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Home My WebLink About1993-0976.Belanger et al.97-03-11 t~ ? ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT ~ BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 118 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 976/93 OPSEU # 93E193-219 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Belanger et al) Grievor - and - - - The Crown in Right of ontario (Ministry of Health) Employer BEFORE S. Kaufman Vice-Chairperson E. Seymour Member A. Merritt Member FOR THE J Paul GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board secretariat HEARING January 24, 1997 -- " ~... I Interim Decision This interim decision ,arises out of the grievances of approximately 52 Ambulance Officers employed by the Ministry of Health, alleging a violation of Article A 1 2, ,Art 12 1 and 18 1 regarding rest equipment and facilities qnd past practice in a number of ambulance stations The grievances originated in April and June, 1993, and hearings commenced on January 25, 1995 Hearings continued on March 16 ,and May 10, 1995 On August 25, 1995, a date scheduled for continuation of the hearing, the union connnenced an- oral motion with respect to the removal by the employer of certain furniture from various stations since May 10, 1995 and alleged that the removal constituted a further violation of Art. 12,. The union advised it was seeking an interim order directing that the actions of the employer be reversed and stayed until determination of the grievances before this board. It sought the replacement of the furniture that had been removed and the restoration of the status quo and/or past practice. On August 25, 1995, the parties attempted to ,settle the interim motion, without success. The panel accepted juris- diction of the issues in dispute in the motion and on October 25, 1995, we took a view of the premises affected Thereaf- ter, due to the intervening strike and the involvement of the union's representative with collective agreement negotiations between the parties, these proceedings were not resumed until January 24, 1997 In the interim, Bill 7, The Labour Relations and Employment Statute Law Amendment Act, S O. 1995, c 1, received Royal Assent on November 10, 1995 The parties were agreed that Bill 7 applied to the continued proceedings in this dispute. j -- .- . 2 On January ~4, 1997, the employer argued that properly interpreted, s. 48 (12) (i) of the Labour Relations Act. 1995, (LRA, 1995) which is Schedule A to Bill 7, ddes not authorize this board to provide the relief the union is seeking It submitted that s 48 (12) (i) limits this board's jurisdiction to "interim orders concerning procedural matters" and that the relief the union was seeking on its interim motion was substantive in nature. It urge~ us to interpret "procedural" as restricted to evidentiary matters and rulings, appropriate parties, and the execution of judgments, as describeq in 243930 Alberta Ltd. v. Wickham (1990) 75 0 R (2d) 289 (O.C A ) at p 305 The u~ion argued -that the board had jurisdiction to continue to consider the motion, under s 48 (12) (i) . In GSB 1471/96 (Nield), the employer required the grievor, an Occupational Health and Safety Inspector, to divest himself of his part interest in an auto body shop, i which it viewed as placing the grievor in a conflict of interest position. The employer required him to so divest himself by a certain date, failing which he would be subject to discipline up to and including discharge Mr. Nield grieved from this requirement, and sought an interim order on an urgent basis, enjoining the employer from requiring the grievor to divest himself of his interest, and from dischar- ging him for non-compliance with the employer's requirement. vice Chair Roberts was of the view, at p. 9, supra, that "the jurisdiction of the Board" to make interim orders concerning procedural matters does not permit it to enjoin via a "cease and desist" order anticipated or apprehended breaches of the collective agreement As a result, he was of the view that "the Board does not have jurisdiction to enjoin the employer from disciplining or discharging the grievor" He did, however, characterize "the question whether Mr Nield , . 1 , I should be permitted to retain his interest in the ,business pending determination of the merits of his grievance" as fl procedural matter. He issued an interim order on October 15, 1996 which, among other things, permitted the grievor to retain his interest so long as he avoided involvement in the inspection of body shops, and permitted a timely application for an extension of the order, if required Heqid not retain jurisdiction as to the merits of the case The parties appeared before Vice Chair McKechnie on the union's application for an extension of Vice Chair Roberts' interim order Although the employer took the position that it could argue the issue of jurisdiction before him again, Mr McKechnie was of the view "that Mr. Roberts took juris- diction and provided for a possible extension. As a result, the hearing before me did not concern the original, jurisdic- tion to grant interim relief, but addressed only whether there was now sufficient evidence to grant an extension of that order". He reviewed the affidavit evidence, determined there was "cogent evidence" which satisfied the appropriate tests, and granted an extension of the interim relief until the date of his decision on the merits The employer requested the Ontario Divisional Court to judicially review these interim decisions. The endorsement on the Application Record indicates that the applipation was dismissed, and states The central issue in the grievance is whether Mr Nield has a conflict of interest Neither of the Interim Orders decides that issue, or makes a' finding relevant to its determination The interim Orders .. remove the urgency of a decision of the central issue by permitting Mr. Nield to retain his investment in his body shop until determination of the merits of the grievance, provided he avoids involvement in the inspection of auto body shops In our judgment, these Interim Orders deal with procedural matters within the meaning of s 48 (12) ( i ) of the Labour Relations Act, 1995 - - ~ .. 1 ; 4 Section 48(13) of that Act provides that an arbitrator shall not make an interim order under s 48 (12) (i) requiring an employer to reinstate an employee in employment. Subsection (13) indicates that the legislature gave a broad meaning to the words "procedural matters" in s 48 ( 12 ) (i) The Divisional Court ruling in Nield indicates that "procedural" should be given a broad meaning, rather than the more restrictive one advanced by the employer in this proceeding This Board is bound by the "broad" approach to the interpretation of "procedural" adopted and approved by the Divisional Court. The relief sought by the union in this case, as in Nield, pertains to the manner in whicH the parties will proceed with respect to one another "in the interim" i e. until the final decision is made. The facts of this case do not permit it to be distinguished from Nield with respect to the issue of jurisdiction. The Divisional Court's ruling indicates that this board retains Qroad residual powers to issue interim orders pertaining to the conduct of the parties in the workplace, provided that the relief is not dispositive of the issue or issues in the grievance, and provided the evidence presented meets the appropriate tests. We therefore conclude that this board has the jurisdiction to proceed with the union's interim motion As the balance of the employer's submissions dealt with the tests to be applied in determining whether intertj..m relief should be granted, these can be considered at the resumption of the motion i i :21' I 5 Dated at Toronto this 11th day of March, 1997 // ~~... ---) -~ /; .- ,,,.......... ,/ / ...-.~_.. Q..tL. \ l.11 L'v.-LH- Al Merritt Employer Nominee ~~~ Ed Seymour Union Nominee - ~