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HomeMy WebLinkAbout1988-1154.Bouchard et al.90-01-29 ONTARIO EMPLOYES DE L4 COURONNE CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, M5G 1Z8-SUITE 2100 TELEPHONE/TktPHONE i 180,RUE DUNDAS OUEST, TORONTO, (ONTARIO)M5G 1Z8-BUREAU 2700 (41 ' 88 IN THE MATTER OF AN ARBITRATION Under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT s j Before THE GRIEVANCE SETTLEMENT BOARD if Between:. OPSEU (Bouchard et al ) Grievor — and — The Crown in Right of Ontario (Ministry of the Environment) Employer ~ Before: N.V. Dissanayake vice—Chairperson G. Nabi Member E. Orsini Member For the Grievor: B. Hanson Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: M. Farso-n Counsel Fraser, Beatty Barristers & Solicitors Hearings: March 20 , 1989 May 29 , 1989 August 18 , 1989 , ` �h �. — 1 - •� � a s 1 ,, �� I �, `� �- �- ' `� '.G f \'1� � ` U } !19( fi G `:.II R '1 �� i I ' I 4 'l ji • Y�1 !� �k1� _ j -11 � , h i II i� F lil � i 1� 11 �I V !4 t �,I \� 2 AWARD These are eight grievances dated June 28 , 1988 wherein the grievors allege that the Employer has denied them participation in, the after hours Emergency Response Programme ("ERP") . Sind the early 1970's the Ministry has had a contingency plan to deal with environmental spills. However, because the Ministry viewed the existing procedures to be inefficient, in March 1986 a new procedure was. introduced to deal with after hours spills and other emergencies. Under this plan employee duty rosters were established on a voluntary basis. When an emergency occurred outside the regular work hours, employees were to be called in from this r duty roster. Those, included in the roster stood to benefit financially because for any time spent on the ERP after hours they were remunerated on the basis of on-call and stand-by rates. The Ministry's ultimate decision on the composition of the duty roster gave preference to abatement staff. The grievors are all members of the technical support staff complement. Technical support employees were included in the roster only if sufficient numbers of abatement employees did not volunteer for the programme. Even then, technical support employees were required to possess certain qualifications, 3 mainly relating to safety, before they were considered eligible. The Counsel for the Employer raised two preliminary objections. First, that the grievances are untimely and second, that in any event these grievances are not arbitrable because the subject matter dealt with comes within "organization" and "assignment", which are declared by section 18 (1) of the Crown Employees Collective Bargaining Act to be exclusive functions of the Employer, and as such not within this Board's jurisdiction. The Union concedes that the ERP was first introduced in March 1986 and that the grievances were not filed until June 1 28, 1988. . Nevertheless, it is submitted that' the Employer is estopped from relying on the mandatory time limits in the collective agreement for filing of grievances. The Union also agrees that there is no provision in the applicable collective agreement, which grants to the grievors a right to participate in the ERP. However, the Union submits that the Ministry had made a commitment to permit technical. support staff participation and that the doctrine of estoppel precludes it from subsequently reneging. The Union seeks a direction that the grievlrs be included in the ERP roster for a period of one year and for compensation. - i i 4 The parties agreed that the .evidence relating to the preliminary issues and the merits of the grievance overlapped. Accordingly it was agreed that evidence will be received on all of the issues, before hearing submissions on the preliminary issues. - The Board will first deal with the objection to its jurisdiction based on section 18 (1) , because if this objection is upheld the other issues become moot. The following provisions of the Act were relied on by the parties. 7. Upon being granted representation rights, the employee organization is authorized to bargain with the employer on terms and conditions of employment, except as to matters that are exclusively the function of the employer under subsection 18 (1) , and, without limiting the generality of the foregoing, including rates of remuneration, hours of work, overtime and other premium allowance for work performed, the mileage rate payable . to an employee for miles travelled when he is required to use his own automobile on the employer's business, . benefits pertaining to time not worked by employees including paid holidays, paid vacations, group life insurance, health insurance and long-term income protection insurance, promotions, demotions, transfers, lay-offs or reappointments of employees, the procedures applicable to the processing of grievances, the classification and job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office or political activities of training and development. 18 (1) 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, assignment, discipline, dismissal, suspension, work methods and i 5 procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and 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 a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under. section 19. 19 (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. t t ' 6 I Article 27 . 16 of the collective agreement provides: 26, 16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. On the issue of arbitrability Counsel for the Union submits that the subject matter of these grievances do not fall within section 18 (1) . He relies on section 7 . He submits that even if the participation in the ERP is within section 18 (1) as claimed by the Employer, it also comes within the phrase "hours of work" in section 7 , which is declared to be a term of condition of employment which is bargainable. It is counsel's contention that the issue of participation in the ERP is primarily an issue relating to hours of work and, if at all, only incidentally a matter of organization and assignment. The Board in OLBEU AND L.L.B.O (Samuels) 2499/86 was called upon to deal with a similar issue. The following excerpt- from the Board's decision is very instructive on the application of section 7 and 18 (1) of the Act: The issue is whether or not the use of a vehicle and the rates to be paid for use of an employee's personal vehicle are matters of "management" [that is, within the exclusive jurisdiction of management, pursuant to Article 18 (1) ) or matters of "terms and conditions of employment" (which_ can be bargained, pursuant to Article 7) . a 7 In our view, the answer is not straight- forward. In some cases, these matters would be simply "terms and conditions of employment" . For example, suppose that the Employer is indifferent in operational terms to whether the employee uses -a Ministry vehicle or a personal vehicle, and the parties have agreed that the compensation package for the employees would consist of an hourly rate, plus a reasonable mileage rate for use of personal vehicles. For various reasons, this compensation package may be more desirable to the employees than simply receiving an hourly rate. In these circumstances, we would say that an agreement between the parties covering the use of personal vehicles falls within Section 7 of the Act, and is not precluded by Section 18 (1) . Generally, all matter of dollars and cents which relate . to compensation for employees can be bargained between the parties. These matters are "terms and conditions of employment" . The Employer may, if it wishes, agree to give employees the right to use their own vehicles andto pay a mileage rate for this use. . This would be one of the matters concerning compensation for the employees. Of course, the Employer may decide not to give these rights under the collective agreement. But these are matters over which the Employer can bargain, and these rights if given will be part of the "terms and conditions of employment" as. envisaged by Section 7 of the Act. i On the other hand, there may be a legitimate "management" concern related to the use of vehicles [in the sense meant in Section 18 (1) ] . For example, if the Employer wants an employee to travel in a vehicle marked specially as a Ministry vehicle (with special colors and markings) , because it is necessary to maintain the Ministry's image, or if the Employer wants an employee to use a Ministry vehicle because - of concerns about insurance and public liability, this -would be , a matter of "management" and would be within the exclusive jurisdiction of the Employer. In these circumstances, the use of vehicles would fall within Section 18 (1) and the Employer could not tie its hands by an agreement with the Union which interfered with the Employer's power to determine this use of vehicles. I I - 8 With respect to an agreement 'concerning mileage rates to be paid for authorized use of personal" vehicles,this would always be a matter of "terms and conditions of employment" under Section 7 of the Act. Once the Employer has made the decision to authorize the use of personal vehicles, the compensation to be paid to employees for this use is a matter of "terms and conditions of employment" . In that case, since the Ministry had exercised its exclusive management rights to authorize the use of personal vehicles, the_ Board held that the issue of mileage rates for the use of personal vehicles was a term or condition of employment, which was negotiable under section 7 . The situation here is just the reverse. The Employer has established a procedure to meet its needs relating to after hours emergency response. It had then to decide which employees will' be utilized. It has concluded that abatement employees are most - suitable and qualified to perform that -work, and that technical support employees will only be utilized as a second resort. The' Employer has further determined that if technical support employees are to be included in the duty. roster they must obtain certain qualifications. In our view, these decisions made by the Employer are analogous to the Employer's decision in the LLBO . case (supra) whether or not to allow the use of personal vehicles for ministry work. The Board there held that the decision as to use of personal vehicles was a management I 9 function within the meaning of section 18 (1) . So also we must find that the decision as to which group of employees will be utilized in the ERP is a management function. If the Employer had decided that technical support employees would be included in the roster, then any concerns arising out of the decision as to appropriate rates, distribution etc. may have been negotiable as terms and conditions of employment under section 7 . The Employer decision under challenge directly , relates to organi.zation of the workforce and assignment of work and are clearly within the exclusive management functions in section 18 (1) . And section 18 -(1) declares that " . . . such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board" . [See Hendrix, 0700/86 (Draper) holding that assigning of employees to the stand by list is a management function within the meaning of section 18 (1) 3 . That leads us to the alternate submission of the Union that even if the 'subject matter of the grievances 'is an exclusive management function within section 18 (1) , because of a commitment made by the Employer it is estopped. from relying on management rights. Counsel argues that promissory estoppel applies even with regard to those matters within section 18 (1) . Counsel relies on article 35 (1) of the collective agreements which contemplates local agreements. The contention is that because of the commitment made by the 10 employer, the Union was misled and denied the .opportunity to negotiate a local agreement with regard to participation in the ERP. Article 35.1 reads: 35. 1 It is agreed that all ministries may enter into local and ministry employee relations negotiations such that ax'e _appropriate as not being excluded by the rovisiohs of The Crown EmRloyees Collective_ Bargaining Act. Such negotiations shall not be subject to the mediation and arbitration procedures under the Act, provided however, that nothing shall preclude a grievance alleging a violation of the Collective Agreement, as provided .in the said Act. (Emphasis added) The emphasized portion of article 35. 1 clearly indicates that the parties recognized that only matters not excluded by the provisions of the Act can be the subject- of local agreements. We have already determined that the question of who will have the right to participate in the ERP is a matter excluded from collective bargaining under section 18 (1) . It follows that that issue could not have been the subject of a local agreement under article 35. 1 either. Therefore, it is not open for the Union to claim detrimental reliance, that is; to claim that they were deprived of the opportunity to negotiate a local agreement. They would . not have I been deprived of anything, because they had no right to negotiate with regard to the particular subject matter in the first place. I i r 12 APPENDIX LIST OF GRIEVORS BOUCHARD, Michel COWIN, Cindy CROSSLEY, Frank ELLIOTT, Steve S. MITTON, Alida M. MULDER, James R.J. REEVES, Ted C. RICKEY, Neil i For all of the foregoing reasons, the Board upholds the Employers submission that the subject matter of these grievances are exclusive functions of management within the meaning of section 18 (1) of the Act and are therefore inarbitrable. In view of this finding it is unnecessary for the Board to consider the Employer's objection based on time- liness. These grievances are accordingly dismissed. Dated this.-29th day of January_,I." 1990 at Hamilton, Ontario N. Dissanayake Vice-Chairperson �.� G. Nabi Member E. rsini Mem er