Ontario Public Service Employees Union (Robak et al) v. The Crown in Right of Ontario (Ontario Clean Water Agency), 2024 CanLII 29941

GSB# 2023-01192

UNION# 2023-0154-0017

IN THE MATTER OF AN ARBITRATION

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Robak et al)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Kathleen G. O’Neil

Arbitrator

FOR THE UNION

Breshna Duranni Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 19, 2024

Decision

1This decision deals with a group grievance claiming that members of management improperly performed bargaining unit work, and were not following regulations. The matter was dealt with in accordance with Article 22.16 of the collective agreement, and the following are my succinct reasons for the resolution of the matter.

2With the agreement of the parties, I discussed the matter with each party to develop a good understanding of the facts. Counsel provided me with useful documents and pictures, including the union’s particulars, supporting emails and logs, and made submissions as to the applicable law and collective agreement. In determining this matter, I have considered the facts asserted by each side, about which there was no major dispute, and the helpful submissions of counsel.

3The work site in question is a water treatment site in Belle River Ontario, which houses a machine known as the Rotating Biological Contactor [RBC], which was due for replacement. On June 13, 2023, two managers accompanied an outside contractor to the site, for the purpose of doing a site survey, so that the contractor could determine the best way to remove the machine prior to its replacement, for the purposes of preparing a bid on the work. The managers in question knew in advance that the contractor wished to take measurements, but thought that this would be confined to the exterior. On the morning of the site visit, the contractor asked to take measurements of the shaft of the RBC as well, which necessitated the shut-down of the machine. There were no bargaining unit members working on site at the time, and arranging to have someone come from another work location would have involved at least 20 minutes of travel time.

4The managers proceeded to shut-down and lock-out the RBC, and then start it up again once the measurements were taken, involving about 15 minutes in total. This is the work that the union claims should have been done by members of the bargaining unit.

5The employer agrees that in the ordinary course, members of the bargaining unit do this type of work, for example for monthly maintenance. However, the employer’s position is that the work is not exclusively bargaining unit work, and that in any event, the work was so minimal that it should not be considered a breach of the collective agreement, referred to in some of the relevant case law as the de minimis principle.

6Further, the employer argues that there was no safety issue here, or breach of regulations, as the managers assessed the situation, and determined that there was no need for extra safety measures, such as a confined space protocol, given the particular facts of this situation. For instance, the contractor was always behind the safety rail which circles the machine, and did not need to engage with the machine or the surrounding area in any dangerous way to measure the shaft.

7The union disagrees, arguing that if the shut-down had been done properly, in accordance with all regulations and safety procedures, as well as with proper documentation, the work would have taken significantly longer than 15 minutes. Further, the union maintains that the work was significant enough that the de minimis principle should not apply. In any event, even small amounts of bargaining work done by managers can end up eroding the bargaining unit over time, and should not be allowed, in the union’s view.

8Employer counsel relied on Ontario Public Service Employees Union (Butters) v Ontario (Liquor Control Board), 2018 CanLII 77319 (ON GSB) [Carrier] and Ontario Public Service Employees Union (Spicer/Union) v Ontario (Labour), 2012 CanLII 29899 (ON GSB) [Herlich], while union counsel relied on portions of Re Carling O'Keefe Breweries of Canada Ltd. and Western Union of Brewery, Beverage, Winery & Distillery Workers, Local 287, 1987 CanLII 8783 (AB GAA) [Beattie].

9I start with the observation that the cases all turn on their own facts and the language of the collective agreement, such as whether there is a prohibition on managers doing any and all work that is usually done by members of the bargaining unit. Further, there is no over-arching definition of what is an allowable minimal performance of bargaining unit work; it must be seen in the context of the actual facts in each case.

10Having carefully considered everything before me, I have concluded that there was no violation of the collective agreement on the facts of this case. I find that the work here was brief, incidental and spontaneous, given the fact that the managers did not anticipate that the contractor would need the machine to be shut down to take measurements. I appreciate that the union is concerned both that this should have been anticipated as part of outlining the work with the contractor in advance, and that it is not an isolated incident, but I do not have evidence that would lead me to doubt the good faith of the managers in this particular incident or to find that this was part of a pattern of small but frequent incursions on bargaining unit work. In the end, I do not find that the facts of this case rise to the level of threatening the integrity of the bargaining unit or its work. As well, this issue needs to be seen in the context of the fact that the language of the applicable collective agreement does not contain a strict prohibition of management from doing work that would normally be done by bargaining unit members, as in some of the case law on the subject.

11Although the main focus of the parties was on the performance of bargaining unit work, there was also reference in the grievance to not following regulations. The union was of the view that there were further safety precautions that should have been taken, and that the managers did not properly document what occurred. Nonetheless, both parties agreed that licensed individuals are permitted to make assessments of the situation and decide whether additional precautions such as a rescue plan are needed. There is nothing about the facts of which I was made aware that convinces me that the safety assessment of a licensed manager in the facts of this case was unreasonable or dangerous, or in breach of any pertinent regulation. If there was insufficient documentation, I am not persuaded that this amounts to a breach of the collective agreement on the facts before me, although it may be something that management would wish to ensure is accomplished more thoroughly in the future.

12For the above-noted reasons, the grievance is dismissed.