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Home My WebLink About1987-1942.Algerson et al.88-04-15IN THE tiATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLL&TIVE B.ARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : ------- OPSEU (Algerson er 31.) Foi Tne G:levor: H. Ryder ____ -_-_------- COUIlSf?l : Gowling and Henderson BarrisFers and Solicirors <or The-EmAoyer: C. Slater Senior Counsel Human ReSOUTCeS Secretariat Hearing: ------.- e. .> .i INTERIM AWARD This proceeding arises from fourteen (14) grievances filed by employees in the Information Services Branch of.the Ministry of Government Services. The wording of each ~of the grievances is virtually identical both in terms of the complaint and the settlement desired. The grievance of C. Algerson, which may be treated as representative, reads as follows: "STATEMENT OF GRIEVANCE That the Ministry of Government Services, represented by Eric Steeves, Director, Carmen Debono and Micheline deBruyn, all of .the Information Services Branch, and Maria Wacyk, Director of Hunan Resources, and Peter Van Horne, Manager Staff Relations'at MGS, have contravened Article 7.7’of the Collective Agreement in that they will not,modify the hours of work. SETTLEMENT DESIRED That the compressed work week be introduced in the Information Services Branch, Ministry of Government Services.” At the commencement of the hearing, counsel for the Employer raised a preliminary objection as to the arbitrability of the grievances. Specifically, he argued that panels of this Board in Glenny, 317/83 (Roberts) and in Ropars, 400184 (Jolliffe) had determined, in response to similar objections, that the then equivalent of Article 7.7 did not provide a right to grieve should the Employer be unwilling to enter into an arrangement for a variable work week. This Board was asked to render a ruling on the preliminary objection prior to proceeding with the merits of the case. The award in Se United Steelworkers of America and I Construction Products Inc., Canadian Division, 22 L.A.C..125 (Brown, August, 1970) was relied on insupport of the wisdom-inherent in such an approach. Article 7.7, formerly article 7.6, provides as follows: "It is understood that other arrangements regardiq hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model agreement with respect to cunpressed work week arrangements is set out below....” After considering the submissions of counsel on the preliminary objection and on the bifurcation of the hearing, the Board ruled that it would first proceed to resolve the objection before turning to the merits of the case. We therefore adjourned for this purpose. We have now had the opportunity to more fully consider the Glenny and Ropars awards. it is our opinion that they are dispositive of the issue presently before us in that there is a material similarity between the issues confronted therein and that which has been presented to this Board. The factual circumstances, the wording of the grievances and the issue arising therein are indistinguishable from the case before us. In Glenny, Arbitrator Roberts, in sustaining the preliminary objection, stated: II . . . . however, it seems to us that Article 7.6, when fairly construed, falls far short of obligating management to exercise any discretion. Article 7.6 seems to provide no more than a consensual framework to enable individual locals and Ministries mutually to agree to institute compressed work week arrangements. Article 7.6 does not compel an unwilling party to enter into negotiations regarding the establishment of compressed work weeks. Both parties have to be willing to take advantage of the option that Article 7.6 makes available. -2- 6 It follows from the foregoing characterization of Article 7.6, which we believe is the proper one, that it is not within the jurisdiction of this board to review a complaint of the type which was submitted in the grievance at hand. As already indicated, the canolaint essentially was that the Director of the Legal Branch of the Ministry refused to enter into an agreement, or perhaps to negotiate an agreement, with the local Union regarding canpressed work weeks.. In neither case might there have been any v,iolation by the Employer of any obligation under Article 7.6. The Article merely provides an option; It does not obligate either party to negotiate, let alone reach ,final agreement. Where there is no mutuality, in the sense of a desire on the part of both parties to agree with respect to ccmpressed work weeks, Article 7.tX of the collective agreement does not come into play. The objection to jurisdiction is sustained. We do not have jurisdiction of the subject matter of the grievance. ‘1 (PP. 3-4) This reasoning was accepted by Arbitrator Jolliffe in the Ropars award. After quoting much of the above statement, he concluded: II We fullv aaree with the foreaoina statements. Entirely apart-from any doctrine of-stare decisis or the reasons given in Bateman 2/77 for respecting orevious decisions of this Board. it seems obvious to us that Article 7.6 is purely permissive and creates no obligation in either party; it merely provides an option whereby the parties, "on a local or ministry level" may by mutual agreement arrange Qariable work days or variable work weeks.” Thus it does not give any individual employee the right to complain that some such arrangement has not been unilaterally instituted by the Ministry. Unless the arrangement is mutually agreed upon, no obligation comes into existence." (PP. 4-5) We have not been persuaded that these prior Boards of Arbitration were wrong in their interpretations of the article in question. We are -3- in agreement with their ultimate conclusion that Article 7.7 does not provide forla discretion to~be exercised by the.En@oyer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements? vis & vis a variable work week. In view of our assessment in this regard, the award in Kuyntjes, 513/84 (Verity) is distinguishable in that it 'dealt with an article of the collective .agreement which clearly called for the Employer to exercise.a conferred discretion in the context of 'a request for a special leave. In such an instance, the , Employer was properly found to be subject to certain restrictions in the exercise of; their discretionary decision making. It wouid appear to this Board that the processing of these grievances to arbitration constituted an attempt to relitigate the issue canvassed in Glenny and Ropars. With respect to such a practice, we are inclined to agree with the position adopted in Bateman, 2/n (Prichard) to the following effect: I, ; Tnerefore, we are of the view that this panel of the Board should not accept or advance a wholly contradictory interpretation of the relevant provisions of the coilective agreement in the absence of a demonstration that the interpretation arrived at by an earlier panel is "clearly wrong” (Re RCA Ltd. (19731, 2L.A.C. (2d) 143 (Rayner)). That is to say we are of the conviction that where one panel of this Board has adopted an interpretation of a particular clause in the agreement, the parties can not be permitted and should not be encouraged to relitigate that determination unless the prior award is manifestly erroneous. .Were it otherwise and were this panel, or any other, to simply disregard earlier determinations made by this Board, the parties would be precluded from ever being able to rely upon our decisions with any sense of certainty or finality. To the contrary, such a practice would actually encourage I -4- an unsuccessful party in,one case to seek such further hearings before different panels of this Board in the context of other grievances until such time as it secured a result it considered just and proper. Needless to say this Board does not intend to pursue such a policy. Rather, both canmon sense and the arbitra!. jurisprudence recognize that if issues between the parties are, pursuant to Section 18 of The Crown Employees Collective Bargaining Act, to receiF. a final and blndlng determination, the parties must accept, in the.first instance and subject to judicial review the interpretations placed on their agreement by this Board. In the event those interpretations are unacceptable to either or both of the parties their recourse for relief lies in the negotiatioh of the succeeding collective agreement and not by way of the re-adjudication of the same issue before a different panel of this Board." (pp.~ 9-10) For the reasons aforesaid, this Board has no jurisdiction to proceed with the merits of the case. The grievances are therefore dismissed. Dated at Windsor, Ontario this 15th day of Xgril , 1988. ;-I rL& L’ iJ l7Itk4h h . V. Watters - Vice Chairman ‘L-z- . - . Traves - Member -5-