International Union of Operating Engineers, Local 793 & Labourers’ International Union of North America, Local 183 v Earth Boring Company Limited

IN THE MATTER OF AN ARBITRATION BETWEEN:

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 & LABOURERS’

INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183

(“the Unions”)

EARTH BORING COMPANY LIMITED

(“the Employer” or “Earth Boring”)

and

GREATER TORONTO SEWER AND WATERMAIN CONTRACTORS ASSOCIATION

(“GTSWCA” or “the Association”)

Appearances for the Unions:

Steven Sagle, Counsel Local 793

Bob Brooks, Local 793

Andrew Black, Counsel Local 183

Pat Sheridan, Sector Coordinator Local 183

Declan Kiernan, Business Representative Local 183

Appearances for the Employer and the Association:

Richard J. Charney, Counsel

Lauren Ditschun Co-Counsel

Gene Woodbridge, CEO Earth Boring Company Limited

John Currey, Vice President-Operations, Earth Boring Company Limited

Patrick McManus, Executive Director GTWSCA

A hearing in this matter was held at Toronto, Ontario on June 13, and December 6, 2018, February

20, May 24, and June 13, 2019, and by videoconference on September 25, 29, and 30, 2020,

October 21, and November 25, 2020, and January 26, March 30, and April 1, 2021.

AWARD

1.

This decision addresses grievances brought by the Unions to challenge the Employer’s

introduction and use of “ExakTime”, a mobile application characterized by Earth Boring as an

electronic timesheet.

2.

Earth Boring has been in business for more than seventy years, identifying itself as

“Trenchless Since 1947”. It engages in micro-tunnelling, auger boring, directional drilling, and

pipe ramming on multiple sites and using a wide range of equipment — some very heavy, some

very sophisticated, together with cranes and vehicles that might be regarded as commonplace in

heavy construction. While its workforce is susceptible to fluctuations, the consensus appeared to

be that the body of bargaining unit personnel at any one time was likely to be in the order of eighty.

3.

International Union of Operating Engineers, Local 793 (“Local 793”) is party to a

collective agreement with the GTSWCA of which the Employer is a member company.

Labourers’ International Union of North America, Local 183 (“Local 183”) is subject to a

collective agreement between the GTSWCA and a Council of Trade Unions acting as the

representative and agent of Teamsters Local 230 and Local 183.

4.

On October 24, 2017 — during the trial period for the Employer’s introduction of

ExakTime — Local 793 grieved that the Employer had “violated the privacy of its employees by

enforcing unreasonable management rights, by asking them to install an application that uses

GPS/photos on their personal communication device to track their whereabouts”. Local 793’s

requested remedy was that the Employer “immediately cease and desist in its intent on forcing its

employees to install and use an application on their personal communication device that violates

their rights and freedoms.”

5.

Local 183 initiated its grievance two weeks after the introduction of ExakTime; on

November 14, 2017 it grieved on behalf of itself and its affected members as follows:

It is the Union’s position that the Employer has violated Article 2 – Recognition and Article

4 – Management Rights of the Collective Agreement by, among other things, the Employer

implementing and/or demanding that bargaining unit employees be subject to on-going

surveillance by electronic monitoring (the “APP Policy”). In any event the Employer has

exercised its managerial rights in a manner which is unfair, unreasonable, arbitrary,

discriminatory and/or in bad faith. The App Policy amounts to an invasion of privacy

(Statutory and tort based) any such rule of policy [sic] is unlawful, unreasonable and

contrary to the Collective Agreement. The Employer has thereby violated each and every

other relevant Article, Schedule, Letter of Understanding, duty and agreement, express or

implied, forming part of the Collective Agreement.

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6.

The formal grievances were specific in asserting violations of employees’ privacy

rights; however, the scope of the complaints was expanded to include allegations that the use of

ExakTime also constituted violations of the Employer’s safety obligations under the Unions’

collective agreements and the Occupational Health and Safety Act.

7.

In response to a pre-hearing request for particulars by counsel for the Employer and the

Association, Local 183 added the following:

The Employer is well aware of the case it has to meet. At risk [sic] of re-stating the obvious,

the Employer purports to invade employees’ personal phones with unfounded, unsecure,

malicious spyware for some as yet unspecified, unjustified, and surely unjustifiable

purpose. That it further purports to mandate daily, repeated cell phone “selfies” in the

service thereof is, on its face, grossly inappropriate. For the sake of clarity and

completeness it is also patently unreasonable, unconscionable, unsafe, arbitrary, tortious,

unduly invasive and violative of privacy, contrary to Charter principles, in violation of

Articles 2, 4, 11 and 14 of Local 183’s Collective Agreement, and constitutive of bad faith

in policy, practice, implementation and otherwise.

8.

I was not apprised of any response Local 793 might have made to the Employer’s

request.

9.

I note now that I heard nothing to establish a violation of Article 2 - Recognition of

Local 183’s collective agreement and, while there was evidence to suggest that following protocols

associated with the ExakTime application might impinge on an employee’s full enjoyment of

rights secured by Article 14 – Work Breaks and Lunch Breaks, there was no foundation laid for

any relief in response to the mention of that article in the response to the request for particulars.

10.

Article 4 of both collective agreements is a conventional statement of management

rights. The two articles have small differences not material to the issues raised by the parties. The

following is the language of the Local 183 provision:

4.01 The Council agrees that it is the exclusive function of each Employer covered by this

Agreement:

a) To conduct its business in all respects in accordance with its commitments and

responsibilities, including the right to manage the jobs, locate, extend, curtail or

cease operations, to determine the number of workers required at any or all

operations, to determine the kinds and locations of machines, tools and equipment

to be used and the schedules of production, to judge the qualifications of the

employees and to maintain order, discipline and efficiency;

b) To hire, discharge, classify, transfer, promote, demote, layoff, suspend or otherwise

discipline employees, provided that a claim by an employee that he has been

discharged, suspended, disciplined or disciplinarily demoted without reasonable

cause shall be subject to the provisions of the Grievance Procedure;

c) To make, alter from time to time, and enforce reasonable rules of conduct and

procedure to be observed by the employees;

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d) It is agreed that these functions shall not be exercised in a manner inconsistent with

the express provisions of this Agreement.

11.

The reference to Article 11 of Local 183’s collective agreement and the allegation of

the Employer’s requirements being “unsafe” were relied upon by the Unions for their maintaining

that safety, in addition to privacy, was a foundational issue for the cases made against the

Employer’s use of ExakTime. The safety-based objections were addressed in opening statements

and in the evidence led by the parties.

12.

The Unions referred to the provisions of their agreements regarding “Safety, Sanitation

and Shelter”.

13.

Article 11.12 of Local 183’s collective agreement in effect at the initiation of these

proceedings appeared under that heading and read as follows:

No entertainment devices — such as cell phones, Blackberries, iPods, and/or similar

devices — shall be used during working hours; nor shall they be turned on, except during

lunch breaks, regular work breaks, job-site emergencies, or when prior approval is obtained

from the employee's supervisor.

14.

Article 18.14, the comparable provision in Local 793’s collective agreement at the

initiation of these proceedings, read as follows:

No entertainment or personal communication devices such as cell phones, smart phones,

MP3 Players, Blackberries, iPods and/or similar devices shall be used during working

hours, nor shall they be turned on, except during lunch break, regular work breaks, job site

emergencies, or where prior approval is obtained from the employee's supervisor.

Proceedings

15.

The first day of the hearing was occupied with opening statements, the receipt of some

of the documents that are now part of the record, and submissions about preliminary matters that

resulted in the first of four interim awards. As that first interim award was referred to in argument

and included references that are helpful in framing the dispute and its disposition, I set out here

some of the comments from that June 28, 2018 decision:

10.

At this stage in the proceedings, there has not been a full exposition of the

operation, use, capabilities and parameters of the ExakTime technology that the Employer

put into place and uses over the objections of the Unions. The representations made in the

parties’ opening statements and their submissions on the preliminary issues left me with

the following summary appreciation of the situation – an understanding that is not at all

precise or determinative of the merits of the parties’ competing positions yet to be litigated:

• The Employer has bargaining unit employees working at a number of sites at which

it conducts “high expertise” tunnelling.

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• Late in 2017 the Employer substituted ExakTime, a third-party application, for its

previous electronic web-based timekeeping system – a system that it says was

subject to human error and open to “buddy punching”.

• Since ExakTime “went live” each employee is required to “clock in” and “clock out”

via mobile telephone. The employees do so by using the ExakTime application

downloaded to their mobile devices to take a photo – a “selfie” – that is uploaded to

record both the time and the individual’s precise location at that time.

• Employees repeat the process when they stop for breaks, resume work after breaks,

and leave the work site at the end of their shifts, with the result that each employee

might be uploading data in real time at least eight times over the course of a shift.

• In addition, the ExakTime technology as utilized by the Employer has a feature

referred to as “Geo Fence” by which the Employer is able to define the limits of each

of its work sites for the purposes of the application. The “Geo Fence” feature permits

the tracking of employees within the boundaries of a work site.

• The Employer asserts that there is no tracking of employees beyond the “Geo Fence”

and that employees can turn off the ExakTime application at the end of their shifts

with the result that the technology could not be used to allow employees to be

followed.

• The Unions acknowledge that representation, but are skeptical and concerned that

employees might be tracked beyond the “Geo Fence”. In particular, the ExakTime

website is said to assert that a “Geo Tracker” feature allows employees to be tracked

“in real time from anywhere” and to be captured in “detailed location reports”, with

their data “stored in the cloud for easy access”.

• The Employer maintains that it has not included the “Geo Tracker” feature in the

version of the technology it uses.

• One of the concerns expressed by the Unions is that employees have no knowledge

and no assurances of limitations on access to the data that are uploaded using the

ExakTime application.

• The Employer says that the data are accessible only by its administrators through an

encrypted portal. Those administrators are the Employer’s personnel who also have

access to employee files.¹

Several of the factual assertions reflected in that summary were modified in time and some were

contested by the parties through to the end of their final submissions. By way of an example of the

former, the Employer made a change in September 2018 to delete the requirement of employees’

taking their photographs before and after breaks, limiting the requirement to taking photographs

at the start and the end of their shifts, and reducing the daily total from eight to two images. The

dispute about the geo-tracking capabilities of the application and their use by Earth Boring

persisted to the end.

1

I now understand that the correct references in the ExakTime lexicon are to “GeoFence” and “GeoTrakker”.

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16.

I heard the evidence of ten individuals who were or had been employed in the bargaining

units; Declan Kiernan, Local 183 Business representative; a privacy expert, John Wunderlich; an

“Enterprise & Solutions Architect” employed by Local 183, David Costa; Gene Woodbridge, the

Employer’s CEO; and Patrick McManus, Executive Director of the GTWSCA.

17.

Between the second and third hearing days, the parties met at the offices of the

Association on January 14, 2019 for a demonstration of the ExakTime application and to afford

the Unions, Mr. Wunderlich, and Mr. Costa an opportunity to ask questions about the technology

and its use by the Employer. In addition, the parties cooperated to the extent of Earth Boring’s

facilitating the acquisition — at the Unions’ cost — of data from ExakTime Inc. for review and

analysis by Mr. Costa. His report was valuable in advancing my understanding of the ExakTime

application and is excerpted at length below.

18.

Eight bargaining unit employees were called late in the proceeding to speak to their use

of or familiarity with other applications that Mr. Woodbridge had referred to in his evidence.

19.

In addition, differences developed late in the hearing arising from the evidence of Mr.

Woodbridge and competing views of what had been communicated at the January 2019

demonstration — resulting in the calling of Messrs. Wunderlich and Costa in reply.

20.

The parties’ closing submissions occupied the last two days of the hearing. Of necessity,

my references to those will be abbreviated given the volume of evidence and authorities counsel

canvassed in detail. After the close of the hearing, counsel provided me with copies of the materials

they had used in making their submissions and I have referred to those extensively, in addition to

reviewing the notes I had made as they spoke.

The ExakTime Application

21.

ExakTime Inc. is a California entity. None of the parties called anyone associated with

the corporation to testify; however, witnesses and counsel referred to marketing and other material

generated by ExakTime, as well as to their understanding of some of its relationships and practices.

22.

In the absence of more direct and precise information from ExakTime Inc., documents

produced in the hearing provide an insight into the functions and attributes of the ExakTime

technology, as well as what employees have been told about the application and its use.

23.

The ExakTime application as implemented by Earth Boring required the use of

smartphones or comparable devices with GPS that would permit employees to take photographs

of themselves and fix their locations when doing so.

24.

The evidence was that employees downloading and starting their use of ExakTime

would be invited to accept the privacy policy published by ExakTime Inc. — without the

acceptance of which the application is not available. The text of that was included in the documents

produced by the Employer. It began with the following:

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Protecting your privacy is important to ExakTime. We strive to keep your personal

information confidential. … By accessing the Sites [inter alia ExakTime mobile sites and

applications] on any computer, mobile phone, tablet, or other device . . . or otherwise

interacting with ExakTime, you agree to the terms of this Privacy Policy. If you do not

agree to the policy, please do not use the Sites. (emphasis in the original)

25.

The Policy also stated:

We collect information about you in several ways. For example, we might ask you or your

employer for your name, photograph, address, phone number, mobile phone number, or e-

mail address when you . . . download our app . . . or otherwise interact with us. . . . Also,

when you use the ExakTime Mobile-Time Clock Application and other products or devices,

we might collect information about your GPS location data and your mobile device,

including a unique identifier for your device. For the avoidance of doubt, location data is

only collected when the ExakTime Mobile-Time Clock is in use.

. . .

From time to time, we may establish marketing relationships with other people or entities

whom we believe to be trustworthy and whom we have asked to confirm that their privacy

practices are consistent with ours. We may disclose to third parties certain Usage Data

regarding the Sites. Your Usage Data may be aggregated with the Usage Data²of others

and not identify you individually or it may include associated data that does identify you.

In addition, ExakTime uses Google Analytics to monitor activity on the Sites . . . . (emphasis

added)

At times we may be required by law or legal process to disclose your personal information.

We may also disclose information about you if we believe that disclosure is necessary for

the public interest. We may share personal information and Usage Data with businesses

controlling, controlled by, or under common control with ExakTime. . . .

ExakTime safeguards the security of the data you send us with physical, electronic, and

managerial procedures. That said, no data transmission over the Internet or other network

can be guaranteed to be 100% secure. As a result, while we strive to protect information

transmitted on or through the Sites, we cannot and do not guarantee the security of any

information you transmit on or through the Sites, and you do so at your own risk.

…

This policy describes how we may share your information for marketing purposes. You

may contact us with any questions and, to the extent applicable, to request once a calendar

year a list of third parties to whom we may disclose information for their own marketing

purposes and the categories of information we may disclose.

Please be aware that your personal information and communications may be transferred

to and maintained on servers or databases located outside your state, province, or country.

Please be advised that we process and store information in the United States. The laws in

the United States may not be as protective of your privacy as those in your location. By

2

The term “Usage Data” is not defined in the ExakTime Privacy Policy produced for the hearing.

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using the Sites, you agree that the collection, use, transfer, and disclosure of your personal

information and communications will be governed by the applicable laws in the United

States. (emphasis added)

26.

Some of the Unions’ evidence addressed employees’ concerns of finding it necessary to

upgrade their equipment to utilize the application, the perceived need to pay for a data plan to

accommodate its use, and the possibility of data overage charges attributable to an employee’s

running the application. While there was evidence that a data plan was not required in connection

with the application, I note that those issues are unrelated to the express language of the grievances

and the particulars provided to the Employer. As such, they are not material to the dispute

presented for decision and warrant no further attention here.

27.

The Employer’s documents included material taken from the ExakTime website

promoting the use of mobile time tracking and supporting many of the observations Mr.

Woodbridge offered in his testimony. The text read as follows:

Mobile time tracking means tracking workers’ time on the go with the mobile clock-in app.

With the rising popularity of smartphones and tablets, there is obviously more than one

employee time clock app . . . to choose from. The best feature an easy-to-use design that

can:

§ track hours & activities of roaming employees who work alone

§ track small crews that change location throughout the day

§ get field sign-off from employees on work safety, breaks or overtime

§ help you manage large crews or multiple job sites

Accurate, reliable time and attendance tracking of your remote workforce that replaces

paper time cards—the central benefit of a time clock app for employees—is guaranteed to

save you significant amounts of time and money.

Time tracking apps help you manage remote workers with precision. For example, you want

confirmation that they are where they should be when they clock in. A time clock app with

GPS capabilities . . . takes care of this by revealing a user's location at clock-in and clock-

out.

“Buddy punching”, which is all too easy with old-fashioned time cards, is possible even

with a timesheet app that only requires a PIN number [sic], as co-workers can share these

and cover for each other if someone's running late. A biometrics system that uses photos to

verify identification . . . puts concerns about buddy punching to rest for good.

Maybe a supervisor manages all timekeeping at your remote location, but this too is open

to human error when they have to rely on memory. A well-designed time tracking app makes

it just as easy to track a whole crew as it is for individuals to punch in and out, so time is

tracked as it's happening.

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A cloud-based time tracking system allows management and owners to review data from

the field on a permission basis almost as soon as it is created, including clock-ins, cost codes,

GPS coordinates and even Field Notes.

Keeping up with important incidents or changes at job sites—whether or not they were

caused by your employees—is crucial. Using the multimedia capabilities on your

smartphone and tablet, apps provide a format for sending updates . . . on site conditions

via photo, voice, and text. The ability to attach these updates to an employee or job site in a

cloud-based system and access them in real time, as they come in—makes for easy reference

now or later.

Many mobile time tracking solutions also incorporate “mobile forms”, which presents to

employees on the screen text confirming they weren't injured at work that day, that they

took a lunch and received the proper amount of breaks, or that they didn't work overtime,

for example—and includes an answer choice and a field for the employee’s signature.

Some time clock apps provide boilerplate mobile forms while others let employers provide

their own text. Finally, the most helpful apps let you review information gathered from

mobile forms over time in a report format.

As contractors, ExakTime’s founders have a deep understanding of construction’s pain

points. Their first-hand experience went into the development of ExakTime Mobile, a time

tracking app . . . built for outdoor, rugged and mobile industries such as construction and

landscape.

In addition to powerful features such as photo biometrics, GPS location verification, and

more, ExakTime Mobile also offers an ultra-easy user interface and total scalability for a

workforce or crew of any size. Plus, it automatically syncs with our web-based time

tracking software . . . in the cloud, so that an owner or manager can review and manage

time tracking data and informative reports at a glance, on any device with a web browser.

Forget to check on overtime before you left the office? You can do it when you get home

and then shift workers or crews as need be. This flexibility takes much of the frenzy and

stress out of managing a mobile workforce. (emphasis in the original)

28.

The ExakTime Inc. materials addressed the application’s Geotrakker capacity and

ExakTime’s Photo-ID feature as follows:

Keep track of employee location data for traveling workers or crews on the job site. Get

breadcrumbing data in real time on their location and speed of travel while they are on the

job — with very little data usage, and no tracking off the clock

It is possible to have biometric confirmation without the hassle of fingerprints. FaceFront

Biometrics uses your device’s front-facing camera to snap a photo of each worker when

they clock in and out. Goodbye, buddy-punching.

Earth Boring’s Communications to Employees

29.

Earth Boring produced an undated email issued to employees in October 2017 in

anticipation of the “ExakTime Timesheet Application Implementation”. In addition to the text

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excerpted below, the email included depictions of the screens employees would encounter on their

smartphones when using the application. The instructions read as follows³:

Beginning next week we will be implementing a new time logging system to better track

hours. This app will not only put control of your hours into your own hand, but will allow

you to review your hours worked on your phone.

Please download the ExakTime Mobile-Time Clock app to your phone.

. . .

Once downloaded, run the app, allow the application to use your GPS. On first run of the

application it will ask for a Company Setup Code. Earth Borings setup code is na3j-6wsp-

bp8o. This code will change on Tue 10/24/17. Once the setup code has been entered, you

will be presented with the following screens; descriptions below.

. . .

1. Employee-Sign-In — This screen will allow you to enter your 4 digit PIN (this PIN

will be provided to each of you separately via e-mail). Everyone will have a unique

code to log themselves in. In the unlikely event that someone does not have their phone

with them, this screen will allow multiple people to log in via the same phone, by

entering their own unique PIN. The phone owner must end their user session before an

alternate user adds their hours. <<<<<TO DO THIS See #10 below>>>

2. PocketClock Page — This page has a number of options;

i.

Top Left (Menu button; most important options in the menu are Logout and

Sync. NOTE: Logout will not time you out)

ii.

Top Right (Sync, this will download any updates to the system, names, cost

codes, locations, etc.)

iii.

iv.

v.

Centre (Time and Date)

Centre Lower (GO and STOP, above your Name)

Bottom Left (Tab to move to PocketClock Screen)

Bottom Right (Tab to move to clock in/out History)

vi.

When on-site and ready to clock in, hit the GO button, this will bring you to the next

screen.

3. Job Location Sheet — This presents a list of active jobs. Select the jobsite that you are

working on.

4. Cost Code Menu — This will present all the available cost code menus, these include:

Administration, Auger Bore, HDD, MTBM, Pipe Ram, Vaccing.

a. The primary cost code menu for most will be Administration. Job Forman will be

expected to use the other cost codes, this information will be provided separately.

³These instructions (and other documents produced by the parties) are reproduced without identification or correction

of punctuation, spelling and grammatical errors. Only the depictions of the screens have been omitted.

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5. Administration Cost Code — This is a list of all specific cost codes related to

Administration; everyone will be epected to use at least the first 5 cost codes;

a. Start — This will be selected at the start of the day. This code will also be

selected when returning to work after breaks, lunch, or travel.

b. Break - AM — Select this code at the start of the morning break. When

returning to work after the break, select Start

c. Lunch — Select this code at the start of the lunch. When returning to work

after lunch, select Start

d. Break - PM — Select this code at the start of the morning break. When

returning to work after the break, select Start

e. Travel — Select this code when traveling to or from jobsites. Once at site and

beginning work, select Start.

6. Unrelated Task Note — In the event that you select a code menu that does not apply to

a job (ie. Auger Bore on a HDD only job) this screen will show up. Hit back to return

to the previous menu.

After selecting the proper job code you will be required to take a picture of yourself

that will be attached to the sign in.

As noted above, when the time comes for break or lunch, in the PocketClock screen,

hit GO, then select the same job location and select the job cost associated with the

corresponding session from the Administration menu (Break AM, Lunch, Break

PM). At the end of the break or lunch, select the same location, and in Administration

select Start.

Then the day is over, return to the PocketClock Screen and follow these steps:

. . .

7. Hit the STOP button, this will then ask you for a sign out picture of yourself.

8. You will then be asked if you were injured at work today.

9. You will be asked if you took all your meals and breaks today.

10. Finally, you will be asked to sign off on the two questions noted above. Once you select

Next, in the top right, you will be clocked out.

If multiple people are using the same phone you must select the menu in the top left,

Logout, then enter the PIN of the other person and follow steps 7-10.

If multiple people are using the same phone to clock in/out you must use the menu to

Logout and enter your unique 4 digit PIN to login. When changing status, jobs, or cost

codes, make sure your name shows up below the GO and STOP buttons.

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Only press STOP at the end of the work day.

Please begin using this app as soon as possible to get used to it. Starting next week this

will be the only way to log your hours. (emphasis in the original)

30.

On October 21, 2017, the Employer issued a further email to employees. It indicated

that it was extending the trial period into the following week and that the system would go live on

October 30th. In addition to advising employees to “continue to submit timesheets via the

Smartsheet App”, the email set out a number of FAQs, including the following:

Q: The app is draining my battery very quickly.

A: Close the app after clocking in (refer to your specific phone on how to do this).

Q: The app is using a lot of data.

A: The app should be using a maximum of 5 MB per day with significant use. Please

forward the data usage details for the app from your settings page. Significant data

usage will be reimbursed.

Q:

A:

I do not own a phone that supports ExakTime.

You can use your PIN with someone else’s phone on your crew to sign in and then

clock in.

Q:

A:

Do I have to take a picture of myself every time I change job codes to break or lunch?

Yes. However we are working to have this changed.

Q:

A:

When do I hit STOP?

Only at the end of your shift when clocking out. Every other job code or location

change just requires you to press GO again.

31.

On October 24, 2017, Earth Boring issued a further email to employees. It indicated that

ExakTime would go live on October 30^thand that it would then be the only way in which

employees could submit their hours. The email noted “Smartsheet time sheet will be disabled” but

employees would “continue to use Smartsheet to provide . . . daily project updates”. Again, the

email set out a number of FAQs, including the following:

Q: Can you tap into my phone and see everything I do on it with the app.

A: No.

Q: Will you be tracking my movement at all times?

A: No. However, if you leave the app running in the background the Geotracker will be

active while in the Geofenced areas. To save your battery, we encourage you to close

the app between breaks/lunch/code changes. This will disable the Geotracker as well.

Q:

What about my privacy!

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A:

The ExakTime app has no capability to access other files on your phone. If in doubt,

you can always sign in via the site foreman's phone.⁴

Q:

A:

What if I don't take a picture of myself during clock in and clock out?

We require verification that the person signing in is the person logging hours.

Q:

A:

What happens if I forget to sign in or out?

You must have your foreman verify your hours for the day and send an email to

Antonio [the Employer’s Accounting Manager, Antonio Fernandes], Gene

[Woodbridge] John [Earth Boring’s Operations Manager, John Currey] & Kyle [Kyle

Verwey, the author of the email and Earth Boring’s Project Engineer].

32.

Earth Boring advised employees of the reduction in the number of photographs required

by email dated September 10, 2018 the text of that read as follows:

After a long awaited update period the ExakTime App has been updated based on our

custom request.

Next time you interact with the app, please SYNC the system. At that time you will notice

that your choice of cost codes will have changed. The following codes are available:

Start

Break

Lunch

Travel

Resume work

When starting your day, continue to use the ] “START” code. When taking breaks, lunch,

or travelling, use the codes as before. When returning from break/lunch/travel, use the

“Resume Work” code.

All functionality is the same; however all codes outside of “START” will no longer require

a photo to be taken. It is the intention that only 1 photo will be required at the beginning of

the day, and 1 at the end (a photo will still be required with “STOP”).

33.

Earth Boring introduced a training document used in a session on March 1, 2019. The

document was dated September 2018 and was similar in content to the materials referred to below

in that it concluded with a slide for “Logging Out” that ended with these words: “After logging

out, a message will appear indicating you have successfully logged out. When you press stop, the

GPS on Exaktime is shut down.”

34.

Earth Boring entered a third book of documents in evidence in September 2020. Of

relevance to operation of the ExakTime application, the documents included:

4

I note that foremen are bargaining unit members, but they are either provided with a cell phone by the Employer or

are paid an allowance for their use of their own devices. Furthermore, I note that the Unions questioned whether this

email had been sent to bargaining unit employees as the documentation presented by Earth Boring did not identify

any recipients other than Mr. Woodbridge and Mr. Currey. Mr. Woodbridge stated that the bargaining unit employees

were blind-copied on the email.

- 13 -

• A “New Employee Orientation Quiz” dated May 11, 2020 which recorded an

employee’s responsibility for “logging my own hours, requests for time off and

illnesses using ExakTime” and confirmation of the employee’s recognition: “When

the ExakTime App is shutdown, or when ‘Stop’ is pressed, the GPS feature in the

APP is disabled.”

• The orientation quiz and another document included in the Employer’s third

compilation — a checklist entitled “Worker Annual Safety Training” — included

two “acknowledgements” and expressions of consent by the employee-participant:

“I am aware, understand and consent to my location being tracked while

at work for time tracking (payroll), safety, project submissions,

advertising and other work related purposes” and

“I am aware, understand and consent to my location being tracked while

at work for safety and time tracking (payroll) purposes and that from

time to time, third parties will securely hold this data.”

• A slide presentation for training — an updated version of the emailed instructions

first issued in October 2017, setting out the various steps to be taken in using

ExakTime and of which I note the following:

§ Identifying the “Employee Sign-in” screen as allowing the employee to enter the

four-digit PIN and noting: “If sharing one device, each user must log out before

the next person can sign-in.”

§ On the “Logging In” slide: “Two photos are required — One photo at the start of

the shift and one photo at the end of the shift.”

§ In explaining the process for using the application in connection with an

employee’s changing job locations during the shift: “Travel is tracked when

moving from yard to site, site to yard or site to site.”

§ In explaining the process for logging out, the “Logging Out” slide identified two

questions (whether the employee “did a safety talk” and whether the employee was

injured) and concluded: “After logging out, a message will appear indicating you

have successfully logged out. When you press stop, the GPS on ExakTime is shut

down.”

§ The final slide, headed “Summary”, repeated the instruction: “Click on red ‘Stop’

button when ending shift.”

David Costa’s Report

35.

Mr. Costa holds a Science in Technical Management degree. He is employed by Local

183 in the planning, designing, programming and implementation of all software, including custom

software for the Local. No other witness claimed to have any level of expertise with respect to the

technology under consideration in this proceeding. Mr. Costa’s evidence was given fairly and

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objectively. I found him to be just as forthcoming and even-handed on cross-examination as he

was in responding to counsel for Local 183.

36.

In addition to attending the demonstration of the ExakTime application on January 14,

2019, Mr. Costa noted in his report entered in evidence that he had been asked to “extract, analyze

and comment on the production of certain data produced by ExakTime and provided to Local 183

by Earth Boring” and, further, that he had engaged ExakTime Inc. and procured “a copy of the

application with a view to testing, analyzing and commenting on its operation, use, function,

capabilities and limitations.”

37.

The following excerpts from Mr. Costa’s report were most helpful and merit extensive

quotation:

6. ExakTime is a cloud-based software application marketed as a solution for tracking

employee time and location, among other things.

7. The level of security in cloud-based services varies across providers and modes of

implementation. Typical security measures, to the extent they exist, include multi-factor

authentication, “at rest” encryption, “in transit” encryption, data retention protocols/

periods and segregation of data from the engineers maintaining the environment. The

question of whether and which such security measures exist for a given solution can

usually be gleaned from the Service Level Agreement (“SLA”) typically made available

by a given app developer. . . . ExakTime’s website does not appear to make an SLA

available for review or download, and contains few specifics regarding where or how data

is stored or secured, beyond the representation that “ExakTime uses Microsoft Azure to

support our web-based time tracking software”, and the representation below:

Be secure in knowing your data is secure.

With our cloud-based solution, you can be sure of two things: your system

is always up to date, and your data is being secured with the highest gold-

level data security protocols.

8. In the absence of a SLA, questions of data encryption, segregation and retention cannot

be definitively answered by my analysis of the data production, nor my test use of the app

itself. Assuming that the representation regarding Microsoft Azure is true, some level of

encryption is probable (it would be highly unusual for a commercially available app to

have no encryption whatsoever). It is however apparent from my test use that ExakTime

does not employ multi-factor authentication.

. . .

10. On January 14, 2019 I attended a live demonstration at the offices of the Greater

Toronto Sewer & Watermain Contractors’ Association in Mississauga, Ontario. In

addition to the demonstration and information provided, Earth Boring representatives

answered a number of questions from myself and others present.

11. In the course of the demonstration:

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a. Earth Boring advised, and I later confirmed, that the Geofence is set not by any

on site hardware, but via a GPS setup point, with a circular margin of error

customizable from .01 miles to 4 miles in diameter (0.25 miles being the

default).

b. It appeared, and I later confirmed, that ExakTime does not require 2-factor

authentication. Following initial setup of a Company ID, the administrator portal

login requires only a username and password, and the employee application

login requires only a 4-digit numerical pin.

c. Earth Boring demonstrated, and I later confirmed, that ExakTime was capable

of tracking and recording an employee’s GPS location to seven (7) decimal

points of precision (longitude and latitude), representing those locations visually

as a layer on top of Google Maps, and “re-playing” the travel movements on the

map after the fact, both inside and outside of any defined “GeoFence”.

Distance(s) travelled was tracked and recorded to 3 decimal points (in miles),

and speed of travel to two (2) decimal points (in miles per hour).

d. It appeared, and I later confirmed, that ExakTime frequently “pinged”

employees’ phones multiple times during a shift, and even multiple times per

minute, so long as the app was turned on and an employee was clocked in, and

regardless whether inside or outside a “GeoFence.

e. I asked how long employee photos are retained. Earth Boring answered that,

according to ExakTime, it was six (6) months.

f. Earth Boring advised that breadcrumb data (i.e. data points which track location

and movement) was collected approximately every 45 minutes.

12. Following the demonstration, I telephoned ExakTime to make inquiries. Among other

things ExakTime advised, and I later confirmed:

a. Bread crumb data is collected in standard three (3) to five (5) minute intervals,

with increased frequency relative to increased mobility;

b. User data, including photos and geo-locational data, is collected and retained

indefinitely by ExakTime;

c. Notwithstanding the ability to edit Time Card details, user administrators (i.e.

ExakTime clients) have no means of manually removing or deleting data, and

there is no option to customize or limit the data retention period. . . .

13. On April 26, 2019 Earth Boring produced, and I extracted, a zip folder containing a

package of unencrypted data . . . which included 726.63 megabytes of data for the period

October 16, 2017 to April 4, 2019. Included in that data was biographical and geo-

locational data of four (4) employees, and more specifically:

a. Names of four (4) employees, specifically David Muhanlal, Gord Lenathen,

Keith Pierson, and Peter Daniels;

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b. Six thousand, five hundred and forty six (6,546) photographs of four (4)

employees . . . specifically David Muhanlal (1,396 photos), Gord Lenathen

(2,107 photos), Keith Pierson (739 photos), and Peter Daniels (2,304 photos),

an example of one of each of which as attached. . . ;

c. 8200 points of time record data disclosing the location and movement of four

(4) employees, specifically David Muhanlal, Gord Lenathen, Keith Pierson, and

Peter Daniels.

14. In analyzing this database I was able to:

a. Determine exactly how frequently time record data was captured;

b. Identify the number of occurrences where time record data was captured whether

inside or outside of any configured geofence; and

c. Assess the format and volume of photographic data collected to date.

15. The data discloses the following:

a. Earth Boring’s use of ExakTime generated biographical and geo-locational data;

b. Employee data was collected both inside and outside the geofences defined by

Earth Boring’s administrators; and

c. Employee photos were collected, retained indefinitely, reproduced by

ExakTime, and accessible to me.

. . .

19. I was asked to acquire, test and analyze the app, which I did on March 4, 2019. . . .

20. On May 4, 2019 I downloaded and installed the app onto my Apple iPhone 6, and

directed both LiUNA Local 183 IT Manager Igor Braverman and LiUNA Local 183 IT

Support Analyst Paul Goncalves to download and install it onto their phones as well (both

Apple iPhone 7 devices). I designated myself as the sole in-office “Administrator” and

Igor and Paul as in-field “employees”. I set about sending Paul and Igor to various

locations inside and outside of the office, including to the offices . . . at 1315 North Service

Road East in Oakville Ontario. My observations are below.

21. In order to use ExakTime, both administrators and employees must express consent to

certain permissions granting access to the phone’s camera, location/GPS information

(“location services” in iPhone), cellular capabilities, and Wi-Fi capabilities (ExakTime

generates precise location from both cellular GPS and Wi-Fi).

. . .

22. In order to open the app, the phone must be turned on. In order to login to the web

portal, an administrator must enter a username and password. . . . In order to clock in/out,

the app requires that the phone be turned on, capable of sending and receiving data via the

Internet, the app be granted permission to access location services, and an employee must

enter a 4-digit numerical pin. In order to minimize the app (such that one can use the other

- 17 -

functions of the phone), one presses the home button. This is not to be confused with

closing the app.

23. This distinction is important, because minimizing, or exiting, the app does not close

the app. Instead, even when the app is minimized (such that its operation is not

immediately apparent to the user), it continues to run in the background. Closing the app

requires additional steps to render the app inoperative. The app can only be closed using

the method(s) specific to the given phone (in the case of iPhone, tapping the home button

twice and then swiping up on the app one wishes to close), otherwise it continues to run in

the background.

24. In order to clock in and out, the app also requires, by default, that a photo be taken,

though administrators are now able to remove the photo requirement on a security role

basis, such that an administrator can disengage the photo requirement for one or more

specific users. As the administrator, I was able to access and review every photo taken by

Igor and Paul. I was also able to create digital copies of their photos both via screen

clipping and by printing through the “browser” print feature. In one case Paul clocked in

by taking a photo of a photo of himself, which was not readily distinguishable from

legitimate photos (as an example, attached . . . is a legitimate first instance photo, and a

photo of a photo, in that order).

25. The app allows an administrator with sufficient permissions to define a “GeoFence”,

or geographic (GPS) boundary, from which the administrator can determine whether a

given “touch” on a mobile device (i.e. a clock in or clock out by an employee) occurred

inside, or outside, the GeoFence. Using a radius of 0.25 miles, we defined two (2)

GeoFences around two (2) LiUNA Local 183 offices . . . .

26. The GeoFence function is not to be confused with the “Geotrakker” function. The

former simply serves to indicate to the administrator whether an employee “punched the

clock” inside or outside of a defined GeoFence, as indicated by green and red icons,

respectively. The Geotrakker on the other hand tracks and records time, location and

movement information of employees regardless of any GeoFence, which information it

then incorporates and “maps” onto Google Maps, creating a detailed visual record of

employees’ movements through time and space. This record can be both monitored as it

updates via pings, and “re-played” after the fact as if in real time. Attached . . . are two (2)

screenshots of such records showing the locations of Paul and Igor inside and outside the

1263 Wilson Avenue GeoFence, respectively. Attached . . . are two (2) screenshots of the

Geotrakker function operating on my phone, at work; travelling between work and home;

and at home, throughout the night. Administrators are not able to limit geo-tracking within

or outside of any GeoFence, but are able to disable geo-tracking completely for specific

security roles.

27. So long as they were clocked into the app (even if running in the background), I was

able to track and record where Igor and Paul were at any given time, for how long they

stayed there, where they went next, and their speed of travel between locations, even within

the first floor offices of LiUNA Local 183 at 1263 Wilson Avenue (a 3-floor floor concrete

and steel structure). This is regardless of whether they were inside or outside of a defined

GeoFence. . . .

28. In order to prevent such tracking they were required to do one or more of (a) clocking

out of the app, (b) closing — but not merely exiting/minimizing — the app, (c) turning

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their phones off or (d) otherwise disabling data transmission e.g. by enabling “airplane

mode”. (emphasis in the original)

John Wunderlich’s Report

38.

Mr. Wunderlich has extensive qualifications and is to be regarded as a privacy expert

for the purposes of his report, accepted in evidence subject to the limitations discussed in a fourth

interim award issued in August 2019.⁵

39.

Two of the issues Mr. Wunderlich identified as being pertinent to his report were

attributed to ExakTime’s being a cloud-based service with hardware and systems that might be

located anywhere in the world. He described the issues as follows:

One is whether or not the jurisdiction or jurisdictions in which the service provider is

located have a regulatory environment that provides a regime for the protection of personal

information that is equivalent to the Canadian regulatory environment. Further, and related

to the first issue, is whether the contractual or other arrangements between the service

provider and the employer in this instance provide reasonable assurances of employee

privacy protection that meet Canadian industry standards and regulatory requirements.

Finally, the arbitrator noted in his Interim Award of June 28, 2018 the question of

reasonableness in giving due weight (or not) to employees’ privacy interests with respect

to surveillance and possible surveillance on and off the job site, as well as undisclosed or

unauthorized access to employee personal data with respect to their whereabouts.

Reasonableness is a standard test for privacy in Canada — is the potential invasion of

privacy reasonable in the totality of circumstances.

40.

Also of assistance were Mr. Wunderlich’s explanations of terms used in relation to

privacy issues:

I should note that a number of terms are used by ExakTime or the Employer that are

relevant to privacy. One that is a particular note is “Metadata”. From the perspective of a

data professional, metadata is commonly described as ‘data about data’. This is sometimes

erroneously taken to mean that it is not, or perhaps cannot, be personal data about a person.

For example, a data set or a system might be designed for the purposes of providing a

messaging service between individuals. In that system the ‘data’ is the messages and the

metadata describes the characteristics of the message, such as who the recipient of the

message was, when the message was sent, and the location of the sender when the message

was sent. The metadata does not include the content. From a privacy perspective this

metadata is deeply revelatory of personal information. This metadata ends up describing

the social relationships and life of a person without ever revealing the contents of the

messages. In other words, metadata is a term of art for data professionals that should not

imply, one way or another, whether it is personal data about an individual.

Another term of note is “Biometric”. This is a term of art that generally refers to data based

on biological — and therefore generally immutable and unique — characteristics of an

individual. Examples of biometrics include fingerprints, retina scans and facial images.

The common security and privacy risk factor with a biometric is its immutability. If a

5

2019 73229 (ON LA).

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system contains the actual biometric this allows for the possibility that it may be used to

represent the individual when the individual is not present. The current best practice for

the use of biometrics for identification and authentication is for there to be an enrollment

process that does NOT require the storage of the actual biometric. Such a process might

involve the following steps:

1. Enrollment

a. Obtain the biometric from the individual (e.g. take their picture)

b. Use encryption type techniques to convert the picture to a digital form that

does not reveal anything about the individual. This may be called a

biometric template.

c. Destroy the original biometric and keep the template.

2. Identity Verification

a. The individual takes or provides their picture on the job site

b. The software applies the same encryption type techniques and compares the

result with the stored biometric template to validate identity

c. The system uses the result of the comparison and does not store the picture.

When done properly this provides a high level of assurance that the person who is clocking

in is the person that they claim to be at the time of clocking in, without recording or risking

the collection or disclosure of biometric data.

41.

Mr. Wunderlich commented in his report on the operation of ExakTime at Earth Boring:

Once an employee is enrolled in the system, checking in to work using the time clock app

requires that they take a picture of themselves using the time clock app on a mobile device.

Since the mobile device will have geo-location capabilities, the photo taken provides

evidence that the employee is on the job site (geo-fencing). No information was provided

as to whether ExakTime uses facial recognition software to verify personal identity at the

time of the photo. That would raise a number of other privacy and security issues were it

the case. The app if installed on the employee’s own device — can also be used for GPS

tracking of mobile employees. For employees that are reporting to a single job site,

employees may clock in using a company supplied or other mobile device with the time

clock app. The alternative ExakTime solution is to use an ExakTime time clock with key

fobs issued to employees to enable them to clock in and out with a key fob.

Once the time card information is collected it is connected to the employer's payroll and

HR systems for processing and passes out of the scope of this report.

Like any cloud-based service, the location of the ExakTime servers does not physically

affect the provision of the service. Similarly, once the data is available to the cloud-based

service it is available for any kind of use, including but not restricted to contracted analysis

or reporting that the service provider may choose, including data mining for secondary

purposes. (emphasis added)

42.

Referring to Earth Boring’s email dated October 24, 2019 in which the Employer

offered an answer to a FAQ about privacy, Mr. Wunderlich wrote:

- 20 -

The question about privacy . . . was incorrectly interpreted as a question about accessing

other files on the phone. The question about privacy is whether or not the functioning of

the ExakTime system as implemented is a breach of privacy. Does or can the system be

implemented in such a way as to collect, use and disclose the minimum amount of personal

data while reducing or eliminating the risk that personal data may be collected, used or

disclosed for other purposes. The response about access to files is a valid security concern

and raises a number of due diligence privacy and security questions that should have been

asked by the Employer as a matter of due diligence when considering cloud-based time and

attendance software. Some examples of questions that should have been asked include:

• Are ExakTime programmers trained in secure software development

• Did ExakTime do a privacy impact assessment of the system? This is a

standard tool for assessing privacy risks. If so, what were the privacy issues

raised and how were they addressed.?

• Does ExakTime have any certifications around data or security protection?

Did ExakTime do a threat and risks assessment of their system? This is a

standard tool for assessing security risks. Similarly have vulnerability

assessments and penetration tests been done on the ExakTime system? And

if so, what were the results?

• Has the ExakTime system been audited for security or privacy, and if so,

what attestations are available?

• Where are the servers located?

• Are ExakTime data centres certified for security?

• Are facial images encrypted when stored on ExakTime servers?

• Does ExakTime proactively provide notice if they experience a security or

privacy incident that may affect the employee’s data?

There is a significant amount of evidence that should be available to demonstrate that

ExakTime has done its due diligence to develop and implement a secure and privacy

protective solution. Seeking this evidence would be a normal procurement practice for an

employer thinking to implement cloud-based services to process employee data. It does

not appear that this was done by the Employer.

43.

Mr. Wunderlich’s privacy analysis identified a number of issues arising from the

description of the ExakTime system. He noted:

With respect to movement tracking, there is no barrier to this being changed in the future

via changes made by ExakTime. Their service terms appear to be set by the terms and

conditions set by ExakTime on their website and with respect to their app, not a contract

with the Employer.

. . .

The way in which employee verification of the person logging the hours is done is

problematic, because it involves the collection of biometrics. “The physical and behavioral

features that are recorded in a biometric system (for example, the person’s face, fingerprints

or voice) are referred to as “biometric characteristics.”” In the federal privacy

commissioner’s Guidelines for Identification and Authentication the Commissioner makes

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the point that the use of biometrics should be necessary, effective and proportional to the

potential privacy risks. And he notes that, “… if a biometric is stolen or compromised it is

very difficult, if not impossible, to change.” He goes on to say:

When appropriate, biometric information should be locally stored (i.e., on a device)

rather than in a central database. Centralized storage heightens the risk of data loss

or the inappropriate cross-linking of data across systems. Local storage, such as

mobile phones or smart cards, by contrast, gives individuals more control over their

personal information. By its very nature biometric information is sensitive

information and should be protected by appropriate safeguards, including for

example, encryption.

. . . The primary issue with the collection of biometric data about individuals is that, unlike

a password, a biometric cannot be changed. If a bad actor were to obtain a facial image, a

fingerprint, a retina scan or some other unalterable characteristic of a person then that

person would have a lifelong challenge recouping it and may not even know that their

biometric was being used by bad actors (e.g. for fraudulent activities activity). . . .

The nature of the types of safeguards that are necessary to protect the collection and use of

biometrics is also well understood. First and foremost, it is the understanding that where

the biometric is to be used for verification, it should not be stored in its original state.

Rather, when a person is ‘enrolled’ into a system their biometric is collected and then

converted into a reference template or numeric identifier that does not allow the

reconstruction of the original image or biometric but does allow a new fingerprint or retina

scan or face photo to be verified. This two-step solution of ‘enrollment’ and ‘verification’

ensures that no biometric image is stored or transmitted AND that each individual can be

reliably and uniquely verified. This is both a privacy protective and secure system. . . . It is

also the case that all communications and storage of time and attendance data should be

encrypted. Rather than create a template for comparison purposes (such that employees can

be verified without the transmission or storage of their image), ExakTime takes, transmits

and stores the photo as is, without encryption.

There are also privacy concerns surrounding the installation of an app on an employee's

personal device where the app includes, or is designed for the purpose of, GPS tracking. If

there is a reasonable business requirement for the GPS tracking of employees a less privacy-

intrusive solution would be to simply supply the employees with an Employer-supplied fob

that the employee could choose not to carry when not at work.

Other Viva Voce Evidence

44. As provided for in the first Interim Award, the Unions put in their case and the Employer

and the Association responded. Additional employee witnesses were called to address Earth

Boring’s use of other applications and they were followed by the Unions’ brief reply evidence.

David Muhanlal

45.

The first employee witness, David Muhanlal, a member of Local 183, testified that he

had no idea where the photographs he was obliged to take of himself for the purposes of the

ExakTime application were sent, where they were stored, how long they were stored, how they

- 22 -

were stored, and by what means they were secured. He also testified that he had not been asked by

Earth Boring or ExakTime for permission to collect any of his personal information, to store his

information on databases in the United states, or to disclose any of his personal information to

third parties. On cross-examination, he acknowledged that he had never asked for a copy of the

Exaktime photographs, where the data were stored, or what the data were used for.

46.

Mr. Muhanlal’s evidence was that Earth Boring did not direct him to keep his phone

turned off while he was on site or while he was working on a job site. Similarly, he was not

instructed by Earth Boring that he was to access the Exaktime application only in a trailer or in

some other designated safe area or during his breaks

47.

Mr. Muhanlal recounted an incident in which he had left the job site at the end of his

shift without clocking out with the ExakTime application. He had driven to his bank and returned

to the job site to correct his error and clock out. The following day his supervisor confronted him

and asked when he had finished work. Mr. Muhanlal testified that he answered that he had worked

until 5:00 p.m. but had returned after driving to his bank. The supervisor responded that he was

aware that he had left the site, returned, and clocked out. The witness had used his own vehicle;

the Employer did not have a tracking device in his vehicle; and, he said, it had not been possible

for the supervisor to observe his return as he had remained off the site to clock out and the

supervisor’s vehicle was visible to him on the site.

48.

On cross-examination, Mr. Muhanlal stated that he had intended to tell his supervisor

about the sequence of events, but the supervisor brought the situation up to him immediately upon

seeing him the following morning. Mr. Muhanlal’s evidence was that the supervisor accused him

of time theft and threatened to “write him up” if he did not clock out when he left the site.

49.

During Mr. Charney’s cross-examination of Mr. Muhanlal, Earth Boring introduced the

documentation of a “toolbox safety discussion” on May 4, 2018. Notations on the document

indicate that the topic was the use of ExakTime, signing in and out for breaks and lunches. The

almost unintelligible handwritten notes read as follows: “When going on breaks please use the app

to do go for breaks hit go break picture confirm when break is down hit go lunch picture Resume/

start confirm Repeat for afternoon break. At End of Day, hit stop answer the questions then sign

hit confirm or next. Make sure you sync the phone from the app so you get paid.” On the safety

talk sign in sheet the question what was discussed was answered as follows: Exaktime — We

discussed how to sign in and out Read email and had people sign”.

50.

Two other documents⁶were introduced during Mr. Muhanlal’s cross-examination. One

was a document entitled “Safety Talk Company Rules Seaton Sanitary Trunk Sewer Phase 1-2B”

dated August 13^th, 2018. Item 15 under “The Rules” read as follows: “No handled/personal

electronic devices/cell phones to be used unrelated to work purposes”. Mr. Muhanlal was a

signatory indicating that he had attended that safety talk and, therefore, was presumably aware of

item 15 on that list.

51.

The other document identified Mr. Muhanlal as an attendee at Earth Boring’s annual

health and safety training in January 2019. He initialed the document to confirm — in the printed

6

As with others, these are presented without identification of various errors in their texts,

- 23 -

words of the form: “I have reviewed and fully understand the ‘Cell Phones, Media & Driving

Policies’ including only using cell phones for business purposes while at work, not taking

unauthorized pictures or posting any content that could damage EBCL's reputation and not being

distracted while driving.”

52.

The attachment to that document includes the following statement with respect to “Cell

Phone Usage”:

• There is to be no unauthorized personal use of cellular phones or other electronic

equipment during work hours.

• This does not restrict the workers on our sites from having cell phones or electronic

equipment on the job site for work purposes, it does restrict the personal use of these

objects while on the site.

• In the event there are circumstances whereby the worker believes they need outside

access for personal interactions (e.g. family emergencies, pressing personal matters),

arrangements must be made with their immediate supervisor/foreman.

Failure to follow the above guidelines may result in disciplinary action as per the

Progressive Disciplinary Program.

The final page of that document addresses distracted driving and identifies it as being against the

law and the Employer’s policy, and further that it may include texting, emailing, putting location

into GPS, or checking GPS status.

53.

In the result and unsurprisingly, Mr. Muhanlal testified that his understanding of the

Employer's policy on cell phones was that employees were not allowed to use cell phones

otherwise than for work purposes.

Declan Kiernan

54.

Declan Kiernan testified that the Employer did not seek Local 183’s approval for the

use of members’ cell phones for Exaktime and that it did not ask for Local 183’s prior consent to

the use of Exaktime. Moreover, Local 183 had not been asked for permission to collect, use, store,

or disclose employees’ personal information and photos.

55.

Mr. Kiernan was asked about the matter of “buddy punching” — a dishonest practice

involving one employee’s falsely recording the presence of another by, for example, punching the

other’s timecard in a timekeeping system that relied upon punch clocks. Mr. Kiernan spoke to his

having familiarity with the practice in another environment unrelated to the Employer.

56.

He also spoke of safety concerns associated with the use of cell phones, identifying them

as the “number one distraction” on jobsites today. He commented that, in addition to the issue of

their being required by ExakTime to take photographs, employees’ having their phones with them

at all times created or allowed for the risk of their getting text or telephone messages and looking

at their cell phones while working.

- 24 -

57.

Mr. Kiernan was cross-examined about a meeting he and Patrick Sheridan had with Mr.

Woodbridge and the proposition that Local 183 was using tracking software on its employees’ cell

phones.

58.

Mr. Costa subsequently testified that he would be responsible for the installation and

maintenance of any such software or application and he states that tracking sotware simply was

not a feature of the technology adopted and used by Local 183.

59.

In the result, the issue was roundly disputed by Local 183 and raised as a matter touching

on the credibility of Mr. Woodbridge; however, I did not find the evidence to be at all useful as it

was not relevant to the propriety or otherwise of Earth Boring’s use of ExakTime.

Keith Pierson

60.

Local 183’s third witness, Keith Pierson, worked at Earth Boring for approximately

twelve months ending in August 2018. He testified to using sign-in and sign-out sheets before

ExakTime was implemented; he said that he would go to the site trailer to sign in on a sheet on a

clipboard and do the same at the end of his shift. He acknowledged that the foremen might have

used an electronic system to enter employees’ time, but he had not. Indeed, he said that sign-in

sheets were in use at Seaton until he left Earth Boring in August 2018. He was not obliged to sign

in and out during the course of the shift. In contrast, he stated, with ExakTime he sometimes had

to climb up a shaft to obtain service in order to use the application to go on breaks and lunch.

61.

Mr. Pierson made reference to the process of using Exaktime, but he did not address

turning the application on or off, or his practices with respect to logging in and logging out at the

end of a shift. The evidence established that Mr. Pierson frequently used the application to clock-

in and clock-out off site — well outside the GeoFence set up for the Seaton project on which he

was engaged throughout his time with the Employer.

62.

Earth Boring introduced a document that recorded inappropriate ExakTime usage by

Mr. Pierson over the period November 2, 2017 to July 20, 2018. The entries take up twelve pages,

indicating his proclivity to start or stop the application at distances as great as 11.04 kilometers

outside the GeoFence. In that worst case, the record indicated that Mr. Pierson recorded that he

had stopped work at 5:00 p.m., but he was 11 kilometers away from his work location when he did

so. There were instances of his recording his “starting work” at 7:00 o'clock at a distance of more

than a kilometre outside the Seaton GeoFence. There was also an instance in which the record

showed Mr. Pierson to have taken a break at some distance beyond from the Seaton GeoFence.

63.

Mr. Woodbridge later acknowledged Mr. Pierson’s pattern to be a problem. He also

associated Mr. Pierson with buddy punching; however, even though the Employer had imposed

discipline attached to his attendance, there was no discipline of Mr. Pierson for buddy punching

and no evidence to substantiate the comments Mr. Woodbridge made linking Mr. Pierson to the

practice.

- 25 -

64.

Mr. Pierson testified that the Employer did not direct him to leave his phone in his

vehicle, to keep the phone out of the construction site, or to turn it off while on site. To the contrary,

he said that he was instructed to keep his phone turned on and that he was called on it “all the

time”. He added that he was never told that he was not to access Exaktime while working.

65.

Mr. Pierson’s evidence was that neither the Employer nor Exaktime explained to him

the potential uses of his personal information and his photograph. He had “no idea” what

ExakTime might do or be doing with his personal information and data. When asked to explain

his concerns about the application, Mr. Pierson spoke about having to take eight photographs daily,

data usage and his device’s location services effecting an invasion of his privacy, particularly if he

left the application on after work.

66.

Mr. Pierson was most vocal with respect to pay problems he associated with the

application. He testified that he experienced pay issues on virtually every pay — his “money was

wrong every week”, he was sometimes “missing days”, and “every cheque, [he] was fighting for

money”. He claimed to have reviewed nineteen pay stubs with his foreman: “all had pay issues”

and “there were perhaps only two or three that were not missing hours”. According to Mr. Pierson,

issues also arose when he could not sign in or could not sign in on a timely basis due to connectivity

difficulties.

67.

Mr. Pierson testified that Earth Boring had employed a number of Polish workers who

were not obliged to use the Exaktime application.

Scott Hryhorchuck

68.

Local 793 called the evidence of Scott Hryhorchuck, a bargaining unit employee. He

testified that he had never asked Earth Boring any questions about encryption, the storage of GPS

data, the sharing of GPS data, or how long his photos were stored. He did maintain that he had a

conversation about who could access employees’ photographs and he was told that the Employer’s

office had access to his photos.

69.

Mr. Hryhorchuck was asked on cross-examination about compliance with Article 18.14

of Local 793’s collective agreement. He indicated that he understood that he could be in trouble

or get in trouble for making a call without prior approval and he agreed with counsel for the

Employer that his use of the smartphone for ExakTime was authorized and that he had “prior

approval for that use”.

70.

He also acknowledged on cross-examination that the process of downloading the

application required his consent and that he had agreed to and accepted the application; however,

he said that his concern had become one of privacy and he explained that he became concerned on

learning that ExakTime is a third-party application and that a third party can use the data generated

by his activity. Mr. Hryhorchuck confirmed that he knew that the Employer would be using

ExakTime to track his starts and stops, and he did appreciate that it was a third party developed

application, but he maintained that he thought that Earth Boring might be engaging an inhouse IT

professional and he did not agree that he knew that the data would be going beyond Earth Boring.

Mr. Hryhorchuck agreed with Mr. Charney that he had no information about anyone associated

- 26 -

with Earth Boring actually experiencing privacy infringement. However, he was clear in stating

his objection to being required to have a third-party application on his phone in order to be paid as

he recognized that the third party would be able to collect data about him through the use of the

application.

71.

As for pay issues, Mr. Hryhorchuck said that his supervisor had instructed that

employees were not to sign in early — that they were to sign in at 7:00 a.m. and not at 6:55 a.m.

— and were paid to the minute. If he was at all late in signing in, Mr. Hryhorchuck said, he would

lose pay accordingly and have to decide whether pursuing the lost pay was worth the effort.

The Evidence for Earth Boring and the Association

— Implementation of the Application

72.

In opening the Employer’s case, counsel made the comment that the introduction of

Exaktime was simply an example of his client’s doing what it did before, but better. Mr.

Woodbridge testified that, prior to the introduction of ExakTime, Earth Boring had used another

application, SmartSheets, to record time and attendance; however, he estimated that only a dozen

bargaining unit employees had that application on their phones and explained that foremen would

use SmartSheets to enter time for most employees. Mr. Woodbridge commented that employees

had complaints about SmartSheets associated with foremen failing to record their time accurately.

73.

According to Mr. Woodbridge, Earth Boring was spending twelve to fifteen hours

weekly “chasing down” and rectifying problems related to the use or misuse of SmartSheets. In

addition, the application did not show any actual history to assist in validation or correction of

issues.

74.

Mr. Woodbridge thought SmartSheets showed where the individual was when he

submitted the form; however, it did not require the individual to take a “selfie”.

75.

Mr. Woodbridge confirmed that Earth Boring had been using photographs of employees

“for decades” and that digital photographs were now part of its system. He also stated that photos

of Earth Boring’s employees were “not run through facial recognition software”. Mr. Woodbridge

testified about the many photographs that are taken of Earth Boring employees, starting with one

taken at the commencement of employment and progressing through various job sites where, for

example, employees are photographed for identification badges. Moreover, at least six and as

many as fifteen photographs are taken every day on a job site. In addition, cameras are in place at

all of the yards to produce high-definition photographs and videos that would inevitably capture

images of employees.

76.

In common with other construction enterprises, Earth Boring utilizes various tracking

devices with its mobile equipment.

77.

Mr. Woodbridge explained the factors that brought about the decision to adopt

ExakTime. His evidence was that: it was more efficient; it put the power of timekeeping back into

employees’ hands; it eliminated “buddy punching”; it gave the Employer and the employee a log

- 27 -

of the working history that could be checked against a pay stub; employees were able to see at any

time exactly how many hours they had worked; it eliminated arguments about employees’ times

of attendance; it reduced the administrative time spent on verification to less than five minutes

monthly; and it allowed the Employer to show where employees were for billing purposes, making

it a “game changer” as it assisted Earth Boring in demonstrating to its clients the hours Earth

Boring had been on site.

78.

Mr. Woodbridge stated that ExakTime was “probably saving [Earth Boring] $240,000

to $270,000 per year”.

79.

As for “buddy punching”, Mr. Woodbridge stated that the practice was a factor on its

larger sites and that the Employer was aware of a couple of perpetrators. He associated Mr. Pierson

with the issue, but there was no evidence of his having been challenged or disciplined as a

participant in buddy punching. When Mr. Woodbridge spoke about the reduction in the number of

photographs required by the Employer in September 2018, he explained that Earth Boring

determined that it did not need photographs during the day as their concern was focused principally

on buddy punching. On cross-examination Mr. Woodbridge insisted that the employer had a

significant problem with buddy punching.

80.

Counsel for Local 183 attempted to persuade Mr. Woodbridge on cross-examination

that the ExakTime application was susceptible to buddy punching using a photo-of-a-photo as

described in Mr. Costa’s report. While Mr. Woodbridge dismissed that as being “absurd to an

extreme”, he did concede that he “guessed that it could be done”.

81.

ExakTime was also significant in the Employer’s achievement and maintenance of its

Certificate of Recognition (“COR”) from the Infrastructure Health & Safety Association

(“IHSA”), said to be critical in the pursuit of work as many municipalities would not permit a bid

if the company did not have that qualification. Mr. Woodbridge explained that one of the audit

points in the accreditation process required the demonstration of the ability to establish the

presence of an individual at an intended or stated location. ExakTime enabled Earth Boring to

demonstrate that capability.

82.

Mr. Woodbridge testified that Earth Boring did not discuss the introduction of

ExakTime with the Unions in advance as he did not anticipate their having any objection. He also

did not consider the collective agreements in relation to the application as he did not think that it

affected those agreements.

83.

Mr. Woodbridge said that there were issues with employees having problems signing in

and out with ExakTime at the outset; however, there are now only rare issues associated with

employees forgetting to sign out. He identified both Keith Pierson and Scott Hryhorchuck as

individuals who had issues with their pay or issues punching in, and stated that their circumstances

were not typical of the employee concerns. Mr. Pierson's issues were with signing in and out away

from his job site and “very rarely where he should have been” and at a time when he should have

been using the application. He also said that Mr. Hryhorchuck had problems using the application,

but he received helped and there were now “negligible examples” of employees not signing out

properly.

- 28 -

84.

Mr. Woodbridge spoke to the evidence that had been given about a group of Polish

employees said to have been working without being required to use the application. He maintained

that all of those employees used ExakTime. They were using it differently to avoid the cost of

accessing their European cell phone service plans; these workers would upload their data at their

hotel using Wi-Fi. Mr. Woodbridge acknowledged that some were working without ExakTime for

a week or two and that one of their number had tracked time for others who had issues starting and

stopping the application. These were all Local 183 members. Many of them went back to Europe

in March 2020 due to COVID-19. Mr. Woodbridge insisted that they were all using ExakTime

prior to their departure.

85.

Mr. Woodbridge also testified at length regarding the use of ExakTime as a significant

factor in the Employer’s response to COVID-19 — setting out the Employer’s policy, raising

relevant screening questions, and facilitating contact tracing through the capture of employees’

work time and geo-locational data.

86.

Mr. Woodbridge explained the process followed by the head project manager to set up

a GeoFence for a particular job site. Mr. Woodbridge said that, while an employee could sign in

and could sign out beyond the GeoFence, that would “throw up an error code” as evidenced by the

extensive document capturing the numerous occasions on which Mr. Pierson had signed in or

signed out at some distance from the GeoFence for the Seaton site. Mr. Woodbridge characterized

Mr. Pierson as “an exceptional employee”, distinguished from most who sign in and out at “0.0

kilometres from the job site”.

87.

Mr. Woodbridge spoke to the bases upon which Earth Boring accesses the data available

from ExakTime. An Earth Boring administrator would open the computer, log on, enter a code as

administrator, and then could see the current whereabouts and the historical information associated

with an individual employee. For payroll purposes, the administrator can enter a date range and all

of the payroll data would “pop up” for the period and that data could then be exported to ADP for

payroll processing. The administrators at Earth Boring are limited to the Payroll Manager, the

Project Manager, the Health and Safety Manager, John Currey, and Mr. Woodbridge. He

confirmed that administrators do not require two factor verification to log on to access ExakTime

data. Mr. Woodbridge said that that was not a concern for him as Earth Boring did not have two

factor verification on any of its “sensitive documentation”.

88.

Mr. Woodbridge explained that the payroll process involved the Payroll Manager

looking at each employee's data. The Payroll Manager would verify the employee’s photograph if

there was an error code, if a situation were flagged by a foreman, or in the event of any other

peculiarity. Mr. Woodbridge said that the Employer is able, for example, to run a report to

demonstrate travel time if called upon to show a client the travel time associated with their work

and that they could also “pull reports for audit purposes”.

89.

Mr. Woodbridge testified that employees’ photographs are stored in the cloud on servers

for ExakTime and are not stored on their phones. He said that only the Earth Boring administrators

can access those photographs. For clarity, on the evidence the employee’s photograph is sent to

the cloud and Earth Boring’s administrators can have access to it via a portal, using their computers

- 29 -

or mobile devices. Earth Boring has access and ExakTime has access; the employees do not have

access to their photographs.

90.

Mr. Woodbridge was not certain whether ExakTime had the ability to transmit photos,

but he did not dispute that photographs were sent to Local 183 for the assistance of Mr. Costa.

More precisely, ExakTime sent the photographs to Earth Boring and Earth Boring had forwarded

the photographs to the Unions. Mr. Woodbridge explained that Earth Boring could not transmit an

employee’s photograph, but an administrator could hover over a thumbnail photograph to bring it

up for review. Mr. Woodbridge indicated that Earth Boring does not know what software

ExakTime Inc. would use for or in respect of employees’ photographs.

91.

Counsel for Local 183 challenged Mr. Woodbridge that any photograph would permit

an employee to move through the login process and that therefore the process of checking

photographs to ensure that the correct people were logging in and logging in correctly would

occupy a significant amount of time given the number of employees and the number of

photographs that would be generated over the course of a working week. Mr. Woodbridge disputed

that and said that the Payroll Manager was familiar with the process and the employees and could

do the work quite quickly. He insisted that the time saving using ExakTime was significant.

— Privacy Safeguards

92.

Mr. Woodbridge also spoke to the security features associated with the application. He

was told by ExakTime that Microsoft Azure took care of the backup and storage of data and that

Microsoft Azure stores data on large server farms with protocols for security that are applicable in

a significant number of countries. Mr. Woodbridge was not concerned about security of Earth

Boring employees’ data once he learned that Microsoft was involved and he had no reason to doubt

ExakTime’s advice as to the involvement of Microsoft.

93.

When cross-examined by counsel for Local 183 with regard to the extensive due

diligence exercise described by Mr. Wunderlich, Mr. Woodbridge reiterated that he was told that

all data would be stored in the cloud with Microsoft and that included the backup. He commented

that he did not want his data to be held or seen by anyone else and the fact of hosting by Microsoft

“alleviated all of [his] concern regarding security and retention”. When he asked about data

storage, he was told it was run by Microsoft and that covered any security and privacy issues for

him. “If it's secured, it's private” was his understanding. Mr. Woodbridge’s evidence was that, for

him, all of the due diligence questions identified by Mr. Wunderlich in his report were answered

on his learning that ExakTime Inc. used Microsoft Azure. When asked why he was so confident

in that, Mr. Woodbridge referred to Microsoft Azure's market position, its having ninety-eight

different certifications, and his sense of comfort with a large brand and a highly-recognized

company being used by ExakTime to secure the data.

94.

Mr. Woodbridge gave as his understanding that, in the data produced to Earth Boring

by ExakTime, everything was encrypted “going up and coming back out”, including the

employee’s thumbnail photograph. There was nothing in the data with respect to an employee’s

address, phone number or other personal data. By way of contrast, he noted, ADP has all of the

information relevant to the preparation of an employee's T4 slip.

- 30 -

95.

On cross-examination, Mr. Woodbridge agreed that improper use of an employee's data

would concern him, but he observed that there was no evidence of that having happened in the

Employer’s use of ExakTime. When confronted with the proposition that there was no evidence

to the contrary, Mr. Woodbridge stated that that was correct, adding: “I have not heard about it”.

96.

In that context, he noted that ExakTime had been in use at Earth Boring for one week

shy of three years when he started his evidence and he had no information of data being subject to

data mining, no information of a server being hacked and information stolen, no information of

any employee data being used for nefarious purposes — particularly with reference to employee

photographs — and no information of photographs being photoshopped for illicit or unwanted

purposes.

97.

On cross-examination by counsel for Local 183 Mr. Woodbridge was confronted with

the proposition that Earth Boring might have addressed its issues by requiring employees to sign

in using their own phones and their own unique identifiers without obliging them to provide a

photograph that would eventually be stored indefinitely on remote servers. Mr. Woodbridge noted

that people sometimes forget their phones, but he did acknowledge that it would be possible to

have a policy that would require each individual to “clock in” using that individual's phone.

98.

Mr. Woodbridge indicated that the notion advanced by Mr. Wunderlich that employees

might be provided with fobs rather than use their phones would not work as most employees would

leave the fobs at the worksite and that would result in employees’ having access to the fobs to

engage in buddy punching.

99.

While the information given at the opening of the case was that the employees’ data

were retained for six months, Mr. Woodbridge confirmed that the data were in fact kept

“indefinitely, as long as you're paying”. He added that he was told by the Employer’s auditor that

Earth Boring was required to keep payroll data for a minimum of seven years. Accordingly, he

testified that he told ExakTime to continue to retain the data indefinitely and Earth Boring will

assess its needs in due course.

100.

Mr. Woodbridge was cross-examined about some of the conclusions and factual

statements in Mr. Wunderlich's report. By way of example, he was asked about the statement:

“once the data is available to the cloud-based service it is available for any kind of use . . . including

data mining for secondary purposes”. Mr. Woodbridge said that he did not know what Mr.

Wunderlich meant by “any kind of use” and he suggested that “they can't take it and post it

publicly”. Mr. Black put to Mr. Woodbridge that he had no basis to dispute the proposition; he just

did not believe it. Mr. Woodbridge answered: “No, I don't”.

101.

Similarly, Mr. Woodbridge was questioned about Mr. Wunderlich's observation that the

possession of a phone and the ability of a person to log into the system constituted sufficient proof

of identity without requiring a more privacy-invasive photograph. Mr. Woodbridge answered that

Earth Boring finds it necessary to identify the employee and a person’s using another employee’s

phone and a PIN would not be enough. Earth Boring wanted the photograph to show that the

employee was present rather than permitting someone to engage in buddy punching. According to

Mr. Woodbridge, the system would break down if the photograph were eliminated. In that context,

- 31 -

Mr. Woodbridge alleged that “defrauding seemed to be rampant” and he made reference again to

the evidence concerning Mr. Pierson's practices, ending with the observation: “He's no longer with

Earth Boring.”

102.

Mr. Woodbridge confirmed that he did not dispute Mr. Wunderlich’s observations that

ExakTime had the ability to change the terms of service at any time. He also accepted the

conclusion that: “Rather than create a template for comparison purposes such that employees can

be verified without transmission or storage of their image, ExakTime takes, transmits and stores

the photo as is, without encryption”. Mr. Woodbridge said that he was not concerned about a facial

image of a person at work as Earth Boring has thousands of photos and images of people at work.

While he said he would be concerned with “a fingerprint or something of that sort”, he did not

dispute that a person might not be aware or might not learn that personal data had been used by a

“bad actor”.

103.

Mr. Woodbridge also confirmed that employees did not have any say in relation to the

terms of any contract between the Employer and ExakTime and that the Privacy Policy simply

shows up on their phones. He admitted that he had never told the employees that their information

was subject to United States or California law; however, he did say that he felt safe enough as he

believed that their data were as secure in privacy terms under U.S. law as here in Ontario. Mr.

Woodbridge also agreed that he had not told employees that other parties might use their data.

104.

When he confronted with the proposition that employees had to agree to these

ExakTime terms if they wished to continue working at Earth Boring, Mr. Woodbridge answered

that he did not involve employees in every decision. When he was asked to confirm that there was

nothing in the arrangement that required ExakTime to return data to an employee who quits

employment with Earth Boring, Mr. Woodbridge responded: “No, it belongs to me” and referred

again to his obligations or anticipated obligations in respect of the Canada Revenue Agency.

105.

Mr. Woodbridge was unable to say whether ExakTime was obliged to advise Earth

Boring or the employees of any data breaches or to tell Earth Boring or the employees of

ExakTime’s sale or other use of any data collected pursuant to this arrangement. That was subject

to ExakTime’s Privacy Policy — not Earth Boring’s — and ExakTime’s Privacy Policy had been

accepted as is, without editing or amendment by Earth Boring.

106.

Mr. Woodbridge was questioned about clause 4.01(a) of the Local 183 collective

agreement and the proposition that, all things being equal, an employee's phone is not any of the

Employer's business. Mr. Woodbridge disagreed and drew a parallel between the use of a phone

and an employee's work boots. He said that the employee’s work boots are not his business, but

the employee has to have them in order to work. Moreover, he pointed out, Earth Boring does not

require employees to use their phones as they are able to use the phones of colleagues or their

foremen.

— Workplace Safety Issues

107.

The Employer acknowledged that its working environment was safety-sensitive — the

work involved heavy equipment and heavy supplies, with Earth Boring employees working in

- 32 -

shafts and tunnels and, at times, with hot permits. However, when Mr. Woodbridge was asked on

cross-examination to agree that heavy underground construction is inherently dangerous, he

disagreed and said that Earth Boring employees were “at their safest in our history”. He agreed

that it was necessary for employees to give the work their full attention; however, he said that in

between tasks they do not have to be concentrating fully. They have “periods of peak intensity and

periods of no intensity”. Mr. Woodbridge agreed that distraction should be kept to a minimum and

that, in construction, distraction was often the causal factor in employees’ incurring injuries.

108.

Mr. Woodbridge spoke to the use of cell phones on Earth Boring’s sites. He said that

employees were allowed to have a cell phone on site, but were prohibited from using their phones

during work time unless it was for work purposes. They were also allowed to use a cell phone if

they notified their foremen about important calls. An employee’s anticipating a call from a divorce

lawyer was an example he gave. Mr. Woodbridge said that he did not have a concern about safety

in that context, explaining that Earth Boring “doesn't have people on phones during the day for

personal purposes” and it “was not an issue for us”.

109.

Earth Boring has not experienced a safety incident associated with cell phone use on a

site since the introduction of ExakTime. Mr. Woodbridge’s evidence was that Earth Boring

instructs employees regarding the use of their phones to log in and out at a safe location and advises

then to move to “a safe spot”. He also said that Earth Boring does not instruct employees to turn

off their phones during working hours and that bargaining unit foremen are “on the phone a lot

during their shifts”.

110.

Mr. Woodbridge was asked on cross-examination whether he was concerned that

employees were taking “selfies” on live construction sites. He answered that he would be if

employees were operating equipment, but not if they were simply taking a photograph at the

beginning or at the end of their day or on breaks.

111.

On cross-examination, Mr. Woodbridge was asked about the duty to take every

reasonable precaution for the protection of workers in accordance with the provisions of the

Occupational Health and Safety Act. He said he did not agree that the statutory obligation operates

to exclude cell phone use on construction sites.

112.

In the same vein, Mr. Woodbridge was cross-examined with respect to COR and IHSA

and it was put to him that IHSA takes a dim view of cell phone use in construction. Mr.

Woodbridge responded that he believed that a construction company can permit the use of cell

phones when it is safe to do so, adding: “We have our own policies”. Mr. Woodbridge was

confronted with the proposition that there was nothing in the Earth Boring policy against cell phone

use other than its reference to the prohibition in relation to distracted driving and, further, that there

was nothing to indicate that cell phones were to be used only in safe spaces. Mr. Woodbridge

maintained that employees were to use the ExakTime application to sign in and out wherever they

were and that they could use it wherever they wished, but they were trained to use it where and

when it is safe to do so. He maintained that employees do not have to be in a designated space, but

can be in any safe location.

- 33 -

113.

During his cross-examination, Mr. Woodbridge identified and was asked questions

about IHSA bulletins dealing with mobile devices and safety on construction work sites. One of

those stated as follows:

• Never use your mobile device on a work site unless authorized by your supervisor. That

includes talking, texting, emailing, playing games, etc.

• Never use your mobile device while operating any tools, machinery, equipment,

vehicle, or while performing activities that require your full attention.

• Don't use your mobile device while receiving work instructions or safety-related

information.

• Wait until your lunch or rest break to use your mobile device for personal calls or other

activities. But only use it in specially designated safe work areas, such as a site trailer

or break room.

• Never operate a mobile device near flammable fumes or liquid, or when you're in a

flammable environment.

• Turn off your mobile device completely when working. If your ringer goes off, it may

startle you or someone in the area.

• Let your calls go straight to voicemail when you're working. You can retrieve them at

a more convenient time.

• To reduce the temptation to use mobile devices on the worksite, supervisors should ask

workers to keep them in their vehicles or store them in a lock box at the site trailer.

• If you have an urgent matter that requires keeping in contact with family members,

bring it to the attention of your supervisor and work out a plan so that the

communication can be done in a safe manner.

• If you need to access important work-related information on your mobile device, stop

any work activities, inform your supervisor, and move to a safe work area.

• For supervisors, communication is part of the job. However, they should limit their

mobile device used to the site trailer, site office, or other designated safe work areas

away from general work activities. They should not make or take calls while directing

activities on the site.

Mr. Woodbridge testified on re-examination that the employer used the IHSA materials as

guidelines for its policies.

114.

Mr. Woodbridge has been a director of and an executive member of the Association for

a substantial portion of his career. He has been involved in six or seven rounds of bargaining. He

was questioned about the negotiations for the 2019-2022 collective agreement as he was a

signatory on behalf of the Association.

- 34 -

115.

Mr. Woodbridge was asked about Article 11.12 in Local 183’s collective agreement and

agreed that the provision was introduced in 2010 bargaining or earlier. He also acknowledged that

it might have been proposed for inclusion by the Association and that it was intended to minimize

distraction. Mr. Woodbridge agreed that there have been deaths of union members in construction

involving cell phones since 2010. He also agreed that Earth Boring employees have been

disciplined for on-site use of cell phones if they were not using the devices as anticipated or

expected. Mr. Woodbridge agreed that SmartSheets had been introduced at about the same time

as Article 11.12. He added that the use of SmartSheets complied with Article 11.12, but agreed

that SmartSheets had not been mentioned as an exception to the provision.

116.

Mr. Woodbridge was cross-examined about Earth Boring’s productions pertaining to

safety talks and cell phone usage. One used the words “unrelated to work purposes” to identify

impermissible uses and the other referred to “work purposes” as permissible uses. In response to

the observation that “work purposes” was not an exception in Article 11.12, Mr. Woodbridge

answered that Earth Boring has the power to implement policy in accordance with its management

rights and, in any event, to give “prior permission”.

117.

There was then reference to a proposed change to Article 11.12 in the 2019 bargaining

to give explicit recognition to employer policies with respect to cell phones. The Association

proposed the addition of a sentence to that effect: “Employees will be subject to the Employer's

individual policy as per Management Rights.” Mr. Woodbridge’s evidence was that he was not at

the bargaining session at which that language was proposed; however, he saw the document and

did not disagree that the proposal was presented to Local 183 on March 11, 2019, that it was

rejected by Local 183, and withdrawn. When Mr. Black asked Mr. Woodbridge to confirm that

the proposal was made with ExakTime in mind he answered that he did not know that it was, that

it was not put forward by Earth Boring, and he did not know who had proposed the change as part

of the Association's negotiation position.

118.

On re-examination, Mr. Woodbridge testified that the proposed amendment to Article

11.12 of Local 183's collective agreement was not Earth Boring's idea and he reiterated that hewas

not aware who had presented or proposed the alteration to the provision. He also said that he did

not recall any discussions with Local 183 about this issue.

119.

Mr. McManus was asked about Article 11.12 and the Association's proposal during his

examination in chief. He testified that he could not recall specifically who had proposed the

change, but he did refer to it as “a housekeeping matter”. He also said that he did not recall the

extent to which it was discussed and suggested that it was likely one of the first proposals “to come

off the table”. On cross-examination by counsel for Local 183, Mr. McManus testified that he did

not recall this grievance being discussed in connection with the proposal and he offered that it was

“not likely that it would have been”. He also said that he did not recall any discussion about why

the proposal was put forward even though cell phone use is an important issue. When asked if he

agreed that the proposal would give employers more latitude with respect to the use of applications,

Mr. McManus answered that it was more about hardware used, noting that there was no reference

to applications in the language.

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120.

On re-examination with respect to the safety issues, Mr. Woodbridge said that Earth

Boring would still need cell phones on its worksites in the absence of ExakTime and that the use

of cell phones had been increasing every year as demonstrated by the significance of the cell phone

for COVID purposes. He testified that employees are not required to keep their phones turned on

when they are working, but they would need to access the phone for work purposes. As for cell

phones being dangerous on construction sites, Mr. Woodbridge reiterated that Earth Boring trains

employees to use their phones when it is safe to do so. Mr. Woodbridge maintained that the

employees’ phones have been used as tools since approximately 2008 or 2010, their use of cell

phones as tools has been “open knowledge”, and there have been no grievances filed about the use

of cell phones as tools.

— Other Applications

121.

Mr. Woodbridge undertook to do a review to identify bargaining unit employees who

were known or believed to have SmartSheets and other applications relevant to Earth Boring

downloaded onto their phones. He mentioned “SiteDocs” as one of the applications that are

mandatory as it housed the Employer’s “whole health and safety program”. By contrast,

SmartSheets is not mandatory for every bargaining unit employee, but all have access to it. Mr.

Woodbridge emphasized again that, with these applications, employees were using their phones

as tools and not as entertainment devices.

122.

Mr. Woodbridge subsequently presented a listing of employees and his information as

to their having downloaded and used a number of work-related applications. That resulted in the

parties calling the evidence of eight individuals to speak to their familiarity with and use those.

123.

Mr. Woodbridge’s list of employees and their use of identified mobile applications in

use at Earth Boring in the period commencing 2016. Two of those were no longer used. Mr.

Woodbridge associated all of the bargaining unit employees listed as making use of SmartSheets,

ExakTime and SiteDocs. He identified fewer than one-half of the employees as users of a mobile

application called “Slack” and a majority of employees having used one named “GeoTab”.

124.

Mr. Woodbridge indicated in his evidence that he had gone into the Employer’s system

to determine employees who had downloaded the applications with the result that, in his view, the

document he presented identified those employees who had access to the application. He did not

pretend to know the extent to which individuals made use of the applications other than ExakTime.

125.

Mr. Woodbridge stated that the SiteDocs application constituted the “nucleus” of the

Employer’s safety program. He added that SmartSheets is used every day in connection with

project updates, vacation requests, checklists, supplier lists and the like. Slack is also used in

connection with project updates. SiteDocs is used for or in connection with all safety inspections,

COVID-19 protocols, MSDS sheets, safety procedures, and locates. GeoTab is used in connection

with the Employer’s vehicles; it provides for electronic circle checks and an electronic driving log.

126.

Other than ExakTime, none of the applications required employees to take “selfies”.

There was no evidence given as to the circumstances in which employees might use any of those

applications in an unsafe manner on the work site.

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127.

Subsequently the parties agreed to call the evidence of eight bargaining unit employees

to speak to their familiarity with and use of the applications listed in Mr. Woodbridge’s document

— The Association’s Survey

128.

Mr. McManus testified about the Association's interest in the grievances as affecting

management rights. He noted that timekeeping practices were evolving, and that the industry was

moving to more application-based processes.

129.

Mr. McManus gave evidence about a survey the Association conducted during the

summer of 2020. He had put the survey together, sent it to ninety members of the Association,

and received sixty-seven responses made anonymously. The survey was entered as an exhibit on

consent, but without the Unions’ conceding its relevance.

130.

The first question on the survey read as follows: “Does your company currently use an

electronic timekeeping and/or tracking application?” The second question asked those who

answered positively whether their use of a “electronic timekeeping and/or tracking application”

preceded the start of measures relating to the COVID-19 pandemic earlier in 2020. The survey

also asked respondents to indicate the name of the “electronic timekeeping and/or tracking

application” their company used. Thirty-six respondents answered that question and ten of them

named ExakTime.

131.

Nowhere in the survey was there anything to define a respondent’s use of any of the

applications. There was no indication, for example, that those who use ExakTime used it for

electronic timekeeping, but not for tracking or that they used it for tracking, but not for

timekeeping. There was nothing in the survey to indicate whether other companies using

ExakTime required their employees to take “selfies” and, if so, under what circumstances and with

or without limitations on the data that were sent to ExakTime Inc., the arrangements for encryption,

storage, and the like.

132.

Counsel for Local 793 brought out on cross-examination that the survey did not ask

recipients whether their “timekeeping and/or tracking” device or process required a mobile

application and whether they required their employees to download an application to their personal

phones.

133.

Mr. McManus also spoke to an electronic payroll survey conducted by the Association

in or about June 2018, with results tabulated in October 2018. That survey asked for information

concerning respondents’ utilization of electronic timesheet applications to assist with the payroll

process and whether the respondents were utilizing any other type of electronic application to assist

in better controlling the flow of work.

— Controversy about ExakTime Functionality

134.

In the course of his evidence regarding the use of the ExakTime application by

employees and the various steps they were to take in its use, Mr. Woodbridge testified that at the

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end of the workday when an employee pressed “Stop” the application could no longer track the

employee's whereabouts. He said that the application “defaults to ‘not tracking me’ automatically

when it closes”.

135.

Mr. Woodbridge went further. He maintained that there is a default feature that stops

the application’s tracking, and that default feature would apply, for example, when the worker

used the application to take a break. According to Mr. Woodbridge, ExakTime would then stop

tracking unless the default was over-ridden. Similarly, on his evidence, the application would not

track movements after an employee clocked in to begin a shift. He said that the default setting is

for the application to “not track” unless someone turns off the “not tracking” setting.

136.

Mr. Woodbridge maintained that he communicated the same information during the

demonstration at the Association offices in the January 2019.

137.

Mr. Woodbridge testified that the ExakTime application had been running at the January

2019 demonstration. In order to show the Unions its ability to track beyond the GeoFence — and

in response to their request — Earth Boring had turned off the default to allow those present to

observe the capability of the application, a capability that was said not to have been in use at or by

Earth Boring.

138.

There was a lengthy exchange in the cross-examination about what had been said at the

demonstration. Counsel for Local 183 put to Mr. Woodbridge that the GPS and GeoTrakker does

not default to the “off” status. Mr. Woodbridge answered that one of the first things Earth Boring

had said at the demonstration was that the application defaults to not tracking when off. Mr.

Woodbridge said that Mr. Currey had demonstrated how the application worked while he had done

most of the talking. Mr. Woodbridge asserted: “We flipped it off so that we could show” the

Unions that the application could track an employee. The object of the exercise had been to

demonstrate what Earth Boring did with the application; however, they also showed the Unions

what else the application could do and did so at the Unions’ requests.

139.

Mr. Woodbridge said that the Employer had asked the Earth Boring employees in the

field who were involved in the demonstration to leave the application open on their phones so that

the Unions could see what could be done, could see the employees “moving around”. Mr.

Woodbridge said that they called the employees to tell them what to do so that Earth Boring could

track them for the purposes of responding to the Union's requests. He said that Earth Boring set

this up in advance — in anticipation of the Unions’ request — so that, if the employee did not hit

“GO” then the application and GeoTrakking would not turn off.

140.

According to Mr. Woodbridge, the application will track if the employee logs into a

function and continues his activities without hitting “GO”. Also, if the employee logged back in

without hitting “GO” the application will track the employee.

141.

Mr. Woodbridge insisted that the ExakTime application offered the administrator the

opportunity to set it for automatic login/logout and that it would default to logout after clock-

in/clock-out, but they had “toggled [the setting] to off” for the purposes of the demonstration. Mr.

Woodbridge maintained that Earth Boring had told the Unions in the meeting that the application

- 38 -

defaults to “off”. He was asked to confirm that if the employee left the application open and

running the GeoTrakker would be active and he said that that would be the case only if the

employee opened the application and had not signed in; Geotrakker would not be active if the

employee had signed in.

142.

Mr. Woodbridge claimed that the application defaults to “no GPS tracking” the second

after the employee taps “GO” on his screen.

143.

Mr. Woodbridge also said that Earth Boring encourages employees to fully close the

application in order to save their batteries.

144.

During Mr. Woodbridge’s cross-examination there was reference to an earlier indication

that once an employee opens ExakTime unless he closes the application or turns off his phone the

application runs in the background. Mr. Woodbridge disputed that and said that the application

automatically defaults to closing on the employee’s hitting “GO” on the phone’s screen and the

employee can then let a co-worker use the phone to log in. Furthermore, he repeated that the feature

is notable in that it “doesn't run down the battery”.

145.

Mr. Woodbridge noted that the employee can also turn the phone off and can close the

application by double tapping and swiping up. Mr. Woodbridge said that if the employee logs out,

the default is that the application shuts off; when opening the application again, the employee

would be asked for the four-digit PIN and the employee or a colleague could then log in. When

Mr. Black put to Mr. Woodbridge that the application stays running until the employee closes the

application or shuts down the phone, he maintained that the application is off when the employee

completes an entry. He said that the application can be off when the employee logs a function and

hits ”GO” and it can also be closed by the employee’s double tap and swipe.

146.

The Unions’ disputing that evidence resulted first in the calling of Mr. Wunderlich and

Mr. Costa to testify in reply, and, later, extensive submissions with respect to the evidence and the

credibility of Mr. Woodbridge. In large measure the dispute related to the proposition that Earth

Boring could track individuals inside and outside its GeoFences and Mr. Costa’s evidence

regarding the demonstration of that facility with his Local 183 colleagues.

147.

Mr. Woodbridge testified that Earth Boring has trained employees about how to sign in

and out and how to stop the application. New employees get training on the ExakTime application

and its use. Training is also conducted annually for supervisors and employees. The documentation

for those exercises was included in the materials the Employer submitted in September 2020.

148.

On cross-examination, Mr. Woodbridge stated that he understood from ExakTime that

the application does not collect data after the employee clocks out at the end of the shift. He added

that he believed that the Mr. Costa’s report said the same thing. Mr. Black followed up with the

proposition that most employees do not turn off the application or close it after every use and Mr.

Woodbridge remarked that he would suggest that most do close the application during the course

of the day to say to save battery power.

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149.

When he was called in reply Mr. Wunderlich testified that during the demonstration no

one had said anything to the effect that ExakTime defaults to turning itself off or to close itself or

to log the user out. He also testified that he did not recall anyone using the word “default”.

According to Mr. Wunderlich, had someone used “default” he would have noted that, he would

expect that he would recall its use, and he would have included a reference to it in his report.

150.

Mr. Costa also gave evidence in reply and said that to the best of his recollection no one

said anything at the demonstration to the effect that ExakTime defaults to turning itself off, to

closing itself, to logging the user out, or to turning off GPS tracking. Indeed, Mr. Costa testified

that he did not recall any discussion about defaults in connection with this software. He was asked:

“Does it default to not tracking?” His answer was “No. If the GeoFence is turned on, it tracks; if

no GeoFence is turned on, there is no tracking; if GeoFence location tracking is turned on,

breadcrumb tracking in data tracking is on to generate data points — they are being collected.

Tracking is not turned off after clocking in; if the individual punches out then there is no more

tracking and location services are no longer engaged.”

151.

In this context, Mr. Costa indicated that “default” was intended to refer to a

preconfigured value. He was asked whether a worker could set up a default and he said that a

worker could not — that the worker “would have to shut down and/or rescind consent for the app

on his phone” as the application needs the consent in order to work.

Local 183’s Submissions

152.

In addition to legislation — notably the Occupational Health and Safety Act, R.S.O.

1990, c. O.1 and the Highway Traffic Act, R.S.O. 1990, c.H.8, — numerous dictionary definitions

and excerpts from Brown & Beatty, Canadian Labour Arbitration, 5th Edition (“Brown &

Beatty”), commentaries on distracted driving and IHSA bulletins entered into evidence during the

proceeding, Local 183 referred to the following authorities:

• R. v. Kazemi, 117 O.R. (3d) 300 (ONCA)

• R. v. Ambrose, [2018] O.J. No. 2683 (OCJ)

• R. v. Tannhauser, [2020] B.C.J. No. 876 (BCCA)

• Re Tran, 2006 CarswellOnt 12185 (Ont. Coroner)

• Re McGhee, 2007 CarswellOnt 12071 (Ont. Coroner)

• Re Mrugala, 2016 CarswellOnt 22068 (Ont. Coroner)

• Ontario (Ministry of Labour) v. Nault, [2018] O.J. No. 2568 (OCJ)

• Coco Paving Inc., [2013] O.L.R.D. No. 1361 (OLRB)

• R. v. Gill, [2012] O.J. No. 2511 (OCJ)

• Horizon Poultry Products Inc. and Schneider Employees’ Association,

[1933] O.L.A.A. No. 61 (Brent)

• Brick and Allied Craft Union of Canada & Brick and Allied Craft Union of

Canada, Local 31 v Terrazzo, 2019 98862 (ON LRB) (the “TSheets

decision”)

• Canadian Pacific Railway Company v. CAW-Canada, Local 101, 2011

CarswellNat 5842 (M.G. Picher)

• Union Gas Ltd. v. Unifor, Local 999, [2017] O.L.A.A. No. 67 (Gedalof)

- 40 -

• Diversified Transportation Ltd. v. TC, Local 362, 2017 CarswellAlta 1463

(CLA) (Casey, Chair)

• Canadian National Railway C0. v. CAW-Canada, [2005] C.L.A.D. No. 495

(M.G. Picher) (“Canadian National”)

• Jones v. Tsige, 2012 ONCA 32 (“Jones”)

• R. v. Cole, [2012] 3 S.C.R. 34 (S.C.C.) (“Cole”)

• Saskatchewan Government and General Employees Union v. Unifor, Local

481, [2015] S.L.A.A. No. 8 (Ponak) (“Saskatchewan”)

• R. v. Marakah, [2017] 2 S.C.R. 608 (S.C.C.) (“Marakah”)

• Labourers’ International Union of North America, Local 625 v. Prestressed

Systems Ltd, [2005] O.L.A.A. No. 125 (Lynk) (“Prestressed”)

• Irving Pulp & Paper Ltd v. CEP Local 30, 2013 SCC 34 () (“Irving

Pulp”)

• R. v. Jarvis, [2019] S.J.C No. 10 (S.C.C.) (“Jarvis”)

153.

While counsel for Local 183 took primary responsibility for the Unions’ argument

concerning safety, he made significant submissions with respect to privacy. He also spoke at length

with regard to credibility — not simply that of Mr. Woodbridge, but also of various positions

advanced by Earth Boring in litigating this matter.

154.

By way of introduction, Mr. Black asserted that the Employer was offside with regard

to the KVP criteria, pointing to what he identified as an absence of any countervailing justification

for the disregard of safety and violations of privacy norms.

155.

As to the latter, he referred to a Canadian National and to Jones for the Ontario Court

of Appeal’s explicit recognition and protection of privacy as a fundamental value and noting the

Court’s references in Jones (at para. 40) to La Forest J in R. v. Dyment, [1988] 2 S.C.R. 417, at p.

427 and p. 429 and his characterizing the Charter protection of privacy as “[g]rounded in a man’s

physical and moral authority” and adding: “privacy is essential for the well-being of the

individual” and “retention of information about oneself is extremely important . . . [and] situations

abound where the reasonable expectations of the individual that the information shall remain

confidential to the persons to whom, and restricted to the purposes for which it is divulged, must

be protected.”

156.

Mr. Black noted that the Court in Jones went on (at para. 66) to address “a right of

informational privacy” as worthy of protection and the Supreme Court of Canada in Cole

recognized its concern with informational privacy: “[T]he claim of individuals, groups, or

institutions to determine for themselves when, how, and to what extent information about them is

communicated to others.”

157.

Counsel also cited Marakah to note the focus of the Supreme Court of Canada there “on

the fact of communication itself (regardless of its substance) as being worthy of protection”.

158.

Mr. Black referred to Jarvis (at paras. 36-37, 41, and 63) for its description of privacy

as including “the concept of freedom from unwanted scrutiny, intrusion or attention”, its

recognition that privacy “is not an all-or-nothing concept”, that “being in a public or semi-public

- 41 -

space does not automatically negate all aspects of privacy with respect to observation or

recording”, and that the fact that “evolving technologies may make it easier . . . for state agents or

private individuals to glean, store and disseminate information about us, . . . does not necessarily

mean that our reasonable expectations of privacy will correspondingly shrink”.

159.

Local 183 conceded that the Employer has a legitimate interest in tracking employees’

time, but denied its interest in the daily photographs, tracking to seven decimal points of precision,

and allowing the sale, transfer or use of employees’ likenesses and data for marketing, sales and

profit of third parties.

160.

Mr. Black concluded that the invasion of employee privacy occasioned by ExakTime

was offensive to all reasonable notions of privacy and totally unnecessary in the scope and

magnitude of its data collection, both at work and outside of work. He also observed that the

arbitral case law affirming and confirming a right to privacy in the workplace subsisted even before

Jones and that arbitrators had recognized the general right of privacy, specifically employees’

interests in personal autonomy and “the right to be left alone”. In that context, he referred to

Prestressed and Saskatchewan. In the later, Arbitrator Ponak wrote:

20. I start from the proposition that employees have privacy rights in the workplace. These

rights have long been recognized in arbitration. As long ago as 1978, Arbitrator Michel

Picher asserted, in the context of a case of an employer’s right to require a physical

examination, that “it is well established that persons do not by virtue of their status

employees lose their right to privacy and integrity of the person”.

21. Twenty years later, in a case about the admissibility of video surveillance, Arbitrator

Herman noted that “the parties both accept that the arbitral approach . . . recognizes that

employees have a right to privacy which is to be balanced against the employers right to

manage the workplace, including the right to investigate suspected employee misconduct”.

161.

Counsel for Local 183 observed that Article 4.01(c) of the collective agreement

envisioned “reasonable rules of conduct and procedure” and he contended that the requirement

that employees download and use a third-party software application which operates to track and

collect employee data at the cost of the employees’ relinquishment of privacy and “self-

endangerment” for the benefit and profit of management was unreasonable on its face and on an

analysis contemplated by the KVP principles.

162.

He concluded that at the core of the KVP test was a question whether the Employer’s

policy was reasonable and that was to be informed by the extent to which the policy interferes with

the identifiable interests of employees both in respect of their interests in privacy and safety. He

concluded that there were proven methods of tracking time which do not intrude on those interests

and there was no sufficiently countervailing employer interest to outweigh such an undermining

of employee safety and privacy interests, arguing that general appeals to efficiencies are simply

insufficient.

163.

Counsel noted that in Irving Pulp the Court weighed the employer’s drug testing policy

against the intrusion on employee privacy and indicated that in order to justify random testing the

employer was required to establish not only that there was a sufficiently serious “requisite

- 42 -

problem” to address, but that there was no less intrusive way to address that problem. Applying

that reasoning to ExakTime, Mr. Black proposed that the Employer was obliged to demonstrate

both that there were some significant problems with the tracking of time or location of employees

that were to be addressed by the use of ExakTime and also that there was no method short of the

photography and tracking aspects of the application that would suffice to address the problems.

164.

Counsel’s contention with respect to KVP was that consideration was also to be given

to whether the employer had fully set out in writing all aspects of the policy including full

disclosure of all pertinent uses, parties, permissions, consents, risks, and the like. He took the

position that anything less would fall short of the “clear and unequivocal” KVP standard and that

ExakTime’s “equivocal to the point of meaningless” language in terms of use constituted the

application of the policy to be unreasonable and unsupportable with reference to KVP.

165.

Mr. Black also made extensive submissions with respect to PIPEDA; however, I have

concluded that, in the circumstances, those are beyond what I consider necessary for a decision in

this matter.

166.

Counsel for Local 183 — supported and supplemented by counsel for Local 793 on the

final day of the hearing — made extensive submissions about credibility and urged me to accept

the Unions’ evidence over that of the Employer whenever there was a conflict. I am of the view

that it is not necessary to make a finding with respect to credibility per se as there are differences

in the evidence that can be addressed without bringing out the scales of credibility. Accordingly, I

see no purpose in setting out a summary of the submissions counsel for the Unions made on the

point.

167.

Turning to what he had identified as his main responsibility in the division of effort on

the Unions’ side, counsel for Local 183 repeated a lengthy submission that he had made recently

in a matter before Arbitrator Hayes, discussed in his decision cited here by the Employer: Clarkson

Construction Co. Ltd./BOT Construction Group and Labourers’ International Union of North

America, Local 183, 2020 50467 (ON LA) (“Clarkson”). The language of the

corresponding articles in the two collective agreements before Arbitrator Hayes was identical to

that in Article 11.12 of the Local 183 collective agreement except that the concluding exclusion in

those were “where prior approval is obtained from the employee’s supervisor” and the Local 183

language substitutes “when” for “where”.

168.

In Clarkson, Local 183 sought the disposition of the grievances brought to contest the

use of another application — “Econz Timecard GPS Software” — on a preliminary basis standing

on the proposition that the grievances were certain to be upheld “on a plain interpretation of the

collective agreement”. Arbitrator Hayes set out a description of Local 183’s submissions in that

case. I adopt his description as apposite and a fair summary of the extensive argument Mr. Black

made over much of the first day of the parties’ closing submissions:

7.

Union counsel presented a sophisticated argument grounded in considerations of

employee health and safety. He conducted a granular review of virtually every word and

phrase in Articles 12.11 and 14.03. He placed those Articles in their contractual context,

referring to the heading of ‘Safety, Sanitation and Shelter’ and other provisions.

- 43 -

8.

The Union submits that the collective agreements provide for the absolute prohibition

of devices — with specific narrow exceptions — in order to prevent the dangerous

distraction of employees engaged in inherently dangerous work. The Union maintains that

the Articles are concerned with the device itself and not the use to which it might be put at

any given time. It says that the Articles make clear that such devices shall not be turned on

or used during work hours except in enumerated circumstances. It says that any requisite

approval must be obtained from the employee’s direct supervisor and that previous blanket

approval from management does not qualify. In short, the Union submits that the parties, by

their choice of contract language, have already determined that any use of devices is

prohibited as inherently unsafe. Any evidence adduced by BOT concerning alleged safe

Econz use usage will not be of assistance.

9.

The Union canvassed several dictionary definitions and the Occupational Health and

Safety Act. It pointed to excerpt from Brown and Beatty, the Highway Traffic Act and

jurisprudence thereunder, several Coroner’s Inquests, Infrastructure Health and Safety

Association advisories, and additional case law.

169.

Arbitrator Hayes came to the following conclusion with respect to this preliminary

approach:

Notwithstanding the Union’s attractive submissions relating to employee health and safety,

this motion is dismissed. At this initial stage of the proceeding I cannot confidently

conclude that the Grievances are bound to succeed no matter what further testimony might

be adduced. Having reached that conclusion, it would be imprudent to say more. No useful

purpose would be served by offering what, by definition, would amount to a premature

opinion as to the correct interpretation of the collective agreements.

170.

Of critical importance to the submissions about the two provisions in the collective

agreements at issue here were the proposition that the language of the Articles and the direct

prohibitions are concerned with the electronic devices and not with the use to which they might be

put. That is, the provisions do not distinguish personal use and business use or use for the purposes

of the Employer. Rather, as with the statutory prohibitions against distracted driving, it is

distraction that the parties intended to curtail — minimizing, if not eliminating, unnecessary

distractions of workers from the inherently dangerous business conducted on construction sites.

171.

The observations made about the two Articles that counsel for Local 183 emphasized

were the absence of exceptions in the language to excuse employees’ “just checking the time’ or

“just clocking in, clocking out, or taking a photograph”; to excuse the use of a phone “if the CEO

wants them to”; or to excuse employees’ use of their phones “if an employer unilaterally mandates

the use of cell phones by all employees per its blanket policy”.

172.

Counsel for Local 183 concluded his submissions with reference to the recent TSheets

decision at the OLRB by then Alternate Chair Wilson. I note now and endorse the observations of

counsel for the Employer and the Association that substantial portions of the commentary in that

case might be assigned to the bin of obiter dicta and I am of the view that this matter can and

should be decided with reference to the evidence put forward — and the evidence that was not

introduced — by these parties in their environment. As will be seen, my conclusions do not differ

materially from those of Alternate Chair Wilson, and I reach them with reference to what I accept

as now generally applicable law and the evidence before me.

- 44 -

173.

Counsel for Local 183 proposed a conclusion that would have me declare “ExakTime

in violation of the collective agreements and relevant statutes”; order the Employer to cease and

desist with its ExakTime policy; and require all employee data collected through ExakTime to

returned to employees and otherwise destroyed.

Local 793’s Submissions

174.

In addition to Irving Pulp, the TSheets decision of the OLRB, and Brown & Beatty,

Canadian Labour Arbitration, Local 793 referred to the following authorities:

• KVP Co. v. Sawmill Workers’ Union, Local 2537, [1965] OLAA No. 2, 16

L.A.C 73 (Robinson) (“KVP”)

• Four Points Sheraton Meadowvale and UNITE HERE, Local 75 2016

CaerswellOnt 19669 (MacDowell)

• Puretex Knitting Co. Ltd. v. Canadaian Textile and Chemical Union (1979),

23 L.A.C. (2d) 14 (Ellis) (“Puretex”)

• Thibodeau-Finch v. Teamsters, Local 880, 1988 CarswellNat 871 (Burkett)

(“Thibodeau-Finch”)

• Trimac Transportation Services – Bulk Systems v. T.C.U., (2000), 88 L.A.C.

(4^th) 237 (Burkett) (“Trimac”)

• Dominion Colour Corp. v. Teamsters Chemical, Energy and Allied Workers,

Local 1880, [2003] O.L.A.A. No. 785 (Tims) (“Dominion Colour”)

• IKO Industries Ltd. v. U.S.W.A., Local 8580, (2005), 140 L.A.C. (4^th) 393

(Tims) (“IKO Industries”)

• U.F.C.W., Local 1000A v. Janes Family Foods, (2006), 156 L.A.C. (4^th) 304

(Trachuk) (“Janes Family Foods”)

• Halifax (Regional Municipality). v. N.S.U.P.E., Local 2, (2005), 171 L.A.C.

(4^th) 257 (Veniot) (“Halifax”)

• Woodstock (City) and Woodstock Professional Firefighters’ Association,

(2015), 253 L.A.C. (4^th) 253 (Parmar) (“Woodstock”)

• Yellow Pages Group Co. and Unifor, Local 6006, (2017), 285 L.A.C. (4^th)

138 (Luborsky)

• Hôpital général de Hawkesbury and USW (2019), 312 L.A.C. (4^th) 291

(Bendel)

175.

As noted earlier, counsel for Local 793 joined in an extensive attack on the credibility

and sufficiency of the evidence presented through Mr. Woodbridge. Counsel reminded me of the

limited experience Mr. Woodbridge had with the ExakTime application and the absence of direct

technical evidence delivered by the Employer to illuminate issues relating to the features and

functionality of the application. Mr. Sagle pointed out that, in addition to the unsurprising

revelation that he does not use ExakTime to track his hours, Mr. Woodbridge identified himself as

one of the administrators at Earth Boring, but added that he had not “gone on it ever, aside from

seeing some sample stuff”. Thus, the only witness called by Earth Boring to speak to how

ExakTime works, what it is used for, how much time is or is not saved by its use, what default

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settings are active, how the GeoFences work, how it syncs and uploads data, and the like — Mr.

Woodbridge — admitted to a lack of direct knowledge of the application.

176.

In the same vein, counsel reviewed and reiterated the Unions’ contentions about the

perceived deficiencies in the Employer’s evidence regarding: its experience with buddy punching

prior to the introduction of ExakTime; its asserting that it saved twelve to fifteen administrative

hours spent weekly dealing with payroll issues; its claim to have had administrative costs savings

of “probably between $240,000 and $270,000 in the first year” with the introduction of ExakTime;

and its implied difficulty in keeping track of the whereabouts of its employees. As to the last, Mr.

Sagle commented on evidence about the size and extended duration of the Employer’s projects

and employees’ concomitant assignments, concluding with the observations that employees do not

move between job sites without receiving instructions to do so and: “These guys are not driving

around patching potholes”.

177.

All of that pertained to an assessment of the case made out for the identification of the

factors relevant to the Employer’s case in addressing the balancing of interests test that was

accepted as determinative of the fundamental privacy issues under discussion. Mr. Sagle

concluded that each of the interests identified in the Employer’s justification for the acceptance

and use of the ExakTime application suffered from a “stunning lack of evidence” and was “often

directly contradicted by the workers who actually have had to use ExakTime”.

178.

Counsel for Local 793 submitted that there was a lack of evidence concerning the

effectiveness of ExakTime in addressing the issues of buddy punching and saving administrative

time — referring to the evidence that the system could be gamed by employees logging in with a

photo-of-a-photo and the evidence of employee-witnesses who found themselves spending more

time verifying and correcting their time and pay under the ExakTime regime.

179.

Turning to the employees’ interests, Local 793 contended that the extent of the

employee’s privacy interests at stake in the circumstances was largely a function of how the

application works, what data ExakTime collects, and the policies and practices in place regarding

the storage, accessibility, disclosure, and retention of those data.

180.

In addressing the unreliability of the positions and evidence presented in response to the

grievances, Mr. Sagle, having reiterated that only Mr. Woodbridge testified to the relevant

considerations, urged me to note the following:

• Initially, the Employer advised that ExakTime saved data for six months only;

the evidence established that data is retained indefinitely.

• When the hearing began, the advice was that the application tracked employees

inside the GeoFence, but not beyond; in fact, the application can track

employees wherever they go.

• When it was revealed that ExakTime could track employees outside the

GeoFences, Mr. Woodbridge testified three years after the application’s

- 46 -

introduction that it defaults to shutting off after an employee makes any entry,

such as logging in after a lunch break.

• At the outset, the Employer maintained that the ExakTime data resided on Earth

Boring’s secure server; however, data are transferred out, are stored in the cloud,

and are shared with Google and other parties.

181.

Counsel for Local 793 remarked that there are two main categories of data collected by

ExakTime as it is used by Earth Boring: GPS location date and full facial images.

182. Mr. Sagle relied upon the evidence and report of Mr. Costa as the definitive statement

of the GPS data that ExakTime collects and where it collects GPS data. Beyond that, Mr. Sagle

reviewed the evidence to address the Employer’s proposition that ExakTime defaults to not

tracking employees and to supplement the submissions Mr. Black had made on the point.

183.

The Employer made a significant change in the collection of the employee’s facial

images by eliminating those it had required in relation to the morning, lunch and afternoon breaks.

Referring to Mr. Costa’s report and the information regarding the number of photographs collected

from four employees in a period of almost eighteen months, counsel calculated that the application

would have gathered approximately 115,000 images from seventy bargaining unit employees in

that period. He emphasized that those are “full facial images” and that they are attached to an

employee’s name and all the employee’s GPS data collected by the application.

184.

Local 793 referred to Mr. Wunderlich’s evidence that the best practices for biometrics

such as the facial images here are first to convert the biometric to a template that can be used for

verification purposes and then to destroy the original biometric. ExakTime, however, stores the

original photographs and they are accessible as such. The preservation of the immutable biometric

allows for the possibility that it might be used to represent the individual.

185.

Counsel reviewed the record regarding the evidence of the retention and access to

employees’ data and the permission granted Exaktime to disclose the data to third parties. In

addition to that unrestricted sharing, the ExakTime Inc. Privacy Policy reveals its use of Google

Analytics in connection with the application and Mr. Wunderlich’s report noted that the use of

Google Analytics “via the app means that the collection of data is ongoing outside of the app itself,

by, according to, and for the benefit of Google and/or ExakTime and/or any number of other third

parties.”

186.

In the result, counsel submitted, a “mountain of data” was being “vacuumed up by

ExakTime” to be shared, sold, or given to others while employees have no way of knowing to

whom their data has been provided or for what purposes. He concluded that the Employer has

selected a time and attendance solution that fails to adequately protect employee privacy. Earth

Boring has unilaterally committed the personal data of its employees to a third-party vendor that

is not bound by the Canadian regulatory framework. The net result was argued to be an

unnecessarily invasive timekeeping system with significant privacy risks for employees.

- 47 -

187.

Counsel for Local 793 noted that Earth Boring had not only failed to incorporate the

biometric template that would have addressed concerns about the use of facial images, it had also

ignored alternatives such taking the application off the employees’ phones and using tablets left

on site, portable clocks, or having employees clock in and out using an assigned fob.

188.

As matters stand, counsel argued in summary, on the scale used in assessing the

balancing of interests, there is a feather on the Employer’s side and an anvil on the Unions’ side.

189.

In introducing his argument based on the authorities, counsel for Local 793 submitted

that my decision need not come down to “closely parsing competing authorities for analogies and

distinctions” because the test is the balancing of interests and, therefore, the case could “easily be

decided on the facts”.

190.

Mr. Sagle made the observation that most of the authorities deal with situations in which

the issue relates to the employer’s collection of data — quite unlike the circumstances presented

by Earth Boring’s use of ExakTime and relinquishing data to other parties.

191.

Counsel reviewed the authorities submitted by Local 793. He concluded with the

comments that the law is not complicated; if an employer wishes to intrude on the employees’

privacy interests, it needs a good reason — established by the evidence — to do so and “the more

serious the intrusion, the stronger the reason needs to be”.

192.

Local 793 requested declarations that the Employer’s ExakTime policy violates Article

18.14 of its collective agreement and that it is unreasonable in violation of Article 4, the

management rights provision, together with an order requiring Earth Boring to cease and desist in

its use of ExakTime with respect to bargaining unit employees.

193.

In addition, Local 793 supported Local 183’s request that I order that bargaining unit

employees be provided with all of their data collected by Earth Boring and ExakTime. I was

requested to order that, after being provided to employees, at the Employer’s expense, the collected

data be destroyed, also at Earth Boring’s expense. In that context, Mr. Sagle acknowledged that

ExakTime Inc. might not comply with such an order, but he referred me to the evidence of Mr.

Woodbridge on cross-examination to the effect that Earth Boring could pay ExakTime to delete

the data. While Mr. Sagle continued in his skepticism, he asked that I order the Employer to make

the request for deletion and pay the associated fee.

Submissions of Earth Boring and the Association

194.

In addition to some of the authorities submitted by the Unions, a dictionary definition

of “entertainment”, California Practice Guide commentaries on California’s privacy legislation,

and the Personal Information Protection and Electronic Documents Act, Earth Boring and the

GTSWCA referred me to the following:

• Agropur Division Natrel v. Teamsters, Local 647, (2008), 180 L.A.C. (4^th)

252 (Slotnick) (“Natrel”)

- 48 -

• Good Humour-Breyers, Simcoe v. United Food and Commercial Workers,

2007 CarswellOnt 6787 (Murray) (“Good Humour”)

• Clarkson Construction Co. Ltd./BOT Construction Group and Labourers’

International Union of North America, Local 183, 2020 50467 (ON

LA) (Hayes) (“Clarkson”)

• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

(S.C.C.)

• Ontario Power Generation and Society of Energy Professionals (2015), 254

L.A.C. (4^th) 233 (Surdykowski) (“OPG”)

• Turner v. Telus Communications Inc. (2007 FC 1601)

• Canada Safeway Ltd. v. United Food and Commercial Workers, Local 401,

(2005) L.A.C. (4^th) 1 (Ponak) (“Canada Safeway”)

• Geraud Ameristeel v. United Steelworkers, Local 8918 [2011] O.L.A.A. No.

405 (Tacon) (“Geraud Ameristeel”);

• Otis Canada Inc. v. IUEC, Local 50, [2-13] O.L.R.B. Rep. 81

• Lafarge Canada Inc. v. TC, Local 213 (2018), 293 L.A.C. (4^th) 30

(Saunders)

• TC, Local 230 v. Innocon Inc. (Toronto Ready Mix Concrete) (2018), 298

L.A.C. (4^th) 310 (Trachuk) (“Innocon”)

• PIPEDA Case Summary No. 351, 2006 CarswellNat 5577

• Jones v. Tsige, 2012 ONCA 32 (“Jones”)

• Complex Services v. O.P.S.E.U., Local 278, (2012) 217 L.A.C. (4^th) 1

(Surdykowski, Chair) (“Complex Services”)

195.

The fundamental position advanced by Earth Boring and the Association was that the

Unions had failed to establish that implementing ExakTime was an unreasonable exercise of the

Employer’s management rights. The assertion was that ExakTime minimally infringes an

employee's privacy rights in that it requires the employee to take only two photos daily to capture

and establish an employee’s location on clocking in and out.

196.

The Employer also maintained that the application does not continue tracking an

employee's whereabouts while at work throughout the shift and certainly not outside of working

hours.

197.

Earth Boring argued that it had identified and established compelling business

justifications for its implementation of ExakTime and that there are no adequate alternatives that

could achieve what ExakTime does for its business.

198.

Counsel for Earth Boring submitted that it has not violated Articles 11.12 and 18.14 of

the Unions’ respective collective agreements. The Employer argued that the interpretation of those

provisions advanced by the Unions is untenable. Moreover, Mr. Charney noted that there could be

no doubt that Earth Boring’s management had provided approval for employees to use their cell

phones for the purposes of ExakTime. Accordingly, the employees’ use of their cell phones was

argued to fall within an exception specifically recognized in each of the subject provisions.

- 49 -

199.

Counsel for the Employer and the Intervenor submitted that the Unions had the onus of

proof in these proceedings and that they had failed to call evidence on a number of key issues. In

particular, there had been no evidence about any health and safety incidents or “near misses” at

any of Earth Boring’s project sites. The Unions’ submissions were dismissed as constituting

speculation.

200.

I was also urged to recognize that the only evidence that I had heard from the Unions

about any security breaches involving ExakTime were purely speculative. As such, the Unions, as

the moving parties, were argued to have failed to meet the onus to tender evidence about security

and privacy measures and breaches.

201.

The Employer and the Association dismissed the evidence of Mr. Wunderlich as having

been filled with suppositions about what could happen to the data collected by ExakTime and the

security measures that could have been put in place without his having knowledge of how

ExakTime actually works. In the submission of the Employer and the Association, the Unions’

failure to tender evidence on those key points was said to be fatal to the success of the grievances.

202.

The Employer posited that there were two KVP factors relevant to the assessment of its

ExakTime policy: ExakTime must not be inconsistent with the collective agreements and the

implementation of ExakTime must not be unreasonable.

203.

Earth Boring acknowledged that the reasonableness of a rule that allegedly infringes an

employee’s privacy rights is to be assessed by balancing an employee’s privacy interests against

the employer’s reasons or rationale for a pertinent privacy infringing measure. The Employer also

accepted that the concept of proportionality is key to assessing whether an employer’s privacy

infringement is justified — the more intrusive the impact of the measure on an employee’s privacy,

the greater the business rationale that must be demonstrated. Conversely, Earth Boring posited, if

a measure is less intrusive, the level of justification needed is also reduced.

204.

While accepting that there was common ground on the tests to be applied, counsel for

the Employer submitted that reliance on Irving Pulp and other drug and alcohol testing cases was

misplaced as the privacy interests and the evidentiary onus on the employers in those in those cases

are materially different from those in this matter.

205.

Counsel referred to Good Humour for its value in establishing the Unions’ onus to call

sufficient evidence about how the impugned application worked, its data security and privacy

measures, and how it involves any kind of material privacy invasion.

206.

Mr. Charney conducted a careful review of the evidence in an effort to establish that the

ExakTime application functioned as Mr. Woodbridge testified in September 2020 — by defaulting

to turning the application off after each entry, whether that was to clock in at the start of the shift,

to resume work at the end of a break, or to end the shift.

207.

I set out here the process as described by counsel for Earth Boring. His description, as

follows, accurately explains Earth Boring’s position:

- 50 -

a. Mr. Woodbridge testified during his direct examination on September 25, 2020 that

when a new employee uses the application for the first time, they download the

application and enter in the unique company code that identifies them as an employee

of Earth Boring. Each employee is also provided with a unique four digit code or PIN

that is set by an Earth Boring administrator, which identifies the employee in

ExakTime’s system. An administrator only needs to provide the employee’s name in

order to enrol them in the system and obtain their PIN. No other personal information

is provided, including the employee’s home address, phone number or SIN.

b. In order to clock in, the employee then opens the ExakTime application and enters

their four digit pin. The employee clicks “Go”, selects the site location and then the

appropriate cost code (start, break, lunch, travel or resume work). When employees

sign in, they are also required to take a photo of themselves in order to confirm their

identity. After submitting the photo, the employee is then automatically logged out of

the application and is taken back to the page where the employee needs to enter their

PIN. . . .

c. When an employee goes on break or lunch, they follow the same process as when they

clock in, but click the “break” or “lunch” cost codes. . . . At the end of their break, the

employee again follows the same process by entering their PIN to login to the

application, clicking “go”, selecting the job site and choosing the cost code “resume

work”. . . .

d. At the end of the work day, the employee again enters their PIN, but clicks the red

“stop” button. The employee is then required to take a photo, and is asked a question

on whether they did their safety talk and whether they were injured, and will then sign

to confirm the information they have submitted is accurate. . . .

e. In the COVID-19 era, when employees log in for the first time in the day, they will

also be asked the COVID-19 screening questions. . . .

f. Although ExakTime initially required that employees take a photo each time they

clocked in and out, the number of photos required has been reduced to only two a day,

at Earth Boring’s initiative. Employees are only required to take a photo when they

clock in for the first time in the day, and when they clock out at the end of the day.

Mr. Woodbridge testified that this change has been in place since September 2018.

(emphasis added; references to exhibit pages omitted).

208.

Later in his submissions, Mr. Charney added that Mr. Woodbridge had testified that

Earth Boring does not use GeoTracking of its employees and continued the submission as follows:

a. There is a setting that, when enabled, results in an employee being automatically

logged out of the application after entering any function in the application.

Specifically, Mr. Woodbridge testified that when this setting is enabled, the employee

will be automatically taken back to the login screen where they enter their PIN after

each and every time they enter a function on the application. This feature results in the

employee being automatically logged out of the application after entering a function,

with the consequence being that the geotracker is disabled. Mr. Wunderlich even

confirmed when he was called in reply on November 25 that ExakTime can be

configured for geotracking to be turned off.

- 51 -

b. Mr. Woodbridge testified during his cross examination on October 21 that having this

setting enabled serves two chief functions beyond limiting geotracking—it saves

battery life and allows the employee to hand their phone to another employee to use the

application without having to log out each time.

c. When this case first started over three years ago the parties made some initial

suggestions about geotracking, but Mr. Woodbridge clarified during his direct

examination that the default setting is that the application will automatically log an

employee out when they log a function in the application. The effect is to disable

geotracking. Whether it’s a default setting of ExakTime or a default setting of Earth

Boring does not matter. The fact of the matter is that Earth Boring has this function

disabled, which consequently minimizes any potential privacy invasion. Further, Mr.

Black failed to make an important note with respect to your award of June 28, 2018. At

paragraph 10, bullet #8, it says “the Employer maintains that it has not included the

“geo tracker” function in the version of the technology it uses”. My friend’s statement

that this was not raised until Mr. Woodridge’s direct examination in September 2020

is simply not true, as the employer clearly raised this as an important fact at the outset

of its case.

d. In summary, Earth Boring does not use the geotracker so that its employees are not

tracked throughout the day when they are at work. The only time that their location is

tracked is when they clock in or out, and at that point, ExakTime reveals their location

relative to the geofence. Earth Boring has taken steps to minimize the privacy

invasiveness of the application. We submit that you ought to accept Mr. Woodbridge’s

evidence over the Unions’ evidence on this point, given that Mr. Woodbridge is an

administrator for the application and has been using it on a regular basis since October

2017.

e. Further, the fact that Earth Boring originally stated that the geotracker did not operate

beyond the geofence is not relevant, because Earth Boring has established that it does

not actually track the location of employees apart from when then clock in and out.

(emphasis added)

209.

Counsel for the Employer supported his client’s position with the submission that “Mr.

Woodbridge has full knowledge of how ExakTime works”. Mr. Charney recognized that Earth

Boring had initially asserted that photographs could be accessed by its administrators and were

retained for a period of six months. He suggested that Mr. Woodbridge asked ExakTime Inc. that

they be retained for six months, but on the advice of the Employer’s auditor asked that they be

kept indefinitely and for at least seven years. Mr. Charney submitted that it makes sense to keep

the payroll information and back up data on hand in case it is requested by the Canada Revenue

Agency.

210.

Turning to safety, counsel characterized the Unions’ submissions on Articles 11.12 and

18.14 as “an effort to circumvent or to curtail management’s right to administer the workplace” —

an inherent right that he identified as also being confirmed in the broad language of Article 4.

Counsel submitted that “there is no justification for interpreting a provision narrowly with the

effect of curtailing a management right when that was not the intent of the parties”.

- 52 -

211.

In any event, Mr. Charney observed that management can allow the use of entertainment

and personal communications devices “provided the prescribed exceptions of Articles 11.12 and

18.14 are respected.”

212.

Counsel submitted that the words “entertainment devices” inform the analysis of the

type of device that Article 11.12 prohibits and reminded me that an appropriate interpretation

required my respecting the proposition that all words used in the collective agreement — including

“entertainment” — are intended to have and must be given meaning.

213.

Mr. Charney argued that the Highway Traffic Act provisions referred to by Mr. Black

were of assistance in that the statute distinguishes between “wireless communication devices” and

“entertainment devices”. In subsection 78.1(1) wireless communication devices are prohibited in

the following language: “No person shall drive a motor vehicle on a highway while holding or

using a hand-held wireless communication device or other prescribed device that is capable of

receiving or transmitting telephone communications, electronic data, mail or text messages.”

Subsection 78.1(2), dealing with entertainment devices, reads as follows: “No person shall drive a

motor vehicle on a highway while holding or using a hand-held electronic entertainment device or

other prescribed device the primary use of which is unrelated to the safe operation of the motor

vehicle.”

214.

Earth Boring argued that the exceptions in the articles must be recognized and applied.

The first of relevance is the exception permitting use during the job site emergencies and breaks.

The second exception would permit an employee to use a cell phone when or where the employee

has prior approval. Mr. Charney argued for acceptance of what the Unions’ referred to as a “blanket

approval” evidenced by the Employer’s directing employees to use the ExakTime application and

preferably to do so using their own phones. He contended that the Unions were reading in words

that do not exist. An appropriate view of the language was one that afforded the Employer the

opportunity to do as it had done with ExakTime since: “A ‘supervisor’ in the context of these

provisions is a general term that can refer to anyone with authority over the employee”. The

argument was put as follows:

a. If you accepted the Unions’ argument that only an employee’s direct or immediate

supervisor can provide approval, then the result would be that management and the

higher ups in Earth Boring could not issue a general direction or company rule.

Supervisors need to provide approval in accordance with existing rules and direction

provided by Earth Boring’s management. Earth Boring’s management has clearly

issued a direction that employees are required to use ExakTime on their cell phones or

a colleague’s cell phone in order to clock in and out for work purposes. It would be

absurd to suggest that employees require approval from their immediate supervisor,

despite this clear and general direction from Earth Boring.

b. The Unions have argued that in order to fit within this exception that employees need

approval directly from their supervisor and that a blanket approval from management

is not sufficient. However, the collective agreements do not state that approval is

required for each and every time an employee uses an entertainment or personal

communication device. Both collective agreements refer to the requirement of “prior

approval”. This language suggests that approval for cell phone use can be obtained in

advance. If employees were required to obtain approval from their direct supervisor for

- 53 -

each and every time they need to use their cell phone during working hours, this would

be highly impractical. This is particularly so in light of the prevalence of cell phone use

in the construction industry and the use of cell phones for legitimate work-related

purposes.

c. Mr. Black also suggested that the use of the word “approval” means that employees

need to make a request for approval or that approval is something that must be sought.

The Unions are mistaken on this point. . . . My friend is reading in language that simply

does not exist. If the parties had intended that a request needs to be made to obtain

approval, they would have said so.

d. The Unions also rely on the use of the word “obtain” in Article 11.12 to support their

argument that an employee needs to make a specific request to use a cell phone.

“Obtain” can mean that an employee has received something after making a request,

but it can also include something being conferred without such a request. If the parties

had actually intended that an employee needs to make a specific request, the parties

could have said so. . . . It does not contain such language and as such, Local 183’s

submissions regarding the meaning of the word “obtain” must be rejected.

e. Local 183’s attempts to parse the words in Article 11.12 strains the interpretation of the

provision beyond what is reasonable or practical. In the real world of collective

bargaining, parties do not parse every single word of a provision. Rather, they look at

the big picture and interpret the provision in light of the intent of the parties. The clear

intent of the provision was to permit employees to use entertainment or personal

communication devices in certain circumstances, including in circumstances where

supervisors have approved it. The Unions are taking the interpretation exercise to an

extreme that is disassociated from the collective bargaining reality.

215.

Mr. Charney argued that both of the exceptions in Articles 11.12 and 18.14 apply to

Earth Boring’s use of ExakTime. He said: “First, by its very nature, ExakTime is used only during

lunch and regular work breaks or before or after working hours. Second, approval has been given

for employees to use ExakTime.” In Mr. Charney's view: “The Unions have no answer for either

of those exceptions once the words of the collective agreements are parsed in a reasonable manner

and not with a ridiculously fine-toothed comb”.

216.

I was reminded that Mr. Woodbridge had testified that employees do not use ExakTime

while working on job sites and that they are expected to use the application when they are in a safe

spot on-site and not actively working. Earth Boring employees use the application to clock in prior

to starting work and if they need to clock out for their break employees are required to stop working

and go somewhere safe where they will take their break and clock out. They would then clock

back in prior to going back to work, and then clock out after stopping work at the end of the day.

That evidence established that Earth Boring’s employees are supposed to use the application

during their breaks or before or after working hours that arguably complies with the exceptions in

the two collective agreement provisions.

217.

Mr. Charney took the position that a restriction on the use of devices during “working

hours” and “lunch breaks” and “regular work breaks” suggested that the parties intended to restrict

the use of devices while work is being performed and the clear and uncontradicted evidence,

- 54 -

according to counsel, was that employees are not required to use ExakTime during working hours

but only when work has stopped and there is a segue into a break, departure or lunch.

218.

Earth Boring submitted that the provisions clearly contemplate that the use of devices

during non-working time is entirely appropriate and safe. Mr. Charney distinguished the

authorities referred to by the Unions in support of their position on the application of the collective

agreement provisions and he observed that Earth Boring's policy on cell phone use at work is

consistent with the IHSA guidelines referred to and relied upon by the Unions

219.

Mr. Charney distinguished the TSheets decision on the grounds that the collective

agreement provisions and some of the facts in the EarthBoring-ExakTime situation are

distinguishable from those reviewed in TSheets. In that case, the parties had negotiated a specific

process for collecting employee timesheets, a process with which the implementation of the new

technology was clearly inconsistent on a plain reading of the collective agreement. The employer

had no option of deviating from the mandatory process identified in that collective agreement, but

not reflected in the collective agreements here.

220.

Turning to the application of the balancing of interests test, Earth Boring contended that

it had compelling and legitimate business reasons for implementing ExakTime. Mr. Charney

commented that the method the Employer used to collect the information and the nature of the

information collected were minimally invasive. On the other hand, he submitted that, by failing to

call any evidence about the privacy and security measures in place, the Unions had not addressed

the protections afforded the data collected by ExakTime. Counsel referred to the use of Microsoft

Azure and Mr. Wunderlich’s concessions that it likely offers highly secure services, has over

ninety compliance certifications, and was the first company to achieve an ISO certification for

cloud-based services.

221.

To counteract Mr. Wunderlich’s criticisms about Earth Boring’s failure to have

conducted sufficient and appropriate due diligence when acquiring and implementing ExakTime,

Mr. Charney submitted that “. . . this type of intensive due diligence process is not practical for a

small to medium size construction company and is perhaps more realistic to expect of a

governmental organization or large corporation.” Moreover, Mr. Charney submitted that Mr.

Woodbridge had good reasons to request that the ExakTime data be retained indefinitely.

222.

Mr. Charney made submissions about the California Online Privacy Protection Act and

submitted the state has extensive privacy laws applicable to private sector organizations. Mr.

Charney also referred to the California Customer Records Act that applies to the personal

information about California residents, noting that there is no evidence that ExakTime treats any

of its customers differently depending on their geographic location.

223.

In addressing the balancing of interest tests, Earth Boring argued that there are no other

alternatives that are less privacy-invasive that would fill the same business functions carried off

by ExakTime. Mr. Charney responded to Mr. Wunderlich’s suggestion that the Employer might

consider installing time clocks on sites and provide employees with swipe cards: “[T]his type of

system is simply not practical for an employer with a highly mobile workforce, such as Earth

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Boring.” He then went on to respond to the submissions made, particularly by Mr. Sagle,

suggesting that the Unions were relying on the evidence of only two individuals.

224.

Mr. Charney also noted Mr. Woodbridge testified that an ExakTime timeclock would

not be practical because it would not alleviate buddy punching issues. Counsel commented that

Earth Boring would need ten to seventeen timeclocks in order to install them on each project or

site. Mr. Charney's final observation on that issue was that employees who are required to travel

between sites or to pick up materials for example would be unable to clock in on the site.

225.

Similar observations and objections were offered with respect to Mr. Wunderlich’s

suggestion that Earth Boring provide iPads or tablets at each of the sites. Furthermore, counsel for

the Employer noted that employees who start their day by picking up supplies from a non-Earth

Boring site or who work largely independently would not be able to clock in or out. Mr. Charney

suggested that the iPad proposition might not be practical on a large site where employees may

take their breaks far away from the site trailer.

226.

Mr. Charney also addressed the proposition that Earth Boring might have implemented

a policy requiring employees to clock in and out on their own cell phones, and that their identity

could be verified through the use of their own personal cell phone and four-digit PIN. He answered

that with reference to Mr. Woodbridge’s testifying that the option would not work in practice as

“Earth Boring requires flexibility so that when employees lose or forget their phones at home or

their phones die, they can use their foreman's phone or a colleague's phone to sign in”. Mr. Charney

noted that although employees are admittedly discouraged from using each other’s cell phones due

to COVID-19, this is only a temporary measure to enhance the health and safety of Earth Boring’s

employees. The last argument that Mr. Charney raised in response to this is that there was no

evidence that the payroll reports viewed by Earth Boring’s payroll administrator would show a

cell phone’s unique identifier in order for Earth Boring to verify an employee’s identity.

227.

Mr. Charney submitted that the conversion of a biometric to a template is an impractical

alternative due to Earth Boring’s having a mobile workforce — where employees may work at

various sites, many of which are only temporary.

228.

Mr. Charney expressed the Employer’s contention that ExakTime imposes little to no

burden on employees. He went on to observe that Earth Boring had no obligation to consult with

the Unions when implementing ExakTime, but nevertheless Earth Boring first implemented the

application with some select employees on a trial basis.

229.

Counsel noted that Earth Boring has never directed or required employees to purchase

a cell phone to use ExakTime. Moreover, Earth Boring employees have been using cell phone

applications for work purposes for years without any objections from the Unions.

230.

While commenting that the Employer was not subject to the legislation, counsel cited

the PIPEDA Case Summary #2006-351 — a matter dealing with an employer’s installation of a

GPS system in its vehicles — where the assistant commissioner based the analysis on a four-part

test summarized as follows:

(1) Is the measure demonstrably necessary to meet a specific need?

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(2) Is it likely to be effective in meeting that need?

(3) Is the loss of privacy proportional to the benefit gained?

(4) Is there a less privacy-invasive way of achieving the same end?

Mr. Charney submitted that if that test were applied in this case it would be met by Earth Boring

given the evidence from Mr. Woodbridge with respect to the several purposes served by the

ExakTime application including its allowing Earth Boring to determine where its employees are

located on its multiple sites and thus to enable the Employer to fulfill its health and safety

obligations, including now assisting with any contact tracing if an employee has a positive test for

or a suspected case of COVID-19.

231.

In addition, Mr. Charney submitted, ExakTime is an application that effectively allows

Earth Boring to meet all of the legitimate business needs it identified in evidence. The loss, in the

process, of any privacy employees may have experienced was said to be balanced against this

benefit and there has been no demonstrated less invasive way of achieving this goal. To the

contrary, counsel submitted, the alternative methods available — which he suggested were largely

biometric systems — ought to be viewed as more intrusive than ExakTime. Earth Boring argued

it has taken steps to minimize the privacy-invasiveness of the ExakTime application so that any

loss of privacy is minimal and outweighed by the benefits of the application.

232.

The Employer referred to OPG for Arbitrator Surdykowski’s analysis of information

about a person’s attendance at work not being “personal information” pursuant to PIPEDA or for

any other privacy purposes. Counsel also reviewed Complex Services and the comments by

Arbitrator Surdykowski rejecting the argument there that the employer’s collection of medical

information was contrary to principles established in Jones.

233.

Earth Boring concluded its submissions as follows:

We submit that the Unions have not established that ExakTime is unreasonably invasive of

their members’ privacy interests, particularly when weighed against Earth Boring’s

compelling business reasons for implementing the technology. There has been no violation

of the collective agreements, as the use of ExakTime clearly falls within both of the

exceptions contained in those provisions.

In terms of remedy, while our primary submission is that the grievances should be

dismissed, if you were to uphold the grievances to one degree or another we would have to

comment on two things. First, ordering Earth Boring to provide data to employees is a

punitive, onerous and potentially expensive remedy given that the information is

aggregated. If you were to find that the grievances have merit, we would urge you to reject

that request. Second, with respect to the destruction of the data, Earth Boring had no other

timekeeping system in place during this period. Even if you were to order a cease and desist

and provide some period of time to do that, Earth Boring needs to retain the pre-existing

data for seven years at least.

Quite apart from the question of remedy, it is submitted that the most appropriate and just

outcome would be the dismissal of the grievances.

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The Unions’ Reply Submissions

234.

In addition to their reviews of the authorities referred to by Mr. Charney and reiteration

of some of their principal contentions, counsel for the Unions identified a number of points on

which they relied in response to the Employer and the Association.

235.

Mr. Black made the argument with respect to Article 11.12 that the Employer would be

violating the collective agreement if Earth Boring required employees to use the ExakTime

application during their work breaks. He took the position that an individual is working and on

“working hours” until the touches necessary to clock out for a break are completed — that the

employee is not on break until he or she has clocked out on the application. Accordingly, the

argument went, if the clocking out took place during working hours that would constitute a

violation of the Article 11.12. Alternatively, if the clocking out took place during the break, then

there would be a violation of the collective agreement in reference to lunch and other breaks. In

essence, his argument, as he expressed it, was that an employee is working until the employee has

completed the clocking out to start a break. Accordingly, the process of using the application to

register the break takes place during the employee’s “working hours”.

236.

In addition to other comments about the impracticability of their doing so, Mr. Black

responded to Earth Boring’s proposition that some concerns could be addressed by bargaining unit

employees’ electing to use their foreman's phone for ExakTime, commenting that this was coming

from the same employer that argued its need for ExakTime because of how uniquely dispersed its

employees are.

237.

Mr. Black also reacted to comments made by Mr. Charney regarding the frequency with

which employees are photographed and circumstances in which modern individuals or individuals

today find themselves photographed in all manner of places. His position was that a photograph

kept on Earth Boring servers or in a personnel file was entirely different from a continuous series

of multiple photographs taken daily throughout the day over the entire course of an individual's

employment, that is then collected by a third party for any and all purposes it deems appropriate.

In Mr. Black's words, the situation was “totally unprecedented”. He remarked further that

ExakTime was collecting “hundreds of thousands of photographs, together with data as to where,

when, and who was in those photographs”.

238.

Counsel for Local 183 distinguished ExakTime’s collection of data from the alternatives

encountered in the cases, and submitted the Earth Boring’s use of the application involved

information as to an individual's precise location with the result that this daily process of “up close

and personal photographs of a person’s face, on a person's cell phone, together with their precise

locations in real time constituted a complete sequential composite of an individual's likeness, their

literal visual identity as an individual person distinguishable from other persons over time”. The

submission was that the capturing of employees’ faces fell at the “most invasive end of the

spectrum” of privacy invasion. That the application involves the individual’s cell phone was

argued to render this even more invasive. And then this technology’s addition of access afforded

third parties and the Internet amounted, in Mr. Black’s submission, to a “most unjustifiable privacy

invasion of the worst kind”.

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239.

Counsel for Local 183 emphasized that the provision of the employees’ biometrics to a

third party itself constituted a privacy violation. The handover and delivery of the data with the

employee’s movements through time and space constituted, as Mr. Wunderlich had said, the

provision of “a very rich data set” for what Mr. Black summed up as “any at all uses under the

sun” entirely divorced from any legitimate interests of Earth Boring.

240.

Mr. Black reviewed a number of the authorities relied upon by the Employer, noting in

particular the circumstances in which the cases demonstrated other employers’ using more

privacy-sensitive approaches to the collection of biometric and other information, including the

use of templates, the destruction of the employee’s original data, and the deletion of data and

templates upon the employee's termination of employment.

241.

In addition, Mr. Black noted that none of the Employer’s cases related to employees’

use of smartphones, let alone their own phones and third-party applications downloaded onto the

employees’ personal phones.

242.

Mr. Black concluded his submissions on the safety issue by contending that Earth

Boring was “dead on the language”.

243.

In his reply submissions, Mr. Sagle commented extensively on the concerns the Unions

had with the reliability of Mr. Woodbridge’s evidence, what I have referred to as the controversy

regarding the proposition that the ExakTime application featured a default feature that protected

employees’ privacy, the inadequacies the Unions detected in the Employer’s response to evidence

concerning alternatives to ExakTime, and the means by which technologies might be made more

privacy-sensitive in accordance with the evidence of Mr. Wunderlich. Mr. Sagle also engaged in

an extensive review of the authorities that had been submitted.

Analysis and Decision

244.

The ExakTime application is obviously a useful tool. Not only does it a provide the

Employer with precise information concerning an employee’s start, stop and break times, but

ExakTime affords the Employer an opportunity to determine the location of employees during the

workday. Then, at the end of their shifts, in order that they might clock out and leave, the

application secures confirmation of the employees’ having taken breaks, having avoided injury,

and the like — all of which might be additional to the information that the Employer was able to

obtain easily using any previous timekeeping system.

Onus

245.

Threaded through the Employer’s response to the Unions’ submissions was the

proposition that the onus to establish the intricacies of the ExakTime application and the specifics

of the transmission, storage and security afforded the data and images of affected workers rested

with Local 183 and Local 793.

246.

The parties were in agreement that the issues associated here with Earth Boring’s

insistence upon employees’ use of ExakTime attracted the KVP principles concerning the

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application of rules not provided for in the collective agreements. It is my view that a proponent

or defender of a rule, in this case Earth Boring, bears the onus of establishing that it satisfies KVP

standards — principally, in this instance, that it is reasonable, applied consistently, and not in

conflict with collective agreement provisions.

247.

I can neither adopt nor support the Employer’ position on the question of onus. In the

first interim decision issued after opening statements, but before the commencement of testimony,

I expressed my view that the Employer had the onus of establishing, in accordance with KVP

principles, the reasonableness and compatibility of its rule that all bargaining unit employees use

ExakTime. At paragraph 32 of that interim award, I made this statement:

The fundamental facts regarding the implementation of ExakTime are not in dispute in that

the Employer does require employees to take several “selfies” that are uploaded and

disclose times and locations; however, the significance and appropriateness of those

alleged incursions are open to debate. The Unions will maintain that those requirements

are sufficient to ground their argument for violations of the collective agreements and the

Employer is on notice that it will also be called upon to address (and attempt to justify)

any further surveillance or invasions of privacy that might be disclosed in evidence.

(emphasis added)

In paragraphs 33 and 34, I added:

33. . . . Furthermore, it is open to the Unions to support their claims as suggested in their

submissions on the grounds of any failure by the Employer to demonstrate a balanced

justification for any intrusions on employees and the precautions taken to safeguard their

personal information.

34. In sum, the Unions have identified an environment and a context that arguably require

a response from the Employer to address allegations of impermissible surveillance and

invasions of employees’ privacy. (emphasis added)

248.

I then went on to say that in all of the circumstances I could not discern a justification

for my requiring the Employer to proceed first rather than responding to the Unions in the ordinary

course. I said nothing then to fix the onus on the Unions and it is my view that the Employer, as

the proponent of a rule — unilaterally imposed without direct support in and arguably in conflict

with the collective agreements — bears the onus of establishing that the rule meets the KVP

criteria.

249.

Moreover, as noted by Arbitrator Burkett in Trimac Transportation (at para. 44), Earth

Boring has the onus of demonstrating that its interests in establishing the ExakTime policy

outweigh those of its employees in preserving their privacy.

Some Preliminary Observations and Dispositions

250.

Before proceeding further, I will address some elements of the dispute and submissions

that either do not arise on the evidence or are of little or no consequence having regard for the

material issues that divide the parties.

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251.

As to the latter and referring to the KVP principles, I recognize that the treatment of a

number of individuals identified as Polish workers threw up the potential for an argument about

the inconsistent application of the Employer’s ExakTime policy. The evidence was far from

convincing.

252.

Notwithstanding the Unions’ assertions that the Polish workers were exempted, there

was, at best, conflicting evidence. Some of the group were said to have downloaded and used the

application in common with other employees and some were said to have used the application at

their hotel after their shifts. The state of the evidence is such that I could not rely on it to conclude

that the ExakTime policy was susceptible to attack as being inconsistently applied.

253.

Another matter that I regard as being of no consequence arises in connection with the

evidence given about the employees’ need to acquire a smartphone, their need to subscribe to a

data plan, and the possibility of charges for data usage. None of those concerns shelter under the

headings of “privacy” or “safety”. They are distinct from those admittedly weighty matters of fact

and principle. At best, they are akin to an employer’s dictating that employees equip themselves

with a specific (and expensive) safety boot. In both instances, the forced acquisition and any

attendant continuing expense would remain as the employees’ “cost of doing business” with the

Employer until bargaining produces relief or another result.

254.

While a substantial effort was expended in addressing what Mr. Woodbridge said or

failed to say during the January 2019 demonstration at the Association’s offices and while the

Union’s relied on that controversy to support their attack on his credibility, the issue to be

determined is not what Mr. Woodbridge said about the application. The issues require

consideration of the features and functions of the application — accurately described — and the

extent to which the interests of employees are protected or abused as the parties debated.

Accordingly, while the failure to call John Currey might be argued to justify my drawing an

adverse inference if the issue had been whether Mr. Woodbridge had spoken certain words at the

demonstration, his not testifying neither harms the Employer’s case nor assists that presented by

the Unions.

255.

Similarly, I am not substantially concerned with the submissions that I received with

respect to all of the credibility findings that might be available in the circumstances. True, some

of the information provided on the first day of the hearing during discussion of preliminary issues

did not find support in detailed evidence given subsequently. Not all of the Employer’s

introductory observations were supported by the evidence; however, I am not persuaded that the

information initially provided was intended to mislead and it was unlikely to achieve that end given

the probability and the expectation of extensive evidence that was introduced.

256.

At a minimum, in my view, it is fair to say that Mr. Woodbridge was mistaken in his

evidence with regard to a notional default setting or feature of the ExakTime application. As

discussed below, the overwhelming weight of the evidence contradicted his testimony on that

point. It is not necessary, however, for me to find that to be a matter of credibility as I am

principally concerned with determining the extent to which, if at all, the use of the ExakTime

application in fact trespasses upon the privacy interests of bargaining unit employees and involves

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them and the Employer in possible contraventions of Articles 11.12 or 18.14 of the collective

agreements.

257.

While not a matter of credibility, I do note that Mr. Woodbridge quite often spoke of

his understanding without indicating how he gained the understanding and certainly without

indicating that he did so from his own experience with whatever he was speaking about. The

indirect reliance on unidentified sources or sources not available for examination necessarily

undermined the force and reliability of some of his evidence.

258.

In the result, there were several points on which I could not accept the evidence of Mr.

Woodbridge and, therefore, the evidence on behalf of Earth Boring as being determinative.

259.

The absence of evidence of injury and death, while welcomed, is insufficient to respond

to an argument concerning the safety implications of distraction by devices such as smartphones;

however, I do note that the hearing was completed without the revelation of any safety incident

having occurred at any of the Earth Boring sites as a result of or in any way involving anyone’s

use of a smartphone or the ExakTime application.

260.

Moreover, there was no evidence of any specific employee’s having been disciplined

for a safety infraction associated with Article 11.12 of the Local 183 collective agreement or

Article 18.14 of the Local 793 collective agreement. Mr. Woodbridge did refer to that having

occurred; however, there was no evidence of a specific event or of an identified individual’s being

disciplined.

261.

Similarly, there was no evidence of any security breach involving ExakTime, or Earth

Boring’s use of the application and no evidence of any employee’s personal information having

been used by anyone other than Earth Boring and ExakTime Inc. for the application’s intended

timekeeping and related purposes. There was at least one exception to that. David Muhanlal gave

evidence of a post-shift trip to the bank from which one can conclude that the application was

active when he left the site and also that his supervisor or someone at Earth Boring had detected

his movements outside the GeoFence and his shift hours. As developed below, that is far from

surprising given the evidence regarding the functionality of ExakTime. Mr. Muhanlal’s evidence

might have been addressed by the supervisor he named, but that person did not testify.

262.

The parties expended significant efforts addressing the use of other applications in the

Earth Boring operations. Having heard that evidence, I concluded that many employees probably

had one or more of the named applications on their cell phones; however, there was no consistent

pattern — beyond the ubiquity of ExakTime — and the acquisition or acceptance and use of those

applications was mixed. In the result, the evidence was of limited value at best.

263.

The implication of the evidence was that it is likely the case that some of these other

resources were used on the Employer’s sites, but none in an area or situation identified in the

evidence to have been threatening to the employees’ safety. One might conclude that the

smartphone use associated with some or even all of those other applications was consistent with

Earth Boring’s position that employees were allowed to use their cell phones for work purposes;

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however, there was no evidence of any objection to these applications or their use by bargaining

unit employees.

264.

None of those additional applications or resources required employees to take

photographs of themselves. Some had geo-locational aspects, but there was no evidence of the

wholesale transmission of any employee’s data and certainly none to third parties for their use in

the conduct of their business or their relationships with fourth and fifth parties. Moreover, the

evidence regarding when, where, and how they are used was not nearly as precise as that about

ExakTime.

265.

Accordingly, the evidence of those applications or that technology was of little utility

in addressing the issues raised by the grievances. Furthermore, I am not to be understood to say

anything with respect to privacy or with respect to safety about any of the other applications used

by Earth Boring at any of its sites. There is no evidence that any of them attract the privacy analysis

I have heard with reference to ExakTime and there is no explicit evidence as to their being utilized

contrary to any restrictions imposed by Articles 11.12 and 18.14 of the collective agreements.

266.

The evidence of the survey of the Association’s members was of no assistance in

determining the disposition of the grievances. The criticisms of the recent survey are not restricted

to the methodology used. It was inadequate for the purpose of assisting in the assessment of the

ExakTime application as used by Earth Boring.

267.

The fact that the questionnaire asked respondents to communicate their use of

“electronic timekeeping and/or tracking” technology resulted in the information being quite

unhelpfu as to whether any of the respondents were using their technology for timekeeping, for

tracking, or for both.

268.

More significantly: What does it matter? The questions put by the grievances and the

Unions relates to the use of a specific application, ExakTime, with attributes and features described

to me in the evidence of the parties and in the context of restrictions imposed by two collective

agreements.

269.

I have no information from the Association or from the survey responses as to any use

of technology that matches or reflects the technology implemented and relied upon by Earth

Boring as it is used by the Employer. I have no information of the arrangements between those

contractors and the service providers with which they deal. I have no information as to the extent,

if any, to which the data of the employees associated with the survey respondents is available to a

foreign third party such as ExakTime and is further available for use and distribution to other

unnamed fourth and fifth parties in California or elsewhere in the world. Clearly, the survey lacked

utility and relevance.

Operation of the ExakTime Application

270.

Mr. Woodbridge was present throughout the proceedings, both at the in-person

attendances and those by videoconference. Accordingly, he had a current and continuing

opportunity throughout to raise with counsel any discrepancies or additional information material

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to the evidence and the issues. Nevertheless, it was not until he gave evidence — starting in late

September 2020, a year or more after the delivery of Mr. Wunderlich’s report and following the

testimony of three bargaining unit employees who had used ExakTime, Mr. Wunderlich and, most

notably, Mr. Costa — that I heard the first reference to the proposition that the ExakTime

application defaulted to turning itself off after an employee touched the green “GO” button to

register an event with the application.

271.

Having regard for everything presented to that time, I am satisfied that Mr. Woodbridge

was in error in suggesting that the application defaulted to not tracking after the individual had

logged in at the beginning of a shift or after using ExakTime for a break or on resuming work. I

note that, unlike the modification to reduce the number of “selfies” employees were required to

take daily, Mr. Woodbridge did not suggest that there had been a change in the Employer’s use of

the application, or that the default process he described was introduced after the distribution of

emails and other documents describing the processes necessary for the employees’ use of

ExakTime, or after the testimony of the Unions’ witnesses.

272.

In reviewing the Employer’s submissions, I set out the process as described by Mr.

Charney. I did so as I am satisfied that his description accurately reflected Earth Boring’s position

as explained by Mr. Woodbridge in his testimony. I am equally satisfied that the features in that

description are contrary to the other evidence derived from the testimony and documents received

over the course of the hearing.

273.

The scenario described by Mr. Woodbridge with the repetition of the four-digit PIN

entries for more than the initial activation or use of the day was first heard of from Mr. Woodbridge

during his evidence in September 2020. Those elements of the process as requirements for the use

of the application were not put to any witness called before Mr. Woodbridge and were not referred

to in any of the documentation produced in the hearing. Mr. Costa’s report does not accord with

that description of the functionality of ExakTime and he was not brought up for failing to note that

the application defaulted to “off” and required the repeated entry of the four-digit PIN in order that

an employee might reactivate the application when the employee’s device was used in connection

with breaks, travel, and the like.

274.

None of the documents produced by Earth Boring to illustrate and explain the operation

of ExakTime convey anything to suggest that the application operated with the default feature Mr.

Woodbridge testified about. That applies to documents generated and communicated in 2017 and

also to the more recent materials included in the documents the Employer introduced to the

proceeding in September 2020.

275.

If, as Mr. Woodbridge maintained, ExakTime defaulted to being turned off after the

employee logged in, there would have been no concern or need for discussion about employees’

excessive data use or phone batteries draining due to ExakTime. The issues would not have arisen

if the application did not run visibly or in the background after the employee logged in. Yet, the

email issued in October 2017 to announce the extension of the trial period included as a FAQ:

“The app is using a lot of data”. The response did not suggest that data would not be used because

the application defaulted to “off” after the employee had logged or clocked in. More specifically,

the first FAQ spoke to the application’s running and the need to close it after clocking in: “Q: The

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app is draining my battery very quickly. A: Close the app after clocking in (refer to your specific

phone on how to do this).” The final FAQ in that email read: “Q: When do I hit STOP? A: Only

at the end of your shift when clocking out. Every other job code or location change just requires

you to press GO again”. There was nothing in that email to suggest that the application ceased to

run as Mr. Woodbridge testified or about a four-digit PIN being required to enter various cost

codes.

276.

The email issued October 24, 2107 directly contradicted Mr. Woodbridge in that it

stated: “However, if you leave the app running in the background the Geotracker will be active

while in the Geofenced areas. To save your battery, we encourage you to close the app between

breaks/lunch/code changes. This will disable the geotracker as well”. That advice is at odds with

the proposition that ExakTime as used at Earth Boring featured an automatic default to “off”, but

it also confirmed that the GeoTrakker ran — at least while the employee’s smartphone was within

the GeoFence.

277.

While Earth Boring issued an email in September 2018 to announce the reduction in the

quota of photographs, it said nothing about any change in functionality or the need to enter a four-

digit PIN as testified to by Mr. Woodbridge two years later.

278.

The training presentation included in the Employer’s third compilation of documents

introduced in September 2020 described the process an employee was to follow when using

ExakTime in connection with travel between projects or work sites. The slide entitled “Travel”

depicted three screens. The first screen was headed: “Click Go: Click on the green ‘Go’ circle”;

the second was headed: “Location: Select the job location you are currently at”; and the third was

headed: “Cost Codes: Select the ‘Travel” cost code”. The instruction continued to advise as

follows: “Once Arrived On Site: Click on the green go circle, Select the job location you have

arrived at [and] Select ‘Resume Work’”. The commentary at the bottom of that slide reads as

follows: “Travel is tracked when moving from yard to site, site to yard or site to site”. There was

no suggestion there of the need to enter a four-digit PIN for any of the employee’s touches or

entries. Furthermore, there was no attempt made to reconcile those instructions and that comment

with Mr. Woodbridge’s evidence regarding ExakTime’s having a default feature that turned the

application and tracking off after the employee clicked on the “green ‘Go’ circle” to start that

process.

279.

Consistent with advice to employees in 2017, the 2020 documents — the “Worker

Annual Safety Training” dated January 7, 2020 and the “New Employee Orientation Quiz” dated

May 11, 2020 — include provision for the employee’s acknowledgement of tracking by

ExakTime: “I am aware, understand and consent to my location being tracked while at work for

safety and time tracking (payroll) purposes”. That acknowledgement would be unnecessary if the

application defaulted to being “off” as Mr. Woodbridge explained. No one suggested that

ExakTime tracked any employee after the application was turned off.

280.

Mr. Costa’s evidence is important in this context. He was the only witness with the

technical competence to assess and to comment on the operational features and characteristics of

ExakTime; he was not challenged, contradicted or corrected by anyone who was similarly

qualified; and his evidence was consistent with information produced by ExakTime and

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communicated to employees in writing and in presentations. With the sole exception of testimony

from Mr. Woodbridge, none of the evidence conflicted with anything Mr. Costa put forward in the

hearing.

281.

Mr. Costa’s evidence (at paragraphs 22, 23, 26, 27, and 28 of his report) bears on this

point. He explained that minimizing the application is not to be confused with closing it;

minimizing or exiting the application does not close it; when the application is minimized and “its

operation is not immediately apparent to the user”, it “continues to run in the background; closing

the application “requires additional steps to render the app inoperative”; it “can only be closed

using the method(s) specific to the given phone . . . , otherwise it continues to run in the

background”; the GeoFence function simply serves to indicate to the administrator whether the

employee “punched the clock” inside or outside an area defined by the GeoFence whereas the

GeoTrakker tracks and records time, location and movement of employees regardless of any

GeoFence; administrators are not able to limit geo-tracking within or outside any GeoFence, “but

are able to disable geo-tracking completely for specific security roles”; without geo-tracking being

completely disabled, he was able to track persons “clocked into the app (even if running in the

background)” to determine where they were at any given time, how long they stayed there, where

they went next, and their speed of travel between locations; and that, in order to prevent such

tracking, the subject had to clock out of the application by touching the red “STOP” icon, close

— not merely minimize or exit — the application, turn off the phone, or disable data transmission

(e.g. by enabling “airplane mode”).

282.

Earth Boring did not challenge that evidence on the basis that Mr. Costa had failed to

note that the application as used by the Employer defaulted to the “off” setting or that Earth Boring

had configured the application to disable the GeoTrakker function completely. To the contrary,

the documentation produced by the Employer confirms the tracking function’s being active unless

the employee closed the application or turned off the host smartphone.

283.

Moreover, the Employer introduced evidence of Mr. Pierson’s entering his stop or start

time outside the GeoFence for the Seaton project more than two hundred fifty times in the period

November 2, 2017 to July 20, 2018. On each occasion, EarthBoring’s documentation established

ExakTime’s recording of his GPS location — fixed to several decimal places of longitude and

latitude. That is to say, there were more than two hundred fifty instances in less than nine months

where Exaktime recorded his location before or after working hours at various distances from his

worksite. There was no evidence as to whether Mr. Pierson’s travel between those locations and

the Seaton GeoFence was or was not tracked in ExakTime; however, Mr. Costa’s experience with

the application and his evidence was that ExakTime would track outside the GeoFence if it were

running.

284.

The evidence concerning Mr. Pierson demonstrated that, at a minimum, the application

was capable of and did in fact pick up an employee outside the GeoFence if the application was

running, had not been closed, or was then activated to register a “stop” or “start”. He was not asked

to testify about the need to use and re-enter a four-digit pin every time he wished to use the

application to start a break or to “clock out” either inside, at, or some distance beyond the

GeoFence for the Seaton project.

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285.

Earth Boring was correct in submitting that “as Mr. Woodbridge testified . . . the

application cannot track employees once they have clocked out at the end of the day”. That was

confirmed by Mr. Costa. The evidence from Mr. Woodbridge regarding the default setting and the

need to enter the four-digit PIN in order to reactivate ExakTime was not confirmed. Rather, Mr.

Woodbridge’s testimony that employees cannot be tracked “once they have clocked out at the end

of the day” acknowledged, by implication, that if the employee does not “clock out”, close the

application, or turn off his phone, tracking will continue. That contradicted his contention that the

application defaults to “off” and “not tracking” on finishing an entry.

286.

Mr. Charney responded to Local 183’s submissions regarding Mr. Woodbridge’s late

identification of the contested “default” feature by referring to my first interim award and the

statement: “the Employer maintains that it has not included the ‘geo tracker’ [sic] function in the

version of the technology it uses”. Mr. Charney mis-interpreted my statement. My recollection and

interpretation — confirmed by my review of my notes — was that the Employer had indicated

that, in configuring the application or choosing the configuration of the application it would obtain

from ExakTime Inc., Earth Boring elected not to have the GeoTrakker function included in its

licence or service. That is, the situation was similar to a purchaser of an item limiting optional

features it needed or was willing to pay for in acquiring the product or service. In this instance, I

understood the Employer’s initial advice to have been that the GeoTrakker was an option that

Earth Boring chose not to acquire, rather than one it had but chose to turn off or disable.

287.

Moreover, and more tellingly, I note that while the GeoTrakker is incorporated in the

ExakTime technology acquired by the Employer, Mr. Woodbridge did not explain why it was that

Earth Boring had chosen to reduce or limit the utility of the application to have it default to not

tracking once the employee completed clocking in to start or resume a shift. This was particularly

perplexing given that Mr. Woodbridge had explained that one of the key attributes of the system

important to the assessment of its utility to Earth Boring’s business as an employer of a highly

mobile workforce was its giving the Employer the ability to know and to be able to demonstrate

where its employees were when they were to be at work. He did not explain how a customer’s

request for evidence would be satisfied by nothing more than the employees’ signing in and out at

a location, without Earth Boring’s being able to demonstrate their continuing presence throughout

the shift or at least the period the Employer claimed.

288.

In the result, I cannot act on Mr. Charney’s proposal that, “given that Mr. Woodbridge

is an administrator of the application and has been using it on a regular basis since October 2017”,

I should accept his evidence over the Unions’ evidence on the functioning of ExakTime.

289.

Neither of counsel’s underlying premises bears scrutiny. Yes, he is an administrator, but

other than generic evidence of what administrators might do or be permitted to do, I have not

received evidence that attached any significance to Mr. Woodbridge’s designation as an

administrator. Moreover, there is no evidence of his doing anything at all that equipped him with

knowledge or experience that warranted any deferral to his evidence. To the contrary, as Mr. Sagle

noted in argument, Mr. Woodbridge acknowledged having virtually nothing to do with the use of

the application as he had not “gone on it ever, aside from seeing some sample stuff”. He claimed

no technical expertise and his evidence on the functioning of ExakTime cannot be accepted over

that of Mr. Costa who acquired and tested the application, consulted Exaktime to a degree Mr.

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Woodbridge did not claim to have done, wrote a cogent and instructive report, and stood up to a

skilled cross-examination while delivering evidence with impressively even-handed composure.

290.

In a similar vein, Mr. Charney submitted that “Mr. Woodbridge has full knowledge of

how ExakTime works”. That was not demonstrated to my satisfaction. No one other than Mr.

Woodbridge was put forward as the source of Earth Boring’s information about the technology

and its adoption by the Employer. Some of the information was acknowledged to have been

incorrect. Earth Boring had initially asserted that photographs could be accessed by its

administrators. Indeed, my notes were to the effect that the photographs could only be accessed by

the Earth Boring administrators — that was far from the case.

291.

In the same light, the Employer’s position initially was that the employees’ photographs

— if not all of the employees’ data — were kept for six months only. Later, the evidence disclosed

that the employees’ data are kept by ExakTime indefinitely. Mr. Woodbridge suggested that the

history was that, at first, the Employer had asked for a retention period of six months, but had

changed position on the advice of Earth Boring’s auditor to request that the data be held

“indefinitely” — consistent, as it happens, with ExakTime’s policy and the fact that ExakTime

Inc. has reserved the right to market the data to undisclosed fourth parties. The auditor was not

called to explain why Canada Revenue Agency would call on Earth Boring to produce the

employee photographs and other data in addition to the payroll and ADP records of its labour costs

and related enterprise history. Moreover, there was no evidence that ExakTime Inc. had ever

applied a six months’ retention limit on data sourced from Earth Boring and Mr. Costa’s hearsay

evidence was that he was told that the policy required indefinite retention.

292.

In the result, I decline to accede to the proposition that “Earth Boring has established

that it does not actually track the location of employees apart from when they clock in and out.”

The contention relies entirely on the evidence of Mr. Woodbridge and is without support in any

other testimony or documents before me.

Privacy Analysis

293.

It is useful to start the assessment of the parties’ privacy differences with reference to

the circumstances affecting bargaining unit employees before the introduction of ExakTime.

While I could not come to a definite conclusion on the evidence, I was satisfied that whether a

bargaining unit employee used SmartSheets on his or her phone or tracked work time, hours and

breaks by contacting the site foreman, the system did not require a photograph, did not track the

employee’s movements — certainly neither before nor after a shift — and did not involve the

transmission of data about the employee to an outside agency with the opportunity to make

commercial use of the data. The old arrangement was privacy-sensitive by any standard developed

in the evidence and the parties’ submissions.

294.

None of the cases referred to by the parties stands for the proposition that a change not

proscribed by a collective agreement provision is forbidden an employer in a collective bargaining

relationship. The Board’s TSheets decision addressed a collective agreement in which the parties

had agreed to a specific process that was disturbed by the employer’s adoption of a new, non-

compliant technology. In that respect, the decision is of no assistance as neither of the collective

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agreements here purport to restrict employers to systems that subsisted at the execution of the

collective agreement or to limit expressly the timekeeping technology any of the employers might

introduce.

295.

The collective agreements were, of course, arrived at in the context of relevant case law.

Notwithstanding developments in the law generally, including Jones, Cole, and Jarvis, arbitral

jurisprudence relevant to these parties and these circumstances suffices, in my view, to establish a

clear framework of concepts, principles, and analysis on which to conclude the privacy aspect of

these grievances. In that, I agree with the submission by Mr. Sagle that the privacy element of this

case can be decided on the facts available on the evidence, taking into account the absence of

evidence that might have been introduced, but was not led.

296.

I am in agreement with the discussion in most of the cases relied upon by the parties;

however, it is neither necessary nor helpful to review each of the many put forward in argument.

By way of example, I share the view of other arbitrators who have declined to endorse the analysis

in IKO Industries and Dominion Colour. Furthermore, I consider the recent cases involving in-cab

cameras to be of limited utility given the circumstances, the obvious distinctions, and the depth of

commentary in more apposite cases.

297.

I regard Arbitrator Surdykowski’s comment in OPG (at para. 40) that “workplace

behaviour and performance are not entirely matters of private personal information” to be

incontrovertible, as is his further statement: “There are limits to employer behaviour in that respect,

but an employer clearly has the right to direct and monitor employee behaviour and performance

in the workplace.”

298.

While he took issue with the decision of Arbitrator Lynk in Prestressed Systems,

Arbitrator Surdykowski went on to make the following observations in the OPG decision:

43. Nevertheless, I agree that there is a right to privacy in the workplace. An individual

does not abandon all privacy rights when s/he enters into an employment relationship and

passes through the workplace entrance. However, an employee does not have the same right

to privacy in the workplace as s/he has outside of the workplace. An employee’s right to

workplace privacy must be weighed against the employer’s legitimate interests in the

circumstances. The reality is that a loss of personal privacy is an inherent part of an

employment relationship. An employee cannot reasonably expect the same level of

personal privacy in the workplace as he enjoys outside of the workplace. An employer is

entitled to know when an employee arrives at the workplace, where s/he is in the workplace,

and when s/he leaves the workplace. This may be the information personal to employees,

but it is also the employer’s information, or at least information which the employer

requires for legitimate business reasons. An employee has no entitlement to anonymity in

the workplace.

299.

Somewhat similarly, in Janes Family Foods, Arbitrator Trachuk (at para. 39) observed

that surveillance in the workplace cannot be considered to be unexpected; however, she was

forceful in her recognition of employees’ interests:

Supervision is part of being employed. However, there is no expectation of having one’s

image recorded and kept for as long as an employer chooses to keep it. The appropriating

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of that personal information is a significant intrusion on privacy interests which is being

made more and more possible by the availability of increasingly sophisticated digital

equipment. That is one of the central reasons for privacy legislation like PIPEDA.

However, even if PIPEDA does not apply in this case, the interest it seeks to protect exists.

That interest must be balanced, along with the discomfort of being constantly surveilled by

a camera, against the company’s objectives in installing the cameras.

300.

I note that those words were written almost fifteen years ago and that, apart altogether

from changes in technology and processes, the ExakTime application involves these bargaining

unit employees in the delivery of their facial images and some of their geo-locational data that are

not merely preserved indefinitely by Earth Boring, but are migrated to entities unknown to the

employees and with which the employees have no relationship, over which they have no control,

and for uses of which the employees have no knowledge. At a minimum, I would regard multiple

“close up” facial images and data disclosing an employee’s whereabouts before or after work as

falling into the category of personal information deserving protection from intrusion, let alone

distribution.

301.

The early cases referred to by counsel often addressed an employer’s introduction of

cameras in the workplace. In 1979, Arbitrator Ellis made the following observations in Puretex en

route to ruling that the employer was to remove cameras overseeing the production area:

56. In the use of electronic surveillance, it is apparent that we confront conflicting social

values of considerable significance. There is on the one hand the principle of the right to

privacy and beyond that the more general idea, of which the right to privacy is only one

facet, of the crucial importance of preserving and nurturing the historically fragile concept

of human dignity. . . .

57. . . . The full-time use of closed-circuit television systems for constant observation of

the work performance and conduct of employees in an industrial setting would be widely

regarded, I believe, as seriously offensive in human terms. I am certainly of that view. As

M. Dulude in the Liberty Smelting case suggests, it is difficult to conceive of circumstances

in which considerations of efficiency would justify such an affront to human dignity,

although even so, perhaps it is not impossible to do so. . . .

59. It is clearly a matter of balancing competing considerations after recognizing that any

use of cameras that observe employees at work is intrinsically seriously objectionable in

human terms, with the degree of objection depending on the way the cameras are deployed

and the purpose for which they are used and ranging from unacceptable in the case of

constant surveillance of conduct and work performance too probably non-objectionable in

the case of short term individual application for training purposes. (emphasis added)

. . .

61. The booster bag theft is the only possible justification of sufficient seriousness to even

be in the running, and it was a determined professional activity which the cameras would

have been unlikely to deter in any event. And while it was serious, it was clearly an isolated

incident. Apart from that incident the evidence does not, in my opinion, establish a theft or

pilfering problem of serious proportions. Certainly the evidence does not begin to establish

the situation of the serious nature of those which arbitrators grudgingly accepted as

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justification for camera surveillance in the Liberty Smelting or Colonial Bakery cases.

(emphasis added)

302.

Many years later, in Trimac Transportation, a case dealing with a drug testing policy,

Arbitrator Burkett recognized individual privacy as “a fundamental right in any democratic

society” and spoke to the reconciliation of two competing interests — there the employer’s interest

in a safe and productive work environment against the employee’s right to privacy — concluding:

“The best reconciliation of two legitimate but competing interests is achieved by measuring their

competing impacts.”⁷

303.

At paragraph 44 of the Trimac Transportation decision, Arbitrator Burkett referred to

the “recognition of employee privacy as a core workplace value, albeit one that is not absolute”.

He noted that arbitrators’ recognition of privacy interests could be found in awards dealing with

searches, surveillance, medical examination and, then more recently, drug testing. He also

observed that “the ultimate determinations in these awards rest on their individual facts”, but “in

all cases, the ultimate determination is arrived at on a balancing of the aforementioned competing

impacts, with the onus upon the employer to establish that its business interest outweighs the

employee's privacy interest”, bringing to the fore the question of the extent to which employer

business interests may override employee privacy interests.

304.

Arbitrator Parmar provided the following summary in Woodstock:

39. For years, the majority of arbitrators have held that an employer’s ability to

implement policies or rules in the course of managing the workplace cannot occur

without regard to the privacy interest of affected employees. This has been the

majority approach despite the fact there was no recognized right to privacy.

40.

This approach is consistent with the juridical approach to rights

recently articulated by the Ontario Court of Appeal in Jones v. Tsige, supra. In that

case, the Court of Appeal noted that while there has been no specific tort of privacy

recognized in Ontario, privacy has “long been recognized as an important underlying

and animating value of various traditional causes of action”. In other words, even

though there has been no recognition of a distinct privacy right, the law has always

recognized the privacy interests of individuals in the course of considering the legality

of disputed conduct.

41.

The notion that employees surrender their expectation of privacy at the

employer’s door has also found no traction in the courts. The recent Supreme Court

of Canada decision in R.v.Cole, supra, confirmed that employees retain an expectation

of privacy in the workplace, albeit a diminished one (see also New Brunswick Dept. of

Education, supra).

42.

In assessing the appropriateness of employer action where privacy interests of

employees are affected, arbitrators have historically followed a balancing of interest

7

At paras. 40 and 42.

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approach. The approach is a contextual one, requiring consideration of the specific

facts at issue, including the nature of the privacy interest at stake.

. . .

46.

Accordingly, the consideration of “all of the circumstances” begins with an

employer’s specific reasons for resorting to surveillance. It is impossible to assess the

reasonableness of actions without regard for the purpose those actions were

undertaken. This was noted in Janes Family Foods, where Arbitrator Trachuk stated:

When weighing the balance of interests, one needs to consider the

seriousness of the problem the employer is addressing, the effectiveness of

the cameras in addressing that problem and the availability of the cameras

in addressing that problem and the availability of other methods of

addressing the problems.

47.

This analysis is not that different from the analytical approach affirmed by the

Supreme Court of Canada in Irving Pulp & Paper. The issue in that case was random

drug testing of employees at a paper mill. The Court commented favorably on the

balancing of interests approach historically applied by arbitrators. The Court noted

that the fact that the workplace was a dangerous work environment was not enough to

justify the employer’s policy. It agreed that the arbitration board was required to go

further, to consider whether there was evidence of actual drug or alcohol problems in

that particular workplace and whether the measures undertaken were justified in terms

of effectiveness and alternatives. The Court stated that even in a dangerous workplace,

an employer’s implementation of random testing could only be justified “if it

represents a proportionate response in light of both legitimate safety concerns and

privacy interests”.

48. Similarly, an employer’s actions in resorting to surveillance cannot be reasonable

if they are not proportionate to the actual business concerns and privacy

interests. Proportionality can only be determined with regard to the specific

circumstances – that is the specific business concerns, the effectiveness of the specific

measures implemented, and the impact on privacy of those measures.

49. It is important to keep this in mind because the justification usually put forth with

respect for the installation of surveillance cameras is security and safety concerns. The

reality is there are few, if any, businesses who do not have concerns about security and

safety in the workplace, particularly given statutory requirements in that respect under

legislation such as Bill 168. The assertion that an employer has or is motivated by

those concerns is not enough, in and of itself, to justify such measures without regard

to privacy interests. The balancing approach requires consideration of the specific

circumstances to determine whether the employer’s concerns are real and meaningful,

and therefore sufficient to warrant an intrusion on privacy. As noted in Calgary

Herald, supra [126 L.A.C. (4^th) 386]:

In my view, while an employer must demonstrate there are real security

issues, I do not accept the view that there must always be recent serious

events to justify the implementation of a security system. Where the

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consequences could be severe, if there is objective evidence supporting the

conclusion there is a significant risk, this constitutes a security issue.

50. I interpret the above statement, which has been cited favorably in Clarington [2013

CarswellOnt 3938 (Sheehan)] and New Flyer, supra [[2011] M.G.A.CD. No. 27

(Peltz)] as requiring objective evidence related to the specific workplace in order to

support the employer’s concerns. Such evidence is essential to a finding that an

employer’s reliance on surveillance was reasonable in the circumstances. (emphasis

added)

305.

The commentary of the Supreme Court of Canada in Irving Pulp referred to by

Arbitrator Parmar includes the following:

[4] A substantial body of arbitral jurisprudence has developed around the unilateral

exercise of management rights in a safety context, resulting in a carefully calibrated

“balancing of interests” proportionality approach. Under it, and built around the

hallmark collective bargaining tenet that an employee can only be disciplined for

reasonable cause, an employer can impose a rule with disciplinary consequences

only if the need for the rule outweighs the harmful impact on employees' privacy

rights. The dangerousness of a workplace is clearly relevant, but this does not shut

down the inquiry, it begins the proportionality exercise. (emphasis added)

In addition, I regard the Court’s acceptance of the following submission in Irving Pulp (at para.

27) to be instructive as to the proper course to be adopted in this matter as equally as in one

involving discharge or discipline for breach of an employer’s rule:

Determining reasonableness requires labour arbitrators to apply their labour

relations expertise, consider all of the surrounding circumstances, and determine

whether the employer's policy strikes a reasonable balance. Assessing the

reasonableness of an employer’s policy can include assessing such things as the

nature of the employer’s interests, any less intrusive means available to address the

employer’s concerns, and the policy's impact on employees.

Application

306.

I adopt and intend to follow the teaching of those authorities in turning to the assessment

of the evidence and submissions. I also endorse the observation by counsel for Local 793 that the

law in this area is not complicated and that it dictates that if an employer wishes to intrude on the

privacy interests of its employees it must have a good reason to do so; and it must establish the

need to do so and the reason to do so with viable evidence. Again, the more serious the intrusion,

the better the reason must be and, in my view, the more persuasive the evidence must be.

307.

In Halifax, Arbitrator Venoit cited with approval Arbitrator Ponak’s comments in

Canada Safeway on the principle of proportionality. Noting that the “requirement for an employer

justification for privacy-intrusive measures is in the cases” (at para. 132 of Halifax), Arbitrator

Venoit recognized proportionality as a tool to assist in assessing whether justification has been

made out and quoted the following from Canada Safeway:

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In assessing where the balance is to be struck in the current case, I accept the

proportionality argument advanced by the Employer. It is an approach reflected in a recent

decision of Office of the Privacy Commissioner of Canada in PIPEDA 281 (page 2):

The Assistant Commissioner noted that the purpose of the Act is to balance the

individual's right of privacy with respect to their personal information and the need

of organizations to collect, use, or disclose personal information for appropriate

purposes in the circumstances. In assessing this balance, the Assistant Commissioner

reflected on whether the loss of privacy, from the collection and use of the voiceprint,

was proportionate to the benefits the company would likely gain.

I subscribe to the principle of proportionality. The more intrusive the impact on employee

privacy the greater the business rationale that must be demonstrated. Conversely, if the

intrusion on employee privacy is insubstantial, the concomitant level of justification also is

lower. For example, the taking and keeping of employee DNA samples would require far

greater justification than the taking and keeping of information on an employee's shoe size.

Determining the proper balance requires, therefore, an analysis both of the degree to which

employee privacy may be compromised and the business reasons advanced in favor of the

intrusion on employee privacy. (Arbitrator Venoit’s emphasis)

308.

Earth Boring did not contest the proposition that the adoption of ExakTime constituted

a privacy incursion. It maintained that the balance — influenced by several imperatives — heavily

favoured its justification for the introduction of ExakTime and its insistence on its use by

bargaining unit employees.

309.

I find that the Employer’s requiring employees’ use of the application was a material

privacy intrusion and I discerned virtually no evidentiary basis for the Employer's attempt to justify

its requiring employees to use ExakTime as it is currently configured and functions. Most telling

in my view was the absence of any explanation for the exposure of employees’ data to entities

such as Google Analytics and others to which ExakTime Inc. might pass on the data. Earth Boring

introduced the application as an improvement on a subsisting arrangement for timekeeping and,

even if it were a useful mechanism to defeat buddy punching, that use had no relationship to the

Employer’s making its employees’ data available as it has through its arrangement with ExakTime

Inc. which authorizes the acquisition and further undisclosed use of the data.

310.

Mr. Woodbridge protested that the data belonged to him or Earth Boring. In that, he

could not be more incorrect. On the day before ExakTime became mandatory, employees were

entitled to the compensation, benefits and protections provided for in the collective agreements.

The same applied on the following day; however, in addition to their skills, attention, and labour

these employees were then and thereafter contributing their data — without informed consent and

with no compensation — to ExakTime Inc. and any third or fourth party with which it chose to

deal. The employees provided the data — willingly or not — to meet the Employer’s reasonable

time and attendance requirements, not to populate a data bank that had nothing whatsoever to offer

the employees or did not benefit them in any way. This feature of the ExakTime arrangement

introduced by Earth Boring distinguishes it from the technologies approved in the submitted cases.

311.

Mr. Charney compared the Employer’s circumstances to the those addressed in the OPG

case. He contended that Earth Boring’s employees have their location tracked only when they

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clock in and clock out — when they are at the workplace — and that they needed to provide their

photograph only when they are at work. In keeping with the cases that recognize the distinction

between an employee’s rights and expectations at work and away from the workplace, Earth

Boring argued that the information it collected via ExakTime was information an employer is

legitimately entitled to have in operating its workplace. That was said to be particularly so with

the Employer’s highly mobile workforce — creating a situation in which “it is substantially more

difficult to supervise employees directly”.

312.

There was no evidence of difficulties encountered in the supervision of a “mobile

workforce” or of employees’ assigning themselves to work, projects or sites independently of their

supervisors. Furthermore, using ExakTime, Earth Boring learned precisely where Mr. Pierson was

on 254 occasions when he clocked in or out beyond the GeoFence set up for the Seaton site. That

is to say, Earth Boring had his location on those occasions regardless of the configuration of the

GeoFence and regardless of the knowledge it sought to acquire.

313.

Two of the three bargaining unit employees — Mr. Pierson and Mr. Hryhorchuck —

were far from mobile in their assignments with the Employer. Mr. Charney submitted that one

should not conclude from their evidence that the workforce was not as mobile as Earth Boring

maintained; however, there was no impediment to the Employer’s calling that evidence if it were

available and material, but it did not do so. Similarly, Mr. Woodbridge might have explained the

extent and significance of employees’ mobility and how previous arrangements somehow failed

the enterprise, but he did not do so. I was not apprised of facts that generated an understanding of

the difficulties said to be presented by employee mobility. Rather, I am left to accept the force of

Mr. Sagle’s colourful characterization as an answer to the “mobile workforce” justification for the

introduction of ExakTime: “These guys are not driving around patching potholes”.

314.

A second point made repeatedly by Earth Boring was that its use of ExakTime was

justified, if not necessitated, to address and prevent buddy punching. The Unions questioned that

on two fronts. Of less utility was their contention, based on Mr. Costa’s experiments and evidence,

that miscreants could engage in the electronic version of buddy punching by using a “photo-of-a-

photo”. Far more telling was the obvious failing on the part of the Employer to present any

evidence of a buddy punching issue having affected its operations at any time during its history of

more than seven decades.

315.

Mr. Charney referred to lengthy excerpts from Arbitrators Slotnick’s award in Natrel

where he concluded that the employer had established a legitimate business rationale for the

infringement of privacy with its planned introduction of fingerprint scan technology. Mr. Charney

noted that Arbitrator Slotnick reached his conclusion notwithstanding that the evidence presented

by the employer regarding a buddy punching problem was relatively minor:

36 On reviewing the evidence of Natrel's rationale for introducing the biometric system,

I agree with the union that the employer would achieve most of the benefits it is seeking by

moving to an electronic system without biometrics. However, the biometric element offers

one benefit that cannot otherwise be achieved, and that is verification that the employee

clocking in is the person he or she claims to be. While the company does not claim buddy-

punching is rampant at the plant, there is evidence of a small number of incidents over the

past few years. These of course are only the incidents that have been detected, and there is

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no way of knowing whether there have been more. Even though the problem is not severe,

the prevention of buddy-punching with biometric is a concrete benefit to the employer. In

other words, I believe Natrel has established a legitimate business rationale for the

infringement of privacy, albeit not a pressing or crucial one. (emphasis added)

316.

The Unions’ point here was that there is a considerable difference between the

subsistence of relatively minor evidence and the total absence of evidence. That was the difficulty

confronting Earth Boring in this situation. Mr. Woodbridge stated that a reason for the adoption of

ExakTime was its obvious utility in addressing buddy punching, but Earth Boring did not introduce

evidence of a single instance of the phenomenon.

317.

Mr. Pierson was mentioned by Mr. Woodbridge as an employee suspected of buddy

punching and Mr. Woodbridge also alluded to having an eye on a couple of suspected perpetrators.

They were not identified, and Mr. Pierson had not been confronted about buddy punching when

he testified months earlier. Moreover, neither of the other bargaining unit witnesses were asked

about buddy punching, and no one in the payroll administration or supervisory ranks testified to

present what Arbitrator Slotnick relied on: “evidence of a small number of incidents over the past

few years”. Arbitrator Slotnick was content with the rationale notwithstanding that “the problem

[was] not severe”. I have nothing other than the possibility that buddy punching might have

subsisted before ExakTime.

318.

Furthermore, I have no evidence of how buddy punching might have been carried out

before the adoption of ExakTime. Little was said of the functioning of SmartSheets and nothing

was said about how that technology could be defeated to allow one employee to record the presence

of an absent colleague. Moreover, only a dozen employees were said to have had SmartSheets on

their devices and there was no evidence to explain how the others who gave their attendance to

their supervisors could “buddy punch” while doing so.

319.

Earth Boring referred to Canada Safeway in which Arbitrator Ponak dealt with hand

scanner technology. Mr. Charney argued that, although there was no evidence of a widespread

buddy punching problem, the arbitrator had no problem concluding that timecard deception

certainly existed. I note, however, that Arbitrator Ponak had considerably more than a suggestion

or suspicion of impropriety as he wrote the following (at para. 37):

The evidence established there is some amount of card deception taking place in its

facilities. While I agree with the Union that there is no evidence that such deception is

frequent or widespread, I have little doubt that it exists. Clearly the potential exists for

deception under the time card system. Specific and detailed examples were provided of

buddy punching, multiple time card punching to obscure late entries, and use of tape to

deceive the time card system. The hand scanning system eliminates these forms of time card

deception. (emphasis added)

320.

In Geraud Ameristeel, the employer’s Human Resources Generalist testified to

problems associated with the manual recording of timekeeping and attendance. She provided

Arbitrator Tacon with evidence that “as a consequence, there are numerous inaccuracies in the

data which require many hours spent in human resources at the Cambridge plant to correct”. The

witness identified the Cambridge plant as the only operation with a manual system for timekeeping

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and attendance and testified that it had an error rate that was three or four times that of the

company’s North American average. In addition, the employer’s witness testified that there were

no instances of buddy punching at the Cambridge plant “since the recording system is manual and

swipe cards are not used”; however, there were examples of “time theft” perpetrated by employees

leaving early and claiming payment for hours worked. Arbitrator Tacon noted that documentation

was filed in evidence to illustrate the process of data entry, review and adjustments associated with

the manual system the employer intended to replace with a biometric scan system.⁸

321.

In Thibodeau-Finch, Arbitrator Burkett (at para. 12) found that the employer had failed

to establish “a pilferage problem of serious proportions”. It had done no analysis to determine the

magnitude of its problem or the extent to which it was a greater problem than had been experienced

in previous years. The company had made no attempt to itemize the goods and materials thought

to have been pilfered and there had been no prior expressed concern about a serious pilferage

problem. Significantly, there had been no attempt to react to the perceived problem by adopting a

less intrusive means such as locking the storeroom and issuing keys. Arbitrator Burkett noted that

the employer’s evidence as to the dollar value of pilfered goods was merely a “guesstimate”. In

the result, Arbitrator Burkett found the evidence insufficient to permit his making a finding that

the risk confronting the employer warranted its being accorded the right to engage in camera

surveillance of the workplace.

322.

For the purposes of the dispute between the Unions and Earth Boring, these decisions

are important as they recognize that the employer’s merely identifying or speaking about what

could amount to a valid concern does not suffice to override employees’ competing interests. As

in all of the pertinent authorities, these arbitrators look to employers to support their positions with

evidence establishing the risk or issue that requires attention and arguably tips the scales in favour

of the employer’s concerns over the interests and preferences of its employees. Having received

no evidence of buddy punching at Earth Boring, the concern is of no weight in assessing the

balance between the Employer’s interests and those of its employees.

323.

In addition to his comments about the mobility of the workforce and buddy punching,

Mr. Woodbridge offered the savings of twelve to fifteen hours weekly chasing down payroll issues

and an annualized reduction in administrative costs estimated at $240,000 to $270,000 as

justification for the move to ExakTime. Unlike the evidence before Arbitrator Tacon in Geraud

Ameristeel, those were numbers put forward — not by a witness directly involved in the processes

—without a single supporting document and with no explanation other than Mr. Woodbridge’s

having delivered the numbers in his testimony. His being the CEO of Earth Boring, without more,

does not establish the reliability of statistics such as those the Employer relied on as a

counterweight to the impact of the ExakTime technology on the privacy of the bargaining unit

employees.

324.

Arbitrator Parmar concluded her analysis in Woodstock with the determination that the

justification for the installation of cameras in the fire stations was not established by objective

evidence. She found that there was no evidence that theft or vandalism constituted a problem; that

there was no evidence of any problematic behavioral issues with the firefighters; and that there

8

Geraud Ameristeel, at paras. 24, 26 and 27.

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was no evidence of any unusual or problematic occurrence of health and safety incidents at the fire

station.

325.

The same conclusions obtain here: Earth Boring advanced four principal elements to

justify the introduction of ExakTime and to be weighed against the privacy interests of its affected

employees. None of those factors were established by objective evidence. Mr. Woodbridge

testified without support for any of the imprecise and impressionistic commentary offered and

without explanation for the absence of evidence of buddy punching, of the fact of and issues

associated with a highly mobile workforce, or of actual, demonstrable costs associated with

administration and the resolution of payroll issues.

326.

As a consequence, the analysis of the balancing of interests is relatively straightforward

in that there is nothing of consequence on the scales opposite the intrusion on the employees’

privacy.

Privacy Infringement by ExakTime

327.

The submissions and analysis put forward by counsel in this matter established beyond

question the wealth of precedent available to support an employer intent upon the introduction of

technology that will assist in its controlling access to its facility and obtaining precise and reliable

data necessary for a modern and efficient time keeping and attendance program. However, none

of the cases relied upon by the Employer have the privacy-intrusive factors that are present with

Earth Boring’s use of ExakTime.

328.

There are three principal aspects of the ExakTime system that presented difficulties for

the prosecution of the Employer’s case. Each of the three differentiated these circumstances from

those in which other changes introduced by employers have been approved by arbitrators. The

distinguishing features are: the requirement that an employee take and submit “selfie”

photographs; the fact that the employee’s geo-locational data is involved — potentially outside the

employee’s working hours and away from the workplace; and the fact that both the visual images

and the geo-locational data are provided to a foreign-based organization with a documented right

to hold, use and distribute those data without let or hindrance and with no obligation to disclose or

explain the use and distribution to the employee whose image and other data might be dealt to that

external entity.

329.

In this context, the evidence of Mr. Wunderlich is of assistance. While he spoke to the

immutability of an employee’s facial image as a biometric capable of misuse and deserving of

protection, he identified the means by which ExakTime might be configured or utilized in a privacy

sensitive manner. In particular, he identified the use of a template to eliminate the dissemination

of the immutable biometric of an employee’s face.

330.

Mr. Woodbridge referred to the data that ExakTime generated as an individual's name,

hours and “fuzzy selfies”. Having regard for the documentation presented both by the Employer

and in Mr. Costa’s report, the photographic images were not fairly described as fuzzy; however, I

have no direct evidentiary basis upon which to assess their utility for the purposes of any

individuals who might abuse their access to or have illicit access to those photographs.

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Nevertheless, the fact that ExakTime Inc. documents its right to make use of the data generated by

employees suggests strongly that the data are of use and value for some purposes. Why else would

ExakTime Inc. insist upon their retention for an indefinite time and the right to deal with the

photographs? Accordingly, in the absence of expert or technical evidence to the contrary, I

conclude that the employees’ facial images are susceptible to being used for purposes other than

that for which the employees take and submit their photographs.

331.

Secondly, Mr. Charney argued that the evidence about using a template to eliminate the

use and retention of actual images was of little utility since none of the Unions, Mr. Wunderlich

and Mr. Costa had taken the step of inquiring as to whether a template might be functional or

compatible with the ExakTime application. I reject that response. The Employer had Mr.

Wunderlich’s report for more than twelve months before starting to put in its case. Accordingly,

Earth Boring had ample opportunity to elicit evidence of the impracticality of the suggestion were

such evidence available from ExakTime Inc. or any other source. The hearings held in 2020 were

all conducted by video conference. Therefore, it would have been far easier for Earth Boring to

have called the evidence of an expert or of a technically proficient representative of ExakTime in

California had it been concerned to demonstrate the functioning of the technology or respond to

and rebut any of the other suggestions advanced by the Unions.

332.

The use of a template has been a common characteristic in the cases in which technology

relying upon biometrics has been sustained by arbitrators. Years ago in Good Humour, Arbitrator

Murray expressed some frustration with the technical elements of what he called the “unintelligible

geekspeak gobbledegook jargon” of data presented to him; however, he recognized that the

technology used a 348-byte binary template for an employee’s fingerprint scan and “does not

capture and store actual fingerprints”.

333.

The comments of Arbitrator Slotnick in Natrel provide another example:

37. How great is the infringement on privacy of employees? In my view, the evidence

reveals it to be extremely small, almost negligible. In fact, labelling this an "invasion" of

privacy strikes me as linguistic excess. When employees enrol in the system, a scan of less

than half of a fingertip is taken. Enrolment, the evidence indicates, takes less than a minute.

There is no physical intrusion, no furnishing of any bodily substance, no exposure of any

part of the body that is considered private. Employees do not provide a fingerprint, nor can

the scan that is provided be reconstructed into a fingerprint. The fingertip scan is

immediately converted into a template based on a mathematical representation, and the

scan is deleted. The template that is retained for verification of identity when the employee

clocks in is in a form that is virtually useless to anyone on its own. It provides no personal

information about the employee. It is almost impossible to re-engineer, and even if someone

were able to do so, that person would end up with only a scan of part of someone's fingertip,

which the evidence indicates is at a resolution far lower than that used by law enforcement

agencies. The evidence is also that the templates are stored in a secure computer server

owned by the employer, and are deleted when employment is terminated. (emphasis added)

334.

In Geraud Ameristeel Arbitrator Tacon noted similar features of the technology that

employer planned to introduce. Starting with reference to the evidence of a witness called by the

employer, she explained the processes as follows:

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7. Safieh is a senior official with TimeLink International Corporation, a software

company which specializes in software for workforce management. He described the

biometric scan system at issue, the TimeLink WorkPoint 5000. An employee is “enrolled”

in the database by presenting a fingertip to the touch pad and is assigned a separate ID

number. An “image” of the fingertip is created by measuring the ridges and valleys of the

fingertip. The “image” is not a picture of the fingertip itself. Those measurements are

immediately converted, at source, into a numeric template, i.e., a string of numbers and

characters. No measurements are ever saved in the system. There is simply the numeric

template. A second fingertip is likewise presented; that template is stored as a backup in

case of injury or other changes to the first fingertip. The capacity of the WorkPoint 5000

device is 9,500 templates, with two templates per employee.

8. The process involves presenting the fingertip for a matter of a few seconds and

involves no pain, irritation or other physical consequences. On each subsequent occasion,

the employee places a fingertip on the touch pad; the scan is compared with templates in

the system. On the first and every later entry, the device indicates if the entry is successful

on a visual display and with the beep tone. The fingertip is presented to the touchpad on

every arrival and departure from shift. That “in/out” data is not stored in the device but is

sent in real-time to the company. One or more system administrators are authorized to enroll

employees; the system administrators were characterized as the “gatekeepers”. Those

system administrators are first themselves enrolled in the database and utilize a password

as well as their fingertip scan to access the system. When an employee leaves the company,

the template is deleted by the system administrator.

335.

Here, Earth Boring produced no material evidence of any inquiry to determine whether

the employee’s images of immutable features might be similarly protected to permit their privacy-

sensitive use in the ExakTime system. In the result, raw images are generated, transmitted and

stored as such without regard for any adverse potentialities in the hands of anyone with permitted

or unauthorized access to the photographs.

336.

As noted, the orientation quiz and the training document included in the Employer’s

third compilation — the checklist entitled “Worker Annual Safety Training” — included an

“acknowledgement” and expression of consent by the employee-participant: “I am aware,

understand and consent to my location being tracked while at work for time tracking (payroll),

safety, project submissions, advertising and other work related purposes”.

337.

Mr. Wunderlich confirmed on cross-examination that ExakTime does not track an

individual's location if the application is closed; however, he considered the application to fail on

privacy grounds because “apps are left running by default”. Mr. Wunderlich was asked to confirm

that once an employee clocks out the ExakTime application automatically turns off and GPS

tracking shuts down. He answered that he did not know that to be the case; however, I have the

evidence of Mr. Costa on the point and there was no indication that Mr. Wunderlich had read the

Costa report or had been apprised of its contents.

338.

Mr. Pierson understood and testified to the fact that if he did not turn it off the

application could track him wherever he went, even if he was outside the GeoFence.

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339.

The Employer’s evidence concerning the extent to which ExakTime could track and has

tracked its employees was not reliable. In contrast, the positive evidence of Mr. Costa established

that the application will track an employee and the data were capable of being played for review

if the employee failed to carry out one of four steps. He wrote:

The Geotrakker on the other hand tracks and records time, location and movement

information of employees regardless of any GeoFence, which information it then

incorporates and “maps” onto Google Maps, creating a detailed visual record of employees’

movements through time and space. This record can be both monitored as it updates via

pings, and “re-played” after the fact as if in real time.

That was the feature and capacity of ExakTime time that Mr. Woodbridge sought to avoid by

testifying that the application was set to default to a non-tracking “off” position after the employee

selected a cost code and touched “GO”.

340.

As I have noted that evidence fell short of meeting the Employer’s objective. No one

suggested that geo-locational data would not be obtained and uploaded to ExakTime if the

application was running. In any event, the evidence of Mr. Pierson’s inattention to the Employer’s

instructions demonstrated that his location away from work and outside his actual working hours

was obtained and uploaded to ExakTime more than two hundred fifty times in a span of eleven

months.

341.

I am satisfied that those facts and features alone would suffice to establish ExakTime as

a privacy-invasive tool as used by Earth Boring. Indeed, either one would tip the scales against

Earth Boring given the absence of any evidentiary counterweight.

342.

In my view, the presence or absence of security features associated with the application

are of secondary significance as they relate, in the main, to the possibility of unauthorized access

to the data. Here, however, the employees have more to be concerned about as their use of the

application imparts consent to the possible commercialization of their data without limitation or

notice.

343.

That being said, it is noteworthy that Earth Boring does not use multifactor

authentication and does not require any enrollment in order for someone to access the data

collected from an employee. Moreover, there was no direct evidence as to the nature, level, and

extent of encryption used in data transit or in data storage. The evidence of Mr. Woodbridge on

the point was somewhat confused and confusing, particularly as he had no direct knowledge of or

involvement with the ExakTime data security.

344.

When asked why he was so confident in the security of the ExakTime application, Mr.

Woodbridge referred to its reliance on Microsoft Azure. That knowledge was sufficient for Mr.

Woodbridge because of Microsoft Azure's market position, its having many certifications, and his

sense of comfort with a large brand and a highly-recognized company being used by ExakTime to

secure their data.

345.

Mr. Wunderlich stated that he did not know that Microsoft Azure was used to secure

the cloud-based software; however, he did say that he knew that Microsoft had been the first to

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achieve certifications for the security of cloud-based services and he also was aware that Microsoft

Azure had more than ninety security certifications. When asked whether ExakTime’s using

Microsoft Azure confirmed that there were “robust protections”, Mr. Wunderlich sensibly

indicated that the issue is whether ExakTime uses all of the features and capabilities of Azure to

secure the data provided to it.

346.

Mr. Costa testified that he could not assess whether there was any encryption of the data

handled by ExakTime. He did say that if Microsoft Azure were used, then the data would be

protected with encryption in transit and at rest. Mr. Costa confirmed on cross-examination that he

did not inquire of ExakTime how they secure data in the cloud. He also acknowledged that

Microsoft is reputable and has some “top of the line security”, but he qualified his statement with

the comment that the level of security “depends on implementation”, noting, by way of example,

that Earth Boring does not require authentication in order for someone to obtain access.

347.

The security devices available with the use of Microsoft Azure might be comforting to

a concerned party. That would be the case for some of the bargaining unit employees unless they

learn that the various Microsoft Azure safeguards were not being used or called upon by ExakTime

in reference to the data Earth Boring provided to ExakTime. I heard no evidence from Earth Boring

on that point.

348.

In seeking to counteract Mr. Wunderlich’s criticisms about Earth Boring’s failure to

have conducted sufficient and appropriate due diligence when acquiring and implementing

ExakTime, Mr. Charney submitted that “. . . this type of intensive due diligence process is not

practical for a small to medium size construction company and is perhaps more realistic to expect

of a governmental organization or large corporation.” The evidence led by the Employer did not

establish that it was impractical for it to conduct due diligence and, in any event, Mr. Woodbridge

was eloquent in expressing his belief that due diligence was not required once he was made aware

that Microsoft Azure was involved.

349.

Most significantly in my view, while not a “security breach” in the sense of unintended

or unauthorized access and use by a third party, the ExakTime Privacy Policy documented that

ExakTime Inc. had permission to use the employees’ data commercially, including the disposition

of the data to other parties — none of which were required to be identified or disclosed in advance

to Earth Boring, the Unions, or the employees. In that context, there was no data security from the

perspective of the source of the data, the employees. They have no control over any use of their

data — their facial images or their geo-locational histories — by anyone, anywhere in the world.

From their perspectives, is there a material difference between their data being used by a party that

hacked into a system to acquire it and its being used by an entity that acquired access through a

commercial arrangement with ExakTime Inc. or one of its associated entities or customers? In both

instances, they have no say, no control, and only the hope that the use they have not been consulted

on will not redound to their detriment. At a minimum, they can be sure that the ultimate user of

their data is employing the data for the user’s purposes, whether commercial or criminal, and not

necessarily for purposes beneficial to the employees.

350.

The orientation quiz and the training document I have referred to and the checklist

entitled “Worker Annual Safety Training” included an “acknowledgement” by the employee-

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participant: “I am aware, understand and consent to my location being tracked while at work for

safety and time tracking (payroll) purposes and that from time to time, third parties will securely

hold this data.”⁹The acknowledgement is meaningless. There is no evidence that the undisclosed

“third parties” will do any such thing; indeed, on the evidence, the employee-participant is unlikely

to have any knowledge of the identity of any third and fourth parties that might be allowed or sold

access to data of Earth Boring employees, and no knowledge of what they might do with the data.

351.

Mr. Charney submitted that Mr. Woodbridge had good reasons to request that the data

be retained indefinitely. As noted previously, I do not believe that submission properly reflects the

evidence as it established that ExakTime retains data indefinitely. Mr. Costa’s report states that

explicitly. There was no evidence that Earth Boring ever established a defined or six-month

retention period. Earth Boring produced no evidence of that or of a request to alter the standard

ExakTime retention policy or practice. Moreover, the employees’ data are not being retained

indefinitely as a consequence of any request by Mr. Woodbridge and it was made clear that, if it

were possible to have the data deleted, it would be at the expense Earth Boring.

352.

It might be that ExakTime Inc. wishes to hold data indefinitely to meet obligations it

might have to other parties to which it has provided the data. At the local level, however, one

would wonder why — after ADP had completed Earth Boring’s payroll and a period sufficient to

allow for questions to be raised has passed — Earth Boring would wish or need to retain the

photographs employees took during that pay period? It would have been shocking to learn that an

auditor advised that the Canada Revenue Agency would require photographic evidence going back

seven days, let alone seven years. In the absence of evidence, I conclude that even if it could do so

for any limited period associated with a payroll, Earth Boring cannot justify the retention of

thousands of employees’ daily images indefinitely and off-site. The situation bears no similarity

to its retention of a single image for use in producing identification cards for itself, Metrolinx, or

another entity requiring employee identification documentation for entry to its sites.

353.

Mr. Charney made submissions about the California online privacy protection

legislation and submitted that California has extensive privacy laws applicable to private sector

organizations. That might very well be the case; however, I have nothing before me that assures

employees in the Canadian environment that their data is it all protected, let alone as well protected

as it might be under Canadian law. While Mr. Charney acknowledged that the California customer

records legislation applies to businesses and the personal information about California residents,

he submitted that there is no evidence that ExakTime Inc. treats any of its customers differently

depending on their geographic location. True as that might be, there is also no evidence as to how

ExakTime Inc. treats any of its customers or that it complies with the statutory provisions

applicable to California residents.

Balancing of Interests and Other Approaches

354.

In addressing privacy interests and the balancing of interest, Earth Boring relied upon

paragraphs 45 and 46 in the OPG decision as a comparative statement confirming the propriety of

its use of ExakTime:

9

My emphasis.

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45. The only information collected and retained by the Turnstile system is when (and at

which access point if there is more than one) an employee entered the protected area of a

nuclear power facility, and when (and where) the employee exited the protected area. Can

it reasonably be suggested that an employer does not have the right to know whether its

employees have reported for work at the scheduled time and place, and whether they

worked the prescribed or claimed time or left work before completing their scheduled work

period without authorization or reasonable excuse? Do employees really need to have their

employer explain that a system which records entry and exit times may be used to monitor

attendance even if there was another ostensible original purpose for the system? Does it

really come as a shock to employees that their employer might use a security access system

to monitor attendance, and to use the information collected in that respect for disciplinary

purposes if timekeeping issues are suspected? In any case, I am satisfied that information

relating to an employee’s attendance at work is employment information which is not

properly considered “personal information” for PIPEDA or other privacy purposes because

it is information in the individual’s employment capacity, not his personal capacity.

46. I am satisfied that access to the workplace or other employment related timekeeping

information and records are not private to employees. An employer has patently obvious

legitimate business reasons to keep such records for payroll and attendance management

purposes. The collection, retention and uses of such employee information for such

purposes and for related disciplinary purposes does not intrude on any reasonable

expectation of employee privacy, and is not otherwise prima facie inappropriate –

regardless of how or why the collection system was introduced. Even if it is private

personal information the use of such information by an employer for attendance

management and related discipline purposes is reasonable. An employer is therefore not

required to give a union or employees notice in that respect.

Of course, two of the distinctions are that the employer in OPG did not photograph its employees

and did not transmit their data for the possible authorized use by third and fourth parties around

the world.

355.

I agree with Mr. Sagle, the scales are heavily weighted against Earth Boring on the

privacy issue.

356.

Earth Boring addressed the balancing of interest equation in part with the submission is

that there are no other alternatives that are less privacy-invasive that would fill the same business

functions. While I have concluded that the Employer’s business justifications were not made out,

in the interests of completeness I will address those points briefly.

357.

The response to Mr. Wunderlich’s suggestion that Earth Boring could consider

installing a time clock on site and provide employees with swipe cards or fobs was “this type of

system is simply not practical for an employer with a highly mobile workforce, such as Earth

Boring”. Mr. Charney went on to suggest the inadequacy of the Unions’ reliance on the evidence

of two individuals. As noted previously, the proposition of employee mobility was not developed

by the Earth Boring; it was simply announced as a consideration and a factor. In any event, the

ExakTime application requires an employee moving from one project site to another to use the

travel feature or cost code to log the change and to log in at the second site on arrival. Earth Boring

did not address that to demonstrate how that would be materially different from an employee’s

having to swipe in or use a fob at the second location to record the individual's arrival and

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presentation of himself or herself for work? Mr. Woodbridge also stated that fobs would allow for

buddy punching. As the Employer did not establish that buddy punching was ever an issue at Earth

Boring that too is an inadequate answer. Furthermore, it was not established that the fobs would

be available to anyone other than the individuals to whom they were assigned. Mr. Woodbridge

suggested, without explanation or support, that many employees would leave the fobs at the

jobsite.

358.

There was also discussion of the alternative of portable clocks which ExakTime Inc.

referred to in its literature as another means of utilizing its technology. That proposition was

rejected by Mr. Woodbridge as not being a valid option because of the need for multiple clocks

for multiple sites. It was not clear whether that was an “inability to pay” response, but the mere

statement of a number falls well short of justifying the rejection of the alternative to the present

privacy-invasive system.

359.

Mr. Charney's final comment on that issue was that employees who are required to travel

between sites or to pick up materials for example would be unable to clock in on the site; however,

there was no evidence of the inadequacy of whatever steps Earth Boring had taken in such

circumstances before ExakTime or why is their use of ExakTime was now of such importance in

those limited circumstances.

360.

Similar observations and objections were made with respect to Mr. Wunderlich’s

suggestion that Earth Boring provide iPads at each of the site locations. Counsel for the Employer

also noted that employees who start their day by picking up supplies from a non-Earth Boring site

or who work largely independently would not be able to clock in or out. That follows, of course;

however, there was no evidence as to the inadequacy of the way in which Earth Boring had dealt

with such situations in the past. Mr. Charney also made reference to the need to purchase devices,

but there was no evidence that the cost of a number of iPads would be too onerous for Earth Boring

and somehow justify its requiring employees to have and use smartphones in order to meet Earth

Boring’s timekeeping and other requirements.

361.

Mr. Charney identified as a further objection to the iPad proposition that the alternative

might not be practical on a large site where employees may take their breaks far away from the

site trailer. Again, one would ask what was done in the past? How, if at all, did the foreman or

supervisory staff monitor and, if necessary, police the employees on their breaks? How is it that

this is something which now constitutes a difficulty that is incapable of being overcome without

ExakTime downloaded to an employee’s smartphone?

362.

Mr. Charney also addressed the proposition that Earth Boring might have implemented

a policy requiring employees to clock in and out on their own cell phones, and that their identity

could be verified through the use of their own personal cell phone and four-digit PIN rather than

by their taking “selfies”. He answered that with reference to Mr. Woodbridge’s testifying that the

option would not work in practice as “Earth Boring requires flexibility so that when employees

lose or forget their phones at home or their phones die, they can use their foreman's phone or a

colleague's phone to sign in”.

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363.

Mr. Charney noted in his submissions that, while employees were now discouraged

from using each other’s cell phones due to COVID-19, this is only a temporary measure to enhance

the health and safety of Earth Boring’s employees. Given that COVID-19 has been in a factor in

our lives for at least fourteen months and the Employer has been adhering to COVID-19 protocols

— including the avoidance of the sharing of phones — for that extended period, I must assume

that, if these are indeed common occurrences, Earth Boring has identified the means of dealing

with situations of employees reporting for work without their smartphones or phones losing power

and unavailable for ExakTime purposes during the shift.

364.

The last point Mr. Charney raised about the impracticability of reliance on dedicated

smartphones was that there was no evidence that the payroll reports viewed by Earth Boring’s

payroll administer administrator would show a cell phones’ unique identifier in order for Earth

Boring to verify an employee’s identity. That is correct; however, there was no evidence that the

payroll reports viewed by Earth Boring’s payroll administer administrator would not show a cell

phones’ unique identifier in order for Earth Boring to verify an employee’s identity. The Employer

might have called that evidence if it were available.

365.

Mr. Charney responded to the evidence concerning the introduction of a template to

avoid the storage and transmission of an employee’s image as follows:

Finally, Mr. Wunderlich suggested that Earth Boring use a technology that converts a

biometric into a number or template and uses the template to verify the employee’s

identity. We have a unique circumstance of a mobile workforce where employees may

work at various different sites, many of which are only temporary. Some of the

technologies suggested by Mr. Wunderlich as alternatives simply would not be

practical solutions to track the time and whereabouts of a mobile workforce. What is

troubling is that the Unions and Mr. Wunderlich are advocating for Earth Boring to

adopt a particular technology without any evidence that a timekeeping method

incorporating this technology is actually on the market and can be readily adapted to

Earth Boring’s workplace.

366.

There is no support in any of the evidence for the proposition that the conversion of a

biometric to a template is somehow interfered with by the allegedly “unique circumstance of a

mobile workforce where employees may work at various different sites, many of which are only

temporary”. The conversion would be within and done by the technology irrespective of who took

the “selfie”, where the image was made, and how mobile the individual might be. The ExakTime

material in evidence refers to the experience of the application’s creators in the construction

industry where there might well be many examples of entities that engage in more diverse and

more mobile activities than Earth Boring. If this was to be a point of distinction and if the Employer

wished to explain why the proposition advanced in a report it had more than twelve months before

introducing its evidence was unworkable then it ought to have led that evidence. I regard its

attempt to shift the burden to the Unions’ rather than to make the inquiry of ExakTime and lead

evidence on the point to be telling.

367.

Earth Boring argued that ExakTime is an application that effectively allows it to meet

all of the legitimate business needs it identified, that “the loss of any privacy employees may have

in the process is balanced against this benefit”, and “there has been no demonstrated less invasive

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way of achieving” the Employer’s goal. To the contrary, the submission went, “the alternative

methods available which are largely biometric systems ought to be viewed as more intrusive than

ExakTime”.

368.

There was no evidence to establish that other biometric approaches — such as the

various fingerprint and hand scan technologies incorporating templates — were more privacy-

intrusive that ExakTime. The relevant technology referred to by Mr. Wunderlich was the

conversion of the biometric facial image to a template; neither he nor Mr. Costa testified that the

other technologies were more invasive than ExakTime and Mr. Woodbridge’s opinion on the point

would be entitled to no weight given his lack of expertise, his decision to forego any due diligence

exercise upon learning of the involvement of Microsoft Azure, and his concession that he did not

use the application.

369.

Overall, the Employer’s objections to the alternatives posited by the Unions required

substantially more than mere protestations. What was needed was a meaningful explanation of the

significance of the objection, of how the objection affected the viability of the alternative or Earth

Boring’s adoption of it, and where it or how it weighs on the balance of interests vis-a-vis the

employees’ privacy interests. That, with respect, was absent in the Employer’s case.

370.

I conclude on the privacy issue with reference again to the Natrel decision relied upon

by Earth Boring. Arbitrator Slotnick made these observations:

37 How great is the infringement on privacy of employees? In my view, the evidence