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HomeMy WebLinkAbout2001-0557.Policy Grievance.04-01-02 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2001-0557 2002-0050 2002-0321 UNION#OLB132/01 OLB096/02,OLB327/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Control Boards Employees' Umon (PolIcy Gnevance) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Nimal DIssanayake Vice-Chair FOR THE UNION Craig Flood Koskie Minsky Bamsters & SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING September 30 and October 7 2003 PRELIMINARY DECISION The Board lS seized with three grlevances, all related to an Attendance Review Policy (hereinafter "the policy") implemented by the LCBO at its Durham Logistics Facility The first lS a policy grlevance wherein the . . unlon grleves The unlon objects to the employer's attendance reVlew process (also known as the mandatory Q 11 ) The process lS unfair, unreasonable and arbitrary and lS a violation of the collective agreement, articles 2 1, 9 and any other applicable articles and statutory provisions The other two grlevances were filed by an employee, Mr Joe Sousa, claiming that the employer had contravened articles 2 1 and 9 and any other applicable clauses of the collective agreement by subjecting him to the policy At the commencement of the hearing the parties raised two preliminary lssues This decision deals with those Union's request that a grlevance filed by Mr Robert Browning be heard together with these grlevances 3 Mr Browning has filed a grlevance stating "Article 2 1 (b) Discrimination and harassment as defined In the OHRC and any other applicable clauses In the CA and OLRA" While the grlevance makes no reference to the Attendance Review Policy, there lS no dispute that the crux of Mr Browning's grlevance lS that the employer's application of the policy to him was In contravention, inter alia, of the collective agreement and the Human Rights Code The unlon requests that this grlevance be heard together with the policy grlevance and Mr Sousa's two grlevances The employer objects to the request The employer agreed that under the Labour Relations Act and the Grievance Settlement Board Rules of Procedure - the Board has the power to order that grlevances be heard together In appropriate circumstances See Re Toronto District School Board (2002 ) 109 LAC (4 tll) 20 (Shime) However, it took the position that In the particular circumstances of this case it was inappropriate to make such an order The unlon submits that the three grlevances before the Board, as well as the Browning grlevance, arlse out of the same employer policy While the facts In the Browning 4 case may not be identical, all four grlevances ralse common lssues such as discrimination on the prohibited grounds of handicap, and unjust discipline The parties are the same and they ralse the same provlslons of the collective agreement and legislation In all four grlevances In the circumstances, counsel submits that it lS efficient and expeditious to ]Oln the Browning grlevance In this proceeding Counsel admitted that while the remedies ordered In favour of the individual grlevors may be different, the Board can bifurcate remedial lssues as it commonly does and proceed to determine liability In all four grievances in one proceeding Employer counsel submitted that the Board ought to exerClse its power to order that grlevances be heard together only where such an order results In efficiency According to counsel, In this case the test of efficiency lS not met He contended that Slnce Mr Brown's grlevance arlses out of the actual application of the grlevance to him and its impact on him, it may involve medical evidence and evidence relating to the employer's duty to accommodate That evidence will be specific to Mr Browning Counsel's maln concern was that as a result of 5 this "grievor-specific" evidence, there may be a delay In obtaining a decision in the other three grlevances In Re Dresser Canada Inc (1987 ) OLRB Rep Oct 1243 at para 8, the OLRB reviewed the purpose of and applicable considerations for hearing cases together as follows 8 Strictly speaking, the effect of consolidation lS to fuse two or more proceedings into one Accordingly, consolidation will only be appropriate In circumstances where there lS an identity of parties and lssues In two or more proceedings The term has come to be used somewhat more loosely so that "consolidation" may be appropriate where the parties and lssues are substantially the same Technically, it lS more appropriate, In such circumstances, that the matters be "heard together" rather than "consolidated" When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters In lssue In all the proceedings are heard at one time by one trier of fact and law Hearing matters together can be a useful alternative to consolidating them into one, where the circumstances are such that consolidation lS inappropriate but the practical . . make it desirable to have the matters eXlgencles proceed together The object of either consolidating a number of proceedings, or have them heard together, lS the same, that lS, to save expense and avoid a multiplicity of proceedings Underlying these practical 6 concerns are legal considerations, namely, the parties involved and the lssues raised In the varlOUS proceedings In question Where the parties and lssues are not substantially the same, it will generally not be appropriate or particularly useful to either consolidate the varlOUS proceedings or have them heard together It lS trite to say that it will not always be obvious that two or more proceedings should or should not proceed together and the Board, as master of its own procedure, has the discretion to determine the manner In which matters brought before it will proceed I have concluded that it lS appropriate to hear the Browning grlevance together with these grlevances All grlevances are between the same unlon and employer and the focus of each lS on the same policy No arbitrator has been appointed to hear the Browning grlevance Hearing grlevances together avoids duplication of expenses Moreover, there lS the potential that if these grlevances are heard In different proceedings, it may result In the Boards reaching conflicting and inconsistent conclusions While it lS likely that the Browning grlevance will involve additional evidence relating to the application of the policy to the grlevor, I do not agree that such evidence will necessarily be irrelevant to the other grlevances On the contrary, that evidence may assist the Board In 7 understanding the real impact of the policy on employee rights It may provide a factual context for the legal lssues Moreover, at this time I have no knowledge as to how brief or extensive the medical evidence In the Browning grlevance will be To the extent that there lS grlevor- specific evidence relating to Mr Browning's remedial claim, that need not delay the lssuance of a decision In the other matters If such evidence lS lengthy, it lS open to either party concerned about delay to move that the liability lssues and remedial lssues be bifurcated On an overall assessment, the benefits resulting from hearing all of the grlevances together far outweigh any adverse consequences of doing so Therefore, the Board orders that the Browning grlevance will be joined and heard together with the other three grlevances Any lssues relating to the most efficient process of doing so may be determined at the instance of either party Jurisdiction to reVlew exerClse of management rights for reasonableness As part of this lssue the parties disagreed as to whether or not the policy was disciplinary, and if so, whether it exposes the whole policy to arbitral reVlew In my Vlew it lS not appropriate to determine as a preliminary 8 matter, whether or not the policy lS disciplinary on the basis solely of the language used In the written policy A much more informed decision can be made after the Board has heard evidence as to the application and administration of the policy on individual employees Therefore, that lssue should be argued and determined after all of the evidence has been tendered, and not as a preliminary matter The parties have properly raised In a preliminary way, the lssue of the Board's jurisdiction to determine whether or not the employer had acted reasonably when it exercised its management rights to create the policy The dispute lS whether the Board had such jurisdiction In the absence of an allegation that the employer's action was contrary to or inconsistent with some specific prOVlSlon of the collective agreement or a statute It lS the employer's position that a simple allegation that a policy lS "unreasonable" lS not one that comes within the Board's jurisdiction As employer counsel put it, for the Board to get jurisdiction the allegation must have "a hook" to some prOVlSlon In the collective agreement or statute He went so far as to submit that as long as it lS not contrary to a prOVlSlon In the collective agreement or statute the 9 employer lS not obliged to exerClse its management rights reasonably It must be made clear that the unlon has In fact alleged that the Policy conflicts with the collective agreement In a number of ways, and further that the policy contravenes the Ontario Human Rights Code The employer agrees that those lssues are properly before the Board However, the preliminary lssue has arisen because the unlon has taken the alternate position that, even if no specific prOVlSlon of the collective agreement or the Human Rights Code has been contravened, the board ought to strike down - the policy on the grounds that it lS an unreasonable exerClse of management rights The employer takes the position that this particular collective agreement does not requlre that management rights be exercised reasonably or that employer policies must be reasonable Since the Board lacks jurisdiction to amend or add to the collective agreement, counsel submits that by introducing a "reasonableness requirement, the Board would be exceeding its jurisdiction The collective agreement that governs the rights and obligations of these parties does not include a 10 management rights clause Nevertheless, the unlon did not dispute that it lS a legitimate function of the employer to implement a policy designed to manage absenteeism In the workplace See Re B C Railway Co 1982) 8 LAC (3d) 250 (Hope) It's complaint lS that the employer has exercised that management function unreasonably The parties referred me to a large number of court decisions and arbitration awards The arbitral jurisprudence represents an attempt by arbitrators to reconcile what appears to be conflicting and inconsistent pronouncements by the Ontario Court of Appeal In its judgments In Re Metropolitan Toronto Board of Com'rs of Police and Metropolitan Toronto Policy Asso et al (1981) , 124 D L R (3dO 684 and Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No 10 et aI, (1983 ) 149 D L R (3d) 53 What lS no longer controversial lS the principle that the employer has a duty to act reasonably In exerclslng its management rights, where such a duty lS required, explicitly or implicitly, to glve effect to employee rights explicitly recognized In a collective agreement Arbitrators have expressed this proposition In 11 different ways For instance, In Re Westin Harbour Castle, (1991 ) 23 LAC (4th) 354 (R M Brown) it was held that a duty to act reasonably should be implied where it lS necessary "in order to harmonize management rights with rights accorded to employees elsewhere In the collective agreement" In Re Municipality of Metropolitan Toronto (1991 ) 19 LAC (4 tll) 287 (Davis) it was stated that a duty to act reasonably should be implied "only where it has been necessary to avoid a conflict with, or undermining of rights conferred by some other provlslon In the specific collective agreement" Consistent with this case law, the employer conceded that the Board has jurisdiction to deal with the union's allegation that the policy lS In conflict with various provisions of the collective agreement The more contentious lssue is whether a duty to act reasonably may be implied even when it lS not necessary to avoid conflict or inconsistency with employee rights accorded elsewhere In the collective agreement The unlon relied on a line of cases that had interpreted the decision in Re KVP Co ( 1965) 16 LAC 73 (Robinson) . . , as lmposlng a general requirement that any rule promulgated by the employer In the exerClse of its management rights must meet a test of "reasonableness" It lS the Board's Vlew that a 12 notion of such a general implied duty to act reasonably lS no longer tenable after the clear pronouncement by the Court of Appeal In the Police Com'rs case The better interpretation lS that the Board's requirement In Re KVP that the rule must meet a test of reasonableness was made In the context of the just cause requirement In the collective agreement See, B C Railway Co (1982 ) 8 LAC (3d) 250 (Hope) and Re Central Park Lodge Ltd , (2000 ) 91 LAC (4 tll) 403 (Ellis) The decision In Re McKellar General Hospital, (1986) 24 LAC (3d) 97 (Sal tman) contains an excellent reVlew of the relevant case law I can do no better than to quote at length from that decision at pp 103-109 The question of whether or not the requirement of reasonableness ought to be implied into a collective agreement has been the subject of considerable arbitral and judicial debate In 1975 the Ontario Divisional Court issued a decision In the case of Re Municipality of Metropolitan Toronto and Toronto Civic Employees' Union, Local 43 et al (1977 ) 79, D L R (3d) 249, 16 o R (2d) 730 (the "Metropolitan Toronto" case) , which appears to have accepted the notion that management lS bound to a so-called "duty of fairness" In the exerClse of its management rights Following the Metropolitan Toronto decision, a large body of arbitral jurisprudence was developed which held that management was 13 bound to act fairly and reasonably In the exercise of management rights Subsequently, the notion of a superadded "duty of fairness' was rejected In the case of Re Metropolitan Toronto Board of Com'rs of Police and Metropolitan Toronto Police Ass'n et al (1981) , 124 D L R (3d) 684, 33 o R (2d) 476, 81 C L L C para 14,116 ( leave to appeal to S C C refused D L R loc Cit , 39 N R 499n) (the "Metropolitan Toronto Police" case) In that case, the grlevors alleged that they had been denied the opportunity to participate In the annual inventory on an overtime basis In a manner which was arbitrary, discriminatory, unfair or In bad faith The collective agreement contained no express prOVlSlon dealing with the assignment of either overtime or inventory work Accordingly, the matter fell to be determined under the management rights clause which provided, among other matters, that it was the exclusive function of management to "manage the operation" Following the authority of the Metropolitan Toronto decision, the arbitrator held that the employer was bound to exerClse its management rights fairly and without discrimination and, therefore, that the employer violated the collective agreement by unfairly denying the grlevors the opportunity to participate In the annual inventory on an overtime basis An application for judicial reVlew was filed In the Ontario Divisional Court However, the Divisional Court did not decide the matter and, under the authority of s 35 of the Judicature Act, R S 0 1980, c 223 (repealed 1984, c 11, 14 s 187) , referred the matter for determination to the Ontario Court of Appeal The Court of Appeal held that where management has the exclusive right to determine how it shall exerClse the powers conferred under the management rights clause, the exerClse of these powers cannot be challenged solely on the basis that they were made unfairly or In a discriminatory manner At p 687 D L R , pp 478-9 o R , the court said as follows In our oplnlon, the management rights clause glves management the exclusive right to determine how it shall exerClse the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provlslons of the collective agreement The power to challenge a decision of management must be found In some provision of the collective agreement Having regard to the nature of the agreement, and to its prOVlSlons, we see no necessity In this case to imply a term that the management rights clause will be applied fairly and without discrimination If such a term were to be implied, it would mean that every decision of management made under the exclusive authority of the management rights clause would be liable to challenge on the grounds that it was exercised unfairly or discriminatively In our oplnlon, this 15 would be contrary to the sprit and intent of the collective agreement Following the Metropolitan Toronto Police case, the Ontario Court of Appeal had further occaSlon to consider the exerClse of management's discretion In the case of Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No 10 et al (1983) , 149 D L R (3d) 53, 42 o R (2d) 404, 83 C L L C para 14,050 ( leave to appeal to S C C refused 52 N R 308n) (the "Council of Printing Industries" case) , the collective agreement required the company to "permanently" classify 34 employees, thereby making them lmmune from lay-off The grlevance arose because the unlon claimed that the company violated the grievors' seniority rights In permanently classifying five of these employees The arbitrator held (Re Photo Engravers & Electrotypers Ltd And Toronto Printing Pressmen & Assistants' unlon, No 10 (1980) , 25 LAC (2d) 88 ) that the job security rights of employees permanently classified by the company under art 22 of the collective agreement were an exception to the seniority rights provided by art 6 of the collective agreement and In effect abridged the seniority rights of employees not so classified He further held that because of the fundamental importance of seniority rights under the collective agreement, the company must exerClse its discretion to permanently classify employees In a reasonable manner, without discrimination, bad faith or arbitrariness The arbitrator's decision was quashed by a decision of the Divisional Court (unreported) , which was 16 ultimately set aside by the Court of Appeal In restoring the decision of the arbitrator, the Court of Appeal made it clear that it was not dealing with the exerClse of management rights under the management rights clause (as had been the case In the Metropolitan Toronto Police case) but with the exerClse of management's discretion under art 22, a substantive prOVlSlon, In light of the collective agreement as a whole As a result, the court declined to interfere with the arbitrator's determination that management was bound to exerClse its discretion under art 22 In a manner which was not arbitrary, discriminatory, unreasonable or in bad faith Numerous arbitration awards have been written In an attempt to reconcile the apparent conflict between the decisions In the Metropolitan Toronto Police and Council of Printing Industries cases Some arbitrators have held that the decisions can be explained on the basis of a distinction (referred to by the Court of appeal In the Council of Printing Industries case) between the exerClse of management's discretion under the management rights clause and under a substantive prOVlSlon of the collective agreement See Re - Royal Ontario Museum and Ontario Public Service Employees' Union (1983) , 12 LAC (3d) 207 (P C Picher) , Re City of Windsor and Ontario Nurses' Assoc (1985) , 19 LAC (3d) 1 (McLaren) Other arbitrators do not accept this distinction see Re McKellar General Hospital and Ontario Nurses' Assoc , association grlevance on the employer's nepotism policy (August 24, 1984), unreported (Beatty) (reported 15 LAC (3d) 353) the "McKellar Hospital" case) , Re Toronto East 17 General Hospital and Service Employees Union, Local 204 (1984) , 13 LAC 93dO 400 (Burkett) (the "Toronto East General" case) , Re Great Atlantic & Pacific Co of Canada Ltd and Bakery, Confectionery & Tobacco Workers Union, Local 264 (1984) , 18 LAC (3D) 44 (Burkett) In the McKellar Hospital case, the association challenged the employer's anti-nepotism policy, which prohibited the employment of family members In the same department or unit on the grounds, among others, that the policy was unreasonable The employer submitted that the arbitrator lacked jurisdiction to determine whether or not the policy was unreasonable as the exerClse of management rights was not subject to the test of reasonableness After revlewlng the decisions In the Metropolitan Toronto Police and Council of Printing Industries cases, the arbitrator rejected the distinction made by the Court of Appeal In the Council of Printing Industries case between the exerClse of management's discretion pursuant to a management rights clause and the exerClse of management's discretion pursuant to a substantive prOVlSlon of the collective agreement and held that the same considerations apply to both To the extent that the Court of Appeal held that different considerations apply, the arbitrator held that the two decisions cannot be reconciled Preferring to follow the decision In the Council of Printing Industries case, the arbitrator concluded that the standard of reasonableness applied to the exerClse of management's discretion to promulgate plant rules and policies under the management rights clause 18 In The board's Vlew, the distinction made by the Court of Appeal In the Council of Printing Industries case between the exerClse of management's discretion under the management rights clause and under a substantive prOVlSlon of the collective agreement cannot be entirely ignored Firstly, weight ought to be glven to the fact that the court expressly stated that it was making this distinction Secondly, the distinction lS consistent with the theory that a party to a collective agreement lS bound to administer its obligations under the agreement In a reasonable manner See Re Int't Nickel Co of Canada Ltd and U S W Local 6500 (1977) , 14 LAC (2d) 13 (Shime) , Re Royal Ontario Museum and Ontario Public Service Employees' Union, supra, whereas no similar theory would appear to apply to the exerClse of management's discretion under the management rights clause However, even if there lS no distinction between the exerClse of management's discretion under the management rights clause and under a substantive prOVlSlon of the collective agreement, the different conclusions In the Metropolitan Toronto Police and Council of Printing Industries cases can be understood In relation to the test for implying a term into the collective agreement In essence, the test holds that an arbitrator (or board of arbitration) has the power to imply a term into a collective agreement if two conditions are met (1 ) if it lS necessary to imply a term in order to glve "business or collective agreement efficacy" to the contract, In other words, 19 In order to make the collective agreement work, and (2 ) if, having been made aware of the omlSSlon of the term, both parties to the agreement would have agreed without hesitation to its insertion See Re Kennedy Lodge Nursing Home and Service Employees Union, Local 204 (1980) , 28 LAC (2d) 388 (Brunner) , Re Orenstein & Koppel Canada Ltd and Int'l Assoc of Machinists, Local 1740 (1976) , 12 LAC (2d) 417 (Brunner) In the Metropolitan Toronto Police case, the court expressly stated that the test for the inclusion of an implied term had not been met More particularly, at p 687 D L R , P 479 o R , the court said "we see no necessity In this case to imply a term that management rights will be applied fairly and without discrimination" (emphasis added) By way of contrast, the implication arlses from the decision In the Council of Printing Industries, case that the arbitrator was of the Vlew (1 ) that the insertion of the implied term of reasonableness was necessary to glve "business efficacy" to the collective agreement, l e , to ensure that valued seniority rights under the collective agreement would not be eroded, and (2 ) that the parties would have agreed to the inclusion of the term had they put their minds to it This latter approach to the exerClse of management's discretion lS consistent with the Vlew taken In the Toronto East General case In that case, the arbitrator was required to determine whether there was In implied 20 restriction on the employer to act reasonably In the exerClse of its function to lay off employees After considering both, the arbitrator concluded that the decisions In the Metropolitan Toronto Police and Council of Printing Industries cases can be understood by reference to the general principles of contract law and, more particularly, to the rules relating to implied terms and not to any doctrinaire distinction between the exerClse of management's discretion under the management rights clause and under a substantive prOVlSlon of the collective agreement At pp 407-8 of the decision, the arbitrator's reasonlng lS set out as follows In our Vlew the attempt to distinguish the judgments of the Court of Appeal In Council of Printing Industries of Canada, supra, from that of Metropolitan Toronto Board of Com'rs of Police, supra, on the basis that the latter case deals with the exerClse of a management discretion under a management rights clause while the former deals with the exerClse of a management discretion found elsewhere In the agreement lS an artificial distinction which mlsses the point A closer reading of Metropolitan Toronto Board of Com'rs of Police, supra and the arbitration awards that were under reVlew In that case makes it clear that the Court of Appeal was concerned with the importation into a collective agreement of "a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provlslons of the agreement must stand the further test of whether In the oplnlon of 21 the arbitrator they were made fairly and without discrimination" (p 687 D L R , P 478 o R ) In the face of these words, we must adopt the interpretation of the Metropolitan Toronto Board of Com'rs of Police judgment expounded by arbitrator Swan In Re Meadow Park Nursing Home and Service Employees Int'l Union, Local 220, supra (1983) , 9 LAC (3d) 137 (Swan) (which preceded the judgment of the Court of Appeal In Re Council of Printing Industries of Canada, supra) , which focuses on the court's prohibition of the importation of a general rule which lS not supported on the language of the agreement The awards reads (pp 140-1) "What the Metropolitan Toronto Police decides, In our respectful Vlew, lS simply that arbitrators exceed their jurisdiction if they purport to establish general principles for the administration of collective agreements divorced from the language negotiated by the parties In the matter before them, and that they commit errors In law if they purport to treat a judgment of the courts, refusing to interfere with an arbitration board on the basis that it did not glve collective agreement language a meanlng which it could not reasonably bear, as binding expositions of the general law Unfortunately, many arbitrators, and indeed some courts, have 22 turned the rationale of Metropolitan Toronto Police upside down, and have taken it instead to mean that there can never be implied into a collective agreement a duty to exerclse a management function or prerogative In accordance with tests of fairness or reasonableness The Metropolitan Toronto Police case does not and cannot alter the law of contractual interpretation, every allegation that an employer lS In breach of the collective agreement must be considered individually, against the language which the parties themselves negotiated, and In accordance with the well-known canons of construction If, based on the general law of implied terms In contracts, as the general law may be adapted to the particular case of collective agreements, the implication arlses that a particular management function must be exercised In a certain way, then an arbitrator lS bound to make that implication, Slnce it arlses from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between the parties To whatever 23 extent such cases as Re United Glass & Ceramic Workers of North America et al and Libbey-St Clair Inc et al (1981) , 125 D L R (3d) 702, 33 o R (2d) 760 (Ont Div ct ) , appears to suggest some other conclusion, it would be our respectful submission that they should not be followed" (See also Re Board of Education for the City of Toronto and Toronto Teachers' Federation, supra (1982) , 3 LAC (3d) 336 (Kennedy) ) On our reading the judgment of the Court of Appeal In Council of Printing Industries of Canada, supra, does not In any way conflict with the prohibition In Metropolitan Toronto Board of Com'rs of Police, supra, against the importation into a collective agreement of a general requirement of reasonableness and fairness The arbitration award In Council of Printing Industries of Canada, supra, was upheld on the ground that the interpretation placed on the article which gave management the authority to classify was one it could reasonably bear The court framed the lssue as one of interpretation (as distinguished from the importation of a general requirement not referenced to the language of the collective agreement) and found that the language of the clause, when read In a labor relations context and In the context of the agreement as a whole, 24 could support an implied requirement to act In a "bona fide" fashion (in the sense that it must put its mind to relevant considerations) In our Vlew, the two decisions can be read together as standing for the proposition advanced by arbitrator Swan, that lS, "If based on the general law of implied terms In contracts, as the general law may be adapted to the particular case of collective agreements, the implication arlses that a particular management function must be exercised In a certain way, then an arbitrator lS bound to make that implication Slnce it arlses from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between the parties " In light of the two Court of Appeal decisions, the most sensible approach, and the one that I subscribe to, lS that taken In Re Meadow Park Nursing Home (supra) The state of the law following the Toronto Police Com'rs and Printing Industries court decisions, as I read them, may be summarized as follows An arbitrator has no jurisdiction to import into a collective agreement a general duty on an employer to exerClse management rights reasonably However, if on an application of the general law of implied terms In contract, the implication arlses from the 25 collective agreement itself that a particular management right must be exercised reasonably, the arbitrator lS bound to make that implication Slnce it arlses from the collective agreement negotiated by the parties, from which the arbitrator draws his or her jurisdiction Such an implied duty may arlse from a specific prOVlSlon of the collective agreement, or from a reading of the agreement as a whole In a labour relations context In the instant case, the unlon has not pointed to anything In the collective agreement that could glve rlse to an implied term that management rights must be exercised reasonably Nor lS there anything In the collective agreement to justify an implied term that the particular exerClse of the management right to create an attendance review policy must be reasonable Therefore, the Board has no jurisdiction to reVlew the reasonableness, of the employer's exerClse of management rights to create the policy, or of the policy itself The Board, however, does possess jurisdiction to determine whether the policy conflicts with any employee rights conferred by the collective agreement, including the lssue of whether the policy constitutes discipline And of course, the Board also has jurisdiction to determine the union's allegation 26 that the policy lS contrary to the Ontario Human Rights Code This proceeding will continue In accordance with the directions contained In this decision The Registrar shall schedule further hearings In consultation with the parties Dated this 2~ day of January 2004 at Toronto, Ontario ~F " .' . -, > .. . ,. .... ... . ' :.... ... . . .. - 'I. I . . . _ . -. . . ".,.., ...:~:::;.: . .. .... ... 'if N. : ...<<.."<:~ lID . .. . . . ., . . Vice-Chairperson