Ontario Public Service Employees Union (Gray et al) v. The Crown in Right of Ontario (Ministry of Transportation), 2021 CanLII 95692

GSB# 2019-2467

UNION# 2019-0506-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gray et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Georgina Watts Morrison Watts Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

September 7, 2021

DECISION

1This decision deals with one of the allegations advanced in a grievance filed by the Ontario Public Service Employees Union (the “Union”) on behalf of 144 Transportation Enforcement Officers (TEO). The allegation is that the Employer is in violation of article 10 of the collective agreement concerning compressed work weeks (CWW). On the merits, the Union asserts that there has been no compressed work week arrangement (CCWA) in place since December 2014 and hence, since that time, the Employer was required to schedule the TEOs according to the regular hours of work. The fact that the Employer scheduled the TEOs according to an expired CWWA and not the regular hours of work resulted in the TEOs working hours for which they should have been paid overtime pay.

2On the merits, the Employer submits there was always a CWWA in place. The Employer, however, advances two preliminary issues. First, the Employer submits that the Union is attempting to expand the scope of the grievance as the grievance makes no mention of overtime; rather, the grievance seeks: “A firm commitment to negotiate a new (Article 10) Compressed Work Week.” The Employer further submits that the Grievance Settlement Board (GSB) has no jurisdiction in respect of CCWAs and could not order the Employer to enter into a CWWA.

3Both preliminary issues and the merits of the case were argued on September 7, 2021. The evidence was adduced by way of an Agreed Statement of Facts (ASF) and the documents referred to therein. No oral evidence was called.

Preliminary Argument #1: Expansion of the Scope of the Grievance

4The grievance, filed on November 15, 2019, reads as follows:

We grieve that the employer has violated the terms of the Collective Agreement under, but not limited to, Article 2 - Management Rights, Article 3 - No Discrimination, Article 7.1.1. - Pay Administration, Article 9 - Health and Safety, Article 10 - Compressed Work Week, Occupational Health and Safety Act, Respectful Workplace Policy, Ontario Human Rights Code, The Charter of Rights and Freedoms and applicable policies that relate to Officers Health and Safety and job performance expectations by failing to fulfill its obligations with respect to Employment Conditions.

SEE ATTACHED FOR CONTINUED 'STATEMENT OF GRIEVANCE'

POISONED WORK ENVIRONMENT GROUP GRIEVANCE continued...

TRANSPORTATION ENFORCEMENT OFFICERS

Page 2 of 2

We grieve that the employer has violated the terms of the Collective Agreement under, but not limited to, Article 2 - Management Rights, Article 3 - No Discrimination, Article 7.1.1. - Pay Administration, Article 9 - Health and Safety, Article 10 - Compressed Work Week, Occupational Health and Safety Act, Respectful Workplace Policy, Ontario Human Rights Code, The Charter of Rights and Freedoms and applicable policies that relate to Officers Health and Safety and job performance expectations by failing to fulfill its obligations with respect to Employment Conditions. Mismanagement of TEOs, additional responsibilities and increased risk over the years has left the employees with no true enforcement leadership, vulnerable and at risk. The ongoing disregard for the well-being of its Transportation Enforcement Officers has perpetuated and grown over several years creating a culture, a climate of mistrust and lack of credibility of the employer through its actions and has resulted in a poisoned work environment. The employer's reluctance and resistance over the course of 5 years to negotiate and act in good faith and in a timely manner regarding the Special Case coupled with false information and timelines which have contributed to a Poison Work Environment including but not limited to, unprecedent low morale, increased sick days and overall destruction of the employee's mental health.

SETTLEMENT DESIRED:

Full redress including but not limited to, a definitive action from employer to address the ongoing Health & Safety concerns {Risk Assessment Report Recommendations). A firm timeline and commitment to finish the Appendix 7 - General Wage Increase with retroactive compensation from the date of the Special Case submission in 2014. A firm commitment to negotiate a new (Article 10) Compressed Work Week, A committee established to negotiate a fair and less onerous performance work plan focusing more on quality of service (not quantity) and officer safety. Finally, a clear respectful workplace where the frontline officers are treated with respect, dignity and value and any other settlement that the arbitrator deems to make the Transportation Enforcement Officers of Ontario feel whole again.

Emphasis in bold added

5As stated above, the Employer submits that the grievance makes no mention of overtime; rather, the grievance seeks “A firm commitment to negotiate a new (Article 10) Compressed Work Week.” The Union argues that the grievance does concern the nonpayment of overtime and submits the issue of overtime is set out in its particulars.

6The caselaw on the issue of the expansion of a grievance is clear and uncontroverted. The following quote from Ontario Public Service Employees Union (Louis) v Ontario (Training, Colleges and Universities), 2019 CanLII 78767 (ON GSB), provides an overview.

ii) Determining whether the events particularized amount to an expansion of the grievance

9An arbitrator’s jurisdiction is limited to determining the issues that are raised by the grievance. Issues raised in a grievance are referred to as “in-scope.” The Union cannot add additional issues to the grievance that has been filed. Where there is an attempt to add issues to a grievance, it is said that the Union is attempting to “expand the scope of the grievance”; the Union is attempting to add “out of scope” issues to the grievance.

10When an issue as to whether the Union is attempting to expand the scope of the grievance arises, it must be determined whether or not the issue in dispute falls within the scope of the grievance as referred to arbitration. The leading case in this area is Re Blouin Drywall Contractors Ltd. And Carpenters Local 2486, (1975) 1975 CanLII 707 (ON CA). The following summary of the principles to be applied when determining the scope of a grievance is contained in Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake):

14. I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of “liberal reading”, permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

11This Board in Re Labanowicz 2012-3224 etc. (Lynk) dated September 12, 2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22:

22. When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra.

7Having regard to the foregoing, my jurisdiction is limited to the grievance that the parties referred to arbitration. There is no evidence before me that would cast light on the parties’ understanding of the issues raised in the grievance such as exchanges during the grievance process. The Union points to its particulars in support of its argument that the grievance relates to overtime, however, particulars cannot expand the scope of a grievance and, where they do, the Employer can have them struck.

8The only evidence I have as to the scope of the grievance is the language of the grievance itself. The grievance makes no mention of overtime. The article that is referenced in the grievance in connection with the issue before me is article 10. Article 10 speaks to the Employer’s ability to enter into a CWWA; it makes no mention of overtime. The overtime article of the collective agreement is not referred to in the grievance. The remedy sought in the grievance is that the Employer make “A firm commitment to negotiate a new (Article 10) Compressed Work Week.” There is no remedy sought in respect of overtime pay.

9There is no evidence that the grievance relates to overtime, and I hereby find that it does not.

Preliminary Argument #2: The GSB’s Jurisdiction

10The Employer relies on Ontario Public Service Employees Union (Sutherland) v. Ontario (Labour), 2008 CanLII 70535 (ON GSB) in support of its position the GSB has no jurisdiction to direct the Employer to negotiate a CWWA with the Union. In Sutherland, the Employer had entered into CWWAs with numerous employees but refused to grant a CWWA to the grievor. The grievance alleged differential treatment and sought a CWWA for the grievor. After reviewing prior cases on point, the Board summarized the law as follows:

The authorities reviewed above establish two propositions with respect to CWW arrangements. First, that article 10.1 does not impose any obligation on the employer to enter into a CWW arrangement with any employee. Second, article 10.1 “… does not provide for a discretion to be exercised by the employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et al, set out at p.7 (supra). It follows, therefore, that the employer’s decision to negotiate or not negotiate a CWW arrangement is a matter of a management right to “among other things, manage its business as set out in article 2.” (Re Emmett), (supra), at p. 11). Therefore, this Board has no jurisdiction to review the employer’s exercise of a management right, in the absence of a claim that such exercise (in this case the non-exercise) of management rights affected a right of the grievor under the collective agreement. Since the union has not made such a claim. Nor has it alleged bad faith. In the circumstances the Board lacks jurisdiction. Therefore, the employer’s first motion succeeds.

11There is no allegation in this case that the Employer’s failure to sign a written CWWA in respect of the TEOs affected a right of the grievor’s under the collective agreement. Nor is there an allegation of bad faith. Accordingly, the Board lacks jurisdiction over the grievance.

12Having regard to the Board’s lack of jurisdiction, the portion of this grievance in respect of Article 10 seeking “A firm commitment to negotiate a new (Article 10) Compressed Work Week” is hereby dismissed.