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HomeMy WebLinkAbout1988-0231.Moulton et al.88-12-21 ONTARIO £M?LOY~:$ DE t.A COURONNE GRIEVANCE c,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1,90 DUND,4S STREET WEST. TORONTO, ONTARIO, MSG 7Z8- SUITE 2100 TELEFHONE/TE-'L~'PHONE ~80;. RUE DUNDAS OUE$~; TORONTO, (ONTARIO) MSG IZ8 , BUREAU2100 f4~6) , 0231/88 I IN THE MATTER OF AN AR~ITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (L, Moulton, et al.) Griever The Crown ~n Right of Ontario fMinistry of Correctional Services) Employer Before: M.V. Watters Vice-Chairperson J. McManus Member ?. Camp Member For the Grievers: S. Urse] Counsel Cornish &Assoc[ates Barristers & Solicitors Far the Employer: C.H. Slater Senior Counsel Human Resources Secretariat Ministry of Treasury & Economics ~EARIN~: September 6, 1988 lJ DECISION At the outset of the hearing counsel for the employer raised a preliminary objection as to the arbitrability of the grievance. The grievance was filed by Mr. Lloyd Moulton on February 23, 1988, as a consequence o'f unspecified health and safety concerns ~T_. allegedlY ex'isting at the Elgin-Middlesex Detention Centre in London, Ontario. The grievance form stated on its face that it was a '~group grievance'~. The 'Statement of Grievance~ and the · 'Settlement Desired' read as follows: "We grieVe that our health amd safety is being jeopardized in the operation of the institu:ion." "That management operate in a manner t'hat will insure the healt.h and safety of all staff." Attached to the grievance was a separate sheet headed "Group Grievance" This sheet contained the names and signatures of twenty (20)other employees who presumably shared a similar concern with respect to the issue rais.ed. Counsel for the employer submitted that the.grievance was indeed a group grievance ~nd that ~uch was inarbitrable under the terms of the parties' collective agreement. He noted that while the agreement permits the filing of individual and union -1- grievances~ no provision is made for The processing of a group grievance. It was argued'that as the instant grleva~ce was not brought on behalf of a singular employee, snd as it did not satisfy the requirements for a union grievance, the board lacked }urisdiction to proceed £o the merits of the dispute. Counsel further submitted tha~ ~his lack of }urisdic~ion deprived the board of any authority to ~rea~ ~he grievance as a series or group of individual complaints. I~ was the position of the employer in this regard Chat section 20(8) of the Crown Employees Collective Bargaining Act, R.S.O. I980, chapter 108, did not bestow on the board a p~wer to amend a matter relating to substantive, as opposed co procedural, rights. ~e iastly argued that any failure ~o raise ~his objection during ~he processing of the grievance could not be considered as a waiver of such right, in that jurisdic:ion was absent ab initio. In hit submiaslo~ a purported waiver could not invest the board with a ~urisdic:ion tha: i: did not initially possess. The following au:horities were relied on in support of the employer's position: Elhadad Union, I508/81 (Delisle)i Blake e~ al., 1276, 13&2, 1858, 1887, 1588~ 1889~ 1890, '1891~ 1892~ 2292/87 ($hime); Clerks 3 General, 240/84 (Verity)l ~aik (Taharall'y), 108/77 {$winton). Counsel for the union, in response, submitted that the grievance could be categorized as a series of individual grievances grouped together on one grievance form. In her -2- estimation, it was material that the signatures of al'l of the interested e'mployee~ were at£ached to the grievance form as noted above. This served to distinguish the instant situation from that found in Elhadad Union in which the Chief Steward signed the grievance "on behalf of" all members of the Local in question, Counsel further argued that it made more sense from a labour relations perspective to include the individual complaints on one form rather than to require the filing of twenty-one separate grievances. This was especially so in a case such as this where the concerns of the various employees and the evidence to be presented was '~dentica[. It was the union's position that the method of filing utilized in this instance would serve to avoid a, multiplicity of p~oceedings. Counsel lastly argued that the employer had waived any right to object to the form of the grievance as a consequence of its failure to state such objection in the reply to the grievance. The union relied on Re Thomas Built Buses Of Canada Ltd. and United Automobile Workers, Local 63_~6 27 L.A.C. (2d) 409 (Weatherill, July 1980) in support of its position. After receiving the submissions, of the parties, the board elected to adjourn the proceedings so that it could more fully assess the respective pos'itions that were advanced. We have now had the opportunity to review the relevant provisions of the collective agreement.and the authorities cited. At the outset, -3- we state our conclusion that the objection of th.e employer must be sustained. It is clear from a reading 'of article 27 of the collective agreem'ent chat provision is made for the filing .and processing of individual and union grievances. The agreement does not specifically refer to the processing of a group grievance. The issue of :he validity of suc~ grievances has previously come ~ ....... before 'this board in Elhadad Union and both cases~ the board concluded that group grievances were not arb£trable. The award in Elhadad Union found that: ~The grievance before us is a group grievance and the col. lective agreement does not provide for such. Each individual within the local could have filed a grievance,or the union could have filed but a group' grieva~ce is uot arbitrable..' (Page 2). In a sim£1ar vein~ the board in Clerks 3 General stated as 'Articles 27,2.1 and 27.8,i of the collective agreement establish procedures for processing indiv£dual and union .g:ievances, There is no provision in either the collective agreement or the C~own Employees Collective Bargaining Act wh£ch provides for the processing of group grievances. Article 27,I~ provides tbs: an arbitration board has no author£:y to enlarge upon the wording of :he parties* collective agreement, The board~concludes that the language agreed upon by the parties in their collecCive agreement requires that grievances (other than un/on.grievances) proceed on an ind£vidual basis through the grievance procedure. If the parties desire to permit the filing and processing of'group grievances or representative grievances or test cases, then the collective agreement must. be amended to so provide." (Pages 5-6). -4- - This panel of the board agrees with these conclusions, We recognize that the award in Thomas Built Buses adopted a different approach, There, the board was prepared to entertain a "grou~ grievance" notwithstanding that the collective agreement made no express provision £or same, We have not been.persuaded, however, that this private sector award should dictate a different approach from that taken by prior panels of the Grleva'nce Settlement Board,' We are mindful in this regard of the comments made by Chairmsn Shime in Blake et al., with respect to the significant di££erences between Chis board and those in the private sector. Our assessment of the grievance now before us is 'that it may properly be considered as a 'group'grievance. We note that the grievance'form and the attached sheet both refer to a "group grievance", Additionally, the 'Statement of Grievance' and the "Settlement Desired' employ words that suggest the grievance was commenced to protect the interests of a group of employees., In the former, the words "we" and "our" are used. In 'the latter, the remedy is requested for "all staff". Such .language is reflective of an i~te~t to' proceed ~Lth a group grievance. We cannot'agree that the page of attached signatures has the effect of transforming' this grievance into a series of individual grievances, each of which would be arbitrable. The board is of -5- the further opinion that it does not have the'authority to amend the grievance and treat it as a series of individuaI grievances. We concur with the following statement found in the Elhadad Union award, wherein the board held that'it would be improper to assume jurisdiction on this basis: "~he board was tempted tO accede to the suggestion. of counsel for the grievor and treat the grievance before us as the individual grievance of David Elhadad. Counsel for the Ministry, however, properly pointed out that in doing so we would not be ruling '~ . on the arbltrability of the grievance before us; we would be changing the grievance into something that was arbitrable. Counsel tot the grlevor argues, that arbitrators ought not to stand on unimportant procedural ~ points; we agree but cannot say that the point taken is unimportant. If we were to change this grievance and i,'. make it arbitrable wha't would be the limits to our power to .change future disputed grievances and what would happen to the integrity of the process," (Page As stated above, the board has concluded that it does not ' 'have the necessary jurisdiction to adjudicate a group grievance as the union does not have the substantive right to proceed in such fashion. Accordingly, we cannot'give etfect to the concept of waiver. A similar conclusion ~as reached in Elhadad Union wherein the board stated: "Does anything come from the fact that the juris'dictional objection was not taken before the hearing.date? We think not. We agree with the essence of the remarks in Re Rbbson-Lang Leathers Ltd. (O!Shea) (I973) 2 L.A.C. (2d) 289, at 297; The right to launch any ,grievance is a substantive right and not merely a procedural matter, ~here the parties in a collective agreement have subdivided the different types of grievances, the right to -6- brin~ e'ach d~fferen~ type of grievance is likewise a substantive right. Accordingly, 'the right vested in the union in this matter to file a policy grievance under art. 7.01 is a subatanti-ve right with respect to which the parties have set UP certain procedures, i.e., the union may bring ; forvard such a grievance at step 3 of the grievance procedure vithin five vorking days. If a matter properly has given rise to a policy grievance under art. 7.01 but vas only grieved after the expiry of the five days referred to and was processed to arbitration without objection by the company as to it timeliness, a company may be said to have vaived any objec£ion it had to the ~--~ procedure folloved by the union in processing the grievance. Hoverer, if the union attempts to 'initiate a grievance which is not properly a policy grievance under art. 7.01, the company can object to the arbltrability of the grievance at any time since such objection is directed to a matter of .~ substance rather than procedure." (.Pages Notvithstanding our conclusion in this case, this board is attracted Co the unlon's assertion that multiplicity of proceedi'ngs should be avoided. ~e have no do,bt that it Vould be preferable to process a single complaint r. ather than to entertain twenty-one separate grievances. This objective could have been achieved through the filing of a union grievance. This not having been done, ye are not at liberty to amend or alter the collective agreement through the creation of a right to file a group grievance. Such right, if it is desired, must be left the parties ~o negoti·a~. For all of the above reasons, we £[nd the grievance before -7- ua to be not arbitrable. Dated aC ~indaor, On:ar/o, thia2]$~day of Deoember, ~988. M. V. Wattere, Vice Chairperson ~ (Addendu.m 'f /" /i~.'~'-`''' '~' : 'Attached) J. McManus, Member ~z:~amp, Member ~. 231fB8 ADDENDUM I have read the majority award and concur, but not without a certain amount of reservationl My concern is that the action of the Board in this particular case has only served to prolong the arbitration process by following the Elhadad Award, 1508/84 (Delisle). Having been referred to Chairperson, Shime's remarks in'Blake et ali 1276/87, I find for the most part I agree with the statements therein, but at the same time I am mindful of the Board's policy to consolidate srie~ances of a similar nature whenever it can. This is done to avoid multiplicity of grievances of th~ same nature, the very situation that this Board may have created. I must ask, do not the members have a right to have their grievances heard as quickly as possible and .in our case the very nature .of 1;he grievances re: health and safety plus the environment the grievors must work in, cries out for a speedy resolution. Perhaps, those who prescribe to the line of thinkin§ that at times to "narrow and technical a view is taken" are correct. J. McManus