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Home My WebLink About2000-0001.Union.00-09-05 Decision ONTARIO EA1PLOYES DE L4 cOURONNE CROWN EA1PLOYEES 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 # 0001/00 OPSEV # 00V041 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Vmon (Vmon Gnevance) Gnevor - and - The Crown m Right of Ontano (Mimstn of Health and Long Term Care) Employer BEFORE Richard Brown V Ice Chair FOR THE Richard Blair GRIEVOR Counsel Rvder Wnght, Blair & Dovle Barnsters & SolIcItors FOR THE Len Marve, EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING August 18 2000 ThIS UnIon gnevance anses from the transfer of psyclllatnc hospItal facIlItIes at London and St Thomas from the MInIstry of Health and Long Tenn Care to St Joseph's HospItal St Joseph's HospItal has requested that the St Thomas sIte be transferred on January 22,2001 and that the London sIte be transferred on February 19,2001 The employer proposes to grant thIS request The UnIon seeks an order dIrectIng the employer to establIsh a common transfer date I The agreed statement of facts reads as follows The LondonlSt Thomas Psyclllatnc HospItal consIsts of two physIcal sItes--London and St Thomas PatIents stay In theIr programs In one sIte or the other and do not move between sItes Over the last number of years, the operatIOn/admInlstratIOn of the hospItals have been Integrated such that there IS now 1 a common admInIstratIOn 2 a common management structure 3 a SInge operatIng plan and combIned budgets 4 a program tranfers polIcy allowIng staff to move between programs and the dIfferent sItes wIthout vacanCIes beIng posted. Terms and condItIons of employment at the two facIlItIes when employees begIn workIng for the new employer are set out In a memorandum of agreement between the Crown In RIght of Ontano and St Joseph's HospItal The UnIon concedes the negotIatIOn of these terms and 2 condItIons fulfills the employer's "reasonable efforts" oblIgatIOns under AppendIx 18 of the collectIve agreement The gnevance relates to artIcle 2 03 of the memorandum under whIch St Joseph's "reserves the nght to request that the MInIster of Health and Long Term Care set two separate Changeover Dates for the transfer" II The UnIon obJects to the two facIlItIes beIng transferred on dIfferent dates because of the Impact tlllS arrangement may have upon the senIonty nghts of employees at one facIlIty VIS-a-VIS those at the other dunng the penod when the sItes are beIng operated by dIfferent employers For example, If a layoff occurs at St Thomas dunng thIS tIme frame, the affected employees would have no claim to Jobs In London Counsel for the UnIon contends the establIshment of dIfferent dates would amount to an Improper exercIse of management dIscretIOn In tlllS regard, counsel relIes upon a senes of decIsIOns of thIS board dealIng wIth management nghts I was referred to two passages from OPSEU and Mlnzstry o.fNatural Resources (Bousquet), FIle No 51/90, dated March 1, 1991 (Gorsky) The first passage reads as follows Thus the sIgnIficant fact reqUIred to place a lImItatIOn on the unfettered exerCIse of a management nght IS the eXIstence of a prOVISIOn In the collectIve agreement whIch would eIther be negated or unduly lImIted by the partIcular applIcatIOn of such a nght As noted above, If It could be demonstrated that the Employer had dlscnmInated agaInst the Gnevor In denYIng hIm traInIng and development opportunItIes wIth a VIew to undennInIng IllS advancement opportunItIes under artIcle 4, then ItS actIOns could not be said to have been carned out In good faith, for genuzne government purposes There IS nothIng In the collectIve agreement 3 that reqUIres the employer to consIder the advancement opportunItIes of employees However, It cannot use ItS management nghts under s 18( 1) of the Act In a way whIch would amount to a deliberate attempt to Interfere wIth an employee's nght to compete for a promotIOn The employer cannot deliberately tIlt the field wIth a VIew to prefernng one employee over another However, where In good faith and for genUIne government purposes an employee IS denIed a traInIng or development opportunIty, where the denIal IS not founded upon a deliberate attempt to undennIne the employee's opportunItIes for promotIOn, the decIsIOn wIll not be Interfered wIth (pages 35 and 36, emphasIs added) The second passage from Bousquet states All of the cases emphasIze that In cases InvolvIng the exerCIse of managenal dIscretIOn, the Board wIll hesItate to substItute ItS VIew for that of the employer so long as certaIn mInllnUm tests are met These Include the reqUIrement that the declszon be a genuzne one related to the management 0.[ the undertakzng and not a dIsgUIsed means of aChIeVIng ImpermIssible ends based on dISCnmInatIOn or other grounds unrelated to the makIng of genUIne management decIsIOns. The facts consldered zn makzng the declszon must be relevant to legltlmate government purposes Also, In makIng ItS decIsIOn management, provIded It has acted In good faith, as above described, need not be correct (pages 63 and 64, emphasIs added) These passages were cIted wIth approval In OPSEU and Mlnzstry 0.[ Government Servlces (McIntosh), FIle No 3027/92, dated December 15, 1993 (Dlssanayake) and OP SEU and Mlnzstry 0.[ Communzty and Soczal Servlces (Boulet), FIle No 1189/99, dated August 8, 2000 (Brown) ApplYIng these authontIes to the facts at hand, UnIon counsel contends the establIshment of separate transfer dates for the two facIlItIes would adversely affect senIonty nghts wIthout furthenng any genuIne governmental purpose 4 Employer counsel advanced three arguments ThIS board IS Said to have no JunsdlctIOn to reVIew the exerCIse of management dIscretIOn In the Instant case because no nghts under the collectIve agreement are affected by the decIsIOn In questIOn Counsel suggests the concerns of the UnIon relate to what may happen after the transfer when employees would no longer be covered by the collectIve agreement between thIS employer and thIS UnIon Translated Into the language of Bousquet, the contentIOn IS that no nghts under the collectIve agreement would be "negated or unduly lImIted" by the establIshment of dIfferent transfer dates In the alternatIve, If the employer's decIsIOn IS revIewable by thIS board, employer counsel contends the establIshment of dIfferent transfer dates should not be vIewed as Improper The unIon's concerns are said to be speculatIve In addItIon, counsel suggests the Impact of dIfferent transfer dates on senIonty nghts IS analogous to the way senIonty nghts may be affected by tllnIng accordIng to the decIsIOn about the "best bump of the day" In OPSEU and Mlnzstry o.fNatural Resources, FIle No 318/96, decIsIOn dated June 17, 1996 (Bnggs) In the further alternatIve, employer counsel contends the concerns raised by the UnIon should be addressed before the Labour RelatIOns Board, under the Publzc Sector Labour Relatzons Transltzon Act, 1997, after the transfer takes place III It IS not necessary to decIde whether the employer's proposed decIsIOn, approvIng dIfferent transfer dates, IS subJect to reVIew by thIS board under the approach taken In Bousquet AssumIng such JunsdlctIOn eXIsts, I would 5 not find the employer's proposal to be Improper accordIng to the standard set out In Bousquet The UnIon bears the burden of demonstratIng the employer's proposed decIsIOn would not be made In "good faith" In the sense that It would not be "a genUIne one related to the management of the undertakIng" The only facts before me are the uncontested ones contaIned In the agreed statement and the submIssIOns of counsel These facts do not amount even to pnma facIe proof that the employer would not be seekIng to accomplIsh "genuIne government purposes" There IS no eVIdence to suggest St Joseph's request to transfer the two sItes on dIfferent dates IS Intended to do anytlllng other than facIlItate a smooth transItIOn by reducIng the SIze of the undertakIng beIng transferred at anyone tIme Nor IS there anythIng to suggest the Crown's proposed decIsIOn to grant tlllS request rests upon any dIfferent consIderatIOns The achIevement of a smooth transItIOn would be a legItImate governmental obJectIve As Mr Gorsky noted In Bousquet, so long as the employer's decIsIOn meets thIS test, thIS board has no JunsdlctIOn to detennIne whether It IS a "correct" decISIOn In any other sense The unIon's request for relIef IS denIed. Dated at Toronto, tlllS 5th day of September, 2000 RIchard Brown, VIce-Chair 6