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HomeMy WebLinkAbout2002-1756.Lesieur et al.05-12-14 Decision Crown Employees Commission de Nj 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# 2002-1756 2003-3511 UNION# 2002-0205-0042,2004-0257-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (LesIeur et al ) Union - and - The Crown In RIght of Ontano (Mimstry of the EnvIronment) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Andrew Baker Counsel Mimstry of Government ServIces HEARING January 30 2004 June 14 2004 and July 27 2005 WRITTEN August 16 2005 SUBMISSIONS 2 DeCISIon On November 22, 2001, Ms Janet O'Grady, DIrector of the Human Resources Branch of the MInIstry of the EnvIronment, wrote to Mr James Connelly, one of the gnevors In tlus matter the folloWIng, In part In June 2000, the government proclaimed the ProfesslOnal Geosclentlsts Act The Act and Its regulatIOns govern the practIce of professIOnal geoscIence In Ontano It estabhshes the ASSOCiatIOn of ProfessIOnal geoscIentIsts, and empowers the aSSOCiatIOn to estabhsh standards of professIOnal practIce for persons who wIll be recogmzed as professIOnal geoscIentIsts The Act defines the practIce of professIOnal geoscIence as SectIOn 2( 1) - An IndIVIdual practIces professIOnal geoscIence when he or she performs an actIvIty that reqUIres knowledge, understandIng and apphcatIOn of the prIncIples of geoscIence and that concerns the safeguardIng of the welfare of the pubhc or the safeguardIng of hfe, health or property IncludIng the natural enVIronment The MInIStry undertook a comprehensIve reVIew of our geoscIence posItIOns agaInst the reqUIrements of the Act The result IS that the MInIstry has IdentIfied your posItIOn of HydrogeologIst/Group Leader (RM4) wIth the Water Resources SectIOn, West Central RegIOn as reqUInng the Incumbent to possess the ProfessIOnal GeoscIentIst certIficatIOn AccordIngly, as a condItIon of employment you are reqUIred to now obtaIn your certIficatIOn as a ProfessIOnal GeoscIentIst Please submIt your apphcatIOn to the ASSOCiatIOn of ProfessIOnal GeoscIentIsts of Ontano (APGO) no later than December 31, 2001 Attached to thIS letter were a senes of QuestIOns and Answers for employees to read. Included was the folloWIng Q How was It decIded whIch posItIOns would be desIgnated and whIch not? Why aren't all posItIOns beIng desIgnated? A. DesIgnated management leads of each respectIve mInIstry were assIgned to reVIew the reqUIrements of the legIslatIOn agaInst the Job functIOns and accountabIhtIes of posItIOns ConsIstent WIth the government's pohcy/practIce on credentIahsm, the desIgnatIOn IS only reqUIred for those posItIOns that are clearly mandated to reqUIre such under the tenns of the legIslatIOn 3 Q Who controls the desIgnatIOn process and cntena, entrance reqUIrements, fees, ongOIng membershIp? A. It IS the responsibIhty of each mInIstry to IdentIfy the posItIOns reqUInng desIgnatIOn Under the Act's regulatIOns, the ASSOCiatIOn of ProfessIOnal GeoscIentIsts of Ontano (APGO) has the authonty to set the cntena, conduct eXamInatIOns and assessments, estabhsh fees, set and momtor standards, etc Q What If desIgnated staff don't want to become a certIfied professIOnal GeoscIentIst? A. For those posItIOns desIgnated by the Employer as now reqUInng the professIOnal certIfi catI on, In accordance wIth the newly proclaimed legIslatIOn and regulatIOns, the achIevement of tlus certIficatIOn IS a condItIon of employment for thIS posItIOn The mInIstry has agreed to the payment of InItIal costs for regIstratIOn .Annual membershIp fees remaIn the accountabIhty of the employees As set out In the above questIOns and answers, the folloWIng year the annual membershIp fees were not reImbursed to employees The SIX gnevors, all of whom are professIOnal geoscIentIsts, filed gnevances that alleged a breach of the collectIve agreement as a result of theIr havIng to pay annual membershIp dues to the ASSOCiatIOn of ProfessIOnal GeoscIentIsts of Ontano (hereInafter "APGO") because the Employer has made membershIp In that orgamzatIOn mandatory It was further alleged that management has "mIsused" ItS nghts The Umon's posItIOn was set out In a letter provIded by ItS counsel to the Employer folloWIng a request for partIculars It read as follows, In part It IS the Umon's posItIOn that 1) the ProfesslOnal Geosclentlsts Act, 2000 IS not apphcable to the Crown and therefore the gnevors are exempt from ItS reqUIrements and 2) If the gnevors are reqUIred to be members of APGO they quahfy for reImbursement of the professIOnal aSSOCiatIOn fees pursuant to the apphcable Management Board Secretanat pohcy, namely because the MInIstry denves a benefit 4 The Employer raised a prehmInary obJectIOn that the gnevances are InarbItrable and tlus decIsIOn deals only wIth tlus matter EMPLOYER SUBMISSIONS It was the Employer's VIew that It properly detennIned that certaIn employees must be members of APGO Further, It IS entIrely wIthIn theIr dIscretIOn as to whether to pay the APGO dues and ItS failure to do so IS not a matter over whIch thIS Board has JunsdIctIOn There IS no proVISIOn In the collectIve agreement that obhges the MInIstry to pay these dues GIven the absence of any such prOVISIOn In the collectIve agreement there IS not a dIfference between the partIes regardIng ItS InterpretatIOn or admInIstratIOn and therefore the matter IS InarbItrable In large measure, Mr Baker, for the Employer, rehed upon earher Board Junsprudence to estabhsh the basIs for tlus argument In Re The Crown III Right of Ontano (Ministry of Natural Resources) and OPSEU (Anderson) G S.B # 2183/02 Chair Stewart consIdered and determIned the IdentIcal Issue In that case, after the ProfesslOnal Foresters Act 2000, was enacted, the Employer evaluated the gnevor's posItIOn and notIfied hIm that "the Act IS apphcable to your posItIOn" The Umon asserted that any dues OWIng as a result of that decIsIOn should be paid by the Employer In denYIng the gnevance Chair Stewart said, at page 3 There are a number of bases upon whIch the Umon challenges the reJectIOn of Mr Anderson's claim for reImbursement It IS argued that If profeSSIOnal membershIp wIth associated costs IS a condItIon of employment, the Employer IS compelled to assume those costs I am unable to accept tlus submIssIOn The CollectIve Agreement sets out the terms and condItIons of employment, IncludIng, In some Instances, reImbursement provIsIOns Where there IS no specIfic provIsIOn In thIS regard such an obhgatIOn cannot, as a general rule, be unposed by an arbItrator It IS also noted by Mr Barclay that the Employer does reImburse Law SocIety fees for ItS employees who engage In the practIce of law as employees of the OPS and thus that ItS ratIOnale for demal of Mr Anderson's fees IS factually Incorrect As Ms 5 Demal pOInts out In her submIssIOns, however, there IS a specIfic provIsIOn In the CollectIve Agreement between the Employer and ALOC, whIch compels reImbursement AccordIngly, I am unable to accept thIS basIs upon whIch the decIsIOn IS challenged as compelhng the conclusIOn that there IS a reqUIrement to payor that there IS a fundamental flaw In the manner In whIch the Employer has dealt wIth thIS matter Mr Barclay further argues that membershIp In the ASSOCiatIOn IS properly vIewed as "beneficial to the MInIStry" as contemplated by the pohcy referred to In that regard he referred to the 2002-2003 MInIStry of Natural Resources BusIness Plan whereIn ItS goals are outlIned and suggested that the standards embraced by the OFP A could only enhance those goals He further noted that the Employer's Interests In such professIOnal accredItatIOn were eVIdenced by the mandatory statutory reqUIrement that It be obtaIned. Wlule the vahdIty of Mr Barclay's submIssIOn In thIS regard IS apparent, we are deahng WIth a sItuatIOn where the Employer has dIscretIOn whether or not to reImburse In hIS reply submIssIOns Mr Barclay referred to MInIstry of TransportatIOn and OPSEU (Kuyntles) 513/84 (Venty) In support of the proposItIOn that there was not a proper exerCIse of dIscretIOn In thIS Instance and that "the MInIstry ngIdly adhered to what they beheved Management Board pohcy to be" In denYIng the request There IS no need to deal wIth the Employer's posItIOn that thIS IS an argument whIch must be reJected on the basIs that It was raised for the first tune In reply as It IS my VIew that tlus argument cannot succeed on ItS ments The background facts are revIewed In the response to the gnevance and Mr Anderson's basIc posItIOn IS outhned. I do not VIew the response as a bhnd adherence to a mIsapprehended pohcy as Mr Barclay has suggested In Ius submIssIOns Reference IS made to the Travel and General Expenses GUIdehnes and whIle reference IS also made to what the MInIstry "does not do" I VIew tlus as a reference to past practIce wItlun tlus MInIStry , somethIng that wIll InevItably form the background for consIderatIOn of a matter Wlule, as Mr Barclay emphasIzed, the mandatory obhgatIOn for a Forester In Mr Anderson's posItIOn to be a member of the OPF A was a matter of relatIvely recent hIStOry, and thus thIS aspect of the matter that was wItlun the knowledge of the decIsIOn maker Indeed, tlus matter was specIfically clanfied by Mr Anderson's supervIsor at the meetIng and IS referenced In the decIsIOn The Issue IS whether a basIs upon whIch the exerCIse of dIscretIOn In thIS Instance can be Impugned has been Impugned. It IS my conclusIOn that such a basIs has not been estabhshed and, accordIngly, the gnevance IS dIsmIssed The Employer contended that thIS matter IS InarbItrable In order for thIS Board to take JunsdIctIOn there must be some prOVISIOn In the collectIOn agreement other 6 than the management's nghts prOVISIOn that IS Said to be vIOlated In thIS regard the Employer rehed upon Re Ministry of Labour and OPSEU (Anthony et all GSB# 1999-1997 (Abram sky) whereIn It was stated at page 8 The problem IS that the Umon has not alleged any unfairness or dISCnmInatIOn In regard to the Employer's actIOns In relatIOn to the gnevors It has alleged Improper actIOn In relatIOn to two other IndIVIduals - Mr Hughes and Ms McCourt - whIch It asserts resulted In an IneqUItable sItuatIOn But for the Board to have JunsdIctIOn, an IneqUItable sItuatIOn IS not enough In OPSEU (Ashley et al) and Mlnzstry of Communzty, Famzly and Chzldren 's Servlces, supra at p 14-15, the Board held. The decIsIOn In OPSEU (Bousquet), supra, does not assIst the Umon The Board In that case dId not adopt a general duty of good faith and reasonableness In the exerCIse of management nghts [U]nder Bousquet, supra, the JunsdIctIOn of the Board to reVIew the Employer's exerCIse of a nght reserved to management IS denvatIve - It depends on the eXIstence of a prOVISIOn In the collectIve agreement whIch mIght be adversely affected by management's nghts The Board's JunsdIctIOn depends on an allegatIOn that the Employer's actIOns Interfered wIth the grzevors' rzghts under the collectlve agreement In tlus case, those elements are mISSIng There IS no allegatIOn that the Employer Improperly demed the gnevor's a ment pay Increase - only that the Employer Improperly granted It to Hughes and McCourt Nor IS there an allegatIOn that the Employer's actIOns Impacted any nghts of the gnevors' under the collectIve agreement Mr Baker asserted that In Re The Crown III Right of Ontario (Ministry of Community, Family and Children's Services and OPSEU (Ashley et al) VIce Chair Abramsky undertook a helpful analysIs IncludIng the effect, If any of the Weber V Ontario Hydro [1995] 2 S C.R. 929 (S C C) The Employer antIcIpated that the Umon would rely upon thIS decIsIOn and contend that It has been detennIned that boards of arbItratIOn have exclusIve JunsdIctIOn where a dIspute expressly or InferentIally arIses out of the collectIve agreement In tlus regard, the Employer submItted that thIS Board should specIfically consIder the comments of VIce Chair Abramsky In Re Ashley (supra) whereIn she stated, at page 12 As noted above, for a dIspute to be arbItrable before tlus Board, It must Involve a dIfference between the partIes "an SIng from the InterpretatIOn, 7 apphcatIOn, admInIstratIOn or alleged contraventIOn of the [collectIve] agreement" Under the analysIs set forth In Weber v OntarlO Hydro, supra, an arbItrator has exclusIve JunsdIctIOn when the dIspute, In ItS essentIal character, anses from the InterpretatIOn, apphcatIOn, admInIstratIOn or vIOlatIOn of the collectIve agreement As cIted In London Life Company, supra at para 21, the Supreme Court of Canada elaborated on the Weber approach to determInIng arbItrabIhty In Regzna Po/zce Assn Inc v Regzna (Clty) Board of Po/zce CommlsslOners, 2000 SCC 13, 183 D.L.R. (4th) 14, at para 25 To determIne whether a dIspute anses out of the collectIve agreement, we must therefore consIder two elements the nature of the dIspute and the ambIt of the collectIve agreement In consIdenng the nature of the dIspute, the goal IS to detennIne ItS essentIal character ThIS determInatIOn must proceed on the basIs of the facts surroundIng the dIspute between the partIes, and not on the basIs of how the legal Issues may be framed. see Weber, supra, at para. 43 SImply, the decIsIOn-maker must determIne whether, havIng examIned the factual context of the dIspute, ItS essentIal character concerns a subJect -matter that IS covered by the collectIve agreement Upon determInIng the essentIal character of the dIspute, the decIsIOn-maker must examIne the prOVISIOns of the collectIve agreement to determIne whether It completes such factual sItuatIOns It IS clear that the collectIve agreement need not provIde for the subJect-matter of the dIspute exphcItly If the essentIal character of the dIspute anses eIther exphcItly or ImphcItly, from the InterpretatIOn, apphcatIOns, admInIstratIOn or vIOlatIOn of the collectIve agreement, the dIspute IS WIthIn the sole JunsdIctIOn of an arbItrator to decIde VIce Chair Abramsky went on at page 14 to say Nevertheless, the board also concluded that the employer dId not have "carte blanche to do what It wIshes under the purported exerCIse of an exclusIve management functIOn wIth respect to traInIng and development" (p 58) Instead, the Board had the nght to reVIew the employer's exerCIse of ItS dIscretIOn for good faith and reasonableness because developmental opportumtIes Impacted an employee's abIhty to compete In Job competItIOns under ArtIcle 4 of the collectIve agreement The Board held at p 35 "[T]he sIgmficant 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 a partIcular apphcatIOn 8 of such nght" Consequently, under Bousquet, supra, the JunsdIctIOn of the board to reVIew the Employer's exerCIse of a nght reserved to management IS denvatIve - It depends on the eXIstence of a prOVISIOn In the collectIve agreement whIch mIght be adversely affected by management's actIOn In Bousquet, supra, the Board determIned that there IS no general reqUIrement of good faith and reasonableness In the exerCIse of nghts reserved to management, unless It Impacts a nght contaIned In the collectIve agreement The maJonty of the factual Issues as they apply to JunsdIctIOn have been prevIOusly consIdered, Mr Baker claimed. An extremely sImIlar fact sItuatIOn was contemplated by VIce Chair Gray In Re The Crown III Right of Ontano and OPSEU (Cherwonogrodzky et al) (Apnl 14, 2004), GSB#2002-0994 In that decIsIOn the gnevors alleged a vIOlatIOn of the collectIve agreement because the Employer faIled to reImburse tax audItors for theIr membershIp In vanous professIOnal aSSOCiatIOns The umon asserted In that matter that "the employer has breached an Imphed obhgatIOn to exerCIse management's nghts In a manner that IS reasonable and not arbItrary, dISCnmInatory or In bad faith" VIce Chair Gray faIled to take JunsdIctIOn of the matter and found that the Umon faIled to allege a vIOlatIOn of the collectIve agreement and faIled to Impugn the Employer's actIOns such that there was an adverse Impact upon a proVIsIOn of the collectIve agreement It was stated at page 16 The umon argues that the board has JunsdIctIOn to reVIew the exerCIse of dIscretIOn complaIned about here because If the employer had exercIsed ItS dIscretIOn dIfferently - by reImbursIng the dues of some employees - that could have been charactenzed as Interference wIth the compensatIOn prOVISIOns of the collectIve agreement For the purposes of analysIs I wIll accept that If the employer were to reImburse some employees' membershIps dues for the avowed purpose of unprovIng theIr compensatIOn, or If one could Infer from the CIrcumstances that that was the predomInant purpose (as where, for example, It was eVIdence that the reImbursement gave the employer no benefit other than the gratItude of the recIpIents), the reImbursement could constItute a breach of the prOVISIOns that the partIes have negotIated wIth respect to the allocatIOn of compensatIOn among bargaInIng umt employees On that VIew, If the 9 umon were to gneve that the employer should not have reImbursed dues because Its dOIng so was InCOnsIstent WIth the compensatIOn prOVISIOns of the agreement, the Board mIght then have to enqUIre Into the reasons for reunbursement It does not follow that the Board has JunsdIctIOn on that basIs to reVIew these decIsIOns not to reImburse dues, partIcularly dues of a sort that have never before been reImbursed Such a decIsIOn cannot be charactenzed as InCOnsIstent WIth compensatIOn provIsIOn whIch make no prOVISIOn for reImbursement That IS not to say that a decIsIOn not to reImburse could never be the subJect of a gnevance It could If, for example, If It was alleged that the decIsIOn amounted to dISCnmInatIOn on a basIs prohibIted by ArtIcle 3 of the collectIve agreement or by the OntarlO Human Rlghts Code That IS not alleged here The actual exerCIse of reserved managenal nghts complaIned of In these gnevances does not Interfere wIth the compensatIOn prOVISIOns of the collectIve agreement In short, there IS no proVISIOn of the collectIve agreement that the employer IS alleged to have breached by refusIng to reImburse the gnevors' professIOnal dues, and no prOVISIOn of the collectIve agreement capable of beIng adversely Impacted by that exerCIse of management's dIscretIOn AccordIngly, I agree wIth the employer that ItS decISIOn not to reImburse the gnevors' dues In professIOnal accounts' orgamzatIOns IS not subJect to reVIew by tlus Board for reasonableness The Employer submItted that for tlus Board to entertaIn tlus gnevance would cause senous ramIficatIOns Members of the bargaInIng umt who were unhappy wIth any Issue that arose from hIS or her employment would take the Board's valuable tIme heanng and detennInIng these matters Such a decIsIOn would be wrong, In the Employer's submIssIOn UNION SUBMISSIONS Mr Leeb, for the Umon, suggested that there can be no doubt from the questIOn and answer document that It was the Employer who had mandated membershIp In the APGO That IS to say It IS not the AssocIatIOn that has detennIned these employees should be members It IS the Umon's posItIOn that the Employer erred 10 when It promulgated thIS rule and estabhshed It as a condItIon of employment ThIS Board has the JunsdIctIOn to detennIne that matter gIven the sIgmficant financial unphcatIOns the rule has upon the gnevors Further, the Board has JunsdIctIOn to hear and decIde the Issue because membershIp In the AssocIatIOn bnngs dutIes and obhgatIOns upon the gnevors such as dISCIplInary actIOn wIth ramIficatIOns beyond employment wIth tlus Mimstry At the very least, tlus must be seen to be an Inappropnate exerCIse of management's nghts The Umon took Issue WIth the Employer's contentIOn that there must be some alleged vIOlatIOn of the collectIve agreement In order for thIS Board to take JunsdIctIOn The Junsprudence stands for the proposItIOn that once a vahd busIness obJectIve IS estabhshed by an Employer It IS revIewable It has been decIded that management's nghts cannot Impose constraInts upon employees unless It IS done In pursUIt of a legItImate busIness obJectIve In tlus regard the Umon rehed upon Re The Crown In Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Anderson) (October 1, 1991), GSB#3005/90 (Watters) VIce Chair Watters said at page 8 ThIS Board cannot Isolate any sound reason for refusIng to extend thIS lOgIC to the present collectIve agreement governIng the relatIOnslup between these partIes Indeed, an analogous approach was taken In Bay/zs The Board there detennIned that "even In the absence of any specIfic language In the agreement, It IS ImphcIt In the collectIve agreement that management wIll admInIster the collectIve agreement In good faith" (page 3) WhIle the Employer's good faith was not challenged In these proceedIngs, we tlunk that the same Inference should be made In respect of the notIon of reasonableness .In the absence of an explanatIOn as to why there was a change In the status quo, we are prepared to hold that the Employer acted unreasonably The second argument put forward by the Umon was made In the alternatIve If the employer IS correct and It can obhge ItS employees to become members of APGO, ItS decIsIOn to not reImburse the membershIp momes paid by the gnevors IS a 11 vIOlatIOn of Its own pohcy regardIng membershIp fees and thIS decIsIOn IS subJect to reVIew The relevant portIOn of the pohcy states Payment of membershIp fees may be authonzed when membershIp In an orgamzatIOn IS beneficial to the mInIstry, or when reqUIred, under the prOVISIOns of the collectIve agreement AccordIng to ArtIcle 2 of the collectIve agreement, the Employer IS obhged to make reasonable rules and regulatIOns and tlus Instance the Employer has promulgated a rule that the gnevors must be members of APGO and that nlle IS unreasonable In tlus regard the Umon referred to Cherwonogrodzky, supra Unhke the matter at hand, current membershIp In a professIOnal assocIatIOn was not a condItIon of employment WhIle It was conceded that the Board faIled to take JunsdIctIOn In that Instance, VIce Chair Gray dId state, at page 10 It IS dIfficult to ImagIne that by agreeIng that "nlles and regulatIOns" would be reasonable the employer Intended or the umon beheved that any decIsIOn of general apphcatIOn that the employer mIght announce concernIng how It would thereafter manage ItS operatIOns would be exposed to arbItral reVIew for reasonableness The Cherwonogrodzky matter IS dIstIngUIshable In the Umon's VIew In that case there was no Employer reqUIrement that employees become members of theIr professIOnal aSSOCiatIOn VIce Chair Gray said that In the specIfic cIrcumstances of the matter before hIm It was not unreasonable for the Employer to elect to not reImburse the costs of aSSOCiatIOn membershIp Further, VIce Chair Gray was not asked to consIder the Issue of general powers of reVIew He was merely asked to determIne whether the pohcy was reasonable, not whether It was apphed In good faith or arbItrarIly apphed. The gnevors In the Instant matter have been mandated to belong to APGO In any event, even If I feel bound by VIce Chair Gray's decIsIOn In thIS matter thIS Board should consIder new arguments The Issue of whether management's pohcIes are subsumed wIthIn management's nghts was not 12 consIdered In the Cherwonogrodzky decIsIOn In thIS regard the Umon rehed upon Re The Queen III right of Ontario and Ontario Public Service Employees' UnIOn et al. (1984),42 O.R. (2d) 361 [DIvIsIOnal Court] whereIn It was Said at page 365 It seems to us that from a rather comphcated senes of documents the gnevance settlement board has dIscerned a consIstent pohcy and has Interpreted the language of the agreement wIth reference to the management manual In art 22, management has undertaken to pay mIleage allowance, but that artIcle gIves no IndIcatIOn of a fonnula by whIch allowance IS to be calculated. In carrYIng out ItS nght to manage, management has Issued the manual whIch does contaIn such IndIcatIOn and It has acted upon It by changIng the gnevor's desIgnated headquarters In so dOIng, It has Ignored the undertakIng that the headquarters IS to be penodIcally revIewed to determIne "whether or not the ongInal arrangement contInues to be eqUItable to both the employee and the MInIStry" The ObVIOUS unphcatIOn IS that any headquarters so desIgnated IS to be eqUItable to both partIes There IS much Junsprudence, asserted the Umon, standIng for the proposItIOn that Employer pohcIes are a mamfestatIOn of theIr nghts and therefore subJect to arbItral reVIew In thIS regard the Board was dIrected to Re The Crown In Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Andersen et at) (November 12, 2002), GSB#1093/01 whereIn It was Said by VIce Chair Brown, at page 6 Counsel for the employer rehes upon Abbott Laboratorzes Ltd. And Retazl, Wholesale Canada (1998), 74 L.A C (4th) 331 (R.M. Brown) where I commented on the meamng of the phrase "expressly or InferentIally" In Weber [T]he Supreme Court said the JunsdIctIOn of an arbItrator encompasses dIsputes ansIng from the express or lmp/zed terms of a collectIve agreement That IS how the Court's reference to "expressly or InferentIally" was Interpreted by Mr Hope In ( 'anada Safeway I agree wIth Ius InterpretatIOn (page 347, emphasIs added) ThIS understandIng of Weber subsequently was adopted by the Supreme Court of Canada as well by the Ontano Court of Appeal Mr JustIce 13 Bastarache spoke for the Supreme Court In Board of CommlSSlOners of the Clty of Regzna v Regzna Po/zce AssoczatlOn Inc, [2000] 1 S C.R. 360 SImply, the decIsIon-maker must detennIne whether, havIng examIned the factual context of the dIspute, ItS essentIal character concerns a subJect matter that IS covered by the collectlve agreement It IS clear that the collectIve agreement need not provIde for the subJect matter of the dIspute exphcItly If the essentIal character of the dIspute anses elther exp/zcltly or lmp/zcltly, from the InterpretatIOn, apphcatIOn admInIstratIOn or vIOlatIOn of the collectIve agreement, the dIspute IS wItlun the sole JunsdIctIOn of an arbItrator to decIde The Umon said that It IS Important for tlus Board to appreciate that new Issues and/or arguments are beIng raised In thIS matter As mentIOned above, vanous Issues at hand were not consIdered by VIce Chair Gray or others In prevIOUS decIsIOns Issued by the Gnevance Settlement Board. When there IS a change In consIderatIOns a fresh look should be taken AccordIng to Re The Crown III Right of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Cleveland) (October 6, 1993), GSB#2350/92, VIce Chair Stewart (as she then was) accepted that the Board was unable to accept an early detennIned prIncIple because SInce the Issuance of an earher decIsIOn language In the collectIve agreement had changed. In the matter at hand the Umon takes the posItIOn that the Employer Improperly Interpreted and apphed the ProfesslOnal Geosclentlsts Act when It detennIned that the gnevors hold posItIOns that reqUIre Incumbents to possess the ProfessIOnal GeoscIentIst certIficatIOn In Re The Crown III Right of Ontario (Fleetwood Ambulance Services) (September 18, 1997), GSB#1013/96, VIce Chair Stewart (as she then was) found that the Employer had erred when It determIned that the French Lan!<ua!<e Servlces Act apphed to ItS operatIOns "notwIthstandIng the fact that It has not been desIgnated by regulatIOn as a government agency as contemplated by the prOVISIOns of the Act" In upholdIng the gnevance, she went on to find that the Employer dId not estabhsh a "reasonable relatIOnshIp between the reqUIrements of the posItIOn and facIhty In the French language" In tlus matter, 14 the Board should determIne whether the Employer properly apphed the ProfesslOnal Geosclentlsts Act and If It dId not, the gnevors should not be subJect to the Act's constraInts Indeed, for tlus purpose It can be said that the Act IS an employment statute and therefore thIS Board properly has the JunsdIctIOn to Interpret and apply the prOVISIOns as estabhshed In Re The Crown In Right of Ontario (Ministry of Health) & OPSEU (1996), 61 L.A.C (4th) 284 (Mikus) When employees' nghts are Interfered wIth then a statute can be said to the employment statute That IS partIcularly the case In the Instant matter because there eXIsts potentIal for employment consequences If the gnevors fall out of favour wIth the nlles and regulatIOns of the aSSOCiatIOn VIce Chair Mikus stated at page 286 of her decIsIOn The amendments to the Labour RelatlOns Act were Intended to gIve arbItrators and arbItratIOn boards broad powers to deal wIth the Issues before It/them It expressly allows them to Interpret and apply employment-related statutes to aVOId multIphcIty of heanngs, InCOnsIstent decIsIOns, expense and delay Wlule the ElectlOn Act IS not stnctly speakIng an employment-related statute, to the extent that the employer apphes that Act In such a way that nghts under a collectIve agreement are affected, an arbItrator has the obhgatIOn to Interpret that Act and apply It In such a way that any conflIct between It and the collectIve agreement are resolved In a final and bIndIng manner In thIS case, the Employer scheduled the gnevors' three-hour votIng penod to Include theIr lunch penod. The hours of work In the collectIve agreement provIde for an unpaid lunch penod dunng the shIft It IS WIthIn my JunsdIctIOn to detennIne, on the facts of tlus case, whether the Employer properly apphed the ElectlOn Act when he Included a one-hour unpaid lunch penod In the three-hour votIng penod. The Umon further suggested an appropnate consIderatIOn for tlus Board In the determInatIOn of ItS JunsdIctIOn IS the Junspnldence that contemplates the Issue of surveIllance It IS tnte to note that most collectIve agreements do not Include a prOVISIOn that sets out management's nghts In tlus regard. And yet many employers take the posItIOn that they are entItled to Implement surveIllance on employees In thIS regard the Umon rehed upon Re Centre for AddictIOn and 15 Mental Health and OPSEU (2004), 131 L.A.C (4th) 97 (Nairn) and Re SecurIcor Cash Services and Teamsters, Local 419 (February 6, 2004), unreported (WhItaker) whereIn It was stated at paragraphs 48 and 49 There IS no questIOn that arbItrators have for decades subJected these types of employer InqUInes to a reasonableness test ThIS IS done on the theory that where a collectIve agreement IS sIlent, an employer IS generally eXerCISIng ItS management nghts by makIng InqUInes of employees that are necessary for the carryIng on of busIness The theory then IS that It IS part of management's resIdual nghts under the collectIve agreement to undertake InvestIgatIOns that mIght ImpInge on the pnvacy of employees If such InvestIgatIOns are reasonable In the CIrcumstances In tlus way It can be said that the test of reasonableness anses from the collectIve agreement Itself The test of reasonableness IS an ImphcIt term of the agreement The other sIde of the unphcIt tenn however IS that unreasonable InvestIgatIOns that trench on the pnvacy of employees are contrary to the collectIve agreement The Umon asserted that IrrespectIve of whether the collectIve agreement IS sIlent, where management Intrudes on the nghts of employees, those actIOns must be subJect to arbItral reVIew In thIS matter the consequences of the Employer's detennInatIOn that the ProfesslOnal Geosclentlsts Act apphes are sIgmficant such as the payment of dues and beIng subJect to the ASSOCiatIOns nlles There can be no doubt thIS Board has JunsdIctIOn In reply, Mr Baker noted that at no pOInt In the Umon's submIssIOns was there mentIOn of a specIfic provIsIOn In the collectIve agreement that has been vIOlated. Each of the cases provIded by the Umon whereIn the Board accepted JunsdIctIOn there was an allegatIOn of a vIOlatIOn of a specIfic provIsIOn In the collectIve agreement such as unJust cause for dIsmIssal, mIleage allowance or, as In the decIsIOn from VIce Chair Mikus, hours of work In tlus matter, reference has been made only to ArtIcle 2 of the collectIve agreement and there IS no nexus to any breach of any other prOVISIOn Further, It was asserted that the decIsIOn of VIce Chair Gray was precIsely on pOInt It IS not relevant that Ius decIsIOn does not 16 contemplate a sItuatIOn where management obhged employees to be members of a professIOnal assocIatIOn Any factual dIfferences between that case and the Instant matter are not detennInatIve when consIdenng the Issue of JunsdIctIOn Indeed, there are at least three prevIOUS decIsIOns that make clear there must be a vIOlatIOn of some artIcle other than management's nghts for tlus Board to take JunsdIctIOn DECISION As stated from the outset, the Umon's posItIOn IS twofold. FIrst, the Employer's decIsIOn to obhge the gnevors to become members of and pay dues to APGO was a mIsapphcatIOn of the Act and constItutes a vIOlatIOn of the collectIve agreement because It has sIgmficant Impact on the gnevors' compensatIOns and theIr terms of employment Second, If the gnevors are reqUIred to be members the Employer must pay for the fees because It has denved a benefit After much consIderatIOn I am of the VIew that the Employer's prelunInary obJectIOn must be upheld. AccordIngly to the Crown Emvlovees' Collectlve Bar2aznzn2 Act, In order for thIS Board to take JunsdIctIOn of a matter there must eXIst a dIspute between the partIes that constItutes a dIfference between them "nsIng from the InterpretatIOn, apphcatIOn, admInIstratIOn or alleged contraventIOn of the [collectIve] agreement" In my VIew, In thIS matter there IS no dIspute that anses from the collectIve agreement The Umon contended that the Management's RIghts provIsIOn has been vIOlated and the gnevances suggest that the Employer "mIsused" ItS nghts I thInk not As set out In Re Bousquet (supra), a restnctIOn of the "unfettered exerCIse of a management nght" would reqUIre the negatIOn or undue lunItatIOn of the apphcatIOn of a specIfic provIsIOn In the collectIve agreement There IS no proVIsIOn In the collectIve agreement that has been negated or unduly hmIted. WhIle the Umon mIght suggest that the compensatIOn prOVISIOns are affected, tlus Board has been prevIOusly detennIned that there IS no vIOlatIOn of 17 the compensatIOn prOVISIOns when employees are reqUIred to pay dues to professIOnal aSSOCiatIOns The Supreme Court set out the appropnate approach In determInIng arbItrabIhty after Weber (supra) In Regma Police (supra) It was said that there are two elements to consIder The first IS the nature of the dIspute and the second IS the ambIt of the collectIve agreement It was stated that the nature of the dIspute IS made by determInIng the essentIal character based on the facts and not on the basIs of how the legal Issues are framed. SImply put, does the essentIal character of the dIspute concern a subJect matter covered by the collectIve agreement Once the essentIal character of the dIspute IS IdentIfied an eXamInatIOn of the prOVISIOns of the collectIve agreement must be undertaken to detennIne whether It takes Into account such factual sItuatIOns It was Said "If the essentIal character of the dIspute anses eIther exphcItly, or ImphcItly, from the InterpretatIOn, apphcatIOn, admInIstratIOn or vIOlatIOn of the collectIve agreement, the dIspute IS wItlun the sole JunsdIctIOn of an arbItrator to decIde" In the matter at hand the essentIal character of the dIspute IS Involves whether the Employer can Impose, as a condItIon of employment, professIOnal aSSOCiatIOn membershIp and whether It IS obhged to pay dues floWIng from membershIp The Umon also raised whether the Employer mIsapphed the ProfesslOnal Geosclentlsts Act In detennInIng that the gnevors held posItIOns that reqUIre ASSOCiatIOn membershIp In my VIew, nothIng In thIS dIspute "anses eIther exphcItly, or ImphcItly, from the InterpretatIOn, apphcatIOn, admInIstratIOn or vIOlatIOn of the collectIve agreement" Wlule It mIght be the case that the Umon would frame ItS legal argument In a somewhat dIfferent manner In thIS fact sItuatIOn from earher cases, the essentIal nature of thIS dIspute IS not arbItrable 18 The matter of JunsdIctIOn has been the subJect of many prevIOUS Board decIsIOns In Anthony et aI, supra, VIce Chair Abramsky stated sImply how tlus Board obtaIns JunsdIctIOn of a matter She said. The decIsIOn In OPSEU (Bousquet), supra, does not assIst the Umon The Board In that case dId not adopt a general duty of good faith and reasonableness In the exerCIse of management nghts [U]nder Bousquet, supra, the JunsdIctIOn of the Board to reVIew the Employer's exerCIse of a nght reserved to management IS denvatIve - It depends on the eXIstence of a prOVISIOn In the collectIve agreement whIch mIght be adversely affected by management's nghts That SUCCInctly stated prIncIple has been consIstently apphed by thIS Board. There IS nothIng In the Instant matter that would cause me to stray from that prIncIple or find that It does not apply Both partIes rehed upon Cherwonogrodzky (supra) As mentIOned earher, the Umon asserted that the collectIve agreement has been vIOlated because the gnevors are Impacted In theIr compensatIOn and employment condItIons ThIS matter was addressed by VIce Chair Gray and he found that the pohcy statement (whIch IS vIrtually IdentIcal to that before me) IS "not sometlung that ArtIcle 2 1 expressly reqUIres to be reasonable" He found that the dIscretIOn unphcIt In the pohcy statement was "not one conferred by a prOVISIOn of the collectIve agreement" It was a "dIscretIOn conferred by one level of management upon another, concernIng a matter on whIch the collectIve agreement IS entIrely sIlent" He also found that a decIsIOn not to reImburse for payment of dues "cannot be charactenzed as InCOnsIstent WIth compensatIon provIsIOn whIch make no prOVISIOn for reImbursement" I accept that there are some factual dIfferences In that case to the matter before me However, I am of the VIew that VIce Chair Gray's findIng that the Board was wIthout JunsdIctIOn because there IS "no proVIsIOn of the collectIve agreement capable of beIng adversely Impacted by that exerCIse of management's 19 dIscretIOn", must lead me to the same result The factual dIfferences are not sufficIent or of the sort that would have me find that I have the JunsdIctIOn to hear tlus matter The Issue of Employer unposed mandatory membershIp has been consIdered by tlus Board In Anderson, (supra) the partIes put facts and submIssIOns regardIng prehmInary obJectIOns as well as the ments before the Chair In her decIsIOn, Chair Stewart dIsmIssed the gnevance and In dOIng so she reJected the Umon's assertIOn that If professIOnal membershIp wIth associated costs was a condItIon of employment, the Employer IS compelled to assume those costs She specIfically found that there was "no specIfic provIsIOn In thIS regard" and that an arbItrator could not, as a general rule, Impose such an obhgatIOn For all of these reasons, the Employer's prehmInary obJectIOn IS upheld and the gnevance IS dIsmIssed Dated thIS 14th day of December, 2005