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HomeMy WebLinkAbout1989-1811.Miller.90-10-11 ONTARIO EMPLOY~:$ DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG ~Z$ TELEPHONE/TEL~-PHONE: (~6) 326-~388 180, RUE DUNDAS oUEST. BUREAU 2~00, TORONTO (ONTARIO). M5G 1Z8 FACSIMI!.E/TELECOPIE .' ~4~5) 325-r3~6 1811/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 0PSEU (Miller) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: G. Simmons Vic~-Chairperson M. Lyons Member G. Milley Member FOR THE M. Bevan GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE J.F. Benedict EMPLOYER Manager, Human Resources Management Ministry of Correctional Services HE~RING: August 30, ~990 2 The grievor claims "that my employer does not hire employees that meet my employer's physical standards". The redress that he seeks is: (1) "That MSC publish quantitative physical requirements for employment in the MSC relavent (sic) to each classification". (2) "That the employer be required to enforce these requirements in order to receive employment". Counsel for the Employer raised a preliminary objection in that the matter that is before us is a policy grievance disguised as an individual grievance. He informed the Board that the Union was agreeable to having this preliminary objection resolved before proceeding to the merits. Counsel for the Employer stated that the grievance statement itself, which the Union confirms, in itself reflects the issue as being a union grievance. In essence, there is nothing asked for the grievor on his own behalf and instead wants the standards to apply to everybody within the Ministry. Moreover, the grievance is signed by the grievor and not by the Union president or vice president as set out as a requirement in the Collective Agreement in Article 27.12.3. In support of his position, Mr. Benedict referred us to the following cases: Olbeu ~S. Anderson) and the Crown in Right of Ontario (Liquor Lic~nce Board of Ontario), 1028/86 unreported (Watters) October 28, 1988; Olbeu (T.A. Fox) and the crown in RiGht of Ontario (Liquor Control Board of Ontario), 572/82 unreported (Draper), October 19, 1983; OPSEU (J.R.T. Katchay) and the Crown in Right of Ontario (Ministry of Correctional Services), 354/83 unreported (Samuels), December 19,~ 1983; OPSEU (ELHADAD) and the Crown in Right of Ontario (Ministry of. Health), 712/84 unreported (Delisle), July 15, 1985; OPSEU (C. Garth Elliott) and the Crown in Right of Ontario (Ministry of Correctional Services), unreported (Draper), January 3, 1986. Basically, the. above cases stand for the proposition that a union grievance cannot be transformed into an individual grievance and this is particularly so because of the Collective Agreement between the parties in Article 27 which sets out a series of ways in which a grievance may proceed. Article 27.2 discusses individual grievances. Article 27.12 discusses union grievances. There are, in addition, procedures that are to be followed in respect to layoffs, dismissals, insured benefits, sexual harassment~ and classification grievances. The Union argued that it did not contend that this was better processed as a Union grievance. However, he added that the grievor feels that he has a legitimate .individual grievance. During the course of these proceedings the grievor stated that the Union was not representing him. However, the Union informed the Board that it was indeed here as his representative. Following a short recess, the Board ruled that pursuant to Section 20(8) and (1)(k) and 18(2) of the Crown Employees Collective Bargaining Act together with Article 1 of the Collective Agreement, which is the recognition clause, the Board continued to hear representations from the Employer and the Union. 4 The Board concurs with the earlier decisions cited above that this matter is one for a Union grievance. It agrees with the comments made in the Fox decision that individual and union grievances are mutually exclusive. This was also adopted in the Anderson decision. Similarly, the instant situation is similar to that of the Katchav award which stated that the grievor was not personally affected in the situation there existing. At page 3 of that decision it stated, "It is clear in the jurisprudence that an individual grievance must concern the grievor's own situation, and one must read the words 'complaint' or 'difference' in light of this established law." Further, in ELHADAD it was stated on page 1 that, Counsel notes that the grievance before us is not an individual grievance: it purports to be on behalf of all members of the local whereas the provisions in the Collective Agreement speak consistently of an employee proceeding with a grievance. Counsel notes that the grievance before us cannot be a union grievance since it is not signed by the President or Vice-President as the Collective Agreement requires. And in C. Garth Elliott the following comments appear on page 4: ...we are of the opinion that this is not a proper case in which to make broad findings of fact concerning the relationship of secondary tobacco smoke and health, or on which to base a declaration of employee rights with respect to secondary tobacco smoke under the article. Moreover, this is not a union policy grievance. Nor have the grievor's fellow employees joined with him in a group grievance. The grievance is individual in form and its subject-matter is personal to the grievor. It is narrow in scope in that the griever seeks relief only in respect of meetings which he is required to. attend and over which Freedman exercises authority and control. The grievance in that case was dismissed. In our respectful opinion, the matter that is before us is properly a matter for a union grievance. The griever is not seeking any relief that would affect him personally. The parties have devised elaborate processes or procedures for various types of grievances in their Collective Agreement. We must respect the bargain that was struck and accordingly we find that the grievance is not arbitrable and is hereby dismissed. Dated at Kingston, Ontario this llth day of October , 1990. C. Gordon Simmons Vice Chairperson Michael Lyons Member George Milley Member