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HomeMy WebLinkAbout1986-0756.Glenny.89-01-11EMP‘OYESoEL*CO”RONNE DE L ‘ON TAR,0 COMMISSION DE RkGLEMENT _ DES GRIEFS IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCF. SETTLEMENT BOARD Before: For the Grievor: OPSEL! IJ. Glenny, .I. Mills, C. MacLellan) Grievers - and - The Crown in Right of Ontario (Ministry of Government Services) Employer I. C. Springate Vice-Chairperson J. Anderson Member C. Linton Member Richard Stephenson CcmlSP 1 Gowling and Henderson Barristers & Solicitors For the Enployer: James C. Vair CCUtlSt-1 vathews, Dinsdale and Clark Barristers & SoliC,itCrS HEARJNG: September IR, 198H DECTSTON . These proceedings arise out of a grievance filed on June 12, 1986 in which three employees of the Ministry of Government Services-claimed that they had been improperly classified. When the matter came on for hearing before the Board, counsel for the employer took the position that the Board lacked jurisdiction to deal with the grievance on its merits in that the grievance had been settled by the Ontario Public Service Employees Union and the employer.~ In support of this position the employer filed a memorandum of settlement entered into between the union and the employer which reads as follows: Between: Ontario Public Service Employees Union - and - The Crown in Right of Ontario (Ministry of Government Services) The parties hereto agree to a full and final settlement of the classification grievances dated February 19, 1987 of Hr. L. Catherwood, Mr. J. Glenny, Mr. R. Gurudevan, Mr. G. MacLellan, Mr. J. Mills and Mr. S. Robbins on the following terms, without precedent or prejudice. 1. Mr. L. Catherwood, Mr. J. Glenny, Mr. G. MacLellan, Mr. J. Mills and Mr. S. Robbins will be reclassified to Real Estate Officer 1, retroactive to June 12. 1986. - 2 - 2. 3. 4. ;- . Mr. R. Gurudevan will have an individual development plan, setting out qualification criteria such as courses, work experience, which will enable him to progress to the Real Estate Officer 1 level. The Union and the grievor6 agree to withdraw the above-mentioned classification grievances dated February 19, 1987. The Union will notify the Grievance Settlement Board that the classification grievances of fir. J. Glenny, Ilr. J. Mills and Mr. G. NacLellan dated June 12, 1986 (G.S.B. 756/86) have been withdrawn. One of the two individuals who signed the memorandum of settlement on behalf of the union was Mr. J. Glenny, the President of OPSEU Local 508. Mr. Glenny is also one of the grievor6 in this matter. It appears, however, that Mr. Glenny signed the memorandum only as a representative of the union and not in his personal capacity. The other two grievor.6 did not sign the document, None of the grievor6 attended at the hearing before the Board. Counsel was, however, present on behalf of the union, Union counsel indicated that although he had no instructions to withdraw the grievance, he also had no submissions to make with respect to the employer’s contention that the Board was without jurisdiction to deal with the merits of the grievance. Counsel did note that except for the withdrawal of the grievance re’ferred to above, the terms of the memorandum of settlement have all been implemented. -3- . In the private sector it is now well established that the right to go to arbitration under a collective agreement is the right of the parties to the agreement, namely the union and the employer. Accordingly, as long as the union is acting in good faith, once it withdraws or settles a grievance, the grievance is not arbitrable at the instance of the grievor. See: Governing Council of the University of Toronto and Service Employees Union, Local 204 (1974), 5 L.A.C. (2d) 304 (Weatherill) and Barbara veraldi, 119861 OLRB Rep. Jan. 180. The issue in the instant case is whether the same principle applies to employees in the public service. Unlike the situation in the private sector, section 1812) of the Crown Employees Collective Bargaining Act stipulates that notwithstanding any rights an employee may (or may not) have under a collective agreement, he/she is entitled to process certain claims, including a claim of improper classification, through the grievance procedure provided for in the collective agreement. This provision provides as follows: lE.-(2) In addition to any ‘other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; - 4 - 1. . (b) that he has been appraised contrary to the governing principles and standards; or (cl that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may.be processed in accordance with the procedure for final determination applicable under section 19. The issue in this case is whether, in addition to the right to raise a claim under section 18(2) and process it through the grievance procedure, an employee is also entitled to insist that the merits of such a claim be arbitrated before Board. The section of the Act which provides for the referral of grievances to the Board is section 19(l), whic,h is set out below. It will be noted that while this section refers to the “parties” it does not contain any express reference to employees. 19.-(l) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. -5- The relationship between sections 18(2) and 19(l) was addressed by the Board in Francis 1528/86 (Brandt). That case involved an employee of GO Transit who was discharged for stealing from the employer. It will be recalled that a claim that he has been dismissed without just cause is one of the matters an employee is entitled to raise under section 18(2). Following a meeting between GO Transit and the union in that case, namely the Amalgamated Transit Union, Local 1587, the union agreed that the grievance would be withdrawn. Notwithstanding this agreement, Mr. Francis requested that his grievance be heard by the Board. The Board, however, concluded that Wr. Francis did not have the status to refer his grievance to arbitration. The relevant parts of the award follow: We agree with the submission that, by reason of the settlement of this matter between the Union and the employer, the matter cannot be brought independently to the Board by the grievor. We do not regard the reasoning in Keeling [45/78 Pritchard] as dispositive of this point. Nor is this conclusion inconsistent with the statutory policy reflected in Section 18(2) by which employees are given a statutory right to grieve independently of the Union. At first .glance it may appear that this statutory right is significantly compromised if it can be barred by a prior settlement of the grievance by the Union. However, it is important not to lose sight of the fact that the Act as a whole is an Act designed to regulate collective bargaining xthe public sector. ‘Primarily the employment interests of public sector employees are - 6 - . intended to be protected through collective bargaining. We do not regard the collective interests to be protected only at the negotiation stage of collective bargaining. ’ They are also protected at the stage of contract administration. This view is well established in the private’sector where Labour Relations Boards have frequently stated that a union enjoys a discretion to determine whether or not, in the interests of the collectivity, an individual grievance should be settled or withdrawn. A useful account of the relationship between contract negotiation and contract administration may be found in Rayonier Canada Ltd. v. IWA [19753 2 Can. LRBR 196. In our opinion similar considerations prevail under the Crown Employees Collective Bargaining Act. Section 30 of the Act puts uoon the emolovee orsanization a duFnot to “act in a man&r that is arbitrary, - discriminatory or in bad faith in the representation of any of the employees whether members of the employee organization or not.” That language directly parallels that found in Section 68 of the Labour Relations Act. It is through Section 30 of the Act that the interests of individual employees areprotected in situations like the one before us where the union has settled a grievance and thereby prevented the Grievance Settlement Board from taking jurisdiction under Section 19 of the Act. - Section 18(2) and Section 30 can thus be read as establishing a code of individual employee rights within a collective bargaining regime. Section 18(2) has been held by this Board in cases like Keeling to prevent the parties to collective bargaining from negotiating provisions which would have the effect of preventing employees from processing certain kinds of grievances through the grievance procedure. It does not, however, contemplate an automatic right to carry a grievance to the Grievance Settlement Board. The concluding clause of Section 18(2) provides that where a grievance is not resolved in the grievance procedure it may be processed to the Grievance Settlement Board in accordance with the procedure for final determination applicable - l- ;- . under Section 19. Under Section 19 the Board has jurisdiction where the “parties”, that is the employer and the union, have not been able . to effect a settlement of the matter. Section 30 has the effect of protecting individual employee interests where the “settlement”, which has the effect of depriving the Grievance Settlement Board of jurisdiction, has been improperly secured. In that event the “settlement” would not, in our opinion, be a settlement of the kind which deprived us of jurisdiction. If sections lS(2) and 19 were read as giving an employee a right to process a grievance to the Grievance Settlement Board independently of the Union and in the face of a prior settlement of that grievance wherein it waswithdrawn, Section 30 of the Act would be deprived of application in the very kind of circumstance when it is intended to apply, viz. contract administration. An employee would have no need to seek relief under Section 30 if he could, in all cases, take his grievance directly to the Grievance Settlement Board. The reasoning in followed in Blake 1276/86 Board commented on the dis Francis was subsequently adopted and (Shime). In the Blake award the tinction between the grievance procedure and arbitration as follows: . . . We note that the grievance procedure and arbitration are two separate and distinct processes and while the grievance procedure may lead to arbitration it is preliminary to that process; the right to grieve is not synonymous with the right to arbitrate. The union is responsible for negotiating the collective agreement, and also for its administration including the administration of the arbitration processes. In administering the agreement the union has the respo’nsibility to consider the needs of all the employees of the collective, - 0 - ; and make decisions for the benefit of the group. Many factors will enter.into a union’s decision when it considers the competing interests within . the bargaining unit and the union will undoubtedly make decisions where the individual interest is subordinated to that of the group, subiect only, to the union’s dutv under Section 30 of the Clown Employees Collective Bargaining Act that it “not act in a manner that is arbitrary, discriminatory or in bad faith”. Thus it is important that the union which is responsible for the collective interests of the members of the bargaining unit control access to arbitration. In the Blake award the Board also indicated that only in “exceptional circumstances” would a panel of the Board review the reasoning adopted by another panel in a prior proceeding. It is not contended that any such exceptional circumstances exist in the instant case. Further, we find ourselves in full agreement with the reasoning adopted in both the Francis and Blake awards. The terms of the memorandum of settlement suggest that the employer and the union recognized that a problem existed with respect to the proper classification of a number of employees. The parties addressed the issue and reached an accommodation which resulted in five employees being reclassified and an individual development plan being developed for a sixth employee. If one or more of the grievor6 were now entitled to seek a different result, it would place in jeopardy the entire agreement, including its application to the other employees covered by it. It would also serve to discourage the employer and the union from - 9 - ;- - seeking practical solutions with respect to other problem areas in the future. In that the grievance giving rise to these proceedings was settled by the employer and the union, the Board is without jurisdiction to adjudicate the merits of the grievance. These proceedings are, accordingly, hereby terminated. DATED AT AJAX, THIS 11th DAY OF January, 1989. hairperson