The Crown in Right of Ontario v. The Ontario Public Service Employees Union, 1996 CanLII 11204

[1996] OLRB REP. MARCH/APRIL 284

4101-95-U The Crown in Right of Ontario, as represented by Management Board of Cabinet, Applicant v. The Ontario Public Service Employees Union, Respond­ing Party

BEFORE: Laura Trachuck, Vice-Chair

DECISION OF THE BOARD; March 14, 1996

1. This is an application under sections 36(4) and 38(2) of the Crown Employees Collective Bargaining Act (CECBA). The application was heard on an expedited basis on March 11, 12 and 13, 1996. The applicant requests that the Board vary its order dated May 10, 1995 in which it declared that essential service work for meat inspectors during a strike or lockout would be limited to monitoring meat processing operations to ensure that no illegal slaughter occurred. The appli­cant seeks an order that would permit limited inspection of meat processing operations. The appli­cant is requesting, in the alternative, that the Board amend the essential services agreement negotiated by the parties to provide for more inspectors to monitor the operations if slaughtering is not to occur. In the second alternative the applicant asks the Board to confirm the practice of using "emergency workers" that it instituted on March 5.

Facts

2. Although the detail contained in this decision will be limited due to the expedited nature of these proceedings it is necessary to set out some of the background facts which were dis­closed through the evidence.

3. The province regulates 290 meat slaughtering operations. These are generally small to medium size operations which are responsible for 15% to 20% of the meat processed in the prov­ince. Most of the meat processed through these plants is poultry or lamb as well as some "exotic" meats such as pigeons, rabbits or wild boar. The rest of the meat in the province is processed in federally regulated plants which are generally larger. The Meat Industry Inspection Branch of the Ministry of Agriculture, Food and Rural Affairs is responsible for enforcing the governing legisla­tion of this industry which is the Meat Inspection Act (Ontario). The Meat Inspection Act provides, among other things, that the slaughter of any animal which has not been inspected by an inspector is prohibited and that no one shall operate a slaughtering plant without a license.

4. The parties commenced negotiations for the essential services agreements required by CECBA in the autumn of 1994. As part of this process the parties participated in a consultation before the Labour Relations Board with respect to essential services by meat inspectors in May 1995. The Director of the Branch testified that he participated in some of the essential services negotiations and clearly expressed the view that if no inspection service was offered there would be a risk that some of the meat processing plants would engage in illegal slaughter. As a result of the consultation process the Board ordered that no inspection services would be provided during a strike or lockout. As no inspection services would be offered the provincially regulated slaughter­ing operations would be closed down. The Board did however declare that "the Meat Industry Inspection Service" is an "essential service" and directed that 26 meat inspectors be designated essential to monitor sites to ensure that no illegal slaughter was occurring. There are 13 areas in the meat inspection programme and two essential service workers would be assigned to each area to work in teams for their health and safety. 16 of the essential workers would be from the bargaining unit and 10 were management "offsets". Subsequently the parties negotiated and entered a num­ber of essential services agreements including one in June, 1995 which confirmed the content of the Board's order.

5. The Ministry made a conscious decision not to inform the operators of the content of the essential services agreement until February 19, 1996, after the bargaining unit had voted in favour of a strike. On that date the operators were advised by letter that no meat inspection ser­vices would be provided in the event of a strike. Attached to that letter was a list of questions and answers. One of the questions and answers described the fines under the Meat Inspection Act which are $2,000.00 for a first offence or imprisonment up to 6 months, and $5,000.00 for a second offence and imprisonment up to one year. The next question on the page was "Will illegal slaugh­ter infractions be dealt with as a licensing issue?" and the answer was "No. It will lead to prosecu­tion in court". The Director testified that the Ministry decided not to inform the operators of the potential effect of a strike before February 19 because it did not want to harm their business unnec­essarily if a strike did not occur. The Director also explained that he advised the operators that they might be subject to prosecution if they slaughtered illegally but that it would not affect their licenses because he did not think they should be subject to two penalties for the same offence. One of the operators sought an injunction with respect to the Board's order and was unsuccessful.

6. The bargaining unit which includes the meat inspectors went on strike on February 26, 1996. The essential service inspectors were instructed to visit all of the plants and obtain or secure the Ministry's stamps and tags which are used to identify meat which has been inspected. Nine stamps have not been secured from plants which continue to refuse the inspectors entry. No charges have been laid as a result of this obstruction of the inspectors and no licenses were revoked. Surveillance was conducted on these operations and as no suspicious activity was detected surveillance has been removed. Since the strike began, the meat inspection programme Manager and the Director have received reports of suspicions of illegal slaughter on a number of occasions. These reports have been investigated and six are the subject of further investigation with a view to the possibility of laying charges. The Board heard evidence of only one incident of allegedly uninspected meat being found in a retail establishment and that was within two days of the commencement of the strike before the stamps were secured.

7. The meat inspectors are responsible for inspecting the plants and slaughtering opera­tions but they are not responsible for visiting retail establishments or wholesalers to ensure that meat has been inspected. That is the function of inspectors in the regional health units. There was no evidence presented to the Board that the health unit inspectors have found any uninspected meat entering retail establishments except the one incident referred to above to which they were directed by the meat inspectors. Investigation of any suspected illegal activity is the responsibility of 8 investigators, not the meat inspectors, although the meat inspectors provide some initial assistance. The investigators can be called in as needed according to an emergency services protocol negotiated by the parties. The meat inspectors however have the authority to detain meat and will participate in its seizure if necessary.

8. On March 5 the meat inspection programme Manager and the Director of the Branch were of the view that they had an insufficient number of essential service workers monitoring the plants due to the number which were involved in surveillance and investigation of suspected illegal activity. They therefore called in 13 more teams on the basis that there was an emergency. By March 11 only three "emergency" teams were still being used. The parties had not negotiated an emergency services protocol with respect to the meat inspectors.

9. The owner of one of the plants who also claimed to represent an association of indepen­dent poultry producers testified in this hearing. He explained that his business involved negotiating with poultry growers approximately every 10 weeks to buy their chickens which he would then slaughter, package and market. The growers are subject to a marketing board which will penalize them if they produce too much volume, that is, if their chickens get too big. It is therefore incum­bent upon the operator to take delivery of the chickens at the time he has undertaken to do so. The witness had arranged to have his chickens slaughtered at a federal plant but he explained that he was losing money by doing so. He also processes rabbits which he has arranged to have slaugh­tered at a federal plant by his own employees as the federal plant did not have the expertise. The witness described the financial hardship he and his colleagues are experiencing and their concern that they are losing customers. He explained that if he was provided with partial inspection service as proposed by the applicant, he could supplement it by coordinating with other operators who would also be receiving service and by continuing to use the federal plants. In this way he believed he could carry on his business during the strike.

Decision

The applicant's request to vary the Board's order of May 10, 1995

10. The applicant is asking the Board to reconsider and modify its order of May 10, 1995 in view of what it alleges are "changes in circumstances". The applicant is asking the Board to order that 70 bargaining unit members be declared essential to provide for limited inspection of meat processing operations. This would have the effect of allowing the slaughtering operations at pro­vincially licensed premises which have been shut down by the strike to reopen.

11. The responding party denies that there has been a change in circumstances and resists any variance of the Board's order. It argues that there is no danger to life, health or safety but if there is, that the Ministry must use the tools it has at its disposal to procure the safety of the public before this order should varied. It suggests that charges should be laid against non-compliant oper­ators and licenses should be revoked as those penalties would send a clear message to the opera­tors of the serious consequences of their actions.

12. The Board finds that there has not been a change in circumstances and denies the request to vary its order of May 10, 1995. The applicant claims that there are three changes in cir­cumstances: the level of coverage has significant gaps; there is evidence of illegal activity; and there is economic pressure on the operators which may motivate them to engage in illegal activity. The Board does not find that the evidence disclosed that there were significant gaps in coverage by the essential service workers and will refer to that allegation in more detail in the following section. It is not a change in circumstances that illegal activity has been detected. The likelihood of such activity was known to the parties at the time of the consultation and negotiation of the agreement and is obviously the reason for ordering monitoring as an essential service in the first place. The economic hardship being experienced by the operators and its potential impact must also have been within the parties contemplation at the time of the consultation and negotiation of the agree­ment. I note that this hardship might have been mitigated somewhat if the operators had had more notice that they would be closed down in the event of a strike and could therefore have considered that in entering contracts for the purchase of animals which would be ready for slaughter during the strike period. They would also have had more time to make arrangements for slaughter in fed­eral facilities.

13. The purpose of an essential service agreement or a Board order with respect to such an agreement is to provide services "necessary to enable the employer to prevent danger to life health and safety". There is no evidence that the Board's order is preventing the employer from providing such service. The applicant argues that providing 25% of its usual inspection service would take enough pressure off the operators to ensure that they will not be tempted to operate illegally. The applicant's proposal is based on little more than a theory. There is no evidence or particular reason to believe that an operator which would be prepared to slaughter illegally because it is getting no inspection service would not do so if it is getting some service but not enough to meet its financial needs. It is not appropriate to vary a Board order arrived after consultation with the parties on the strength a gamble based on the Ministry's best guess about human nature.

The applicant's request to amend the essential services agreement

14. The applicant is requesting under s.38(2) of CECBA that the Board amend the essential services agreement to provide for 34 more essential service teams to monitor for illegal activity. The applicant claims that the present number is insufficient to "enable the employer to prevent danger to life, health and safety". The applicant also requests that the agreement be amended to provide that all of the original 26 essential service workers be from the bargaining unit thereby releasing the 10 management offsets. The applicant argues that that result is dictated by s.38(4) of CECBA any time the Board amends an essential services agreement. The effect of granting the applicant's request would be that 50% of the bargaining unit inspectors would be working during the strike.

15. The responding party opposes the amendment of the agreement and argues that more designated essential workers are not necessary. It argues that there is no evidence of a danger to life, health and safety and that the Ministry should use the prosecution and licensing tools at its dis­posal to discourage operators from committing illegal slaughter before the complement should be increased.

16. The Board denies the applicant's request to amend the essential services agreement. There was no evidence presented to the Board which indicated that there had been any difficulties in coverage which would require a permanent accretion to the essential services complement. Any problems which the applicant has identified were of a temporary nature arising from the fact that the monitoring by the designated complement was working, that is, they were detecting potentially illegal activity. The Board notes that there was no evidence that any steps were taken by this Min­istry or any other to alert retailers or wholesalers to be particularly vigilant to ensure that any meat received, sold or purchased has been stamped as inspected. If there was a very real concern by the Ministry about the public's health and safety that would have been an obvious step to take.

The applicant's request to continue using bargaining unit meat inspectors as emergency workers

18. There was no emergency service agreement negotiated between the parties and the responding party argued that the applicant was not entitled to call in the "emergency teams" as it did. The responding party has not however, filed an application of its own and is not requesting that the Board take any action with respect to the applicant's invocation of emergency procedures. It is therefore unnecessary for the Board to determine whether the applicant violated either the essential services agreement or CECBA by its conduct. It does appear however, that there is a problem in providing the essential monitoring service described in the Board's order in some cir­cumstances where the essential service team is required to spend time in an investigation. The Board's order of May 10, 1995 indicates that, as well as monitoring, the essential service workers are to "provide the necessary activities through the appropriate channels of the Branch" when vio­lations are detected. If those activities do require an inspector or a team to spend a significant period of time at one plant either because they have good reason to believe that an illegal slaughter might occur or they have to investigate something that has already occurred, it is appropriate that another team or inspector be called in to ensure that the rest of the essential service, i.e. the moni­toring, is being carried out.

19. The investigators are subject to an emergency services agreement and it is appropriate to consider a suspected illegal slaughter as an emergency. It is of course vital that any meat that has been slaughtered illegally be detained and potentially that it be seized. Those are functions exer­cised by the meat inspectors. The inspectors may also be involved in other aspects of an investiga­tion since they are familiar with the plants and are likely the individuals who identified the suspi­cious circumstances in the first place. The Board therefore directs the parties to meet and negotiate an emergency services agreement prior to 5:00 p.m. Tuesday, March 19. Since the investigation of potential illegal activity and the detention of product is the "emergency" it is probably consistent with the essential services agreement that the emergency workers be brought in to perform that function. However, it may make more sense for the workers who have identified the situation to remain involved. That is an issue for the parties to work out. The agreement should also identify a threshold number of hours that an essential worker would have to be involved in an investigation for an emergency worker to be called in as it is only contemplated that emergency workers will be used when other activities are consuming sufficient time that a designated essential worker is unable to perform his or her monitoring duties.

20. The Board therefore makes the following order:

a) the parties are directed to negotiate an emergency services protocol of the meat inspector consistent with Part C of the Conditions for 1994/1995 OPS­OPSEU Essential Services and Collective Agreement by 5:00 p.m. Tuesday March 19.

b) the agreement must identify the designated emergency workers and the order in which they are to be called in

c) the agreement must specify the threshold amount of time an essential ser­vices inspector would be required to divert form the monitoring function before it is considered necessary for an emergency worker to be called in

21. The applicant may continue to deploy emergency workers as it has been doing until the parties enter the emergency services agreement specified above. The Board will remain seized with respect to any matters arising from this award. At the request of the parties the Board will also remain seized with respect to any further matters related to this dispute.