GSB#2013-3410, 2013-3411, 2013-3412, 2013-3413, 2013-3414, 2013-3415, 2013-3416, 2013-3417, 2013-3418, 2013-3419, 2013-3420, 2013-3421, 2013-3422, 2013-3423,

2013-3424, 2013-3425, 2013-3426, 2013-3427, 2013-3428, 2013-3429

UNION#2013-0506-0033, 2013-0506-0034, 2013-0506-0035, 2013-0506-0036,

2013-0506-0037, 2013-0506-0038, 2013-0506-0039, 2013-0506-0040, 2013-0506-0041,

2013-0506-0042, 2013-0506-0043, 2013-0506-0044, 2013-0506-0045, 2013-0506-0046,

2013-0506-0047, 2013-0506-0048, 2013-0506-0049, 2013-0506-0050, 2013-0506-0051,

2013-0506-0052

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Santangelo et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Leslie Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 11, 2015

Decision

1This decision concerns twenty grievances filed by individuals employed by the Ministry of Transportation as Transportation Enforcement Officer 2 (TEO) in the Central East and Central West Regions. On agreement the grievances were heard together pursuant to the Mediation/Arbitration procedure in article 22.16 of the collective agreement.

2The grievances were argued on the basis of documentary evidence and the following Agreed Statement of Facts:

1. The Grievors are employed as TEO2s (Transportation Enforcement Officer 2) by the Ministry of Transportation. The Grievors all work in the Central East and Central West Regions of the Ministry of Transportation. Currently, within those Regions are several districts, including Halton North, Halton South, 407/ETR and Hamilton-Niagara in Central West; Aurora and Durham in Central East. At the time of the Grievance, Central West consisted of Halton, Hamilton-Niagara. The dispute pertains to the validity of the 407/ETR as its own district. It is not disputed that the Employer has named the 407/ETR as its own district. While this document may use the word “district” to refer to the 407 this should not be construed as a concession or agreement by the Union that the 407 is genuine district in its own right.

2. Each district is managed by a district manager, who is responsible for, inter-alia, directing and assigning staff, assigning overtime and reporting overtime hours worked in his/her district, retaining staff seniority lists and staff contact information, etc.

3. Over the years, there have been a number of changes to the borders of the districts in Central Region:

a. Until 2008, there were 7 districts in Central Region: Peel, 407ETR, Halton, York, Durham, Metro Toronto, and Hamilton/Niagara. The District Overtime Protocol-for Central Region was developed under that structure.

b. As of 2008, there were 6 districts: 407 ETR, Halton, Hamilton/Niagara, Aurora, Peel and Durham.

c. In 2010: Central region split into East and West, no changes to the districts. Central East took on Aurora and Durham, the rest was the Central West Region

d. In March 2012: Peel District disbanded and was integrated into Halton and Aurora.

e. At the end of 2013: Halton was split into Halton North and Halton South.

4. The 407 is owned by the 407 ETR Concession Company, a private company which, through Schedule 13 of the Concession and Ground Lease Agreement with the Ministry, reimburses the Ministry all time worked by staff assigned to work on the 407 district, including overtime.

5. Similarly, the 407 ETR Concession Company is responsible for reimbursing costs for sick leave, vacations, training, equipment, etc. of the TEO’s working on the 407.

6. Highway 407 cuts directly through several districts including Halton, Aurora and Durham. The 407 does not run through Hamilton-Niagara. Officers within Halton, Aurora and Durham routinely patrol areas around but are not assigned to patrol on the 407. They may use the 407 in travelling from place to place, or where they have followed a vehicle onto the 407, where, on very rare occasions they may pull it over to inspect it. However, two Officers from Halton North have patrolled on the 407, with the knowledge of their supervisor, when on LIDAR patrol. These individuals are Mike Wozniak, who performed Lidar duties on the 407 on three occasions, and Anas Bijadhai, who performed Lidar duties on the 407 once. LIDAR patrol involves using radar to locate trucks going faster than 105 KM per hour. It is agreed that Officers in Aurora, Halton and Durham would not be specifically requested by their Supervisors or Managers to patrol on the 407.

7. Officers in the Durham, Aurora and Halton districts have not been specifically assigned to patrol on the 407; however nor have they been directed to avoid the 407 in their patrols. Over the years Officers have occasionally been reminded to patrol within their districts’ boundaries.

8. The 407/ETR was defined as a district in 2001 While there are TEO2s employed exclusively to work on Highway 407, until 2012, they were headquartered at the Peel District Office, and shared a manager, supervisor, court officer and administrative staff with the Peel District Officers. Shortly before 2012, the 407 Officers began reporting to a trailer set up on 407 property in very close proximity to the actual highway.

9. On March 31, 2012, the Peel District disbanded and the Peel District office no longer housed or headquartered any TEO 2s. When the Peel District disbanded, one (1) administrative position, one (1) enforcement manager, and one (1) enforcement supervisor were eliminated. The Officers from the former Peel District were reassigned to Halton or Aurora. When this merger occurred, the Officers from the 407/ETR district who were previously headquartered at the Peel District Office continued to report for their shifts at the trailer on the 407 property. At this point the Halton (including some former Peel Officers) and 407 officers were assigned one manager, and continued to share a court officer and administrative staff. A Halton district supervisor, Sandra Rai, supervised both Halton and 407 staff. Administrative staff and supervisors are not routinely shared between districts.

10. Every January each district holds a district meeting. The Halton district meeting includes the officers assigned to the 407. This year the Halton North, South and 407ETR had their district meeting together as did Kingston and Ottawa Districts in East Region. It is agreed that much of the content of these meetings is not specific to districts, although some elements, such as the Coordinator’s speech and service recognition would be specific to the district. There are only five (5) officers assigned to the 407, compared to 10-20 officers in these other districts.

11. Halton officers are organized into platoons associated within one station, however it is not unusual for Officers to work at other stations. This is more common when there are two stations across the highway from each other.

12. The job postings for TEOs indicate specifically the station for which a TEO is being hired, however individuals are occasionally assigned to work out of a different location without a transfer request. This rarely happens across districts. The TEO’s who work on the 407 ETR either competed for or accepted lateral transfers for positions whose postings specified that district.

13. Pursuant to Schedule 13 of the Concession and Ground Lease Agreement between the Crown and the 407 ETR Concession Company, work performed on the 407 is billed to the 407 ETR Concession Company Limited, as is the administrative support work. Because of this billback, the work done on the 407 is assigned to its own cost centre. The 407 has two cost centres, recovery and billing. Central West has 7 cost centres in total. Central East region has 6 cost centres. Each district has at least one cost centre, however it is not uncommon for a district to have multiple cost centres.

14. The Grievors have been aware that the 407 Officers accumulated more than average overtime, although they were not aware until shortly before the grievance was filed the significance of the difference. The overtime accrued by 407 Officers is greatly in excess of what is accrued elsewhere in Central East and Central West Regions. In the remainder of Central East and Central West Regions there is very little overtime, and it is quite unpredictable. (The parties have some disagreement as to the degree of knowledge the grievors had about the significance of the amount of overtime in the 407.)

15. Overtime hours were offered as per the Overtime Protocol, under which the 407 ETR district staff were given first right of refusal for Overtime. Some of the grievors in Halton and Aurora did not submit their availability for overtime work on the 407.

16. As a result of discussions at the LERC table, in 2007 the president of Local 506, Mr. Joe Daniel and Mr. Shaun Dotzko, Acting District Enforcement Coordinator for Peel and 407 ETR engaged in discussions regarding overtime in the Central Region. There was no formal signed agreement between the Union and the Employer. The correspondence on the District Overtime Protocol- Central Region and associated LERC Minutes confirming that the issue was resolved are attached.

17. As outlined in the District Overtime Protocol- Central Region, staff in each district is given a right of first refusal for all overtime opportunities arising in their district. Any overtime not accepted by staff in the district is offered to staff in other districts. When Central Region was split into Central East and Central West, staff in each district continued to have first right of refusal to overtime within their own district.

3The employer relied on the following additional facts:

Similarly, the 407 ETR Concession Company is responsible or reimbursing costs for sick leave, vacations, training, equipment, etc. of the TEOs dedicated to that district working on the 407. If the 407 is not its own district, with its own dedicated staff and equipment, it would be extremely difficult for the Ministry to identify these costs in order to recover them from the 407.

Prior to 2001 the method of patrolling the 407 was to have each district supply staff to the 407 on a rotational basis to meet the targets imposed by the agreement with the 407 ETR Concession Company. That method was very difficult to manage and the MTO fell behind in its billing/reconciliation of costs from the 407. Both the billing and the supplying of staff to meet the needs of the 407 were extremely time consuming and used excessive staff resources to accomplish.

Making the 407 its own district with a dedicated staff on a permanent basis streamlined many of the billing issues, reconciliation, and hours of officers time being billed to the Hwy. Schedules could be much more efficiently set to ensure coverage and as officers are dedicated to the Hwy solely, so all time is directly billed and recovered at 100%. All time in court is directly related to charges laid on the 407 as the officers spend all their time patrolling the 407. However, if an officer from another district is working on the 407, issues a ticket, and is required to defend that ticket, at the same time as he is defending several other tickets from his home district, the time spent by that officer in court defending the 407 ticket should be billed back to the 407 ETR Concession Company Limited. Clearly it is much more difficult to do that when the officer is not spending 100% of their time in the 407 district.

Union counsel was not prepared to accept these additional facts as agreed facts, but also stated that the union does not dispute the asserted facts.

4The employer treats each district as the local workplace for purposes of article UN 8.2.1. It accepts the obligation to develop methods of distributing overtime among employees within each district, that are fair and equitable subject to operational requirements. The union concedes that, as a general matter, it is the employer’s prerogative to define and re-define the boundaries of districts, and to treat districts as the “local workplace” for purposes of article UN 8.2.1. However, it takes issue with the employer’s designation of the 407 Electronic Toll Road (“The 407”) as a district for overtime purposes.

Union Submissions

5Union counsel points out that all other “Districts”, except the 407, follow municipal boundaries of a city, town or county. The 407 is an exception. It is a single highway running the length of the two regions in question, over a distance of approximately 100 kms. While the 407 district is very small compared to the other districts within the two regions, the overtime work arising in the 407 is significantly higher than in the other districts. In most other districts there is little overtime work done. In some, overtime rarely arises. The result is that the 5 TEOs working in the 407 district perform substantially more overtime than TEOs in districts abutting the 407.

6Counsel stated explicitly that the union does not allege that the employer acted in bad faith in deciding in 2001 to designate the 407 as a district. The employer was motivated by the desire to achieve administrative ease and efficiency. However, it was submitted that the absence of bad faith is not a complete defence because of the effect of the decision. Counsel argued that monetary compensation is at the heart of any employment relationship. The designation of the 407 as a district, and treating that district as the local workplace for purposes of overtime distribution adversely impacts upon the grievors’ ability to earn a fair and equal share of overtime pay. In exercising management rights the employer has the right to exercise discretion. However, where the effect of that exercise of discretion is the denial of the fundamental right to monetary compensation, the employer’s conduct must be subject to scrutiny by the Board.

7The Board was referred to Re Kuyntjes, 513/84 (Verity). Following a detailed review of the jurisprudence, the Board wrote at p. 16:

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant consideration must be rejected.

8Union counsel argued that the employer was not entitled to consider only its own interests in designating districts. It failed to consider a very relevant fact, i.e. the adverse impact on the grievors’ rights under Article UN 8.2.1, and thereby did not meet the fourth criterion set out in Re Kuyntjes.

9Counsel further submitted that the 407 is only a “paper district”. It does not function as a district as other districts. It is a district only for administrative and paper work purposes. While each of the other districts has its own District Manager, the 407 shares a District Manager with another district. Similarly it shares the court officer and some administrative staff with other districts. The TEOs working in the 407 attend staff meetings along with TEOs from another district. Therefore, it is not truly an independent district like other districts.

Employer Submissions

10Employer counsel submitted that although the 407 shares a manager and court officer, and 407 staff attend staff meetings in common with staff from another district, it is not a mere paper district as the union suggests. Since it is a very small district with only five TEOs, it makes sense to share management and some staff. To do otherwise would be wasteful. Subject to that difference, the 407 has its own inspection stations, vehicles, office equipment, uniforms etc. just like any other district.

11Counsel pointed out that the use of TEOs from surrounding districts on a rotational basis to perform enforcement duties on the 407 turned out to be unworkable. It created significant problems in relation to the billing and recovery of costs from the 407 corporation. It was solely to address this that the employer decided in 2001 to treat the 407 as a separate district with its own dedicated staff. Counsel submitted that since the union is not alleging bad faith or discrimination, it has the onus of establishing that the designation of the 407 as a district resulted in the violation of some right the grievors have under the collective agreement. The union’s claim is that article UN 8.2.1 was contravened. Counsel pointed out that while article UN8.2.1 refers to “local workplace”, that phrase is not defined in the collective agreement. Therefore, the employer is entitled, in the exercise of its exclusive management rights, to define what a local workplace is. Provided it is done for legitimate business reasons, and in good faith, it has wide latitude in that regard.

12Counsel emphasized that all employees post to a particular TEO position at a specific location, using their seniority. If the 407 is a preferred location, any employee is entitled to post to a vacancy in the 407, using his or her seniority. This is no different than elsewhere in the OPS where employees use seniority to obtain preferred positions. She submitted that for the Board to order that the 407 TEOs, who had successfully posted to their positions by virtue of their seniority, are required to share the benefits of the preferred location with TEOs in other districts, would be to negate the recognition accorded in the collective agreement to seniority in job competitions.

Conclusion

13For the instant grievances to succeed, the union must establish that the grievors’ rights under article UN 8.2.1 have been violated. The right accorded under that provision is for fair and equitable distribution of overtime at the local level. The employer, in the absence of a collective agreement definition of “local workplace”, treats each district as the local workplace for purposes of article UN8.2.1. The union does not object to this as a general matter. Its objection is limited to the designation of the 407 as a district, and therefore as a local workplace. The union relied on the four-fold test in Re Kuyntjes, as the basis for its argument that the employer’s exercise of the management right to designate districts was in contravention of article UN8.2.1. Specifically, it was submitted that the employer failed to consider a very relevant fact, namely the denial to the grievor of fair and equitable access to overtime opportunities. Therefore, the exercise of the management right failed to meet the fourth criteria in Re Kuyntjes.

14The Board agrees with the employer that the test in Re Kuyntjes has no application in the circumstances of this case. On a reading of the Board’s decision, it is apparent that the test was devised for testing the validity of the employer’s exercise of discretion in circumstances where an employee is accorded a right under the collective agreement subject to discretionary approval of the employer. There, the collective agreement provided that the employer “may grant an employee a leave of absence with pay for not more than three days in a year upon special or compassionate grounds”. Thus there was a specific provision granting the grievor a right or benefit at the discretion of the employer. The issue was whether the employer properly exercised its discretion in denying approval of the leave in the grievor’s particular circumstances. This is made clear in the test set out by the Board for determining whether the exercise of discretion was proper, the third criterion of which provides that “consideration must be given to the merits of the individual application under review”.

15In the instant case there is no right claimed by any of the grievors. The right arising under article UN 8.2.1 is only that the employer develop methods for distribution of overtime at the local workplace that are fair and equitable. The employer has exercised its management right to treat each district as the local workplace. Thus the fair and equitable distribution envisaged is only among employees working in the local workplace. i.e. the district. There is no suggestion that there is unfair or inequitable distribution of overtime among TEOs working in the same district.

16To uphold the grievances, the Board would have to conclude that the employer`s exercise of its management right to organize the workplace was improper. The union would have the Board come to that conclusion by applying the test in Re Kuyntjes. Assuming without finding, that the employer failed to consider a relevant fact as the union claims, that does not entitle the Board to intervene. The employer exercises its exclusive management rights on a day to day basis in a great multitude of ways. To name a few, it decides what services to provide, to hire and lay off employees, the training, the size of the workforce, the location of its operation, the equipment and work methods to be used etc. If the union is correct, any such exercise of management rights may be challenged on the basis of the Re Kuyntjes test. That simply is not the law.

17The leading decision of this Board relating to the exercise of the exclusive management rights under article 2 is Re Bousquet, 541/90 (Gorsky). It sets out the test that applies in cases where the propriety of the exercise of management rights is at issue. At pp. 63-64 the Board stated:

All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer as long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct.

18There is no allegation that the employer acted in bad faith. It is also agreed that the decision to designate the 407 as a district was made for legitimate government purposes. Therefore, even if the Board is of the view that the employer could have addressed its difficulties in some other way, that is not grounds for the Board to intervene. Article 8.2.1 does not contemplate fair and equitable distribution of overtime among all employees doing the same work. The requirement is explicitly limited to employees working within the local workplace. As long as the employer’s designation of the local workplace is done for legitimate operational or business reasons; the decision is not tainted by bad faith or discriminatory considerations; and the decision does not result in the denial or abridgment of a right the grievors have under the collective agreement; there is no grounds for the Board to intervene.

19The Board concludes that the union has not established that the employer violated article UN 8.2.1 or any other provision by designating the 407 as a district, or by treating that district as the local workplace for purposes of distribution of overtime. In light of that conclusion, it is unnecessary to deal with the employer’s estoppel argument. All of the grievances are hereby dismissed.