Ontario Public Service Employees Union v. Cybermedix Health Services Limited, 1992 CanLII 6767

[1992] OLRB Rep. March 308

1864-91-U Ontario Public Service Employees Union, Complainant v. Cybermedix Health Services Limited, Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: Melvin I. Rotman and Mustafa Khan for the complainant; W. G. Phelps, Mary Jayne Tome, Ramona Chiang, Marissa Laforteza and Robert Scott Donelley for the respondent.

DECISION OF THE BOARD; March 11, 1992

I

1. This is a complaint under section 91 [formerly section 89] of the Labour Relations Act. The union contends that the respondent company has dealt with “the grievor”, Mustafa Khan, contrary to sections 65 [formerly section 64], 67 [formerly section 66] and 71 [formerly section 70] of the Act. Those sections read as follows:

2. No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express his views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

3. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

72. The grievor's complaint focuses upon two incidents:

(a) on Friday, July 26, 1991 the grievor was informed that he would be moved from the evening shift to the night shift effective Monday, July 29, 1991; and,

(b) on July 30, 1991 Maria Laforteza, a day shift supervisor, gave the grievor (by then on the night shift) certain written instructions about the sequence in which his work was to be done when no supervisor was present.

The grievor alleges that his shift was changed because he is a union activist. The grievor alleges that written instructions were very unusual and therefore "discriminatory". The grievor alleges that both actions were designed to intimidate and penalize him, because he was exercising rights pro­tected by the Labour Relations Act - in particular, filing numerous grievances under his collective agreement and making various complaints to the Ontario Labour Relations Board.

3. The company confirms that Mr. Khan is a union official and a member of the union's negotiating team. The company further confirms that Mr. Khan has made two applications to the Board and is a prolific grievor under the collective agreement. The company admits that it was well aware of the grievor, his union office, and his activities. Indeed, the company advised the Board that Mr. Khan has filed more than three dozen grievances, with a projected litigation cost of more than one hundred and fifty thousand dollars if all of Mr. Khan's complaints proceed to hearing. The company confirms that this is a substantial cost for a bargaining unit that now numbers twenty-five, and a business which currently faces serious financial difficulties. In the company's submis­sion, many of these grievances (and, in part, the present complaint) stem from the fact that the complainant will not accept the legal limits on his work activities established by statute and con­firmed in an earlier arbitration award.

4. The company concedes, therefore, that, from its perspective, the grievor has become something of a nuisance, and that his multiple grievances consume time, energy and money which could be better utilized to address the problems faced by both the company and its employees in a worsening economic environment. But the company maintains that neither of the matters specifi­cally complained of had anything to do with Mr. Khan's union office, his union activities, his griev­ances, or his complaints. The company submits that the shift change was occasioned by the unex­pected resignation of a registered technologist on the afternoon shift, which made it advisable to switch Mr. Khan to the night shift where he would have better technical supervision. The written instructions were a common means of communication between Ms. Laforteza, the day shift super­visor for routine chemistry, and employees on the night shift, including the grievor. The company submits that it was neither unusual nor inappropriate for Ms. Laforteza to leave the grievor written instructions about how his work was to be performed.

II

5. The issues in this case do not raise any novel legal principles, nor is it necessary to con­duct a review of the Board's jurisprudence. It suffices to say that the company acted illegally if its actions were motivated, in whole or in part, by the grievor's union activity or the exercise of rights protected by the statute. (See, for example, the remarks of the Court of Appeal in R v. Bushnell Communications Ltd., et al (1973) 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442, affd at 4 OR. (2d) 288.) Conversely, if the company was acting for bona fide business reasons, untainted by "anti-union animus", it does not matter that the grievor may believe that he has been treated unfairly or even that the company's actions may be contrary to the terms of the collective agreement. The question is one of motive; and this~ in turn, requires the Board to consider both the credibility of the company's explanation for the acts complained of, and the credibility of the witnesses called to provide such explanation.

6. In assessing the credibility of the various witnesses, the Board has taken into account such factors as: the demeanour of the witnesses when giving their evidence; the clarity, consistency and relative plausibility of that evidence when subjected to the test of cross-examination; the apparent ability of the witnesses to resist the tug of self-interest or self-justification in framing their testimony; and what appears to the Board to be most probable in all the circumstances. On that basis, we prefer the evidence of Ms. Chiang, Ms. Laforteza, and Mr. Donelley wherever it is in conflict with that of Mr. Khan. We do not doubt that Mr. Khan was faithfully recounting the facts as he believed them to be; however, his suspicions were simply not in accord with the weight of the evidence.

III

Adjournment

7. This complaint was filed on August 30, 1991. In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties to endeavour to effect a set­tlement. No settlement was reached, and by letter dated October 24, 1991, counsel for the com­pany wrote to the Board, in part:

"On behalf of the Company we request that this matter be scheduled for hearing before the Board without delay. Mr. Khan's perceptions of discrimination appear to be impossible to resolve through the grievance procedures between the parties and based on the multiplicity of other grievances which continue to be destined to arbitration even though identical earlier griev­ances have been denied by arbitrators, it appears that Mr. Khan will not take "No" for an answer from arbitrators either.

Accordingly we request the opportunity to appear before the Ontario Labour Relations Board and have the allegations raised in this Complaint and Mr. Khan's perceptions heard and dis­posed of as soon as possible".

8. The arbitration reference in counsel's letter concerns an award released on August 28,

9. That decision rejected various grievances in which Mr. Khan alleged that he had been unjustly disciplined, improperly denied the opportunity to perform certain job functions, and wrongly denied a promotion to the position of senior technologist. The arbitrator found that Mr. Khan was not a licensed Registered Technologist, and that therefore he was neither qualified for, nor legally entitled to, perform the work functions that he claimed. Nor was it a breach of the col­lective agreement to allocate or rearrange the grievor's work having regard to the legal limitations on what he could do.

10. On November 4, 1991 the Board set this case down for hearing on November 20. By Fax dated November 5, 1991 counsel for the union requested an adjournment because he was not available on that day. Despite its earlier submission that the complaint should be dealt with quickly, the respondent consented to this adjournment request.

11. On November 13, 1991 the Registrar rescheduled this matter to come on for hearing on January 8 and January 27, 1991. These dates too were adjourned on consent.

12. By letter dated December 20, 1991 counsel for the union requested that the Board res­chedule the matter to February 11 and 12, 1992. After further discussion between counsel, it was agreed that they were both available on February 12, 1992, and, if necessary, on March 19, 1992. Those hearing dates were confirmed by the Registrar as late as February 7, 1992, the week before the hearing was to begin.

13. On the morning of February 11, 1992 (i.e. the day before the hearing) counsel for the union advised that he would no longer be acting on this matter, and that the union would there­after be represented by Mr. M. Rotman. On February 12, at the opening of the hearing, Mr. Rot-man requested an adjournment because he had only been retained the day before.

14. Counsel for the respondent opposed this latest request for an adjournment, pointing out that the case had already been adjourned twice, and that the present dates had been specifically fixed in consultation with union counsel. The respondent was present with its counsel and wit­nesses, and was anxious to proceed. The respondent advised the Board that those witnesses would be much more difficult to assemble some weeks later because a significant portion of its facility was closing and the employees would be moving on to other employers. At the very least, it would be inconvenient to bring them to the Board again, and because they had portable professional creden­tials acceptable in other jurisdictions, it was by no means clear that they would even be available to give their evidence.

15. Counsel for the company further submitted that for labour relations reasons, it was important to have the grievor's complaint aired and disposed of, because it was interfering with both the company's business, and the delicate and difficult negotiations surrounding the business closure. There has already been a public demonstration which raised these complaints and accused the company of illegal conduct. The company was concerned that the allegations, if not promptly and definitively answered, might drive away its physician clients and further damage its business. Counsel submitted that the impugned conduct was really quite simple and straightforward; more­over, in accordance with the onus cast upon the respondent by section 91(5) of the Act, the respon­dent was prepared to proceed first and lead all its evidence before Mr. Khan was called upon to reply.

16. In all the circumstances, the Board was satisfied that the case should proceed as sched­uled. We did not think that the complainant's last-minute change of counsel warranted an adjourn­ment where, as here: the case was relatively simple and straightforward; there has been ample time to prepare, choose and instruct counsel; the case has been outstanding for some time; the hearing date was fixed on the specific agreement of the parties; the respondent, at some expense, was in attendance with its witnesses ready to proceed; it might be difficult and inconvenient to assemble those witnesses later; and there are good labour relations reasons for proceeding. Obviously, this is not a case in which there are serious damages or continuing liability, but an outstanding unfair labour practice complaint is an impediment to effective collective bargaining and we accept the company's submission that, in current circumstances, it should have a timely opportunity to answer the allegations which Mr. Khan has raised. The Board did, however, delay the start of the hearing, and extended the lunch period so that Mr. Rotman would have a further opportunity to consult with Mr. Khan, his advisor.

17. It will be convenient to sketch in some background, then deal with the complainant's allegations one by one.

IV

17. Cybermedix operates a medical laboratory which collects human specimens from nearby doctors' offices and conducts various tests on them. The company's operations are regulated under the Laboratory and Specimen Collection Centre Licensing Act, R.S.O. 1980 c. 409, as amended. That Act is administered by the Ministry of Health and stipulates that certain tests must be performed only by registered technologists or employees having equivalent credentials (i.e. for­eign qualifications which are recognized in Ontario).

18. The grievor is not a registered technologist. The grievor is not entitled to perform the functions/tests reserved by regulation to a qualified registered technologist. Nor is the company permitted to assign such duties to him - although the evidence indicates that for training and other purposes it has done so from time to time. The grievor's job classification is that of non-registered technician.

19. The grievor has been on the afternoon shift for some time. In the summer of 1990 his supervisor, Ramona Chiang, wanted to switch the grievor to the night shift, and give day shift pref­erence to a registered technologist with less seniority but superior qualifications. The grievor pro­tested, relying upon Article 8.06 of the collective agreement which then read:

Senior employees "excluding floats", will have the first opportunity of preference of shifts among vacant position(s) within their present job within the job posting period, or among vacant position(s) created by a lay-off.

This clause would not seem to support the grievor's claim, because his "job" as a non-registered technologist is not the same as the "job" of a registered technologist; however, at the time, Ms. Chiang relented and kept Mr. Khan on the afternoon shift. There he remained until July 1991.

20. It has always been controversial to allow non-registered persons, like the grievor, to perform work reserved by regulation to a qualified registered technologist. As early as 1987 the Ministry of Health conducted an inspection of the company's premises and advised, among other things, that non-registered technologists should not be conducting tests that, under the Act, only registered technologists (RT's) were permitted to perform. A similar Ministry inspection was car­ried out in early January 1991. Ms. Chiang was asked by the inspector if non-registered technolo­gists were doing RT work, and, once again, the company was informed that this should not be allowed. The grievor's situation was specifically identified and discussed.

21. By the end of January 1991, therefore, Ms. Chiang was aware of both the Ministry's concerns and the fact that in the fall of 1990 the grievor had failed to pass his RT examinations. In Ms. Chiang's opinion, what the grievor was doing could no longer be treated as transitional train­ing in anticipation of receiving his formal qualifications. He had tried to obtain formal accredita­tion, and had failed to do so. Accordingly, on February 12, 1991 she wrote to her supervisor as fol­lows:

"The recent Ministry of Health Inspection has raised some concern with regards to Mustafa Khan. In the summer of 1990, Mustafa was transferred to the evening shift. During this time he spent six weeks on days covering vacations. Although not qualified as a Registered Technolo­gist, Mustafa was allowed to perform RT duties. This was done to qualify Mustafa to write the CSLT Subject Chemistry exam, in October of 1990.

Despite the effort, Mustafa did not pass his Subject RT exam. In light of this, I feel that Mustafa be returned to a position as a Non-Registered Technologist.

This also raises concern, because there is not a position available for a Non-Registered person in Routine Chemistry. It also violates the Ministry of Health's Regulations on tests performed by qualified personnel only.

In order to comply with CSLT and the Ministry of Health's Regulations, I request that I be allowed to rectify the situation as soon as possible. This would alleviate any possible action that could jeopardize our licence. Immediate action is imperative".

On February 19, 1992 she addressed this letter to the grievor:

"In July of 1990 you were given the opportunity to receive additional training in the Routine Chemistry department.

This endeavour was based on the company's desire to assist you in obtaining eligibility to write the Subject Chemistry exam for the Canadian Society of Laboratory Technologists.

It is our understanding that you indeed did become eligible to write this exam, and did so on October 16, 1990. On January 31, 1991 you advised us that you were not successful in passing the exam.

In light of the above situation, and in view of the Ministry of Health letter dated March 14, 1990 wherein they confirmed your classification as that of a technician as defined by Ontario Regula­tion 845, Section 1(d) (please see attached), you will revert to your former shift, and effective immediately, your training will cease and you will perform only those duties as outlined in the attached job description for a Non-Registered Technologist.

Mustafa, although your training will cease immediately, in order to give you notice for the change in shift we are willing to make your change back to the 11:00p.m. to 7:00am. shift effec­tive on March 11, 1991".

22. But as it turned out, the grievor's shift was not changed in March 1991. In response to the grievor's objections, Ms. Chiang decided that she could reorganize the grievor's departmental duties so as to ensure that they could be monitored by the two part-time RT's then on staff. Between them the two part-time RT's covered the entire 8-hour shift. In Ms. Chiang's view, these changes would accommodate the grievor's desire to stay on the evening shift, yet still ensure a dis­tribution of work that complied with the regulations. So long as one or the other of the two part-time RT's was working on the grievor's shift, his work could be adequately supervised. Thus, for the time being, there was no change in the status quo. The grievor remained on the evening shift.

23. In July 1991 one of the RT's on the night shift unexpectedly resigned, and after examin­ing the needs of the department, the company decided that his position would not be filled. But that posed a problem of work distribution on the evening shift, because there were no longer two RT's to cover that shift, and the grievor was unable to perform the full range of RT functions or work without RT supervision. On July 26, 1991 Ms. Chiang wrote to the grievor:

"As you are aware, Chris Jeswani, R.T. on your present shift resigned this week. We have decided not to fill this position at this time. As a result of this, you no longer will have the super­vision as required under the Ontario Regulation 845, Laboratory and Specimen Collection Cen­ter Licencing Act.

Although the Company's past practice has been to give employees two weeks notice when shift changes are necessary, in this case we are unable to give you this notice. Therefore, effective Monday, July 29, 1991 your shift will change to 11:00p.m. to 7:00a.m. Monday to Friday.

Mustafa, it is unfortunate that this change must be made, however, as you well know, it is imperative that you have a registered technologist on your shift".

24. Ms. Chiang testified that in view of the unexpected resignation there was little alterna­tive to changing the grievor's schedule so that he would continue to work with qualified RT's. She testified that her decision was made for operational reasons - not Mr. Khan's well-known union activities. We accept that explanation.

25. The evidence establishes that the company ordinarily tries to give employees at least two weeks' notice of shift changes, but operational exigencies like the one here, sometimes make that impossible. All of the witnesses confirmed that shift changes are sometimes made at short notice. So did the grievor on cross-examination. We find no basis for the grievor's assertion that he has been singled out in this regard, or that short notice was "discriminatory", or that there was something sinister in the way this shift change was effected. Ms. Chiang responded to an unex­pected operational exigency in the way she considered appropriate, and while the grievor did not like her decision, it was not motivated by anti-union or other improper considerations.

26. Having considered the totality of the evidence, we are satisfied that Ms. Chiang's deci­sion to change the grievor's shift was motivated by bona fide organizational considerations, and was not influenced, in any way, by the grievor' s union activities, his grievances, or his OLRB com­plaints. The grievor has chosen to label "discriminatory" a variety of company decisions with which he disagrees and has suggested that he was being singled out or was the subject of a "witch hunt"; however, there is simply no evidentiary basis for these claims. No doubt the grievor feels himself aggrieved by various company decisions, and honestly believes that those actions are influ­enced by his union activities. But the grievor's belief does not make it so.

27. The same can be said of Mr. Khan's allegation that there was something sinister or dis­criminatory in the written instructions that he received from Ms. Laforteza. There was not.

28. The evidence establishes that, at one time, there were three registered technologists on the night shift. Those RT's decided among themselves how the work should be distributed. By the time Mr. Khan joined the night shift, there were only two RT's left. This provided appropriate technical supervision for Mr. Khan's work, but it disturbed the established work distribution because Mr. Khan was not permitted to do the full range of RT functions. There were also prob­lems about getting the work done. According to Scott Donelley, one of the RT's (and a bargaining unit member), it "took [the grievor] twice as long to do the same amount of work". Mr. Donelley testified that the previous flexible work arrangements could not be maintained, with the result that some of the work was not completed and had to be left over for the oncoming day shift. It was this backlog or spillover which precipitated Ms. Laforteza's instructions to the grievor - and inciden­tally also caused her to raise similar production concerns with the two registered technologists on the grievor's shift.

29. The grievor asserts that a written instruction is most unusual, that it is "discriminatory", and that he has been singled out for special treatment. The grievor maintains that the reason for this "special treatment" is his union activity.

30. These allegations are totally unfounded.

31. The evidence establishes that it is not at all unusual for Ms. Laforteza to communicate with the night shift workers in this way, nor is there anything offensive about the particular instruc­tions in question. They addressed a real productivity problem which was recognized by the griev­or's fellow workers and is related, once again, to the fact that the grievor is not a qualified regis­tered technologist.

32. Mr. Khan quarrels with these instructions (with their implicit criticism), has demanded further written clarification "to be on the safe side" and because "there is no harm in checking", and has penned his own responses. He clearly does not like being told what to do. But having con­sidered the evidence, we are unable to find any basis for Mr. Khan's unfair labour practice allega­tions. Indeed, the uncontradicted evidence is that Mr. Khan is an individual who routinely demands that every communication with management be reduced to writing (or as he told the Board, "put in black and white"). He is suspicious of the company, and the company, wary of grievances, has been inclined to accede to his request and put things in writing. Ms. Laforteza testi­fied that she was mindful of the grievor's attitude when she provided him with written instructions. It is not for this Board to say whether an employer is obliged to communicate with its employees in this way, but, in the circumstances of this casey the company cannot be faulted for doing so.

33. For the foregoing reasons, this complaint is dismissed.