HomeMy WebLinkAbout1984-0597.Policy.85-05-02IN THE MATTER OF AN ARBITRATION
UNDER
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLEMENT BbARD' b
BETWE_EN: OPSEU (Policy Grievance)
Grievor
- and -
The Crown in Right of Ontario-
(Ministry of the Environment)
Employer
BEFORE: E.B. Jolliffe, Q.C. Vice-Chairman
I.J. Thomson Member
L.R. Turtle Member
For the Grievor: R.R. Wells
Counsel
Gowling & Henderson Barristers & Solicitors
For the Employer: W.J. Gorchinsky
Chief, Staff Relations Officer
Civil Service Commission
Hearing: October 16, 1984
.
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DECISION
This was one of three grievances presented by the
Ontario Public Service 'Employees Union in respect of the.
classification system for Environmental Technicians .in the
Ministry of the Environment..
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The Union's case is based on Article 5.8 in the
applicable collective agreement between Management Board of
Cabinet and OPSEU, Exhibit 1.. Article 5 relates to Vlassifi-
cation Procedure" and the text of 5.8 is:
When a new classification is to be created or an
existing classification is to be revised, at the
request of either party the parties shall meet
within thirty (30) days to negotiate the salary
range for the new or revised classification,
provided that should no agreement be reached
between the parties, then the Employer will set the
salary range for the new or revised classification
subject to the right of the parties to have the
rate determined by arbitration.
Another relevant provision is in Article 27.8.1 of the
agreement (under the heading "Union Grievance") as follows:
hbere any difference between the employer and the
Union arises from the interpretation, application, administration or alleged contravention of the
Agreement, the Union shall be entitled to file a
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1.
grievance at the second stage of the grievance
procedure provided it does so within thirty (30)
days following the occurrence or origination of the
circuastances giving rise to the grievance.
The grievance before the Board at this time, Exhibit 2,
dated July 6, 1984, and signed by Mr. S. G'Flynn (at that time _
President of the Union) was stated in, the following words:
Union grieves that the Ministry of the Environment
has de facto created a new classification for
Environmental Technicians or in the alternative is
intheprocessof revising the existing classifi-
c cations and has refused to meet the the Union
within 30 days of a request by the Union to
negotiate the salary range for the new or revised
classification.
There was also of course a statement of the "Settlement
Required":
That the Board declare that a new classification
for Environmental Technicians has been created and I
that the Board determine the rate of pay for the
new classification. In the alternative that the
Board direct the employer to meet with the Union
within 30 days to negotiate the salary range.
When this grievance came on for hearing, October 16, the
Union was represented by Mr. R.R. Wells, counsel, and the Employer
by Mr. W.J. Gorchinsky, Chief,Staff Relations Officer of the
Civil Service Commission. No witnesses were heard, but a number
of documents were admitted into evidence,.having been identified
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and explained by the spokesmen for the parties. Mr. Gorchinsky
argued a preliminary objection, to which Mr. Wells responded. It
is the pre.liminary objection which must be adjudicated upon at
this time.
An exchange.of correspondence preceded the grievance of
'July 6. Two letters, Exhibits 3 and 4,' require consideration.
.
On June 25, 1984, Ms. Maria Wysocki, Grievance Officer,
wrote Mr. Gorchinsky as follows in Exhibit 3:
It has come to the attention of the Union that a
new classification is being created for Environ-
mental Technicians within the Ministry. of the
Environment, or in the alternative, the existing
classification series of Environmental Technicians
is undergoing revision.
The Union requestsameeting with Staff Relations of
the Civil Service Commission within 30 days to
negotiate the salary range for the new or revised
classification series.
Please contact Mr. George Richards (482-74231 to
arrange for a convenient meetirgtime and place.
On July 3, Mr. Gorchinsky replied in Exhibit 4 as
follows:
I acknowledge receipt of your letter dated June 28,
1984, with respect to the Environmental Technicians
class series.
This will confirm that: ‘
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.) Anew classification isebeing created for
Enviromnental Technicians and
2) the existing classification series of Environ-
mental Technicians is NOT undergoing revision. -
Accordingly, there is no reason to hold a meeting
and there is nothing to negotiate pursuant to
Article 5.8. It should also be noted that salaries
for Environmental Technicians, as part of the
Technical Services Category, are now to be
determined by a Board of Arbitration.
It should further be noted that this same issue was
grieved by the Union in two separate grievances on
February 6, 1984. The first grievance was
abandoned by the Union following the,employer's
response of March 7, 1984 and the second grievance
(225/84) was withdrawn by the Union at a hearing - before the Grievance Settlement Board on June 18/84.
It is not usual --- nor is it normally desirable --- to
enter into what may have been said in the course of thegrievance
procedure. In this case, however, the reply to the grievance was
filed as evidence without objection, and it serves to summarize
the Employer's position. On July 18 Mr. B.A. Smith, Deputy
Minister of the Environment, wrote Ms. Wysocki in Exhibit 5 as
follows:
I wish to acknowledge receipt of Mr. Sean O'Flynn's
letter dated July 6th and received July lOth, together with a Union grievance which reads:
'Union grieves that the Ministry of the Environment
has de facto created a new classification for
Enviromnental Technicians or in the alternative is in the process of revising the existing
classifications and has refused to meet with the Union within 30 days of a request by the Union to negotiate the salary range for the new or revised classification".
5,
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1 would advise that:
1) A new classification has not been created for Enviromnental Technicians
and
2) The existing classification series of Environ-
mental Technicians is not undergoing revision.
Accordingly, there is no reason to bold a meeting.
I also understand that this same issue was grieved by the Union in two separate grievances on February
6, 1984. The first grievance was abandoned by the
Union and the second grievance (225/84) was with-
drawn by the Union at a hearing before the
Grievance Settlement Board on June 18, 1984.
'Part of the foundation for Mr. Gorchinsky's preliminary
objection to the present grievances is that the substance of the
dispute had been raised in two previous grievances, as mentioned
in their letters by Deputy Minister Smith as well as Mr.
Gorchinsky.
The first grievance dated February 6, 1964, Exhibit 6,
also signed by Mr. O'Flynn, was as fOlloWS:
l%e Union grieves that the Environmental Technician
series is no longer appropriate because of
significant changes to jobs across the Province
over the past ten years.
It was further required:
That management revise the classification in
accordance with Article 5.8 of the Collective
Agreement and negotiate the salary range for'a new series .
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The second grievance, Exhibit 7, also dated February 6
and signed by Mr. O'Flynn, was worded somewhat differently:
.
The Union grieves that the Ministry of Environment
has been engaged in revision to the Environmental
Technician series for a period in excess of 30 days
and has failed to commence negotiations with the
Union.
The Settlement Required was stated to be:
That the Ministry of Environment meet with the
Union within 30 days to negotiate the salary range e for the revised classification.
On March 7 a reply to both grievances was addressed to
Mr. P. Sheppard, Grievance Officer (with copies to Mr. O'Flynn,
Ms. Wysocki and the Civil Ser.vice Commission) by Mr. R.E.B.
Burns, Director, Human Resources and Personnel in the ,Development
Branch of the Ministry. He began in Exhibit 8A by reciting the
two grievances in full and continued:
A meeting was held, at second Stage, on March 6,
1984, in accordance with the provisions of Article
27.8 of the Collective Agreement. It was noted by
the undersigned who was designated by the Deputy
Minister to hear th,ese grievances that the
grievances appear to be mutually exclusive. The
first grievance is a complaint that the Ministry &
revising the classification series. The second
grievance is a canplaint that the Ministry is not. --
With respect to (1) above, the Ministry has not
revised the existing classification series for the Environmental Technician. Since no revision has taken place there is nothing to negotiate pursuant
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to the provisions of Article 5.8 therefore, the
grievance isdenied. Further,during the meeting
the Union stated that this grievance was based on a Ministry decision of June 4, 1982,.to review job
descriptions. In these circumstances it is also
the Ministry's position that this grievance is
untimely since it was not raised within 30 days
following the occurrence or origination of the
circumstances giving rise to the complaint pursuant
to Article 27.8.1.
With respect to (21 above, it is the Ministry's
position that your grievance is not a complaint
arising from the provisions of the Collective
Agreement and therefore the grievance is not arbitrable and is denied. It is also noted that
the Union first requested that the series be
reviewed in December of 1982 and that the Ministry
responded on September 7, 1983 that it did not
intend to do so. In these circumstances, it is - also the Ministry's position that this grievance is
untimely since it was not raised in accordance with
the mandatory time limits set out in Article 27.8.1.
Filed as Exhibit 9 were the standards for Environmental
Technicians, levels 1 to 4 inclusive , and the preamble thereto.
These all appear to be dated "April 1975."
By referring to the d,ocuments quoted above, Mr.
Gorchinsky argued that the Union grievance now before the Board,
i.e. the grievance dated July 6, is not arbitrable and should be
dismissed. He gave the following reasons in support o,f his
argument.
(1) The two previous grievances of February 6 were
"identical in substance" to the present grievance. The first
[Exhibit 7) had been "abandoned" in the grievance procedure. The
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second (Exhibit 6) alleging that the "series is no longer
appropriate" had been referred to arbitration, was designated
225/84 and scheduled to be heard June 18, but was then withdrawn.
Mr. Gorchinsky referred to Professor Palmer's text (second
edition) at pages 214 and 215 stating the "effect 'of settlement,
abandonment or withdrawal" of a previous grievance having the
same subject-matter. The Union,, it was argued, is estopped from
raising the same issue for a second or third time.
(2) Mr. Gorchinsky submitted there is nothing in
s
section 18 of the Crown Employees Collective Bargaining Act which
would allow the Board to take jurisdiction when the Union (by way
of a grievance) challenges the validity of a standard. In this
connection, Mr. Gorchinsky cited Vice-Chairman Swan's classic
statement on this Board"s jurisdiction in Haladay, 94/78.
(3) It was further argued that Section 4(a) in the
Public Service Act gives the Civil Service Commission the abso-
lute and exclusive right to determine standards. On the other
hand, the Union-is "not without a remedy" because under Section 6
of the Public Service Act it may negotiate rates of pay for any
classification. Mr. Gorchinsky said rates in the Technical Ser-
vice Category would soon be arbitrated under the aegis of the
Ontario Public Service Labour Relations Tribunal. He added that
there were also negotiations in progress in respect of the
classification and job evaluation system used by the Employer.
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(4) Mr. Gorchinsky's fourth submission was that even if
the Board had jurisdiction, the .present grievance was untimely in
the extreme. It could not be said that this grievance had been
filed "within thirty (30) days following the occurrence or
origination of the circumstances giving rise to the grievance"
--- as required by Article 27.8.1 in the collective agreement.
(5) Finally, referring to the "Settlement Required" by
the Union, Mr. Gorchinsky said it was obvious the Board had no
jurisdic$ion to determine the rate of pay for a non-existent "new
classification," and that it was beyond the Board's power to
direct a meeting in respect of such matters.
In response to the objection, Mr. Wells, the Union
counsel, emphasized the following points:;
(1) The Board.could deem both previous grievances to
have been withdrawn, but the surrounding facts were complex and
unusual. It had been found in the.grievance procedure that the
two grievances were mutually inconsistent, and for that reason
oneofthem hadtobe withdrawn. The intention was to proceed to
arbitration with the second grievance, Exhibit 7, not the first,
Exhibit 6. It was Exhibit I which demanded a meeting under
Article.5.8 within 30 days. The Union believed Exhibit 7 had
been referred to arbitration, but on June 18 it was found that
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"Exhibit 7 wasn't there," so the parties had nothing on which to
proceed. Such a misunderstanding was not a basis for estoppel.
(2) Mr. Wells submitted that the real issue here was
whether the Employer had an obligation to meet the Union on
request within 30 days, as provided by Article 5.8. The Union
had made a bona fide attempt on February 6 ~to raise that issue
and it was only by reasonof a mishapormisunderstanding'.that it
failed to reach arbitration on June 18. The grievance of July 6,
now before this Board, was a reasonable and legitimate attempt to
correct a mistake.
(3) The proper approach to the problem, Mr. Wells
suggested, was set out in University _ of Toronto and Service
Employees Union, - Local 204 (1975) 10 L.A.C. (2d) 417 (Adell) -
particularly at pages 431-2. Cited in that case were several
arbitrators in the U.S.A., such as Stouffer in Controls for -.-
Radiation, Inc. (1966) 46 L.A. 578, who said at page 582: "Many
arbitrators have held that mere failure to appeal a grievance is
not per se acquiescence in the disposition of the issue so as to
bar the issue from arbitration in a subsequent case."
(4) Also cited by~Mr. Wells was Lonqyear Canada Inc.
and I.A.M. Local 2412 (1981) 2 L.A.C. (3d) 72 (P.C. Picher) which
reviewed the criteria for estoppel at arbitration, referring to
many Canadian precedents. Another authority of note was Triangle
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Conduit & Cable Canada Ltd. (1970) 21 L.A.C. -- 332 (P. Weiler).
(5) Mr. Wells said that issues relating to arbitra-
bility and salary rates were both'before Mr. Shime's Tribunal.
He submitted that Article 5.8 clearly contemplated negotiation of
a range "for the new or revised classification" during the life
of an agreement, separates and apart from the negotiation or
arbitration of general rates.
(6) Finally, Mr. Wells argued that 5.8, is available for
the relief of employees who are assigned extraordinary duties but
cannot rise any higher "in their own series." As examples of
that phenomenon he cited Beaton 221/78, and winq 484/81. (In
those two cases, it may be noted, 5.8 was not utilized; they were
individual grievances). The union's case would show that a
current revision of classifications is inconsistent with the
class standards set out in Exhibit 9.
Mr. Wells said no declaratory decision was needed, but
the Board should direct the Employer to hold a meeting with the
Union.
n reply, Mr. Gorchinsky said there could be no
I complaint about Environmental Technicians being obliged to
perform "the full range of activities" mentioned in the standards
because that function had always been required. He added that
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the standards are "negotiable" at the proper time, and that the
Union was really seeking changes in salary levels at the wrong
time and in the wrong forum.
The Board considers that this Union grievance requires a
careful rea~ding of Article 5.8. It is essential to understand
exactly what is said in 5.8 and what is' not said. ------ It certainly
creates an obligation: the question is, an obligation in relation
to what matter or matters? Before attempting an answer to that
crucial question, it is necessary to offer certain preliminary
comments,
In ruling on the Employer's preliminary objection, the
Board is asked to rely on a series of documents in which it iS
alleged by the Union --- and emphatically denied by the Employer
--- that the Ministry "has been engaged in revision to the
Environmental Technician series....." Apart from general
assertions of a similar kind by spokesmen for the parties ---
which do not constitute evidence --- there is nothing to prove
such assertions or denials one way or the other. The onus of
course is on the Union to prove its case. To this the Union
would undoubtedly reply that it can tender evidence of the facts
at a hearing on the merits, which the Employer is seeking to
avoid by way of a preliminary objection to jurisdiction.
It would be mere speculation to anticipate'what the
evidence might be at a hearing on the merits. One comment,
however, may be in order. If a reorganization or rearrangement
in the assignment of duties within the Ministry has given rise to
the impression that classifications are being generally revised,
then it must be recognized that the assignment of duties --- so
long as such assignments do not conflict with established
standards --- is strictly the exclusive prerogative of
management. This is made clear by subsection (1) in section 18
of the Crown Employees Collective Bargaining Act:
(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, canplement, organiz-
ation, assignment, discipline, dismissal, sus-
pension, work methods and procedures, kinds and
locations of equipment and classificationof . positions; and
(b) merit system training and development,
appraisal and superannuation, the governing
principles of which are subject to review by
the enployer with the bargaining agent,
and such matters will not be the subject o'f
collective bargaining nor come within the jurisdiction of a board.
On the other hand, if any.employee considers that a
change in his assigned duties is not consistent with the stand-
ard for his classification, that employee has a remedy in sub-
section (2) of section 18, which gives him the right to grieve
,
:.::
I . - ~. ..--. -. ..~. .____ - i(
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--- and go to arbitration if need be --- "that his position has
been improperly classified." That remedy is available to any and
all employees classified in the Environmental Technician series.
It is more than likely that the facts would differ as between
different employees, with the result that each case would have to
be decided on itsown merits. Such differences would make it
inappropriate --- and the evidences relating thereto --.- to
adjudicate's dispute on the generalized basis contemplated by
Article 5.8 of the collective agreement.
-The foregoing comments may be speculative, but they have
a bearing on the issue before us. If the Union were to proceed
with a hearing on the merits and attempt to prove a general
assertion which is flatly denied by the Employer, the only
possible way the Union could prove its case would be by calling
individual employees to describe their assigned duties and
particularly any recent changes in these assigned.duties. Thus,
in attempting to decide a Union policy grievance the Board would
be called upon to decide in effect the classification issue in
respect of each and every witness called, 'and thereafter no doubt
to decide whether the totality of such evidence amounted to proof
that the Employer, contrary to its own assertions, has been
"engaged in revision to the Environmental Technician series..."
We do not think that such an unwieldy procedure was contemplated
by Article 5.8 in the collective agreement.
.- . _ _~_
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What then was 5.8 designed to do? In plain words, it
provides the Union with an appropriate remedy "when a new
classification is to be created or an existing classification is
to be revised..." In either event, it is surely necessary to
show at least documentary evidence of.proposed amendments to the
class standards. The text of every standard is effective until
it is amended, and thus can be relied on by anyemployee claiming
to be improperly classified.
In the course of argument, Mr. Wells remarked that *
"wholesale changes are.in process and we have seen standards
dated in 1984." If 1984 standards or draft standards exist they
have not been placed before this Board. The only standards we
have-seen are in Exhibit 9 and, as previously stated, th,ey are
all dated "April, 1975." If there have been amendments at a
later date, even if they be in draft form, it was incumbent on
both parties to produce them. It is impossible to believe that
either party would mislead the Board by withholding such
information.
We have no doubt that changing environmental conditions
and needs over the past decade have had an impact on the duties
performed by the Ministry's Technicians. Without knowledge of
the details, it, is safe to assume that there have been changes in
organization and assignments within the Ministry. Nevertheless,
as we have already pointed out , such changes are permissible as
-.-~. -. -. _. -- -~_
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long as they do not make an employee's assigned functions
inconsistent with the standard for the position in which he is
classified. If inconsistency arises, the employee has recourse
under section 18(2) of the Crown Employees Collective Bargaining
Act and Article 5.1.1. of the collective agreement. One such -
case was Sisson 57/82.
Section 4(a) in the Public Service Act provides that the
Civil Service Commission shall:
c
. . .
evaluate and classify each position in the
classified service and determine the qualifications
therefor.
Having regard to Section 4(a) above, it is always open
to the Employer to consider or re-consider an existing standard.
No doubt from time to time amendments are not only considered but
drafted. Moreover, the Union is authorized by section 6 of the
.Crown Employees Collective Bargaining Act to negotiate --- or
attempt to negotiate --- changes in "the classification and job
evaluation system." No change is effective in draft form: change
becomes effective only with an actual amendment. The fact that --
so many standards were made effective 10 or 20 years ago --- or
more --- suggests that they may not be entirely consistent with
present conditions. Nevertheless, they remain effective until
officially amended.
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What is the true scope of Article 5.8? In our opinion
it expressly creates an obligation, at the request of either
party, to meet and negotiate the salary range for 5 proposed new -
classification or the revision of an existing classification, if -- -- ,
a revision is to be undertaken. It creates no other obligation.
Nothing is said of an obligation to meet and discuss alleged
deviations in practice or departures from an existing standard.
Indeed the word "standard" appears nowhere in 5.8.
It is clear, however, that since a classification is
-
defined by its standard, a proposed new classification or a
proposed revised classification would require a new standard.
A standardmustbe in writing and should not be confused
with a practice. Practices may or may not have legal validity
under the ~applicable standard. If inconsistent with that
standard, any employee affected may grieve that he is improperly
classified, but the invalid practice is not something on which
the Union may demand a meeting under 5.8.
Of course the Union has the right under Article 27.8.1
of the agreement to file a grievance against an alleged
contravention of the agreement, "provided it does so within
thirty (301 days following the occurrence or origination of the
circumstances giving rise to the grievance." Not only must the
grievance be filed within 30 days: to succeed, the Union must
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prove a contravention of the provision relied on --- which in
this case is 5.8. The true scope of 5.8 is apparent from its own
language and the only obligation created is the~one we have
explained above.
There is more to be said. ve cannot emphasize too
strongly that Article 5.8 requires careful reading. For example,
the opening words do not say "when a new classification is -
created..." The words are "when a new classification is to be --
created..,." It is clearly implied that the Employer's obligation -
arises in advance of the creation of the new classification. - --
Similarly the reference to revision is not "or an existing -
classification is revised..." The words are "or an existing
classification is to be revised." -- Again, the obligation arises
in advance of the revision becoming effective. - --
There is a problem related to the requirements explained
above. Nothing is said which obliges the employer to request a
meeting and the Union cannot be expected to request a meeting if
unaware of a proposed new classification or a proposed revision.
To give 5.8 any meaning or significance, the Employer should
accept the responsibility to classify vested in it by the Public
Service Act, and also the responsibility with which it is charged
by the Crown Employees Collective Bargaining Act to negotiate in
good faith with the bargaining agent and to give full force and
effect to the provisions of a collective agreement. In that
, ,>; c
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context, the Employer does have an obligation to give effect to
the intent of 5.8 by informing the Union in advance of a proposed -
new classification or a proposed revision.
To sum up, the opinion of this Board is that:
,(l). The Employer has an obligation to inform the Union
in advanceof anynewclassi,fication it proposes to create or any
revision it proposes to make.
-(2) The Employer has no obligation to hold a meeting at
the 'Union's request until the Union ins informed of the
Employer's proposals, but for a period of 30 days after the
giving of such information the Employer has an obligation. to hold
a meeting at the Union's request.
(3) Changes in the assigned duties and responsibilities
of Environmental Technicians do not constitute revision Of any
classification or the amendment of any standard or the creation
of a new classification, but such changes may give rise to
employee grievances under Section 18(2) of the Crown Employees
Collective Bargaining Act, which would be arbitrable and would be
decided by reference to existing standards.
In view of the conclusions stated, then Board finds it
unnecessary to comment on the able arguments advanced by Mr.
Gorchinsky and Mr. Wells.
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Subject fo the opinions expressed above, the Employer
<ad no obligation as of July, 1984, to meet with the Union for
the purpose suggested. The grievance therefore fails and must
be dismissed.
Dated.at Toronto, this 2nd day of May, 1985.
E.B. Jolliffe,, Q.C., Vice Chairman
7 <I.~
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;I;< ..-$$ , -
L.R. Turtle/Member