HomeMy WebLinkAbout2018-3663.Cote et al.20-08-10 DecisionCrown Employees
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cote et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE
Tatiana Wacyk
Arbitrator
FOR THE UNION
Alex Zamfir
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING July 8, 2020
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DECISION
[1] This Decision deals with the Employer’s motion to dismiss these grievances on a
preliminary basis. Specifically, the Employer submits the particulars alleged in
support of the grievances, even if taken to be true 1) do not make out a prima facie
case, and 2) are outside the Board jurisdiction as they constitute stand-alone
challenges of management rights.
[2] There are two “sets” of Grievors: 1) the Cote et al Group; and, 2) the Thompson et
al Group. The parties agreed to consolidate both sets. The effect of consolidate
matter was described in Dresser Canada Inc., [1987] OLRB Rep. Oct. 1243 as
follows:
Strictly speaking, the effect of a consolidation is to fuse two or more
proceedings into one. …
[3] All of the Grievors were employed as Management Biologists in the classification
of BIO2 by the Ministry of Natural Resources and Forestry (hereafter, “MNRF”).
[4] As part of their duties, and in varying degrees, Management Biologists perform a
variety of functions related to a body of “Species at Risk” work.
[5] In late June 2018, all MNRF staff were advised via memorandum from their
Deputy, that the Ministry of the Environment, Conservation and Parks, (MECP)
would become responsible for provincial parks, conservation authorities, and
species at risk legislation.
[6] The memorandum acknowledged it was not known what the functions of the new
Ministries will be or how MNRF staff and operations might be affected.
[7] The memorandum further recognized this uncertainty may be difficult for staff, and
committed to providing further information as it became available.
[8] On August 27, 2018, Bill Thornton and Serge Imbrogno, Deputy Ministers,
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announced to all MNRF and MECP staff via memorandum, that MECP would
begin to lead all communications related to provincial parks, conservation
authorities and species at risk.
[9] The memorandum further identified that a governance structure had been
established to oversee the transfer of responsibilities from MNRF to MECP.
[10] On November 20, 2018, Bill Thornton announced to all MNRF staff via
memorandum, inter alia, the following developments:
a. The programs transferred from MNRF including species at risk would be
included in MECP’s Land and Water Division.
b. The Species at Risk Branch would be responsible for leadership in policy,
program, delivery and compliance matters related to species at risk and led by
Mary Hennessey, Director.
c. That the organizational design work had been completed, and that the
transition process would focus on the details of transferring work processes,
confirming staff transitions and providing notices to bargaining agents.
d. The memorandum recognized that this environment created uncertainty
and anxiety on the part of affected staff.
[11] It is at this juncture that issues related to the Cote et al Group of Grievors and the
Thompson et al Group of Grievors diverge, in part.
Cote et al Group
[12] These Grievors were located geographically as follows:
a. Kemptville Area Office
b. Owen Sound Area Office
c. Aurora District Office
d. Kingston Area Office
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e. Aylmer District Office .
[13] On January 7, 2019, each of these Grievors was provided with a letter announcing
the Employer’s intention to transfer Management Biologist positions from MNRF to
MECP.
[14] Accompanying the letter was an election form for Management Biologists
to elect whether they were interested in volunteering to be transferred.
[15] The letter indicated that if multiple candidates were interested in being
transferred the most senior would be transferred.
[16] Conversely, if an insufficient number of employees volunteered, the most
junior employee would be selected to be transferred.
[17] The election to volunteers for transfer had to be made by January 21, 2019.
[18] On January 10, 2019, affected OPSEU members provided a letter in response to
management, outlining the Employer’s failure to provide information critical to
making the decision, including failure to disclose an ultimate work location, and
failure to include a description of the duties or position within MECP.
[19] Ultimately the Employer sought nine Management Biologists to move from
MNRF to MECP.
[20] Five Grievors elected to move from MNRF to MECP.
[21] One of the Grievors, Jody Scheifley from the Owen Sound Area Office, was
involuntarily moved from MNRF to MECP. Prior to his transfer, Jody Scheifley had
the least participation in species at risk as part of his work duties.
[22] The essence of the majority of the Cote Group’s grievance was:
Statement of grievance
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I grieve under Article 2, Article 31A.11 and any other applicable articles
and/or legislation that management has violated my rights and created
undue stress by implementing a [sic] unreasonable deadline to decide
whether to transfer to another Ministry without providing reasonable
information to be able to make an informed choice, including failure to
provide information regarding a work location, job duties, reporting
relationship or when such a transfer will take place …and Article 11.7.
[23] Four of the Grievors in this group, including Jody Scheifly submitted the following
Grievance:
Statement of grievance
I xxx, (OPSEU/Local 432) grieve that the Employer violated specifically
but not exclusively Articles 2, 31A.11 and 20.4 as well as any other
applicable articles and/or legislation that management has violated my
rights and created undue stress by implementing a unreasonable
deadline to decide whether to transfer to another Ministry without
providing reasonable information to be able to make an informed choice.
Not all Management Biologists within impacted districts have received
the same offer. Biologists in Vineland, Kingston and Owen Sound Area
Offices received letters, however the biologists in their respective
District Offices of Guelph, Peterborough and Midhurst did not. It is our
understanding that previous grievance procedures have recognized an
Area and District office as a single work unit … .
[24] The settlement requested for all of the grievances in this group was:
Settlement desired
That the deadline be withdrawn until impacted employees are given
pertinent information by which to base their decision, including the
permanent location of the MECP position, clarification on classification
and job specifications in the new location, and the timeline for transfer,
and any other remedy deemed fair by arbitration.
[Several of the grievances also requested that: In addition,
determination of seniority should be at the District level (work unit).]
Thompson et al Group
[25] The three Grievors in this group are Management Biologists at MNRF’s Guelph
District Office.
[26] The transfer process outlined in the preceding paragraphs was not extended to
that District Office.
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[27] The Thompson et al Group Grievances state:
Statement of grievance
I submit this grievance under Article 2, 3, 6.1, 6.2, and 6.3 and any other
articles and/or legislation with the belief that management has violated
my rights by not providing me with an opportunity to apply for or
volunteer for a position/transfer for which I am qualified and
experienced, and which may further enrich my career with the OPS. …
Settlement desired
That any Management Biologist positions at MECP should be offered to all relevant
staff, regardless of work location, and should be posted for the requisite 10 days, the
employer will provide job specifications and that positions should be offered to those
with the greatest amount of relevant experience and interest in the positions, as
opposed to those with lowest seniority.
ARGUMENT:
[28] At the hearing, I understood the Union to abandon its reliance on Article 3,
prohibiting discrimination; 31A.1, dealing with health and safety, and Article 11.7,
dealing with relocation expenses.
[29] This leaves Article 2, the management rights clause; Article 6, which deals with the
posting of vacancies; and, Article 20.4 which falls under Article 20 dealing with
employment stability, and deals with displacement rights following notice of lay-off
Employer Argument
Prima Facie Challenge
Cote et al Group
[30] The Employer submitted the Cote et al Group of Grievances was essentially a
dispute regarding the sufficiency of information provided prior to the deadline for
election to volunteer for transfer to MECP.
[31] The Employer submits that no Article cited in the Cote group of Grievances places
any duty on the Employer to provide specific information when soliciting volunteers
to transfer. Nor does such a provision exist.
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[32] Accordingly, the Employer maintains the Union’s remedy is through bargaining
such an entitlement. (see: Kingston General Hospital v. C.U.P.E., Local 1974,
2002 CarswellOnt 5561).
[33] The Employer also pointed out that Article 20.4 is a fairly detailed Article dealing
with displacement and bumping. As there had been no reduction in the workforce,
the Employer submitted this provision is simply inapplicable to the circumstances.
Thompson et al Group
[34] The Employer maintained that while these Grievances refer to Article 6, which
deals with “Posting and Filling of Vacancies or New Positions”, there were no
vacancies created, and therefore no requirement to post pursuant to Article 6.
(see: Silex Innovations Inc. and USW, Local 9042 (REN-12), Re 2013 CarswellOnt
1036, [2013] O.L.A.A. No. 25, 113 C.L.A.S. 277, 229 L.A.C. (4th) 327)
[35] In any event, the Employer maintained the Grievors are not asking that the
positions be posted. Rather, the Employer characterized the essence of their
Grievances to be that Management Biologists in the Guelph District Office ought to
have been provided with an opportunity to transfer to MECP. The Employer
submitted the Thompson et al Group of Grievances were simply “Me Too”
grievances, with no violation of any of those Grievors’ collective agreement rights.
[36] The Employer further submitted that even if the job posting provision were to apply
in the circumstances, it is not clear how this assists the Grievors’ allegations as the
Board jurisprudence is clear that the Government has an unrestricted right to limit
the area of search for a job-competition. (See: OPSEU (Carson/French) and GSB
# 582/89).
Jurisdictional Challenge
[37] Finally, the Employer submitted that in the absence of the abridgement of any
other Collective Agreement right with regard to either set of Grievances, I have no
jurisdiction to review the Employer’s exercise of its management rights pursuant to
Article 2 of the Collective Agreement. (See: OPSEU (Dobroff et al) and the Ministry
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of the Environment, GSB # 2003-0905 et al (2008) (Dissanayake); OPSEU (Jones
et al) and the Ministry of Labour, 2010 CanLII 28609 (ON GSB) (Abramsky);
OPSEU (Sutherland) and the Ministry of Labour, 2008 CarswellOnt 9019, [2008]
O.G.S.B.A. No. 237, 179 L.A.C. (4th) 387, 96 C.L.A.S. 88 (Dissanayake); Brown,
supra.
Union Argument
Prima Facie Challenge
ARTICLE 6
[38] The Union submitted the Employer’s decision to establish Management Biologist
positions in MECP created vacancies in the regular service. Accordingly, the
Employer’s failure to post these positions, and assess candidates through the
normal channels of a job competition, rather than selectively offering opportunities
to a specific subset of employees, constitutes a breach of Article 6 which states:
ARTICLE 6 – POSTING AND FILLING OF VACANCIES OR NEW
POSITIONS
6.1.1 When a vacancy occurs in the Regular Service for a bargaining
unit position or a new regular position is created in the bargaining unit,
it shall be advertised for at least ten (10) working days prior to the
established closing date. Notices of vacancies shall be posted either
electronically or on bulletin boards and, upon request, shall be provided
in large-sized print or braille where the posting location has the capacity
to do so. (FXT, SE)
…
6.2 The notice of vacancy shall state, where applicable, the nature and
title of position, salary, qualifications required, and the hours of work
schedule as set out in Articles UN2 and COR2, (Hours of Work). Where
a position is posted within the Ontario Public Service, the internal notice
of vacancy shall also state the work location where the position currently
exists, that the position is represented by the Union and the particular
bargaining unit which contains the position. (FXT)
6.3 In filling a vacancy, the Employer shall give primary consideration to
qualifications and ability to perform the required duties. Where
qualifications and ability are relatively equal, seniority shall be the
deciding factor. (FXT, SE)
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[39] The Union pointed out Article 6 is referenced in the Thompson et al Group of
Grievances. Further, it pointed out the information requirements set out in Article
6.2 are consistent with the information sought by the Cote et al Group of Grievors,
and essential defeat the Employer’s prima facie challenge.
[40] Further, the Union submitted the Board’s jurisprudence regarding the Employer’s
right to limit the area of search for a job-competition is of little assistance in this
instance, as it doesn’t relieve the Employer of the duty to hold a competition where
vacancies exist.
[41] The Union point out that at this juncture in the proceeding there is no information
from the Employer regarding its decision to move the positions, and consequently,
until I hear from the Employer on these issues, I have no way of assessing the
Union’s assertions.
Jurisdiction Challenge
[42] The Union denied it seeks a free standing review of Management’s Rights
pursuant to Article 2.
[43] In that respect, it maintained the failure to post the newly created vacancies in
MECP, as well as the potential impact of the transfer of the endangered species
work on the Cote et al Grievors’ rights pursuant to Article 20, “opens the door” for
the Board to review those decisions.
[44] Specifically, the Union submitted that the decision to exclude the three Grievors
from the Guelph District Office from the transfer process was arbitrary insofar as
the overwhelming majority of their employment with MNRF was dedicated to
species at risk work. The Union pointed out they possess significant seniority,
experience with all aspects of species at risk work, and mentored other
Management Biologists in different districts.
[45] The Union maintained there was no apparent rational basis and no reason to
exclude some of most qualified Management Biologists that had spent their
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careers with MNRF working almost exclusively in the area of species at risk. Their
subject matter expertise and ability to provide that service going forward appears
not to have been considered.
[46] The Union pointed out the Cote et al Group of Grievors was simply seeking the
same information they would be entitled to if the vacancies were posted.
[47] Further, with regard to its allegations of a potential impact on the Cote et al
Grievors’ displacement rights pursuant to Article 20, the Union submitted the
Employer’s failure to provide adequate information regarding the MECP positions
significantly compromised those Grievors’ ability to make informed decisions about
their employment. This in turn skewed the reasonableness of the Employer’s own
decisions, rendering them arbitrary, with the potential to negatively impact on the
Grievors’ displacement rights pursuant to Article 20.
[48] In that respect, the Union relied on the decision in OPSEU (Dufour et al)
and (Ministry of Community and Social Services), 2013 CanLII 18486 (ON GSB)
(Briggs). In that instance, Vice-chair Briggs denied a prima facie challenge to the
Union’s allegation that the employer had failed to provide the necessary/correct
information to enable the grievors to apply for an unpaid leave of absence, so as to
position themselves to qualify for an unreduced pension.
[49] The basis for Vice-chair Briggs’ reasoning in Dufour et al, set out at paragraph 43,
was that the collective agreement included provisions that cover the matters raised
by the Union, and the Board had the jurisdiction to “decide whether those
provisions encompass the rights asserted in the grievances”.
[50] The Union also relied on OPSEU (Bousquet) and Ministry of Natural Resources
(1991), GSB No 541/ 90 et al (Gorsky). In that case, the issue was management's
denial of a training and development opportunity to an employee, allegedly
because he was a francophone.
[51] The Employer in that case maintained that as training and development was a
function reserved to management under section 18(1) of CECBA, the Board
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had no jurisdiction to hear the grievance. However, the Board found that
nevertheless, the employer did not have " carte blanche to do what it wishes under
the purported exercise of an exclusive management function with respect to
training and development."
[52] Rather, the Board determined it had the right to review the employer's
exercise of its discretion for good faith and reasonableness because
developmental opportunities impacted an employee' s ability to compete in Job
competitions under then Article 4 of the collective agreement.
[53] The Board further held, in Bousquet, at p 35, that the exercise of management
rights is limited by the existence of a collective agreement provision which would
either be negated or unduly limited by a particular application of such a right.
Consequently, the Board’s jurisdiction to review the employer’s exercise of
management rights is derivative, and depends on the existence of a provision In
the collective agreement which might be adversely affected by management's
actions.
[54] The Union pointed out the basis for the Employer’s decisions to not post the
Management Biologist positions in MECP, but rather make them available only to
a select group of Management Biologists, but with limited information was
unknown. However, these decisions must not be motivated by bad faith or
discriminatory considerations but rather by legitimate genuine government
purposes.
[55] Accordingly, the Union submitted the review of the Employer’s decisions in this
instance constitutes a proper exercise of arbitral review, as it requires matters of
collective agreement interpretation which is a fundamental responsibility of the
Board. (see OPSEU (Emmett) and Ministry of Health and Long-Term Care, GSB#
0147/01 (Johnston) (affirmed in OPSEU and Ministry of Community Safety and
Correctional Services/Ministry of Children and Youth Services 2010 CanLII 42118
(ON GSB) (Harris); and, and OPSEU (Dufour et al) and Ministry of Community and
Social Services, 2013 CanLII 18486 (ON GSB) (Briggs).
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Employer Response:
[56] In response to the Union pointing out the Cote et al Group of Grievors were simply
requesting the information they would be entitled to had the positions been posted,
the Employer submitted that any attempt by the Cote et al Group of Grievors to
now also argue that the MECP positions constituted vacancies is an expansion
their grievances.
ANALYSIS:
Prima Facie Challenge
[57] Arbitrator Diane L. Gee, recently articulated the test for determining whether a
prima facie case has been made out in OPSEU (Brown et al.), GSB No. 2018-
2461, 2020 CarswellOnt 252, 142 C.L.A.S. 179 at paragraph 5:
5. To paraphrase the test set out in Martin et al., the process to be
followed to determine whether there is a prima facie case is to: (1)
identify the Union's legal theory; and (2) determine whether the facts
particularized could be sufficient to result in a finding that there has been
a violation of the collective agreement in the manner alleged.
[58] While the Employer submits the Thompson et al Group of Grievances are simply
“Me Too” grievances, alleging those in the Guelph District Office ought to have
been provided with an opportunity to transfer to MECP, I find this characterization
too narrow.
[59] Rather, the Thompson et al Group of Grievances allege those in the Guelph Office
ought to have been provided with an opportunity “to apply for or volunteer for a
position/transfer” to MECP in order to continue the work for which they are
“qualified and experienced, and which may further enrich [their] career with the
OPS”. (emphasis added)
[60] It is clear the reference to “apply for” means something other than “volunteer for”
as both terms are referenced. The term “apply for” is also consistent with
participating in a job competition.
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[61] Further, those Grievances also refer to Article 6, which governs the posting and
filling of vacancies or new positions.
[62] Finally, the remedy sought is that the “positions” be “posted for the requisite 10
days”, and the Employer provide “job specifications”. I find this to be a clear
reference to the requirements of Article 6.1.1 and 6.2.
[63] Accordingly, I find the Thompson et al Grievances are broad in enough to support
the allegation that the positions ought to have been posted pursuant to Article 6.
[64] As there is a dispute between the parties regarding whether the Management
Biologist positions in MECP constituted vacancies which triggered an obligation to
post them pursuant to Article 6, this is a factual determination which must be
made, at least in part, on an evidentiary basis. It cannot appropriately be dealt
with in a prima facie determination.
[65] If the ultimate answer is that vacancies were created and ought to have been
posted, then the impact of that determination on the Cote et al Group of Grievors,
particularly now that the Grievances have all been consolidated, can be addressed
at that juncture.
[66] In any event, that issue, as well as the Employer’s position that any attempt by the
Cote et al Group of Grievors to now argue the MECP positions constituted
vacancies is an expansion their grievances, await argument another day – if at all.
[67] Similarly, the need to address the issues of whether the Thompson et al Group of
Grievances are simply “Me too” grievances, as alleged by the Employer, and,
whether the Employer has an unrestricted right to limit the area of search for a job-
competition will follow the determination regarding whether a vacancy has been
created.
[68] Further, I do not understand the Union to be arguing the transfer of Management
Biologist positions to MECP constitutes a breach of Article 20.4. Rather, I
understand it to rely on the alleged potential impact on the Grievors’ long term
employment stability to shore up its argument with regard to my jurisdiction to
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consider a challenge to the exercise of management rights pursuant to Article 2.
This is dealt with below.
Jurisdiction Challenge
[69] There was no real dispute between the parties that there is no independent
challenge to be made pursuant to Article 2. Rather, any such challenge must be
tied to some right under the Collective Agreement.
[70] Vice-Chair Harris in OPSEU and Ministry of Community Safety and Correctional
Services/Ministry of Children and Youth Services, supra at paragraph 47, (and
reiterated by Vice Chair Briggs in Dufour et al, supra at paragraph 43),
summarized the evolution of the Board’s jurisprudence in this regard.
[44] The foundation case often relied upon regarding the Board’s
jurisdiction to review decisions of management is Bousquet 0541/90
(Gorsky). In Ashley, 2001–1700 (Abramsky) the Board commented on
Bousquet as follows at page 14:
Consequently, under Bousquet, supra, the jurisdiction of the Board
to review the Employer’s exercise of a right reserved to
management is derivative – it depends on the existence of a
provision in the collective agreement which might be adversely
affected by management’s action.
[45] The Board’s jurisprudence is summarized in Sutherland, 2006-
0519 at paragraph 16 as follows:
The principle that results from the above-noted authorities (See also
Re McIntosh, 3027/92 (Dissanayake) and Re Boulet, 1189/99
(Brown)) is that, for the Board to seize jurisdiction, there must be an
allegation that the employer’s exercise of management rights
resulted in a contravention or abridgement of a substantive right
under the collective agreement.
[46] An “abridgement” of a substantive right in the collective
agreement is no different than a provision of the collective agreement
being adversely affected. The test in Bousquet set out above is still
valid. This view is underscored in paragraph 19 of Sutherland:
The authorities reviewed above establish two propositions with
respect to CWW arrangements. First, that article 10.1 does not
impose any obligation on the employer to enter into a CWW
arrangement with any employee. Second, article 10.1 “… does not
provide for a discretion to be exercised by the employer. Rather, it
simply provides a mechanism for the parties to mutually arrive at
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“other arrangements” vis a vis a variable week”. See, the quotation
from Re Algerson et al, set out at p.7 (supra). It follows, therefore,
that the employer’s decision to negotiate or not negotiate a CWW
arrangement is a matter of a management right to “among other
things, manage its business as set out in article 2.” (Re Emmett),
(supra), at p. 11). Therefore, this Board has no jurisdiction to review
the employer’s exercise of a management right, in the absence of
a claim that such exercise (in this case the non-exercise) of
management rights affected a right of the grievor under the
collective agreement. Since the union has not made such a claim.
Nor has it alleged bad faith. In the circumstances the Board lacks
jurisdiction. Therefore, the employer’s first motion succeeds.
(emphasis added)
[47] Here the Union says that a number of rights in the collective
agreement have been adversely affected, including the right to local
processes and the right to at least ask for CTO. In the cases put before
me, the grievor’s were at least afforded the opportunity to request a
compressed workweek or CTO. In the matters before me, there are real
and substantive differences between the parties that arise out of the
collective agreement. It is within the Board’s jurisdiction to consider and
determine those differences. The collective agreement includes
provisions that cover the matters raised by the Union. The Board has
the jurisdiction to decide whether those provisions encompass the rights
asserted in the grievances. It is a matter of contract interpretation, a
fundamental responsibility of the Board. Put differently, the dispute
arises expressly or inferentially out of the collective agreement. That
was not the case in Belanger, supra, where there was no article in the
collective agreement dealing with the provision of uniforms to
employees.
[48] The Employer submitted a number of times that CTO had to be
mutually agreed and the decision not to agree was not reviewable.
In Emmett, supra, the Board concluded it had the jurisdiction to review
management’s refusal to meet with the grievors and attempt to negotiate
a compressed workweek schedule. After reviewing Boulet, 1188/99;
McIntosh, 3027/92 and Bousquet, 541/90, Vice Chair Johnston in
Emmett characterized the standard of review as follows at page 14:
Therefore in making the decision not to sit down with the grievor’s
and attempt to negotiate a CWWS, management’s motives should
be reviewed in light of the standard set out above. That decision
must not be motivated by bad faith or discriminatory considerations
and must be based on legitimate of genuine government purposes.
The union has grieved that management has contravened the
collective agreement by not managing in a fair and equitable
manner and has systemically discriminated against the grievors. It
was argued that the employer has improperly exercised its right to
manage the workplace in that the decision to refuse to meet and
negotiate a CWWS with the grievors was not motivated by good
faith or legitimate or genuine government purposes and that
management’s decision resulted in a contravention of several
articles of the collective agreement.
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At this point in the proceedings, I do not have any information
regarding management’s decision-making process in this case. I
do not know why there has been a refusal to sit down with this
particular group of employees. Until I hear from the employer on
these issues, I have no way of assessing the validity of the union’s
assertions. These are issues that I have the jurisdiction to hear and
determine.
(emphasis added)
[49] Vice Chair Johnston also relied on the following excerpt from
United Parcel Service and Teamsters Union (1981), 29 L.A.C. (2d) 202
(Burkett). Arbitrator Burkett said the following at page 213:
In our view the employer’s decision making should be assessed
against the requirement to act for business reasons and the
requirement not to single out any employee or group of
employees for special treatment which cannot be justified in
terms of real benefit to the employer. When the parties agree
that such matters as classification, qualification, demotion, transfers
and the scheduling of vacations are to be in the discretion of
management, they do so in the knowledge that management’s
decisions in these areas will be made in management’s self-
interest, may adversely affect individual employees, and/or may not
impact on all employees equally. However, it is not contemplated
as part of the bargain that the employer will exercise his authority
in these areas for reasons unrelated to the betterment of his
business or to single out employees for the type of special treatment
described. If the employer acts in this manner, the results of his
actions, as they affect the bargaining unit generally or individuals
within the bargaining unit, may be found to be beyond the scope of
his authority under the collective agreement.
(emphasis added)
[50] All of these cases are cited in Emmett from the decision of Vice-
Chair Brown in Boulet, 1189/99. At page 12 in Boulet Vice Chair Brown
said the following about the scope of the Board’s jurisdiction:
How does the ruling in Bousquet apply to the facts at hand? As
noted by counsel for the union, if the employer has violated the
collective agreement by failing to post jobs, the grievors” rights
under article 6 are affected in the sense that they would not have
lost their employment if such jobs had been posted and awarded to
them. Using the language of Bousquet, I conclude management’s
determination of ODSP workloads would be open to challenge if it
was not “genuine” in the sense that it was not “related to
management of the undertaking”. The standard to be applied is not
whether the decision was “correct”, but rather whether it was made
on grounds “relevant to legitimate government purposes”. In other
words, what matters is the nature of the reasons underlying the
decision and not whether those reasons are of sufficient weight to
make the decision appear sound in the eyes of an adjudicator. The
sufficiency of the reasons is for the employer to determine.
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[51] I agree with these analyses. The Board has the jurisdiction to
hear and decide the merits of these grievances.
[71] I too agree with and adopt these analyses.
[72] Accordingly, when the exercise of management rights allegedly impacts on
collective agreement rights, as stated above in paragraph 47 of Vice-Chair Harris’
decision: “[t]he Board has the jurisdiction to decide whether those provisions
encompass the rights asserted in the grievances. It is a matter of contract
interpretation, a fundamental responsibility of the Board. Put differently, the
dispute arises expressly or inferentially out of the collective agreement.”
[73] As indicated above, in the absence of an evidentiary foundation, it is unclear in this
instance, whether Article 6 encompasses the rights asserted in the Grievances.
However, those allegations ground my jurisdiction to review the exercise of
management rights pursuant to Article 2.
[74] In addition, the allegations regarding the potential impact on the Cote et al
Grievors' Article 20.4 rights further add to the derivative jurisdiction I have to
review the employer’s decision-making to determine if, as is alleged in this
instance, it has the potential to negatively impact on the ability of the Management
Biologists to maintain their chosen careers in the Ontario Public Service. As set
out in the above quote from United Parcel Service, supra, at paragraph 81:
…
When the parties agree that such matters as classification,
qualification, demotion, transfers and the scheduling of vacations are
to be in the discretion of management, they do so in the knowledge
that management’s decisions in these areas will be made in
management’s self-interest, may adversely affect individual
employees, and/or may not impact on all employees equally.
However, it is not contemplated as part of the bargain that the
employer will exercise his authority in these areas for reasons
unrelated to the betterment of his business or to single out
employees for the type of special treatment described. If the
employer acts in this manner, the results of his actions, as they
affect the bargaining unit generally or individuals within the
bargaining unit, may be found to be beyond the scope of his
authority under the collective agreement. [Emphasis added]
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[75] At this stage, the basis and context for the Employer’s decision-making regarding
the transfer of Management Biologist work and opportunities to MECP are
unknown.
[76] I find that in all the circumstances the parties ought to be given full opportunity to
present their evidence and submissions, and that I have the jurisdiction to
determine the issues in dispute between the parties, as they give rise to and flow
from matters of contract interpretation.
DISPOSITION:
[77] The Employer’s motion is dismissed.
Dated at Toronto, Ontario this 10th day of August, 2020.
“Tatiana Wacyk”
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Tatiana Wacyk, Arbitrator