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HomeMy WebLinkAbout1996-2779.UNION98_04_06 O/IlTARJO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'om-ARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (410) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2779/96 OPSEU # 97U008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Community & social Services) Employer BEFORE: W Kaplan Vice-Chair FOR THE J. Paul, G Leeb GRIEVOR Grievance Officers ontario Public service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 1, 1997 2 Order The grievances in this case, arlsmg out of the closure of the Prince Edward Heights facility in Picton, raise, among other things, the issue of whether the employer has made reasonable efforts pursuant to its obligations under Appendix 9 of the collectIve agreement. The case proceeded to a hean'lg in Toronto on April 1 , 1997 As a number of employees were scheduled to be surplused on April 2nd, the union as~ed, among other things, for an order staying the pending surplus notices At the conclusion of the hearing on April 1 , 1997, and at the request of the parties for an oral order, the following order, with written reasons to follow, was given 1 The union's request for a stay is denied 2. The employer is directed to keep careful records of all surplusing opportunities that arise from April 2, 1997 onwards, records of who goes where so that if it is subsequently determined that reasonable efforts were not made, and that Prince Edward Heights employees lost out on attractive bumping and other opportunities, an appropriate remedy can be devised 3. The employer will, every other Monday at 9"00 a.m , or at such other time as is mutually agreed to, provide the local union with information about its efforts under Appendix 9 4 The heanng wIll be scheduled so that it IS completed by the end of June 1997 and a decision will be issued not later than the middle of July 1997 5 Should the employer advance the next scheduled surplus round, it will immediately notify the unIon .and the union may, In an expedIted process, come before me to again request that the surplusing be stayed and/or to make such other requests as it may then consider appropnate ~ 3 6 The employer will correct the classification of two employees scheduled to be surplused on April 2, 1997, and will do so pnor to Issurng either of them a surplus notification, if theIr classification is incorrect. 7 A th~rd grievance concerning the refusal of the employer to allow employees to take unpaid leaves of absence IS to be consolidated with this case The adjudication of this grievance will, if It is successful, result in appropriate remedies for all affected individuals 8 The employer is directed to provide the union with the documents it has requested, and it is to do so in advance of the next heanng date The union is directed to appropriately safeguard those documents given their confidential and personal nature I remain seized with respect to the implementation of this order, and with the grievances themselves. DATED at Toronto this 2nd day of April 1997 'il/~ William Kaplan Vice-Chairperson ~ O/llTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/llTARKJ 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILErrELECOPIE (416) 326-1396 GSB # 2779/96,0141/97 OPSEU # 97U008, 97U056 IN THE MATTER OF AN ARBTTRA TTON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Gnevor - and - The Crown III RIght of Ontano (Mimstry ofCommumty and SOCIal ServIces) Employer BEFORE S.L Stewart Vice-Chair FOR THE G Leeb UNION Gnevance Officer Ontano Pubhc ServIce Employees Umon FOR THE B Loewen EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING April 1, 1998 -..., 0-1 06/98 09 09 FAX 4165314626 ~ l(1J Oi DECISION The matter before me relates to the "reasonable effortstt obligation under Appendix 9 of the Collective Agreement. The Employer has made application to vary an order restricting it from proceeding with plans of care or transfer arrangements for certain residents This order was made earlier in these proceedings, in a decision of Vice-Chair Kaplan, dated September 29, 1997. At pp 3-4, the decision states as follows In brief, having regard to the position of the parties, and to an appropriate balancing of interests, I denied the union's re~uest that an order be issued terminating any further surplusing of employees pending the resolution of the case on its merits However, I directed that the employer not inititate any plans of care or transfer arrangements for any residents of any of the facilities subject to this award where the inititation of such activity had not begun at the time of this award Put another way, the employer could continue with transfer arrangements for residents of the facilities where a substantive step other than the initial notification of facility closure or transfer has been given This order will remain in effect until the issue of the award on its merits I or until varied by the Vice-Chair assigned to hear the merits. In that regard, and this provides another basis for ~y decision, the parties have agreed that this matter should proceed on an expedited basis. It is anticipated that the case will proceed almost immediately to a hearing and a decision will be issued before the end of the year The Registrar of the Board has been so informed, and will 50 schedule the case. While the hearing in this matter did proceed on an expedited basis, it has not been completed as anticipated The Employer has adduced its evidence and the Union is about to commence leading evidence. At the presenL tilli~, dUe to difficultie~ in 04 06/98 09 09 FAX 4165314626 [4106 ~ 2 scheduling a number of mutually available hearing dates, it appears that a decision may not be issued until the summer This situation has arisen notwithstanding the extraordinary efforts that both Mr Loewen and Mr Leeb have made to expedite these proceedings There was no dispute about the facts relevant to the disposition of this matter. The Employer's request to vary the order arises as a result of concern about the planning process being completed in sufficient time to allow residents to be placed in a community setting prior to the anticipated closing date of the facilities There is a particular concern in relation to 66 residents of Prince Edward Heights, which is scheduled to close on March 31, 1999 There are a number of steps involved in the transfer of a resident from an institution to a community agency The time from initial contact to the completion of a transfer can take over a year. There may be instances in which construction or renovation will be required in order to accommodate the needs of a resident However, after commencing the planning process in January, 1997, the transfer of forty residents from Prince Ed~ard Heights was completed by Mar ch , 1997. At the present timeJ now that planning is close to or has been completed for those persons for whom transfers had been inititated at the time the order was made, the Employer is now in a position to be able to provide assistance in the planning process for the remaining residents - uol 06 98 n9 09 FAX 4165314626 [4]05 ~ 3 In order to accommodate the needs of the parties for an immediate decision, the following reasons are brief I would note at the outset that the order of Vice-Chair Kaplan represents a careful balancing of the interests of the parties in the particular and somewhat unusual circumstances of this case I would also note that this is not the first challenge to this order Two days prior to hearing this application, I heard an application by the Union to vary the portion of the ordey allowing the Employer to continue to proceed with the surplusing process In a decision dated March 31, 1998, I rejected the Union'S application and upheld the Employer's position that the status qUO in relation to its ability to continue to surplus should continue to prevail To now accept the Employer's position would entirely upset the balance which the Employer successfully argued should be maintained in relation to its interests. To upset the balance ~ould properly require extremely compelling circumstances In response to Mr Loewen's characterization of the present state of affairs as "imprisonment" of residents, Mr Leeb advised that it is not the Union'S position that any resident should be prevented from leaving He noted that residents have always left institu.tions, at the request of the family or for other reasonS, and that the Union did not take the pos~tion that the order should be interpreted as prohibiting such departures Given this clarification of the Union's position, in light of the ..--- 04 06 98 09 09 F.H 4165:.114626 [4]04 ~ 4 information before me, I am unable to conclude that grounds for a variance of the order have been established The Employer's alternative position was that if I were not persuaded to vary the order to allow the planning process to proceed, the circumstances are such that there is an interest on the part of residents and community agencies that requires that they be notified and advised of a right to participate in these proceedings Mr Kaplan did not accept the Employer's position in this regard when it was raised before him Mr Loewen suggested that Mr. Kaplan's decision in relation to notice was incorrectly decided and that even ~f it were correctly decided, the circumstances have now changed In particular, Mr Loewen emphasized that the date of anticipated closing in relation to the release of the decision is now closer and the Employer is now in a position to initiate and provide planning assistance. It was further noted that the union is seeking relief which goes beyond simply declaratory relief. In that regard it was the position of the Employer that it would be inappropriate for me to make any direction as to the type of relief being sought but that I should direct that if the Union elects to continue to pursue relief beyond declaratory relief, there is a requirement for notice Both Mr Loewen and Mr Leeb ~ade reference to the authorities which address the identification of interests which - 0.1106 98 09 09 FAX 4165314626 [4]03 ~ 5 require notification of a right to participate in proceedings. There are many cases in which the seminal decisions of the supreme Court of Canada in Hooqendorn and the Court of Appeal in Bradley have been considered and applied Of the cases that were referred to me I found the analysis in Re John Noble Home and ontario Nurses' Association (~994), 39 L A.C (4th) 324 (Mitchnick) to be particularly helpful. ~~ile the factual situation dealt with in that case is somewhat different from that before me here, the considerations relating to what constitutes an interest on the part of someone other than the party to the collective agreement are clearly applicable At p. 336 of that award, after noting that a liberal view of what constitutes an interest requiring notice may be justified on the basis of an abundance of caution, it is concluded 'that such an approach "is not really a cautious approach at all" The decision goes on to note that the "virtually limitlesslt logical implications of the directly affected test, with its consequential negative impact in terms of cost and scheduling in a system that is intended to be sensitive to both While considerations of natural justice must prevail over considerations of cost and convenience, it is my view that the restrained approach advocated in this award has particular relevance where the employer is the government This Employer is charged with the responsibility of dealing with many interests In many instances the manner in which the Collective Agreement is interpreted in the arbitration process will, in a general sense, affect ~he interests of persons to whom the 04 06/98 09 09 FAX 4165314626 [4]02 ~ 6 government has obligations That does not necessarily mean that those persons have a legal interest in the proceedings that will entitle them to notice and a right to participate in the proceedings Arbitrators have always been sensitive to concerns expressed by employers about management by arbitration. A scenario in which recognition of third party rights is liberally construed in a case such as this has the potential for the creation of government by arbitration The Employer possesses the responsibility and resources to ensure that the important interests of the residents of the institutions it intends to close are accommodated. I am not persuaded that those interests, or the interests of community agencies, constitute a legal interest in this proceeding, the purpose of which is to determine whether there is a violation of the Collective Agreement between the Employer and the Union. I am unable to view the foregoing considerations as properly restricted to circumstances in which only declaratory relief is sought That is, I am not persuaded that notice is necessary if the Union continues to seek relief beyond a declaration. While, as the Courts have reminded this Board on a number of occasions, it is the Board's obligation to provide relief that is fully remedial, arbitrators are sensitive to their appropriately limited involvement in a collective bargaining relationship in fashioning remedial relief As in all cases, such sensitivity will inform the Board's remedial order, in the event, of course, 0-1. 06 98 09 09 FAX 4165314626 [4]01 ~ 7 that it is ultimately determined that a violation of the Collective Agreement has been established The appropriate scope of any remedial relief that may be ordered will, no doubt, be the subject of submissions at the conclusion of the case. In the result, the application of the Employer to vary the order of Mr. Kaplan is denied The order requested in connection with the provision of notice is also denied. With respect to the Union's position in relation to planning proceeding where requests are made, a position which is properly viewed as resulting in a clarification of Mr Kaplan's order, I make no ruling with respect to Mr Leeb's proposal for the establishment of a process This matter is appropriately left in the hands of the parties. I will, no doubt, be advised if the parties require any assistance in this regard Dated at Toronto, this 6th day of April, 1998 %~u~ S L. ste art - Vice-Cha1r