GSB#2016-1202, 2016-1203

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Braun et al)

Association

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Janice Johnston

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

July 4, 2017

Decision

Background

1This matter is scheduled to commence on July 27, 2017. The case pertains to two separate disputes filed by AMAPCEO. I have before me two preliminary matters. The Ministry is bringing a preliminary objection to my jurisdiction to hear one of the disputes on the basis that it deals strictly with the exercise of management rights. AMAPCEO is bringing a motion for the employer to proceed first in this case. I have not heard any evidence yet.

2A conference call was held on July 4, 2017, to address the two issues. I will deal with each issue separately.

3The relevant collective agreement provisions are:

ARTICLE 3 - MANAGEMENT RIGHTS

3.1 Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and layoff, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development, appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer.

ARTICLE 20 - DISCIPLINE AND DISCHARGE

20.1 No employee shall be disciplined or discharged without just cause. It is understood that disciplinary measures will be appropriate to their cause and subject to the principles of progressive discipline.

20.2 An employee shall be advised of the reasons for disciplinary action. When an employee is to be discharged or suspended, he or she shall be advised in writing of the reasons for such action.

ARTICLE 30 - VACATION

30.9 An employee with the approval of his or her manager or designee, may take vacation to the extent of his or her vacation entitlement and his or her accumulated vacation credits shall be reduced by the vacation taken. Such approval will be subject to operational requirements, but, it is also agreed that such approval will not be unreasonably withheld.

ARTICLE 45 - MERIT PAY

45.1 Merit Pay

For employees in AMAPCEO classifications who are not at the maximum of their salary range:

45.1.1 Effective April 1, 2013, a merit increase for a twelve (12) month work cycle coinciding with the employee’s anniversary date shall be processed in an amount of 0-5% of his or her salary at the discretion of the Employer. An employee’s merit increase for satisfactory performance shall be three percent (3%) of his or her salary.

45.1.2 Where an employee’s performance rating results in a merit increase that will cause his or her salary to exceed the maximum salary for his or her classification, the amount of the merit increase in excess of the maximum salary will be paid out as a lump sum bonus. Such lump sum bonus will not increase the employee’s base salary for any purpose.

ARTICLE 47 - ALTERNATIVE WORK ARRANGEMENTS

47.1 The OPS supports flexible work arrangements and building a flexible work culture demonstrating flexibility in when, where, and how people work. The purpose of the flexible arrangements is to respond to changing workplace expectations of employees of all ages, boost employee engagement and retain high-performing employees and demonstrate the Employer commitment to being a modern Employer.

Alternative Work Arrangements (AWAs) may include but are not limited to: compressed work week, flexible hours with fluctuating start and end times, job sharing, pre-retirement part-time employment, and telecommuting/telework. AWAs may be entered into by mutual agreement between an employee and his or her manager. In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site.

The two disputes read as follows:

Dispute Number 1

In accordance with Articles 15.3.1 and 15.6.1 of the AMAPCEO Collective Agreement, the Association, on behalf of the below-named employees, files a Group Dispute at the Formal Resolution Stage of the dispute resolution procedure.

The Association submits to the following articles have been violated:

• Article 3 - Management Rights
• Article 45 - Merit Pay
• Any other relevant provisions of the Collective Agreement

The employees participating in this group dispute are as follows:

• Rodney Braun
• Harold Gordon Fearn
• Rick Brady
• Elaine Tayler
• Hema Nagar
• William Ford
• Laurie Ioannou
• Evelyn Wayne*

As redress the Complainants seek:

• The performance standard and report submission deadline to remain at 110 days AND/OR
• Additional staffing to help meet the new reduced deadline.

AND/OR

• Any other redress necessary to make the Complainants whole.

Dispute Number 2

In accordance with Articles 15.3.1 and 15.6.1 of the AMAPCEO Collective Agreement, the Association, on behalf of the below-named employees, files a Group Dispute at the Formal Resolution Stage of the dispute resolution procedure.

The Association submits to the following articles have been violated:

• Article 3 - Management Rights
• Article 47 - Alternative Work Assignments
• Any other relevant provisions of the Collective Agreement

The employees participating in this group dispute are as follows:

• Elaine Taylor
• Thomas Andrew
• Hema Nagar
• Andrew Koczerzuk
• Bernie Mueller
• Evelyn Wayne
• Rob Zufelt
• Laurie Ioannou
• Rick Brady
• Harold Gordon Fearn
• Rodney Braun
• Kim Miller
• William Ford

As redress the Complainants seek:

• Increased access to telework option (i.e. greater than one day per week) based on Individual Investigator requests;
• Any other redress that may be deemed necessary in order to make the Complainant whole
• Any other redress necessary to make the Complainants whole.

The Association provided the additional particulars with regard to dispute number one:

This dispute pertains to the performance standard that is listed in the performance development plan of the Office of the Independent Police Review Director (OIPRD) – investigator positions. Previously the performance standard was 110 calendar days for the completion of investigations. The new performance standard as of October 1, 2015 is 90 calendar days. Staff must ensure that the investigations and reports which they are assigned to complete are submitted within 90 days and they must meet this 90 day standard 80% of the time.

There is also no provision built into this timeline for holidays, sick days, vacations or weekends. Regardless of what scheduled activities may be built into the Investigator’s calendars, the standard must be met. The clock may continue to tick whether or not they take a number of weeks’ vacation, they are off for long weekends and statutory holidays, or if they take sick leave for example.

Historically, the compliance rate had been reported to be as low as 24% when the standard was 110 days. AMAPCEO is concerned now that the Investigators will not possibly be able to meet this new reduced standard with any measure of success when meeting the previous standard was almost impossible. (As of now, the Investigators estimate a new low of 15% compliance under the new standard.) In addition, even the Employer has admitted that the complexity of the investigations have increased over time, not decreased. No additional supports have been brought in to assist the Investigators in meeting these more restrictive timelines. There has been no increase in the staffing complement, no general approval for the use of overtime, and no increase in the availability of telecommuting (see Braun et. al. dispute no. 2).

The Police Services Act requires that investigations be completed and then a notice of hearing be issued within six months of retaining the complaint. The Investigators feel that while there are other staff involved in meeting this timeline, the brunt of the timeline crunch has been unfairly and punitively passed on to them.

The Association provided the additional particulars with regard to dispute number two:

This dispute pertains to the details of a telework policy that is in place in the Office of the Independent Police Review Director (OIPRD) for staff in the Investigator position. Up until 2014, staff had the option of working from home multiple days a week. Then in February 2014, the Employer imposed a blanket prohibition on anyone working from home more than one day a week.

On September 22, 2015 staff was advised that the policy of only allowing teleworking from home one day a week would continue. On that date, management also informed the Investigators that there would be a change in their performance standards and the deadline for completing investigations would be shortened (see Rodney et. al. dispute No.1). Previously, staff had 110 days to complete each investigation. The new standard was revised to 90 days as of October 1, 2015. The investigators asked for a change in the policy regarding telework because they felt this would help them in meeting the new performance standard.

The members feel that the restrictions on their ability to work from home are in fact working against their ability to meet the new standard. Staff across the office feel that their productivity is increased via the option to work from home. Not only are commute and travel times eliminated, but the membership unanimously feel that working from home increases their focus and concentration, allowing them to produce reports faster when free from the distractions and the interruptions of the office environment.

Nonetheless staff was told that the work from home option would remain as is to help facilitate increased processing times. But they were already struggling to meet the 110 day deadline under the telework restriction of one day a week, so there is no basis to believe the status quo will provide any benefit to the Employer.

At the Formal Dispute meeting, the Employer said that the main reasons for the blanket policy were i) that when the reports by the Investigators are submitted, there is usually a lot of back and forth on drafts with management, and that it was necessary to give the report back at the Investigator’s desk and to have a face to face conversation about the draft; and ii) if someone is out of the office, this can delay the assignment date of a file.

However, it is AMAPCEO’s understanding that most file assignments come via email anyway and so too could draft reports. The conversation on the draft report could be accomplished via teleconference. This is not a valid operational reason to deny telework arrangements of more than one day a week.

4It should be noted that what is set out above are simply the Association’s particulars. I am including them to provide some background and context. I have not heard any evidence or come to any factual conclusions in this case.

5The parties have agreed that the two disputes are consolidated and should be heard together.

The Employer’s Jurisdictional Objection

6The employer took the position that I did not have the jurisdiction to hear Dispute Number 1, which challenges management’s decision to reduce the time for the completion of an investigation and report from 110 days to 90 days. Counsel argued that the Grievance Settlement Board (the “GSB” or the “Board”) has consistently held that the Board lacks jurisdiction to determine a “free standing” grievance which merely asserts a violation by the employer of the management rights clause. She pointed out that the Board has repeatedly and consistently held that it has no “free standing” jurisdiction to review the exercise of management rights for reasonableness. The Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. In support of her position, counsel referred to:

Ontario Public Service Employees Union and Ministry of Labour (2010) GSB #2006-1204 (Abramsky); Ontario Public Service Employees Union v. Ministry of the Environment (2008) 93 C.L.A.S. 189 (Dissanayake) and Ontario Public Service Employees Union v. Ministry of Transportation (2016) GSB #2014-4973 (Petryshen).

7Counsel for the Association started her submissions by pointing out that Article 3 itself contains a reasonableness standard because it provides that the employer can “make reasonable rules and regulations”. She suggested that the change in standard from 110 days to 90 days was a change in a workplace rule, was impossible to meet, arbitrary and unreasonable. Clearly the Board has jurisdiction to determine if a rule put in place by the employer is reasonable or not.

8In the alternative, if I do not accept that what the employer has done in this case is to put into place an unreasonable rule contrary to Article 3, counsel alleged that the employer has also violated Article 45 of the collective agreement. Article 45 provides for merit pay which is tied to performance. In a meeting on June 6, 2013, it was made clear by management that a failure to meet the performance measures (which was referring to the 110 day standard) would affect an employee’s merit increase. Therefore, we are not dealing with a situation in which the Association is asking the Board to determine a “free standing” grievance which merely asserts a violation by the employer of the management right’s clause but a matter arising either explicitly or implicitly from the collective agreement. Counsel for the Association argued that a breach of the new 90-day rule or standard could also lead to discipline (Article 20) or a denial of vacation (Article 30.9).

9In support of her argument, she referred to KVP Co. Ltd. and Limber and Sawmill Workers Union, Local 2537 (1965) 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson); Ontario Public Service Employees Union v. Liquor Control Board of Ontario (2014) GSB #2013-2803 (Carrier); Ontario Public Service Employees Union v. Ministry of Health and Long-Term Care (2002) GSB #0147/01 (Johnston) and Ontario Liquor Control Boards Employees Union v. Liquor Control Board of Ontario (2004) GSB #2001-0557, 2002-0050, 2002-0321 (Dissanayake).

10Association counsel distinguished the authorities relied upon by the employer on the basis that either the grievance did not specify a clause in the collective agreement which it was asserted had been violated or the issue of jurisdiction had been determined after many days of evidence.

11I agree with employer counsel that the Board has repeatedly and consistently held that it has no “free standing” jurisdiction to review the exercise of management rights for reasonableness. The Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. Nevertheless, each case must be decided on the particular circumstances present and the specific collective agreement language at issue.

12At this point in the process, I do not feel I am in any position to determine if the change in the time for the completion of the investigative process from 110 days to 90 days was a change in a “rule” as contemplated by Article 3 or not. If it was, then I agree that I clearly have the jurisdiction to determine if it is reasonable or not.

13In the alternative, even if at the end of the day I conclude that it is not a rule, it appears, based on the union’s particulars, that the achievement of the new 90-day standard is tied to an employee’s performance review, which is tied to Article 45, which addresses merit pay. The dispute clearly raises the issue of a violation of Article 45. Therefore, the change in standard appears to be an issue that arises either explicitly or implicitly from the collective agreement.

14At the end of the day after the evidence has been completed, I may accept that the position being taken by the employer is in fact correct but I cannot come to that conclusion at this stage of the process. Accordingly, the motion of the employer is dismissed.

AMAPCEO’s Motion Regarding The Order of Proceeding

15Counsel for AMAPCEO argued that as the reasons why the employer took the actions that resulted in the two disputes being filed are exclusively within the knowledge of the employer, it should be directed to call evidence first. It would be fairer and result in a more efficient hearing if it went first with its evidence. It was suggested that it would be highly inefficient to have the Inspectors give their evidence first as they do not know why the employer made the decisions it did. Counsel suggested that there was no prejudice to the employer to proceed first and it did not create a procedural disadvantage. In support of her position counsel referred to: Westfair Foods Ltd. v. U.F.C.W, Local 1000A (2011) 108 C.L.A.S. 268 (Bendel); P.S.A.C. v. Serco Facilities Management Inc. (2010) 195 L.A.C. (4th) 429 (Oakley); York University v. C.U.P.E., Local 3903 (2010) 194 L.A.C. (4th) 438 (Albertyn); Re Toronto (City) and CUPE, Local 79 (2003) 75 C.L.A.S. 59 (Newman); Spar Aerospace Ltd. v. S.P.A.T.E.A. (1994) 1994 CanLII 18632 (ON LA), 40 L.A.C. (4th) 215 (Brown) and Association of Management, Administrative, and Professional Crown Employees of Ontario v. Treasury Board Secretariat (2015) GSB #2013-3291, 2015-1003 (Dissanayake).

16Counsel for the Ministry started by pointing out that the Board’s jurisprudence again was very clear that as a general rule in non-disciplinary cases the union has to go first and establish a prima facie case before the employer is required to establish or bring its defence. In the case before me, there is no reason to depart from the general rule.

17Counsel disagreed with the assertion that the reasons why the employer took the actions that it did are exclusively within the knowledge of the employer. The employer has provided extensive disclosure to the Association and it possesses sufficient information to proceed first. For example, the Association can call evidence with regard to why Inspectors feel the 90-day standard is unreasonable and how it impacts on them. They know their job duties. Counsel agreed that the Association should be given a full right of reply if in listening to the employer’s evidence anything new is heard. It was also pointed out that all of the cases except for one relied upon by the Association were not GSB cases and that the one decision of the Board that did provide for an exception to the general rule contained the observation that the facts in the case were “unique”.

18In reply, Association counsel suggested that every case is different and reiterated her position that in this case the employer had exclusive knowledge why it made the decisions it did and that there was no prejudice to the employer in proceeding first with its evidence.

19I am not satisfied that the Association has made out a case for departing from the Board’s general practice that in non-disciplinary cases the union has to proceed first and establish a prima facie case before the employer is required to establish or bring its defence.

20The Association has to establish that the Employer, in making the decisions that it did that are the subject matter of the two disputes before me, violated the collective agreement. If the Association seeks to assert, for example, that the change from 110 days to 90 days was the imposition of an unreasonable rule, it has to prove it. How it may choose to do so is up to the Association, but it seems to me that employer counsel is correct and to establish that the rule is unreasonable would involve the giving of testimony by one or more of the Inspectors as to the effect the change has had. The same is true for the employer’s change in the number of days an employee can work from home, which is the subject of the other dispute. The inspectors are challenging the change, assert that it has had negative consequences for them and is a violation of Article 47. All of these assertions lie within the knowledge of the Association and the employees who are challenging the changes.

21I do not agree that this is a case where the employer possesses exclusive knowledge such that it should call evidence first. I also do not believe that requiring the employer to proceed first is fair, would streamline the evidence or would result in a more efficient hearing. The hearing will therefore proceed in the normal fashion.

22In the event that there are any difficulties with regard to the implementation or interpretation of this award, I shall remain seized.