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HomeMy WebLinkAbout2006-1204.Jones et al.10-04-13 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2006-1204 UNION#2006-0585-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jones et al) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORERandi H. Abramsky Vice-Chair FOR THE UNIONSheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYEROmar Shahab Ministry of Government Services Counsel HEARINGOctober 13, 2009, January 26, 2010 and March 31, 2010. SUBMISSIONS April 6 and April 9, 2010. - 2 - Decision [1]The Ministry has raised a preliminary objection to the Board?s jurisdiction to decide this matter. Specifically, the Ministry asserts that the grievance alleges a ?free standing? violation of Article 2, Management Rights, over which the Board lacks jurisdiction. In addition, it asserts that the Union?s particulars, which allege a violation of Article 9, Health and Safety, and Article 21.1, Discipline and Dismissal, constitute an improper amendment or expansion of the grievance. The Union opposes this motion. FACTS [2]This arbitration involves a group grievance filed by nine Employment Standard Officer 1?s (ESO 1s), employed in the Central Region Claims Management Centre, located in Downsview, Ontario. The grievance, which was filed on June 9, 2006, is a six paragraph statement. In substance, it alleges that the imposition of a quota of 20 files minimum per week constituted an ?unfair workload? and ?has no basis for justification as a performance measure and cannot be sustained over a prolonged period of time?? No specific provisions of the collective agreement are cited. The remedy sought is ?no quota.? Specifically, the grievance reads as follows: Subject: ESO 1s Unfair Workload in the Claims Management Centre (CMC) With respect to the above, we have been told by management that the combined number of triaged and closed files for the current year is 20 files minimum per week, per ESO 1. This amounts to roughly 850 to 900 files per year, per ESO 1 while the performance measure for other ESO 1s in the province is 175. While closing files is and has been an important function of our job, we understand that a greater emphasis has been placed on the triaging of files in the CMC so that our unit can feed to the needs of ESO2s in central region. We have also been asked to make contact with employers on all files, except for those identified as priority files, and achieve resolution within limited time frames whenever possible. In view of the above, we consider that we are fully deployed in the early resolution of claims from the moment we make contact with employers, contrary to management?s assertion that we are not, as recently conveyed to us. And why shouldn?t we? Some of us have been carrying out the duties of employment - 3 - standards officers for years and the closing of files has always been a core component of our job description. While the performance measure of 20 closed/triaged files minimum per week per ESO 1 may be achieved on rare occasions, it has no basis for justification as a performance measure and cannot be sustain over a prolonged period of time, let alone the entire year given the very recent history of the CMC. Furthermore, it is simply logical that, the greater number of file closures in a given week, the less number of triaged files for the field in that week. In other words, making contact with employers in the early stage of the process, as we have been asked to do, does not resolve claims, but inevitably results in closures at the expense (for lack of a better work) of files which would otherwise have been triaged to ESO 2s, had no contact been made with employers. It is somewhat ironic that our success rate in closing files would negatively impact on the number of files triaged to the field every week, but by achieving the former, we have simply been following the rules as laid out by management form the outset, and are prepared to continue to do so to the best of our abilities and skills. We cannot however, commit to consistently process 20 files per week minimum in the foreseeable future, given the shortcomings and flaws of the system currently implemented in the CMC. Prepared on behalf of ESO 1s in the CMC in Toronto on June 6, 2006. [3]The grievance was filed in response to the Ministry?s imposition of a minimum of 20 files per week requirement on the ESO 1 employees in the Claims Management Centre. Employees were advised of the quota at a meeting with management on May 15, 2006. Shortly thereafter, objections to the quota were raised. [4]The quota was imposed as part of a larger reorganization by the Ministry in relation to the handling of claims made under the Employment Standards Act. Local offices were closed and employees were relocated to Downsview, which dramatically increased the commute time for some employees. Claims processing and claims management were also changed, along with the role of the ESO 1?s. No longer were the ESO 1?s required to investigate and close files, although that still occurred. Now they were expected to ?triage? files ? prepare them for an ESO 2 ? rather than investigate and close them. According to Paul Evans, who became Acting Manager at Downsview in June 2006, shortly after the quota was announced, the quota ?set a reasonable performance target in the context of other changes to the program.? - 4 - [5]At the same time, the office at Downsview was undergoing renovations. A new computer system and program had been developed. New claim forms were being used. Steve Montgomery, then Acting Program Manager, testified that there was a ?perfect storm of changes? that took place at the time, and the quota was a part of that. [6]On May 29, 2006, a number of the ESO 1?s met with management about the quota. At this meeting, the employees presented, in writing, a list entitled ?CMC Staff Concerns re Measurables.? This meeting, along with an email dated June 1, 2006, formed Step 1 of the grievance procedure. The list outlines numerous issues that the employees had with the quota and the changes that were occurring. The complaints included ?unfair workload? ? asserting that the quota was ?unattainable? and that the ?[r]esultant pressure means we can?t focus and are making more errors, like assembly line work? and that ?[t]here is more stress and errors?? It asserted that the performance requirement imposed on them was unfair compared to the requirements on ESO 2?s and other ESO 1?s in other regions. It also specifically stated that ?Stress Levels Higher Now?. The final point of that section reads as follows: Nick [Cornacchia, the Manager] got critically ill here and has been off since last Fall. Then we had to work for weeks here while renovations were ongoing around us, some days packing & unpacking, then re-packing & unpacking again. With the recent extreme pressure to get more files done for the ESO 2?s, some staff did not fully unpack all their stuff ? now Jennie got critically hurt having fallen over a box. We?ve got 2 people who?ve had critical illness/injuries from working in this unit & we don?t want it to happen to anyone else. Yet now we get a 2-week time limit to sign a contract that is unworkable? We feel so unappreciated & stressed, and we have worked so hard with no recognition for what we have achieved! The June 1, 2006 email further stated that the group believed ?that is unreasonable and arbitrary to allocate a numeric value to the files we work on.? [7]Acting Manager Evans responded by email on June 2, 2006, and the grievance, dated June 9, 2006 followed. It was stipulated by the parties that health and safety issues were not discussed at the Stage 2 meeting. [8]In its particulars which were sent to the Employer on Feb. 3, 2009, the Union alleged, among other things, that ?the quota the employer implemented in 2006 (i.e., the twenty files per - 5 - week) is an unreasonable and unfair exercise of management rights that also violated Article 9 of the collective agreement, (Health and Safety provisions) as well as the Occupational Health and Safety Act.? It further asserted that ?it is the Union?s position that the employer exercised its management rights in a way that violated Article 21.1 of the collective agreement? and that ?its actions in implementing an unattainable quota, then refusing merit increases, putting certain employees on a performance program and making veiled threats to have them replaced amounts to unjust discipline.? These latter actions, according to the particulars, took place after the grievance was filed. To date, none of the grievors have been formally disciplined in regard to the quota. There is some dispute about merit increases. [9]Mr. Evans testified that he did not understand health and safety issues to be part of the grievance. The issue, he believed, was the grievors? view that the quota was not reasonable or attainable. He acknowledged that there were complaints by staff, apart from the grievance meetings, about stress regarding their commute and other changes that were occurring, but not specifically in relation to the quota. He agreed, however, on cross-examination, that the May 29, 2006 memo at Stage 1, could be seen as an attempt to relate the illness/injury of the two employees to the workload in the office, but he did not understand that the two employee?s illness or injury had any connection to the quota. He also acknowledged that the written grievance filed on June 9, 2006 raised ?the same issues? identified at the Stage 1 meeting. In his view, the Union, though its particulars, revised the grievance to a health and safety grievance. He did not see it that way at the time. If he had, he would have asked for medical documentation. [10]Ivy Jones, one of the grievors, testified that health and safety issues created by the quota were part of the grievance from the outset, although she acknowledged that the written grievance did not include the relevant collective agreement provision or mention the Occupational Health & Safety Act. She testified that she was not clear about what was required to be on the grievance form. She acknowledged, however, that she had been a steward since 1992 and had, on occasion, assisted other employees in writing grievances. She also testified that an OPSEU Staff Representative reviewed the grievance before it was filed and according to Ms. Jones, ?this was how she said we should write it.? - 6 - [11]Brenda Wesley, another grievor, also testified that she repeatedly advised management at the time of the grievance and after regarding the stress that she was under as a result of the changes implemented by the employer ? the commute, the changes in processing claims and the quota. She stated that she became ill in 2006, with chronic sinus, throat and lung infections. In 2007, she had pneumonia. In 2008, she became severely anemic. She advised her managers that she could not handle the requirements and had a ?bit of a breakdown in April 2008.? [12]Since 2006, the Ministry has twice lowered the quota. It was initially lowered to 15 per week, and then to 12.5 per week. There was no objection regarding the delay in processing this grievance to arbitration. It was referred to arbitration on August 2006. DECISION [13]The preliminary objections raised by the Employer are intertwined. It asserts that the grievance, as written, raises a ?free standing? violation of Article 2, Management Rights, over which the Board has repeatedly held it has no jurisdiction. It further asserts that the Union?s belatedly raising an allegation of Article 9, Health and Safety, constitutes an improper change in grounds. It contends that this is also true in regard to the Union?s allegation that the Employer violated Article 21.1, Discipline and Dismissal. [14]The two objections are intertwined because if the Employer is correct that the Union?s allegations concerning Article 9 and 21.1 are an improper change in grounds, all that is left is a ?free standing? violation of Article 2 and the Employer?s preliminary objection must succeed. The Board has repeatedly and consistently held it has no ?free standing? jurisdiction to review the exercise of management rights for reasonableness, and the ?Board?s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement.? OPSEU (Dobroff et al.) and Ministry of the Environment, GSB No. 2003-0905 et al., at p. 25 (2008) (Dissanayake); OPSEU (Ashley et al.) and Ministry of Community, Family and Children?s Services), GSB No. 2001-1700 (2003)(Abramsky); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2002-1151(2007) (Abramsky). - 7 - [15]Therefore, the pivotal issue in this case is whether the Union?s assertion that the quota imposed by the Employer violates Article 9 or Article 21.1 of the collective agreement constitutes an improper change in grounds or expansion of the grievance. If there has been no improper change in grounds, and Article 9 or 21.1 may properly be considered, there is no ?free standing? violation of Article 2, and the Board would have jurisdiction to hear this matter. [16]The relevant legal principles are well-established. The starting point is Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America. Local 2486 (1975), 8 O.R. (2d) 103 (Ont. C.A.), at p. 108: No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather than on the merits as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch. ? Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions. ? [17]This quote was recently relied upon by the Supreme Court of Canada in Re Parry Sound (District) Social Services Administration Board and OPSEU, Local 324 [2003] 2 S.C.R. 157 (SCC). In that case, the Employer submitted that the Union?s failure to allege a violation of the Employment Standards Act in the grievance precluded it from subsequently raising it as a potential basis of liability. The collective agreement required a discharge grievance to set out the sections of the collective agreement that were alleged to have been violated. The grievance, instead, alleged that the discharge was ?without justification? and that the decision was ?arbitrary, discriminatory, in bad faith and unfair.? The Court held, citing Re Blouin Drywall Contractors Ltd., supra, at par. 68, that there is a ?general consensus among arbitrators that, to the greatest extent possible, a grievance should not be won or lost on the technicality of form, but on its merits.? The Court determined, at par. 70, that the ?employer was aware from the outset that the essence of the grievance was that Ms. O?Brien was discharged as a consequence of taking maternity leave.? At par. 71, the Court concluded that ?[c]onstruing [the grievor?s] allegation that the decision to discharge her was ?arbitrary, discriminatory, in bad faith and unfair? as sufficiently broad to encompass the allegation that she was discharged because she took maternity leave ensures that the ?real complaint? is dealt with and that the matter that gave rise to the grievance is adequately addressed.? - 8 - [18]Also significant is the test articulated in Re Electrohome Ltd. and I.B.E.W., Local 2345 (1984), 16 L.A.C. (3d) 78 (Raynor), at p. 82: If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with the nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance. [19]Thus, in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance or is essentially a new grievance. If the issue was part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration?s jurisdiction. Conversely, if the matter is truly a different, new issue, the board will decline jurisdiction.? In Re Greater Sudbury Hydro Plus Inc. and CUPE, Local 4705 (Armstrong Grievance) (2003), 121 th L.A.C. (4) 193 (Dissanayake), Arbitrator Dissanayake determined that ?[t]o include an issue through a ?liberal reading? I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance.? [20]What makes this case somewhat unique is the fact that while the written grievance does not mention health issues, or stress caused by the quota ? nor were they discussed at Stage 2, those issues were arguably raised at Stage 1 of the grievance. Further, the written grievance does not refer to Article 9 or OHSA, stress or health. It simply states that the quota is unfair. Indeed, the grievance does not refer to any specific article of the collective agreement. [21]The starting point in terms of the Board?s jurisdiction is the written grievance. Stage One is the informal complaint stage, which is a meeting with the grievors? supervisor to discuss the complaint. That begins the grievance procedure. But beginning at Stage Two, ?[i]f the complaint or difference is not satisfactorily resolved under Stage One, the employer may file a grievance, in writing?? Thus, after Stage Two, it is the written grievance which governs and must be considered. - 9 - [22]The case law involving allegations that a grievance has been improperly expanded or changed look to the written grievance to determine if the issue may reasonably be construed to be encompassed by it. Re OPSEU (Krajnovic) and Ministry of Natural Resources, GSB No. 2049/90 (1991)(Low)(?we must determine the nature and ambit of the grievance itself??); Re th Canac Kitchens Ltd., and C.J.A. Local 1072 (1996), 58 L.A.C. (4) 222 (Abramsky)(?there must be a tie to the original grievance??); Re Greater Sudbury Hydro Plus Inc. and C.U.P.E., Local th 4705 (Armstrong) (2003), 121 L.A.C. (4) 193 (Dissanayake)(is the issue ?inherent even on a liberal reading of the grievance, or it is a new issue not inherent in the grievance filed.?);Re OPSEU (Marinelli) and Ministry of Natural Resources, GSB No. 1978/89(1990)(Kirkwood) (?the grievance still must determine the scope of the issues that are to be brought before the Board.?) [23]InRe OPSEU (D. Houghton) and Ministry of Correctional Services, GSB No. 0771/88 (1989)(Knopf), the grievance, as framed, objected to ?the practice of being ordered to perform the duties of Correctional Staff. Specifically, the grievor, a Maintenance Mechanic at a correctional facility, was being required to frisk-search inmates when there were not enough other staff available. The Employer moved to dismiss the grievance, contending that the Board did not have jurisdiction to review managerial assignments. The Union countered that the assignment involved a health and safety issue because the grievor had not received the type of training that correctional officers receive. The Employer asserted that the Union was altering the substance of the grievance to make it arbitrable. The Board dismissed the grievance. It stated at pp. 4-5: It is the conclusion of the Board that the essence or the substance of the grievance that the Union wishes to pursue is a complaint dealing with health and safety. ? However, the wording of the grievance and the processing of the grievance at Stages 1 and 2 of the grievance process did not reveal this concern to management. ? It is the opinion of this panel that Steps 1 and 2 of the grievance process are extremely important for the proper resolution of complaints. This grievance, as processed, could not give effect to that mechanism of dispute resolution because the substance of the complaint was not revealed to the Employer at the crucial early stages. ? [B]ecause it was not raised initially, and because we have no jurisdiction to amend or alter the grievance, we must deal with the grievance as it was framed. As a pure assignment issue, we lack the jurisdiction to deal with the matter and there these proceedings are terminated. [24]Upon first glance, some of the language used in Re OPSEU (Houghton), supra, may be construed to support the contention that a health issue arising from the quota was raised at Stage One, and therefore the Employer was, in fact, on notice that there was a health and safety issue. - 10 - A similar argument may be raised from the Board?s decision in Re OPSEU (Fung/Anand) and Ministry of Revenue, GSB No. 1798/89 (1991)(Stewart). In that case, in a competition grievance, the Union sought to claim that the Employer?s emphasis on the interview was discriminatory because it adversely impacted employees whose first language and culture were not English. The Employer argued that this was an improper change and expansion of the grievance. The Board rejected that argument, stating at p. 16: ?Unlike the circumstances in the decisions referred to us where the Board found that the grievance had been expanded, we cannot conclude that this allegation is one that could not be contemplated by the language of the grievance and that what is brought forward to be litigated at arbitration is a fundamentally different grievance.? The Board also rejected the Employer?s assertion that the issue was not properly before the Board because although it was raised at Stage One it was not raised at Stage Two. The Board determined at p. 17 that it was ?not required for all allegations to be raised at all levels of the grievance procedure in order for allegation to be raised at the hearing.? As the Board concluded: Where the allegation is one that can fall within the general language of the grievance, where it was raised at the stage one meeting, where there was no specific undertaking made subsequently in the grievance procedure that the allegation was not being pursued and where counsel for the Union advised counsel for the Employer that this matter was being pursued in advance of the hearing we cannot conclude that the Union should be precluded from raising this matter at the hearing. [25]When considering the comments of the Board in Re OPSEU (Houghton), supra, as well as the decision of the Board in Re OPSEU (Fung/Anand), supra, however, it is important to note that the grievance procedure in the collective agreement then was different then than it is today or was in 2006. At that time, an employee would first discuss his or her complaint with their supervisor, but then at ?Stage One?, the employee was to file a written grievance. Stage Two occurred if the grievance was not resolved and the employee submitted it to the Deputy Minister or his designee. Consequently, when the Board refers to Stage One and Stage Two, both refer to discussions about a written grievance ? not what was discussed when the complaint, pre-written grievance, was first raised. [26]InRe OPSEU (Warden) and Ministry of Correctional Services, GSB No. 1152/97(1988) (Dissanayake), the grievance asserted that due to staff shortages, the grievor was expected to work more than one post during a shift, and that being held responsible for two or more work - 11 - areas was ?causing me undue stress.? The Employer raised a preliminary objection because the grievance did not allege a violation of the collective agreement over which the Board had jurisdiction. The Union argued that the grievance was based on Article 18.1 of the collective agreement, Health and Safety. Based on the facts of that case, the Board dismissed the grievance. [27]First the Board ruled that, ?it is not essential that the grievance refer specifically to a particular article in the collective agreement or provision in the Act before it becomes arbitrable.? Nor was the Board concerned because ?the grievance did not use the phrase ?health and safety? and did not articulate a health and safety issue precisely.? Following the principles set out in Re Blouin Drywall Contractors, supra, the Board stated that it ?will not refuse to accept a grievance merely because of technical defects or imprecise language. All that is required is that the true nature of grievance must be communicated to the employer.? The Board continued that ?[i]f the employer was made aware that the concern was with regard to the grievor?s health and safety the employer cannot be heard to complain about the wording of the grievance.? [28]Based on the facts, the Board determined that a health and safety concern was not raised by the grievor until the arbitration hearing, nor was it raised at any time during the grievance procedure. It determined at p.4 that a ?plain reading of the grievance? was that the grievor found it unduly stressful to have to work more than one post during a tour of duty, and that was ?not indicative of a health and safety issue at all.? [29]In the instant case, it is arguable that the grievors did raise a health issue as a result of the quota ? as well as the other changes that were occurring at the time at Stage 1 meeting. They repeatedly referred to the stress caused by the quota and then raised health concerns. The May 29, 2006 document states: ?We?ve got 2 people who?ve had critical illness/injuries from working in this unit and we don?t want it to happen to anyone else.? Based on Re OPSEU (Warden), supra, the fact that they did not specifically refer to ?health and safety? or cite to Article 9 or OHSA is not determinative. - 12 - [30]But when the grievance was actually written and presented ? there was nothing about health, stress, or anything that might reasonably be construed to include a health and safety issue, or that would have put the Employer on notice that that was the ?true nature? of the grievance. Re OPSEU (Warden), supra at p. 3. As stated by Vice-Chair Dissanayake in Re Greater Sudbury Hydro Plus Inc., supra at par. 17: ?To include an issue through a ?liberal reading? I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance.? He was unable reach that conclusion there, and regrettably, I am unable to reach that conclusion here as well. Even on the most liberal and generous reading of the grievance, it cannot be read to include a health and safety concern arising out of the quota. [31]The Union asserts that if in the Re OPSEU (Fung/Anand) grievance, the competition grievance was broad enough to include a discrimination claim, the health and safety issue that the Union has raised in regard to the Employer?s quota falls easily within the general language of the grievance. It submits that the grievance says, in essence, ?the employer?s quota is a problem? and therefore the health and safety issue is one that could reasonably be contemplated by the language of the grievance. With respect, I cannot agree. In Re OPSEU (Fung/Anand), supra at p. 16, the Board stated that allegations of procedural flaws, such as inappropriate reliance on oral interviews, was ?not an usual kind of allegation to arise in such a grievance? and therefore the Board was unable to conclude ?that this allegation is one that could not be contemplated by the language of the grievance? or was a ?fundamentally different grievance.? In this case, the grievance asserts that the quota was ?unfair? for a number of reasons ? unfair as compared to other ESO 1s, unfair as compared to ESO 2?s, an unfair change in their role and responsibility, and unworkable - but it raises no contentions that relate to health and safety issues or could reasonably be viewed as encompassing such claims. [32]In so ruling, I am aware that grievances are often written by employees unfamiliar with the grievance arbitration process, which is one of the reasons why a ?liberal reading? of the grievance is required. But in this case, the grievance was reviewed by an OPSEU Staff Representative. As a result, it cannot be said that the failure to raise the health and safety issue was caused by the inexperience of the grievors. Re Reena Foundation and OPSEU, Local 597 - 13 - th (Gibson)(1996), 62 L.A.C. (4) 93 (Palmer). I would also note that one of the grievors, Ms. Jones, was a long-time Union steward. [33]I also believe that allowing an issue to proceed that was raised at Stage 1, before the grievance was reduced to writing, but not raised in the written grievance or thereafter could potentially lead to significant disputes about the scope of a grievance. Many issues are raised at Stage 1 but do not proceed thereafter, and that was true in this case as well. To allow a written grievance to include an issue raised only at Stage 1which does not, and could not reasonably be construed to include that issue, would lead to uncertainty and confusion and undermine the parties? ability to resolve their disputes. [34]Accordingly, based on the wording of the grievance and the Step 2 discussion, the citation to Article 9 and the Occupational Health and safety Act (OHSA) in the Union?s particulars goes beyond a new legal argument ? and represents a change in the substance of the grievance, or, in effect, the substitution of a new grievance for the original one. [35]The Union?s reliance on Article 21.1 of the collective agreement also cannot be considered to be inherent in the original grievance. It was not included in any way in the grievance, nor raised either at Stage 1 or 2. It is a new issue. [36]As noted at the outset, if the Employer?s objection to the Union?s reliance on Article 9 and Article 21 succeeded, then all that is left is allegation that the quota imposed was an unreasonable exercise of management?s rights. As determined in Re OPSEU (Dobroff), supra, the Board has no jurisdiction over such claims. [37]I would also note that the quotas, though in a reduced form, still exist and if health and safety issues have arisen from the quota, the Union may file a new grievance which asserts that claim. Re OPSEU (Reed) and Ministry of Correctional Services, GSB No. 224/88 (1988)(Kates). In the meantime, there is nothing to prevent the parties from exploring that issue even outside the grievance process. - 14 - CONCLUSION: [38]The Employer?s preliminary motions are granted. The grievance, therefore, must be dismissed. th Dated at Toronto this 13 day of April 2010. Randi H. Abramsky, Vice-Chair