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HomeMy WebLinkAbout1988-1322.Meades.89-07-17 ONTA'RIO EMPL 0¥~S DE LA COuF~ONNE' CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, ~'ORONTO, ONTARIO, MSG 1Z8 - suITE 2100 TELEPHONE/T~'L~'PHONE 180, RUE DUNDAS OUEST, TO~ONTO, tONTAR)O) MSG tZ6 -BUREAU 2100 (416) 5g~-0688 1322/88 IN TBE ]~ATTEI~ OF AN ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT. Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. Meades) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Smployer Before: B.A. Kirkwood Vice-Chairperson M. 5yons Member A. Stapleton Member For the Grievo~: B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the EmDloyer: 5. Oudyk Staff Relations Officer Ministry of Correctional Services Hearing: May 8, 1989 Page 2 DECISION The grievance involves the hiring of staff on regular days off. The employer needed an employee to work overtime on November 2, 1988 from 7:00 p.m. to 11:00 p.m. The grievor could not be hired for the work as he was working from 11:00 a.m. to 11:00 p.m. The grievance claimed that the employer did not comply with the overtime procedures on November 2, 1988 as provided in the collective agreement. The relief sought was an explanation of the incident involved and compliance with past grievance settlements. At the outset of the hearing, the employer's counsel raised a preliminary objection to the arbitrability of this grievance. The employer's counsel submitted that the grievance was not properly an individual grievance, as the complaint did not affect the grievor personally, and should have been brought by either an affected employee, or by the union, as a union grievance, if it wished to proceed with the issue as a policy matter. The union's counsel argued that as the employer only raised the issue of arbitrability with the union six days prior to the hearing, the employer was estopped from raising the jurisdictional argument, as held in Re St. Raphael's Nursing ~Qmes I.td. a~ l.ondon an~ District Building Service Workers' Union. Local 220 9 L.A.C. (2d) (H.D.Brown) . Page 3 The union's counsel argued, in the alternative, that the Board had jurisdiction to hear the grievance, as the framing of this grievance in the form of an individual grievance was merely a procedural defect and that it caused no prejudice to the employer. The union's counsel submitted that articles 27.1 and 27.12.1 are not mutually exclusive, but merely provide procedural time limits which are to be applied in individual and union grievances. He further submitted that it is only when an individual grievance is framed as a union grievance, to take advantage of the greater time limits given to the union grievance, that a grievance should be found to be inarbitrable. The employer 's counsel asked for a written decision on the jurisdictional issue prior to proceeding on the merits, whereas the union wished to proceed with the hearing. The Board considered the submissions of the counsel and adjourned the hearing pending a written decision on the jurisdictional issue. As it is stated in the decision of O?SEU (Jane Hooey) and Ministry of Health G.S.B. #348/81 (J.F.W. Weatherilt): "Where there is a substantial objection raised to the Board's jurisdiction, and where a reasoned decision thereon is necessary, it is generally preferable that such decision be made before the proceedings continue. In the instant case, there is no agreement between the parties that the Board should proceed under reserve, receiving evidence and arguments on the merits without having determined that it has jurisdiction to consider them, and without such agreement we think it is best - again, as a general matter - not to force an unwilling party to proceed." Page 4 We do not find that the employer is estopped from arguing that the Board has no jurisdiction to hear this matter, by raising this issue in the last week. Although it was only raised shortly before the hearing, there was sufficient time for the union to have the opportunity to prepare its response to this issue. Furthermore, it did not ask for time to meet this issue, but wished to proceed with the hearing. The purpose of the grievance procedure is to allow the parties the opportunity to canvass the problem and to attempt to resolve it in an open forum. To allow each party to properly assess'and determine whether the grievance can be settled, each party should be made aware of all the issues. . However, if a party does not raise the issue of jurisdiction during the grievance procedure, in an attempt to resolve an issue between the parties, the party cannot be prevented from raising the jurisdictional issue at the hearing, as the parties cannot confer jurisdiction on the Board if there is no jurisdiction to hear the matter. The only recourse for the affected party, is to allow an adjournment to enable the affected party the opportunity to meet the issue, if the issue is raised at the eleventh hour. We do not find that the case of Re St. Ra~h~el's Nursing Homes Ltd. and Lo~don and District Building S~v~c~ WQ~kers' Union, Local 220 (supra) is of assistance to us. In that case, the employer raised the issue for the first time at the hearing, that the Board did not have jurisdiction to hear the grievance as it was improperly presented as a union grievance, instead of an employee grievance. As the Board held that the grievance was properly a union grievance, its Page 5 decision that the employer had waived its right to object to the arbitrability of the grievance was obiter. The issue was not thoroughly canvassed and and we do not find that there was sufficient foundation in that decision to apply the rationale of an obiter remark. Article 27.2.1 and article 27.12.1 distinguish between an employee grievance and a union grievance. The heading "Union Grievance" serves to emphasize that different considerations are applicable. Article 27.2.1 and article 27.12.1 state: 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty(20) days of first becoming aware of the complaint or difference. UNION GRIEVANCE. 27.12.1 Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agre~ement, the Union shall be entitled to file a grievance at the second stage of the grievance jprocedure provided that it does so within thirty (30) days following the occurrence or origin of the circumstances giving rise to the grievance. There are two elements in each article - the entitlement to bring a grievance and the procedural time frame in which the grievance must be initiated. The right of the individual to bring his or her grievance is conveyed by "An employee who believes he has a complaint or a difference shall..." The right to launch a union grievance is conveyed by "Where any difference between Page 6 the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file..." The right given, to the union is much broader than the right given to the individual and it reflects each one's respective role. The union is a representative of all its members and is representing their Collective interests, while the individual's interests may not necessarily reflect those of the group. Therefore, by creating a distinction between individual grievances and union grievances in the collective agreement, the agreement recognizes an individual's rights and provides the right to the individual to pursue his or her own interests on occasions when the individual does not reflect the interests of the group. TO protect the group's interests, there are restrictions on the individual's rights. Therefore, the right of the individual to grieve has been limited to those circumstances which directly affect the individual. As stated by the arbitrator in OPSEU aq~ Ministry of Government Services (Glenny~ G.S.B. ~564/84 (E.K.Sloane): "The basis of an individual grievance is that the individual grievor have a complaint about "management action which specifically affects the Grievor in an immediate and tangible way": ?almer, collective Agreement ~rh~tr~t~o~ ~n C~n~da (2nd edition, 1983) at Page 175." Similarly it was held in OPSEU (Katch~y) and Ministry of Correct~on~] Services, G.S.B. ~354/83 that the grievor must be directly affected by the matter that creates the complaint or difference under the collective agreement to bring an employee grievance. Page 7 Otherwise, if the right of the individual were not so restricted, any individual who had a complaint against the system, where it did not affect that individual personally, could initiate a grievance and change the policies of the union, without its concurrence, and thereby alter the relationships among the employees within the union and usurp the union's role. The union would be unable to represent the collective interests effectively and would be unable to consider all the complaints presented to it and assess if it is in the union's best interest to proceed with an issue, as a policy matter. It would be unable to create and pursue consistent policies on the group's behalf~ As a result, if the individual's rights were not restricted, the individual would be able to change the relationship between employer and the union and breakdown the system which is in place to protect the group's interests. We therefore find that the individual cannot pursue a grievance if the individual is not directly affected by the circumstances giving rise to the grievance. In the case brought before this Board, there was no evidence that the parties ever considered this grievance as a union grievance, nor that the union supported this grievance, as a policy issue. This case is unlike Re Bell Cana~ and Traffic Employees' Association 12 L.A.C. (2d) 177 (O.B.Shime) which was relied upon by the union, in which the arbitrability of an individual's grievance as a policy grievance was upheld. In the ~ case, the union supported an individual's grievance as a policy grievance during the entire grievance procedure, and the employer considered the grievance as a union grievance, even though it was initiated as an individual grievance. The employer admitted that it was aware from the beginning of the grievance procedure that the grievor was not affected personally by the grievance, but was acting in a-representative capacity. The only difference in the treatment of that grievance, as an individual Page 8 grievance rather than as a union grievance, was that it was commenced at a stage earlier than that which was required for a union grievance. This was not a substantive difference, but a procedural difference. In our case, it is not merely a procedural matter, as to when a grievance must be commenced that is in issue, but the substantive right of an individual to represent the union's issues on its own. We find that articles 27.2.1 and 27.12.1 distinguish themselves in a substantive manner as well as in a procedural manner, and that the articles are mutually exclusive. As in O?S~U ~nd Liquor Cont~pl BQard of Ontario (Eox) G.S.B.# 572/82 (P. Draper, we find that as articles 27.2.1 and 27.12.1 are mutually exclusive, an individual grievance cannot be converted into a policy grievance.. Therefore, this grievance is dismissed. Dated at Toronto, this l?th day of July, 1989. B. A. Kirkwood, Vice-Chairperson