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HomeMy WebLinkAbout1987-2246.Narain.91-08-15. :. - !j n n BOARD COMMISSION DE SETTLEMENT RkGLEMENT DES GRIEFS IN TNN NATTER OF AN ARBITRATION Under TNN CROWN NNPLOTNNS COLLECTIVE BARGAINING ACT Before TEE GRIRVANCE SETTLEMENT BOARD BETWEEN OPSRD (Narain) - and - Grievor The Crown in Right of Ontario (Ministry of Natural Resources) , Employer BEFORE: M. Wright Vice-Chairperson M. Vorster Member D. Montrose Member FOR THE GRIEVOR R. Wells Counsel Gowling, Strathy 8 Henderson Barristers 8 Solicitors FOR THE EMPLOYER R. Filion Counsel Winkler, Filion & Wakely Barristers 8 Solicitors HEARING, October 24, 1989 September 25, 1990 October 10, 11, 1990 -. -2- In a written submission which we received from counsel for the Grievor the remedy requested by the Grievor was described as follows: "It is therefore respectfully requested that the board uphold the grievance of Hahendra Narain and: a) declare that the assignment of Narain to the position of Aggregate Resources Geologist with MNR violated Article 24 of the collective agreement; b) declare that Narain should have been assigned to the position of Resident Geologist - London with NNDM; Cl order that Narain now be offered the position of Resident Geologist - London with RNDM; d) that the Board remains seized of the matter to assist in any matters arising out of the implementation of this award." At the risk of over-simplification, it is the contention of the Grievor that he, and not Bern Feenstra, should have been assigned to the position of Resident Geologist at London with the Ministry of Northern Development and Mines (MNDM). Mr. Feenstra was present at the hearings and participated in them. Counsel for the Ministry of Natural Resources (MNR) and for the Ministry of Northern Development and Mines (MNDM) has questioned the jurisdiction of this panel to grant the relief requested by the Grievor. The attack upon our jurisdiction is two- fold. In the first place counsel for the Ministries argues that 00964-90.023 ,,... 2.. ,,_,, -3- the position of Resident Geologist at London with MWDM was excluded from the bargaining unit on April lst, 1987; it became a management position. The contention, therefore, is thk this Board does not have jurisdiction to issue an order which would have the effect of assigning the position to Mr. Narain or to anyone else since it was excluded from the bargaining unit at the time that the Grievor filed~his grievance. The second objection to our jurisdiction is that the grievance was untimely in that it was not filed within the time limits prescribed until Article 21 of the Collective Agreement. We shall deal with each of these objections to our jurisdiction. Wr. Feenstra was appointed to the position at London effective on February 9, 1987 (Exhibit 22). It is common ground between the parties that on April 1, 1987 the position at London was transferred out of the bargaining unit and became a management position. The grievance was filed on November 19, 1987. Simply stated, therefore, counsel for the Ministries tells us that we do not have any authority to assign any person to a position which is not covered by the Collective Agreement. We have no doubt concerning the correctness of the Employer's objection. Our jurisdiction is circumscribed by the provisions of the Collective Agreement and we cannot reach beyond the Collective Agreement to purport to deal with a position which has been excluded from the 00964-90.023 -4- Collective Agreement. The same issue came before another panel of this Board only a few weeks ago. See OPSEU (Shelton/Haynes/Villella) GSB 52'0/90, 530/90 and 531/90 (Dissanayake). The facts in those cases were somewhat different since they involved grievances alleging that the Grievor6 were improperly denied interviews that formed part of a competition to fill vacancies. The employer raised a preliminary objection that the grievances were not arbitrable on the basis that the vacancies fi.red were management positions which were outside the scope of the Collective Agreement. The panel in that case reviewed the jurisprudence including prior decisions of other panels of this Board and concluded that "....the board finds that it has no jurisdiction to hear these grievances". There is no need to repeat the jurisprudence on this matter. Suffice it to say that we are in agreement with the views expressed in GSB 520/90 and 530 - 531/90. We conclude, therefore, that we do not have jurisdiction to deal with the grievance before us for the reason that the remedy requested by the Grievor is outside the scope of the Collective Agreement. The second objection to our jurisdiction goes to the untimeliness of the grievance. The Collective Agreement spells out very clearly the requirements respecting the submission of a grievance which would initiate the grievance procedure: 00964-90.023 -5- ARTICLR 27 - GRIEVANCE PROCEDURE 27.1 27.2.1 27.2.2 27.3.1 27.3.2 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisorwithintwenty (20) days of first becoming aware of the complaint or difference. If any complaint or difference is not satisfactorilysettledbythe supervisorwithin seven (7) days of the discussion, it may be *processed within an additional ten (10) days in the following manner: STAGE ONE The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within 00964-90.023 27.3.3 27.13 27.14 27.15 27.16 -6- seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. GENERAL Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. In this Article, days shall include all days exclusive of Saturdays, Sundays and designated holidays. The time limits contained in this Article may be extended .by agreement of the parties in writing. The Grievance Settlement Board shall have no jurisdictionor alter, change, amendorenlarge any provisions of the Collective Agreement. Clearly, therefore, if the Grievor intended to grieve the assignment of the London position it was incumbent upon him to comply with the time limits prescribed in Article 27 as aforesaid. Mr. Feenstra was appointed to the London position effective February 9, 1987. We must look to the evidence in order to 00964-90.023 .’ . ,/--- ,--. I . .I -7- determine when the Grievor first became aware of the assignment of the position to Mr. Feenstra to which he objects 50 strongly. In view of our disposition of this case no useful purpose will be served in setting out all of the facts. In order to aid an understanding of this decision, however, certain basic facts should be mentioned. Prior to Feenstra's assignment to the position with MNDM at London he was a Mineral Resources Geologist with MNR - South West Region in London. The Grievor, Narain, was Regional Geologist with MWR, Central Region at Richmond Hill. After the formation of WNDM and a considerable exchange of correspondence between MNR and MWDM both of the former positions were declaredredundant by WNR. The Grievor was offered a position of Aggregate Resources Geologist with MNR at London and Feenstra was assigned to the position of Resident Geologist with MNDM, also located in London. The Grievor feels aggrieved claiming that Feenstra's new position ought rightfully to have been offered to the Grievor. It is very clear from the facts which emerged at the hearing that the Grievor has known long before Mr. Feenstra was appointed as to what was going to happen with Mr. Feenstra's job as well as with the Grievor's. The Grievor testified that he first learned about the intended assignments as far back as December 9, 00964-90.023 - 8 - 1986. Mr. Martin Groneng, the Grievor's supervisor, had a conversation with the Grievor at which time he told the Grievor 'what lay in store in terms of the position that Mr. Narain held at -- that time as well as with respect to the position in London. A5 a result of the Grievor's discussion with Mr. Groneng the Grievor wrote a memorandum to Mary Mogford, Deputy Minister MNR (Exhibit 9) in which he said, in part, as follows: "On December 9, 1986 I was verbally informed by my supervisor (Lands and Minerals Coordinator) that MNDM has elected to take the incumbent from the Southwestern Region to fill the position that will be transferred to MNDM. Once that happens my position of Regional Geologist in Central Region will be declared redundant. In effect what it told me that the Central Region position was being transferred to MNDM along with salary dollars but without the incumbent -- that is me. This has now been confirmed to me by Southwestern Region. So, there is no position to declare redundant. I was then askedtotake the vacant position (job specifications for which were provided to me) in London. As it was put to me "the Ministrv was trvina to find a home for you'@. I was expected to give my reply almost immediately and then, was given some time to think and give a reply by December 12, 1986." It is clear from the foregoing that the Grievor knew long before the London position was assigned as to what the intentions were of both MNR and MNDM and he did not hesitate to express his sharp disagreement therewith. On February 2, 1987 Mary Mogford replied to the Grievor when she explained why she considered that the position taken by I 00964-90.023 1 ,-- 7. I / -9- 4 her department (MNR) was consistent with the Collective Agreement (Exhibit 10). She said: "The final outcome of these negotiations has been the realisation that each Ministry needed a position to deal with its own program responsibilities. new positions will be established. Accordingly, two of Northern Development and Mines One in the Ministry and one in this Ministry. In this Ministry we are of the opinion that the MNR responsibilities can best be discharged from our Southwestern Region. In addition, the Ministry of Northern Development and Mines has requested that their position also be located in our London Regional Office, a request to which we have agreed. At the present time, staff in both Ministries are working to prepare the position specifications and other documentation required to establish these positions. They have been directed to complete this exercise as early in this year as is possible. The decision to establish two new positions clearly has a significant impact on both yourself and the incumbent in the Southwestern Region. Both jobs .in their existing form have, in fact, become redundant. The Collective Agreement establishes procedures for dealing with circumstances such as these. As the incumbent in the Southwestern Region is qualified for both these positions and he is within forty kilometers of their location, other. he must be assigned to one or the Due to his significant seniority it is proposed that he be offered the choice and my understanding is that his preference is for the job with Northern Development and Mines. Accordinalv. as soon as this iob is established he will be assianed to it." (Underlined added) It will be seen that the Deputy Minister of MNR clearly told the Grievor that )I... it is proposed that he (ie. Mr. Feenstra) be offered the choice and my understanding is that his preference is for the job with Northern Development. Accordingly, 00964-90.023 - 10 - as soon as this job is established he will be assigned to it". The Grievor was, told by his Deputy Minister about the proposed assignment in London before the assignment involving Feenstra was actually made. The Grievor took issue with his Deputy Minister's letter and stated his views with unmistakable clarity expressing them on February 17, 1987 to the Deputy Ministers of both MNDM and MNR (Exhibit 11). In that memorandum the Grievor reviewed the steps which .have been taken in connection with Feenstra's job at MNR as well as with his own and he summarizes the situation at page 2 as follow5: "In summary, the MNDM - MNR management position, if I am to understand your responses correctly, is as follows: 1. Declare the Regional Geologist position in Central Region redundant. 2. Declare the Mineral Resources Geologist position in Southwestern Region redundant. 3. Appoint Mineral Resources Geologist (Southwestern Region) incumbent rather than Regional Geologist (Central Region) incumbent to the Resident GeOlOgi5t’S position in MNDM. 4. Redeclare the Mineral Resource Geologist position, in MNR, not redundant by rewording the job specifications and may be with a new title, and then offer this to me as a *new" position. I feel this is highly unworthy of the two Ministries and an action which I can only resent to the fullest extent of my ability and energy. It is the obligation of the two Ministries to be fair to me..." 00964-90.023 The Grievor then goes on to propose the steps which he considers would result in fairness to him. The Deputy Minister of MNR, Mary Mogford, wrote to the Grievor on April 21, 1987 in which she reasserts the position taken by both Ministries. At the time that Mary Mogfordrs letter (Exhibit 12) was written, Mr. Feenstra had already been in the coveted position since February 9, 1987. On April 21,. 1987 Nary Mogford wrote to the Grievor (Exhibit 13) advising him that the positionwhich he then held with MNR at Richmond Hill Ontario would be declared redundant effective October 31,. 1987 and she offered the Grievor another position at London Ontario which the Grievor accepted albeit obviously with considerable misgivings on his part. The grievance was not filed until November 19, 1987. We have no doubt that the Grievor knew that Mr. Feenstra had been appointed'as Resident Geologist with MNDM at London Ontario on February 9, 1987. Nothing was withheld by MNR and MNDM from the Grievor. lie was told as far back as February 1987 that Mr. Feenstra was going to be appointed to the position of Resident Geologist in London with MNDM We conclude that the Grievor knew 00964-90.023 - 12 - on Feburary 9, 1987 that Mr. Feenstra had on that day been appointed to the London position with MNDM. Any different conclusion would be rooted in unreality. The grievance was not filed within the time limits prescribed by Article 27 of the Collective Agreement. Other panels of this board have dealt with the question in the past. See OPSEU (N. Wahendra) GSB 2027/87 (Witchnick). In that case the panel said the following with respect to Article 27: - "The above language renders the time limits mandatory and, unlike the Labour Relations Act, there has been nothing added to the Crown Employee5 Collective Bargaining Act to give a board of arbitration the jurisdiction to relieve against even the most minor violations of mandatory time limits. The union concedes, therefore, that if the time limits called for under the Collective Agreement were not complied with, the Board has no alternative but to dismiss the grievance". We agree with and adopt the language in the foregoing paragraph as having equal application in the case before us. Counsel for the Grievor asks us to disregard the employer's objections with respect to Article 27 of the Collective Agreement on the ground that the objections appear to be an after- thought and were not raised initially in the grievance procedure or before our board. Indeed, the points made by Counsel for the Grievor are factually correct. Counsel for the employer, however, 00964-90.023 - 13 - explains his position in his written submission in the following language: employer. "Wr. Wells may argue that the employer did not raise time limits as an issue in the grievance procedure. That may be true. However, it was not until the hearing commenced before the Board that the Employer became aware of the nature of the grievance. The grievance form (Exhibit 1), simply alleges "unjust constructive dismissal" and requests "reinstatement to my former position....". It was not until Wr. Wells' opening statement at the commencement of this hearing that it became apparent that Article 24 was in issue or that Mr. Narain was claiming for Feenstra's job. It was not until the evidence unfolded that the relevant dates were established. Accordingly, regardless of whether the time limitations in the Collective Agreement were raised during the grievance procedure, the Employer is entitled to raise that issue at arbitration, particularly where the nature of the grievance is defined~ for the first time at arbitration." We have no alternative but to agree with Counsel for the The grievance bears no relationship to the position which has been taken before us. The Grievor, in his formal grievance, stated the following: "I grieve an unjust constructive dismissal" and the settlement which was asked for is as follows: "that I be reinstated to my former position and be retroactively reimbursed for any lost benefits and/or salary, and further, for any expenses incurred as a result of this unjust action". 00964-90.023 --. 2 .I - 14 - At the opening of the case before us, Counsel for the Grievor made it clear that the Grievor was never dismissed and that there is no basis for his claiming to have been the victim of a "constructive dismissal". It is only at the hearing stage that the nature of the grievance was clarified and it is accurate to say that the position taken before us at the 'hearing bears no resemblance to what was contended for in the formal grievance. We accept, therefore, the explanation given to us by Counsel for the employer. We think his explanation is reasonable. In any case, it is always open to anyone appearing before an administrative .tribunal or even in a court of law to raise the question of jurisdiction. Having regard to the unusual circumstances of this case, we consider that the position taken by the employer is reasonable and we accept the explanation. We regret that we have been unable to dispose of this case on its merits. It would have been infinitely preferable to deal with this grievance in that way particularly in the light of the lengthy delays which have ensued. To enter into a discussion of the case on its merits, however, in the light of our conclusion as to our lack of jurisdiction would lead us into a legal mine field. 00964-90.023 ,~ ,. L I’-‘-- : J ; - 15 - Having arrived at the conclusion which we have concerning our lack of jurisdiction, we must deny the grievance. Dated atTQronto,..this 15th day of August;.-- 1991,. / &,#/+?‘” M. W. Wright, Vice-Chairperson ;;'I Dissent" (dissent attached) M. VorsteK L 00964-90,. 023 DISSENT BY UNION NOMINEE - MENNO VORSTER RE: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION AND THE MINISTRY OF NATURAL RESOURCES GRIEVANCE OF MAHENDRA NARAIN GSB # 2246/87 I must respectfully dissent from the ruling of the majority that the grievance be disallowed for jurisdictional and timeliness reasons. Counsel for the Employer argued that at the time the grievance was filed by the grievor, Mahendra Narain, the position in question had been reclassified from one within the bargaining unit to a management function. He submitted that as a result it is beyond the jurisdiction of the Grievance Settlement Board. However, it was not until the position had been filled by Mr. Feenstra for several months that the position became excluded from the bargaining unit. There is no doubt, therefore, that had the grievor filed a grievance on the first indication of the impending re-organization of the Ministry and the redundancy of his existing position, the jurisdictional matter could not have been raised. The deciding factor, therefore, is the issue of timeliness. Mr. Narain did not file a grievance until nine months after Mr. Feenstra had been transferred into the position. On the face of it, therefore, the time limits prescribed in Article 27, Grievance Procedure, had expired. I would submit, however, that Mr. Narain was mislead by a series of events and that in the instant case, the .‘. i question of fairness and reasonableness should decide the timeliness question in his favour. Of foremost concern is that the objection to timeliness was not raised by counsel to the Employer until after all the evidence had been called. As a result, the union was not able to submit evidence as to why Mr. Narain had delayed~ in filing his grievance. Counsel for the Employer justifies belated submission on timeliness in his written argument as follows: “It was not until Mr. Wells’ (Counsel for the Union) opening statement at the commencement of this hearing that it became apparent that Article 24 was in issue or that Mr. Narain was claiming for Feenstra’s job. It was not until the evidence unfolded that the relevant dates were established. Accordingly, regardless of whether the time limitations were raised during the grievance procedure, the Employer is entitled to raise that issues at arbitration, particularly where the nature of the grievance is defined for the first time at arbitration.” Couns.el for the Employer obviously became aware of the nature of Mr. Narain’s grievance at the outset of the arbitration hearing. That is when the objection as to timeliness should have been raised. It would have afforded the Union the opportunity to call evidence on the issue and adequately reply to the issue. Since the question was not raised until the end of the proceedings, I would respectfully submit that the Union should have been allowed to call evidence at that point regarding the unique circumstances of the grievance delay. With all due respect, it is my opinion that the Board has only heard half the argument. Respectfully submitted, r3lawvJo& Henno Vorster