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HomeMy WebLinkAbout1989-1287.Laframboise.90-10-25· ' ~};.~i, · '~..' .~..-i ,. ,,,., ... .. ?:.~ ?,.,.., ~. · ONTARIO EMPLOY~'$ DE LA COURONNE - .~,,' .-.~'~:~ ~.';'~ '. *~. ~ L:~ CROWN EMPLOYEES DE L'ONTA RIO 180 OUNOA$ STREET WEST. SUITE ~;00, TORONTO. ONTAFI..'O. M5G IZ8 TELEPHONE/T~£~-PHONE: f416) 326- ~388 lBO, RUE DUNOAS OUEST,. BUREAU ~'~00. TORONTO rONTAR~O.k MSG IZ8 ' FAC$tMILE/T~L~COPtE : (416) 326- 1396 1287/89 IN THE MATTER OF AN I%RBITI~%TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Laframboise) Gr~e~or The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: T. Wilson Vice-Chairperson P. Klym Member H. Roberts Member FOR ~H~' K. Whitaker GRIEVOR .Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARIN~ February 22, 1990 9087108 GSB1287/89 DECISION The grievor is a seasonal employee. He works~ as a Senior Fire Crewmember (RT2 classification). He worked three seasons 1987-1989. In 1989 he was on contract from April until September 15. A contract beginning on September .13 ~or a Road Maintenance Crew Leader became available. The grievor was not appointed to that contract, It was awarded toAndrew Lalonde. That C~ew Leader contract in fact ran until December 22 but it is not a seasonal contract. The grievor alleges that there was nepotism involved in the hiring process and that the most qualified person was not hired. The Ministry. raises %he preliminary objection that appointment to non-seasonal contracts' is not receivable by this Board. By way of background and in order better to understand the. legal issues involved, we set out certain statutory and Collective Agreement provisions that were referred to by Counsel. Public Service Ac__~t R.s.o. 1980, c. 418. s. ~ (1) A'mlnister or any public servant who is deslgnal~ed in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any ministry over 'which he presides. ~ 2 ) Any appointment made by a designee under subsection ~ 1 ) shall be deemed to have been made by his Minister R.S,O. 1980, c. 418, s. s, 9 A person who is appointed to a position' in the public service for specified period .ceases to be a public servant at the expiration of %ha~ period R.S.O. 1980, c. 418, s, 9. Crown Employees Collective Bargaining Act, R.S.O. 1980, c.' 108. s. 7 Upon being granted representation rights, the employee orga~lzation.. 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 %o 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, promot .ions, 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 ofiice or political activities or trai~ing and development. R.S.O. 1980, c. 108, s. 7. s. 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, o rganization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of' equipment and classifications of positions; and (b) merit system, training a~d development, a~d · superannuation, the governing principles of which are subject to review by the employer .with the bargaining ag ent, and such matters will not .be subject of collective bargaining nor come within the jurisdiction of a board. (2~. In addition to any other ' rights of ~rievan~e -under a collective agreement, an employee claiming, 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 e~ployment without Just cause, may process such matter in accordance with the grievance proce..dure provided in the Collective Agreement, and railing £inal determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. R.S.O. 1980, c. 108, s. 18. A specific Collectiv~ Agreement provision alluded to in argument was section 3.20.1 as follows: 3.20.1 Seasonal employees who have completed their probationary · period shall be o~fered employment in their foyer positions in the following season on the basis of seniority. Union Counsel set out in argument the evidence to which he stated the' Grievor would testify if .the Board should take jurisdiction. The employer's · Counsel similarly advised the Board' of the evidence which its witnesses would give if the case proceeded. It is not our intention to set out in detail at this point what the witnesses were expected to testify to; suffice it to say that there would be serious factual issues in dispute and questions of credibility to be resolved. In a nutshell, the grievor alleges nepotism in its most pejorative sense, and the Mlnistry's counsel's witnesses would claim that his allegation is wholly without· foundation and that the selection of Lalonde was wholly justifiable. A number of straight forward issues are not, in dispute. The position in question was governed .bY sections 3.3 to 3.15 of the' Collective Agreement and there is no posting requirement therein or ~nder the other sections of the Collective Agreement which apply to such employees. The position was not. posted. The Ministry drew to the Board's attention a n,,mher of its decisions in which various arg~lments have been made by the Union in 'orde~ to' bring Board review of appointments to the unclassiZied staff and all have failed. One of r these is _Daniels an_~d Ministrv of' the Solicitor General (GSB 1§44/87). In - 4 - Daniels, the Union argued that where a job competition for a classified'position is opened to unclassified employees, they can then grieve the competition under (1) s. 18 (2) (b) of Crown Employees.Collective Bargaining Act as an"appraisal";. and (2) under the preamble of the Collective Agreement relating to the establishment and maintenance of "satisfactory working conditions;" the Board rejected both arguments. Another decision was Shiple¥ a~.._d Ministry CorrectionalServices (GSB 223/86). The griever who was anunclassified emp'loyee on ~ixed term contracts was not renewed because his pending marriage to a co- worker uiolated the Ontario Manual of Administration (Section 5-26-14) which prohibits spouses occupying positions in the same immediate work area or under the same supervisor. For the purposes of deciding jurisdicti°nthe Board assumed the policy in the OMA was illegal. But the Board found it had no jurisdiction under s. 18 (2) of CECB Act and that there was no violation of the Collective Agreement. .At page 9, Mr. Samuels for the Board states: "Counsel for the Union before us argued that the situation is' different when we know that but for the employer's adherence to the policy (which it is argued is illegal because it is contrary to the Ontario Human Rights Code 1981), the griever would have been renewed. With respect, we don't see how that Changes the situation. Even if we were to decide that the policy is illegal, we cannot get around the fundamental Point that the griever had no contractual right to renewal. There has been no violation of any Jcontractual right." With regard to Board review of the exercise of discretion by the employer, 'the Ministry referred to D'Stlva and Ministrv of _Environment GSB ~3S / ~ . In that case, the griever wished the Board to review the' as'sl~nment of temporary positions. The Ministry objected that the temporary assig~ments were management has a right to make decisions'aboutthe movement of employees~' That power must not be exercised in such a way as not to abrogate the seniorityscheme. within the Coilective"Agreement. Accordingly, it cannot be. exercised arbitrarily, capriciously or in bad faith so as to impact on the accumulation of seniority rights. Under the Collective Agreement, a nonseasonal contract'counts as Probation towards an employee who becomes classified: see Section 3.13.1~ "Where an employee is appointed to the Classified Service and has worked more. than twenty-four (24) hours per week on a continuous basis immediately prior to .appointment to the 'Classified Service, the time he actually worked within the previous year may be considered to be part of his probationary period to.a maximum of six (6) months." So if the grlevor has been appointed to the classified staff in December he would have been able to claim the subject contract as part of his probationary period if he had not been arbitrarily denied the contract bY management. Furthermore, his seniority date would have run from "the date on which an emgloyee commences a period of unbroken, full-time service, immediately prior to the appointment to the Classified Service (Section 25.1 (b)) i.e. in this case from the beginning of his seasonal contract in 1989 through the non- seasonal contract. Counsel also argued that in s.. 3~19.1 and 3.20.1 "seniority' means-all seniority not just seasonal seniority and therefore includes contract time in non-seasonal work such as the subject contract. The Union's second argument was based on the Board's decision in Lenehan an__d Ministr~ o__f Health (GSB 424/81). The Board will review the' exercise 'of. a power or .right o~ management' where there is a claim that it has be.es exercised in such an unfair manner as to give one employee an advantag~ over , ,... ... another. Such fa~ouritism 'is contrary to the Collective Agreement.. - 5 - governed by section 6.6.1 which exempted temporary assignments from Article 4' (Posting) unless they were for mo~e than six months and the dates of the term were established.two months in advance. The Union argued that since the parties had addressed temporary assigr~ments in the Collective Agreement, the Board should interpret the Article broadly and infer that the parties intended all temporary assignments would'be filled reasonably. But the Board concluded that since there was no right in the Collective Agreement, no question of the reasonable exercise of discretion by management arose to be renewed by the Board. At page 4, the Board states: "On a careful review of the SUbmissions of counsel, the Board has concluded that the employer's motion must be upheld: Article 6 is expressly limited to temporary assignments which meet the specific stipulations in Article 6.6.1 { i) and (ii). Article 6.6.2 precludes the Board from extending any rights with regards to temporary assignment that do not come within Article 6.6~1. The parties have expressly indicated in Article 6.6.2 that the .only rights under the Collective Agreement ~with respect to temporary assignments are those provided in Article 6.6.1..." So argues management here, appointments are exclusively within management rights in CECB Act s. 18(1) and nothing has been negotiated in the Collective Agreement with respect to posting rights for seasonal unclassified employees. Union Counsel did not challenge those authorities. Rather he stated that he had two new approaches to argues (1) the first argument is based on Photo Engravers and Electrot~pers Ltd. and Toronto '_P, rintin~ Pressmen and AssiStants, union, No__=..1__0 (19SO), 25 L.A.C. '(2d)BB. He argues.that ~he · Collective Agreement creates a seniority scheme that applieS,Do uncl~ss'.i~ied" staff and that the Collective Agreement has %o be so interpreted as ~o the integrity of the seniority scheme. Section 7 of CECB Act recognizes ~'~hat *~- -- 7 ' -- In reply, Counsel for the' Ministry argued that we look to section 18 of CECB 'Act and the Collective Agreement. SectiOn 7 only tells us what negotiable'. With respect to seniority, you do not look at the effect of an appointment to determine whether a collective agreement right is being exercised. And the subsection 25.1 (b) argument was raised in Daniels and disposed of. He further argued that 3.19.1 applies only to seasonal contracts. Lenehan, a~ old case, dealt with vacation which i__s in the Collective Agreement. What is novel in conception in the Union's argument is reliance here on section 7 of CECB Act. It is clear from section 7 that the parties may negotiate Over, among other things, "promotions, demotions, transfers, lay-offs, or reappointments of employees" and udlder subsection 18-(1) (a) they may not negotiate "aPpointments.." The parties have negotiated and provided for postings for classified positions and' limited job security for seasonal employees. They have not negotiated posting req%lirements for appointment tO contractual positions. The result 'is that under the Collective.'Agreement, management does · not specifically exercise'a right under the Collective Agreement when it appoints to non-seasonal contract positions (unclassified). None of the decisions cited . to this Board have shown this Board as reviewing any decision of n~anagement 'where there was not either an issue under subsection 18 (2) of CECB Act or a right under the Collective Agreement. The only items to which the Union could point were those relating to Seniority. But the rights referred to are rights that only arise if an employee is actually appointed and which obviously inevitably arise i__f you are appoi,nted, but a seasonal employee has no rights under the " Collective Agreement to be appointed %o a non-seasonal fixed term contract - nor.. · ~.,. indeed does anyone. He is so-to-spoak, still outside the gate so far. as. acquit/rig rights. ' The mere fact that he may add on to existing seniority if. he. ' ~' - 8 - is appointed~does not brihg him within the terms of the Collective Agreement. In this respect, he is in no' different position from a co-worker seeking reappointment to a non-seasonal fixed term contract. That brings us to sections 7 and 18. The difference between management powers in the two sections is that the Union may negotiate those referred to in section 7 and not those referred to in subsection 18 (1). Obviously, the true source of appointment and reaPpointment lies in the Public Service ~ct. CECB Act then tells us which of those are open to negotiations. Apart from the right, to negotiate, I see no other distinction between those rights referred to in section 7 and subsection 18 (1). Rights referred to in section 7 became modified by the terms in the Collective Agreement. Those in subsection 18 (1)' are to some extent limited by the grievance and arbitration provisions of subsection 18 (2). · Accordingly, we are brought to the two Court of Appeal decisions' about the reviewability of management rights, namely: Metropolitan Toronto Board o__f'Commfssioners o_~f Police __.a~d Metropolitan Toronto Police Association (1981), 124 D.L.R. (3d) 684 and Council o~f Printing Indgstries o__f Canad~ and Toronto Printing Pressmen and Assistants' Union No.' 10 (1983),'42 0.R. (2d) 404. The Metropolitan Toronto Board of Commissioners of Police case involved an Arbitration Board Award which held that the police management had unfairly exercisedits decision-making over the awarding of overtime in the .an~ualtaking. of inventory. The effect had been to discriminate against the grievors. The Court of Appeal set aside the Award'. At page 687, the. Court ~tates, ' - 9 - The 8tinson ~and the Marsh cases were decided on different factual situationsand on different collective agreements from the present one. If, however, the majority of the Divisional Court in the Marsh case were purporting to lay down a general .rule,· that all decisions of management Pursuant to a management rights clause which do not contravene any other provisions of the agreement must· stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with respect we do not agree. The decisions relied 6n by Weatherston, J. in %he Mars___~h case, as that learned Judge rightly pointed out, dealt with procedural fairness in proceedings before domestic and statutory bodies; they did not deal with the interpretation of collective agreements.. In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred, on it by that clause, unless those powers are otherwise circumscribed by·express provisions of the Collective 'Agreement. The power to challenge a decision of management must be found in some provision of the Collective Agreement. Ms. Kenny s~bmitted that we would imply a ter~ in the Collective Agreement that the management rights clause would be applied fairly and without discrimination. With respect, we do not agree. Article 17.06 o2 the Collective .Agreement provides: "17.06 The arbitrator shall not have any power to add to, subtract from, alter, modify or amend in any way, any part of this Agreement nor otherwise make any decision inconsistent with · this " Agreement, which expresses the full and complete ~ understanding of the parties on remuneration, benefits.and working conditions." Moreover, as can be seen, Article 3.01 (b) [the management rights clause] ~pecifically refers to discrimination in promotion, demotion or transfer, and to discfplining a member without reasonable cause and permits these matters to be the subject of a grievance. The Collective Agreement is a detailed document covering some 40 pages. Having regard, to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a term that the management rights clause will be applied fairly and without discrimination. If such a term were to be implied, it would '~.-. mean that every decision of management made under .the -'~'/. ....... exclusive authority of the management rights clause WOuld be .' liable to challenge on the grounds that it was exercised unfairly or disCriminatively. In our opinion, this WOuld be contrary to the spirit and intent of the Colleotive Agreement. - 10 - The'arbitrator erred, therefore, in finding that the grievance could be founded on a failure by the Board to exercise fairly and without discrimination the rights Conferred on it by the management rights clause. When the arbitrator determined that there was no provision in the Collective Agreement that governed the taking of inventory and the distribution of overtime, she should have ruled that she had no jurisdiction -~. to deal' with the dispute because of an alleged improper exercise of management rights. Two years later the Court of Appeal decided the Toronto Printing Pressmen case. The issue in that arbitration ·related to the classifying of certain employees; i.e, their being placed on permanent staff, The grievances alleged a violation of Article 6 [the seniority provision] of the Collective Agreement. "6.03 All other things being reasonably equal, seniority shall govern as between individual employees in all cases of ·re-hiring, laying off of staff., or promotion to higher rated positions within jurisdiction of this Agreement. · "22. The employer shall permanently classify thirty- four (34) employees under this agreement." The. evidence was that after the signing of the contract the employer needed to classify five employees. Employees not permanently classified were referred to in practice as "t~mporary employees." They were affected by 22 (f): ., 22 (f) The employer agrees that during periods of press · ' shut-down for preventive maintenance and clean-up' no permanently classified employee shall be laid off. '~' "" Being classified did not mean more pay although ~here .wer~:',greater.' -.:: pension benefits and dental benef{ts. ~ The princ~ipal advantage was in ne~er "~ .'~'.. .. ~'" ,losing a week's'pay because vacation could be taken during a shut-down ~erl,°d' ,~ ~., ...,' - 11 - Mr. Adams'as the'Board Of Arbitration (25 LAC (2d) 88) states that "because permanent classification does not result in a higher rate of pay, it cannot said on the wording of the agreement, that the permanent classification amounts to a promotion." However, is the company given a free hand to make such decisions in any way it pleases? For example, could it permanently classify· employees according to hair colour or sunny disposition? What if its decision was made in bad faith or based on criteria suggesting invidious discrimination? in determining the extent of the company's discretion ~nder Article.22 the Collective Agreement must be read as a whole: see R__e C.N.R. Co. and Canadian Telecommunications Union Division No. 3 o__~ United Teleqraph Workers et al. f1975), 63 D.L.R. (3d} 385 at p. 394, 10 O.R. (2d) 389 (Ont. C.A.). If the company is correct about the proper meaning to be attributed to the permanent classification of an employee, the effect on the seniority rights.of employees not so classified is fundamental. Once permanently classified, an employee is more or less immune from lay-off and this means that the · impact of contractors in the company's work force must be borne by the so-called temporary employees, in'other words, the job security rights of employees classified by the company. under Article 22 are said·to be the exception to the seniority rights provided by Article 6, in effect abridging the latter rights of all employees not so classified.' If this is a proper construction of the Agreement as we think it is, the well-knownarbitral concern over the abridgement of seniority rights reflected in the following quotation would support the implication of a contractual intent that the company must exercise its discretion ~nder Article 22 in a reasonable manner, without discrimination, bad faith or arbitrariness." "Seniority is one of the most important and far-reaching benefits which the trade union movement has been able tO secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise %o such important rights as relief from la~off, ·right of recall to employment, .vacations and vacation pay, and .~enslon rights, to name only a few. It follows, therefore., 'that. an employee's seniority should only be affected by very clear language in the Collective Agreement concez~%ed and that arbitrators should construe the .Col'lective 'Agreement with the utmost strictness whenever it is contended that an employee's seniority has been ~orfeited, truncated or abridged under the relevant sections of the Collective Agreement." R_~e U.E.W., Local 512 and Tunq-Sol of .Canad___a Ltd. (1964), 14 L.A.C. 161 (Reville} at p. 162. It should also be noted that, by paragraph 6.01 a lay-off that exceeds three months will result in a break in the employ~ee's seniority and thus ·complete forfeiture of all seniority accrued to the point in time. Thus, the consequences of the company's interpretation of permanent status can be very severe for employees not selected by the company under Article Turning to the specific statements in .the Agreement pertaining to the company's powers, it can be seen that Article 4, the management rights clause, makes no explicit reference to the company's right to permanently classify employees, explicitly conveying this right' to the unfettered discretion of management. 'Indeed, Article 22 itself does not provide that employees are to be permanently classified "in the ~sole discretion of the management.'" The existence of such'a stipulation 'would have considerably Strengthened the company's position, although there are arbitration awards which have implied the constraint o'f reasonable conduct notwithstanding: see R~e St. Mary's Hospital, Kitchener and Nurses Association, St~ Mar~'s Hospital (1974), 7 L.A.C. (2d) i02 (Brandt). ~ccordlngly, there is no explicit language in. the Agreement that runs against 'the conclusion that the parties did not intend the company's decision-making ~nder Article 22 to be unfettered. Mr. Adams then reviewed a number of cases dealing with the finding that parties to a coilecti've agreement must administer and interpret it reasonably as' for example International Nickel Co. of Canada Ltd., an~d U.S.W, , Local 6500 (1977), 14 L.A.C. (2d) 13 .(Shime) at p. 19. The Board then foun~ that th~ employer's cla~sif¥~n~ had been discriminatory, arbitrary and unsupportable. The Court of Appeal upheld the Award and reversed t.,he Divisional Court which had quashed the Award under the reasonin~ of the Metro~61itan,Toronto Police Commissioners case. . ..~ · ., '-~-.~.. . PrOViSions of the Collective Agreement. See for example Shipley su~. Section '; does not specifically confer juri~di6~ion on the Board for the simple reason ~at its ~ction is s~pl~ ~ define ~at is open to negotiation. What is, say ~e least, ~usual ~out ~is ~ea is ~at it should be i~ediateiy obvious to eve~0ne ~at no~i c~ons o~ statuto~ ~te~re~tion must Surely lead to. ~e co~ciuslon ~at nei~er s. 8 o~ ~e P~lic 8e~ice Act nor s. 7 nor s~section 18 (1) o~ CECB Act could ever have been ~tended by ~e legislature to empower ~e Cro~ to appoint persons to ~e P~lic Se~ice on nepoti~ ~d ~at ~st ce~ly be ~e not only of ~e classified se~ice bu~ also even o~ ~e ~classi~ied se~ice. I~ ~e allegation {~d at ~is s~ge is only ~ ~legatlon) is .~at ~e position ~ ~estion was ~illed ~ a cor~p= m~er, ~en it is cle~ly ~ allegation ~at' ~e appo~nt was wholly illegal. ~e~ore it see~ ~ us ~at ~e real isle must be one o~ ~e ~urisdiction ~is Board ~ ente~ain ~ allegation Dy ~ employee ~at he was denied oDpor~i~y to be appointed to ~ ~class~fied position by reason of There is some parallel here wi~ ~e shirley case where also illegali:y .was alleged, n~el~ tr~s~ression o~. ~e ~i-discr~azion provisions of Rights Code. ~ ~at c~e, .~ere was at le~t ~o~er ~ai avail~ie, ~e ~ Rifts Co~ission, ~ o~ c~e, however, lZ ~e Griev~ce Set, caen= 'Board is ~avall~le, I ass~e ~e oni~ o~er ~al would ~ ~e cou~ which is ~t a ve~ p~ctical remedy ~der ~ese circ~s~ces. '~ . ~ ~ere a ~vision o~ ~e Collective A~reemen: ~voived? The Union rell~ on ~e sen/ori%y 9~visions" ~ ~e ~ case ~e employer was ~ecificall~ ~da~4 by ~e Collective Agreement itsel~ =o classify employees (i.e. aDpo~= a ce~in ~u~er to ~e 9e~.ent classl~i~ s~Zf ~d ~a= - 15 - directly affected the seniority and lay-off rights set out in other provisions. ) Obviously, whenever someone is appointed or reappointed to the public service his seniority rights are affected or if he is not appointed, or not reappointed, they are affected. We do not believe that we are dealing with "promoEions, demoEi°ns, Eransfers, lay-offs" (section 7). It is either an appointment or a reappointment. Because .the person involved was on seasonal ·contracts and the position in question was a non-seasonal position, it may be an appointment rather than a reappointment. Reappointment seems to refer to reappointment to the 'same position as appears from s. ~ of the Public Service Act' and as is clear in s. 3.20.1 of the Collective Agreement, i.e. a renewal of the contract or reappointment to the same posi%ion. Accordingly, we believe we are probably. dealing here with "appointment." What the Union could even then have negotiated was the right to a posting. But in any event there are no specific contractual terms on which the grievor can actually rely as being directly affected. The Board has always refused to review both appointments and reappointments (subject to 3.20.1 for seasonal contract reappointments) though they invariably and inevitably affect the accumulation of seniority. Our reading of the CECB Act,+ the Public Service Act and the Collective Agreement is that there is in law no reviewabllity on these facts. In a situation such as the present Where there is an allegatl'on o~ nepotism, the absence of reviewability by this Board is perhaps from a policy point of view quite unfortunate. At the same time, we make no · ' 1- comment at this time with respect to policy on reviewab~lity for "reaso.aab!e.~e~' which i'8' a much broader category..The remedy for this t~e of grievance,. an allegation of ~nepotlsm, seems now to be through renegotiations with respec.t to the Collectiye. Agreement. or a legislative alteration in the jurisdiction ~f this Board to permit--'it .to adjudicate this specific issue. · Finally,' I turn to the Le~ehan decision which was the second argument of the Union. Unfortunately, that decision does not assist the grievor. In that case, the employer exercised its discretion in scheduling vacations to favour one employee over another. But, the discretion was to be found withf~n the Collective Agreement a~nd reflects the generally accepted approach that the administration of the Collective Agreement itself must be reasonabl.e: in that respect it is on all fours with the CPI case. The grievor's problem is that the discretion in his case is found outside the Collective AgreemEnt and does not directly affect his collective agreement rights. ACcordingly, the grievance is dismis~ed. DATED at Toronto this 25thday of October , 1990. ~ - / Thomas.H.' Wilson, Vice-Chairperson P. K1Fm Member H. Roberts M~-mher " ..