HomeMy WebLinkAbout1990-1036.Ally et al.91-01-22
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, , ONTAR(O EMPLOY~S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
.11 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS . - --
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~ ISO DUNDAS STREET'WEST. SUITE 2100, TORONTO. ONTARIO, MSG lZS TELEPHONEITÉLÉPHONE: (416) 326-1388
180, RUE DUND~S OUEST, BUREAU 2100, TORONTO (ONTARI~). M5G lZ8 FACSIMtLEITÉÅ’COprE:, (416) 326-1396
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1036/90
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IN THE MATTER OF ·AN ARBITRATION
Under ,
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THE CROWN BHPLOYBES COLLBCTIVE BARGAINING'ACT
. Before'
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~ THE GRIEVANCE SETTLEMENT BPAR»
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BE~EN - L _ OPSEU (Ally et all j
. Grievor
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The Crown in Right of Ontario ...
(Ministry of Labour)
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. - ··~t r -. i<~ Emp1oy~r
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BBFORE: w. Kaplan - . Vice-Chàirperson ,
_ M. Vor-ster "- Member
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" . . Member
- _,A. G. Staple~on
FOR TJIE . '. . S. McCormack
EMPLOYEES Counsel
.Stikeman, Elliott .
: Barristers & Solicitors
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I. Roiand - ~ -
FOR ,THE
ONIO~., ' Counsel -
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- Gowling~ Strathy & Henderson
Barristers & Solicitors
FOR THB c. Riggs
EMPLOYER Counsel
. Hicks Morley Hamilton stewart
storie
Barristers & Solicitors
HEARING: November 15, 1990
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Introduction
By a letter dated July 26, 1990 Mr. steven J. McCormack requested
that "a hearing be scheduled before the Grievance Settlement
, Board in respect of the ,matters addr,essed in our clients'
grievance. II Attached to this letter wal:; a document containin9
. the foÌlowing:
STATEMENT OF GRIEVANCE
The . claim that they are" improperly included
gr~evors ...
within the bargaining unit pursuant to Article 1.1 of
the collective agreement between thl¡a Management Board
of Cabinet and the ontario Public Service Employees
Union and that accordingly union due"s are being
improperly deducted from their: bi--weekly pay. The
grievors claim that they are perscms employed in a
managerial or confidential capacity and therefore are
excluded from the bargaining unit pursuant to clause f J
of ~ubsection, 1 of The Crown Employees Collective
Bargaining Act.
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SETTLEMENT REQUESTED
A declaration that the grievors are not and have never
been within the ambit of the bargaini.ng unit ·set out in .
the collective agreement as well ac:' full retroactive
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pay and benefits in accordance with the management I
compensation scheme. In addition, the grievors seek an
order directing the employer to ceaSE! and desist in the
improper deduction of union dues from the grievors bi- ,
weekly pay. ;
Attached to the Statement of Grievance was a list of "grievors"
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(hereinafter referred to as lithe employees,II). Subsequently, by a.
letter dated November, 2, 1990, three additional names were added
to the list.
A hearing was held in Toronto, at which 1:ime both the union and
the employer raised a preliminary issue as to the arbitrability
of this matter. Argument was heard and the Board reserved its
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ruling on this issue. I
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','Backqrou~d to the Case ~
It'is not necessary to' review the background to' this case in
detail. Suffice it-to say, from submissi6ns of counsel 'and :from
-the -documents ,introduced - into evidence, : that' 'a group of
Employment Standards Officers retained ,Mr. . McCorma'ck to file and
process the above-noted complaint. ";... It is the view, of these ..
employees that they are exempt from the application of The Crown ,
Employees Col~ective BarQaining Act because. they are persons I
employed in a managerial capàci£y by virtue of the' fact that they !
-' exercise an -adjudicative fúnction. 'The Ministry'of Labour, (lithe I
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employer") agreed to discuss the matter in issue but in a letter,
dated July' 2, 1990 stated' as follows: I
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" YOU' should, kllow,' however tha tit is the Ministry's
;';'-., position ,that your letter and the grievanc'e"attached to -
, 'it' disclose no, violation of ,either the, collective
agreement or the Cr..own Employees' Collective Baraaining ,I
'Act, and that the issues raised therefore do not come I
.' ' within - the 'jurisdiction 'of the Crown Empioyees
Grievance Settlement Board. Should the grievance i
", ' ~'proceedto· arbitration, i twill be the employer' s ~ )
position that the matter is not arbitrable. ' I
Another letter, dated July 20, 1990 and addressed to a,ll the I
Employment Standards Officers, observed that this type of dispute
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was a matter falling within the jurisdiction of the Ontario
Public Service Labour Relations Tribunal.
At the request of Mr. McCormack, the R,egistrar, scheduled a
hearing before the Grievance Settlement Board.
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The Argument
Argument began by counsel for the employees making a number of
preliminary observations, followed by submissions from union and
em.ployer counsel, followed by a deta i. led argument from the
counsel for the employees. All counsel w,ere then invited to ma}:e
,some concl udinq submissions. It, is convenient, however, to set
out the argument of the union and empl'::>ye~ first, followed by
that of counsel for the employees. "
For the union, Mr. Roland argued that there was no grievance
before the Board. According to counsel 1:here are two parties 1:0
the collective agreement, the union .and the employer. Article
27.1 states:
It is the intent of this Agreem.ent tÖ adjust as qt¡ickly
as possible any complaints or differences between the
parties arising from the interpret~ltion, application,
administration or alleged contravention of this
Agreement, including any question as to whether a
m.atter is arbitrable (emphasis ours).
Mr. Roland advised the Board that there was no complaint or
difference between the parties, and this positio~ was endorsed by
Mr., Riggs on behalf of the Management Board of Cabinet. CounsE~l
submitte¢l, in that there was no difference between -the partieE~,
that there was no grievance properly before the Board.
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with respect to the Board's jurisdiction, union counsel referred
the Board to relevant cases on point.: This issue was apparently
considered first in- Francis (Brandt) 1528/86. In the Francis
case . the union agreed that a grievancl9 claiming an imprOpE!r
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discharge would not be processed 'to arbitiâtion. The 'grievor,
however, sought to arbi:trate and a hearing was sched,uled by, the
Board. The union did ,not appear at this'hearing and the employer
raised a preliminary objection as to arbitrability. The Board in
Francis, decided that the grievance was not ::arbi tr~ble'.
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, This is the first occasion, to our knowledge, ·'where the
Board has had to consider the extent of a griev,or's "
,statutory right _ to grieve where his' òwn union 'has,
during ·the course of the grievance procedure 'settled qr
, withdrawn the grievance. ' ',,' ;, --"
The resolution of this question requires an analysis of
- : ,the language of Section 18 (2)' wherein it is provided
that the "matter may be processed in accordance with
the procedure 'for final determination applicable under
Section 19.
The submission of counsel...is as follows. Section 19
of the Act provides that -a matter may' be 'referred to
- the . Board n In the event the parties are - unable to
" effect a' settlement of any differences between" them" .
The "parties" to which reference is made, are those,
>- referred to in S. 1 (1) (k), - viz. the employee
.f organization, that is the bargaining, agent and the
employer.- r, It is s\1bmitted, firstly that there has'been
a settlement· of the matter, by the parties' and that
consequently, the condition which must be satisfied
before a matter can be referred to the Board, ,that is, _
,that' the ,"parties" have been unable to' effect a
settlement, is not satisfied. 0
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We agree with, the 'submission that, by rea~on of. the
settlement of this matter between thè Union and the
Employer, the matter cannot be brought independeptly to
the Board by the grievor (emphasis not ours).
The Board in Francis went on to discuss 'some of the
, considerations underlying the distinction between the' right to
'grieve and the right to arbitrate, and it: observed that section
30, setting out the union's, duty' 'of fair representation,
protected the interests of individual employees.
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The Board in Francis went on to say:
Section 18 (2) and Section 30 can thus be rea.d as
establishing a code of individual employee rights
within a collective bargainingregi.me. section 18 (2)
has been held by this Board...to prevent the parties to
collective bargaining from negotiating provisions which
would have the effect of preventing employees from
processing certain kinds of grievances through. the
grievance procedure. It does not, however, contemplate
an automatic right to carry a grievance to the
Grievance Settlement Board. The c(:mcluding clause of
Section. 18 (2) provides that wh~re a g·rievance is not
resolved in the grievance procedure it may be processed
,to the Grievance Settlement Board in accordance with ..,
the procedure for final determinatÍl:m a~plicable under
§ection 19. Under Section 1'9 the Board has
jurisdiction where the IIpartiesll;, that is the employer
and the union, have not been, ,able to effect a
settlement of the matter (emphasis not ours).
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Consequently, it is our conclusion that so long as the j'
current IIsettlement" is in effect, we do not have
'juriscUction to hear the grievance. It is therefore, II
our order that the matter be adjourned sine die. In
the event that the grievor were to successfully pursue
his claim and to obtain relief· of a kind which would
permi t us to take jurisdiction 1:he matter may be .
rescheduled for a hearing on its merits.
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In Blake (Shime) 1276/87, the Board was called upon to consider
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whether the individual employee or the \mion controls access to
arbitration witl'! respect to those matters where an employee hêls
the right to grieve under section 18 (2) of the Act. 'That, of
course, was' the issue in the Franc;s case, as well as in the
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instant case where the employees are arguably raising an issue I
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related to classification. The Board in Blake began its
examination by drawing a distinctionbet~...een the right to grieve
and the right to arbitrate:
We note that the grievance procedure and arbitration
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are two separate and distinct processes and while the
gr,ievance procedure may lead to arbitration it :1s
preliminary to that process; the ,right to grieve is not
.sy~onymous with the right to' arbitrate. The union is
responsible for negotiating 'the collective agreement,
and also for its 'administration including ,the
administration of the arbitration process. In
a4ministe~ing the agreement the union has the
responsibility to consider' the needs of ~ll the
, ., employeespf the collective, ~nd make decisions fo~ the
benefit of, the group. Many factors will en'ter into a d
union's decision when it considers the competing
interests' within the bargaining,unit and the union will
undoubtedly make, decisions whe~e the individual
" ,interest is s~ordinated to that of the group, subj ect 0<
only" to the union's duty under section' 30 of the Crown
Em~loyees Collective Bargaining. Act-that it '''not act in
a manner ~hat is arbitrary, ;,discriminatory or in bad
. fa~th". - ,Thus it is importan~ that the'union which' is
" responsible for the collective interests of the members ,
of the'bargaining unit contro~ access to arbitration. ;
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. Section '19 o~ the Crown Employees Collective Bargaining
Act reflects the theoretical' position' that it is the
.union, al1d .not the - individual, that control's access' ·to.. "
the arbitration process. For. convenience, Section
19(1) provides as follows:
.,., . I 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 I
: inte~retation, application, administration I
or alleged contravention of the' agreement, I
including any question as to whether a'matter I
is arbitrable, such matt$r may be referred tol
arþitration to the Grievancè Settlement Board
and the Board after g1 ving full opportuni ty \
" 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 employer covered by
the agreement. '
Thus it is apparent that the arbitration of disputes is
,·to resolve' IIdifferences" 'between the "parties".
section 1 (l) (k) of the Act. defines a party -as the
employee organization and the employer - an individual
employee is not a party (at 1~2).
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The Board in Blake recognized that 'section 18(2) grants employees
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in limited circumstances a statutory righ.t to grieve and process
the grievance through the grievance procedure. As Chairman Shim,e 11
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also noted, "what is not clear from section 18(2) is whether th'e
grievor may also process matters to arbitration?" (at~ 3) . To
answer this question, the Board in Blake thoroughly reviewed th<e
. reasoning in the Francis case and It adopted that reasonißl:;J
without qualification. The Board in BlakE~ wept on to say:
Parenthetically, we note, that gra:mmatically Section '"
18(2) specifically grants the empl,:>yee the right to
grieve in the active sense but that the employee's
right does not continue throughout the Section. Thus,
there is no specific extension of the employee's right
to proceed to arbitration and it is only lithe matterll
that is entitled to proceed in accordance with the , \
arbitration procedure in Section 19. The employee
while given the right to grieve . not specifically
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given the right to proceed to arbi tréltion (at 7).
The Board in lllake accordingly dismissed t:he application.
union counsel also drew the Board's attE!ntion to the flodqins 2~
TUrner (Weatherill) 425/80 decision. ' III Hodgins k Turner thla
issue was raised whether the Board clould hear a grievancl~
relating to the transfer of two employees from managerial
positions to the bargaining unit. This transfer was affected a$
a result of the -agreement between the e:mployer ,and the union.
The Board made a number of observations about its jurisdiction I
relevant to the instant case.
This Board's jurisdiction to, hear and determine
employee grievances is found in The Crown Employees
Collective Bargaining Act, and in the collective
agreement between Management Board of Cabinet and the
Ontario Public Service Employees Union. In that
collective agreement, and in accordance with the Act,
the Union is recognized as the exc::lusive bargaining
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agent for 'Ilall puþlic servants other tl1an persons who
are. not employees" within the meaning ,of the Act~" The
griev9rs are ,public servant~. The, parties to. the
'collective agreement -.. ,.the e~ployer ançl the '. union -
I agree that they, are not .lIemployed_ in a managerial
" capacityll,' and that they ~r~ employe~~ wi thin ' the
meaning of the Act. ' . _ ' _
By'seètion 18 (2) ofth~, ',Àct, 'an êmpl.qyee., claiming
improper classification,. apprai.§l.!ll, pontrary J to
governing principles and standards- òr discipline or,
dismissal without just cause, may process a grievance ,-
in ·accordance with the collective' agreement and,
eventually, proceed to arbitration before this Board.
None of those grounds of, jurisdiction is asserted in ..
this case. .
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Section 18(2) provides that the rights to grievance and
arbi tration arising thereunder are II in addition ·to any
other rights of grievance under a collective
agreement", and section 19 (1) . of the Act provides that
every collective agreement be deemed to contain, a
provision for the arbitration of any differences,
arising between' "the parties" as to the inter.pretation,·
",'" . application .administration or alleged contravention of.
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the collective agreement. The "partiesll are ,the
employ~r and the union: see the.Act, . section 1(1) (k).
The issue raised by these grievances is. not. Clne of,
, classification as such, but is rather one of the status
of the grievors as "employeesll within the meaning, of,
-' '. " The, Crown Employees Collective Bargaining Act. In
particular, the question- woulçi, appear to, be whether or "'
not, with respect to each of the cases before us, the
grievor is employed in a managerial- capacity. It may
well be that in the course of deciding grievances
properly before it this Board would need to make
certain determinations as to whether or not certain
- ,individuals are "employees". An individual's claim .to
be recogniz"ed as an employee or otherwise,' or, to be
recognized 'as employed in a managerial capacity or not,'
is not the sort of claim for which, a right of grievance
is, provided under the Act or under the Collective
Agreement. Determinations of questions of that sort
are of course, frequently made by the ontario Publ ic'
Service Labour Relations Tribunal, but we express no
opinion 'as to whether or not the Tribunal would have-
jurisdiction to entertain individual applications with
respect .to status as an "employee". ' ,
,The question whether or not an indìv~dual is excluded
from membership' in a bargaining unit by reason of' his
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not being an "employee" may be i:hought to be one
arising from the application or adnlinistration of the
collective agreement binding on the bargaining unit.
Such questions are arbitrable, ho,wever, only 'where
there is a difference between "the parties", and where
the parties are unable to effect a settlement of such
difference. In the instant case, there is no
difference between the parties.' They are agreed that
the grievors are not employed in a managerial capacity
and that they are "employees". The]::,e is therefore, no
difference which may properly be brought before this
Board for arbitration (at 3-5).
In Mr. Roland's submission, the very l5~ame issue litigated i.n
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Francis, Blake and nodgins k Turner was again before the Board.
Union counsel submitted that even if, for the sake of argument,
the complaint of the employees in this case were treated as a
classification grievance, the jurisp~de][1ce is clear that the!:ie
employe.es do not have an independent. ri~;ht to arbitrate. They
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have certain rights to grieve, but it' is the union which decide!s
the cases that will proceed to arbitration. The union has nelt
only decided that this case will not pro1ceed to arbitration, i.t -
has gone on record as saying that there is no matter in dispute I
between the partie~ and therefore there i:; no issue that could be
the basis of an arbitration. I
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Mr. Riggs, on behalf of the employez:, endorsed and adopted the
arguments put forward by union counsel, and reiterated the fact
that there was no difference, in this case, between the two I
parties.
On behalf of the employees Mr. MC,CorIllack made a number of
submissions. In brief, Mr. Mccorniack argued that both the
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Collective .Agreement ,and~ the Act' could' be interpreted in'such a
manner so as to support an. independent right to grîeve. . In
addition, counsel, submitted that insofar as previous Boards, such
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as in Blake, had
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those decisions w~re wrong and/or.distingUishable:·"
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Mr. McCormack", began his' , detailed submissions by drawing the
Board's attention . to a 'decision' of ',the' Ontariò' ,Public Service .. "
Labour . Relations'._ Tribunal, Leutz ånd . Ministry of ' Correctional
Services T/18/77.~ ' In this case the Tribunal was called upon to
, " determine whether or not individuals could bring applications' for
, determination, ~ of' employee status to the Tribunal. -,' In the end,
the, Tribunal,' decided_ that they could ,not. .- Mr'. McCormåck'èited
this case, however, for the recognition tþat this decision gives
-; to~the proposition that the parties can ,determine whether or not
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an individual has the ri9b~ to process ~ a ~rievancethrough to
another,' way', the' ~eutz r relying' on j
arbitratipn. Put decis'i:on,
decisions pf the Supreme ,Cou,rt of Canada such as ' McGavin I
Toastmaster (l975) 54 'D.L.R. (3d) stands for the proposition that
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where there is a collective agreement in force the union is the \
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exclusive" repres.entative· of the employees. In the instant case, I
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counsel argued, the union ' had negotiated with the - emplõyer an
individual right to grieve and the Board ·should take cognizance
of this.
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According to counsel, this independent right could be found in
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Article 27 of the Collective Agreement, in particular Article
27.4. This article provides that
if a grievor is not satisfied with 'the decision of the
Deputy Minister or his designee ()r if he does not
receive the decision within the :specified time the
grievor may apply to the Grievance Settlement Board for
a h~aring of the grievance....
Counsel submitted that the t.¡ords "the grievor may apply"
evidenced the intention of the parties to 'provide individuals
with a right to arbitrate. In counsel's view, this argument was r"
buttressed by Article 27.6, which states that lithe employee, at
his option, may be accompanied and rep:resented by an emploYE~e
representative at each stage of the grievance procedure," as well
as by Article 27.6(1) , which speaks 0-£ an employee making an
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application for a hearing before the Griev'ance Settlement Board'. I
Counsel argued that it is a commonplace of the law that where
rights exist there must be a remedy. In his view, the abovE!- ,
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noted provisions of the Collective Agreem.ant gave individuals the
right to arbitrate, and the' Board must therefore tak:e
jurisdiction in this case. In this I req.ard, Counsel noted that
Section 30 of the Act offered little to the employees in the
instant case because the union could not he said to have acted in
a manner that is arbitrary, discriminatol:Y or in bad faith. It
would be very difficult, counsel sUbmitted, for the employees to
maintain a section 30 complaint in thE~ circumstances of the
instant case.
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Counsel also cited the well-known decision of' the Divisional
~ Court in ·OPSEU and 'Berry' and MinLstrv of Community and 'Social
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services . (March 13, 1986), and 'argued that this decision stood
for the proposition that if a right to grieve under seètion" '18 (2)
of the Act cannot be restricted by the ColIective Agreement, then
. there should also be a right to proceed to arbitration before the
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Board .- Moreover, counsel . Å¡ubmi tted that' the decisfon of' the
Divisional Court in Ontario (Attornev General) v~ OPSEU et al, 14 ' ,
9~A.C. 23·3 stood for the proposition that the Bo'ard has the power
to òrder' ,reclassification outsid,e of the bargaining unit and
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should take jurisdiction'"·to -do so in, the instant case. .
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'with'respect to the Blake decision, counsel" submitted that it was
wrong because' it failed to give the employees any remedy for
. their right. Moréclver, Blake was premised on an incorrect
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interpretation~of Section 18(2) òf the Act. :', Counsel' pointed 'out
that this section includes the phrase flirÌ' addition to any other I
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rights , of grievance", and he argued, that the rights being
referred' 'to noted - "in ,Article of the,
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Collective Agreement. Moreover, counsel argued that in providing
a statutory' right of grievance in certain cases such as
cla~sification disputès,' the Legislaturen did" not -intend to limit
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that right to ,the grievånce procedure by only providing the union
and the employer access .to arbit·ration. .'In addition, counsel I
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submitted that both Blake and Francis ,could be distinguished from I
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the instant case becáuse in Blake and in' Francis the employees
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were not effectively precluded from filing a section :10 ,
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application. The employees in the insta:ot case were effecti ve:~y I
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precluded because the union could not¡be said to have acted in an
arbitrary manner in not bringing a case 'to arbitration where the
result of doing so may be to weaken the bargaining unit.
with respect to jurisdiction, counsel fClr t~e employees cited a
decision of the ontario Court of Appeal,r Re Canadian Industries '"
Ltd. , [1972] 3 o. R. 63, where the Court was called to determine
whether a private board of arbitration had the jurisdiction 1:0
consider employee status. The Court concluded, in the process of
construing provisions similar to those found in the Act, that the
Ontario Labour Relations . Board was not granted exclusive
jurisdiction with respect to this matter. Counsel argued that
likewise, the Tribunal did not have exclusive juriSdiction with
relation to the matter of status and that that issue could be
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considered by the Board.
The final case referred to by. counsel :for the employees is I~e
Downing and Gravdon et aI, 21 O.R. (2d) 292. This decision ()f
the Ontario court of Appeal finds thél t Employment Standards 1
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Officers have certain adjudicatory powers. This finding
establishes, in counsel's view, a ~la facie case . that the
employees in question should' be excluded as managerial employeE~s
from the bargaining unit.
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Finally,' counsel ~ r, . +. . .. ~ ¡
fo'r the employees 'submitted that :the Board was
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obligated to act 'fairly and to-interpret the Collective Agreement
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and the Act 'in such a way so as' to a remedy for the
employees in this case~ ~ ,
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In our view we have no jurisdiction~o hear this matter as it is,
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not properly before the Board .-'; While it is true that' employees ..
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have certain statutory rights with respect to grievances; the Act
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is':' clear that the arbitratión ,process 'is one for the
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determination of disputes between the parties. . ' There is' no
difference or matter in dispute in the ins~an~ case between the
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parties. In this regard, we adopt the reaso~ing and the rulings
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in both the Francis and Blake decisions. ,
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We are also of the vi~w that the matter of ,employee status is a
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matter to be determined by' 'the ,Tribunal, not.by this Board. In
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Ontario, tAttòr~ey, General) v. OPSEU et al; 14 O.A.C. 233, cited
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by counsel for the employees, Mr. Justice Saunders found that:
In the ontario PUblic Service, there is a distinction
between 'bargaining unit employeês' and non-bargaining
unit employees. The distinction is sometimes·referred
to as a question of status. An unresolved dispute with
- . respect to status', ofa partièular employee is
determined by the Labour Relations Tribunal established
under the Act. status 'is separate and apart from
classification. The board has jurisdiction to consider
'job classification but not' status (at 234) 0
Quite clearly, this case is not one of classification but is one
of'status, and that issue must ""bedetermin'ed by the TribunaL In
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his closing submission, counsel for the employees requested the
Board to exercise its jurisdiction under section 40 and refer the
matter of status to the Tribunal. section 40 reads as follows:
(l)If, in the course of bargaining for a collective
agreement or during the period ,of operation of a
collective agreement, a question ari.ses as to whether a
person is an employee, the question may be referr'ed to
the Tribunal and its decision thoreon is final and
binding for all purposes.
(2)If, in the course of bargainihc;J for a collective
agreement or during proceedings before a board of ,.. ,
arbitration, a question arises as t:o whether a matter
comes within the scope of collective bargaining under
this Act, either party or the board of arbitration may
refer the question to the Tribuna:L and its decision
thereon is final and binding for'all purposes.
In our view, section 40 (1) doe.s not gi:ve us the authority t:o
refer this matter to the Tribunal. In Leutz, the Tribunal was
called upon to interpret section 38, now section 40, of the Act,
and it reached the following conclusion ~oich we adopt:
. . . and thus we interpret the intent of the section, as
did the Ontario Labour Relations Board in similar
circumstances, as granting an opportunity to the
employer or the union to refer such questions to the
Tribunal. It is an issue betw«~en them and the
individuals, while they certainly nlay be affected by
the outcome, are not directly involved. We adopt the
same view with respect 'to similar questions that may
arise during the operation of a collective agreement
(at 8).
With respect to subsection (2) , this provision refers to the
question of status arising during 'the course of collecti via
bargaining or during proceedings before él board of arbitration.
I The "board of arbitration" referred to. in this provision is to bE~'
I distinguished from the Grievance settlement Board. Accordingly j'
a'" i' '. I
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17
we have no jurisdiction to make such a ~eferen¿e~
.,
Counsel for the '-employees argued that if, - we did not assume
jurisdiction - in ,this casè, . the emplóyees . would not receive a
,remedy for their right. With, respect,' we disagree. First of
'. all, we are.not persuaded by any of the argumènts with respect to
, . "
..
,
,
18 1
are distinguishable from the matter DE!fora the Board in the ~.
1
instant case. The decisions in Berrv, and Ontario ( A ttornEÅ’. i
I
General) v. OPSEU et aI, and Re Canadian Industries Ltd.~ can be
readily distinguished from the instant case. In the first t\liO
cases, the Board was called upon to a,rbitrate classification
'grievances brought to it by the parties. In the third case, the
arbitration board 'was called upon to consider an employee's
status, in the course of determining a grievance brought to it by "
the parties. All three cases é;lre, ~ccordinglY, very' different
from the instant one( which is directed solely at determining
employee status, and which is nc)t being brought by the parties.
There is no difference between the parties. Therefore, as the
. - Board said in Hodqins i Turner, there ·can be no arbitration.
.
Under collective bargaining individual i.nterests, with limited
exceptions not pertinent to the instant case, are subordinated to
collective ones. A statutory scheµle 'has been created to ensur4; f
that these individual interests are not completely subsumed by
,
I
the collectivity by prohibiting union conduct that is arbitrary,
discriminatory or in bad faith. If th~ employees in this caSE~
believe that they have not been tre¡:ited fairly by their
bargaining agent they have a statutory right, of remedy. It ie:·
.. ,
embodied in section 30 of the Act. Counsel for the employee!:; I
stated that such a complaint would be hard to maintain. We de> I
!
not offer any opinion on that matter ~ 'rhe remedy exists, the
employees apparently believe that 'they are acting as
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19
adjudicators, and they believe that they have a Court of Appeal
decision on point. There. is nothing stopping them from filing a
section 30 'complaint, just as there is nothing stopping them fr~m
, /
filing classification grievances. That is not what they have
,
done in this case. Rather they have asked the Board to determine , I
their status, which is 'something the 19n9standing jurisprudence._
of this Board makes clear that we do not have the authority to
do. We are in full agreement with the line of cases on point. ~
In the result, this matter is dismissed.
I
Dated at Ottawa this 22nd day of January 1Q9,..
LY(1 -
illiam Kaplan
Vice-Chairper~on I
I
,~QJ~
M. Vorster
Member
(~ '
-4Cr fud-6 4
A. tap! on
Member