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HomeMy WebLinkAbout1999-1834.Union Grievance.01-03-01 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1834/99 OPSEU#99U080 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Emplovees Umon (Umon Gnevance) Gnevor - and - The Crown m RIght of Ontano (Management Board Secretanat) Employer BEFORE Ken Petrvshen Vice Chair FOR THE NIck Colmen, Counsel GRIEVOR Gowhng, Strath, & Henderson Barnsters and SohcItors FOR THE Len Mam Semor Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING J anum 8 2001 DECISION In a decIsIon dated September 27, 2000 (the "DecIsIon"), I determIned that the Employer had faIled to meet ItS oblIgatIOns pursuant to AppendIx 8 of the CollectIve Agreement. I dIrected the Employer to cease and deSIst from takmg the posItIOn that It would not agree to any recommendatIOns unless the Umon agreed to ItS proposals on retroactIvIty and arbItrabIhty I also dIrected the Semor Persons CommIttee (the "SPC") to complete the process contemplated by AppendIX 8 of the CollectIve Agreement. I remamed seIzed of the gnevance In the event that the partIes encountered dIfficultieS m Implementmg the DeCISIon. Pursuant to a request from the Umon, a heanng was held to deal With an ImplementatIOn Issue ansmg from the DeCISIOn. AppendIX 8 IS a Letter of Understandmg m whIch the partIes confirmed certaIn understandmgs reached regardmg the operatIOn of the Jomt System SubcommIttee (the "JSSC") The JSSC deCIdes all dIfferences mvolvmg allegatIOns of Improper claSSIficatIOn. In AppendIX 8, the partIes prOVIded for the creatIOn of the SPC for the purpose of makmg recommendatIOns to Improve the operatIOn of the JSSC Two of the matters the partIes specIfically agreed to examme were the cntena by whIch the JSSC IS to make decIsIOns and the means to ensure the prompt dISpOSItIOn of claSSIficatIOn dIsputes. The SPC was able to agree on a number of recommendatIOns, as eVIdenced by a draft document (the "Draft") filed at the heanng. In addItIon to other matters, the SPC agreed that" 3) The Employer Will retaIn addItIOnal resources to prOVIde admmIstratIve 2 and analytIcal support to the JSSC process" and that" 7) The cntena to be used for decIsIon makmg by the JSSC shall be a. the class standard, b usage based on "representatIve practIce"" The partIes were unable to agree on two Issues relatmg to retroactIVIty and arbItrabIlIty The Umon had proposed that retroactIvIty should normally be paid from 30 days pnor to the filmg of the gnevance, With exceptIOns made m the appropnate CIrcumstances. The Employer, In effect, had proposed that no retroactIvIty would be paid on successful gnevances, whIch were filed pnor to the date the recommendatIOns are accepted. The Employer proposed that the recommendatIOns not be arbItrable The Umon dId not agree to the Employer s arbItrabIlIty proposal. The final contentIOUS matter related to the Employer s pOSItIOn that It would not agree to any recommendatIOn unless the Umon agreed to the Employer s proposals on retroactIvIty and arbItrabIlIty In ItS submIsSIons m support of the gnevance, the Umon had argued that the Employer s retroactIvIty and arbItrabIhty pOSItIOns were reflectIve of bad faith bargammg and were not made With the mtentIOn of Improvmg the operatIOn of the JSSC I reJ ected these submIsSIons for the reasons set out m the DeCISIon. I further concluded that the Employer s pOSItIOn that It would not put forward any recommendatIOns, even though It had agreed to most of them, If the Umon dId not agree to ItS pOSItIOns on retroactIVIty and arbItrabIlIty, were unreasonable and mconsIstent With ItS oblIgatIOns under AppendIX 8, for the follOWing reasons In a process where the obJectIve IS to make recommendatIOns to Improve the operatIOn of the JSSC, and where each SIde IS not 3 compelled to accept a proposal, the Employer s posItIOn that It Will not put forward any recommendatIOns unless the Umon agrees to ItS proposals on retroactIvIty and arbItrabIlIty IS troublmg. Although the Employer has agreed to many recommendatIOns, It IS prepared to Withdraw ItS agreement to the Items set out m the draft unless the Umon accepts ItS posItIOn on the two dIsputed proposals In my VIew, thIS Employer posItIOn IS InCOnSIstent With the oblIgatIOn of the SPC to make recommendatIOns and It IS also mconsIstent With the oblIgatIOn to act reasonably Just as the Employer IS entItled to reJect the Umon s proposal on retroactIvIty, the Umon IS entItled to reJect the Employer s proposals on retroactIvIty and arbItrabIlIty The proposals on retroactIvIty and arbItrabIlIty are arguably matters whIch fall WIthm (4) of AppendIX 8, namely the type of matters whIch the partIes have specIfIcally recogmzed as the kmd of Issues they need not agree upon. In reJectmg these Employer proposals, the Umon has not acted unreasonably By mSIstmg on a posItIOn that Will result m no recommendatIOns bemg made, the Employer has not met ItS oblIgatIOns under AppendIX 8 Subsequent to the release of the DecIsIon, the partIes attempted to complete the process under AppendIX 8 The Issue of retroactIvIty was resolved and the Employer reVIsed ItS posItIOn on arbItrabIlIty The Employer took the posItIOn that only recommendatIOns 3 and 7 should be marbItrable In other words, rather than assertmg that It would not make any recommendatIOns unless the Umon accepted ItS posItIOn on arbItrabIhty, the Employer proposed that only the agreed to recommendatIOns relatmg to addItIOnal resources to support the JSSC process and the cntena to be used by the JSSC would be marbItrable The Umon reJected the Employer s reVIsed posItIOn on arbItrabIlIty and requested that the matter be referred back to the GSB The Employer argued that ItS reVIsed posItIOn on arbItrabIlIty was conSIstent With the DecIsIon, was not unreasonable and was not mconsIstent With ItS oblIgatIOns under AppendIX 8 The Employer took the posItIOn that the Issue now raIsed by the Umon had been deCIded because the Umon had requested In ItS gnevance a declaratIOn that any 4 agreement of the SPC wIll be arbItrable, but dId not achIeve that result m the DeCISIon. The Employer noted that ItS reVIsed posItIOn would permIt most of the agreed to recommendatIOns to go forward and only recommendatIOns 3 and 7 would be dropped, absent the Umon's agreement to the Employer S posItIOn and that the partIes could contmue to negotiate the dIsputed matters. The Employer also argued that AppendIX 8 dId not gIve the GSB the JunsdIctIOn to deCIde what recommendatIOns the SPC would make The Umon submI tted that the Employer s revIsed posItIOn on arbItrabIlIty IS unreasonable m the CIrcumstances, IS mconsIstent With ItS oblIgatIOns under AppendIX 8 and IS mconsIstent With the DeCISIOn. The Umon argued that, havmg agreed to the 3rd and 1h recommendatIOns m the Draft, the Employer IS attemptmg to renege on the agreement by attachmg the arbItrabIhty reqUIrement. The Umon noted that apart from the content of the gnevance, It dId not request at the heanng that the GSB declare that any agreement of the SPC would be arbItrable and It argued that the Issue It now raIses was not deCIded m the DeCISIOn. The Umon also submItted that complIance With ItS request IS not beyond the JunsdIctlOn of the GSB I agree With the Umon that the Issue now before me was not deCIded by the DeCISIon. Apart from the wordmg of the gnevance, the Umon dId not specIfIcally request such a declaratIOn at the heanng and the matter was not addressed m the DeCISIOn. The example m the DeCISIon relatmg to the Employer s pOSItIOn on 5 arbItrabIlIty was sImply IllustratIve of my VIew that the Umon dId not establIsh that the Employer S posItIOn was not mtended to Improve the operatIOn of the JSSC As prevIously noted, the facts agreed to by the partIes at the heanng on the ments Illustrate that the SPC agreed to the 1d and ih recommendatIOn m the Draft. The Employer had taken the posItIOn that unless the Umon agreed to the Employer S posItIOn on arbItrabIlIty and retroactIvIty the Employer would not agree to llit forward any recommendatIOns Subsequent to the release of the DecIsIOn, the Employer has taken the posItIOn that unless the Umon agrees to ItS reVIsed posItIOn on arbItrabIhty, the Employer Will not agree to mclude the Jd and 1h recommendatIOns m the Draft. In my VIew, thIS reVIsed posItIOn of the Employer IS unreasonable and IS also mconsIstent With ItS oblIgatIOns under AppendIX 8 of the CollectIve Agreement. As noted m the DecIsIon, the partIes agreed m AppendIx 8 that the SPC would examme the workmgs of the JSSC and make recommendatIOns to Improve ItS operatIOn. The partIes also agreed that the SPC would examIne means to ensure the prompt dISpOSItIOn of classIfIcatIOn gnevances and the cntena by whIch the JSSC IS to make deCISIons ImplICItly, the SPC IS oblIged to make recommendatIOns m relatIOn to those matters that are specIfIcally set out to be exammed. Although the Employer S reVIsed pOSItIOn on arbItrabIlIty does not have as broad an Impact on the process as ItS preVIOUS pOSItIOn, ItS effect IS that there wIll not be a recommendatIOn relatmg to the cntena to be used by the JSSC Havmg agreed to the 1d and the 1h recommendatIOns m the Draft, It IS unreasonable and contrary to ItS obhgatIOn under AppendIX 8 for the Employer to mSIst 6 that these recommendatIOns be InarbItrable In reachmg thIs conclUSIon I am not determmmg what the recommendatIOns of the SPC Will be, but rather merely confirmmg those recommendatIOns already agreed to by the partIes AccordIngly, I dIrect the SPC to make the recommendatIOns set out In the Draft that have been agreed to by the partIes, mcludmg the 3rd and the 1h recommendatIOn. I Will remam seIzed of the gnevance should the partIes encounter further dIfficulties m Implementmg the DecIsIon, or dIfficulties m Implementmg thIs decIsIon. Dated at Toronto, thIs pt day of March, 2001 Ken Petryshen, Vice-Chair 7