HomeMy WebLinkAbout1999-1189.Boulet et al.00-08-08 Decision
ONTARIO EA1PLOYES DE L4 COURONNE
CROWN EA1PLOYEES DE L 'ONTARIO
GRIEVANCE COMMISSION DE
. . SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396
GSB # 1189/99
OPSED # 99B926
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Dmon
(Boulet et al)
Gnevor
- and -
The Crown m RIght of Ontano
(Mimstn ofCommumt, and SocIal ServIces)
Employer
BEFORE RIchard Brown V Ice Chair
FOR THE DavId Wnght
GRIEVOR Ryder Wnght Blair & Doyle
Barnsters and SolIcItors
FOR THE Stephen Patterson
EMPLOYER Counsel
Legal ServIces Branch
Management Board Secretanat
HEARING Juh 5 and 6 2000
The SIX gnevors worked at the MInIStry'S Sault Ste Mane office In the
FamIly Benefits Program untIl the summer of 1999 Four of them were
Income maIntenance officers, one was an ehgIbIhty reVIew officer and the
other was a clerk. The backdrop for these SIX gnevances IS the
reorganIZatIOn of socIal assIstance programs The FamIly Benefits Program
prevIOusly admInIstered by the MInIstry was replaced by the Ontano Works
program admInIstered by the Sault Ste Mane DIstnct Social ServIces
AdmInIstratIOn Board (DSSAB) as the local dehvery agent At
approxImately the same tnne, the Ontano DIsabIhty Support Program
(ODSP) was created wIthIn the MInIStry In Apnl of 1999, the gnevors were
notIfied that theIr Jobs would become surplus and that there was no ODSP
work for them at present Each of them obtaIned employment wIth the CIty
pursuant to the "Memorandum of UnderstandIng on Human Resources
TransItIOn PlannIng", dated May 13, 1999, allowIng MInIstry employees to
apply for approxImately 23 Jobs wIth the mUnIcIpahty and specIfYIng terms
governIng such apphcatIOns
The gnevances were filed on August 26, 1999, shortly before the
gnevors left the employ of the mInIstry Each gnevance claims
That I am beIng unnecessanly transferred to the mUnIcIpahty Insofar
as there IS an excessIve workload wIthIn the MInIstry currently If thIS
workload was dIstributed properly, there would be no need for a
transfer to the new employer
The UnIon argues the gnevors should have been allowed to retaIn
theIr Jobs wIth the MInIstry because there IS enough ODSP work to have
kept them employed. In tlus regard, counsel for the UnIon challenges the
current assIgnment of ODSP work on three grounds (1) the workload of
2
employees admInIstenng tlus program IS so heavy as to Impair theIr health,
(2) the assIgnment of work IS unreasonable because the eXIstIng staff are
unable to perform all of the functIOns expected and reqUIred of them, and
(3) there has been an Increase In the number of unclassIfied employees
dOIng work related to social assIstance As to remedy, the UnIon seeks an
order dIrectIng the employer to estabhsh addItIonal posItIOns to whIch the
gnevors may assert a claim under artIcle 6 of the collectIve agreement,
deahng wIth Job postIngs, or under artIcle 20, deahng wIth the redeployment
of surplus employees
Employer counsel has raised four prehmInary obJectIOns (1) that the
gnevance IS barred In ItS entIrely by mInutes of agreement between the
partIes resolvIng all dIsputes relatIng to the transfer of social serVIces In
Sault Ste Mane, (2) that the health and safety component of the gnevance
IS barred by the settlement of a UnIon gnevance relatIng to health and safety
Issues In the ODSP program across the prOVInce, (3) that the reVIew of
management decIsIOns on the ground of reasonableness IS hmIted to
decIsIOns taInted by an IllegItnnate motIve, and (4) that the gnevors have no
standIng to challenge the workload of other employees ThIS award deals
only wIth these prelnnInary obJectIOns
I
The employer's first prehmInary obJectIOn IS based upon a memorandum of
agreement between the partIes, dated July 5, 1999 and entItled "Re Social
ServIces Transfer--Sault Ste Mane DSSAB" It states
ThlS agreement resolves all dlsputes wlth respect to th,S transfer
3
1 The PartIes agree that any employee who IS not offered a
posItIOn WIth the Sault Ste Mane DSSAB wIll retaIn theIr full
ArtIcle 20 and/or paragraphs 2 to 5 of AppendIx 9 nghts In the
event of a subsequent surplus
2 For clanty, SInce the Sault Ste Mane DSSAB has not agreed to
make Job offers wIthout an IntervIew and selectIOn process, the
partIes agree that "any employee who IS not offered a Job"
Includes employees who choose not to compete or be
consIdered for employment wIth the Sault Ste Mane DSSAB
or employees who choose to be consIdered for employment but
who, for any reason, wIthdraw from competItIOn or
consIderatIOn pnor to beIng offered a posItIOn as well as
employees who compete but are not offered a Job
3 In the case of any employee offered a Job wIthout recognItIOn
of Ontano Pubhc ServIce servIce/senIonty for the purposes
outlIned In ArtIcle 6 5 of the January 20, 1999 Memorandum of
Settlement between Management Board Secretanat and
OPSEU and/or at less than 85% of theIr current salary, It IS
expressly understood that such employees wIll retaIn theIr full
ArtIcle 20 and/or paragraphs 2 to 5 of AppendIx 9 nghts In the
event of a subsequent surplus as a result of the transfer to the
Sault Ste Mane DSSAB should they dechne the Job offer
Such employees shall be so advIsed at the tnne of the offer
(emphasIs added)
The record does not dIsclose whether thIS memorandum was precIpItated by
a fonnal gnevance Counsel agree If there was a gnevance It would have
asserted a vIOlatIOn of AppendIx 9 of the collectIve agreement
AccordIng to employer counsel, the gnevors have no claim under
artIcle 20 That artIcle IS Said to apply when the provIncIal government stops
dOIng work wIthout transfernng It to another employer AppendIx 9 IS Said
to apply when work formerly done by the government IS transferred to
another employer As the employer In tlus case met ItS obhgatIOn under
4
AppendIx 9 to make "reasonable efforts" to obtaIn Job offers, as eVIdenced
by the memorandum of agreement resolvIng "all dIsputes", counsel
contends artIcle 20 does not apply to the gnevors
Counsel for the UnIon concedes that the gnevors nghts under
AppendIx 9 are hmIted to those specIfied In the memorandum of agreement
However, counsel argues the memorandum has no effect on theIr nghts
anSIng under artIcle 6 or artIcle 20 of the collectIve agreement If the
employer had created an addItIonal ODSP posItIOn Immediately before the
gnevors left the MInIstry, counsel suggests the gnevors could have asserted
a claim to It under eIther of these artIcles ThIS hypothetIcal sItuatIOn IS Said
to be analogous to the facts at hand.
In my VIew, artIcle 20 gIves nse to dIfferent consIderatIOns than does
artIcle 6 The surplus nghts created by artIcle 20 are modIfied by AppendIx
9 The last sentence of paragraph 1 (a) of AppendIx 9 states
When an employee has been transferred to a new employer he or she
wIll be deemed to have resIgned and no other prOVlswns of the
Collectlve Agreement wlll apply except for ArtIcles 53 or 78
(TermInatIOn Pay) (emphasIs added)
ThIS language contrasts sharply wIth the wordIng of paragraph l(b) dealIng
wIth an employee who dechnes an offer of a Job at less than 85% of current
salary or wIthout credIt for serVIce or senIonty Such an employee "may
exerCIse the nghts prescribed by ArtIcle 20 (Employment StabIhty) and lor
paragraphs 2 to 5 oftlus AppendIx" A companson of paragraphs l(a) and
l(b) IndIcates that an employee whose work IS transferred forfeIts all nghts
under artIcle 20 by acceptIng aJob wIth the new employer, at least where
the MInIstry has fulfilled ItS "reasonable efforts" obhgatIOn In any
partIcular case, there may be a dIspute as to whether tlus obhgatIOn has been
5
met or as to whether the work of one or more employee has been
transferred
In the Instant case, the memorandum of agreement confirms that
artIcle 20 nghts are retaIned both by employees not offered aJob wIth the
CIty and by employees who dechne a Job at less than 85% or current salary
or wIthout credIt for servIce or senIonty The ImphcatIOn IS that the
acceptance of a Job wIth the CIty extIngUIshes an employee's nghts under
artIcle 20 The memorandum of agreement resolves "all dIsputes wIth
respect to the transfer" I take tlus to mean at least all dIsputes relatIng to the
apphcatIOn of AppendIx 9 to the transfer The memorandum was sIgned
after the gnevors had been notIfied In Apnl that there were no ODSP Jobs
for them ThIS notIficatIOn clearly Imphed the employer was takIng the
posItIOn that theIr work would be transferred to the CIty By sIgnIng a
memorandum resolvIng all AppendIx 9 dIsputes, the UnIon gave up ItS nght
to contend not only that the employer had faIled to meet ItS reasonable
efforts obhgatIOn but also that the gnevors' work remaIned at the MInIStry
Based upon the memorandum, I must conclude the gnevors no longer have
nghts under artIcle 20
Does the memorandum of agreement prevent the gnevors from
assertIng a claim under artIcle 6? In my VIew, the only dIsputes relatIng to
the transfer whIch are resolved by the memorandum are those anSIng under
AppendIx 9 The memorandum's reference to "all dIsputes" must be read
wIth an eye to the rest of the document Paragraphs 1 to 3 deal exclusIvely
wIth matters related to AppendIx 9 The memorandum clearly would not
preclude an employee wIth an ODSP Job from challengIng staffing levels on
the grounds of health and safety, even though there IS some relatIOnshIp
6
between the ODSP program and the transfer LikewIse, the memorandum
does not prevent the gnevors from InvokIng artIcle 6 In an attempt to obtaIn
an ODSP posItIOn
In summary, the memorandum of agreement prevents the gnevors
from assertIng a claim under artIcle 20 but does not preclude a claim under
artIcle 6
II
The second prelnnInary obJectIOn IS based upon the settlement of a UnIon
health and safety gnevance, No 98U126, filed on November 24, 1998,
some SIX months before the ODSP began to operate The gnevance states
The employer IS makIng no attempt to take reasonable precautIOns for
the safety and health of employees assIgned to the Income
MaIntenance DIvIsIOn Presently the DIVISIOn IS senously
understaffed, workload assIgnments are exceSSIve, proJected caseload
assIgnments WIthIn the ODSP are unreasonable and unacceptable All
of these condItIons are promotIng an unhealthy work enVIronment
and creatIng an adverse effect on the health of employees
The remedy requested In the gnevance IS as follows
That the employer and the UnIon co-operate to the fullest extent
possible In a reVIew of current and antIcIpated workload assIgnments
to ensure that assIgnments wIll reasonably provIde for the safety and
health of employees
To settle tlus gnevance, the partIes on December 16, 1999, executed
Terms of Reference for a MERC SubcommIttee on ODSP The relevant
portIOns of tlus document state
Purpose
7
The purpose ofthls agreement lS to resolve Grzevance Fzle No
98U126 related to health and safety Issues that lmpact ODSP staff A
subcommIttee of MERC wIll be estabhshed to deal wIth Issues of a
provIncial nature, IncludIng labour relatIOns and program Issues that
affect ODSP staff The subcommIttee wIll be the forum to regularly
share InfOnnatIOn and clanfy Issues and where possible detennIne
plans of actIOn The mandate of the commIttee IS to facIhtate and
expedIte efficIent resolutIOn of Issues and concerns relatIng to ODSP
Staff who are members of OPSEU
Process
Issues may be referred dIrectly to the subcommIttee for resolutIOn by
eIther of the partIes provIded that they are of a provIncial nature
and/or emergIng trends, patterns or program Issues In sItes where
there are no LERC or health and safety commIttee at the local level,
Issues can be referred dIrectly to the sub-commIttee through local
stewardshIp If unresolved wIth the program managers In addItIon
eIther subcommIttee co-chair may refer Items to MERC for dIscussIOn
and resolutIOn and the Item wIll not be return to the subcommIttee
unless dIrected by MERC
The partIes agree that It IS Important that health and safety Issues be
resolved In an expedItIOus manner Therefore, where a health and
safety Issue remaIns unresolved by the subcommIttee and possIbly
MERC and OPSEU chooses to file a unwn grzevance, the grzevance
wlll not be vlewed as untlmely by reason of the tllne taken to process
by the subcommlttee and posslbly MERC And further, In the Interest
of efficIent dIspute resolutIOn, and where OPSEU files a health and
safety UnIon gnevance at stage 2 pursuant to the collectIve agreement,
the partIes agree that the subcommlttee d,scusswns that have already
occurred may satlsfy upon mutual agreement the requlrements of the
collectlve agreementfor a stage 2 meetzng At that tnne [a] UnIon
gnevance may be scheduled for medIatIOn pursuant to the collectIve
agreement process (emphasIs added)
8
ThIS document makes no mentIOn of the SIX gnevances at hand, even though
they were filed almost four months before It was sIgned. The meanIng of
tlus omISSIOn IS not ObVIOUS Perhaps the partIes Intended to resolve the
UnIon gnevance whIle leavIng outstandIng the health and safety Issue raised
by the SIX gnevors AlternatIvely, the partIes may have addressed the UnIon
gnevance unaware a health and safety Issue lurked beneath the gnevors'
reference to an "excessIve workload" No eVIdence was led on tlus pOInt
If the UnIon gnevance was resolved wIthout any consIderatIOn of
these IndIVIdual gnevances, would the settlement preclude these gnevors
from raiSIng matters of health and safety? The settlement estabhshes a JOInt
subcommIttee to address such Issues but recognIzes not all dIsputes may be
resolved In thIS way For matters that remaIn resolved, the normal procedure
for a UnIon gnevance IS modIfied by extendIng the tnne hmIt and WaiVIng
the reqUIrement for a step two meetIng The settlement does not expressly
bar any past or future employee gnevances from beIng processed In
accordance wIth the normal procedure for IndIVIdual gnevances In the
absence of an exphcIt prohibItIon, I conclude the partIes dId not Intend to
modIfy the contractual prOVISIOns allowIng employees to gneve health and
safety Issues AccordIngly, the second prelnnInary obJectIOn IS dIsmIssed.
III
The thIrd prehmInary obJectIOn relates to the JunsdIctIOn of thIS Board to
reVIew a management decIsIOn Employer counsel concedes a decIsIOn may
be revIewed on the grounds of health and safety Health and safety aSIde,
counsel asserts that arbItral reVIew of a management decIsIOn IS hmIted to a
determInatIOn of whether It rests upon "Improper motIvatIOn" In the
9
absence of an IllegItnnate motIve, an arbItrator IS Said to have no
JunsdIctIOn to set aSIde a busIness decIsIOn merely because It IS a "bad"
decIsIOn or even a "very bad" one In the context of the pubhc sector,
counsel suggests "busIness" reasons may properly Include "pohtIcal"
reasons
Employer counsel rehes upon the folloWIng passage from Unzted
Parcel Servlce and Teamsters Unwn (1981),29 L.A.C (2d) 202 (Burkett)
In our VIew the employer's declswn makzng should be assessed
agaznst the reqUlrement to act for buszness reasons and the
reqUlrement not to szngle out any employee or group of employees for
speczal treatment whlch cannot be Justified zn terms of real benefit to
the employer When the partIes agree that such matters as
classIficatIOn, quahficatIOn, demotIOn, transfers and the scheduhng of
vacatIOns are to be In the dIscretIOn of management, they do so In the
knowledge that management's decIsIOns In these areas wIll be made
In management's self-Interest, may adversely affect IndIVIdual
employees, and/or may not Impact on all employees equally
However, It IS not contemplated as part of the bargaIn that the
employer wIll exerCIse Ius authonty In these areas for reasons
unrelated to the betterment of hIS busIness or to sIngle out employees
for the type of specIal treatment described. If the employer acts In thIS
manner, the results of Ius actIOns, as they affect the bargaInIng UnIt
generally or IndIVIduals wItlun the bargaInIng UnIt, may be found to
be beyond the scope of hIS authonty under the collectIve agreement
(page 213, emphasIs added)
In my VIew, the approach outlIned by ArbItrator Burkett In Unzted
Parcel Servlces IS not dIfferent In substance from the one followed by thIS
Board In two decIsIOns cIted by counsel for the UnIon (1) OP SEU and
Mlnzstry o.fNatural Resources (Bousquet), FIle No 51/90, dated March 1,
1991 (Gorsky), and (2) OPSEU and Mlnzstry of Government Servlces
(McIntosh), FIle No 3027/92, dated December 15,1993 (DIssanayake) In
10
McIntosh, Mr DIssanayake cIted wIth approval two passages from the
Board's very lengthy and unanImous decIsIOn In Bousquet The first passage
reads as follows
Thus the sIgnIficant fact reqUIred to place a hmItatIOn on the
unfettered exerCIse of a management nght IS the eXIstence of a
prOVISIOn In the collectIve agreement whIch would eIther be negated
or unduly hmIted by the partIcular apphcatIOn of such a nght
As noted above, If It could be demonstrated that the Employer
had dIscnmInated agaInst the Gnevor In denYIng hIm traInIng and
development opportunItIes wIth a VIew to undennInIng Ius
advancement opportunItIes under artIcle 4, then ItS actIOns could not
be said to have been carned out In good faith, for genuzne
government purposes There IS nothIng In the collectIve agreement
that reqUIres the employer to consIder the advancement opportunItIes
of employees However, It cannot use ItS management nghts to under
s 18( 1) of the Act In a way whIch would amount to a dehberate
attempt to Interfere wIth an employee's nght to compete for a
promotIOn The employer cannot deliberately tIlt the field wIth a VIew
to prefernng one employee over another However, where In good
faith and for genUIne government purposes an employee IS denIed a
traInIng or development opportunIty, where the denIal IS not founded
upon a deliberate attempt to undennIne the employee's opportunItIes
for promotIOn, the decIsIOn wIll not be Interfered wIth (pages 35 and
36, emphasIs added)
The second passage from Bousquet states
All of the cases emphasIze that In cases InvolvIng the exerCIse of
managenal dIscretIOn, the Board wIll hesItate to substItute ItS vIew for
that of the employer so long as certaIn mInnnum tests are met These
Include the reqUIrement that the declswn be a genuzne one related to
the management 0.[ the undertakzng and not a dIsgUIsed means of
aChIeVIng ImpermIssible ends based on dISCnmInatIOn or other
grounds unrelated to the makIng of genUIne management decIsIOns.
The facts consldered zn makzng the declswn must be relevant to
legltlmate government purposes Also, In makIng ItS decIsIOn
11
management, provIded It has acted In good faith, as above described,
need not be correct (pages 63 and 64, emphasIs)
How does the rulIng In Bousquet apply to the facts at hand? As noted
by counsel for the UnIon, If the employer has vIOlated the collectIve
agreement by failIng to post Jobs, the gnevors' nghts under artIcle 6 are
affected In the sense that they would not have lost theIr employment If such
Jobs had been posted and awarded to them USIng the language of Bousquet,
I conclude management's detennInatIOn of ODSP workloads would be open
to challenge If It was not "genuIne" In the sense that It was not "related to
the management of the undertakIng" The standard to be apphed IS not
whether the decIsIOn was "correct", but rather whether It was made on
grounds "relevant to legItImate government purposes" In other words, what
matters IS the nature of the reasons underlYIng the decIsIOn and not whether
those reasons are of sufficIent weIght to make the decIsIOn appear sound In
the eyes of an adJudIcator The sufficIency of the reasons IS for the employer
to detennIne
IV
The employer's fourth and final prehmInary obJectIOn IS that the gnevors
have no standIng to contest the workload of other employees
In makIng thIS obJectIOn, counsel seeks to dIStIngUISh the facts at
hand from those In OPSEU and Mlnzstry of Natural Resources (Dey), FIle
No 1096/96, dated August 19, 1997 (Abramsky) Mr Dey had regIstered
under the voluntary eXIt program and gneved the employer's decIsIOn not to
assIgn hIS Job to another employee who had been declared surplus Ms
12
Abramsky held Mr Dey had no standIng to gneve because he was not
"dIrectly affected" by the decIsIOn about whIch he complaIned. She wrote
Although the language of ArtIcle 22 IS qUIte broad, allowIng
gnevances over "any complaInts or dIfferences between the partIes
ansIng from the InterpretatIOn, apphcatIOn or alleged contraventIOn of
thIS Agreement " that language cannot allow an employee to make a
claim regardless of Ius IndIVIdual Interest In the matter To gneve, an
employee must, at least arguably, be dIrectly affected by the
employer's actIOn That concept IS clear from ArtIcle 22 11 1, Group
Gnevance, whIch states that "[I]n the event that more than one (1)
employee IS dIrectly affected by one specIfic IncIdent or
cIrcumstances and such employees would be entItled to gneve, a
group gnevance shall be presented " WhIle the purpose of thIS
sectIOn IS to allow the filIng of group gnevances rather than have
multIple IndIVIdual gnevances, It clearly IndIcates that an zndlvldual
must be "dlrectly affected" by an zncldent or Clrcumstance to have a
grzevance (page 17, emphasIs added)
The award In Dey was quashed by a unanImous decIsIOn of the DIvIsIOnal
Court, dated November 4, 1998 In a very cryptIc Judgement, the Court held
that "Mr Dey had the nght to gneve on the ground that he was affected by
the decIsIOn or lack of decIsIOn of management" The Court noted artIcle
22 11 1 "speakIng of 'dIrectly affected' IS dealIng only wIth group
gnevances"
In the Instant case, the gnevors contend that the estabhshment of
ODSP workloads In vIOlatIOn of the collectIve agreement has resulted In a
failure to create posItIOns for whIch they had a nght to apply under artIcle 6
If a vIOlatIOn has occurred the gnevors are affected by It, but not In
precIsely the same way as Mr Dey would have been affected by the
contraventIOn he alleged. There are two dIfferences between the facts at
hand and those In Dey The first IS that Mr Dey wanted to be laid off,
13
whereas the gnevors seek to maIntaIn theIr employment and therefore have
more at stake
The second dIfference relates to the nature of the causal connectIOn
between the alleged vIOlatIOn and the resultIng harm to the gnevor or
gnevors IfMr Dey's Job had been gIven to a surplus employee, as the
gnevance alleged should have occurred, Mr Dey then would have been
entItled to the benefit of a voluntary eXIt WIth surplus nghts In other words,
correctIng the vIOlatIOn necessanly produced the rehef sought by the
gnevor In the Instant case, correctIng the alleged vIOlatIOn would not
necessanly produce a Job for any of the gnevors If addItIonal posItIOns are
created, the gnevors only claim to these Jobs would be under artIcle 6, any
claim under artIcle 20 beIng barred by the memorandum of agreement
Under artIcle 6, the gnevors have a nght to apply for any Job posted, but so
do other employees, and the gnevors have no guarantee of beIng appoInted
For tlus reason, counsel for the employer contends an order dIrectIng the
employer to post Jobs should not be granted at the behest of IndIVIdual
gnevors, even If such an order would be an appropnate remedy for a UnIon
gnevance
In consIdenng tlus argument, I begIn by notIng the nght to submIt
gnevances to arbItratIOn IS rooted not In the collectIve agreement but In the
Crown Employees Collectlve Bargazmng Act, 1993 SectIOn 7(3) of the Act
states
Every collectIve agreement relatIng to Crown employees shall be
deemed to provIde for the final and bzndzng settlement by arbItratIOn
by the Gnevance Settlement Board, wIthout stoppage of work, of all
d~fferences between the partles anSIng from the InterpretatIOn,
apphcatIOn, admInIstratIOn or alleged vIOlatIOn of the agreement,
14
IncludIng any questIOn as to whether a matter IS arbItrable (emphasIs
added)
By vIrtue of thIS provIsIOn, both a trade UnIon and an employer have a
statutory nght of access to arbItratIOn In the absence of any contractual
hmItatIOn on thIS nght, eIther party to a collectIve agreement may arbItrate
any dIspute ansIng under theIr contract The remedIes aVailable In
arbItratIOn Include not only a declaratIOn that the agreement has been
vIOlated but also whatever rehef IS reqUIred to rectIfy any harm caused by
the vIOlatIOn and, thereby, to produce "a final and bIndIng settlement"
The statutory nght of access to arbItratIOn IS vested In the trade UnIon
whIch represents employees and does not resIde wIth IndIVIdual employees
See Blake andATU, FIle No 1276/87, dated May 3,1988 (Shnne)
However, sectIOn 7(3) draws no dIstInctIOn between gnevances InItIated by
the UnIon and gnevances filed by employees and then carrIed to arbItratIOn
by the UnIon A trade UnIon IS entItled by statute to arbItrate both types of
gnevances
There IS a long hne of arbItral authonty recognIzIng that a statutory
nght of access to arbItratIOn may be abndged by contract Under some
collectIve agreements, In certaIn cIrcumstances, IndIVIdual gnevors are
entItled to full redress but a declaratIOn IS the only remedy aVailable In
response to a UnIon gnevance The arbItral Junsprudence on UnIon
gnevances, also called pohcy gnevances, IS summanzed In Brown and
Beatty, Canadzan Labour Arbltratwn, at 2 3124
Indeed, at one tnne there was a VIew that certaIn types of gnevances
were Inherently personal to IndIVIduals and could be gneved only by
them and not by the UnIon through a pohcy gnevance Thus, where
the rehef sought was pecuharly IndIVIdual, such as a claim for
15
monetary redress, reInstatement, rehef from Improper recall or layoff,
arbItrators eIther held such gnevances to be InarbItrable as pohcy
gnevances or alternatIvely hmIted the rehef to a declaratIOn only
However, thIS approach IS no longer apphed wIth the same vIgour and
It has been substantIally eroded Now, only where the collectIve
agreement specIfically prescribes the range of UnIon pohcy
gnevances IS It hkely that such a hmItatIOn wIll be found to eXIst
ThIS passage IS followed In Brown and Beatty by a quotatIOn from Professor
Weller's award In Mzlk & Bread Drzvers, Dazry Employees, Caterers &
Allzed Employees and Weston Bakerzes Ltd. (1970),21 L.A.C 308
A UnIon begIns, under s 34 [of the governIng labour relatIOns
legIslatIOn] wIth the nght to gneve Itself for any vIOlatIOn of the
agreement, even wIthout the consent of an IndIVIdual who may be
dIrectly affected as In [fA W, Local 212 and Canadzan Trazlmobzle
Ltd. (1968), 19 L.A.C 227 (Adell) However, It can contractually
hmIt thIS nght by appropnate language No such hmItatIOn should be
presumed from the alleged Inherent "IndIVIdual" (as opposed to
"general") nature of such gnevances, though Only If the exphcIt
language of the agreement, as fairly Interpreted wIthout any such
presumptIOns, leads to the conclusIOn that the partIes dId Intend to
hmIt access to arbItratIOn through UnIon pohcy gnevances should
arbItratIOn boards gIve effect to any such InnItatIOn (pages 313 and
314)
Just as a collectIve agreement may hmIt the remedIes aVailable for
UnIon gnevances, an agreement may Impose restnctIOns on IndIVIdual
gnevances Are the gnevors In tlus case prevented by the contract from
seekIng an order dIrectIng the employer to estabhsh addItIonal Jobs and post
them, as employer counsel argues?
Counsel for the employer cIted no cases InterpretIng a collectIve
agreement as precludIng a UnIon from obtaInIng, on behalf of an IndIVIdual
gnevor, an order dIrectIng management to post aJob The proposItIOn that
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such rehef IS precluded, because there IS no guarantee the gnevor would
have been selected for a posItIOn If It had been posted, would have far
reaclung ramIficatIOns If tlus proposItIOn IS correct, So too would be ItS
corollary that an IndIVIdual gnevor IS not entItled to a dIrectIve reqUInng an
employer to repeat a Job competItIOn because the process was flawed, as the
gnevor mIght have lost even If the competItIOn had been conducted
properly The latter proposItIOn IS behed by the numerous cases where an
IndIVIdual gnevor has brought a procedural challenge to a Job competItIOn
before tlus board, under the same contract language or snnIlar prOVISIOns In
prevIOus agreements, wIthout any obJectIOn by the employer as to the
employee's standIng See, for example, the cases mentIOned In OPSEU and
Mlnzstry o.fFznance (Mlskelly), FIle No 2622/96, dated March 4,1999
(Brown) In Canadzan Labour Arbltratwn, Brown and Beatty reVIew a hne
of cases findIng a contractual hmItatIOn on UnIon gnevances, but these
authors make no mentIOn of any case holdIng an IndIVIdual gnevor cannot
obtaIn an order dIrectIng management to post a Job or to repeat a
competItIOn
In Dey, the DIvIsIOnal Court appears to have suggested an IndIVIdual
gnevor IS not subJect to the cntenon of beIng "dIrectly affected" whIch
apphes to group gnevances Even If thIS cntenon does govern IndIVIdual
gnevances, It would be satIsfied In the case at hand. If the employer has
vIOlated the collectIve agreement by faIhng to post Jobs, the gnevors are
dIrectly affected by the vIOlatIOn In the sense that they would not have lost
theIr employment If such Jobs had been posted and awarded to them The
eXIstence of an effect upon any partIcular gnevor IS contIngent upon he or
she beIng the successful apphcant for a posted Job, but If thIS contIngency IS
17
met, there would be a dIrect effect UntIl the Job IS posted and a competItIOn
carned out, there IS no way of knowIng who the successful apphcant would
be Acceptance of the employer's argument would mean that rehefwould be
denIed not only to an IndIVIdual gnevor who would have been reJected If the
Job had been posted but also to a gnevor who would have been selected. A
gnevance filed by the UnIon would be the only way to obtaIn a meanIngful
remedy for the latter employee Such a gnevance cannot be InItIted by the
aggneved IndIVIdual It IS filed at step two of the gnevance process and
does not entaIl a step-one meetIng between the employee concerned and Ius
or or her Immediate supervIsor For these reasons, the mechanIsm of a UnIon
gnevance IS not well sUIted to resolvIng a complaInt by a sIngle employee
about a Job postIng or competItIOn Based upon thIS analYSIS, even If the
words "dIrectly affected"do apply to IndIVIdual gnevors, I would not
Interpret thIS language to preclude an IndIVIdual gnevance allegIng that a
posItIOn should have been posted or that a competItIOn was flawed
In short, the agreement does not abndge the unIon's statutory nght to
arbItrate these IndIVIdual gnevances and to claim an order dIrectIng the
employer to post Jobs
V
The prelnnInary ruhngs In tlus decIsIOn can be bnefly summanzed.
1 The memorandum of settlement bars the gnevors from obtaInIng
rehef under artIcle 20 but does not affect theIr nghts under artIcle
6
2 The settlement of the UnIon health and safety gnevance has no
beanng upon the gnevances In tlus case
18
3 ThIS Board has JunsdIctIOn to detennIne whether ODSP workloads
were estabhshed In furtherance of genUIne governmental purposes
4 IndIvIdual gnevors are not precluded from seekIng an order
dIrectIng the employer to post Jobs
Dated at Toronto, tlus 8th day of August, 2000
~~
RIchard Brown, VIce-Chair
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