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HomeMy WebLinkAbout1995-2257PIETROBON97_04_04 O/IIT ARlO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L'O/IITARIO 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5<;.1 1 Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 2257/95 OPSEU # 96B149 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Pietrobon) GRIEVOR - and - the Crown in Right of Ontario (Ministry of Health) Employer BEFORE L Mikus Vice-Chair FOR THE R Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE P Toop EMPLOYER Corporate Staff Relations Officer Corporate Labour Relations Management Board Secretariat HEARING December 5, 1996 ;;;' The gnevor, Janis PIetrobon, was employed In the Niagara Falls Emergency Health ServIces Branch of he Ministry of Health as an ambulance dispatcher She worked from July of 1984 until November 8, 1995 as an unclassified GoTemp She was temurtated on November 2, 1995, because the employer asked her to take additIOnal traming on new computenzed dispatch equipment and she refused. The Mirustry raIsed a prelImInary objectIon to the arbItrability of tIns gnevance on the grounds that, as a Go-Temp, the gnevor was not entItled to gneve her discharge. Tlns award deals wIth that preliminary matter The definItion of a GoTemp In the Collective Agreement reads as follows. 3.38 1 A Go-Temp is an unclassified employee who is on a temporary work assignment arranged by the Civil Service Commission under the Go Temporary Services Program. A Go Temp ceases to be an employee upon completIon or tenmnatIon, for any reason, of the temporary work assignment. 3.38.3 The followmg article shall apply to Go-Temp employees. A, 1,2 and 86 No other artIcles shall apply The previous Collective Agreement expired on December 31, 1993, and, In 1994, as a result of an amendment to the Crown Employees Collective Bargaining Act (Bill 117), the Union was given the right to represent Go-Temps. A Memorandum of Agreement was SIgned on February 1, 1994, wInch stated, In part, as follows It IS agreed that beginnIng on the day of proclamatIOn of Bill 117, the refOl'iTI of the Crown Employees CollectIve BargaIrung Act, as IdentIfied in the Order-in-Council describing the Ontano Public Service Bargammg Urnts, the employees In the follOWIng programs will be transferred mto the relevant bargaInmg urnt where pOSItions, dutIes and responsibihtIes most closely match. For the OPSEU bargaInmg umts tlns Includes. A. ApproXImately 1100 full-tlffie eqUIvalent government of Ontano temporary servIces (GoTemp) 1 2 The current job classIfication structure, wage rates, hours of work, and terms and conditlOns of employment for positlOns in the above programs as outlined m Appendices to this agreement, shall be carried with them mto the OPSEU bargaming umts until the relevant Collective Agreement(s) is/are m effect. For the above stated period of time the only sections of the Collective Agreement with OPSEU that shall apply to employees in the above program will be Article 1, Recogmtion, Article 2, Check-off of Union Dues and Article 86, Term of Agreement. No other ArtIcles shall apply Attached to that Memorandum of Agreement was a pamphlet entitled "Go Temps, Terms of Work and Rates" It included the working conditIOns for Go Temp employees as well as a list of applicable wage rates for the various services WIthin the government. The pamphlet mcluded a section entItled "Assignments" in winch It was stated that the employee does not have to accept any aSSIgnment and the employer is not obliged to give the employee any mmunum number of asSIgnments or days or hours of work. Go Temporary employees are appointed to Group 1 of the unclassified sefVlce Further, it allowed that the government is responsible for matters related to dIscIpline and workmg conditions and that employees perfonmng poorly on aSSIgnments may be temunated without notIce. It also noted that an employee WIth more than three below average performance appraIsals will not be offered future employment. The pamphlet deals generally WIth Issues related to length of assignments, job performance, performance appraisals, pay schedules, payroll deductions, overtune or weekend work, benefits, time sheets, the Workers Compensation Act and temunatIon of asSIgnments. The terms and conditIOns of work and rates of pay set out in the pamphlet are referred to m the Memorandum of Agreement and are preserved unless agreed otherwIse by mutual consent. ,/ 3 Mr Toop, for the Mimstry, took the posItion that tlus Memorandum of Agreement was sIgned dunng the statutory freeze penod after the Union obtained bargaining nghts but before a collectIve agreement was executed. Consequently, there can be no change to the rates of payor any other term or conditions of employment or any nght, privilege, or duty, except by consent of the partIes. The part1es m the Memorandum of Agreement mutually agreed that only articles 1, 2 and 86 of the Collective Agreement would apply to Go Temps. Specifically, the parties dId not agree to mclude a grievance procedure. The parties to the memorandum of agreement were senior OffiCIalS withm the Umon and the government and knew that rrthey had wanted the gnevance procedure to apply it would have to be included in that Memorandum of Agreement. It 1S clear from the documents that they dId not intend it to apply Mr Toop took the position that there is no issue of substantive versus procedural nghts m tIns case. The parties expressly mtended to exclude the gnevance procedure from the list of art1cles that would apply to Go Temps until the Collective Agreement could be concluded. For those reasons, Mr Toop argued, this board does not have the Jurisdiction to hear a grievance concerning the discharge of a Go Temp Mr Toop also took the pOSItion that the Umon IS estopped from makmg any claIm that the gnevance procedure appltes m tIns case. It SIgned a Memorandum of Agreement wInch clearly excluded any reference to the gnevance procedure of the Collective Agreement. It cannot now resile from that agreement. Even 1fthis Board were to accept the Umon's argument that the grievance procedure does apply, It IS estopped from relymg on ItS legIslative nghts because It knowmgly SIgned a Memorandum of Agreement representmg a contrary pOSItIon. 4 In support ofits position the Mimstry relted on the followmg cases Re Regional Municipality of Hamilton-Wentworth and International Union -of Operating Engineers, Local 772 (Hockmg), (1993),35 L.AC (4th) 424 (R. L. Levmson); Re McDonnell Douglas Canada Ltd. and Canadian Automobile Workers, Local 1967 (1992), 27 L.AC (4th) 294 (C H. FOisy), Re Lockerbie and Hole Western Ltd. and United Plumbing and Pipe Fitting Union, Local 496 (1983),9 L.AC (3rd) 211 (B.G Fisher); Re Mississauga Hydro-Electric Commission and International Brotherhood of Electrical Workers, Local 636 (1990), 13 L.AC (4th) 103 (I. Spnngate), Re Retail Wholesale and Department Store Union, Local 414 and Retail Wholesale and Department Store Union Representatives Association of Ontario (1980), 28 L.AC (2nd) 164 (R.O MacDowell); Re York Region Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1995), 52 L.AC (4th) 285 (W Kaplan) Ms. Murdoch, counsel for the Dmon, took the pOSition that tills Board does have the Jurisdiction to review management's decisiOn to tennmate the gnevor It was her subnussiOn that it anses from two sources; namely, Sectl.on 7.3 ofCECBA and general pnnClples that any matter in dispute is arbitrable. SectiOn 7 3 states as follows: (3) Deemed provision relating to arbitration--every Collective Agreement relatmg to crown employees shall be deemed to proVide for the final and bmding settlement by arbitration by the Gnevance Settlement Board, without stoppage of work, of all differences between the parties arismg from the interpretatiOn, application, adnumstration or alleged Violation of the agreement, including any questiOn as to whether a matter is arbitrable. The case law is clear that management's actiOns are reviewable by a Board of Arbitration rrthere is an allegation that a deCiSion was arbitrary, discnrmnatory or made m bad faIth. At issue in the instant 5 case is the arbltranness of the employers decIsIon to disInlsS the gnevor It was the Uruon's position that, notwithstanding the fact that there was no express incorporation of the grievance and arbItration procedure into the Collective Agreement, the Uruon or a gnevor has the nght to arbItrate a dispute whenever allegations of arbitrary, discriInlnatory or bad faith conduct are alleged. In support of Its position the Umon referred the Board to the following cases. Re Meadow Park Nursing Home and Service Employees International Union, Local 220 (1988), 9 L.A.C (3rd) 137 (K. P Swan), Re OPSEU (Beilhartz et all and Ministry of the Attorney General (1989), GSB No 0193/86 (B.B Fisher); Re OPSEU (Lumley) and Ministry of Correctional Services (1992), GSB No 1257/91 (M. Gorsky), Re OPSEU (McIntosh) and Ministry of Government Services (1993), GSB No 3027/92 (N Dissanayake); Re Eaton Yale Ltd., Forestry Equipment Division and International Moulders and Allied Workers' Union (1977), 15 L.A.C (2d) 145 (O.B Shune); Re Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 et al (1983),41 O.R (2d) 669 (Ont. Court of Appeal), Re Brampton Hydro Electric Commission and CAW-Canada et al (1993), 108 D.L.R (4th) 168 (Ont. DiVisional Court) and Re OPSEU (Bell) and Ministry of Health (1996), GSB No 159/95 (RJ Roberts) In reply Mr Toop contended that the deemed proViSIon Importmg a gnevance procedure into any Collectlve Agreement IS not a wmdow wluch would allow the Umon to advance tlus gnevance. Many tlungs are found to be inarbltrable, notwlthstandmg that prOVision or any gnevance procedure m a Collective Agreement. That sectIOn proVides for the final and bmdmg settlement of all differences between the parties. It was Mr Toop's pOSItIon that there IS no dIfference between the partIes , 6 because they clearly agreed on what terms of the Collective Agreement would apply to Go-Temps and the nght for the grievor to gneve her discharge IS not included on that list. As a result, tlus Board does not have the authonty to hear an issue that the partIes have clearly agreed would be marbitrable. DECISION The Ministry's posItion is that this Board does not have the Junsdiction to hear tlus gnevance on three grounds; namely, 1 The parties are in the "freeze period" of section 81 of the Labour RelatIons Act. The terms of employment in effect when Bill 117 was enacted remain in effect until and unless the parties agree otherwise. 2. The parties have agreed that only certam named sections of the collectIve agreement will apply to Go Temps and the right to grieve IS not included in that list. 3 Even if this Board should find that It has JunsdICtIOn to hear tlus grievance, the Union and the grievor are estopped from pursumg it. Dealing first With the freeze penod, sectIon 81 of the Labour RelatIOns Act states as follows 81 (1) Where notice has been given under sectIOn 14 or section 54 and no collective agreement IS m operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condItion of employment or any nght, pnvilege or duty, of the employer, the trade umon or the employees and no trade umon shall, except with the consent of the employer, alter any term or condition of employment or any nght, pnvllege or duty of the employer, the trade umon or the employees, (a) until the rmmster has appointed a conciliatIon officer or a medIator under tlus Act, and, (i) seven days have elapsed after the minIster has released to the partIes the report of a concihatIOn board or medIator, or (ii) fourteen days have elapsed after the rmnster has released to the partIes a notIce that he or she does not conSIder It adVisable to appomt a concihatIon board. as the case may be; or 7 (b) until the right of the trade union to represent the employees has been termmated, vvlncheveroccursfir~. It IS the posItIon of the Mini~ry that, SInce the parties vvere in that statutory freeze penod, the terms and conditions of employment that prevailed before February of 1994 remaIned In effect until a nevv collective agreement could be executed. Those terms and conditIons of employment did not include a nght to grieve a discharge. While the parties did agree to gwe Go Temps some collective agreement rights, they vvere restricted to Recognition, union dues and the term of agreement. While it is true that the parties have not executed a final collective agreement concermng the Go Temps, they have, nevertheless concluded a Memorandum of Agreement that contains prOVISIOns relating to conditions of employment. The Labour Relations Act defines a "Collective Agreement" as an agreement in writmg between an employer or an employers' organization, on the one hand, and a trade UnIon that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' orgamzation on the other hand, contammg proviSIOns respectIng terms or conditions of employment or the nghts, pnvileges or duties of the employer, the employers' orgamzatIon, the trade umon or the employees, and mcludes a provinCIal agreement ("convennon collecuve"). The Memorandum of Agreement sIgned on February l, 1994, IS betvveen the Management Board of Cabmet and OPSEU It has been duly SIgned by representatives of those partIes. It sets out the terms and conditIOns of employment for Go Temps, mcluding the claSSIficatIOn structures, the wage rates and the hours ofvvork. In addition, the partIes have agreed that the Umon IS the sole bargaIning agent of these employees, that the employer vvi11 deduct umon dues from these employees and that the term of the collectIve agreement vvi11 be the same as that of the OPSEU agreement. A collectIve agreement need not be a comprehenSIve document. As long as It satIsfies the defimtIon In the Act, any 8 agreement between the partIes can be a collective agreement. In tlus case, the partIes have agreed on the provisions respecting the Go Temps' working conditions and reduced that agreement to wnt1Og. Both partIes acted as if they were bound by its terms. That Memorandum of Agreement is, for purposes of the Act, a collective agreement. Once the parties entered 1Oto a collective agreement, the "freeze penod" under section 81, ended and the partIes were governed by the terms of that new collective agreement. Having decided that the Memorandum of Agreement IS a collective agreement, the issue is whether, under the Labour Relations Act, the parties can contract out of the proVIsIons of section 7.3 of CECBA wluch deems every collective agreement to conta1O a gnevance procedure. In my oplDlon, the Act is clear Every collective agreement, without exceptlon, must contain a grievance procedure. There is no provision 10 the Act for the parties to contract out of the Act. Once these parties sIgned the Memorandum of Agreement of February 1, 1994, sett10g out the terms and conditions of employment for the Go Temps, they were bound by the proVIsion 10 the Act respecting collectIve agreement, including the deemed gnevance procedure. Mr Toop contended that the partIes, who are soplustIcated and expenenced negotiators, 1OtentlOnally excluded the grievance procedure and that their 1OtentlOns should prevail. I disagree As expenenced negotlators, they must have been aware of the requirements of the Act. They must be taken to have known that the document they SIgned was, 10 effect, a collectIVe agreement. As such, they also must be taken to have known that the Act would Import a gnevance procedure 1Oto the collective agreement uthey did not. Even Uit was theIr 1OtentlOn to exclude the gnevance procedure from the ; 9 Memorandum of Agreement, theIr lOtentIons cannot supersede the provIsIons of the Act. For the same reasons, the Ministry's argument regardlOg.estoppelIs rejected. The gnevance will proceed on the merits. The parties are to contact the RegIstrar to set up addItional hearing dates. Signed tlus 4th day of April, 1997 I , "17 '\ ~t&,,-- / I(..,{~(,;J v Loretta Mikus, Vice-Chair