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HomeMy WebLinkAbout1990-3084.Union.91-10-23 DecisionEMPLOYES DE LA COURONNE DE L'ONTARIO commissin DE REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1z8 180. RUE DUNDAS OUEST. BUREAU 2100, TORONTO Ontario M5G 1z8 (4 16) 326- 1388 : (4 76) 326- 1396 3084/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Policy Grievance) Grievor and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE : J. Roberts M. Vorster D. Montrose Vice-Chairperson Member Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE EMPLOYER S. White Counsel Legal Services Branch Ministry of Community & Social Services HEARING August 1, 1991 AWARD In this arbitration, the Union took the unprecedented step of filing a Union classification grievance. It was said that the Union was justified in taking this step because the grievance was in the nature of a parens patriae action, in the sense that the Union was acting on behalf of employees who could not file classification grievances for themselves. It seems that effective March 1, 1990, the Ministry created a new position called Support Service Worker at the Huronia Regional Centre. Exercising its exclusive management right to classify positions pursuant to s. 18(l)(a) of the Crown Employees' Collective Bargaining Act, the Ministry assigned this position the classification of Cleaner 2. So far, so good. But then came the problem: The Ministry decided to staff this new position with employees who were temporarily transferred from other positions such as food service helper, housekeeper, laundry worker and cleaner. Under Article 6.6.1 of the Collective Agreement, these employees remained in their old positions while performing the duties of the new Support Service Worker job. The upshot of this was that they were not legally entitled to grieve the classification, and hence wage, assigned to the new position. Article 27:11:1 of the Collective Agreement stopped 2 them. It reserved the right to grieve classification to "[a]n employee who alleges that his position is improperly classified." (Emphasis supplied.) They were still in their old positions. All of this might not have amounted to much if the temporary transfers were short in duration. They were not. As of the date of the hearing, August 1, 1991, the Ministry still had not posted any vacancies for Support Service Workers. Counsel for the Ministry stated that the Ministry intended to post and fill the Support Service Worker positions soon. Regardless of how soon this takes place, however, some temporarily transferred employees will have been performing the duties of the new position for going on one and one half years. Counsel for the Union submitted that if a classification grievance could not be filed on behalf of such employees, they would stand to suffer a grave injustice. There was no guarantee that all temporarily transferred employees would apply or be successful in the forthcoming competition. They might never be able to file individual classification grievances for themselves. They would be sure to lose the benefit of any wage increase resulting from future classification grievances regarding the position. Given the length of time during which they performed the duties of the position, it was submitted, this likely would amount to a substantial loss. 3 Counsel for the Ministry acknowledged that this potential existed and in order to alleviate the problem, the Ministry undertook at the hearing to make retroactive payment of any new wage rate resulting from a future classification grievance to all employees who temporarily performed the duties of the Support Service Worker position. At the same time, however, counsel vigorously objected to our asserting jurisdiction over the Union classification grievance. First, it was submitted that the right to grieve classification was exclusively within the control of individual employees. There was no basis in the Collective Agreement or the Crown Employees' Collective Bargaining Act, it was submitted, for a union classification grievance, parens patriac or otherwise. Secondly, it was submitted that to allow the Union to file a classification grievance would trench too deeply into management's exclusive right to classify position pursuant to s. 18(1) (a) of the Crown Employees' Collective Bargaining Act. Empowering the Union to file a union classification grievance, it was submitted, would be tantamount to requiring management to negotiate with the Union the initial classification of every new job. If management relied upon its exclusive statutory right and refused to negotiate, it was submitted, it would wind up facing a preemptive strike by the Union in the form of a union classification grievance. 4 Finally, it was submitted that in any event there would be practical difficulties in the way of resolving a classification grievance on the basis of the generic position description before the Board. There were variations, it was submitted, in the types and concentrations of duties being performed by employees working under this job description. Counsel for the Union urged the Board to dismiss these preliminary objections, characterizing them as merely technical in nature. He noted that under Article 27:12:1 of the Collective Agreement there was no limitation upon the scope of a Union grievance and submitted that in light of the inability of the temporarily transferred employees to grieve, the union classification grievance should be allowed to proceed. As to the undertaking of the Ministry, counsel for the Union rejected it as inadequate to satisfy all of the concerns of the Union. He submitted that there were detriments to requiring the temporarily transferred employees to wait for the resolution of a future classification grievance from an individual employee. Chief among these were the elements of delay and uncertainty. We do not consider the jurisdictional objections of the Ministry to be merely technical. They raise matters of considerable significance, and we now turn to consider these in some detail. 5 (1) Right to Grieve Classification Exclusive Right of Individual Employees With No Room for Union Grievances: This Board has adhered in a number of cases to the general principle that individual and Union grievances are mutually exclusive. Re Miller and Ministry of Correctional Services (1990), G.S.B. No. 1811/89, at p. 4 (Simmons); Re Anderson and Liquor License board of Ontario (1988). G.S.B. No. 1028/86 at pp. 4-5 (Watters); Re Ellhadad and Ministry of Health (1985, G.S.B. No. 1508/84, at pp. 2-3 (Delisle); Re Fox and Liquor Control Board of Ontario (1983), G.S.B. No. 572/82, at p. 5 (Draper). In Miller, Vice Chair Simmons elaborated the reasons for applying this principle of mutual exclusivity. He said: Basically, a union grievance cannot be transformed into an individual grievance and this is particularly so because of the Collective Agreement. ... Article 27.2 discusses individual grievances. Article 27.12 discusses union grievances. ... The Board ... agrees ... that individual and union grievances are mutually exclusive. ... [In Katchay and Ministry of Correctional Services (1983, G.S.B. No. 354/83 (Samuels), the Board said ] "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 established law." ... In our respectful opinion, the matter that is before us is properly a matter for a union grievance. The grievor is not seeking any relief that would affect him permanently. Id., at pp. 3- 5. The decision of the parties to provide for separate individual and union grievances in the Collective Agreement, with different procedures, time limits, etc., has been taken to demonstrate an b intent to separate their functions. Individual grievances, it is said, are reserved for complaints involving a grievor's own personal situation and union grievances are for more general complaints having a broader impact upon the bargaining unit. In classification cases, there is a further reason for applying this principle of mutual exclusivity. Both the Collective Agreement, Article 27:11:1, and the Crown Employees' Collective Bargaining Act, s. 18 (2) (a) speak solely in terms of an individual employee's right to grieve classification. They are silent as to the existence of any such right in the Union. This must be regarded as a significant omission. The right to bring a grievance has been said to be a substantive right. RE Neamtz and Ministry of the Environment (1985, G.S.B. Nos. 516/84, 517/84 and 544/84, at p. 9 (Gorsky).' Where both the Collective Agreement and the Act have expressly vested a substantive right in individual employees, the right cannot be usurped by the Union. The Union cannot exercise that substantive right where individual grievors are available to do so. The principle of mutual exclusivity must be strictly applied. We recognize that in Re OPSEU (Union Grievance) and Ministry of Health (1988) G.S.B. No. 2513/87 (Dissanayake), the learned Vice Chair spoke in terms of the distinction between individual and union grievances being procedural, id. at p. 4, but those remarks solely addressed the issue of remedy, and. not the threshold issue of standing to grieve. Id., at pp. 4-5. i 7 In the present case, however, application of the principle of mutual exclusivity does not lead to dismissal of the union grievance. Here, no competing rights intervene. There aren't any individual grievors to exercise the substantive right to grieve classification. The only employees performing the work of the Support Service Worker position are temporary transfers, and they do not have any right to grieve. In all other respects, the grievance herein qualifies as a union grievance under Article 27.12 of the Collective Agreement. It is more general that an individual grievance because it involves the treatment of a group of employees. Its resolution will have a broader impact upon the bargaining unit than an individual grievance. It appears to be in proper form as a union grievance and to have been filed within the time limits established by Article 27.12 of the Collective Agreement. For all of these reasons, we conclude that we must dismiss the preliminary objection to jurisdiction that was based upon the principle of mutual exclusivity. (2) Interference with Management's Exclusive Right to Classify New Positions: The Crown Employees' Collective Bargaining Act, R.S.O. 1980, c. 18 as amended (hereinafter referred to as "the Act", provides in pertinent part: 8 18(l Every collective agreement shall be deemed to provide that it is exclusive function of the employer to manage, ... including the right to determine, (a) ... classification of positions. There is no doubt that s. 18(1) (a) of the Act creates a protected zone of management classification activity. However, where the substantive right to grieve the assignment of a classification has been properly exercised, the Board possesses an ultimate remedial power to review management's initial assignment of classification. The jurisdictional underpinnings of the Board's ultimate derive from the unrestricted remedial jurisdiction of the Board under s. 19(1) the Act and the existence of the right to grieve. Section 19(l of the Act reads as follows: 19(1) - 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. The Board has the jurisdiction to finally decide every grievance which is properly before it. Viewed from a pragmatic and functional perspective, this jurisdiction includes an ultimate 9 power to review the initial assignment of classification in the arbitration of a grievance properly raising this issue. This power is, however, peripheral in nature, in the sense that it resides on the periphery of management's protected zone of classification activity. In order to avoid trenching too deeply into management's protected zone and in the interest of promoting good labour relations, the power should only be exercised in extreme cases and in the least incisive manner. In the circumstances of the present case, we decline to exercise this jurisdiction. We might have reached a different conclusion if we were not assured that the jobs were in the process of being posted and filled, and the Ministry had not given its unilateral undertaking at the hearing to make retroactive payment of any new wage rate resulting from a future classification grievance to all employees who temporarily performed the duties of the Support Service Worker position. The Ministry assured us that this undertaking was intended to be binding, and we take the Ministry at its word. The undertaking will be enforceable as an order of the board. Interest upon any retroactive payment of wages will be included as a matter of course. The undertaking of the Ministry, while not a complete answer to the concerns expressed by the Union, is sufficient in our opinion to take this case out of the range of extreme cases in which it would be appropriate for the board to exercise its 10 ultimate power. We recognize that there will be some delay in obtaining relief, if any; however, relief is assured in the event of reclassification of the position in response to an individual classification grievance. (3 The Allegred Variations From the Generic Position Description for Support Service Worker: we have declined to take jurisdiction in the present we believe that it Would be prudent to make Some remarks regarding the variations that the Ministry alleged existed in the actual types and concentrations of duties of employees from those set forth in the generic position description for Support Service Workers. Our understanding is that the Ministry's initial assignment of classification to all positions was made on the basis of the generic position description. If the Ministry adheres to this initial assignment regardless of these alleged variations it will itself be treating the variations as irrelevant and perhaps be estopped in a future classification grievance from claiming otherwise. In light of this, we would suggest that any contemplated reclassification activity regarding selected Support service Worker jobs be undertaken forthwith. (4) Conclusion The preliminary objection to jurisdiction based upon management's statutorily protected zone of classification activity 11 is allowed subject to the undertaking of the Ministry that Was given in this case. If the undertaking is not observed, be brought before the Board upon motion the matter may once again of either party. day of October, 1991 Vice-Chairperson D. Montrose Employer Member