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HomeMy WebLinkAbout2004-0911.Union Grievance.05-02-22 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# 2004-0911 UNION# 2004-0323-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer - and - AssocIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano Intervener BEFORE Barry Stephens Vice-Chair FOR THE UNION Donald KEady PalIare Roland Rosenberg RothensteIn LLP Barnsters and SOlICItorS FOR THE EMPLOYER Kelly A. Burke Semor Counsel Management Board Secretanat FOR THE Lyle S.R. Kanee INTERVENER Sack Goldblatt Mitchell Barnsters and SOlICItorS HEARING December 15 2004 2 DeCISIon ThIS case Involves a gnevance filed by OPSEU wIth respect to the posItIOn of CoordInator of Pharmacy ServIces, a posItIOn that has been posted by the employer In the AMAPCEO bargaInIng umt. At the outset of the heanng the partIes advIsed that a JunsdIctIOnal dIspute has been filed wIth the Ontano Labour RelatIOns Board wIth respect to the posItIOn. The partIes came before me to seek a rulIng on whether It would be proper for me to adJourn thIS arbItratIOn and defer to the outcome of the OLRB proceedIngs Ruling on AMAPCEO Participation Pnor to rulIng on the Issue of defernng to the OLRB It was necessary to rule on a request made by AMAPCEO to make submIssIOns on the Issue OPSEU obJected to AMAPCEO partIcIpatIng In the heanng In any capacIty unless It was JOIned as a full party bound to the outcome of my rulIng on the Issue of defernng to the OLRB and, If I ruled In favour of proceedIng, bound by my rulIng on the ments After heanng from all partIes, IncludIng AMAPCEO I ruled that I would permIt AMAPCEO to partIcIpate In the heanng In order to address the Issue of defernng to the OLRB but would not reqUIre a pnor undertakIng that It would be bound by any eventual rulIng I mIght make on the ments of thIS case At the tIme, I IndIcated to the partIes that I would Include my reasons In the award. Those reasons were as follows The Issue at hand IS whether AMAPCEO can partIcIpate In these proceedIngs for the lImIted purposes of addressIng the motIOn that thIS board should defer to the OLRB In the JunsdIctIOnal matter The partIes have provIded no bIndIng authonty that IS dIrectly on pOInt. The decIsIOn of Vice-Chair Knopf, [AMAPCEO and MBS (2002) G S.B 1357/00] as I understand It, deals wIth the questIOn of the partIcIpatIOn of OPSEU wIth respect to the ments of an arbItratIOn, not Just on a lImIted prelImInary Issue of adJ ournment and deferral 3 Thus It appears that my rulIng IS a questIOn of what IS the best procedure In thIS Instance, I e a procedural matter that IS WIthIn the power of thIS board to determIne as It sees fit gIven consIderatIOns of the potentIal for preJudIce, multIplIcIty of heanngs, natural JustIce and all of the other elements that make up good heanng procedure After reflectIng on the matter It IS my VIew that AMAPCEO should be permItted to make ItS submISSIOns on the Issue of defernng to the OLRB for the folloWIng reasons 1 AMAPCEO IS clearly an Interested party to the overall Issue raised by the gnevance and would, If It sought Intervener status, be consIdered an appropnate party to the ments of the case - wIthout commentIng at thIS stage about the condItIOns the board mIght reqUIre for such partIcIpatIOn - and thIS status IS not questIOned by eIther of the other two partIes Thus thIS decIsIOn cannot be used as a precedent to permIt a wIde range of partIes to make submIssIOns on prelImInary matters wIthout havIng a clear Interest In the case 2 If I rule that It would not be appropnate to defer to the OLRB proceedIng, the partIes can then address the Issue of AMAPCEO's further partIcIpatIOn, If It seeks standIng, wIth respect to the ments of the case 3 I can see no preJudIce to the other two partIes In adoptIng such a procedure that would outweIgh the value of allowIng an Interested party to have a say on the prelImInary matter 4 GIven AMAPCEO's posItIOn as an Interested party It IS my VIew that the board wIll gaIn by havIng the benefit of ItS perspectIve and submIssIOns In makIng an appropnate rulIng on the prelImInary matter Deferral to the OLRB - Employer Submissions The employer submItted that the JunsdIctIOnal dIspute wIth respect to the posItIOn of CoordInator of Pharmacy ServIces should proceed to the OLRB for determInatIOn. The employer takes that posItIOn that the posItIOn In questIOn IS AMAPCEO work, InvolvIng a new Job wIth new and enhanced responsibIlItIes that fall wIthIn the AMAPCEO bargaInIng umt. The posItIOn was created In recogmtIOn of the need for more managenal skIlls at the professIOnal level A pharmacIst In the former OSPEU posItIOn applIed and was successful, but the OSPEU posItIOn remaIns vacant and has not been elImInated. 4 The employer asserted that the OLRB has exclusIve JunsdIctIOn over JunsdIctIOnal dIsputes between umons, as set out In s 99 and s 114 of the Ontano Labour Relations Act. If there was not exclusIve JunsdIctIOn, then the door would be open for both OPSEU and AMAPCEO to pursue gnevances under theIr respectIve collectIve agreements, leadIng to the possIbIlIty of conflIctIng decISIOns Even If the GSB had some concurrent JunsdIctIOn In the area, It would be proper to defer to the OLRB gIven that board's expertIse The employer submItted the folloWIng authontIes AMAPCEO and MBS (Knopf) supra Remembrance Services Inc [2001] OJ No 2247 (Ont. DIV Ct.) Bradford et. al. and Ministry of Transportation (2000) P S G.B (LeIghton) Re Council of Printing Industries of Canada (Southam-Murray) (1983) 12 L.A.C (3d) 1 (Brandt) AMAPCEO's SUBMISSIONS AMAPCEO supports the posItIOn advanced by the employer assertIng that In a multI-party dIspute It IS appropnate to resolve the matter before the OLRB whIch has JunsdIctIOn over all partIes, and whIch can aVOId multIplIcIty of proceedIngs and ensure complIance The present board IS lImIted to the collectIve agreement under whIch the gnevance has been filed, I e the OPSEU collectIve agreement, whIch IS one reason why the Act stIpulates that the OLRB should have JunsdIctIOn In such matters The factors consIdered by the OLRB are broader than those restncted to a sIngle collectIve agreement, IncludIng the relatIOnshIps between partIes, levels of skIll and traInIng, busIness efficIency and so on. It IS not appropnate for OPSEU to InSISt that AMAPCEO be bound to a process that Involves only the InterpretatIOn of the OPSEU collectIve agreement, when the OLRB provIdes an appropnate forum for the consIderatIOn of the dIspute from a wIder perspectIve 5 AMAPCEO relIed on the folloWIng authontIes Re K([I1,artha Pine Ridge District School Board (2001), 101 L.A.C (4th) 218 (0 V Gray) E.s. Fox Limited, [1994] OLRB Rep May 543 Robertson Yates Corporation Limited [1992] OLRB Rep Apnl507 PCL Constructors Eastern Inc [1991] OLRB Rep March 354 Jeffrey Sack, C Michael Mitchell and Sandy Pnce, Ontario Labour Relations Board, L([I1, and Practice ThIrd EdItIOn, Vol 1 Ch.7 pp 723 to 7 33 UNION SUBMISSIONS OPSEU submIts that I should not defer to the OLRB but that I should hear the gnevance submItted. The umon argues that the employer was aware of the fact that OPSEU was assertIng a nght to the dIsputed posItIOn, at the latest, when the gnevance was filed In Apnl 2004 However the applIcatIOn to the OLRB was filed the day before the arbItratIOn heanng. OPSEU has a nght to have a JunsdIctIOnal gnevance heard In an expedItIOus manner The OLRB does not have exclusIve JunsdIctIOn, whIch means that the GSB has dIscretIOn to hear the matter rather than defer and should not exerCIse that dIscretIOn In favour of a party that filed a JunsdIctIOnal dIspute the day before the arbItratIOn heanng. OPSEU asserts that a vIce-chair of the GSB has the authonty to determIne practIce and procedure under s 48 of the Crown Employees Collective Bargaining Act SectIOn 99 of the Ontano Labour Relations Act IS not mandatory nor does It grant exclusIve JunsdIctIOn. The sectIOn uses the permISSIve "may" as opposed to more mandatory or exclusIve language OPSEU also pOInts out that under s 99(3) of the Labour Relations Act the OLRB IS not reqUIred to hold a heanng and OPSEU has a nght to be concerned that the matter In dIspute be heard, and It should not be demed the nght to such a heanng and a final resolutIOn of the Issues raised. OPSEU also asserts that the nature of the dIspute IS not JunsdIctIOnal In a tYPIcal sense because the work In questIOn was always OPSEU work and ought to contInue to be OPSEU work. 6 OPSEU argues that the GSB IS the appropnate forum for the dIspute because It IS expert In matters related to the Ontano publIc servIce whIle the OLRB IS expert In other areas, maInly In the constructIOn Industry DECISION After gIVIng careful consIderatIOn to the submIssIOns, I have concluded that It would be most appropnate to defer to the JunsdIctIOn of the OLRB In the JunsdIctIOnal dIspute filed by the employer ThIS approach makes the most sense SInce, to do otherwIse, nsks that the Issue at stake, I e under whIch collectIve agreement the CoordInator of Pharmacy ServIces properly falls, mIght be consIdered In two dIfferent arbItratIOns under each of the collectIve agreements, WIth the addItIOnal nsk of conflIctIng or contradIctory decIsIOns WhIle OPSEU mIght nghtly feel that the employer's applIcatIOn to the OLRB came at a late date - wIthIn days of the heanng - In my VIew that fact does not Impact on the Issue I have to decIde There IS no questIOn In my mInd that the dIspute between the partIes IS a JunsdIctIOnal dIspute over a posItIOn that Involves both OPSEU and AMAPCEO as well as the employer OPSEU's assertIOn that the work In questIOn was "always OPSEU work" forms part of the dIspute, but does not dIStIngUISh thIS case from other JunsdIctIOnal dIsputes, nor does It lead me to conclude that the Issue would best be determIned under the OPSEU collectIve agreement alone WhIle It IS true that the GSB IS expert In matters anSIng from the collectIve agreements of the vanous bargaInIng agents representIng employees of the OPS It does not follow that the GSB IS also the best forum for resolvIng JunsdIctIOnal dIsputes Rather the GSB IS In the same posItIOn In JunsdIctIOnal dIsputes as a board of arbItratIOn under the OLRA, In that any arbItratIOn of a JunsdIctIOnal dIspute under one collectIve agreement leaves open the possIbIlIty of multIple and possIbly conflIctIng, arbItratIOns under the collectIve agreements of the other umon or umons 7 GIVen all of the above, the employer's motIOn IS upheld. It IS my VIew that thIS arbItratIon should be adJourned, and the JunsdIctIOnalIssue should be determIned and resolved through the OLRB process Dated at Toronto thIS 22nd day of February 2005