Loading...
HomeMy WebLinkAbout1988-0368.Glenny.88-10-20 " ONTARIO EMPLOYES DE LA COUFIONNE GROWN EMPLOYEE~ OE t'ONTARIO ..... GRIEVANCE C~MMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. MSG I.~8 . SUITE 2100 TELEPHONE/T~L~PHONE 1,9D, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1ZB . BUREAU2100 [416) 595-0688 0368/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU .(Jim Glenn¥) Grievor - and - The crown in Right of Ontario (Ministry of Government Services) Employer Before: N.Y. Dfssanayake Vice-Chairperson J, Solberg Memberl F.T. Colllct Memberi For the ~r~evor: C.V. Horley Counsel Gowl~ng and Henderson Barristers and Solicitors For the Employer: S,A. Currte Staff Relations Officer- Human Resourc~ Secretariat ~eartnQ: September 20, 1988 DECISION This is a grievance wherein the grlevor, Mr. J. Gienny makes the following allegation.. "That Mr. W.D. Gray, Director, Systems Branch, Ministry of Government Services has contravened article .4 o~ the collective agreement, by filling vacancies with selective secondments and consultants." The settlement requested is "that Mr. W.D. Gray comply with ~he coilective agreement." By letter dated A~gust 15, 1988, Ms. Currie for the Employer informed the Board as.'follows: Please be advised that at the .hearing of the above matter on September 20, 1988, the Employer will be arguing, that the grievance is not arbitrable. It will be the Employer's submission that, am Mr. Glenny is not personally affected by the matter raised in the grievance, this is not properly a~ individual grievance. The same issues have been dealt wi~h in another decision of Board (Glenny 564/84) in which the grievance was dismissed. We will be aruuing that that decision 'should be followed and the.present grievance should be dismissed. In view of the nature of this objections, we will be asking the Board to provide a decision on our preliminary objection before it receives any evidence or submissions concerning the merits of the case. When the hearing commenced on September 20, 1988, Ms. Currie raised a number of additiona~ Dreliminar~ objections to the Board's jurisdiction to determine the grievance. At the' time, counsel for the union advised the Board that the grievor was not present, and fur:her · that he had no~ yet ha~ an opportunity ~o meeg with the grievor to discuss this grievance. The Board recessed to permit counsel to attempg to ioca~e ~he grievor. When the Board reconvened, counsel informed the Board that he had been able to contact the grievor. However, we were advised that due to some union business that he' had to attend to, the grievor would not be appearing a: the hearing. The. ~m~l~yer counsel advised the Board that the grievor also failed to attend the pre-hearing conference convened wi=h respect to this grievance' Upon ques=ioning by the Board, counsel conceded that he received notice from the Board Registrar sometime in mid-August, 1988, that the present grievance has been scheduled for September 20,. 1988, and that by letter dated August 24, 1988, he informed Mr. Glenny of the hearing date. Mr. Gtenny did not give any indication to his counsel, or to the Board, :ha~ ne would not be attending on September 20. The Employer took the position that it would nog consent .to an adjournment in the circumstances and requested that the Board hear and determine the jurisdiction issue. The Vice-Chairperson of the ~anel 4 advised union counsel that the Board would not be sympathetic to a request for adjournment in the circumstances. Accordingly, ~he part~es proceeded ~o address the preliminary issue. The Employer counsel filed with the Board a decision of. this Board da=ed September 15, 1987 (File No. 564Z84) where a panel chaired by Mr. Eric K. Sloan dealt with a grievance filed by the grievor, Jim. Glenny. At page one, the Board sets out the Statement of Grievance and Settlement required: STATEMEN~ OF GKIEVARCE: That Mr. W.H. Comartin, Manager, Property Administration' Section has contravened Article 4 of the Collective Agreement, in that he is filling vacancies ~ith prolonged selective secondments and contract staff. SETTLEMENT REQUIRED: "That Mr. W.H. Comartin comply with Article 4 and that competitions be held for the existing vacancies." ~ The Employer took %he position uhau ~ha was not arbitrable as an. individual grievance the management action complained of did not affect grievor personally, and =hat it should have been f!ied as a policy grievance. Counsel for the union argued that everyone in the bargaining uni~ affected if he or she is denied the right Eo compete for 5 a job, regardless of whether ~ha~ lost opFcrruni~v any real as opposed to theoretical si~n~fi-~n:u individual. It was contended that ail tha~ established is that the grievor could have the jobs. ~n rejecting the union's position, ~he /with Board Member J. ~c~lan'us dissent' lng,' s~a~ed: We disagree. The basis for an grievance is th~% the ~n~ivid~al ~' a compiain~ about :'mana~e2:en~ action speci~icaliy a~ec~s ~he Orievor in an immediate and tangible way::-. Collective AGreement Arbztrauion mn Cane (2nd edition, 1983) at Pa~e i75. We are of t~e view that this Grmevor ?as so affected. He was in a po~itzon to observe certain managemen~ practices of which he does not approve. He had the option of complaining to the Union and requesting ~hat a Union grievance be launched. To permit this Grievor s~anding would be to broaden the s~^~e of' individual grievances beyond what is necessary or desirable to give effect ~o the spirit letter of the Collective Agreement. A comparison of tbs "Statement of Grlavanc-~ and Settlement Required" in this grmevance /s.~"~ cuu shows a striking similarity with tbs warding mn ~rievance dealt with by the Board i'n 1957. In una5 cass, the Board heard evidence and submissions and conc~uc&d that the ~rievor was "not personally affected way, that is meaningful", and held tnau ~ne was inarbitrable as an individual grievance.~ Counsel for ~he un,on advised 5he have been the ~rievor's posi~ior. 5nat if ~hat position ha~ been posted. in a position to assess whether the claim. What we do have before us t~e grievance. There is nc. par%icu!ar position. Nor is 5here the urievor was personally denied apply for a job, 'Also., i~ was zn~ thee-no particular job had beet mencioned a% any E~me ~n ~he Grievance is distinguisn~ie from 5ne ~ Grievance and =he same resuiu muss Accordingly, the Board ~rievance is not ~he proper subjec6 grievance. In view of this finding, i: is not nec~ss~y to deal with the Employer's alternate submissfons: (a) that the position in question ~as for less than 6 months dura%~om and therefore posting under article 6.6.1. 7 position "- ~,~'~ the Em~loy~r ap~iy. (c~ =ha~ in any even=, tralning and an exciuslve management function under which is outside ~he Board's jurisdiction. in view of the Board's findin~ that une grlavan:a is inarbitrable, the same is hereby dis.mlssed. Dated this ZOth da'y of O~to~er, 1988 in Hamilton, Ontario. Nima! V, Dissanxya~ Vice-Chairperscn (Addendum A~[ached.) J. $olber~ Member Member 0368/88 ADDENDI3M My concurrence in this matter., not to be inter~r, eted as agreeing with the proposition, that there useful or logical distinction to be made between an and policy grievances. One can weii imagine a situation where an employee might feet intimidated by the pr. ospect of filing a gr-ievance, but where the union realizes that a serious issue of principle or. labour relations is.at stake. What possible sense does it make to preclude the union from' carrying forward such a grievance? Likewise, it is hard to imagine how a policy'promulgated by the employer would not Om intended to affect <or could avoid affecting) employees on an individual basis. An~ in that situation, what possible sense would it make to preclude a bargaining unit member from carrying for. war, d a grievance as a test of the policy )n question? All that being said, the B].ake oecision Chairperson Shime obviously has an impact on the instan~ grievance. It seems to me that this boar'd is now bound by the previous Slenny award given the cir. cumstances of this case. And I therefore agree with the Board's decision to dismiss the gr. iev~nce on that basis. J. Solberg