HomeMy WebLinkAbout1986-1028.Anderson.88-10-28Between:
Before:
io28/86
In THE KATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING-ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OLBEU (S. Anderson)
and
The Crown in Right of Ontario
(Liquor Licence Board of Ontario)
M.V. Watters Vice-Chairperson
G. Caplan Member
G. Milley Member
Grievor
For the Grievor: A.M. Heisey
Counsel
Kerzner, Papazian, MacDermid & Tremayne-Lloyd
Barristers and Solicitors
For the Employer: S.J. Shamie
Counsel
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
Hearing: August 24, 1988
Employer
DECISION
This proceeding arises from the grievance-of Sharon Anderson
(McTamney) who, eat all material times, was a Clerk at the head
office of the Liquor Licence Board of Ontario (L.L.B.O.) in
Toronto. The grievance was filed as a consequence of the
employer’s failure to post for the position of Liquor Licence
Inspector for’the North Bay area. The facts ,relevant to the
resolution of this matter were not in dispute and may be briefly
stated as follows:
(i)
(ii)
On September 6, 1986, the L.L.B.O. advertised for
the above-noted position in a North Bay newspaper.
It is clear that this advertisement invited’applica-
tions from those outside of the bargaining unit. The
location and headquarters for the position were stated
as North Bay. The ‘Area of Search’ was identified as
“within commuting distance of North Bay.” Included in
the statement of qualifications was a requirement that
the applicant possess. “demonstrated oral and written
proficiency in both french and english.”
‘. Article 21.4(a) of the collective agreement between
these parties provides, inter alia, that if a
permanent vacancy occurs in an existing job classifica-
t~ion, the L.L.B.O. will post notice of the vacancy for
a period often (10) working days prior to inviting
applications from persons not employed with the boards.
Such posting is to occur within the geographical area
as specified and is open to all employees within such
area who have completed their probationary period.
(iii) The L.L.B.O. did not so post in this instance as there,
were no bargaining unit members within the designated
area of. search. Subsequent to the placement of the
advertisement ,, ’ a Job competition was conducted and on
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.I
(iv)
October 20, 1986 ~a memorandum was circulated to all
employees announcing Mr. R. Boucher as the successful
candidate.
At some point prior to this announcement, the grievor
became aware of the job opening and the failure to
post for same. A grievance dated October 3, 1986 was
ultimately filed. The date of September 23, 1986 also
appears on the grievance form, but such has been
crossed out and replaced with the date first mentioned.
The grievance itself is lack-ing in particulars as it
simply asserts a violation of article 21.4(a) of the
collective agreement. The ‘Settlement Desired’ reads:
“To be made whole in all respects.”
At the hearing, counsel for the union described the
aforementioned individual grievance as “unusual” in that it was
made clear that the grievor was not seeking the North Bay
position nor compensation. In this regard, it was conceded that
MS. Anderson was hot qualified for the position as she was not
bilingual. The board was informed that the grievor was looking
instead for declaratory re,lief. Specifically, she requested a
declaration to the following effect:
(i) That the employer had breached article 21.4(a) by
its failure to post a job circular to bargaining.
unit employees;
(ii) That the employer had breached the collect
agreement by requiring that the applicants
position reside in North Bay; and
ive
for the
(iii) That the L.L.B.O. be required to establish
reasonable geographic area for purposes of
a
the
job posting, it being unreasonable and contrary to
the collective agreement to choose a geographical
a~rea in whic~h there were no bargaining unit employees
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-- ,.
Counsel for the employer raised a preliminary objection as ~
to the arbitrability of the grievance. Simply put, his argument
“as two-fold. First it “as submitted that the board did not have
the jurisdict’ion to entertain the grievance as it had been
transformed from an individual to a union grievances in the
context of the relief. requested. Secondly,’ it “as argued that
there “as no dispute between the parties as the grievor “as
claiming neither the position nor compensation.. Counsel
suggested that the board was being called upon to hear a “moot
point.”
Both counsel agreed that we.should first resolve the above
questions without regard to the issue of appropriateness of the
geographical area. This latter issue would require the
presentation of some evidence relating to the merits of the
dispute. The board therefore heard’argument on the preliminary
objections and thereafter adjourned sothat we could provide the
parties with a written award. Having no” had an opportunity to
consider the respective submissions, we have concluded that the
objection raised by the employer must be sustained for the
reasons set out below.
The collective agreement between these parties provides in
article 27 for the processing of individual, union and board
grievances. Article 27.6 which pertains to union grievances,
reads:
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“The union shall have the right to lodge a grievance
based on a difference arising directly with the boards.
However, such a grievance shall not include any matter
upon which an employee is personally entitled to grieve.
Such grievance shall first be presented in writing to
the boards within fourteen (14)days of the circumstances
giving rise to the grievance and a meeting will be held
within five (5) working days between representatives of
the union and the boards and the grievance shall be
answered, in writing, by the boards within five (5)
working days of such meeting, following which or failing
settlement of the grievance, the union may submit the
grievance to the Crown Employees Grievance Settlement
Board within a further periods of ten (10) working
days.”
It has been held by another panel of this board in Fox,
572/82 (Draper) that individual and union grievances, as provided
for in a prior collective agreement between these same parties,
were mutually exclusive. The provisions of this earlier
agreement were, in all material respects, identical to that now
before this board. Specifically, the board stated that:
“As to counsel’s second submission, we agree that an
individual grievance cannot be converted into a policy
grievance where, as here, under the collective agree-
ment (see particularly Article 21.6) individual
grievances and policy (or union) grievances are
mutually exclusive.. See Brown and Beatty, Canadian
Labour Arbitration at pp. 75-77. It is therefore not
open to us to make a declaration of general application
regarding the Employer’s obligation under Article 16.5(a).”
(Page 5).
The facts in Fox were markedly similar to those found in this -
case. There, the grievor initially complained that he was
wrongfully denied promotion to the, position of Liquor Store Clerk
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Grade 4 in Napanee and requested that he be awarded such
promotion together with compensation. Subsequent to the filing
of the grievance, the grievor was promoted to the same position
at another store. He therefore sought a declaration of general
application as to the employer’s obligation to iden.tify a
geographic area under article 16.5(a) (now art. 21.4(a)) for the
purpose of determining the eligibility of employees to apply for
a new job or a vacancy and within which notice of the job opening
will be posted. This change in the nature of the relief
requested led the employer to argue that the board lacked
jurisdic~tion as the grievance before it was an individual
grievance that was being presented as a policy grievance. As
noted in the excerpt from the award cited above, the board
adjudged that the matter was indeed beyond the scope of their
authority.
In our opinion, the issue raised in Fox is virtually -
identical to that presented ,here. While extensive reasons were
not given in respect of the relationship between individua 1 and
union grievances, we are in agreement with the conclusion
ejlpressed vis a vis mutual exclusivity. Clearly, the collective
agreement sets out separate procedures for the processing of
these types of grievances. The language employed in ‘article 27.6
suggests to us that matters of general application regarding an
employer’s contractual obligations are properly brought as union
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grievances rather than as individual .grievances. If such a
matter could be processed by way of an individual grievance,
there would not have been a need to provide for union grievances.
The intent to establish mutually exclusive procedures is also
evidenced by the restriction found in article 27.6 that such
grievances “shall not include any matter upon which an employee
.is personally entitled to grieve.” This contemplates a
distinction in the types of issues which may be the subject of
individual and union grievances. Such a distinction was
generally recognised in.Katchay, 354/83 (Samuels) in which the
board stated:
“It .is-clear in the jurisprudence that an individual
grievance must concern the grievor’s own situation,
and one must read the words “complaint” or “difference”
in light of this est,ablished law. Reference is often
made to R,e Canadian Broadcasting Corp. and National
Association of Broadcast Employees and Technicians
(1973)) 4 L.A.C. I 263 (Shime), where the board
speaks of four types of grievances (at page 266):
(a) individual employee grievances where the
subject matter of the grievance is personal
to the employee;
(b) group grievances where a number of employees
with individual grievances join together.in
filing their grievances. This type of
grievance is really an accumulation of
individual grievances;
(cl unionor policy grievances where the subject
matter of the grievance is of general interest
and where individual employees may or may not
be affected at the time that the grievance is
filed;
(d) th~ere is a hybrid type of grievance which is a
combination of the policy grievance and the
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individual grievance. In this type of situation,
although one individual may be affected, he may
be affected in a way that is ,of concern to all
members of the bargaining unit. Thus, the
individual may grieve on the basis of how he
is particularly affected while the union may also
grieve citing the individual case as an example
of how cert~ain conduct may affect the members
of the bargaining un.it~ generally.
While there has been a tendency to broaden the scope of
the union’s right to file policy grievances (see, for
example, Re Corporation of Borough of Etobicoke and
Etobicoke Civic Employees’ Local Union No. 185 (1980),
28 L.A.C. (2d) 1 (Shime)), for good reason there has
been no similar tendency with respect to individual
grievances.” (Pages 3-4)
A similar result was reached in Re American Can of Canada
Ltd. and Sheet Metal Workers International Assoc. Local 487, 10
L.A.C. (2d) 73 (O’Shea, August, 1975). There, subsequent to the
,filing of a grievance for compensation, the employer reimbursed
the employee for an amount which had previously been deducted
from their pay. The union, however, continued to pursue the
.grievance and r~equested a declaration relating to the liability
of the company under the health and safety provisions of the
collective agreement. As in Fox, the board found that such was
not permissible. It concluded:
“Having considered all the evidence and.the
representations of the parties, we find that the
relief now claimed by the union in the form of a
general declaratory order was not one of the claims
made in the grievance in this matter. Since this
grievance was brought by the union on behalf of an
individual employee for a specific sum of money and
was not brought as a policy grievance, we find that
a declaratory order having general application would
be an improper remedy in this case.” (Page 75)
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that the union is In summary, it is our assessment
purporting to transform the individua 1 grievance of’ Ms. Anderson
intoa policy or union grievance. As the .parties to this
agreement have provided
the processing of these
contrary to their mutua 1
modified by the union.
however, as suggesting that a declaration is never available as
relief to an individual grievor. As stated in Fox, such a remedy
*=y
. an i
the
be entirely appropriate in situations where the grievor has
nterest to be protected that relates to the subject matter of
grievance.~ The board there added that “any declaration that
might be made in such circumstances would not,be of general
application but would be-restricted in its appl.ication to the
particular grievor and the issues raised by the grievance.”
(Pages 5-6). In this instance, we cannot find that the grievor
had sufficient interest such that the declaration requested
should be granted. As previously noted, she is not interested in
the position as it is conceded that she is not bilingual. There
is no contest in this case ads to the reasonableness of this
requirement. Additionally, there is no claim for compensation.
Counsel for the union submitted that the interest of the grievor
was in knowing whether she was eligible to apply for the job. He
suggested that such knowledge would be of assistance to her in
for separate and exclusive procedures~ for
grievances, we conclude that it would be
intent to entertain the grievance as
This conclusion should not be perceived,
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future competitions. With respec~t, we cannot agree. As the
grievor is not claiming the position, a declaration would be of
little use to her. Indeed, the reference to future events is
purely hypothetical. We are not inclined to act in the manner
requested when the grievor does not’have a measurable and
personal stake in the outcome of the grievance. We see the real
interest in this case as belonging to the union. It, together
with its membership, have a legitimate. interest in knowing
wheth~er the employer may apply article 21,4(a) as was done in
thi
sub
the
case. Such a determination, however, is more-properly the
ect of a union grievance or an individual grievance in which
grievor remains interested in the outcome of the proceedings.
The board was referred to the award in Re Union Carbide
Canada Lt.d. and United Steelworkers, 3 L.A.C. (3d) 364 (Brown,
December, 1981). In that case, the board found a discharge
grievance .to be arbitrable even though the grievor had found new
employment and did not re,quest reinstatement or compensation. In
our opinion, the grievor in such a situation continued to have a
significant interest that merited protection, this being the
right to clear the employment record. While the effect of a
negative record on future employment might be seen as
hypothetical or “theore,tical”, it is of sufficient importance to
the grievor to justify the determination of the issue raised. We
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think therefore that the Union Carbide case is clearly
distinguishable from that now before us.
For the above reasons, we conclude that the grievanie is not
arbitrable.
Dated at Windsor, Ontario, this 28th day of October , 1988. _~
M. V.~ Watters, Vice-Chairperson
“I dissent” (Dissent attached.)
G. Caplan, Member
a&&/f&~
G. Milley, Member’
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DISSENT
,Th'is issue is properly the subject of an individual
grievance, since the question of the grievor's eligibility to
apply for a position relates directly to her, Of course in the
process, matters of general application to the bargaining unit
-must-be determined, but that, does not change the fact that the
eligibility question is specific to this grievor and this case.
Ii7 any event, it seems to me the grievance has merit and
should proceed.
The Fox decision which was referred to this Board seems to
me flawed. It is true that Article 27.6 of the Collective
Agreement means that policy grievances may not include a matter
upon which an individual grievance could be brought. But the
obverse is NOT true. The Collective Agreement does not, as the
Board too hastily concluded in Fox, make individual and policy
grievances "mutually exclusive". On the contrary., a proper
interpretation of Article 27 would, in my view, confirm that
policy. grievances may be incorporated within individual
grievances. If the drafters of the Collective Agreement had meant
to prohibit such a view, they would~explicitly have d,one so since
they did, af.ter all, see fit to include a specific.prohibition
against individual grievances being brought as policy grievances.
One can reasonably conclude that they in fa.ct therefore did
intend that pol.icy grievances~could be brought as individual
grievances, but not the other way around.
Ms * Anderson, though not qualified for the Nor.th Bay
position, had a clear and real interest,in determining her
eligibility to apply. Serious and important rights in the
Collective Agreement, centring on seniority provisi.ons, are at
stake here. A .declaration that she was eligible to apply for this
position would have real and concrete consequences for her in the
future. If she was ineligible to apply in the North Bay case
because she is not in the proper geographic area, then her
possible advancement in the bargaining unit is significantly
constrained. If a future position opens for which she is
qualified and is withinreasonable commuting time of Toronto,
that position may yet be considered outside her natural
geographic area and she would be deemed ineligible yet again.
I therf,ore conclude that the grievance is arbitrable and
that an important issue needs to be decided.
'i Gerald L. Caplan
OISSENT
This issue is p :~' (2 p E r i y t h e s u b j e c t o f a 7, ; n d i :' i d 1.: ij ;
9 r i f Y ,a I: c i+ i P i n c E t h E c; pi e 5. t i o n o f t I? e g : i e v o r ' :: E 1 i 9 i b i 1 : i ii : c
apply for 3 position ri:?aics directly Tao her. Of coi~rse i;? .!I.;;
process, matters of general application to the bargainin ~:nii
must be det'ermined, but that does not ihange the fa:t~ tt:ai ::ie
eligibility question is specific to this grievor and this case.~
In any event, it seems to me the grievance has merit at:d
should.procecd.
The Fox decision which was referred to this Board seems ?o
me flawed. It is true that Article 27.6.of the Collec?;ve
Agreement means that policy grievances may not include a m~attcr-
upon which an individual grievance could be brougktt. e I! t t. ii e
obverse is NOT true. The Collective AgreemeEt doer no~t: a( ii-!e
Board too hazt,',ly ~roncluded in Fox, m J !< e i ,q d i Y i d :, t i 2 li c, c: <. 7 .. ;-, >,
g r i e v a 17 c f 5 " ill u t i, 3 1 ! y e x c 1 u c i v f " 0 i? t h P c o i? t r a r y i a !i r (I p :< I-
interpret&i or! of AI-: ii:1 e 27 wo?:l d, in nay vi F!~J j corli i rn; i. !.;a i
policy Sricvi:nccs may,be incorporated withir: individtis!
g r I i ,I ;: il c 2 s , J ; t h c cl : : f t E I_ s o f t l-1 e C o 1 1 e c t i v e A 6: I_ v E a, E 1 i h a d I,/ :. ;I : / i
t o p r o h i b; i t 5, t' c k: E: ',T i ;z w i they woul? explic~itly have done so :;ir:ce
? h c y d~idj after 211. see fit Tao :;.;cl~de a specif,;;. p:'o:!ik!!?ic!r
a 9 a i n s t i fl d i v i 3 ;A a I 9 r i e 'V a i.1 c. e s b,einq brought as policy nrtc;ai;ce;.
0 il i: c s I, I'. r I: s; o :? a b 1 y c o rl c i II de t i; a !~ ? l-1 E y i ;.I i a c : ?I /: :' -. <: c (j ;. e :: :; :;
intend tha:'pol icy grievances could be brougk~t as ;ndi~tiid!:z>
oricvances, but not 1 t h e o t 1_1 c r ia! s y a r o ii ri d ,
pt; 7, 11 I? Nd e i 5 0 n ; t t: o >.I g h n o t q u a 1 i f < e d f o r TV k! c‘ !4 cl I- t II :r g ;f
positior~, had i: c iea7 ant! ~rtai :I r! t e r e 5 t i n d c t c: : 0: '8 :_I ; I/ : !-: c~, i.
eligibil;ty to apply, Seriw.!s and important ris~k!: j;-; :;?F
Collectiv; Aqr-eement5 centring 0 n s e rl i c 7 i t y p I- 0 v i 5. i 0 n 5 a i. e a I
stake here. Ii declaration tk~at she was elig;blc to ;~ppiy for ?I:;:.
p 0 5 i t i 0 ;q iy (j :: 1 :: 1-i 3 v E r e 3 1 2nd concr-rte consequer!ce- f [! :' I? i !' : :, t I7 e
future. If C/IE was inel irjiblc: to apply ; r, t h f pi 0 .lI t I_: 5 3 j' c 3 '. E
b e c a I; s e .; :. (i i c~ 2 o : i i? t l-1 (; p II c p c r g e 0 g r a p h i c ::' jl c; a i i 1~1 F ;: i-1 e ,
possible advai-,cpment in the bargaining unit js sig:qi f<cact;;
constrained. If .3 futurt: position opens for wi-~;ch she ir.
qualified and is within reasonable cbmmuting time of Torontii,
that position may yet be considered outstde her rlatv;-;l?
geographic area and she would be deemed ineliqible<yet again.
I therfore concltlde that the grievance is arbitrable and
that an important issue needs to be decided.
Gerald L. Caplan