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HomeMy WebLinkAbout1987-2146.McIntyre.91-04-15i. ,- ONTAR, EMPLOY& DE LA COURONNE WOWNEMPLO”EES OEL’ONTARIO GRIEVANCE . CQMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS IN THE UATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (McIntyre) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: R. J. Roberts Vice-Chairperson S. Hennessy Member D. Montrose Member For the Grievor: For the Employer: Hearing: R. A. Blair Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors S. Patterson Counsel Legal Services Branch .Ministry of Community & Social Services may 5, 1989 AWARD This is a job posting case in which the grievor claims that management improperly defined the area of search, thereby unreasonably excluding him therefrom. For reasons which follow, the grievance is dismissed. At the outset of the hearing, the parties entered into evidence,the following agreed statement of facts: 1. 2. 3. 4. The employee is a member of the Ontario Public Service having at all relevant times been employed at the Sprucedale facility in Simcoe, Ontario. Prior to April 1. 1987, the Sprucedale facility was administered by the Ministry of Community and Social Services. Subsequent to April 1, 1987, the facility was administered by the Ministry of Correctional Services. On March 20, 1987, an advertisement for competition LA- AO-87-03 was issued by the Ministry of Community and Social Services. A copy of this document is attached as Exhibit 1 to this . ..[Award]. The "posting" is for a position as an Income Maintenance Officer at the Simcoe Local Office. The closing date for the competition was April 10, 1987. The area of search for this competition was "London Area Office and Local Offices within the London area, including resource file." Sprucedale was not specifically included in this area of search. Management established the area of search on the basis that the area specified would produce a sufficient number of qualified applicants. Management did not consider the impending transfer of the Sprucedale facility when establishing the area of search. On April 13, 1987, a memo, attached as Exhibit 2 to this . . . [Award], was issued by Mr. W. S. Chmiel, Acting Regional Director in the South West Region. This document was received by the London Area Office, the group responsible for the holding of competition LA-AO-87-03, on April 21, 1987. 2 5. The grievor applied for the above competition and received on April 21, 1987, a letter of rejection which is attached as Exhibit 3 to this . . . [Award]. The grievor was not~granted an interview in this competition on the basis that the Sprucedale facility was not within the area of search. The parties agree that the issue before this Board is whether the grievor should have been considered as within the area of search for competition LA-AO-87-03. Two witnesses were called by the Union to give evidence. The grievor testified that the job posting in question came at a time when Sprucedale, the facility at which he had been employed since October, 1978, was in the process of being transferred from the jurisdiction of the Ministry of Community and Social Services to the Ministry of Corrections. This transfer was, in fact, effected on April 1, 1987. The grievor stated that in the months preceding the transfer, employees at Sprucedale had several misgivings about their prospects for the future. There was fear that the transfer might be a prelude to a closing. Fearing for there future security, several employees -- including the grievor -- sought to obtain the right to transfer to other positions within the Ministry of Community and Social Services. The Chief Steward at Sprucedale at this time, 'Mr. F. Penfold, confirmed that this concern existed among the employees in the period prior to the transfer. The matter, he said, was discussed more than once at joint Union-Management Employee Relations Committee (E.R.C.) meetings. He then referred to the 3 minutes of an E.R.C. meeting which occurred on February 3, 1987. These minutes contained the following entry: ITEM UPDATE ON CORRECTIONS It is understood the COMSOC MB20 has not been passed to date, but unofficially it is tentatively understood that April l/87 will be the transfer date. Roy questioned whether COMSOC would transfer staff if they did not want to go with Corrections. ACTION Carol advised that the Deputies stated, when they spoke to staff, that all competitions would be posted for staff who wished to apply. Jim advised that he has raised this issue and is still awaiting a reply. He also noted that staff need to come forward if they do not wish to go to Corrections. Carol advised she has requested this information from staff and has received no response from staff wishing not to go to Corrections. Mr. Penfold identified the "Carol" referred to above as Ms. Carol Orphanacos, the Superintendent of Sprucedale; "Jim" was identified as Mr. Jim MacDonald, the Human Resources Representative with the Ministry of Community and Social Services. Mr. Penfold stated that at the time of the above exchange, he derived the understanding that as of that date Sprucedale employees would be included in competitions within the Ministry of Community and Social Services. He said, "If I had known that I 4 strict time limits applied, I would have established dates, etc. We all understood it was open at that point in time." When he was questioned on cross-examination about Mr. MacDonald's response that he was still awaiting a reply, Mr. Penfold said that the latter was finding out exactly what further steps the Ministry would be taking regarding transfers at that time. The grievor testified that he became aware of the job posting at issue in this arbitration from a friend who worked in the offices in Simcoe. He said that he mailed his application in and then went to work and asked Mrs. Mary Meadows, the Support Services Manager, why the job was not posted at Sprucedale. A couple of days later, near the end of March, 1987, the grievor stated, the job was posted in the Sprucedale facility: however, the stated area of search remained unchanged. In argument, counsel for the grievor raised two main issues: (1) whether the exclusion of Sprucedale from the area of search in the job posting constituted a forbidden unreasonable, arbitrary and capricious exercise of discretion under the management rights clause, section 19 (1) of the Crown Employees Collection Bargaining Act; and, (2) whether, in any event, management was estopped by the representations made at the E.R.C. meeting of February 3, 1987, from excluding Sprucedale from the area of search and all subsequent competitions. These issues will be dealt with seriatim hereinbelow: 5 (1) Unreasonable, Arbitrary and Capricious Exercise of Discretion under Section 19 (1) of the Crown Employees Collective Barqaining Act: At the outset of his argument upon this point, counsel for the Grievor candidly acknowledged that the jurisprudence of the Grievance Settlement Board touching upon management's right to define the area of search in a job competition was not favourable to his position. See Re Lavigne and the Ministry of Transportation and Communications (1982), G.S.B. #561/81 (Delisle), upheld by the Divisional Court upon judicial review, March 22, 1983; Re Cripps and the Ministry of Correctional Services (1987), G.S.B. #660/86 (Verity), upheld by the Divisional Court upon judicial review, November 29, 1988. In Lavigne, it was held that management's right reasonably to limit the area of search did not derive from any provision of the Collective Agreement but solely from the management rights clause, then section 18 of the Crown Employees Collective Bargaining Act. In Cripps, there was a more "cryptic" conclusion, in the sense that the Divisional Court satisfied itself that the Board 6 considered the reasonableness of the area of search which was defined while at the same time stating, "AS to whether management rights must be exercised reasonably, we say only'that, if there is such a limitation on management's rights, it cannot be implied by anything contained in Article 4 of the Collective Agreement." Unpublished Reasons for Judgment of the Divisional Court, Court File #348/88, at p. 3. It seems likely to us that neither party must have been surprised to receive such a "cryptic" decision from the court in Cripps. For the court was called upon to consider perhaps the most enigmatic management rights clause in existence, and a statutory one at that: what is now section 19 of the Crown Employees Collective Bargaining Act. Section 19 reads as follows: 19(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and (b) merit system, training and development, appraisal land superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of the board. 7 If we were to read section 19 all by itself, in vacua as it were, we would find it to be very troublesome indsed. After broadly reserving exclusively to management virtually every right which might become the subject of collective bargaining including the right of appointment, assignment, classification and even discipline, the section then adds, "And such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board." A prohibitally restrictive provision like this would make for a short collective agreement and few, if any, hearings before this Board. But when section 19 is read in the context of the rest of the Act and the history of collective bargaining between the parties, we see that this is not the case. The Act itself withdraws from the scope of section 19 certain aspects of the "exclusive" rights of management and subjects them to the jurisdiction of the Board. _ Viz section 19 (2) regarding claims of improper classification and section 21 regarding claims of unjust discipline, etc. Moreover, in collective bargaining management has withdrawn from the scope of section 19 many other aspects of its "exclusive" rights, e.g., job posting, selection criteria, transfer rights, etc. To the extent that these were included in the Collective Agreement they became subject to the jurisdiction of this Board. 8 The hard question is what happens, then, to what is left? By this we mean those aspects of the "exclusive" rights of management which were not withdrawn from the scope of section 19 by either of the above processes? Section 19 still says that they "will not be the subject of collective bargaining"-- meaning that the Union cannot force management to negotiate them -- and that they will not “come within the jurisdiction of a board." Prima facie, the jurisdiction of this Board is ousted. Section 19 says so. But it seems that the probable consequences of making the exercise of such rights unreviewable by this Board have been regarded by the Divisional Court as so severe as to cause it to shrink from so holding. What would happen if such rights were exercised arbitrarily, capriciously or in bad faith? Would there be no redress? Perhaps there would be, at least in the courts. Because management rights under section 19 are statutory, management's discretion in exercising them would seem to be subject to judicial review. We refer to the following excerpt from Mullan, Administrative Law (Carswell, 1973), cited in g Kuyntjes and Ministry of Transportation and Communications (1984), G.S.B. #513/84 (Verity), at pp. 11-13: Discretion exists every time a decision-maker deriving his authority from statute has a choice between two or more courses of action. Where the courts will not usually substitute their view as to how such a discretion is to be exercised, they will ensure that the decision-maker uses his authority within certain limits. First, it is necessary that there be an absence of bad faith or fraud in the 9 authority making the decision. In addition, there must be a genuine as opposed to a purported use of discretionary power. This means that the decision-maker charged with the taking of the decision should personally exercise the authority conferred upon him and should neither act under dictation from some person not charged with the exercise of the discretion nor delegate the discretionary power to another. Additionally, the discretion should be exercised in relation to each individual matter coming before the decision-maker and should not be automatically determined or even fettered by reason of a rigid policy laid down in advance. Of course, the laying down of general guidelines and principles for future action by a statutory decision- maker is not objectionable so long as he still considers the merits of each individual matter for decision in the light of those guidelines and principles and is prepared to admit of exceptions to the general policy in appropriate cases. Continuing in para. 108 the learned author states: Beyond the requirements of good faith and a genuine exercise of discretionary powers, the courts do have a further role in ensuring that the decision-making authority keeps within the proper scope of the empowering statute while performing his functions. Discretionary power must not be used for improper purpose. Extraneous factors or irrelevant considerations must not be taken into account. Conversely, all relevant factors must be taken into account. And again in para. 109: Even if the decision-maker in question takes into account all relevant factors and does not take into account any extraneous considerations, he may still be subject to review on the basis that the decision or conclusion ultimately reached was so unreasonable that no reasonable authority could ever have come to it. The ability of the courts to review decisions on this basis of unreasonableness is not, however, frequently utilized since the courts generally express reluctance in interfering with the actual merits of discretionary decisions. . . . Yet even if, upon a proper interpretation of section 19 of the Act, the Union were able to pursue redress in the courts for the arbitrary or capricious exercise of a "pure " management right, i.e., one not affected by any provision of the Collective 10 Agreement, this would hardly be regarded as a welcome solution to the dilemma presented by the statute. The grievance process would simply become fraught with another complexity and the added risk of losing not on the merits, but by virtue of choosing the wrong forum. So in cases such as the one at hand, the Divisional Court shrinks from so holding and, as in Cripps, attempt to make a reasonable compromise. As a Board, we are bound to apply the ratio of the Divisional Court in Cripps, and we perceive that ratio to be that in a case such as the one at hand we should review the area of search in order to determine whether its definition constituted a reasonable exercise of management rights. We find that it did. As indicated in the agreed statement of facts, the area of search in the present competition was not drawn with the idea in mind of discriminating against. -potential applicants from the Sprucedale facility. The impending transfer of Sprucedala was not even considered. The area of search was established solely on the basis that the area spedified would produce a sufficient number of qualified applicants. Moreover, the evidence of what went on at the February 3, 1987 E.R.C. meeting is not strong enough to convince the Board that the Ministry intended to bind itself from that day forward 11. to make available to Sprucedale employees all subsequent competitions in the Southwest Region of the Ministry. The minutes of the E.R.C. meeting were ambiguous with respect to time and Region. There was simply a hearsay report from Ms. Orphanacos that the Deputies stated "that all competitions would be posted for staff who wished to apply." There was no indication as to timing. There was no indication as to whether the reference was to all competitions in the Ministry or simply those in the Southwestern Region. The statement from Mr. MacDonald which followed that of Ms. Orphanacos added further uncertainty. Be said that he was "still awaiting a reply" regarding this issue. We do not doubt that Mr. Penfold subjectively uhderstood that a commitment was made at that time, but on an objective review of the evidence, there is simply not enough to permit the Board to reach the same conclusion. Finally, there is the subsequent letter of April 13, 1987 from Mr. Chmiel : the Acting Regional Director of the Southwest Region, which apparently was the first written commitment on the part of the Ministry. This letter indicated that the practice of making all competitions in the Southwest Region available to Sprucedale employees would not commence until April 1, 1987. The job posting in question was posted 11 days before this date, on March 20, 1987. We accept that from this date forward, it would have been unreasonable for the Ministry to attempt to change the area of search. If on April 1, the Ministry had attempted to do ~12 so, it would have faced the substantial likelihood of generating grievances from disappointed applicants in the original area of search. For the above reasons, we conclude that management exercised its discretion in a reasonable manner in defining the area of search in the circumstances of this case. (2) Estoppel: Neither counsel devoted much of his argument to the question of estoppel. Counsel for the grievor rightly acknowledged that the estoppel argument turned upon the significance attributed by the Board to the statements of the representatives of the Ministry at the February 3 E.R.C. meeting. If these representations were regarded as a definite promise upon which the Ministry intended the Union to rely, and the Union did so rely. it was submitted, then the Ministry would be estopped from resiling from its commitment. As a result, it was submitted , the competition at hand would have to be rerun. As we have already found, the statements made on behalf of the Ministry at the E.R.C. meeting are not strong enough to support the inference that as of that date the Ministry definitely promised to open to Sprucedale employees all subsequent competitions. At most, the statements were mere 13 representations and not in the nature of definite promises as to future action. Accordingly, they cannot form the basis for an estoppel. The grievance is dismissed. DATED at Toronto, Ontario, this 15th day of April 19 91. ~'1 Dissent" (dissent attached) S. Hennessy Member D. Montrose. 1 \ - Member (2146/87 McIntyre) DISSENT Respectfully, I must disagree with the conclusions reached by the majority of this panel. In my view the exclusion of Sprucedale from the area of search constituted an unreasonable exercise of management rights in light of the February 3, 1987 E.R.C. meeting (Exhibit 6) and the position taken by the Ministry in Mr. Chmiel's April 13, 1987 letter (.Exhibit 2 number 2). I agree that Mr. Penfold, Uunderstood that a commitment was made at that time" and the lack of any other direct contradictory evidence on that point confirms my view that such was the Ministry's position at that time. If I am wrong in my conclusion about the "reasonableness" of the area of search I would, in the alternative, have found that the Ministry was estopped from changing the position which was communicated to Mr. Penfold. This conclusion is based on the above mentioned "Exhibits" plus the posting of competition LA-AO-87-03 in Sprucedale after the inquiry by the grievor as well as the only direct evidence of the E.R.C. meeting (Roy Penfold). In conclusion then I would, for the above mentioned reasons, have ordered that the grievor be granted an interview for the position involved in job competition LA-AO-87-03 as requested in Exhibit 1. I would also have reserved jurisdiction to deal with any other matters arising out of this decision.