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HomeMy WebLinkAbout1980-0455.Union.81-07-29 GRIEVANCE ". " SETTLEMENT BOARD ;80 F)UNOAS STREET wEST TO,QONTC ""JNTA~qlO. t.'rSG ;ZS-SU,'5 2~00 TELEPHO.',5, ~6~59&-:588 455 .'80 .~.~l_c~ 05 AN .~EBI.RAT.OJ Under The CROWN Ei~LOYEES COLLECTi%~f BARGAINING ACT Before ~HE GRIEV:z.YCE SETTLE,',~_~r BOARD Between~' Ontario Public Service Employees Union Grievor - And - The Crown in Right of Ontario (.~Iinistry of Transportation ~ Commun i c a~ ion s ) Employer Before' E. £. Palmer, ~.C. V±ee Cha±rman A. Reistetter Member D. Anderson Member For' ~he Grievor- C. Paliare, Counsel Cameron. Brewin & ScoZz For the Employer' :.',:, J. Oc, rchinsky, Chief S~aff Re!a~ions Officer ,Civil Service Com~isslon Kear~ng' ~'.!arcn 26 ~98' AWARD 2. The pre~ent arbitration arises ou~ of a grievance filed'by Mr. D. M. Stewart on' 9 July i980, the statement of which grievance reads: "I grieve that the~-levy of a parking fee at 5000 Yonge St. is unjust, unnecessary and discriminatory."' The settlement requested in this document w~: "That no levy of a parking fee be assessed against me and that any fee paid todate of settlement be-reimbursed in full". This grievance, itself, i's representative .~f some 127 grievances. As the parties were unable to settle this mat%er during the grievance procedure, the present arbitration was necessitated, a hearing in relation to which was held in Toronto, Ontario, on 26 March 1981. At that time the parties were given an opportunity tO present evidence and argument. Initially, it should be noted that the Employer took the view that this matter was not one for which the Board had juris- diction to deal. Indeed, they ·took this view during the grievance procedures as it appears that no meetings were held to deal with this matter at step 2 [~ee Exhibit III]. Consequently, the instant orievance - which is in the nature of a grout grievance - was scheduled and the objection by the Employer ~'as raised when the ,hearing in this matter convened. Insofar as the facts which touch cn this matter are concerned, they appear tc be not in dispute and extremely brief. Thus, Mr. Stewart would appear tc be one of the employees who had not been required to pay for parking pursuant · to the application of a policy created by the Employer. However, upon having the site of his employment moved to another area, the application of this policy required, the payment to which objection is made. It would seem that there is nothing specifically in the Collective Agreement which toUches on the question of parking and so, the initial determination in this case relates to whether this Board has jurisdiction to deal'with the claim made by the grievor. .... In relation to this point, written argument was submitted · by the parties at the roquest of the Boar~ and it is reproduced below. WRITTEN ARGUMENTS SUBMITTED ON BE~LALF OF THE UNION FACTS The 127 grievors, members cf the Ontario Public Service Employees Union, Local 536, are employed by the Ministry of Transportation and Communications. A collective agreement is in force with ~espect to working conditions and employee benefits made between the Ontario Public Service Employees Union as the union and The Crown in Right of Ontario Represented by Management Board of Cabinet as the employer. The collective agreement was effective from January 1, 1980 and expires December 31, 1980. In addition, the employe~s are subject to a separate collective agreement which deals with wages only. All of the grievances filed by the 127 grievors are similar and raise the same issue. The grievance of Mr. Stewart reads as follows: "Statement of Grievance: I zrieve that the levy · , of a parking fee at 5000 Yonge S~eet is unjust, unnecessary and discriminatory. Settlement Required: That ~o levy of a parking fee be established against me and that any fees paid to date of settlement be reimbursed in full" Until July let, 1950, the grievors, s~me of whom were very long-term emplo.=~ees, had worked at the Ministry's locations at 3501 Dufferin Street and 1201 Wilson Avenue in Toronto. The]' drove their own cars to work and were not charged any fee f. or parking in the ~inistry's parking lot. It had always been the Ministry's policy not to charge employees for parking at those locations At the beginning of July, 1980, the ~inistry unilaterally, transferred all of the grievors who.worked at either 1201 Wi!son Avenue or 3501 ~ufferin S~reet to a new location =t 500n Yonce Street. These transfers were involuntary as far as the grievcrs were concerned. The location at 5000 Ycnge Street had never been used by Ministry employees before these transfers. For the first time in their employment with the 14inistry, the grievors were charged a fee to park their own cars in the :.!inistry's parking lot, at 5000 Yonge Street. This fee was automatically withheld from .their salaries if they applied to use the parking lot. Th~~e_ ~ ~ charged in Jul~ 1980, was $10.50 _Der month, and this was increased to $14.50 per month effective October 1, 1980~ The policy cf charging employees to park at certain government locations, was apparently instituted by the ~.~anagement Board of Cabinet in 1975. The Board instituted the policy at fac~=~ies located in urban areas which it considered were served by. adequate mu~iic. ~ transportation and were in the vicinity of a commercial parking lot. Adequate public transport was defined as a "public transit service which is scheduled to operate during weekdays at least once every 20 minutes between the hours of 0730 and 0900 and 1630 and IE00 and at.least once every hour during the remainder of the day-time period." The result cf the uneven application of this policy is that some government empioyees pay to park their cars at government locations -~as the grievers do), whereas others have = w_~l be adduced at the arbitration =roe parking. Evidence '~ hearing that some cf the locations at which parking is free, (for example at 35~! Dufferin Street) fall ~;ithin the Manage- ment Board of Cabinet definition of areas served by adequat~.~. public transportation, and in =act are no l=ss convenient to public transportation th'an others where a' parking fee is charged (for example, 50~0 Ycnce Street). it is therefore the Ontario Public Service Employees Union position that the employer's pc!icy ^= char~ing some er. ployees for tarkinc but .... ~na~__= unfair a~ a violation. not others is arbitrary, ~iscr~' ~-*~ .... cf the employer s _mpl~_. duty ~o ac~ fair~" towards its employees. ONTARIO PUBLIC SERVICE EMPLOYEES UNION ARGUMENT The collective agreement governs ~he terms and conditions of the relationship be'-ween the Ministry and its employees, but there is no provision in the collective agreement for the imposition of parking fees by the Y..inistry. The Ministry'~s authority to do so theref.~re arises from the management's right"clause, which is deemed to be a part of the collective agreement by virtue of Section 17(1) cf Th__e Crown Employees Collective Bargaining Act. It is the Ontar~io Public Service Employees Union position that, in the exercise of its discretion under the managemen'.'s right clause, an employer has a duty to act fairly and reasonably and'that a breach of that duty is a breach of the administration of the collective agreement.by the employer. The Board of Arbitration in this case, therefore, obtains jurisdiction to arbitrate this grievance by virtue of Section 18(1) of The Crown Employees Collective Bargaining Act and Article 27.1 of the collective agreement, which pro- vide for arbitration by the Grievance Settlement Board of any 'complaints or differences between the parties "arising from the interpretation, application, administration or alleged contravention" cf the collective agreement.· It is argued' that this duty of the employer tc act fairly and reasonably is an overriding duty, and it gives the Board of Arbitration ]u_~sdiction to hear this crievance notwithstanding the provisions of Section 17(1) of The Crown Employees Collective Bargaining Act. It is further argued by the Ontario Public Service ~Employees Union that the Legislature an~ the parties re- cognized that the grievance procedure and the matters which could be arbitrated should be brcad!y defined. This recognition is evidenced by the use of the words "any differences" in Section 18(1) of The Crown Emplcl.'ees Cc!lecti'.'e Bargaining Act and "any complaints or differences" in Article 27.1 of the collective agreement. THE LAW !he duty cf an employer ts act fairly in the adminis- ~_=_~on cf the collective ~greerent ~a~ recocnized k'; the Diuision Court in Re Municlpalit'; of >%etrcpo!'itan TTronto an! Toronto Cicic Union, Lrcal ~c. 43 e5 al (1977), 16 O.R. (2d) 730. The issue in that case, as seen ky the Division Court waS: "Whether there is an overriding duty on an employer to act fairly, towards his employees in the administration of a collective agreement and, if so7 whether 'the' grievance procedure is broad enough to enable an arbitration board to ~ remedy an injustice done by breach of that duty." For the majority of the Court, Mr. Justioe Weatherston said: "...an employer in the administration of a · - collective agreement...is dealing not with individual employees under separate contracts of service, but with employees whose terms of employment are set out in an agreement negotiated on behalf of them all. Any discretion to be exercised by the employer must be exercised in the knowledge that each employee is only one of many; no one of them should be singled out for special treatment. This obviously implies that the agreement should be administered fairly." The Court dismissed the employer's appiication for judicial review. The Court decided there was no reason to interfere with the majority decision of the Board of Arbitration which had found that the chief supervisor had breached his "duty to act fairly" in not informing the grievor of the adverse consequences of accepting a temporary position. Clearly, the Court decisioh prohibits the employer from singling out any individual for special treatment. It is the Ontario Public Set'vice Employees Union position that the principle also applies to the instant case. If no one employee may.be singled out, it is implicit that no one group of employees may be singled out for special treatment. It is argued that this is exactly what the Ministry has done here~ it has singled out groups of employees who work at certain !ocaticns to pay parking fees. The Metropolitan Toronto, case, therefore, is a case which speaks directly to this particular grievance. The decision in Metropolitan Toronto ~as subsequently affl.?med by the Divisional Court as being "the last word on the subject" in Falconbridge Nickel }~ines Limited and P ' John B~unner et ali unreported Judgment of Division Court, dated May 5, i980. In that case the Court re~ected~ the emuloyer's. argument that ~4etropolitan Toronto should be regarded as bad law particularly in light cf the later Divisional Court ~ecision .,~ _ _na~l~na~ Union in Re Hunter ~se ComPany ';. Graphic .~ = In,,_~ ~'~ ~ Local 2~B, Brent et al, 79 C.L.L.C., i4,188 and pointed out that case had distingu%shed the Metropolitan Toronto case on its facts and "had not cast doubt on the principles enunciated," therein. It is the po$itio~ of the Ontario Public Service Employees Union that the Re Hunter .Rose decision has no application to the .~nstant case. In Re Hunser Rose the arbitration board held that the employer had acted un- reasonably in its application of an exclusive management right; namely, the improper classification of the grievor. The Divisional Court quashed the decision cf the Board of Arbitration not because it felt that the Board had been wrong in applying a test of reasonableness, but because the employe~'s function of classifying employees under the management's rights clause'was expressly excluded from the grievance procedure, whereas other functions of the employer were not excluded. In any event, the Divisional Court decision was overturned by the Court of Appeal, (reported at 99 D.L.R. (3d) 566, 24 O.R. 608), albeit oh grounds not relating to the test of reasonableness imposed by the board of arbitration. The duty to act fairly has been imposed on employers by many boards of arbitration since the Metropolitan Toronto decision. For example: 1. Photo Engravers and Eiectrotypers Ltd. and Toronto Printing and Pressmen and Assistants' Union, NO. 10, 25 L.A.C. (2d) 88 - (Adams), especially pp. 98-101 (This case is currently before the Divisional Court). 2. Re Mississauga Hydro - Electric Commission and International Brotherhood of Electrical Workers, Local 636 (1979) 24 L.A.C. (2d) 1. 3. Re Metlr~politan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1980), 26 L.A.C. (2d) 117. '4. Re York University and York University Staff Assoc- iation (1979), 24 L.A.C. (2d) 80. It is argued on behalf of the Ontario Public Service Employees Union that the duty cn the employer to act fairly is a s~ttled part of arbitral jurisprudence and can no longer be questioned. It is also argued on behalf of the Cntario Public Service Employees union that the employer nust act reasonably. Boards of Arbitration have consistently held that, even where a collective agreement expressly gives to the employer the sole right to exercise its discretion cna particular matter, the exercise of that discretion must stand up ~o the test of reasonableness. For example, in Re St. ~arv's Hospital, Kitchener and Nurses' Association St. ~ary's Hosp~ta!, <~97~), 7 L.A.C. (2d) 102, the collective ~greement gave the hcs~ital"se!e discretion" to decide whsther to accept an employee's ~ertif~cate ~or a course so as to enable the employee to qualify for an educational increment. The arbitration board assessed tke "reasonable- ness" of the hospital's refusal to accept the grievor's certificate, aad allowed the grievance because it considered that the refusal was unreasonable. A similar conclusion was reached by tke Divisional Court in British Leyland Motors Canada Limite~ v. Adams and International Union et a! (!974), 74 C.L.L.C. !4,216,where the management's right clause'made it the exclusive function of the company to manage the plant and direct tke working forces. The arbitrator had held that the scheduling cf new hours violated the provision of the~col!ective agreement which required that-"satisfactory hours" be maintained. SUMMARY' It is therefore the position of the ©ntario Public Service Employees Union that~ there is an overriding duty on the Ministry to be fair and reasonable in the exercise cf its discretion un~er the management's right clause, and evidence will be led to show that the application of ~he policy with respect to the imposition of parking fees was not fair or reasonable. ?he unfair and unreasonable application of the policy is a breach by the employer of the a~.inistration of the collective agreement. This Board~of Arbitration therefore has the jurisdiction to hear this grievance as a complaint or difference between the parties arising from "the... administration ... of the collective agreement" as provided for in Section 18 Il) of The Crown Employees Collective Bargainin~ Act and Article 27.1 of the collective agreemenp. WRITTEN ARGUt-%ENTS SUBMITTED ON BEHALF OF THE EMPLOYER !. The Employer submits that this Board has no juris- dication to decide the issues raised by these "grievances". it is our position that these complaints are inarbitrable because the single issue in each complaint ar~lses out of a right claimed by' employees, which might have no basis in the collective agreement. 2. The f~cts which are relevant to the :ssue of juris- diction are short and do not appear to be in dispute. They are: · i) The employer moved operations fr~-m offices at 3501 Dufferin Street and 1201 wilson Avenue (Downsview) to 5000 Yonge Street. ii) As a_~esu!t approximately 265 ~.-lc','ees~...:, . in total · ~,'ere transferred to 5000 Yonge S%reet from Dufferin S-_reet and Wilson Avenue. iii) The provincial governemnt has in place a province- wide parking policy which sets the parkin.~ rates ky municipality and area for crown employees on gove?n- ment parking lbts. iv). 5000 Youge Street is within one area (Toronto Zone "B") under the aforementioned policy where employees .who choose to drive and park at that location are .required to pay a parking fee. v) 'Both the operation at Dufferin Street and at Wilssn Avenue are located in areas designatRd by the policy, wherein employees who choose to drive and park at those locations,- are not required to pay fcr parking. vi) The transferred employees referred to in {ii) abo?e who are now working at 5000 Yonge Street, who chcose to driv.e and park at 5000 Yonge Street, are being charged a parking fee pursuant to the province-wide parking policy. vii) The collective agreement is silent on the issue of parking and'we understand that parking has never been raised in negotiations. 3. The ccmp!aints giving rise to this arbitration are not claims that the collective agreement has been breached. ~here is no article in the collective agreement specifically covering parking or parking charges. There is nothing in the collective agreement'which would entitled as a matter of right, employees to park free of charge on any EmplOyer property. These are ccmp!aints by employees but these complaints are not "grievances" and are therefore not a proper subject for the grievance prccedure or for arbitration. 4. Article 27.1 makes it clear that "complaints or differences" which the grievance procedure is intended to deal with and which therefore qualify as."grievances" are those" "...arising from the interpretation, application administration or alleged contravention of this agreement..." 5. The ccmp!aints do not, indeed they could not, possibly arise from the collective agreement because the right which employees claim is being denied has never been a right to which they were entitled. In the circumstances cf this case free uarkinc is .% most a privi!ece which was and still is afforded to employees at Employer !ocaticns where the cost and avail- abilit~' of srace permits the employer to provide parking space without charze to employees. The fact that the Employer has provide~ parking without charge at certain of its ~caticns to date dces not prohibit the Employer from implementing a parking charge at those sites in the future. 6. The fact that the Employer is not prohibited cr restricted, bY'the collective agreement, from amendin? its province-wide parking policy whick has been in force for quite some time, further emphasizes that in these circumstances, provision of parking facilities for employees who are not required to have their car at work is a privilege provided by the Em~!oyer, whether or not there is a charge for parking, and is not a'right enforceable under the collective agreement. 7. The purpose of the grievance and arbitration ~rocedures in industrial relations is tc provide a system for tko enforce- ment cf the rights of the parties as negotiated and set out in the collective agreement. The arbitration procedure cannot be used to create rights which do not exist under the collective agreement. In fact article 27.12 of the collective a~reement governing the parties to this arbitration specifically states: "The Grievance Settlement Board shall have no jurisdiction to al'ter, change, amend, or enlarge any provision of the collective agreement." 8. It is the Employer's submission that a board of arbitration, which deals with these complaints as "grievances" wcu!d in effect be amending the collective agreement, by en~ larging ~he employees' rights and the Employer's obligations, and would therefore, pursuant to Article 27, be acting beyond its jurisdiction. This proposition is supported by the decision of ~the Supreme Court of Canada in Be'il Canada v. Office and Professional Employees International Union, Local i3! 37 D.L.R.. (3d) 561. In that case the collective agreement made no reference to "retire or pension" but did provide that the employer could "dismiss or suspend for sufficient and reasonable cause." The board of arbitration held that to "retire'~ was a form of "dismissal" if done at the employer's initiative. The court in quashing the award of the arbitration board stated: "Article 8 of the cc!!ective agreement reading 'the Company may dismiss or suspend an employee ...~. for sufficient or reasonable cause' can not be read as 'dismiss or suspend, or retire on pension' Until the ~ords 'retire or pension' appear in article 8 of the collective agreement, there can be no basis for the arbitrator's ~ecision." The court then stated that the arbitrator exceeded his powers and that pursuant to an arLic!e similar to Article 27.12 cf the instant collective agreement the arbitra%or had no power tc amend the collective acreement. 11. 9. The jurisdiction of the Grievance Settlement ~oard arises differently than that of consensual boards ~f arbitration which receive all of their authority ~rom the collective agreement. At pages 3 and ~ of Shannon Haladay v. Ministr~~ of Tourism and Industry, Grievance Settlement Board Case 94/78, the Grievance Settlement Board chaired by Professor Swan outlined the Grievance Settlement ~oard's jurisdiction'as follows: .... "We should note that our jurisdiction is statutory ~nly and has two main branches. First,' we are vested with jurisdictioh to hear and determine disputes about the interpretation, application, administration or alleged contravention of ~he collective agreement under s. 18 of the Crown Employees Collective Bargaining Act. Second, beyond that-jurisdiction and independent cf it, we have the ~urisdiction set out in s. 17(2), quoted above. We have no other authority to intercede between the parties; we do not have any inherent jurisdiction to do justice - or what we ma~ conceive to b~ justice - or to~ ~rovide remedies, no matter how desperately a particular case may cry out for relief. The Board is a creature cf statute and d~rives its jurisdiction solely from the statute. The onl~~ exception to that rule is that the ... parties may provide for certain matters .- in a Collective agreement, ~nd our juris- diction is thus broadened to the extent they have done so. Beyond this circum- ~ sc__b_d~ ~ ~urisdiction,~ the Board's le~al~ t authority is non-existent and any decision rendered beyond those limits would be a nullity and liable to be quashed before a co~~~" (Lmphasis added ) The Employer agrees with Professor Swan's outline of the Board's jurisdiction and submits that on the facts as ouu!ined above the complaints in this case are not matters which fall within the Board's authority under either s. 17(2> or s. 18(t) of the Crown Employees Collective Bargaininc Act. As well it is our submission that the parties, b'£ the cc!!ectJ, ve agreement, have not brtadenel the jurisdiction ~. ~=~,:_ Boar;... Article ' 27.1 which ~efines the type of com~'aints '...'hich'~re grieva.b~'e takes the operative part of its lanyuage ~irectl]' from s. 18(1) " of the Act. !0. In addition s. 17 of the Crown Emplc~-ees Collective Bargaining Act~imposes on the parties a ~anagement rights clause which states that it is the exclusive function'of the Employer to manage the operation. This further strengthens the Employer's position that an}' functions of the Employer which are not limited by the cc!ie~tive agreement, remain exclusively within~the discretion of the Employer. 11. The union alleges that even if this is the case, ~uch discretion must be exercised by the Employer in a manner which is "fair" and "reasonable". 12. < We disagree with this p_~pcsition put so broadly. Of course, there will be occasions when a party exercising a dis- cretion must do so reasonably and fairly, but, in those instances the basis giving rise to the requirement of reason~ abieneSs is found in the statute or agreement on which the discretion is founded. In the instant case, there is nothing in the statute or th~ collective agreement, conferring on the Employer the exclusive function to manage, that can be read as an obligation to manage reasonably. 13. In Re Municipality of Metropolitan Toronto and Toronto Civic Employees Union Local 43 et al (1975) 10 O.R. (2d) 37, the Divisional Court in quashing the arbitrator's award stated as page 39: "As a result, Mr. Mace says, management is entitled, with respect to all matters no included in the agreement, to exercise its exclusive discretion for the purpose of main- taining order, discipline and efficiency and ' ~'" generally to manage the operations and under- takings of the Metropolitan Corporation, and make decisions on the selection, installation, and operation cf any equipment and machinery which in=,s~ uncontrolled discretion it deems necessary for the efficient and economical carrying cut of the operations and Undertakings of the Metropolitan Corporation. Mr. ~ace says that since there is nothing elsewhere in the agreement that expressly or by necessary implication confers the r-r~.~t on ~n emuioyee~ to cha!ience~ mangement's decision ~n the subject of when he shall take hi= vacation, or, =or that matter, participate in that decision, art. 1.02 must 7!ace Uhat ., decision in the exclusive discretion of manage- ment, or, at least, confirm that ir is there." and at pag~ 40: "Having considered the matter, we have come to the"conclusion that the preferable inter- pretation is that which Mr. ~ace urges upon us. The scheduling Of vacation time is thus left within the. exclusive discretion of the employer. We cannot find anything in the agreement that ~ustifies the board of arbitratlon in embarking upon the considerations that obvzous!y led to their deczsicn. We do not read art. 1.02 as openln? u~ to challenge decisions of the municipality on mat~ers that are nou referable to some clause of the agre3ment.. It does the reverse. Thus, whether mana=emen5 a6ted in an arbitrary manner or Qhether Uhe request would znterfere with the effirient operation of the ~unicipalit}~'s ~nclnerator to us are factors that are outside the proper purview of the b~ard's consideration, and as such they are outside the jurisdiction of that board. They are irrelevant. In coming ~o its conclusion the board thus went beyond the jurisdiction conferred upon it and its decision is therefore defective in that respect." (Emphasis added.) 14. In that case ~he board confirmed that an arbitrator must look to the document which ~ives him authority to act, and then act only on the basis of, and in line with the terms of reference of the instrument providing for his authority. Where a party is given a discretion to act, unless there can be found in the instrument granting that discretion a require- ment that it be exercised reasonably, an arbitrator has no 'authority to impose on the exercise of that discretion the 'requirement cf reasonableness. 15. The Divisional Court in Hun'ter Rose Company v. Graphic Arts'International Union Local 288 Brent, et al 79 C.L.C.Ci .14,188 confirmed that it was not open to a board of arbitration to imply a provision in the collective agreement making manage- ment's assessment of an .employee's qualifications, a manage- ment discretion, open to review on the grounds of "reasonable- ness". This case was reversed by the Court of Appeal cn other grounds; reported at 24 O.R. (2d} 608. 16. The Bell Canada Supreme Court'of Canada decision referred to earlier also supports the ~roposltion that it would be beyond the jurisdiction of an arbitrator to impose ., on a party to a collective agreement, the requirement of "reasonableness" where there is no authority in the agree- ment for such standard, since the imposition Df this standard would be an amendment to the agrsement by ad~ing to it a term or condition limiting the exercise of a discretion. 17. 'The common law generally has not required that a party to a contract enforce his rights under the contra~t reasohably. The House of Lords in White and Carter (Councils) Limited v. McGregor [1961] 3 All E.R. 1178 (H.L.) per Lord Reid at page 1182, stated: '~It might be, but it never has been, the law that a person is only entitled to enforce, his contractual rights in a reasonable way and that a court will .not attempt to enforce them in an un- reasonable way. One reason why that is not the !aw'is no doubt because it is thought that it would create too much uncertainty to require the court to decide whether it is reason- able or equitable to allow a party to enforce his full rights under a contract," Although the court there was nde' dealing with a collective agreement, the concerns and reasoning expressed by Lord Reid are equally applicable to the enforcement of rights under a collective agreement. 18. In addition to the cases referred to above there .- are other decisions which would appear to impose on the Employer an obligation to act reasonably in the e~er~ise of his discretion. Each of those cases deals with the treat- ment of a single employee and in each case the employer was required to exercise his discretion under a provision of the collective agreement such as a transfer, layoff or leave of absence provision. ~'~hat these cases say is not that an employer mu'st act reasonably, but that an employer when exercising a discretion, which he has a duty to exercise, must do so in good faith and take into consideration the matters which are relevant to the decision, and not base his decision on a consideration which is not relevant to the decision, 19. What do the courts mean when they say a discret'ion must be exercised reasonably. Lord Green M.R. in Associated ?rovincial Picture House Limited v. 'Nednesday Corporation [1947] w All E.R. 6~0 at 682 and 683 explained it as follows: .- "In the present case we have heard a great deal about the meaning of ~h~ word "unreason- ., able". It is true the discretion mu-_-t be exercised reasonably. :'~hat does that mean? Lawyers familiar with the phraseology' commonly used in relation to the exercise of statutory discretions often use the word "reasmnab!e" in a rather comprehensive sense. It is frequently used as a general description cf the things that must not be done, For instance, a person entrusted ~ith a discretion must direct himself proper'~y in !aw. He must call his own attention to the matters which he is bound to' consider. He must e×ciude from his consideration mat~ers which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said., and often is said, to be act- ing "unreasonably". Similarly, you may kave something so absurd that no sensible person could ever dream that it lay within the powers of the autkcrity. Warring~aon, L.J., i.think it was, gave the example of the red- haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another sense it is taking into Consideration extraneous matters. It is so unreasonable that it might almost be described as being done ~in bad faith." 20. It is clear, we submit, that the courts in requiring a discretion to be exercised "reasonablyr~ meant quite simply that where there is a duty to exercise a' discretion that discretion must be exercised in good faith and in accordance with criteria relevant ,to the decision. The impor, tant differ- ence between those cases and the instant case is that here there is no duty, no term or condition'requiring the employer to set relevant standards and then make a good faith evalu- ation against those standards. The Employer is not making a decision ~n the ~erms or conditions of employment of any employee. The employee's right to complain about and grieve the imposition of parking rates and administration of parking facilities can be no greater than his right to complain and grieve that a contract entered into between his Employer and himself on s'cme matter unrelated to his employment is unfair or unreasonable. 21. The situa:icn here is no different. The contractual arrangement made between the Employer and individual employees is in compliance with the Employer's crovince-wide policy. It is in essence ~ licensing arrangement not unlike the arrangement an individual may have with the operator of any parking facility :o provide for monthly parking of the individual's aut~cbi!e. , 22. Now assuming for the moment that the Employer here is re%uired~:~ act __~=~scnbly in the exercise cf his discretion, ~:hat ~ecisi~n h~s~3een made wherein he has exercised his dis- cretion? There ~s no allegation that the transfers wsre ~mu~suer or that :he Employer acted improperly in moving its operations.- There is no allegation that the collective agreement'has been breached. The only allegation is that it is "unjust , unnecessary and discriminatory" that at 5000 Yonge Street employees who choose to drive and park there have to pay a parking fee~ On the assumption that the Employer is required to act reasonably, if these allegations related to a term or condition of employment such as promotion or layoff, a claim of discrimination or unjust treatment may very well give rf~e to.a grievance over which the board would have jurisdiction. However, a simple claim that t'he Employer is being unreasonabl~e in its dealings with its employees . outside the e~plcyment is an insufficient basis for a grievance since no right of the employee covered by the agreement has been interfered with. SUMMARY 23. It is the Employer's submission that the complaints before this Board are inarbitrable because they are not based on a right under the Collective agreement. A board of arbitration has no jurisdiction to require the Employer to exercise its discretion in a "reasonable" manner, particularly where the Employer is acting on a matter which is not covered by the collective agreement and which matter is not a term or condition relating to employment. This Board has no juris- diction to address a complaint which does not arise from an alleged contravention of the collective agreement. THE RESPONSE OF THE UNION !. Contrary to the position set out by the employer in paragraph, 9 cf its brief, the Union is not asking that the Board provide some form of "justice" Rather, it is the position of the Union that the management's rights provisions of the collective agreement have been violated in the cir- cumstances of this case based on the agreed upon facts, as well as the facts which we intend to introduce if permitted by the Board to do so in order to establish the discriminatory nature of the employer's policy. According!y, the comments of Prof~ssor Swan in the Shannon Haladay case do not apply to the instant case. 2. The House of Lords' decision referred to in paragraph 17 has absc!utely no applicability to labour relations law. The contract in cuestion in the House cf Lords' case dealt with a commercia~ :ontract which was total!'~~ different in scope and concept from a collective acreement. Thus, when the House of Lords stated that there was no obligation on the parties to a comr~ercial contract to treat each~o{her reasonable or equitably, it could not have been intended that this statement would be applied to a collective bargaining relationship in a North American context. 3. It is tO be noted that the employer has totally avoided dealing with the more recent case between The Municipality of Etropolitan Toronto and Toronto Ci~i~ Employees' Union, Local 43 cr the Fa!conbridge decision of the Divisional Court which prefers the decision .in the latter ~unicipa!iSy of >~etropclitan Toronto case to the former decision relied upon by the employer. As indicated by the Divisional Court in the Falconbridge decision, the case relied upon by the Union is the "last word" on the subject .... Accordingly, for all of the reasons set out in our earlier brief, it is the position of the Union that there is an overriding obligation on the employer to administer the c6!lective agreement~fair!y. (See the co~Lents of Mr. Justice Weatherston, as he then was, in ~etro Toronto and Civic Employees' Union, 16 O.R. {2d) 729, at 733). THE RESPOS;SE OF THE EMPLOYER The parking policy does not, as the union would have you believe, "single out" any employee or group of employees for special treatment. The parking policy imposes, province- wide, specific fees for parking in designated areas, as set out in the map attached to and ~orming part of the policy. All employees of the employer who choose to drive to work and who choose to park on the employer's property, and who indicate to the emplcyer that theywish to be assigned park- ing privileges at their assigned place of work are subject to the parking policy. The employees whose "grievances" are presently before you have been and are being treated no differently than all other provincial government employees covered by the "parking policy" This group of grievors h~s-the same right as all Other employees to avoid the appli- cation of the parkin~ poticy~ to them., by: a) taking public transit; or b) parking cn property which is neither owned nor controlled by the employer. It is clear that where an employee at 5000 Yonge Street pa~'s a parking fee to the employ'er it is the result of his choice to drive and park on zhe employer's property. The employer has not discriminated against or treated the grievors any differently than all other employees. 2. Secondly, each and every case referr, ed to in the union's submis§ion, in support of their proposition that an employer is required to administer the collective agreement reasonably, deals with a situation involving directly the employment relationship. Specifically, in: a) Re Municipality of MetroPolitan Toronto amd Civic Employees' Union Local ~o. 43 et al 16 O.R. (2d) 730, the arbitrator was addressing a grievance dealing with an "unfair" (improper) transfer. b) Falconbridge Nickel Mines v. Sudbury Mine, Mi!l, and Smelter'Workers 80 C.L.L.C. 14,040, the arbitrator addressed a layoff grievance based on Article 10.06.of the collective agreement between the parties, which required layoffs to be done in a certain .order based at least partly on seniority. c) British ~eyland Motors Canada Limited v. Adams and International Union et al 74 C.L.L.C. 14,216 the court stated: "the issue before the arbitrator was whether the scheduling o~ the new hours...violated Article 1, 5.2, as not being satisfactory hours." The arbitrator was required to interpret "satis- factory hours", a term found within the collective agreement. d) Re St. Mary's Hospital, Kitchener and Nurses' Association St. Mary's Hospital (t974} 7 L.A.C. (2d) 102, arbitrator Brandt was faced with deciding whether a course in midwifery fell within "courses" entitling the employees to the "monthly educational increments" as set out in Schedule "A" which formed part of the collective'agreement. e! Re Metro Toronto Board of Corr~issicners of Police and Metro Toronto Police Association 26 L.A.C. (2d) 117, the arbitrator addressed the issue of assigning "inventory work .... unfairly or in a discriminatory manner". f) Re Photo Engravers and Electrotypes Ltd. and Toronto Printing Pressmen et al 25 L.A.C. {2d) 88, the board reviewed the employer's application of Articles lec~._ a~reement dealing with 6 an~ 22 of the col seniority and manning respectively. g) Re ~.~ississauga H-:'dro-Eiectric Coms. i~sion and ~ ~ f =~ectrical Workers International Brc_he ..... d o 24 L.A.C. (2d) !, Professor Rayner ~_alt .with 19 the issue of whether a job transfer which was forced on an employee with inadequate explan- ation was unfair. h) Re York University ~nd York University staff Association 24 L.A.C. (2d) 80, the board had to determine whether the grievor, who was required to leave her job post and purchase a coffee for her supervisor, was performing a duty of a 'ipersonal nature" ~ithin the meaning of that phrase in article 4 A.02 of the collective agreement. 3. In each of these cases where the arbitrator was not interpreting a specific article of the collective agreement, the management rights clause was qualified as in ~!etro Toronto 16 O.R. (2d) 730, where the collective agreement contained a provision stating: "3.02. The Metropc!itan Corporation agrees that it will not exercise any of the functions set out in clause 3.01 in a manner inconsistent with this agreement." The Falccnbridge case had language to the same effect. such qualification exists in the case presently before you. The employer has therefore not agreed to restrict its management rights here as was done in the cases relied on by the union. 4. Each of the cases relied on by the union involved an interpretation of a provision of the collective agreemeqt or a form of discrimination in the administration of the agree- ment as it applied to a term cr condition of employment such as a transfer. In the instant case the grievances do not allege' a breach of any provision of the collective agreement and the · ~ privilege of parking is not a term cr condition of employment since there is no requirement cn the employee to have his car at work, or to use his car in ~he performance of his job. 5. The union's submission that, because this matter is a management function carried out by the employer under the management rights clause, it automatically, if challenged, becomes a "difference in the administration of the agreement" and therefore, subject to the grievance procedure, would have the result of placing in the hands cf the union the right and ability to manage the entire operation of the employer through the grievance procedure. This is sc because any and every management decision not specifically covered by the'collective " a~ement whether or not it affects the employment relation- ship could, under the union's submissions, form the basis of a crievance For ' ~ ~ ~ ~' ~ ~ . exam~._~ i~ _n_ em~!oyer chose to raise the price of a service or product the union could grieve on the ~ , ~ in'the acreeme~ basis that since there '.~as nc p~o~_sion covering price increases this increase would be an exercise of 20. management discretion under the management .rights clause. · The grievance~'according to the union, would cause this to be a "difference in the administration of the ccllectlve a~ree- ment" because the decision would involve the exercise of management discretion~under the management rights clause. Management would have to act reasonably in the exercise of its discretion and a~ny price increase that was reasonable-c6uld be addressed by the arbitrator. ?his, we submit, is precisely the kind of mischief that the management rights clause is intended to do away with. 6. It was not the intent of the parties in drafting · the collective agreement, not the intent of legislature in enacting this statute, that the union, by grievin~ any matter· which is not within the collective agreement and is not a term or condition of employment, could bring within the admin~s- tration of the agreement and therefore the grievance procedure those matters which were intended to be left to management's discr'etion. 7. T~e legislature by imposing a management rights clause in the formV0~' s.!7 of the Crown Employees' Collective Bargaining Act has "deemed to provide that it is the exclusive right of the employer to manage..." and such rights is not · subject to negotiation or modification of the collective agreement. It follows then, that since a board cf arbitration set up specifically to determine the terms and conditions of employment does not have the j~risdiction to limit the management rights clause, that this board which is to super- vise the administration of the collective a~reement woul5 have no jurisdiction to make an award which would have the result of imposing on s. 17 of' the Act (the management rights clause) the requirement of reasonableness. This particularly so when such power is specifically withheld by statute from a board cf arbitration set up pursuant to the same statute to amend the agreement. The imposition of reasonableness b? this Board.on-the operation os s. 17 is in effect an amendment of the Crown Employees' Collective Bar~aining Act. ?his is clearly a function which can only be done by the legislature. 8. The management rights clause in the instant case shares an important aspect with the management rights clause in the Hunter Rose case. In each cf these cases there is no restriction requiring that the management rights clause be exercised in a manner'which is not inconsistent with other terms of the agreement. As indicated earlier thi~ is provision found in the collective agreement which was considered in the Metro Toronto case, 16 21. 9 a) There was no "singling out" or "discrimination" by the~emp!oyer. b) Al! cases relied on by the union ·deal with a term or condition of employment unlike the instant case. c) TO adopt the interpretation argued by the union would make ever~ management decision subject to review in the grievance procedure~ d) The management rights clause is not qualified here as it was in the Metro Toronto case. e) The Grievance Settlement Board has no power to amend the agreement and a statutory arbitrator who does have the power is prohibited from making the changes that the union's submission, if adopted, would impose. f) Adoption of the union's submission would in effect amend s.17 of the Act, a function which only the legislature has the right to do. i0. All of which is respectfully submitted. DECISION Having considered the evidence and arguments so akiy presented in this case, it is our view that the preliminary ob- jection of the Employer must be upheld and ~his grievance dis- missed. The basis for our decision lies in the view of this Board that the doctrine of "fairness" in the administration cf a cc!!ective agreement, to the extent that it exists, is limited in i~s application to those matters'where a discretion is ves~ed · in an employer by that document and, ncrma!!y, where that disrreticn is e~<ercised 'against individuals cr ~mall ~r~ups of The dectrine of "fairness" is a novel one of recent vintage and obviously must be used with care for, as the Employer here has noted, taken ~at its broadest, it would apply to any decisicn made by it which touches on the employment relationship. If used in such a way the effect~ would be catastrophic and essent- ia!ly contrary to the freedom of the parties to bargain. However, arbitrators have been aware of the difficulties inherent in too free a kand being given to man~qement in the exercise of unlimited managerial rights. Thus, some steps have been made to prevent possible injustices. ~ In looking at the cases where this doctrine has been applied certain features are noticeable. First, it would seem that %he challenged exercises of discretion~relate to points specifically mentioned in the relevant collective agreements. For example, in the Falconbridce case, the issue was the demotioh of an employee pursuant to a pcwer spelled out in Article 3.01 of the relevant'collective agreement as being the "exclusive righ~ and power" of the.employer. Second, the thrust of~..these cases suggest that the use of such discretion must be directed against a relatively few employees. A~ain, the Falconbridge case serves as an example. What one gathers then, in a positive way, is that arbitrators and the courts are attempting to limit the arbitrary exercise of' a right given to management against small groups cf emplc~ees. ~atura!iy, Ln an embryonic area of law the guide!~nes are s~mewhat unclear and it will take case taw to flesh out tke actua~ features of this 5octrine. -. In ouru. view, however, this doctrine d-es not extend · to the problem with which we are faced by the instant grievance. Here the evidence is clear that the Employer has formulated a ~olicy by which certain benefits are extended to'members of the bargaining unit accordin? to a ~clicv they have. e'.'olved. There is no obligation placed upon the..Empioyer to provide these benefits by the collective agreement, n6r are these mentiuned explicitly or by implication. Nothing prevents the Employer from withdrawing them completely or giving them completely. They merely have stated that they will give such benefits at certzln locations and have done so. There is no allegation that their own policy has been contravened .to the detriment of any individuals. Rather, the policy itself is at=_cked In cur view th~s arbitrable would really be a case cf "management by arbitration", ~he often dis- credited bug-bear of early arbitral 4urisprudence. In other words, if this policy can be attacked and replaced by the views of arbitrators, what facet of management would be ir_~une? Similarly, if this broader view of this doctrine were acce~ed, why bother with a collective agreement or bargaining at all? Given the foregoing, it is unnecessary to deal with other aspects of nhe views expressed by 'the par~ies. In our opinion, the foregoing is dispositive cf the matter. In :cnclusion, however, we woul~ ]'~ ~-. iKe to 5hank koth ~' _ ~.._~es for their =-,'sreme!y useful ' assistance and !uzid arguments in this matter. 24. For the above reasons, then~ this grievance is dismissed. DATED at London, Ontario, this ~day of 19~i. A. Reistetter, Member D. And_rson, ~mber