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HomeMy WebLinkAbout1990-0987.Rabak & Oliveira.91-01-25988/90 IN THE NATTER OF.AN ARBITRATION Under TAB CROWN BMPLOYEEB COLLECTTVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rabak/Oliveira) - and - The Crown in Right of Ontario (Ministry of Health) BEFORE: M. Watters J. Carruthers .D. Halpert Vice-Chairperson Member Member D. Wright Counsel Ryder, Whitaker, Wright & -Chapman Barristers & Solicitors FOR THE D. Daniels EMPLOYER Counsel Mathews, Dinsdale h Clark Barristers & Solicitors HEARING: November 13, 1990 Grievor Employer This proceeding arises out of three (3) grievances all dated May 11, 1990. The grievances of J. Rabak and M. Olivei~t-a are individual grievances which allege they have been disciplined without just cause. The remaining grievance, filed by the Union, complains that the Employer has improperly assigned duties unrelated to the job of an Ambulance officer. It is common ground that these grievances all flow from a policy adopted by .- the Employer . The issue to ultimately be decided is whether the policy is valid such that discipline could be imposed for its violation. At the commencement of the hearing, the Employer raised a preliminary objection as to the Board’s jurisdiction to hear and resolve these grievances. Both parties agreed that the circumstances of.this case were somewhat unique, and that we should first determine our authority to entertain the matters prior to embarking on a hearing of the merits. For purposes of the preliminary issue, the following facts were agreed to: (i) Since the mid 1970’s, O.P.S.E.U. and Royal City Ambulance Service Ltd. had bargained pursuant to the provisions of the Labour Relations Act, R.S.O. 1980, Chapter 228, as amended. The parties most recent collective agreement covered the period from April 1, 1988 to March 3!, 1990. That agreement expired as of the latter date. ‘Article 33 of the agreement reads: 33:Ol This agreement shall be binding and remain in effect from April 1, 1988 to March 3lst., 1990 1 i -1 : i (1.. and shall continue from year to year thereafter unless either party gives the other party notice in writing in the period ninety (90) days prior to termination in any year that it desires its termination or amendment. 33.02 Both parties shall adhere to the terms of this agreement during collective bargaining. If negotiations extend beyond the termination of the agreement, any revisions in terms mutually agreed upon unless otherwise specified apply 1: retroactive y to that date. Notice to bargain was the expiry of the co1 (ii) On April 11 1 given to the Employer by the Union prior to ective agreement. 1990 the Ontario Government designated twenty-one (21) private ambulance services, including Royal City Ambulance Service Ltd., as Crown Agents for pat-poses of collective bargaining. This was accomplished by way of Ontario Regulation 181/90. Thereafter bargaining was to be conducted pursuant to the Crown EmDlOVeeS Collective Bargaining Act, R.S.O. 1980, Chapter 108, as amended. At no time prior to April 11, 1990 had the Government declared this Ambulance Service to have the authority or responsibility of a Crown Agency. Additionally, the Ontario Public Service Labour Relations Tribunal has never found the.Employer to be a Crown Agency pursuant to section 40 (1) of the Crown Emolovees Collective Baroaininq Act. The action taken in this instance follqwed the release of a decision of.the Tribunal dated Novembe,r 30, 1989 in respect of McKechnie Ambulance Services Inc. (iii) The parties are currently attempting to negotiate a collective agreement under the Crown Emnlovees Collective 2 Sarqainina Act,. An agreement had not been effected as of the filing of the instant grievances on May 11, 1990. The relevant provisions of the Crown Emolovees Collective Barqaininq Act read: l.(l) (a) Cd) (f) (9) (h) “bargaining agent” means an employee organization that has representation rights under this Act; “co1 lective agreement” means an agreement in writing between the employer and anemployee organization covering terms and conditions of employment; “employee” means a Crown employee as defined in the Public Service Act but does not include, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “employee. organization” means an organization of employees formed for the purpose of regulating relations between the employer and employees under this Act, but does not include such an organization of employees that, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..a............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “employer” means the Crown in right of Ontario; 18.(S) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the govern- ing principles and standards; or (c) that he has been disciplined or dismissed or sus- pended 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. R.S.O. 1980, c. 108, s.18. 3 19.(l) Every collective agreement shall be deemed to provide that i n the event the parties are unable to effect a settlement of any di’fferences between them arising from the interpretation, application, administration or al leged 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. 23.(l) Where notice has been given by the employee organization under section 8, the conditions then in effect - applicable to or binding upon the employer, the employee organization or the employees whi~ch are subject to .collective’bargaining within the meaning of this Act shall not. be altered without the consent of the employer, the employee organization or the employees,,as the case may be.~ It was the position of the Employer that sections 18(2) and 19(l) of the Crown Emalovees Collective Barsainins Act require the existence of a collective agreement as a condition precedent to this Board exercising authority to hear and finally determine disputes outstanding between the parties. Specific reference was made to the language found in both provisions. More particularly, section 18(2) states that an employee “may process such matter in accordance with the grievance procedure provided in the collective agreement.” “Failing final determination under such procedure, ” the dispute may be directed to the Grievance Settlement Board pursuant to the procedure established in section 19. We were asked to find that the grievances could not proceed in this fashion in this case given the lack of any grievance procedure. Section 19(l) provides the Board with the requisite authority to determine differences between the parties “arising 4 . . from the interpretation, application, administration or- al leged contravention of the agreement. . . ‘I. It was su’bmitted by the Employer that this jurisdiction could not be exercised in the absence of a collective agreement. From the perspective of the Employer, this precondition was not satisfied in this instance. Counsel submitted that the former collective agreement had expired, according to its terms, as of March 31, 1990. He further argued that its life was not extended by either the freeze provisions of the Labour Relations Act or by article 33.02, which has been reproduced above. The thrust of the submission was’that, as the parties had failed to conclude a new collective agreement for purposes of the Crown Emolovees Collective Bargaining Act, the grievances were not arbitrable. In this regard, the Employer disputed the Union’s contention that the former collective agreement could serve this purpose. Firstly, and. as noted, the.Employer took the position it had properly expired. Secondly, it was argued that the agreement, which had been negotiated under the Labour Relations Act, could not be treated as a collective agreement for purposes of the Crown EmDlovees Collective Barclaininq Act. More specifically, counsel for the Employer suggested that the regulation enacted as of April 11, 1990 could only be accorded prospective effect. In response, it was the primary position of the Union that the life of the former collective agreement was extended by article 33.02. Counsel for the Union submitted this provis 5 ion extended its operation such that~ it would encompass the entire period of collective bargaining. This extension would continue until such time as conciliation failed. It was argued by the Union that the presence of article 33.02 made it unnecessary to resort to the freeze provisions contained within the Labour Relations Act. The Union further submitted that the parties had been operating under a mistaken premise when they negotiated ,a their past collective agreements. At the relevant times, they believed they were properly negotiating under the Labour Relations Act. We were asked to conclude that this was an erroneous understanding as, in reality, the Employer had always been a Crown Agency falling within the scope of the Crown Employees Collective Earaainins Act. In summary, the Union asserted that all of the statutory requirements under that legislation had been met such that these employees, and the Union, could resort to the rights provided for in section 18(2). It was argued thata contrary finding would defeat the grievance and arbitration rights contained within the statute. As an alternate ground, the Union rel ied on the Successor Riqhts (Crown Transfers) Act, R.S.O. 1980 Chapter 489, as amended. It was argued that the declaration of April 11, 1990 constituted “a transfer” from the Employer to the Crown for purposes of the &&. Section 3 (1) would then have the effect of binding the Crown to the previous collective agreement until the Ontario Public Service Labour Relations Tribunal declared 6 1 ,’ \ i in otherwise. This argument appeared to assume that the former collective agreement was extended by operation of article 33.02. Subsequent to the hearing, the Union provided this Board with a copy of the award in Horne -1 1880/89 (Simmons). We were asked to consider this award if we elected to accept the Employer’s argument that there was no collective agreement in existence at the time the grievances were filed. It was submitted by Union counsel, in his written submissions, that Home was dispositive of the issue before this panel. He noted that in Horne, the Board held tha~t it had jurisdiction over .- grievances arising under section 18(Z) of the Crown Emolovees Collective Barqaininq Act even when the parties had not entered into a collective agreement. This decision was premised on the view that section 18(2) gives rights to employees which are in addition to any rights granted in a collective agreement. We were again requested to retain jurisdiction in respect.of these grievances as they were filed pursuant .to section 18(2) of the &&. The Employer also filed written comments relating to the. Home award. In summary, it was the position of counsel that: (i) the Board’s decision in Horne had to be reconsidered in light of the arguments presented in this case; (ii) this panel should not defer to Home given that the objection raised here is fundamental to our jurisdiction; 7 (iii ) the structure and content of sections 14 through 19 of the Crown Emplovees Co1 lecti ve Ra.rqai ni no Act supported the argument that section 18(2) does not operate in the absence of a collective agreement; (iv) (v) (vi) the lack of a grievance procedure, and problems associated therewith, was not raised as an issue in Home; all of the Divisional Court authorities cited in Horne are distinguishable from the circumstances before this Board; and Home has no applicability to the Union grievance. In Horne -7 the Labour Relations Board certified the Textile Processors, Service Trades, Health Care and Professional and Technical Employees International Union, ~Cocal 351 as the exclusive bargaining agent for certain of the employees of the Metropolitan Toronto Convention Centre Corporation. A first collective agreement between the parties was concluded in January, 1987. The Metropolitan Toronto Convention Centre Corporation Act, S.O. 1980, Chapter 52, was subsequently proclaimed on October 1, 1988. As a consequence of this development, the Employer became a Crown Agency and the Labour Relations Act ceased to be applicable. Further, the afore- mentioned collective agreement was no longer binding. The Convention Centre legislation did not provide for transition of the rights and benefits of the collective agree,ment from the Labour Relations Act to the Crown Emplovees Collective Barqaininq Act. Representation rights were granted to the Union by the Ontario Public Service Labour Relations Tribunal on October 10, 8 1989. The parties were subsequently unable to negotiate all of the provisions of a new collective agreement and the matter proceeded to interest arbitration. A collective agreement was awarded by a Board of Arbitrat i, i $2, 1990, the grievor was dism grievance was filed on January on in Apri 1, 1990. On January, ssed on di sciplinary grounds. His 18, 1990. At the hearing before the Grievance Settlement Board, the Employer raised a preliminary objection to the Board’s jurisdiction to hear the matter on the merits. It asserted that, was no collective agreement existed, the Board lacked the jurisdiction to embark upon an enquiry. Such position was premised on the language of section 19(l) of the Crown EmDlOveeS Collective Bargaining Act. As here, the Union relied on section 18(2). It submitted that such section provides individual employees with rights which are independent of the collective agreement. Ultimately, the Board determined that the grievor did have a right to have his grievance arbitrated. The thrust of its logic is found between pages 13 and 15 of the award. After considering a series of ,Divisional Court decisions, the Board there stated: II In all of the above situations there either existed or had been a prior collective agreement th~at had expired. In this respect, those decisions are distinguishable from the instant situation. There had not been any collective agreement previously signed by the parties under the present legal regime when the grievor’s services were terminated. As we have stated above, the fact that there had never been a collective agreement would ordinarily render the matter inarbitrable. However, in considering the above authorities and the wording of s.18(2) of the && it is our respectful opinion that the grievor does indeed possess a right to grieve his dismissal and that the Board has the jurisdiction to adjudicate his grievance. 9 it i (1 Our reasons are as follows. The Ontario Public Service Labour Relations Tribunal certified the Union on October 19, 1989 making it the exclusive bargaining agent within a defined bargaining unit in which the grievor is a member. It is not denied that upon being certified the Union was granted certain rights and obligations under the &. That certification also brought the grievor within the jurisdiction of the Act which likewise provides certain rights and protections to employees. In this connecti on, s.18(2) extends certain r,ights directly to employees as opposed to the parties and it expressly states that, “in addition to any other rights of grievance under a collective agreement, an employee claiming,” that he has been disciplined or dismissed may process such matter in accordance with the grievance procedure provided in the collective agreement. While we recognize that the existence of a collective agreement would have assisted the parties in setting out the procedure to be followed while processing the grievance that problem, if there was one, was not raised as an issue. And, inany event the grievor, the ,Union, and the Employer appeared before the Board so if there~ had been a procedural problem, of which we were not informed, it has been overcome because everyone concerned with this matter was in attendance at the hearing. Moreover, the Court decisions cited above appear to support the position that employees, as opposed to parties, have substantive rights by virtue of s.18 which cannot be taken away by the collective agreement. Once an employee can establish that he falls within the jurisdiction of the Act then it is our view ‘that s.18 extends certain protections directly to the employee. As was stated in the jovce case quoted in Keel inq, “succinctly, those rights are personalized to the individual ‘employee”’ and also in the B case reported at 40 0-R. (2d) 142 above, it was stated: Where a right to grieve a particular matter 1 is specifically recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislature to do so. I We.agree with those statements which, we believe, support the conclusion we have reached.” I * 10 i Factually, we find the circumstances in Home to be remarkably similar to those presented in this instance. In both cases, the relationship between the parties was previously governed by the Labour Relations Act. This relationship was subsequently altered by the passing of legislation which transformed the respective Employers into Crown Agents. Additionally, both parties became subject to the provisions of the Crown Emolovees Collective Bargaining Act. In neither instance, were transitional provisions enacted so as to facilitate the change in legal regimes. Here, the co1 lective agreement expired prior to the promulgation of the regulation; In Horne -1 the parties acknowledged that the legislation rendered the existing collective agreement ineffective. More significantly, as of the date of the grievances, the parties in both cases had not concluded new collective agreements under the Crown Emolovees Collective Barsaininq Act. For that reason, and subject to what is said below, there were no current provisions ,,, relating to grievance procedure. Lastly, as stated previously, the objections to jurisdiction were in substance virtually identical. ‘I After considering all of the oral and written submissions, this Board elects to adopt the approach taken in Horne -. In our judgment; that case was correctly decided. We agree that section 18(Z) of the Crown Emolovees Collective Bar-Raining Act provides employees with an independent right to grieve certain matters, 11 including discipline. Such right is expressly stated to be “In addition to any other rights of grievance under a collective agreement. . “. We further accept that this right to grieve exists once the employee can demonstrate they fall within the confines of the Crown Emolovees Collective Barqaininq Act. In this instance, that status may be assumed from the facts agreed to. This Board does not accept the Employer’s argument that sections 18(2) and 19(l) require the existence of a collective agreement before the rights contained therein can be accessed. While these provisions contemplate the existence of an agreement in the normal course, the circumstances here and in Home are highly unusual. Ultimately, we have not been persuaded that the lack of a collective agreement, if that is the situation before us, should negate the rights provided, in section 18(2). Put another way, we do not think that such rights are conditional on the existence of a collective agreement. Had this been the legislative intent, we think much clearer language would have been employed. This Board is not inclined to restrict the statutory rights afforded to employees in section 18(2) in the absence of such language. These include the right to grieve discipline and to resort to the Grievance Settlement Board in accordance with the procedure applicable under section 19 of the Crown Employees Collective Barsainincl Act. 12 i . . i,: In summary, we conclude that the lack of a collective agreement does not bar these employees from grieving the discipline imposed. It is clear that the absence of a procedure for processing grievances did not dissuade the panel in Horne from reaching this same conclusion. This absence was not lost on that Board. Rather, it appeared to treat the lack of a grievance .- procedure as a procedural matter in contrast to the other substantive rights provided. Given our.conclusion vis a vis the impact of the Horne decision, it is unnecessary for purposes of the individual grievances to strictly determine whether the former collective agreement was extended beyond March 31, 1990 by virtue of article 33.02. This is because, the two(Z) grievors would be entitled to grieve the discipline imposed notwithstanding the absence of a collective agreement. This entitlement is more difficu,lt to isolate in respect of the Union. Section 18(Z) of the Crown EmDlOveeS Collective Barsaininq Act, upon which the Horne award was premised, speaks to the rights of employees rather than those of the parties. It is more arguable, therefore, that any rights existing. in the Union to grieve must be located in either a collective agreement or in other provisions of the Crown Emolovees Collective Barqaininq Act. After a review of the submissions relating to this aspect of 13 c the case, the Board finds it is unable to accept the argument of the Union that article 33.02 serves to extend the life of the collective agreement. Rather, we agree with counsel for the Employer that the article, like the freeze provision in section 79 of the Labour Relations Act, serves to merely preserve existing terms, conditions of employment, rights and duties up until the concil iation process has proved futile. In our judgment, it is apparent, from a reading of article 33, that the parties contempl, ated termination would occur as of either March 31, 1990 or at the end of any contract year thereafter. Evidence was not presented in this case as to what occurred subsequent to April 11, 1990 that permitted the parties to proceed to the bargaining table under the Crown Emolovees Collective Barqaininq Act: Further, the Union did not present argument on the effect of section 23(l) of that &. Given the significance of this type of issue, the Board is reluctant to render an opinion in a vacuum. However, we are disposed to the view that section 23(l), if applicable, would serve to continue the conditions of employment as found in the expired agreement as long as same were not inconsistent with other provisions in the &. This would include the right of the Union to proceed with a policy grievance as formerly permitted under article il.041 Given such right, the Board would be hesitant to conclude that such a grievance could not proceed to arbitration simply because the parties had not concluded their negotiations for a new 14 1 i I> IO \ !. i I collective agreement under the Crown Emolovees Collective Barqainina Act. Such a conclusion would not ma!+@ good labour relations sense and would be contrary to the intent of section 19(l) which deems every agreement to provide resort to the Grievance Settlement Board for the final and binding resolution of disputes. Notwithstanding our impressions in this matter, which should be treated as obiter, we are not prepared to c Union grievance may go forward. However, this little difference to the ultimate resolution o that we have previously found the jurisdiction nclude that the decision may make this case given necessary to hear the individual grievances of J. Rabak and M. Oliveira. The issues of just cause and reasonableness of the particular procedure adopted may be addressed within that context. In light of. our disposition of the preliminary objection, it is unnecessary to interpret and apply the Successor Riqhts (Crown Transfers) Act. Last1 y , the Board was not persuaded to give any retroactive effect to the declaration that the Employer was a Crown Agent. To do so would be contrary to the actual conduct of the parties who have started to negotiate a collective &greement under the new regime. For all of the above reasons, the Board finds that it has the jurisdiction to hear and resolve the two (2) individual 15 grievances. Hearing dates are to be scheduled in due course by the Registrar. Dated at Windsor, Ontario this 25th day of ~atwary ,199l. ’ ‘t, c 16