v. Hamilton Health Sciences Corp., [2008] O.L.A.A. No. 612 (Dissanayake); and, Re New Brunswick (Board of Management) and C.U.P.E., Loc. 1190 (1997), 1997 CanLII 25113 (NB LA), 63 L.A.C. (4th) 56 (McAllister).

9After reviewing the evidence and after considering the submissions of counsel, it is my conclusion that the Employer did not commit a bargaining unit integrity breach of the Collective Agreement when it introduced IRCs at the Brampton Court FLIC through an external service provider. In reaching this conclusion I have focused on the issues of exclusivity and whether there had been a valid contracting out of the work at issue to the external service provider. I will first review the facts, particularly those that are relevant to these issues, and then I will set out concise reasons for my conclusions.

[10] The FLIC at the Brampton Court opened in September, 2002, providing services for the OCJ. It later also provided services at Brampton for the Superior Court of Justice (“SCJ”). As its name suggests, the purpose of the FLIC is to provide clients of the Court and members of the public not involved in a Court proceeding with certain information about family law matters. When it opened and until August of 2011, the Brampton Court FLIC was staffed with a CSR and advice lawyers. The essential duties of the CSR was to provide information about the Court process, to provide the appropriate forms to unrepresented clients, to provide resource materials on a variety of family law topics, to refer clients to various community service organizations and to refer clients to the advice lawyer. The Ministry provided the CSRs with a list of community organizations to assist them in referring clients to such services. Although there were some changes within the FLIC over the years, the CSR continued to perform these FLIC duties until August 2011.

11Additional duties for the CSR in the Brampton Court FLIC were created in June of 2010 when a pilot project for a family service was established. The pilot projects for a Mandatory Information Program (“MIP”) took place at the Brampton and Milton Courts. The objective of the MIP is to provide information about family law matters upfront for families. With some exceptions, all parties involved in a family Court case are required to attend a MIP session. The sessions usually last two hours and are led by teams of two: one mental health professional or mediator and one lawyer. The matters covered in a MIP are the effects of relationship breakdown on adults and children, various options available for dealing with ending a relationship, basic legal information about family law issues, options for dispute resolution, basic information about the Court process and information about legal and non-legal resources in the community. Materials that covered these issues were made available to clients attending the MIP sessions. The Manager of Court Services at Brampton made a business case for an additional CSR position to assist with the MIP pilot project in the FLIC. He secured funding for one year for a temporary, twelve month CSR position. Two MIP sessions were held on one day of the week at Brampton. A CSR would schedule the applicant and respondent for different MIP sessions upon the filing of an application. A CSR would then have certain administrative duties related to MIP sessions, such as providing the materials that were handed out at the sessions and keeping track of attendance. A CSR would be involved in rescheduling MIP sessions and a dedicated telephone line at the Brampton Court House was used for this purpose and for general MIP business. Different witnesses estimated that anywhere from 20 to 30% of a CSR’s time was spent on MIP duties. I am satisfied that MIP duties occupied no more than 25% of a CSRs time.

12In an email dated June 15, 2011, a Supervisor, Court Operations at Brampton announced that the funding for the temporary CSR position for the MIP would end on June 27, 2011, and that a service provider would take over part of the MIP responsibilities in the near future. In fact, a Request for Proposals (“RFP”) for family mediation and information services for the OCJ and SCJ at forty-five locations, including Brampton, had been issued on February 18, 2011. The successful bidder for the provision of these services at the Brampton Court was Peel Family Mediation Services (“PFMS”). As the successful bidder, PFMS entered into an Agreement with the Employer to provide certain family mediation and information services at the Brampton Court FLIC. What this practically meant for our purposes is that PFMS provided two information services for clients in the FLIC. It provided the MIP service for clients which meant that IRCs took over the administrative duties and rescheduling relating to the MIP. The other information service it provided was the IRCs. Apart from MIP duties, the IRCs supplied to the Brampton Court FLIC by PFMS were responsible for:

. providing clients with information on issues related to separation and divorce and child protection matters, alternative dispute resolution and community resources;

. helping clients to determine their needs and making referrals to information sessions and community agencies/services where appropriate;

. maintaining a current list of publications and audio-visual materials that should be available in the FLIC;

. promoting awareness of the FLIC and obtaining information about local services through outreach and liaison with community agencies;

. promoting the use of mediation for cases that appear to be appropriate;

. maintaining an up to date list of resources, programs and services that are available in the community to assist clients in the process of separation and divorce, and assisting clients to get access to these programs and resources; and,

. referring clients to court staff or the advice lawyer for other services.

When Court staff and Legal Aid Ontario (“LAO”) staff are not available, an IRC will also:

. provide general information about the Court process;

. provide court forms and guides to procedures;

. provide information on how to obtain counsel or general financial eligibility requirements for Legal Aid; and,

. refer potential LAO clients to the LAO telephone customer service centre.

[13] The RFP issued on February 18, 2011, is not the first time that the Employer had introduced family and mediation services at Court locations through external service providers. Indeed, what occurred at the Brampton Court FLIC and the FLICs at the forty-five Court locations starting in August 2011 represented an extension of a model of services which had been in place at Unified Family Court locations for many years. In April 1999, the Employer issued an RFP seeking service providers to provide family mediation and information services at twelve SCJ locations. The service providers were required to provide IRCs at these locations and they were also required to provide Public Information Sessions. These sessions were not unlike the MIPs that were to come later, the difference being that they were voluntary sessions. The RFP issued in September 2002 for the provision of family and mediation services covered seventeen SCJ locations. The RFPs in July 2007 and in September 2010 provided for the renewal of the family mediation and information services at the seventeen Unified Family Court locations. The only significant difference in the 2010 RFP is that it now provided for a MIP service in the FLICs, rather than the voluntary Public Information Sessions. Simply put, the provision of family information services by an IRC supplied by PFMS in the Brampton Court FLIC starting in August 2011was not significantly different from the way in which family information services had been provided for many years by IRCs supplied by external service providers in the seventeen Family Unified Court locations. The Union had never challenged the provision of such family mediation and information services by IRCs from external service providers at the Family Unified Court locations.

[14] There is no doubt that the presence of the IRCs from PFMS had an impact on the duties performed by the CSR at the Brampton Court FLIC. For the most part, the CSR continued to provide family information to clients about the Court process and Court forms. This is the area in which the CSRs were most knowledgeable. In addition to taking over a lot of the administrative functions in connection with the MIPs, the IRCs provided clients with information about such family matters as divorce, separation, custody and government and community resources. The IRCs promoted the use of mediation and other alternatives to litigation. Although I have no doubt that the CSRs at the Brampton Court FLIC did the best they could in providing this type of information before the arrival of the IRCs, they were not educated or trained to deliver this kind of information. The IRCs on the other hand are social service professionals who are educated and trained to deal with clients with family law issues. There is some basis then for the Employer’s position that the IRCs are providing clients in the Brampton Court FLIC with enhanced information services which the CSRs had not previously provided. However, while I recognize that IRCs provide certain family information services that are of a higher quality than the information services previously provided to clients by CSRs, I am not prepared to decide this case on the basis of whether or not the IRCs are performing bargaining unit work. In addressing the following two issues, I will assume that the work performed by IRCs at the Brampton Court FLIC is work that had previously been performed by CSRs.

15The Collective Agreement does not contain an express restriction precluding the Employer from assigning bargaining unit work to persons outside of the bargaining unit. This Board has found that the Collective Agreement contains an implied restriction which can impact on the Employer’s right to transfer work from the bargaining unit to persons outside of the bargaining unit. See, OPSEU (Pilon et al.) and Ministry of Community and Social Services (2001), supra. In this decision, Vice-Chair Brown concluded that the relevant factors to consider when determining whether the implied restriction has been contravened include the quantity of work in dispute, the quality of that work and whether there is an overlap in duties performed by employees in the bargaining unit and persons outside of the bargaining unit. With regard to this latter factor, Employer relied on a line of decisions which hold that for a union to succeed in a claim that certain bargaining unit work is protected, it must show that the work in question had been exclusively performed by bargaining unit employees. Kincardine and District General Hospital and O.N.A., supra, Metroland Media Group Ltd. v. C.E.P.U. of Canada, Local 87-M, supra, and Lincoln (Town) and C.U.P.E., Local 1287, supra, are examples of the many decisions that uphold the principle of exclusivity. Union counsel referred me to two decisions which appear to take a contrary view, namely Re Rideaucrest Home for the Aged and Ontario Nurses’ Assn., supra, and New Brunswick (Board of Management) and C.U.P.E., Loc. 1190, supra. In addressing the exclusivity issue, including the comments I made on this subject in OPSEU (Union) and Ministry of Government Services, supra, Union counsel submitted that this issue required a nuanced approach that took into account all of the relevant factors. Without referring to the decisions in detail, I simply note that I prefer the analysis in the line of cases that adopt the exclusivity principle. It is difficult to advance a claim that the integrity of the bargaining unit has been affected when the work at issue has been performed for some time by persons outside of the bargaining unit. Generally, in my view, the implied restriction cannot be contravened when bargaining unit employees share the same relevant duties with persons who are not in the bargaining unit. Although the other factors referenced by Vice-Chair Brown in the 2001 Pilon decision may be relevant, the exclusivity principle by itself may be determinative in the circumstances of a given case.

[16] In this case, the Union claims that certain work or duties performed by CSRs at the Brampton Court FLIC were assigned to IRCs in violation of the implied restriction. However, even before there was a FLIC at the Brampton Court, IRCs supplied by external service providers were providing information services and performing duties in connection with Public Information Sessions in FLICs at Uniform Family Courts locations. It is this same work and duties which IRCs supplied by PFMS perform at the Brampton Court FLIC and which the Union claims is protected bargaining unit work. I appreciate that in making its claim that the implied restriction has been violated at the Brampton Court the Union takes the position that one must only focus on individual Court locations. In other words, it asserts that this dispute must be resolved by only looking at the assignment of FLIC work at the Brampton Court. I disagree. Although the grievance being explored relates to the Brampton Court FLIC, it is necessary when examining what constitutes bargaining unit work to look at the entire bargaining unit. This is the only reasonable approach when addressing the kind of labour relations issues which are present here. And when examining the history of the performance of the relevant work in this case, it is clear that the CSR work the Union seeks to protect at the Brampton Court FLIC has been performed and shared with IRCs for many years at a number of Court locations without challenge. The fact that the information services and certain duties in connection with the MIP at issue here have not been exclusively performed by bargaining unit employees is by itself a significant factor which leads me to conclude that the implied restriction has not been contravened in these circumstances.

17The other two relevant factors referenced in OPSEU (Pilon et al.) and Ministry of Community and Social Services (2001), supra, are the quality of the assigned work and the quantity of work. I noted previously that the quality of the information services at issue provided by the IRCs is at a higher level than the information services which had been provided by the CSRs at the Brampton Court FLIC. The quality of work factor therefore in this instance also favours the conclusion that the implied restriction has not been contravened. The CSRs duties in connection with the MIPs amounted to no more than 25% of a CSRs time. This limited quantity of work in relation to MIP duties is also a factor which would weigh in favour of the conclusion that the implied restriction has not been contravened insofar as that work is concerned.

18The final matter I will address is the Employer’s submission that there has been a valid contracting out of the relevant work at the Brampton Court FLIC. There is no restriction in the Collective Agreement preventing the Employer from contacting out bargaining unit work. The context often for a bargaining unit integrity grievance is a situation where the Employer uses individuals from an agency to perform the same bargaining unit work alongside bargaining unit employees and where it supervises and directs the work of the agency employees. That context is different from the circumstances in this case. The Employer issued an RFP in February 2011 for the provision of certain information and mediation services. In the case of the Brampton Court FLIC, the Employer entered into a contract for the provision of these services with the successful bidder, PFMS. It is clear from the evidence that the relevant factors for determining whether there had been a valid contracting out of bargaining unit work compels the conclusion that there has been a valid contracting out of bargaining unit work in this instance. PFMS exercises direction and control over the IRCs and it bears the burden of remuneration. It hires the IRCs, has the power to discipline and discharge them, and is responsible for supplying the equipment the IRCs require. IRCs perceive PFMS to be their employer and between them there is obviously an intention to create an employer and employee relationship. Although the Employer has ensured by the terms of the contract with PFMS that the services it has contracted for will be provided at a certain standard, the key element of control of the employment relationship rests with PFMS. The conclusion that there has been a valid contracting out of bargaining unit work to PFMS is a complete answer to the Union grievance relating to Brampton Court FLIC.

19The Union has historically played an active role in protecting the integrity of its bargaining unit. Even though the impact of the introduction of IRCs at the Brampton Court FLIC was minimal in that no CSR positions were lost, but for the temporary CSR position that was expected to end when the funding for it ended, the Union had a legitimate interest in protecting what the CSRs believed to be their work at the Brampton Court FLIC. However, looking at the situation of the bargaining unit overall, the model for the provision of information services by IRCs supplied by external service providers in FLICs had been in place for many years at numerous Court locations. I was satisfied that the Employer’s efforts to extend the IRC service model to all the remaining Courts that deal with family law issues did not contravene the Collective Agreement.

20For the foregoing reasons, I find that the Employer in these circumstances did not contravene the implied restriction which prevents it from assigning bargaining unit work to persons outside of the bargaining unit when it introduced IRCs at the Brampton Court FLIC in August 2011. Accordingly, the Union grievance dated August 17, 2011, is hereby dismissed.

I will remain seized of the grievance dated August 24, 2011.