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HomeMy WebLinkAboutBianco Group 11-05-30In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: CANADIAN BLOOD SUPPLY -and- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 5103 OPSEU FILE No. 2010-5103-0005 Group Grievance of Bianco and Hunter Arbitrator: Randi H. Abramsky Appearances For the Union: Carolyn Janusz Counsel For the Employer: Sarah Eves Counsel Hearing: April 19, 2011 with additional written submissions on May 4, 2011 and May 18, 2011 Gt`1'Ll 9 C At issue is whether the Employer, Canadian Blood Supply, violated the collective agreement when it selected two employees, with less seniority than the grievors, for an Instructional Staff Training Program (ISTP), following which they would serve as trainers when needed. The grievors, Ms. Angela Bianco and Ms. Jean Hunter, assert that the Employer's action violated Article 4, Management Rights; Article 16.02, Promotions; and 16.03, Temporary Transfers, of the collective agreement. The Employer asserts that there has been no violation of the collective agreement, and raised two preliminary motions to dismiss the grievance. This Award addresses the Employer's motions to dismiss. Facts The parties proceeded for the purposes of these motions on the basis of agreed facts, as outlined by counsel in opening statements and the relevant documents. On February 10, 2010- k. the Employer issued a memo to Clinic Services Staff, advising that Clinical Services would be taking part in an ISTP training program in April, and asked staff interested in participating to submit their names and submit a letter of interest. It further states: As the number of available slots to attend the session is limited the selection of staff will be based on the following criteria: • Strong clinical skills in the collection of blood and blood products. W • Excellent organizational skills • Demonstrated commitment to continuing education • Excellent verbal and written skills • Good attendance record Both grievors, who are full-time phlebotomists, timely submitted a letter of interest and were interviewed for the ISTP program, along with other staff members who applied. At the conclusion of the process, the Employer selected two employees, both of whom were junior to the grievors. Both successful applicants were given notice of the hearing in this matter, but chose not to attend. According to the ISTP On the Job Trainer Self Study guide, On the Job (OTJ) Trainers provide one-to-one training or coaching to staff on procedures or processes in their business area. OTJ Trainers are utilized, as needed, for new hires and coaching staff. In 2010, one of the successful applicants worked for 7 hours as a trainer, and the other worked for 29 hours. In 2011, to date, one worked for 4 hours as a trainer, and the other worked 25.5 hours. When performing this work, each was paid a 90 cent/hour premium for their time, as required by Article 31.01(a) of the collective agreement. That provision reads: ARTICLE 31— POSITION PREMIUMS 31.01(a) Effective date of ratification, a premium of ninety cents ($0.90) per hour will be paid to employees assigned as On -the Job Trainers (excluding Preceptors). All outstanding grievances related to training premiums shall be withdrawn. Once the ISTP training is successfully completed, the employees are utilized as OTJ trainers, when needed, but retain their current classification. 3 On March 9, 2010, the instant grievance was filed alleging that the Employer's selection for the ISTP training violated Articles 4, 16.02 and 16.03. Those provisions read as follows: ARTICLE 4 — MANAGEMENT RIGHTS 4.01 The parties hereto agree that the operations of the Employer entail working methods, hours and processes which are peculiar to it. 4.02 The parties further acknowledge that it is the exclusive function of the Employer, subject to the provisions of this Agreement, to manage and control its operations, and without limiting the generality of the foregoing, to: a) maintain order, discipline, and efficiency; b) hire, transfer, promote, classify, demote, layoff, assign work, and suspend or discharge employees for just cause, and introduce new or improved methods or facilities. c) manage, control, continue, discontinue in whole or in part the Employer's operations, and without restricting the generality of the foregoing, to determine the number of employees, schedule of activities, kinds and locations of machines and processes to be used and the scheduling and conducting of clinics and deliveries and the determination of their locations, in accordance with the function of the Employer. 4.03 The Union recognizes that all employees who are members of the clinic teams and all other members of the bargaining unit must work in co-operation with one another. 4.04 These management rights shall not be exercises in a manner inconsistent with the provisions of the Agreement. ARTICLE 16 — VACANCIES, PROMOTIONS AND TRANSFERS 16.01 Vacancies a) When the Employer determines that a vacancy is to be filled, or a new position is created within the bargaining unit, it shall be posted on the Union bulletin board for a period of seven (7) working days. When a full-time position becomes vacant and where operationally feasible, the Employer shall post the vacancy as a full-time position. 0 b) Notices of vacancies or new positions shall include. for informational purposes: i) the location of vacancy; ii) classification; iii) qualifications 16.02 Promotions For the purpose of this Agreement, a promotion shall mean a change from one position to another position, within the bargaining unit, with a higher pay scale. a) In cases of promotion the following factors shall be considered: i) skill, ability; ii) seniority. It is understood that where the qualifications referred to in factor i) above are relatively equal, factor ii) will govern. b) The promoted employee will be given a trial period in which to demonstrate her ability to perform the new task to the satisfaction of the Employer. For full-time and temporary full-time employees the trial period will be three (3) months. For part-time and temporary part-time employees the trial period \� i f 1 be four hundred eight seven and a half (487.5) regular hours.... c) When an employee is promoted from one position to another, the salary of such promoted employee shall be advanced to that step in the scale of her new position which is next higher than her current rate, or, to that step which is next higher again if such salary increase is less that the employee's next normal increment. d) ... 16.03 'Temporary Transfers a) Any employee who, for the convenience of the Employer is temporarily transferred to another job, within the bargaining unit, for which the rate of pay is different from that in effect for such employee's regular job, shall be paid while so employed as follows: i) if the rate of pay for the job to which she is transferred is less than her regular pay, she shall continue to receive her own higher rate of pay. ii) if the rate of pay for the job to which she is temporarily transferred to is higher, at the same step in the new salary scale, than the employee's regular pay, she shall receive the higher rate of pay or the job to which she is temporarily transferred.... 5 e) Whenever an employee is assigned by the Employer the additional responsibility to direct or oversee work of other employees within their classification, she shall be paid a premium of $0.90 cents per hour or portion thereof for such assignment in addition to her regular hourly salary. Also relevant are Article 30 and Article 31, and Schedule A. They provizle. in relevant part, as follows: ARTICLE 30 — POSITION DESCRIPTION 30.01 All employees are entitled to have in their possession, a copy of their current Position Description. It is understood that position descriptions as appended to this contract are current as of the date of signing of this agreement. B-1 Clerk B-2 Medical Secretary (Bilingual) B-3 Stores Accountant B-4 Utility Person I B -4a Utility Person II B-5 Clinic Assistant B -5a Phlebotomist B-6 Laboratory Assistant B-7 Driver B-8 Date Entry Clerk B-9 Donor Services Representative B-10 Administrative Assistant B-11 Technical Support Analyst 30.02 The Position Descriptions shall accurately reflect only those duties which are applicable to all members of that position. 30.03 Any employee who is not required by he Centre's administration to perform all of the standard duties of her Position Description shall receive no reduction in her weekly rate of pay. 30.04 An employee cannot be required to perform duties which are not contained in his position description. 30.05 Supervisors will not customarily perform the duties of a bargaining unit employee. 30.06 a) If the Employer creates a new Position Description it shall establish the job description and wage rate and give written notice of the Union of the new wage rate. In ARTICLE 31— POSITION PREMIUMS 31.01 a) Effective date of ratification, a premium of ninety cents ($0.90) per hour will be paid to employees assigned as On -the -Job Trainers (excluding Preceptors). All outstanding grievances related to training premiums shall be withdrawn. b) Effective date of ratification, a Clinic Assistant w ho is assigned to work the "Prep" Table shall receive a premium of $6.00 for each shift so assigned. It is understood that employees who are assigned to relieve for rest periods or meal breaks, are not eligible to receive such premium. c) A Driver who is assigned for a full shift to drive the Bloodmobile shall be paid a premium of six dollars ($6) for that shift inclusive of registration duties. 31.02 Any Clerk who performs Secretarial Duties for any Medical Officer or PhD shall receive a premium of $4.00 per day for each day that she is so assigned. 31.03 The parties understand and agree that the position premiums in Article 31 shall be paid when any employee is required to perform such function. On April 15, 2010, a grievance meeting was held, (iL:nng which the Union alleged that the Employer violated the collective agreement by not selecting the candidate for ISTP training based upon Article 16.02(a)(i) and (ii). On April 21, 2010, Ms. Lisa Bruce, Senior Human Resources Advisor, denied the grievance in writing. In pertinent part, the letter states: [R]eceiving ISTP Training is not considered a promotion, and .. there is no classification position within the Collective Agreement called ISTP Trainer. A phlebotomist who receives the ISTP Training is still considered to hold the classification of Phlebotomist, so again, this is not considered a promotion within the boundaries of the Collective Agreement.... In 2000, a similar grievance arose between the parties which resulted in an arbitration award issued by Arbitrator Jane Devlin on January 7, 2002. In that case, the grievor, Ms. Lorna Widdis, a Clinical Assistant II, alleged that the Employer violated the collective agreement by selecting a less senior employee, Ms. Barb Suave, for the 7 "ISTP Trainer position." The Union claimed, among other arguments, that the ISTP Trainer was a "position" which was improperly awarded to an employee with less seniority, citing Article 16.02(a) of the collective agreement, which is identical to the language in the current collective agreement. Arbitrator Devlin began her analysis of this issue with the parties' definition of "promotion" as set out in Article 16.02, which states that a promotion involves "a change from one position to another position, Nk t iM the bargaining unit, with a higher pay scale." (Decision at p. 14) She noted that ISTP Trainer 1's not one of the positions listed in Article 31 of the Agreement — a provision similar to now Article 30, which lists the positions in the bargaining unit and appends the current position description for each position to the collective agreement. She further noted that while the parties' did not include ISTP Trainer as a position in then Article 31, they did enter into a Memorandum of Understanding in December 1999 in which they agreed that employees involved in training other employees in new processes, procedures or technology would receive a premium equivalent to 6% above their base rate of pay. She concluded: "In my view, this memorandum supports the conclusion that rather than constitute a `position', training duties involve a work assignment for which employees receive premium pay." (Decision at p. 16). She continued: In this regard, it would appear that employees who are assigned to perform training duties retain their existing positions and the premium to which they are entitled is expressed as a percentage of their base rate of pay. Moreover, a premium payment of the kind provided for in the Memorandum of Understanding can be distinguished from a "higher pay scale". which is one of the features of a promotion as that term is defined in Article 16.02 of the collective agreement. In my view, a `higher pay scale" refers to a wage rate or, more precisely, a range of wage rates similar to those set out in Schedule "A" for the positions for which there are job descriptions 8 appended to the agreement. For ISTP training duties, there is no wage rate or range of rates but rather a premium, which is expressed as a percentage of an employee's base rate of pay. On this basis, Arbitrator Devlin concluded at p. 18, that "ISTP training duties do not constitute a position but rather a work assignment for which employees receive premium pay in accordance with the Memorandum of Understanding executed by the parties in December, 1999." She, therefore, could not conclude that Ms. Suave had been promoted "as there was not a change in her position of Clinic Assistant II to another position involving a higher pay scale." She therefore dismissed the grievance. In March 2001, the successful appiicanI from the grievance involved in the Devlin Award, Ms. Barb Suave, as well as another employee, filed grievances alleging that the Employer was not tli operly paying the training premium, citing Article 16.03(d). That provision, under the Temporary Transfer heading, states: 16.03(d) Whenever an employee is assigned by the Employer the additional responsibility to direct or oversee work of other employees within their classification, she shall be paid a premium of $0.90 cents per hour or portion thereof for such assignment in addition to her regular hourly salary. The Employer took the position that this provision related to "lead hand" type duties, not training, and the matter was referred to arbitration. These grievances, however, were resolved during collective bargaining negotiations for the 2001-2005 collective agreement, when the parties' added a new provision, Article 32.01, entitled "Position Premiums'-, to the collective agreement. That provision added the following language to the collective agreement: 0 ARTICLE 32 — POSITION PREMIUMS 32.01 (a) Effective date of ratification, a premium of ninety cents ($0.90) per hour will be paid to employees assigned as On -the -Job Trainers (excluding Preceptors). All outstanding grievances related to training premiums shall be withdrawn (b) Effective date of ratification, a Clinic Assistant who is assigned to work the "Prep" Table shall receive a premium of $6.00 for each shift so assigned. It is understood that employees who are assigned to relieve for rest periods or meal breaks, are not eligible o receive such premium. (c) Effective date of ratification, a Driver who is assigned for a full shift to drive the Bloodmobile shall be paid a premium of $4.00 for that shift. Based on the inclusion of these provisions, the Union withdrew the Suave and other grievance on July 29, 2002. This provision did not exist at the time of the Devlin Award. Reasons for Decision A. Is the Devlin Award dispositive of the instant grievance? The Employer asserts that the Devlin Award is determinative of this issues raised in the instant grievance. It contends that Arbitrator Devlin held that there was no "ISTP Trainer" position and thus no "promotion" under Article 16.02 of the parties' collective agreement. Instead, what was involved was an assignment of training work which the parties' had agreed was to be paid a premium for such work. It submits that this conclusion and interpretation of Article 16.02 and the collective agreement is dispositive of the grievance in this case. It submits that the Union is trying to get "another kick at the can" through this arbitration. 10 The Union contends that the facts were different and the language of the collective agreement at the time was different. Specifically, it asserts that Article 31.01(a) [formerly Article 32] did not exist then and was not considered by Ms. Devlin. It also asserts that the training there included classroom training, which does not occur at present. The Union argues that the outcome of this matter should be different, based on those differences, particularly the inclusion of Article 31.01(a). The Employer did not assert that the Devlin Award was res judicata, and, given the fact that the collective agreement was amended to include new language that had not been considered by Ms. Devlin, I could not conclude that the "issue" was the same. Nevertheless, I find the analysis and conclusions reached by Arbitrator Devlin to be persuasive and applicable to the facts in this case. The Union's main contention is that Article 31.01(a) created the position of On -the - Job Trainer, at a higher rate of pay, and therefore, selection of an individual to become an On -the -Job Trainer is a "promotion" under Article 16.02 — a "change from one position to another position, within the bargaining unit, with a higher pay scale." The Union points to the heading of the provision "Position Premiums" (emphasis added), and asserts that this language creates the posi! oii of On -the -Job Trainer, which did not previously exist in the collective agreement when considered by Arbitrator Devlin, and warrants a different conclusion. 11 Having carefully considered the collective agreement as a whole — particularly Article 16 in its entirety, Article 30, Article 31, Schedule "A"' and the position descriptions included in the collective agreement — I find that I am not persuaded that Article 31.01(a) created a position of On -the -Job Trainer at a higher wage scale. Rather, it provides a premium payment of $0.90 cents per hour when an employee is engaged in On -the -Job training activities. The provisions of the collective agreement demonstrate that when the parties` mean to include a position in the bargaining unit, they do so explicitly and through a spy c 11 f ed procedure. Article 16.01(a) states that "[w]hen the Employer determines that ... a new position is created within the bargaining unit, it shall be posted..." There is no evidence or suggestion that the position of On -the -Job Trainer was ever posted, nor has the Union grieved that the Employer improperly failed to do so. Article 30 lists all of the positions in the bargaining unit, and states that "[a]lI employees are entitled to have in their possession a copy of their current Position Description" and appends a copy to the collective agreement of all of the positions. On -the -Job Trainer is not listed, nor is there a position description for it included in the collective agreement. Schedule "A" lists the wage rates for each position. -1 Here is no listing for On -the -Job Trainer. No grievances have been filed asserting that the Employer violated these provisions in regard to the On - the -Job Trainer position. It is true, as the Union contends, that Article 31 employs the heading "Position Premiums" and states that "employees assigned as On -the -Job Trainers" receive a 12 premium of 90 cents per hour. On its face, however, this language does not create a position of On -the -Job Trainer. It obligates the Employer to pay a premium when an employee is assigned on-the-job training functions. The use of the word "premiums" in the heading and the word "assigned" in subsection (a) — as well as in subsections (b) and (c) — cannot be ignored and must be given meaning - specifically, that a premium is to be paid when employees are "assigned" to various tasks. This interpretation, moreover, is explicitly provided for in Article 31.03 which states: "The parties understand and agree that the position premiums in Article 31 shall be paid when any employee is required to perform such function." Therefore, when an employee is "assigned as On -the -Job Trainer", she is paid a premium of $0.90 cents per hour "to perform such function." A similar conclusion was reached in Re St. John's Transportation Commission and The Amalgamated Transit Union, Local 146 [unreported decision of Arbitrator Alcock, Feb. 7, 1993)]. In that case, there was a provision entitled "Driver -Trainers" which stated that "driver -trainers will be responsible for observing and correcting any inadequate operation of a bus by an operator....' Another provision, entitled "Premium for Training", stated that "operators engaged in training of new operators shall be entitled to a premium of forty-five cents per hour...." To muddy the water even further, the Employer posted for a driver -trainer and when the individual was selected posted a notice that "Paul Prowse has been selected for the position of Driver Trainer/Safety Instructor..." 13 The arbitrator concluded that the "Driver -Trainer" provision had to be read in conjunction with the "Premium for Training" provision, which "made it perfectly clear there is no separate classification of Driver -Trainer." (Decision at p. 12). Rather, "the person who does the training is entitled to premium pay only in respect of training duties performed." He concluded that the reference to Driver -Trainers in the collective agreement was not meant to create a classific oioji. but "is merely a convenient term used as a substitute for the expression "operators engaged in training of new operators." (Decision at p. 12). He further concluded that "the ill conceived wording on the posting and the notice making reference to a `position' does not create a position where one did not actually exist in the first place." (Decision at p. 13). The same conclusion applies here. Article 31.01(a) must be read in conjunction with the collective agreement as a whole. Its use of the word "Position" in the heading docs not create a position of On -the -Job Trainer. The provision clearly provides a premium for training work. It does not, by its terms or in context, create a new position. Given the collective agreement provisions, considered as a whole, had the parties intended to create a position of On -the -Job Trainer, they would have done so far more clearly, and would have had it listed in Article 30 and included a position description and wage rate in Schedule "A" — or the Union would have filed a grievance over the Employer's failure to do so long before now. The language of Article 31.01(a) was first 14 introduced in the 2001-2005 collective agreement. It was continued without change in the most recent collective agreement, 2008-2011, and presumably in the collective agreement before that as well. Further, even if I could conclude that On -the -Job Trainer was a "position" (which, for all the reasons set forth above, I do not), I could not conclude that the 90 cent premium is "a higher pay scale" within the meaning of Article 16.02. The 90 cents is a premium — an additional payment — paid in addition to an employee's regular wage rate when assigned the specified extra tasks. As Arbitrator Devlin concluded at p.17, "a premium payment ... can be distinguished from a `higher pay scale', which is one of the features of a promotion as that term is defined in Article 16.02 of the collective agreement." A "higher pay scale", she concluded, referred to "a wage rate or, more precisely, a range of wage rates similar to those set out in Schedule "A" for the positions for which there are job descriptions appended to the agreement." This interpretation is supported by the language of Article 16.02(c) which states that when an employee is promoted from one position to another, the salary of the promoted employee "shall be advanced to that step in the scale of her new position. which is next higher than her current rate..." This language demonstrates that the "higher pay scale" referred to in the definition of a promotion under Article 16 refers to a higher range of wage rates as set out in Schedule "A" of the collective agreement -- not a premium of $0.90 cents for those times that an employee is assigned to perform an additional function such as on-the-job training. 15 While Arbitrator Devlin was commenting on the premium agreed to by the pct -f it c s in their December 1999 Memorandum of Understanding, the same conclusion applies here in respect to Article 31.01(a). It is a premium paid to an employee assigned to On -the -Job training duties. There is no wage rate or range of rates for On -the -Job training functions. The premium set forth in Article 31.01(a) does not create a "higher pay scale." Similarly, Arbitrator Alcock determined in St. John's Transportation Commission, supra at p. 12, that entitlement to premium pay for an extra task "is quite different from the standard rate of pay set for a classification whereby an employee would be paid the established rate no matter what combination (1l' duties he peiTorl"cd in his classification." Consequently, for all of these reasons, I conclude that the Devlin Award is, despite the addition of Article 31.01(a), determinative of the issues in this case. Now, as then, there is no "position" of On -the -Job Trainer in the collective agreement, and the persons who have been assigned that role have not been "promoted" within the meaning of Article 16.02. As Arbitrator Devlin concluded at p. 18: ISTP training duties do not constitute a position but rather a work assignment for which employees receive premium pay... In the result, for the reasons set out, I cannot conclude Ms. Suave was promoted as there was not a change in her position of Clinic Assistant II to another position involving a higher pay scale. The Union also argued that the Employer's selection violated Article 16.03, Temporary Transfers. Upon review, I can find no violation. The assignment of On -the - IV Job Training functions is not a temporary transfer to "another job." It is the same job — with the assignment of an additional function for which the empim ees receive a premium under Article 31.01. B. Did the Employer violate Article 4 — Management Rights - of the collective agreement? The Union contends, in the alternative, that even if there was no promotion involved, the memorandum sent to clinic staff concerning the ISTP training 1?rogram, which outlined specific criteria that was to be considered for the selection, was not followed, and that the Employer's selection, therefore, was arbitrary, unfair and unreasonable. It contends that the Employer failed to exercise its management rights in a reasonable or non -arbitrary manner in selecting the ISTP trainers. and thereby violated Article 4 of the collective agreement. The Union first contends that there is an implied duty on the Employer to treat employees in a fair and reasonable manner, which allows the Union to challenge an employer's exercise of its unfettered discretionary powers under the collective agreement. In support, it cites to Re UNITE HERE Ontario Council, Local 2347 and Canadian Niagara Hotels Inc. (Strecker Grievance) [2007] O.L.A.A. No. 581 (Howe) Re Family and Children's Services of Waterloo Region and OPS'EU, Local 258 (Reddy Grievance) [2006] O.L.A.A. No. 295 (Herman); Re Sobeys Milton Retain Support Centre and UFCW Canada, Local 175 (Brown Grievance) [2008] O.L.A. No. 329 (Albertyn), Re Brampton Hydro Electric Commission and National Automobile, Aerospace and 17 Agricultural Implement Workers Union of Canada (CAW -Canada), Local 1285 (1993) 15 O.R. (3d) 733 (Ont. Div. Ct.). It further submits that if the Devlin Award is binding and the assignment of ISTP training is not a promotion but a work assignment, the case law establishes that the assignment must be made in a fair and reasonable manner, citing Re Cancoil Thermal Corp. and UFCW,, Local 175 (Smith Grievance) [2009] O.L.A.A. No. 556 (Starkman) and Re NGF Canada Ltd. and Workers United Ontario Council (2010), 194 L.A.C. (4th) 264 (Surdykowski). It submits that the grievance should be heard on the merits on this basis. The Union also contends that employers are required to apply published rules and policies in a fair, reasonable and non -arbitrary manner. It submits that the heart of this grievance is the Employer's unreasonable, unfair and arbitrary application of its published policy regarding the selection criteria for the ISTP trainer assignment, and that this claim should be heard on the merits. In support it cites to Re Trenton Memorial Hospital and ONA, Local 183 (1.984), 15 L.A.C. (3d) 440 (Emrich): Re Tupperware Canada 19 and UFCW, Local 832 (Union Policy Grievance) (1991), 19 L.A.C. (0) 151 (Steel). The Union submits that this obligation includes policies that are not part of the collective agreement, such as mandatory retirement policies, citing Re Independent Electricity System Operator and Society of Energy Professionals (Islam Grievance) [2006] O.L.A.A. No. 60 (Herman); Re Metropolitan Separate School Board and OPSEU (Cobban Grievance) (1995), 50 L.A.C. (0) 378 (P. Picher). 18 Alternatively, the Union submits that if I conclude to follow the arbitral jurisprudence that requires a "hook" into the collective agreement for a board of arbitration to review the Employer's exercise of a right reserved to management, as set out in Re Blue Line Taxi Co. and R. W.D.S. U, Ontario Taxi Union Local 1688 (1992), 28 L.A.C. (0) 280 (Bendel), the requisite "hook" is found in Article 31 of the collective agreement which establishes a premium of $0.90 per hour for performing OTJ training duties. It contends that this express right to a premium if selected as an ISTP trainer is undermined by the Employer's improper selection. It cites to Re Regional Municipality of Waterloo and LUPE, Local 1883 (2003), 116 L.A.C. (4th) 381 (Stewart) and Re Union of Needletrades, Industrial and Textile .Employees, Local 13 05 and NGF Canada Ltd. (1997), 66 L.A.C. (0) 408 (Ray) in support of its position. The Employer asserts that the grievance is not arbitrable on any of these bases. The Employer asserts that the Union's claim that it failed to follow the February 10, 2010 memo, a document outside of the collective agreement, is not arbitrable, nor is there an independent violation of a right contained in the collective agreement or a statute. It distinguishes all of the cases cited by the Union. It relies on the following authorities: Re York Region Roman Catholic Separate School Board and Ontario English Catholic Teachers' Association (1995), 52 L.A.C.(41h) 285 (Kaplan); Re Municipality of Metropolitan Toronto and LUPE, Local 43 (1991), 19 L.A.C. (4th) 287 (Davis); Re Ministry of Community Safety and Correctional Services and OPSEU (May) (2007), 89 19 C.L.A.S. 170 (Abramsky); Re Regional Municipality of Waterloo and CUPS, Local 1883 (2003), 116 L.A.C. (4th) 381 (Stewart). I have carefully reviewed the cases cited by both parties and their thorough and thoughtful submissions. Although there is some divergence in the arbitral jurisprudence, in my view, Arbitrator Bendel correctly determined that an employer has an implied obligation to administer the collective agreement in a fair or reasonable manner in the following situations, in Re Blue Line Taxi Co. and T. W.D.S. U, Ontario Taxi Union, Local 1688 (1992), 28 L.A.C. (4th) 280, at par. 24-25: First, if a provision of the collective agreement expressly confers a discretion on the employer, an arbitrator could conclude that it was intended that the discretion be exercised fairly or reasonable. Secondly, it has been held that an employer is implicitly precluded from acting unreasonably (in areas not expressly regulated by the collective agreement) if that might lead to specific provisions of the agreement being negated or undermined. [citations omitted]. As I understand the law, therefore, the employer will only be answerable for the exercise of a management discretion if a link to the collective agreement can be established. Such a link might be found to exist if (a) the collective agreement expressly confers or recognizes a management discretion, or (b) the exercise of the management discretion might lead to specific provisions of the agreement being negated or undermined. This analysis comports with the decision of the Ontario Court of Appeal in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1981), 124 D.L.R. (3d) 684, at p. 687 [leave to appeal to the S.C.C. refused] quoted in Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43, supra at p. 292: If however, the majority of the Divisional Court in the Marsh case were purporting to lay down a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provisions of the N1 agreement must stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with respect we do not agree.... In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement. Consequently, to the extent that the Union asserts that there is a general implied duty on an employer to treat employees in a fair and reasonable manner, irrespective of any link to the collective agreement, I cannot agree. Arbitrators do not have general jurisdiction to dispense labour relations justice or fairness — there must be a connection to rights contained in the collective agreement, or an employment-related statute. Both the grievance procedure and the Ontario Labour Relations Act give arbitrators jurisdiction to decide "any difference that arises between the parties related to the interpretation, application or administration of this Agreement, or where an allegation is made that this Agreement has been violated." For a grievance to be arbitrable, there must be some connection to the employees' rights under a collective agreement, or an employment- related statute. It is undisputed that the collective agreement between the parties does not address ISTP trainer selection. Nor does the management rights clause in Article 4 require, as some clauses do, that management exercise its rights and discretion in a fair, reasonable or non -arbitrary manner. To establish the requisite link to the collective agreement, the Union points to the premium payment for the performance of ISTP training duties found in Article 31. It submits that the Employer's arbitrary selection of ISTP trainers negated or undermined the benefit of Article 31 to the grievors, citing Re Regional Municipality 21 of Waterloo and LUPE, Local 1883, supra and Re Union of Needletrades, Industrial and Textile Employees, Local 1305 and NOF Canada Ltd., supra. The Union also relies on the purpose clause in the collective agreement, wherein the parties' agreed to "maintaining satisfactory working conditions, hours of work and wages for all employees." The Employer takes the position that the existence of a premium payment does not establish the necessary link to the collective agreement to confer jurisdiction on an arbitrator to review its selection of employees for ISTP training. In support it cites to Re York Regional Roman Catholic Separate School Board and O. E. C. T.A. (Phillips), supra. In Re York Regional Roman Catholic Separate School Board, supra, the grievor alleged that she was improperly denied a department head position. The School Board had posted for the position and had an internal policy on promotions which stated that "[p]romotions ra i l l be based on demonstrated ability, skill, attitude as well as willingness to promote the Catholic education system." The 1 inion asserted, among other things, that the School Board unreasonably applied this policy. The only reference to the department head position in the collective agreement was a provision detailing the compensation to be paid for it. At the hearing, the employer asserted that the grievance was not arbitrable since the promotion policy was not part of the collective agreement and that there was no other basis for the arbitrator to assert jurisdiction. 22 Arbitrator Kaplan determined that he could not base jurisdiction on the "single indirect reference to the position at issue in this case in the salary grid..." (Decision at p. 293.) Nor did the promotion policy, which was outside of the collective agreement, confer jurisdiction. In so ruling, he relied on an earlier decision between the parties by Arbitrator Keller, Re O.E.C. T.A. and York Region Roman Catholic Separate School Board (1995), 49 L.A.C. (4t") 123, at p. 127, in which a very similar issue arose. In that case, Arbitrator Keller determined that a premium pay provision in the collective agreement was insufficient to establish jurisdiction. He wrote at p. 127: In the instant case, the only reference in the collective agreement that is relevant is the provision that indicates the premium for those promoted to positions of responsibility.... The mere fact that there is a reference to a rate of pay if a promotion occurs pursuant to a policy outside of the collective agreement is not sufficient. There still must be some tie-in to a provision of the collective agreement to allow an arbitration board to determine if management has acted unfairly, arbitrarily, discriminately or in bad faith. ... Arbitrator Kaplan determined that the parties had decided what matters they wished to include in the collective agreement, and inferentially, what matters they wished to exclude from coverage. Having made that decision, he determined that he had "no basis to take jurisdiction in a case simply because one of the parties claims that certain management actions are unreasonable. That claim does not constitute a `grievance' as defined by this collective agreement." (decision at p. 294). In my view, the same rationale applies here. The parties did not include ISTP training selection in their collective agreement. They only included a premium for it, after a dispute arose concerning payment for such training, and grievances were filed alleging that payment was due under Article 16.03(d). The parties then negotiated a 23 specific premium for performing ISTP training duties and withdrew the grievances. This premium does not give an employee any right or claim to be assigned to ISTP training duties. Consequently, the inclusion of this premium does not make the selection of employees for ISTP training arbitrable. The case of Re Regional Municipality of waterloo and Canadian Union of Public Employees, Local 1883 (2003), 116 L.A.C. (41h) 382 (Stewart), relied on by the Union, is distinguishable. The issue of arbitrability was not raised in that proceeding. Instead, the Union argued that the Employer improperly failed to consider seniority in temporarily assigning employees to supervisory duties, relying on a general seniority provision and the management's rights clause which obligated the Employer to "exercise management rights in a fair and equitable manner." There was also a Letter of Understanding regarding premium pay for the temporary assignment of managerial duties. Consequently, the arbitrator was not faced there with the issue of whether the premium pay provision, standing alone, created jurisdiction to hear the grievance. The Unio, i also relies on Re Union of Needletrades Industrial and Textile Employees, Local 1305 and NGF' Canada Ltd. (MacCloud Grievance) (1997), supra. In that case, the Employer, after having announced its intention to train three Relief Charge Hands as back up Charge Hands for its three shifts, and to award that training to the most senior person in each shift, the Company chose not to proceed with the training for the grievor but did train the other two selected employees. The Union asserted, among other things, that the Employer's denial of this training opportunity to the grievor undermined 24 and potentially negated his seniority rights and ability to compete in the future for a Charge hand position. On that basis the grievance was found to be arbitrable. In my view, this is the strongest argument regarding arbitrability presented by the Union. The analysis, though, is hampered by the bare minimum of facts that were presented. It is not clear on the evidence how an OTJ training opportunity might impact promotional opportunities within the bargaining unit. Indeed, it is not clear what promotional opportunities Phlebotomists have. They are the second highest paid position in the unit, second only to the Technical Support Analyst which involves a completely different skill set and duties. There was no evidence presented that establishes that denial of this training opportunity would "negate" or "undermine" the grievors' rights in terms of a promotion under Article 16.02 of the collective agreement. In contrast, in the NGF Canada case, the connection between training for a Relief Charge Hand and the impact that would have on an opportunity to become a Charge I land was clear and evident. I also cannot conclude that jurisdiction may be based on the purpose clause of the collective agreement. That provision states: The purpose of this Agreement is to establish an orderly collective bargaining relationship between the parties and to provide means for the prompt disposition of grievances to establish and maintain satisfactory working conditions, hours of work and wages for all employees within the bargaining unit. At this point in the development of the law, where many collective agreements specifically provide that the Employer is to administer its management rights and the 25 collective agreement in a "fair and equitable" manner, I cannot imply such an obligation based on the language used by the parties here. Finally, the Union asserts that jurisdiction may be based on the selection criteria that the Employer established but allegedly did not follow. It contends that once the Employer established this selection criteria, it had to apply it in a reasonable manner. It asserts that an arbitrator has jurisdiction to ensure that Employer rules and policies are reasonable and consistently applied. In support, the Union cites to Re Lumber & Sawmill Workers" Union, Local 2537 and KVP Co. Ltd. (1965), 16 L.A.C. 73 (Wren); Re OPSEU, Local 245 and City of Hamilton (Attendance Management Policy Grievance) [2009] O.L.A.A. 383 (Wh;:Mker); Re Trenton Memorial Hospital and ONA, Local 183, supra; Re Tupperware Canada and UFCu; Local 832, supra; Independent Electricity System Operator and Society of Energy Professionals, supra; Re Metropolitan Separate School Board and OPSEU, supra. Both Re Trenton Memorial Hospital, supra and Re Tupperware Canada, supra, involved arbitral review of employer policies which allegedly conflicted with rights under the collective agreement. In Re Trenton Memorial Hospital, the collective agreement provided that the Union "may hold meetings on Hospital premises providing permission has been first obtained from the Hospital." After three ge i c r ; i E union meetings, the Hospital revised its policy to preclude such meetings on its premises. The parties, in that case, agreed that the collective agreement gave the employer discretion about such meetings and that if the exercise of that discretion 26 could be shown to be in bad faith, arbitrary , �r discriminatory, it would violate the collective agreement. That is a markedly different situation than the instant case, where there is no specific collective agreement right at issue. Likewise in Re Tupperware Canada, supra, the collective agreement stated that the authorized Business Agent of the Union "shall have access to the building during normal business hours with the consent of the Plant Manager." The Employer then adopted a policy denying the Business Agent access to the plant's work areas and lunch room. The arbitrator clearly had jurisdiction to review management's discretion in that case. Consequently, in neither decision did the arbitrator review the Employer's application of a policy without , egard to rights under a collective agreement. The same is true in Re Independent Electricity System Operator, supra, a mandatory retirement case. There the parties had included the Retirement Policy, the Pension Plan and its Brochure as part of the collective agreement. (Decision, par. 10) Under the policy, the Employer could extend an employee's retirement in exceptional circumstances, as determined by the Employer. The arbitrator, there, clearly had jurisdiction to review the Employer's exercise of its discretion under the policy. Similarly, in Re Metropolitan Separate School Board, supra, which also involved application of a retirement policy, the Union claimed that the policy violated management's rights to make and enforce reasonable rules as well as negatively impacted 27 the grievor's seniority and pension rights under the collective agreement. The board of arbitration held that the Employer had the right to institute a mandatory retirement policy under the collective agreement and the Education Act, but that it could not be exercised in a manner that was arbitrary, discriminatory or in bad faith. In Re KVP Co. Ltd., supra, also relied upon by the Union, an employee was discharged based on a rule promulgated by the Employer which required dismissal if an employee's wages were garnished three times. The board of arbitration determined that company rules with disciplinary consequences had to be consistent with the terms of the collective agreement, must not be unreasonable, had to be clear and unequivocal, brought to the attention of the employee and notified that a breach could result in discharge as well as be consistently enforced. In Re OPSEU and City of Hamilton, supra, the Union challenged an attendance management policy as unreasonable and contrary to the collective agreement, and the arbitrator had jurisdiction to review the policy. Again, in each case, there is a direct connection to the collective agreement. There is no evidence concerning the Employer's creation of the selection criteria for ISTP training. But assuming it is a "policy", it has no potential disciplinary consequences for employees, nor is it alleged that the policy violates the collective agreement as in the cases cited. I also note that in the York Region Roman Catholic Separate School Board case, supra (and the Keller decision the arbitrator relied upon), there was a similar document outlining selection criteria which the parties agreed was outside of the collective agreement and did not confer jurisdiction. Here, liken ise, the 28 selection criteria for ISTP training was outside of the collective agreement. An allegation that it was not properly followed, where there is no impact on rights under the collective agreement, is not arbitrable. Finally, the Union contends that if the Devlin award is followed and the assignment of ISTP training is not a promotion but a work assignment, it submits that there is an obligation to make such assignments in a fair and reasonable manner. It cites to Re Cancoil Thermal Corp., supra and Re NGF Canada Ltd., supra. In C'ancoil Thermal Corp., the Employer determined that it only needed one operator, not two, and laid off the grievor from her position, transferring her to a lower - rated job. The Employer did not provide an explanation, insisting that it had the exclusive right to determine staffing levels. The board of arbitration reviewed the Employer's determination, stating at par. 20: "When the exercise of a management right arguably interferes with the right of an employee to continue in the position which she bid into, it is incumbent on the Employer to offer some explanation for its actions... The absence of any explanation however leads to the conclusion that the Employer acted in an arbitrary manner." In NGF Canada Ltd., supra, the Union challenged the Fmp)oyer's assignment of employee kitchen cleanup duties (i.e., nonproduction work) to bargaining unit employees on a rotational basis, rather than seeking volunteers and, if that failed, assigning the work in inverse seniority, as it argued was required by the collective agreement. The Union IM asserted that the Employer's assignment was arbitrary and discriminatory and did not comply with the collective agreement. The arbitrator determined that the Company's approach to the cleanup problem was not arbitrary, unfair or in bad faith and that there was no violation of the collective agreement, since production work was not involved. The arbitrator continued, in rather strong terms, at par. 22: [T]he residual management rights theory underlies the collective bargaining regime in this jurisdiction. This means that a unionized employer must act in a manner that is not arbitrar\ , discriminatory or in bad faith, but retains all of an employer's usual management rights except to the extent that the collective agreement fetters any such right expressly or by necessary implication. There is no management right that is more fundamental than the right to organize and direct the workforce, and more specifically to assign work to the employees. Indeed, unions generally spend much collective bargaining time and effort trying to negotiate collective agreement provisions which do just that. Clear collective agreement language is required to fetter an employer's right to assign work. There is no such clear collective agreement language that operates to fetter the Company's general management right to assign the cleanup work in issue in this case. 4n the contrary, the Company's management right to operate and manage its business in a manner consistent with the collective agreement includes the right to assign work as it sees fit subject only to the express provisions of the agreement (and any applicable legislation). Consequently, in each case, arbitral jurisdiction was based on allegations that rights under the collective agreement had been violated by management's actions - not simply that the employer failed to follow its own policies or make work assignments in a reasonable and non -arbitrary manner. Conclusion: For all of the reasons set out above, I conclude that the grievances must be dismissed. 30 Issued this 30th day of May, 2011 /s/ Randi 11. Abramsky Randi H. Abramsky, Arbitrator 31