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HomeMy WebLinkAbout1986-2779.Union.98-04-06gPgvc&EL4 CcurnNNE COMMISSION DE SETTLEMENT RiGLEMENT DES GRIEFS TELEPhONEiTiL&HONE: (476) 323-13.98 FACSIMlLEtiLtCOPIE : (416) 326-1396 GSB # 2179196, 0141197 OPSEU # 97UOO8,97UO56 180 DUNDAS STREET WEST, SUlTE600. TORONTO ON M6G 1ZB 1% RUEDUNDAS OUEST# EUREAUBW. TORONTO (ON) M5G I.?8 IN THE MATTER OF AN ARBITRATION Under THE CRPWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIJZVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor -and- The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE FOR THE UMON S.L. Stewart G. Leeb Grievance Officer Ontario Public Service Employees Union Vice-Chair FOR THE EMPLOYER B. Loewen Counsel Legal Services Branch Management Board Secretariat HEARING April 1, 1998 DECISION The matter before me relate6 to the 'keasonable effortstl obligation under Appendix 9 of.the Collective Agreement. The Employer has made application to vary an order restricting it from proceeding with plans of care or transfer arrangements for certain residents. This order was made earlier in these proceedings, in a.decision of Vice-Chair Kaplan, dated September 29, 1997. At pp. 3-4, the decision states as follows: In brief, having regard to the position of the parties, and to an appropriate balancing of interests, I denied the union's request that an order be issued terminating any further surplusing of employees pending the resolution of the case on its merits. However, I directed that the employer not inititate any plans of care or transfer arrangements for any residents of any of the facilities subject to this award where the inititation of such activity had not begun at the time of this award. Fut another way, the employer could continue with transfer arrangements for residents of the facilities where a substantive step other than the initial notification of facility closure or transfer has been given. This order will remain in effect until the issue of the award on its merits, or until varied by the Vice-Chair assigned tom hear the merits. In that regard, and this provides another basis for my decision, the parties have agreed that this matter should proceed on an expedited basis. It is anticipated that the case will proceed almost immediately to a hearing and a decision will be issued before the end of the year. The Registrar of the Board has been so informed, and will so schedule the case. While the hearing in this matter did proceed on an expedited basis, it has not been completed as anticipated. The Employer has adduced its evidence and the Union is about to comence leading evidence. At the presenC time, dzze to difficulties in 04iO6i98 09:09 FAX 4165314626 2 scheduling a number of mutually.available hearing dates, it appears that a decision may not be issued until the summer. This situation has arisen notwithstanding the extraordinary efforts that both Mr. Loewen and Mr. Leeb have made to expedite these proceedings. There was no dispute about the facts relevant to the disposition of this matter. The EmployerPs request to vary the order arises as a result of concern about the planning process being completed in sufficient time to allow residents to be placed in a community setting prior to the anticipated closing date of the facilities. There is a particular concern in relation to 66 residents of Prince Edvard Heights, which is schedul.ed to close on March 31, 1999. There are a number of steps involved in the transfer of a resident from an institution to a community agency. The time from initial contact to the completion of a transfer can take over a year. There may be instances in which construction or renovation will be required in order to accommodate the needs of a resident. However, after commencing the planning process in January, 1997, the transfar of forty residents from Prince Edward Heights was completed by Ilarch, 1997. At the present time, now that planning is close to or has been completed for those persons for whom transfers had been inititated at the time the order was made, the Employer is now in a position to be able to provide assistance in the planning process for the remaining residents. 04/06,'98 09:09 FAX 4165314626 3 In order to accommcdate ,the needs of the parties for an immediate decision, the following reasons are brief. I would note at the outset that the order of Vice-Chair Kaplan represents a careful~ balancing of the interests of the parties in the particular and somewhat unusual circumstances of this case. I would also note that this is not the first challenge to this order. Two days prior to hearing this application, I heard an application by the Union to vary the portion of the order allowing the Employer to continue to proceed with the surplusing process I In a decision dated March 31, 1993, I rejected the Union's application and upheld the Employer's position that the status au0 in relation to its ability to continue to surplus should continue to prevail. To now accept the Kmployer's position would entirely upset the balance which the Employer successfully argued should be maintained in relation to its interests. To upset the balance vould properly require extremely compelling circumstances. . In response to Mr. Loeven's characterisation of the present state of affairs as V1in!prisonmentH of residents, Mr. Leeb advised that it is not the Union's position that any resident should be prevented from leaving. He noted that residents have always left institutions, at the request of the family or for other reasons, and that the Union did not take the position that the order should be interpreted as prohibiting such departures. Given this clarification of the Union's position, in light of the @lo5 04'/06/98 09:09 FAX 4165314826 4 information before me, I am unable,to conclude that grounds for a variance of the order have been established. The Ehployer's alternative position vas that if I were not persuaded to vary the order to allow the planning process to proceed, the circumstances are such that there is an interest on the part of residents and community agencies that requires that they be notified and advised of a right to participate in these proceedings. Mr. Kaplan did not accept the Employer's position in this regard when it was raised before him. Mr. Loewen suggested that Mr. Kaplan's decision in relation to notice was incorrectly decided and that even if it were correctly decided, the circumstances have now changed. In particular, Hr. Loewen emphasized that the date of anticipated closing in relation to the release of the decision is now closer and the Bnployer is now in a position to initiate and provide planning assistance. It was further noted that the Union is seeking relief which goes beyond simply declaratory relief. In that regard it was the position of the Deployer that it would be inappropriate for me to make any direction as to the type of relief being sought but that I should direct that if the Union elects to continue to pursue relief beyond declaratory relief, there is a requirement for notice. Both IW. Loewen and Mr. Leeb made reference to the autborities which address the identification of interests which I 94/09'98 09: 09 FAX 4165314626 5 require notification of a right to participate in proceedings. There are many cases in which the seminal decisions of the Supreme Co'urt of Canada in Hooaendorn and the Court of Appeal in Bradley have been considered. and applied. Of the cases that were referred to me I found the analysis in Re John Noble Home and Qntari.0 Nurses’ Association (1994), 39 L.A.C. (4th) 324 (Mitchniok) to be particularly helpful. While the factual situation dealt with in that case is somewhat different from that before me here, the considerations relating to what constitutes an interest on the part of someone other than the party to the collective agreement are clearly applicable. At p. 336 of that award, after noting that a liberal view of what constitutes an interest requiring notice may be justified on the basis of an abundance of caution, it is concluded that such an approach "is not really a ca~utious approach at all". The decision goes on to note that the Virtually limitless 'I logical implications of the directly affected test, with its consequential negative impact in terms of cost and scheduling in a system that ie intended to be sensitive to both. While considerations of natural justice must prevail over considerations of cost and convenience, it is my view that the restrained approach advocated in this awaxd has particular relevance where the employer is the government. This Employer is charged with the responsibility of dealing with many interests. In many instances the manner in which the Collective Agreement is interpreted in the arbitration process will, in a general sense, affect the interests of persons to whom the 04:/06/98 09:OO FAX 4165314826 ^ * 6 government has obligations. That does not necessarily mean that those persons have a legal interest in the proceedings that will entitle them to notice and a right to participate in the proceedings. Arbitrators have always been sensitive to concerns expressed by employers about management by arbitration. A scenario in which recognition of third party rights is liberally construed in a case such as this has the potential for the creation of government by arbitration. The Employer possesses the responsibility and resources to ensure that the important interests of the residents of the institutions it intends to close are accommodated. I am not persuaded that those interests, or the interests of community agencies, constitute a legal interest in this proceeding, the purpose of which is to determine whether there is a violation of the collective Agreement between the Employer and the Union. I am unable to view the foregoing considerations as properly restricted to circumstances in which only declaratory relief is sought. That is, I am not persuaded that notice is necessary if the Union continues to seek relief beyond a declaration. While, as the Courts have reminded this Board on a number of occasions, it is the Board's obligation to provide relief that is fully remedial, arbitrators are sensitive to their appropriately limited involvement in a collective bargaining relationship in fashioning remedial relief. As in all cases, such sensitivity 'will inform the Board's remedial order, in the event, of course, 0.!/06.f98 09:OO FM 4165314626 z . that it is ultimately determined that a violation of the Collective Agreement has been established. The appropriate scope of any remedial relief that may be ordered will, no doubt, be the subject of submissions at the conclusion of the case. In the result, the application of the Employer to vary the order of Wr. Kaplan is denied. The order requested in connection with the provision of notice is also denied. With respect to the \ Union's position in relation to planning proceeding where requests are made, a position which is properly viewed as resulting in a clarification of Mr. ~aplan's order, I ma.ke no ruling with respect to Mr. Leeb's proposal for the establishment of a process. This matter is appropriately left in the hands of the-parties. I will, no doubt, be advised if the parties require any assistance in this regard. Dated at Toronto, this 6th day of April, 1998