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HomeMy WebLinkAbout2000-1357.Policy Grievance.03-06-27 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1357/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (PolIcy Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer - and - Ontano PublIc ServIce Employees Umon Intervenor and ProfessIOnal EngIneers ProvInce of Ontano Intervenor BEFORE Paula Knopf Vice-Chair FOR THE UNION Howard Goldblatt & Andrea Bowker Sack Goldblatt Mitchel Bamsters and SOlICItorS FOR THE EMPLOYER Mary Gersht & MeredIth Brown Counsel Management Board Secretanat FOR INTERVENOR Donald Eady OPSEU PalIare Roland Rosenberg RothensteIn LLP Bamsters and SOlICItorS HEARING June 17 & 18 2003 2 INTERIM AWARD After thIS case convened before the Gnevance Settlement Board for several days of heanng In whIch matters regardIng standIng and productIOn were determIned, the Employer raised prelImInary obJectIOns as to the JunsdlctIOn of the Gnevance Settlement Board (GSB) to hear and determIne many aspects of thIS gnevance An oral rulIng was rendered to the partIes after heanng and consldenng the arguments The folloWIng Intenm award summanzes the posItIOns of the partIes and the oral rulIng whIch they have receIved. In ItS sImplest form, thIS IS a gnevance concermng the InterpretatIOn and applIcatIOn of the recogmtIOn clause In AMAPCEO's collectIve agreement. The Employer raises prelImInary obJectIOns to the JunsdlctIOn of the GSB to make determInatIOns regardIng three maIn areas It was said that the GSB has no JunsdlctIOn to make determInatIOns about Orders-In-CouncIl, whether or not they are erroneous or whether an amendment or a new OIC wIll be reqUIred to define or affect the bargaInIng umt. Further It was submItted that the GSB has no JunsdlctIOn to make determInatIOns about classIficatIOns and that there IS no power to determIne whether specIfic classIficatIOns should be created or amended. FInally It was submItted that the GSB has no JunsdlctIOn to render decIsIOns that Impact upon management and excluded employees or whether employees are properly deemed to be management or otherwIse excluded. Counsel for the Employer submIts that these types of rulIng are effectIvely beIng sought by the gnevance as outlIned In OPSEU's opemng submIssIOns The Employer argues that these Issues must be determIned at the outset In order to focus the case and prevent unnecessary exploratIOn of eVIdence and argument In the areas where the GSB wIll ultImately have no authonty In support of ItS arguments, the Employer relIes on the statutory restnctIOns set out In the CroJ1,n Employees Collective Bargaining Act, sectIOns 4( 11), 51 (1) and (2) and 1 1 (3 )(9) The Employer argues that these aspects of AMAPCEO's gnevance should properly be determIned by the Ontano Labour RelatIOns Board pursuant to sectIOn 114 of the Labour Relations Act or by the Court In an applIcatIOn for JudIcIal reVIew allegIng an Improper delegatIOn of authonty Counsel for the Employer stresses that the GSB only has the power to Impact on employees who are capable of collectIve bargaInIng. The Employer expressed concern that the scope of enqUIry raised by AMAPCEO' S arguments wIll result In determInatIOns that go beyond the JunsdlctIOn of 3 the employees covered by the collectIve bargaInIng scheme under the Crown Employees Collective Bargaining Act (CECBA) Counsel for AMAPCEO argues that the Issues raised by the Employer do not constItute prelImInary obJectIOns Instead, AMAPCEO suggests that the Employer's concerns amount to arguments that only affect the remedIal scope of authonty If and when the GSB makes a substantIve findIng In favour of AMAPSEO's gnevance Counsel for OPSEU agreed wIth AMAPCEO's posItIOn that the Issues raised by the Employer do not amount to prelImInary obJectIOns Further It was pOInted out that sectIOn 114 of the Labour Relations Act does not confer InclUSIVe authonty on the OLRB to determIne JunsdlctIOnal matters Counsel for OPSEU also presented arguments regardIng CECBA and Orders-In-CouncIl For reasons that are outlIned In the DecIsIOn, these arguments need not be reproduced at thIS tIme The Decision The GSB' s JunsdlctIOn In thIS case IS denved from CECBA, the collectIve agreement and the gnevance whIch tnggers thIS heanng. The gnevance IS, In essence, a gnevance regardIng the InterpretatIOn and applIcatIOn of ArtIcle 1 1 of the recogmtIOn clause of AMAPCEO's collectIve agreement. In opemng statements, AMAPCEO's counsel charactenzed thIS case as both "sImple and complex." The sImple part was said to be the Issue of InterpretIng the wordIng of ArtIcle 1 1 The complexIty was said to anse from the eVIdence that wIll be presented about how the language came Into beIng In the negotIatIOns for the first collectIve agreement. AccordIngly the InterpretatIOn and applIcatIOn questIOns raised by thIS gnevance may also turn out to be sImple and complex. However It IS ImpoSSIble at thIS stage of the proceedIngs to determIne or foresee what the possIble findIngs wIll be It IS even more dIfficult to foresee what the remedIal response wIll be If there IS findIng In favour of the gnevance 4 It IS very attractIve In a case of thIS SIze where multIple days ofheanng have been scheduled to try to focus the eVIdence and to prevent the expendIture of resources that may not ultImately be productIve But at thIS stage of the proceedIngs, accedIng to the Employer's prelImInary obJectIOns wIll not accomplIsh thIS Defimng the scope of remedIal authonty as requested wIll not result In the narrOWIng of the relevant eVIdence or shortemng the proceedIngs Further It would not be appropnate to declare that the GSB has no JunsdlctIOn over certaIn Items lIsted by the Employer when many of those Items have not even been requested In the submIssIOns made to the Board by AMAPCEO SpecIfically the Employer expressed concern over the potentIal of an order requmng amendment to the OIC for the creatIOn of new classIficatIOns AMAPCEO has not IndIcated that It wIll be seekIng such orders EssentIally the Employer IS askIng at thIS stage that lImIts be declared on the scope of remedIal JunsdlctIOn. That can only be done In the broad sense of acknowledgIng that JunsdlctIOn IS lImIted by the statutory restnctIOns In CECBA, the collectIve agreement language and the gnevance Itself The Employer does not challenge the GSB' s JunsdlctIOn to define the recogmtIOn clause and ItS effect. Indeed, arbItrators and thIS tnbunal are regularly called upon to define recogmtIOn clauses and determIne the effect of such defimtIOns WhIle the effect of that defimtIOn may Impact on those who are determIned ultImately to fall wIthIn the area of recogmtIOn and leave others on the outsIde that does not mean that the Board has asserted JunsdlctIOn on those outsIde the scope of collectIve bargaInIng or thIS collectIve agreement. There are several threshold Issues that must be determIned In thIS case regardIng the scope of the recogmtIOn clause Once that IS done, there may be several Important Issues to be determIned regardIng what further authonty If any can then be exercIsed by the GSB However AMAPCEO has appropnately InvIted the Employer to renew these obJ ectIOns If and when AMAPCEO seeks relIef that may be beyond the GSB' s JunsdlctIOn. That would be the proper tIme to consIder the kInds of arguments that the Employer has raised at thIS prelImInary stage However to comply wIth the Employer's request at thIS stage of the proceedIngs would be premature because It would lead to a sItuatIOn that would InhIbIt the full and proper reVIew of the recogmtIOn clause Itself 5 AccordIngly the Employer's prelImInary obJectIOn as framed IS dIsmIssed as a prelImInary obJectIOn. However It must be noted that no rulIng has been made regardIng the ments of any of these JunsdlctIOnal arguments These arguments may be revIved and renewed If and when they become relevant at any later stage of the proceedIngs DATED at Toronto Ontano thIS 2ih day of June, 2003