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Home My WebLink About1993-1118.Union Grievance.95-06-20 r",.., -'~~ \ I ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO <D# 111111 GRIEVANCE COMMISSION DE , ov+ !\- ~~O SETTLEMENT REGLEMENT BOARD DES GRIEFS ~...~~b (}Jv 4, 180 DUNDAS STREET WEST SUITE 2100, TORONTO. ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TltLECOPIE (416) 326-1396 - . /' RECEIVED G$B # 1118/93 JUN 201995 OPSEU # ATG - U781 / rUBLiC SERVICE IN THE HATTER OF AN ARBITRATION /\PPEAL BOARDS Under 1 1- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ~ THE GRIEVANCE SETTLEKEN'r BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (~inistry of the Attorney General) Employer \ BEFORE: L. Mikus Vice-Chairperson E. Seymour Member D. Clark Member FOR THE K. Whitak~;r GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE M. Fleishman EMPLOYER Counsel Crown Law Office Civil Ministry of the Attorney General HEARING February 1, 1995 ) \ / -- ------ - ~ ~ '" ! t. ( i - We were appointed to convene a hearing into a grievance dated July 5, 1993 alleging that the Ministry of the Attorney General was in violation of the collective agreement by failing to post regular classified court reporter vacancies at numerous locations around the province At the commencement of the hearing Mr Whitaker, counsel for the Union, advised the Board that there was a preliminary issue as to whether the grievance dated July 5, 1993 was the actual grievance to be heard. , There was agreement on the historical facts leading to this dispute. The Ministry had, for some time, employed court reporters in classified and fee-for-service positions. In 1984 the Union challenged that practice by grieving that the Ministry had violated the collective agreement by failing to deduct dues from the wages of all court reporters, all staff engaged ih performing wqrk in Provincial courts- Civil Division and Small Claims court offices, all individuals providing interpreting services in any court of the province, all individuals engaged in the capacity of Provincial Prosecutor and a named individual r serving as Senior Law Clerk in the Legal Services Branch of the Ministry of Government ~ Services. That grievance was dated October 30, 1984 It was the position of the Ministry that a challenge to the exclusion of these groups from \ the bargaining unit was a matter for the Ontario Public Service Labour Relations Tribunal. ( It advised the Union that an application in respect of the named Senior Law Clerk had already been filed with the Tribunal. 1 '" c. ( 2 The Union wrote to the Grievance Settlement Board requesting a hearing and received a letter dated January 3, 1985 a9knowledging that request. Subsequently a hearing was scheduled for February 21, 1985. In the meantime the Union had applied to the Tribunal for a ruling as to the status of the fee-for-servicecourt reporters and a declaration that they were in the bargaining unit. By agreement of the parties the grievance was to be held in abeyance awaiting the decision of the Tribunal. I In 1986 an application"for certification was filed by the Association of Court Reporters. That application and the Union's application were heard together and in September of 1988 the Tribunal ruled that, With some exceptions, the fee-for-service court reporters were subject to the Crown Employees Collective Bargaining Act R.S.O 1980, Ch. 108 as amended. In May of 1990, the Tribunal further ruled that they were within the bargaining unit. -- Following that ruling, significant negotiations took place to determine issues related to retroactivity, classification, compensation and status. All of the outstanding issues were resolved during those negotiations with the exception of the issue of Job posting. The Union took the position that the grievance dated October, 1984 was an omnibl.!s grievance encompassing all issues related to bargaining unit status, including the issue of whether the Ministry was obliged to post vacancies in these positions dating back to the date of the original grievance. It is that grievance, argued the Union, that this Board should rule on, not the 1993 grievance. / I ~ ( 3 \ I The Ministry took the position that the is~ue of posting job vacancies did not arise until \ 1993 and was not part of the original grievance. Further , it argued that the only grievance before this Board was the one dated July 1993, and that was the only grievance this Board had jurisdiction to hear The parties asked the Board to decide this question so they could determine what evidence it would be necessary to call on the merits. I The parties agreed that they were unable to assist the Board with evidence of the ~, substance of the discussions from 1984 to the summer of 1994 They did agree that the first significant negotiations took place in the summer of 1994 at which time the Union -.i: advised the Ministry that it considered the issue of job posting to be part of the issues raised in the 1984 grievance. " It was the position of the Union that, in the absence of intrinsic evidence of the intentions of the parties, this Board must determine the scope of the 1984 grievance by reference to the actual wording of the grievance. That grievance alleged that the 'Ministry was refusing to recognise that the Union was the bargaining agent for the positions named in that grievance. The Union w~s seeking a ruling that these positions were in the bargaining unit and, if it was, successful, it followed that all of the rights and obligations ) under the collective agreement would apply There was no need for the Union to particularize each and every provision that would apply, nor was it necessary to grieve every provision that it alleged would apply If these positions were found to be in the bargaining unit. the persons occupying those positions would automatically be entitled '- I ) ... ( 4 to all of the rights under the collective agreement and the Ministry would automatically be obliged to apply all of those provisions. Those obligations would include the requirement I to post vacancies according to the provisions of the collective agreement. This Board, argued the Union, should interpret the 1984 grievance to include the issue of posting the disputed positions and allow that grievance to proceed. In the alternative, if this Board should rule that the'1984 grievance did not encompass the r issue of job posting, the Union asked the Board to amend that grievance accordingly so that it could deal with the real issue. In this case, there is no evidence of prejudice to the Ministry if the Board were to ~lIow the amendment. In support of its position the Union referred to the following cases: Re Blouin Drywall ,/ Contractors Umlted v. United Brotherhood of Carpenters ant;.l Joiners of America, Local 2486 (1975), 75 C.LL.C. 14,295 (Ontario Court of Appeal), Re Uquld Carbonic I Inc. and United Steelworkers (1992), 25 LA.C. (4th) 144 (Stanley), Re Mlsslssauga Hydro-Electric Commission and International Brotherhood of Electrical Workers, - Local 636 (19~2), 28 LA.C (4th) 176 (Springate), Re Municipality of Metropolitan I Toronto and Canadian Union of Public Employees, Local 79 (1994), 40 L.A.C 388 I (Springate), Chlasson/McDonaldand Ministry of Community and Social Services 537/91 rN Low) and Carreau and Ministry of Government Services 418/89 (Fisher) I / ~.. ( 5 - Mr Fleishman, counsel for the Ministry, did'not disagree with the principles relied on by the Union regarding the jurisdiction of the Board to consider cases on the merits and not ( be influenced by technical arguments designed to frustrate that process. Nevertheless, he argued that none of the cases relied on by the Union assist the Board r because the only grievance before this Board is the one dated July, 1993., That is the only grievance I this Board has jurisdiction to hear i DECISlpN -, Having considered the submissions of the parties, weare of the view that the Ministry's l position is the correct one. We were appointed to hear and determine the grievance dated July, 1993, Board File #118/93. Our jurisdiction is defined by the collecrtive agreement and the grievance. A Board of Arbitration cannot add or substitute one ! , (' grievance for another without the consent of the parties. While it can agree to amend a grievance in some circumstances, it can only amend a grievance it has jurisdiction to hear We do not have the 1984 grievance before us and, therefore have no jurisdiction to amend it. We were advised that the 1984 grievance was to be held in abeyance awaiting a decision of the Tribunal. The present status of that grievance is not clear What is clear is that the Union, in 1993, decid~d that it wanted a ruling on the issue of job posting and filed the - grievance before us. That grievance was presumably processed through the requisite ,) .' ( \ ) 6 stages of the grievance procedure and was set for a hearing before this Board. It is not a matter of liberally interpreting a grievance or allowing an amendment to a grievance. It is simply a matter of this Board accepting jurisdiction for the grievance before it, which is the one dated July, 1993. - ( Therefore, the Union's request that we substitute the grievance before us with the ) J grievance dated October, 1984, is denied. We will reconvene on the dates' agreed to ,) hear the merits of the grievance d~ted July, 1993. " Signed this 20tl-day of June ,1995. 1 /)~ I v/--(~ , L. Mikus Vice-Chairperson ~ ~~. - E. Seymour Union Member " \ A(l ~ ~ o Clark Employer Member r \ --. ~