HomeMy WebLinkAbout1989-0093.Reitman.90-03-18 ON~ ~0 EMPLOYES DE ~ GOURONNE
CROWN EMPLOYEES DE L~N~R~
GRIEVANCE CpMMISSION~DE
SE3'rLEMENT REGLEMENT ~'
BOARD DES GRIEFS
1~ DUN~S STREET WEST TORONTO, ON~Q M5G 1~- S~ 2100 TEL~HONE/T~PHONE
18~ RUE DUNDAS OUES~ TORON~ (ON~ MSG 1~ - 8UR~U 2100 ~1~ 5~-0~8
93/89
IN TH~ MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT'
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Reitsma)
Grievor
- and -
The Crown in Right o[ Ontario
(Ministry of Natural Resources)
Employer
BEFORE: O.D. McCamus Vice-Chairperson
M. Vorster Member
D. Daugharty Member
FOR T~E I. Roland
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE M. Furanna
EMPLOYER: Staff Relations Officer
Management Board of Cabinet
HEARING: July 27, 1989
Ruling' on Preliminary Objection
This ruling pertains to a preliminary objection made by the
employer at the commencement of these proceedings. The Grievor was
a seasonal member of the unclassified staff who Worked for a number
ofyears as a Program Technician (Resource Technician 3) at. the G.
Howard Ferguson Forest Station for the Ministry of Natural
Resources. During the 1988 work season, this position was held by
two employees, the Grievor and a Mr. T. Vandenberg. As a result
of a reorganization of the' work force at the G. Howard Ferguson
Forest Station in 1988, the Program Technician position was
eliminated and replaced by a new seasonal position at a lower
classification level (Resource Technician 2) called Technical
Assistant. As the Employer determined that there would need to be
only one seasonal employee holding the. position of.Technical
Assistant, the job was. posted, a. competition was held, and Mr.
Vandenberg was appointed to the position.
On February 14, 1989, the present grievance was filed by the
Grievor. The. statement of grievance is expressed in the following
terms:
"I grieve violation of, but not limited to, Article
3.20.1 of the Collective Agreement in that I was
not recalled to my former position.'"
Paragraph 3.20.1 provides as follows:
"Seasonal employees who have completed their
probationary period shall be offered employment
in their former positions in the following season
on' the basis of seniority."
The grievance form goes on to set forth .as the desired form of
settlement;
"That I be recalled to my former position as
required by Article 3.20.1 with. ali pay and
benefits normally paid, retroactive to my
normal recall date."
The Unionfurther allpges on behalf of the Grievor that the Grievor
has .greater seniority than Mr. Vandenberg. On the face of it,
then, the obvious theory of the grievance is that the Grievor
alleges that the new Technical Assistant position is, in reality,
his former Program Technician position and' accordingly, that he
ought to have been appointed to the position -which he refers to
as his "former position" -.on the basis of.seniority as is required
by Article $.~0.1.
At' the co~_encement of' these proceedings concerning, the
Employer advanced a preliminary objection to this 'grievance.
First', the Employer argues that it ha~ received, only shortly
before the commencement of these hearings, notice of what it views
as a material alteration in the theory of the grievance which
should lead this Board to decline jurisdiction in this matter.
Second, the Employer argues that the Unionis now seeking to review
the reorganization of the work assignment that took place at the
G. Howard Ferguson Forest Station and, further, that this Board
lacks jurisdiction to review such a reorganization on the ground
'that it is an exclusive function of the Employer pursuant to
Section 18(1)(a) o~ the Crown Employees Collective Bargaining Act
R.S.O. 1980, C. 108, as amended. As will be seen, these two
grounds for this preliminary objection to our Jurisdiction are
related. After a brief exchange on these points at the hearing,
it was agreed by counsel, with the consent of the Board, that
further written submissions would be filed by counsel, dealing with
these matters in due ~ourse.. These submissions have been received
and reviewed by the members of this panel of the Board. We will·
deal with eac~ of the two grounds for the Employer's preliminary'
objection in turn. '
With respect to the alleged material, alteration in the theory
of the grievance, some further background information is necessary.
As' the, written submission on behalf of the Union indicates., there
appears~to be. no doubt that. when the grievance was. initially filed
in February of 1989, it· was' the. Grievor's impression that the
allegedly new position of Technical Assistant was virtually the
same position as the position of· Program Technician which he had
previously occupied. Thus, the. gravamen of the grievance at this
early stage was simply that the new position was not materially
different from the old position and therefore that recall rights
under Article 3.20.1 should have been made available to the
Grievor.
The Grievor's explanation for the difficult situation in which
he finds, himself rests on allegations concerning certain tensions
in his relationship with one of his superiors, Mr. All Campbell.
Among the sources of the alleged tension in the relationship
between the Grievor and Mr. Campbell was the Grievor's involvement
in providing information that led-'ultimately to the successful
prosecution of. Mr. Campbell for the commission of an offense under
the Pesticides Act. It was apparently the Greivor's belief that
the non-renewal of his seasonal employment' was in some fashion an
act'of retaliation undertaken at the initiative of Mr. Campbell.
What is' unclear, however, is the extent to which this explanation'
or concern was communicated to the Employer at. earlier stages of
the grievance process. The Union alleges that the problems with
Mr'. Campbeli were brought to the Employer's attention at the pre-
hearing stage of the process. The Employer's response, on the
other'hand, is. that while a series of allegations weremadeby~the
Grievor, they were vague and imprecise and. that the Grievor
indicated that more would be heard of' all of this at the
arbitration stage. For present purposes, however, the Board
accepts that the Grievor's concern that his relationship with Mr.
Campbell may provide, some explanation for the treatment he had
received and with respect to which he now grieved, was brought to
the Employer's attention at least by the pre-hearing stage of the
grievance process.
On June 29, 1989, after the grievance had been scheduled for
a hearing before the Grievance Settlement Board, counsel for the :
Union wrote a letter to the Employer asking for copies of the job
descriptions for the positions of Technical Assistant, Program
Technician' and for the'i, two positions~held before and after the
reorganization by the immediate superior to the Technician
Assistant and Program Technician positions~ Copies of those Job
descriptions were forwarded on July 14th, 1989 by the Employer'.
On July 19th, counsel for the Employer wrote to counsel for the
Union indicating that "it is our understanding that Mr. Reitsma
will be making allegations of' malice and a personal vendetta at
arbitration". The letter went on to indicate that when this matter'
was- raised ak the pre-hearing, the Grievor' refused to provide
details' except to indicate that he had witnesses to prove his.
allegations~ Further, the letter indicated that this situation
created difficulty in preparing for the arbitration and asked for
particulars, of the allegations. Counsel for the Union replied on
July 26th, 1989 providing, such particulars'. Counsel. for
Employer then replied that same day - this. being the day prior to
the ~te mche~uled for the first day of hearings concerning this
matter -indicating that the Employer would make an objection and
that if' the objection was unsuccessful the Employer would request
an adjournment to provide an Opportunity to prepare to deal with
these matters.
The. substance of the. Employer's allegation that a material
change in the Union's theory of this grievance has occurred is as
follows. The initial theory of the grievance, as indeed the Union
concedes, was thatthe Technician Assistant job was essentially the
same position as the Program Technician position which the Grievor
had previously occupied. The position now taken by the Union,
however, as the written submission~ made on behalf of the' Union
indicate, is that although there 'do appear .to be differences
between the Job descriptions of the two positions, the
reorganization, which has resulted in those differences is a sham
in the sense that -it ha~ been undertaken at Mr. Campbell's
initiative as an exercise in retaliation. It is alleged that the
"new" job has been created for the exclusive purpose of subverting
the Grievor's recall rights. Thus, though there are or may be.
differences in the two positions, they are differences upon which
the Employer cannot rely. In this-somewhat different sense, then,
the Grievor's original position may be. said to persist and it is
that'former position to which the grievance, alleges that-he should.
be recalled. From the Employer's perspective, then, the. theory of'
the grievance has changed from one in which the central question
was whether the two jobs were essentially the same to a theory of
the grievance which rests upon an allegation that apparent
differences in the two jobs are illusory and rest. on an exercise
in reorganization undertaken by the Employer in bad faith. That'
change, it is alleged, is a change in the "fundamental substance
of the grievance" and therefore takes the matter outside the
jurisdiction of this Board.
In making this argument, the Employer relies on a number' of
previous decisions of the Grievance Settlement Board in which the
Board has refused to consider grievances which have. in some sense
been fundamentally' altered. In ~acPherson and Ministry of
Community and Social Services 83/84 (Brandt) fo~: example, a
grievance wa~ brought on the explicit theory that a particular
communication to the Grievor from the Employer constituted
discipline. The communication in question allegedly imposed
additional responsibilities on the Grievor to communicate directly
to a particular third party rather than through the medium of a co-
worker in a different' classification. The change was made in
response to perceived difficulties in the working relationship
between the Grievor and the co-worker in question. The Grievor
argued that~the requirement to communicate directly with the third
party constituted discipline and'had been imposed by, the Employer
without just cause. The Employer argued in respohse- that. the
Ietter was-not' intended to and did not amount, to discipIine but
rather, amounted to a work assignment' which was not g{rievable. At
the hearing., the Union persisted in advancing the. theory that the
letter did indeed constitute discipline. The Union added an
alternative theory at this stage, however, to the effect that'even
if the letter constituted a work assignment, the ~ssignment in
question was arbitrary and therefore grievablel The Board held
that this "was a position which the Union could not %ake. in these
proceedings. The grievance protests, the action of the Employer on
the basis that it was discipIinary. We understood t~he grievance
to have been processed on that assumption. The UniOn cannot now
invite the Board to dispose of that grievance as ~.f it were a
8
grievance protesting a work assignment" (at P.8). The Board
concluded that' the letter in question was not. disciplinary and the
grievance was therefore dismissed.
Similarly, in Heffering and Ministry of Consumer and
Commercial Relations 504/80 (Delisle) the Board refused to consider
a grievance which had been initially cast in the form of a
straight-forward promotion-posting grievance when the Union sought
to argue its case, at the arbitration hearing, on the basis that
the grievor had certain "bumping rights" when her position was
eliminated and should therefore have been simply transferred to one
oft_he new'~acant positions without the necessity of competing with
others for the promotion. In dismissing the grievance, the Board
outlined, (at page 4) the test that should be applied, in our view,
in. circumstances of the present kind:
"The Board feels, however, that to accommodate the
grievor's present allegations within this grievance
would require more than simply a technical enlargement
of form; it would require a very real change in
substance. The Board recognizes that it must not
strictly construe the grievance but also recognizes
the necessity of giving Some meaning to the words
chosen by the parties. In fairness to both sides
in the preparation and presentation and to assist
tbs Board in understanding and resolving the real
dispute between the parties, that the dispute must
be framed with some accuracy. Unfairness cannot be
alleged in the air. Accordingly, the Board rules
that the grievor cannot proceed along the path her
counsel has described but rather is confined in
presenting her case to the single issue .... "
A fact situation somewhat similar to MacPherson arose in Gwin
and Liquor Control Board of Ontario 27/83 (Draper) in which a
discipline grievance was put forward at the arbitration hearing on
the basis that the case was not in fact a discipline case at all
but rather a dispute about attendance credits. The Employer raised
a preliminary objection to the effect that the fundamental basis
of the grievance had been altered. In reaching its conclusion that
it should dismiss the grievance for this reason, the Board noted
as follows at page 5:
"In our opinion, we are thus faced-not with a
request to entertain an amended grievance that
would retain the essential identity of the original
issues, but a request to entertain a grievance so
fundamentally altered as to be tantamount to a
separate grievance raising different issues.
We recognize the force of the numerous court and
arbitration cases rejecting a legalistic approach
to the treatment of grievances and we acknowledge
the desirability of acting upon grievances so as to
achieve settlement of the true dispute. However, the
problem raised by the Grievor's late change of strategy,
if it may be so termed, is not one of form, or procedure,
or of merely construing the language of the original
grievance, butb is one going to the substance of the
grievance. We find nothing in the jurisprudence,
offering a basis upon which we might reasonably find
the grievance, as now presented, to be arbitrable and
permit the case to proceed as proposed."
On the basis of authorities such as these, we are persuaded
that it is established jurisprudence of this Board that the Union
cannot be permitted to fundamentally alter the character' of the
grievance at the arbitration stage of the process. Although there
are obviously a number of ways in which the proposition might be
stated, we are attracted by the language of the Gwin decision,
quoted above, in which it is suggested that the grievance should
be ~i~issed where the a~ende~ grievance does not "retain the
essential identity of the original issues" but amounts in effect
to a request "ko-entertain a grievance so fundamentally altered as
to be tantamount to a separate grievance raising different issues".
It is not necessary to belabour the policy reasons underlying this
proposition. There is evident unfairness to the Employer in
permitting a grievance to unfold on the basis of a particular set
of allegations and a particular theory of liability, only to have
it altered fundamentally at the arbitration process. The integrity
of the earlier steps in the dispute resolution process would
obviously ~e undermined by a willingness to allow what' is, in
effect, a new grievance at this stage. Further, the prejudice to
the. Employer in terms of its ability to prepare its case is self.-
evident..
On' the other hand, if the Board were to give too sweeping a
view to the application of this proposition, other harmful effects
to the dispute resolution process provided for in the collective
agreement would follow. As the Board noted in Gwin, an overly
legalistic approach to the treatment of grievances may frustarte
the objective of "acting upon grievances so as to achieve
settlement of the true dispute." Thus, it cannot be the case that
the Union is precluded from advancing legal arguments at the
arbitration process that may not have been precisely, formulated by
the representatives ofthe Union at earlier stages in the process.
11
There are two reasons for' this. First, the. various steps in the'
grievance process envisage increasing'levels of familiarity with
the factual circumstances underlying the dispute. Iris therefore
obvious that the Grievor's understanding of the factual basis of
his or her claim will evolve as this process unfolds. Thus', even
though the fundamental nature of the grievance may not be effected,
the factual contours-of the dispute may be adjusted over time and
may lead the Union, for example, to rely on facts of which it was
not completely aware at the initial stages of the process.. Second,
if the initial grievance document and the initial statements made
on behalf of the Grievor by the Union at step one, for example,
were held,' ~n effect, to be legal pleadings in the technical sense
from which no deviation could be contemplated at a later stage, the
early stages of the process would, in our'view, become' needlessly
technical and legalistic. It' i~ entirely within the spirit'of the
mechanism set forth in the collective agreement that lawyers may
not become involved in the process until its later stages.
Accordingly, it is consistent with that general structure that the
gravamen of the Union's grievance may be. put forward at the
arbitration stage within the framework of a legal, analysis or
argument that may not have been precisely formulated by the Union's
representatives at earlier stages in the process. It is therefore
necessary to distinguish, then, between the kind of fundamental
change in the nature of the grievance that engages the line of
jurisprudence set out above with the result that the grievance must
be dismissed and the introduction of legal arguments and analysis
that do not have this result.
in the present case, we have come to the conclusion that the
position taken by counsel on behalf of the Union comes within the
second category for a number of reasons. First, unlike the cases
upon which the-Employer has relied, we note that in the present
case the Union both Persists in alleging the same breach of the
collective agreement as that set out in the grievance and continues
to seek the remedy sought therein. The Grievor wishes to be
recalled to his former position on the basis that the Employer's
failure to do so constitutes a breach of Article 3.20.1 of the
Agreement. To be sure, the Union's view of the kinds of arguments
that need now to be made in support of that alleged violation of
the Agreement have altered.. They have altered, however~ in the
light of. factual circumstances that. became known to the Union only
by the time that the matter had been scheduled for a hearing before
this Board. That is to say, as far as the information before us
indicates, the Union'did not have available to it copies ofthe job
descriptions in question until that point in time. Moreover, the ''
theory advanced by the Union with respect to the illusory nature
of the reorganization provides a legal analysis of what the Union
believes to be the significance of the Grievor's allegations
concerning the extent to which the treatment of the Grievor is, in
effect, an exercise in retaliation undertaken by Mr. Campbell. That
is to say, the Grievor had previously indicated that he believed
that retaliation had occurred. The argument now advanced by the
Union purports to provide a legal reason for making a connection
between the Grtevor's assertion that his treatment was so motivated
and the analysis of his recall rights under Article 3.20.1. Where,
as. here, the significance ofthe "new argument" made at the hearing
is to provide a legal basis for a.complaint advanced by the Grievor
at an earlier stage in the process, it would, for the reasons
advanced above, be unattractive to conclude that the Union is
limited only to those arguments of a legal character which, have
been made at earlier steps in the process.. For each of these.
reasons, then, we are of the view that the argument advanced on
behalfb of the Union at the arbitration stage is not in effect a
request to this Board "to entertain a grievance so fundamentall~
altered as' to be tantamount to a separate grievance raising'
different issues". Rather, the Union appears to be attempting to
rely on the. e~olving understanding it has. developed of the factual
circumstances of the presentdispute and a correspondingly evolving
nature of the legal theory underpinning the grievance. The "new
argument"-is being advanced, however, in support of what is
essentially the same grievance seeking essentially the same relief.
The Employer has further argued, in support of its preliminary
objection, that the Board lacks jurisdiction to deal with the
grievance as argued at this stage by the Union on the basis that
it touches upon a question of reorganization, this being an area
of discretion secured to the Employer under Section 18(1) (a) of the
Crown Employees Collective Bargaining Act. That provision states
as follows:
"18.-(1) Every collective agreement shall be deemed
to provide that it is the exclusive'function
of the employer to manage, which function,
without limiting the generality of the foregoing,
includes the right to determine,
(a) employment, appointment, complement,
organization, -assignment, discipline,
dismissal, suspension, work methods
and procedures, kinds and locations
of equipment and classification of
positions; and
and such matters will not be the subject of
collective bargaining nor come within the
jurisdiction of a board."
The Employer submits that this legislation has the effect of
prohibiting this Board from .assuming jurisdiction to investigate
the Employer's reasons for- reorganizing the work' place and
reassigning work. While we are persuaded that this is, an area of.
management discretion which is normally beyond the purview of
review in proceedings of this kind, we note that it is well
established in the arbitral jurisprudence that "there is a general
arbitral presumption that the right to reorganize the work force
must not be carried out in bad faith~ arbitrarily, or
disriminatorily" (See Brown and Beatty, Canadian Labour
Arbitration, 3rd ed., 1988 p. 5-25. Section 18(1) (a) of the Act,
by stipulating that a provision concerning management rights in
this and in other areas shall be deemed to be included in every
collective agreement covered by the statute, does not appear to
preclude the application of jurisprudence of this kind. Indeed,
it would be surprising if the intention of the legislature was to
exclude review on such grounds. AccOrdingly, one would wish to
find explicit language in the statute to that effect in order to
reach such a conclusion. For purposes of dealing with this
preliminary objection, of course, it must be assumed, that there is'
merit in the allegations of bad faith made by the Union. If,
indeed, it were th~ case that an alleged reorganization' were
undertaken not for legitimate reasons but for the very purpose of
denying an individual recall rights otherwise secured to an
employee by Article 3.20.1 of the Collective Agreement, we. are
prepared to assume that this would be sufficient evidence of bad
faith that it would confer jurisdiction on this Board to consider
the grievance in question. Accordingly,. we view the Union's
allegation to this effect as a sufficient basis for engaging the
~oard.'s Jurisdiction to enquire into such matters.
For the foregoing reasons, the preliminary objection raised
by the.Employer is hereby dismissed.
Dated at Toronto this 18th day of March, 1990.
Vice-Chair
I. ~~dissent "David P. Daugharty"
(See attached dissent) --'
David P. Daugharty
Member
I concur/~' "Menno Vorster"
Menno Vorster
Member
Dissent
I' have had an' opportunity to review the reasons of my
colleagues for dismissing the preliminary objection raised by the
Employer. I. wish to dissent for the following reasons.
I agree with the Vice-Chair that the central question raised
by the Employer is whether the Union seeks at this late stage to
alterthe fundamental nature of the grievance. My view, however,
is =hat such a change is present in this case. The original
version of~ the grievance alleged, in effect, that the new
Technician Assistant job was not materially different from the
Program Technician job. The Union now takes~ the. position,
apparently' for the first time, that though there appear to be
differences between the two jobs, those differences are the result
of an artificial exercise in reorganization undertaken in bad faith
for the purpose of denying the Grievor's recall rights. While I
appreciate the difficulty of drawing the distinction between
fundamental change in the nature of the grievance, on the one hand,
and an amended' grievance that retains its essential identity, on
the other, the present case, in my view, comes within the category
of fundamental change. An allegation of bad faith in the exercise
of management' rights raises rather different issues from an
allegation that two positions are essentially the same job. For
this reason, I would uphold the Employer's preliminary objection
and dismiss the grievance.
I wish to further note, however, that I am in agreement with
my colleagues on the second issue raised by the Employer, the
extent of the Board's jurisdiction to review a reorganization and
assignment of duties. Although work assignments and their
reorganization are, of course, an exclusive function of management
under Section 18 of the Crown Employees Collective Bargaining Act.
R.S.O., 1980, Chapter 108, I share the view of the majority of this
panel that Section 18 does not preclude review by this Board of a.
reorganization on the grounds of alleged bad faith. I express no
opinion, at thi~ stage, as to whether such bad faith has in fact
occurredin'the present case. The making of such an allegation by
the Union does, however, open up this issue for review by the
Board.
"David P. Daugharty"
David P. Daugharty