HomeMy WebLinkAbout1981-0352.Tsiang.82-02-15c. _ . _:- --~
ONIARIO CROWN ~hwLcJ”EES
GRIEVANCE
SETTLEMENT
BOARD
Between: Joy Tsiang
and
The Crown in ?.ight of Ontar'?
(Ministry of Industry & Tourism)
Before: E. B. Joiliffe, Q.C. V';ce-chairman
'?. Warrian Nem?z.
W. A. Lobraico !-kt?f
,For the Grievor:
-4?~- - !I.-kzay, Grievance Officer
Ontario pubiic Service Emc!:yees tin!on
'For the Employer:
J. injewick, Staf;' Relatic:!s i)ff<cer
Ilinistry of Industry & Tourism
Hearits:
. Decer.?er 7, :931
Griever ,
E.5: I oyer .
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DZCISIO!4
In this case a preliminary objection was argued on
behalf of the employer. The issue must be considered and
determined before proceeding further.
The grievor, ‘MS : Joy Tsiang, first employed in Sept-
ember, 1976, was in 1960 appointed as a “Typist III, Word
Proceaaing Operator" with the Ministry of Industry and Tourism.
On:May 22, 1981, she presented the following grievance:
Sincecci&xJt0theKar&Eocessiagc.0ntre,1waa Socm&edmbe,givenat,~easttwo&ysGatkcn~e~ proceasing mschirm. Since Ebb. U/80, I have been qivan ~kcnthetelexmachineonly. AtteqRsmadetogoon to the wd Procesaingmachinewererejected. Ha+qhad3+ yean~experiencswiththewo?dprocess~maEhineinaMthar Ministry, Iemseakingreliefinmyquesttogetback~the WeDd-~ariqlnallyaaplsed.
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As the "seftlement required” the grievor specified
"at least 2 days a week working on the Uord Processing Machine."
After the matter was referred to arbitration, the
Department's Manager of Staff Relations wrote the Cnion advising
that “the position of the employer . . . . . will be that the
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Grievance Settlement Soard lacks ~:xisdiction is this matter.”
The letter went on to allege that the g.rievor’s complaint did
not involve a matter contained wirhin the provisions of the
collective agreement or a matter covered .by Section l?(Z), now
Section lE(21, of the Crown Employees Collective Bargaining Act.
This was the basis of the employer' s objection that the grievance
is .not arbitrable.
As exglained by the rejiresentatives of the parties,
the facts are that Ms.~Tsiang won a competition for an appoint-
ment as a Word Processing Operato:, having qualified to perform
that type of work. However, other employees in the same office
: I had more seniority and have been doing more worq processing
work. The qrfevor’s 'representative submits that she is justi-
ried in fearing the loss of her skill due to lack of Qractice
and argues that it is discriminatory and unfair to deny her the
wark she was llpromised@* on appointment.
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.For a better understanding of the facts, it is
necessary, to refer to the notice or advertisement (often termed
a S1postinq8*) which is undated (Exhibit 3) but specified a closing’
date of February 1, 1980. The job .was described, as
’ f 0110ws :
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Wccrd Processing Cprator
c?ypist 3; 5192.01 - S210.85 P/W
l3EsmIm
~~~theMinistryofIrdustry&~iyptoo~efatellcod
Maddnesforallarsasof~theMnlstrytoprcducea' variety of typed documents. lbelsoserdadreceivemessap2s frcin the lklex machine for the Ministry ard other i-tinistries of the Wernment, a03 to type from hardwritten copy.
CJJALIPICWIONS:
Prefs%ably -12, slx.cessNcompletionof C+u. Service Ccmission typing test bth several pars ty~'experieze. Ability to amunicate toth orally ad in writing.
Even more important Lo the "Position Specification and
Class Allocation Form a for a Word Processing Operator in the
Pinance and Office Services Branch of, the Hinistry of Indust.?
and Tourism. The number of incumbents is stated as five, one
of them being the grievor. The form begins by stating the
Vurpose of PosL3ionn~to~be the.foltiwing:
To oparate Wang 222 ad A&S. 90 Word RoCess~ Mach- forallareaaoftheWinistrytopraiuceavarietyoftyped docmentst 'Ib also send am3 receive messages from the lblex~
machine farthe Ministry ad oth8r MInistries of the Gwemmmt .
'Ib copyfrc4nhardwritte.n material:
Thp n*Summary of Duties~ and Responsibilities'* specifies
in paragraph 1 that 40 per cent of the work is in operating -3e.
Xang 222 Word Processing System, which is more parcicularl./
described in eight sub-paragraphs. Paragraph 2 assigns
another 40 per cent,to operation of the A.E.S. 90 Word Pro-
cessing Machine, further described in seven sub-paragraphs.
,However, it is also stated in paragraph 3 that a weight of 15
per cent is given to "receiving and sending Telexes for the
Ministry and other Ministries to all parts of the world"by
performing miscellaneous tasks listed in 'seven sub-paragraphs,
and.fdve per cent is given to "related tasks."
Exhibit 4 was updated August 1, 1976. The difficulty
with such descriQtions~as those mentioned above is that the
techn~ology of office equipment is evolving rapidly and change
is the order of the day. Tlfe employer's representative
explained that machines known as the~Micom 2,000 and 2,001
have "replaced the A.E.S. machine and also the Wang machine.*
There is also a great deal of Telex work and it was asserted
that the grlevor'"has been doing Telex and some training on .q .~ - .- .\ ~. 1
Micom. w This of course is exactly what the grievor is corn-
plaining about. Further, the griever believes she is not getting
her "fair share” of the Hicom work, to which the employer responds
that she is,junior to the other incumbents. It was pointed out
that there are only four. Wicom mach'ines.
Thexe being no real dispute about the facts, the only
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problems to be resolved are whether Ms. Tsiang's cxplax: Is
arbitrable and whether this Board has any power to give the
direction she seeks.
On behalf of the grievor, Mr. Luczay suggested there
are 'authorities for the principle that relief may be given an
employee harmed by the unfair or arbitrary adminisrration of a
collective agreement. He cited the follotiing:
Brown & Beatfy; "Canadian Labour Arbitration", p. 187
and the following pages, particularly at Q. 194.
J.H.~Connor~ 6 Son Ltd (1949) 1 L.A.C.. 268 at 272
(Anderson C.C.J.), which involveda claim for higher wages.
Ferranti-Packard Electric Ltd 41963) 14 L.A.C. 52
(Bennett C.C.JI, a case not fully reported involving the dis-
placement of an hourly-rated worker by a salaried employee,
although 1S per cent of the salaried employee's time was not
considered sl;f~~.iant.to.bring.~him githin' the bargaining'unit.
Coca-Cola Ltd. t.1964) 15 L.A.C. 16, at 20..
Consolidated Bathurst Ltd. (1975) 9 L.A.C. (2d) 132
'(O@Shea).
Although the facts in the cases cited above bear no
resemblance to the facts in this case, Hr. Luczay argued that ,
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rhey have a bearing on rhe "arbitrary" o: ':discrzinato:y"
administration of work in the work-glace.
For the employer, Ws. Inderwick drew attention to
this Board's decision in "the parking fees case;." 455/80,, which
involved the O.P.S.E.U. and the Ministry of Transportatjon and
Communications, rendered on July 29, 1981.. In a unanimous
decision authored by Vice-Chairman ?almer, lengthy written
arguments by the parties were reprcduced, with teferences to
many authorities.
We can well understand the belief of.the grievor and
her union that she is ‘being unfairly traazed in that she is
being given very little of the word processing work for which
she successfully applied in 1980 and for which she had previously
become qualified. It would probably be’more appropriate if the
work on the Micom machines were apportioned equitably among‘the
five incumbents.
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Thre are, however, reasons for which we find it
necessary to uphold the employer's objection to arbitrability.
An arbitrable grievance mbst be founded upon either
language in the Crown Employees Collective Bargaining Act or
language in an applicable collective agreement. We cannot
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conclude that this is such a sr;+‘,ance.
Under subsection (2) :f Section 19 in the Act (formerly
Section 17) it is provided that:
(2! lh addition +n any other riqhts of grievance uder a dJective qraent, an amployee claiming,
(a) that his position has hen ~ope’:~ classified:
(b) that he has been appraised 5znuap to the ;overzbq
Qrin!ziQlesatdstandards;c
(c) that he has beendisd~lind or disaissed zr suspxki fmmhis mpl~ent withour just cause,
may pmcess such matter in. accordance with the grievance
+cxzcbe provided in the collecive ar;reement, atd failing
fiMldeterminatialurdermrhpocedure, themattermayix
QLrceeaed in cxcodamewiththe pLxedw3 ~for 5nal
determination a&kaUe urder Sction 19.
Obviously, the grievance of Ms. Tsiang does not fall
within any of the categories enumerated in Section M(2).
The applicable collective agreement .is that made
between the Mar&ment~ Board of 'the &binet and the O.P.S.E.U.
for the period from January 1, 1980. He have not been referred
to any language therein which would require -he employer to,
assign to the grievor a ."fair skare" of the word processing
work assigned to incumbents of -he .Qosition described in Exhibits
3 and 4. Nor do we find any pr:vision to that effect anywhere
in the agreement. Indeed, it is unlikely or at least doubtful
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Aat ihe parties could legally q'ree t3 suclr a req;d:r?men:.
The Act specifically reserves t3 the employer certain exclzsi-le
rights, set out.in subsection (11 of Section 18 as follows:
II)
Wq' collective agreement shall be deemed to provide that it is the ezlvsive fumtioa af the employer to manage,
*Ch fWCtiOn, without Limit- the geaemlity of the foregoiq, iac.l* the right to determine,
(a) employment; ap@iatmmt, cnnplemant,. o~zc~anization, assignment, dkCbUne, ciismissal, suspension, wxk methods an2 prccedures, kinds ai33 lcfations of equipnentard classification of pitions: arz?
(5) merit system, trainiag ad devdopneat, appraisal ard superaanua~, the governb3 pdnciples of dich are subjecttoreviewbythealployerwiththe~~
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apdsachmatterswillaotbethesubjoctofcollective~ainirq aoramedthiathejuridictimofalx2ard.
In assigning to Ms. Tsiang less word processing than
what is assigned ,to'others, the employer, in our view, is
exercising the function of *Borgaaitation, assignment..... work
methods and procedures, kinds and locations of equipment....:
training and developeat" referred to in Section 18(l). now -9f ..,, th&e things are done may of& be geagarded by some as arbitrary,
unfair or inciquitable, but they are in law and in practice part
of the management function.
The cases cited by the parties turn on very different
facts and all can be related to language in collective agreements.
There is~ ano'ther case which ca l's for serious consideration.
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!Je quote 25 with reluctance ;ecausc lsa,/e 23 ;;;?;l zz :.:e
Supreme Court of Canada has recenrl:f been ;ranted. ~The case
is Re Metrooolitan ~Toronto Board/of Commissioners of ?olice
and Metrooolitaa Toronto Police Association et al (1991) 33 O.R.
(2D) 476. This was an appeal from an Order of the Divisional
Court which had upheld the award of an arbitrator. Judgemen t
by the Ontario Court of Appea 1 was delivered by koulden J.A. on
June 2, 1991. The dispute related -.o the allocation of overtime
in the annual taking of inventory. The arbitrator had found
that there was no provision in the applicable'agreement dealing
.'X. .with either inventory-taking or the distrl,ution of overtime.
However, she concluded, dfter reviewing the facts, that the
employer had unfairly discriminated against the grievors. Thus
the case raised the whole issue of management fairness where a
particular matter is not explicitly provided for by a collective
agreement. On this issue the opinion of the Ontario Court of
Appeal was clear. It was said at page 479:
?he-~~tratorerred,~-~efots,inf~thatthe~ievaace ca&Ibefa&edana~failurebythe%ardtoexenzise fair&and
Wmn the arbitrator Setermined that there was no ~Ovisianinthe~~~~veagreewncthat~~Metakingof inveatory anl the distrilaitim of overtim, she should have mled ~tshehadnojrPisdic+iontodealdth~edisplrebecarrseofan
alleged improper exercise of managerent rights.
Even
though the last word in the case has yet to be
heard, we .&e bound to pay heed to -.he oprnion of three judges
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in the Court of Appeal.
iihatever the ultimate result may be in the above-
mentioned case, this Board cannot arbitrate outside the bounds set
by the language of the Crown Employees Collective Bargaining
Act and the language of the applicable agreement.
For the,reasons stated the complai~nt. is not
arbitrabje and must therefore be dismissed.
: "I concur"
P. Warrian Member
EBJ:.ice
‘I concu3
W. A..Lobraico Member