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HomeMy WebLinkAbout1981-0578.Sullivan.82-04-23\ \. \ *.. IX THE MATTER OF A?J .WBIT!WTICN Under TFE CROWN EMPLOYEES' COLLE.CTIi'Z BARGAINING 1.37 Before TRC GRIEVAXCE SETTLEMENT BCARD, 3eween: Before: , For r?ie Gri3vor: -- ;or tl-.e Enployer: OLBEU (Mr. Michael Sulli.:~z.) - And - The Crown in Right of Onzrio (Liquor Control Boards of Ontario), Ezzloyer XT. J.F.CV’. Xeatherill I::.airrz: Mr. L. Robinson : isbe r Mr . G. Peckham j<-_r,j p- r i.1~. E.J. Shilton Lemon, :zunse1 Golden.-Levinson Mr . M.P, Moran, Cour.sel Hic!cs, >lorle:r, :iarr.i:ton, ::a~: j Storie - 2 - DEC I S IO?: The grievance before the Beard, dated September 29, 1981, is a policy. grievance, filed by Xr. Sullivan in hiscapacity as union presider,-.. The grievance relates to the employer's "denia~l of ric:?.,: to wear blue jeans * and general enforcement of unreasonable rules about personal deportment". Reference is made to articles 3.2 and 21.1 of the collective agreement. The employer has raised, in rirmely fashion, an objection going to the arbitrability of this matter. Itis said that the grievance is not, properly speaking, a "grievance" within the meaning of article 2.1.1(c) of the 'collective agreecent: and that in any event the matter cannot be raised as a policy grievance, by virtue of article 2.6. The employer has, in fact,. Fublished certain dress requikements. The prwisions in its operating manual (dated July 1, 1974: to this effect include: "Trousers - clean and pressed". This has been taken to be a prohibitisn 'on the wearing of blue jeans by store employees. Indeed, in April, 1981, emF:oyee R. Pelletier was directed not tc wear blue jeans at;<ork, under 3reat of discipline. Mr. Pelletier filed a grievance over that matter, but the grievance, which had been referred to arbitration, was withdrawn on the basis of a form of settlement reached between the parties. The union considered the effect of that settlement to be that employees would be allowed to wear jeans at work "provided that they'were not torn -or had patches", as it was announced in the union newspaper. The employer., however, had a different understanding of the matter, and in a circular issued on September 29, 1981 set out its policy as follows: Despite a misunderstanding which has' arisen recently, the Board's policy concerning personal dress as outlined in the Store Opera- ting Manual G2,-02, namely trousers or slacks clean and neatly pressed, has not changed. This policy of course will apply to female attire as well. Jeans are not considered appropriate dress for store employees, while OR duty. It is that statement of policy which is the subject of this grievance. It is the union's position that the I rule involved is not reasonable,'and not a proper exercise of the'employer's rule-making power. The settlement.of Mr..Pelletier's earlier qrievance, it may be said, is not in issue in these proceedings. Mr. Pelletier has subsequently filed a further qrievance on his own behalf and that matter, it is said, will be referred to arbitration. !$a mention this matter only -4- to set out the background of the case Article 21.6 cf the collective agreement is a$ follows: 21.6 The Unian shall have the right to lodge a grievance based on a dilfcrsncc ariring’direcdy with the Bonrdr. How ever. such P grievance dull not include any marler upon which an employee is personally cndded 10 gricve~. Such griemnee shsll lirsc be prexmcd. in writing, IQ lhe Boards. wilhin Iuurtecn II41 days of the circumsmnccs giving rise to !he grievance and a meeting wiii be h&J within live (5) working Jays between represenl?dvcs 01 the Union und the bmls and the yrievnncc sball be answered. in wridng. by the Boar& within five (5) working days d such meeting, lollowing which or failing setdement 01 lbc grievance. the Union may rubmi, the grievance to ,ht Crown Em#oyees Grievlacc S.alcmenl Board within a further period ol ten 1101 working dws. The present grievance is brought as a "policy grievance", which we take to be one "based on a difference arising directly with the Boards". That is, it is a grievance said to involve a "direct difference" between the two parties, and in which,inthe instant case, the union asserts its interest as an administrator of the collective , agreement, being the bargaining. agent party to it. Assuming for the moment that the matter in issue may properly be the subject of a grievance, is it "a difference arising Directly with the Boards", and if so, does it include "any matter on which an employee is personally entitled to grieve"? There is, indeed, a distinction to be drawn between individual or parsonal , -5- grievances, and union or policy griavances. Article 21.6 prevents an individual or personal grievance being put forward in the form of a .;nion cr policy grievance. In the case of Yr. Pellstier referred to above, an individual or personal grievance was (and is again) involved. It would not have been cpen to the union to bring the grievance which.!.!r..Pelletidr brougM with respect to the employer's specific aL,onishment that he not,wear blue jeans while working in one of its stores. Where an employee who is disciplined does not grieve, it would not be open to the union, under this collective agreement, to bring a grievance on his : behalf, nor to bring a "policy" grievance sver the imposition of such discipline. This is not to say, however, that the same substantial issue may not arise in both "individual" and "policy" grievances. Thus, in Mr. Pelletier's grievance for example, the substantial~issue would appear to have been the reasonableness of the employer's rule against the I wearing of blue jeans by store employees. Tha,t issue would arise, of course, in the context of the individual circXumstances of Mr. Pelletier's' case. In the instant case, the issue sought to be putbefore this Soard is, again, that of the re~asonableness ri the rule against blue ,jeans. The issue arises, however, as a general -6- matter and in the context, it would seem, of the employer's operations as a whole. This is not a grievance which an individual employee .would be entitled to bring, even although it may be seen to raise what is, in a general way, the same issue. This grievance, brought as a "policy" matter, is in furtherance of an interest which the union seeks to advance on behalfof,the bargaining unit generally, and does not seek specific relief in respect of any~ individual. It does not, in,our view, involve a "matter upon -which an employee is personally entitled to grieve". The employer's objection in this respect is, accordingly, dismissed. It remains to be determined whether or~not the grievance sought to be putbeforeus is in fact a "grievance" within the meaning of article 21.1(c) ~of the collective agreement. That article is as follows: ’ -7- The grievance form, as we ha.:e,noted, refers to article 2.1 and 3.2 of the coL:ecti:-a agreement. Article 2.1 is as follows: It is clear to us that the issue sscght to be raised by this grievance 'is not cne of "intimidation" or "discrimination" or the like Tracticed against employees because of their membership cr non-membership in the *union or because of their exercise of any rights under the collectiveagreementor The Crown Employees Collective Bargaining Act. Neither the collective agreemerit nor the Act contains any prevision conferring rights G;ith respect to the matter in issue here. Despite the reference to article 2.1 in zhe grievance, there is , in fact no allegation of its violation, and no "grievance" in that respect. , ’ -a- Article 3.2 of the collective agrement li as follows: 3.2. In addition to ani other rights 01 gievwtce rider this Collective Agreement. an employee claimmg. W Ihal his/her posidon has been imwmcrly ckssified: . (b) lhnl he/she has been zippraised conwwy to 1st govern. ing principles and slnndards: or Since this article creates only ixlividxl ricF.3 to grieve, and since a policy grievance may r:t, as we have seen, include matters over whit:? an izdivie:al may grieve, it follows that no issue under this article can properly be put before us in this case. In any event, there is no claim asserted under any rf the heads of that article. In particular, there :?as baan no Zisc'iFline imposed. The enunciation of a dress ;olicy ts not in itself the imposition of "discipline" in the sense ins I which that term is used in article 3.2Yc). What is really in issue would apSesr tc be an alleged violation of article 3.1 of ths coll?:tive agreement, which is as foliows: -?- lb) merit syrwn. nining and development. appraisal ~ndsupcmnnu~~o.thegoverningprinciplcs~iwhich nre~ubjecrmreww by~heemployctwilh~hc bargain. ing agent. and such rnn~r~ will nor r the subject of collective bargain- ine nor come within Ihe jAsdicIion of a Board. The pr&ulgatiOnof dress regulations governino employees working in stcres is an exercise of management functions within the mezing of article 3.1. That .article essentially repraduces what is set out in section 18(l) of The Crown EnFlc:iees Collective Bargaining Act. While the matter of uniforms is dealt with in article 17 of the collective agreement, that article deals with the matter of issue and zvailability of various uniform items, and its provisiozs are not ins issue here. What is alleged in this case is not the violation of any particular substantive :zovision of the collective agreement - for there is none dealing with dress regulations - but rather that the "ru1e" promulgated in that re,spect is unreasonable. I That issue would, 2s we have said, properly be before this Board in a zsse where the infraction of such a rule was relied on as 3 ground of discipline and where the discipline was made the subject of a grievance. It is tempting to say that 'hecause such an issue may well come before,the Board, 1: should therefore be dealt -.,-it:? ’ in the instant case, where the reasonableness of the rule is raised as a "policy" question. That argment is, we think, fallacious in that it does not recognize the distinction between z::e reasonableness of a rule as applied to a particulsr individual, and the "reasonableness" of a rule in a general way. Thus, the ore-deteminatior. by this Board that a rule scainst wearing jeans was “reasonable" would zot, *;e think, estop ah employee from grieving the imposition cfdiscipline for wearing jeans, nor would there be any necessary inconsistency ir, the Board's finding, in the circumstances of the case, that there was not just cause for discipline, even although the rule itself may have beer. "reasonable". Further - ,and more importantly - if the distinction. is not made,~then. virtually any management action becomes, as such, subject to review by this goard. Thus, management may establish procedures for the handling of its sales transactions, fcr example. These procedures involve "ruies" which employees are to follow, and they Roy indeed be subject to disci?Li:a f,or failure to observe t?.em. The reasonableness of such rules may be put ir: issue where discipline is based 02 t:hez?~, but it would, wethiok be beyond the jurisdiction of ~this Board to enter'intc an er.;uiry as to their reasonableness as ampolicy" matter, hove.:er genuine t;-.e union's interest 1 -12- questionin; the.propriez:/ of -he order given to the griever, notwithstanding zhat the grievor has since left the er.?loy of the :!inisrry". In our view, that case was Froperly hear< on tha merits, involving as it ~did a parricular direction tc a particular employee, and where,what was in subsrance 5 disciplinary question had arisen. 'IL5.e Board did not dez ide the preli.minary question on that groxl, however, r.nd in :"r respectful view may have put the mazter too broadly in basing its jurisdiction on the,ground stated. The "difference" between.the parties which the union seeks to hzve adjudicazedinzhe instant case is not one ' arising from the interpretation, application, administraticn or allegee contraventicn of rhe provisions of the collective agreement. It arises cut.of the exercise by the employer '. of what t?.e Act requires be recognized as its "exclusive , function", and which t%e collective agreement does in fact recognize. The exercise of management functions is not, as szh, the administration of the collective agreement, , and while the enforcement. of rules by means of the exercise of the disciplinary prier ma: raise the issue of.the reasonablrness of those rules - an issue which would be properly itfore this 3rard i.: such a case - the mere formulation or promulTa:ion 2: such rules cannot qive rise to a "grievance" wit>:?. the xeani.z?g of z:le collective agreement which :,~oulL bring the issue of their reasonableness or ?ropriety before '25. T_iS ground of objection, therefore, r.':st succeed.. For the foregoing reasons, -he grievance mus: be dismissed. DA& AT TORONTO, this 23~5 day :f April, 19?2. I “I hissent” - see attac?.el 2. Robixon Xerker The emplryer's circuizr of September 29, 1981, ruling that "Jeans are not considered appropriate dress for store employees, whi'e on duty", :s quoted in the majority award. It is clear fr:m the facts :f the case that the circular is an order to th? Board's employees, and that failure to comply will result in discipline. Indeed, this has already happened with res,pect t: Fir. Pelletier, a Board employee. The effe:t of such an order has been setout in the McKay case (26I/80) as follows: "The ~zievor "as told ziat he jias to resign from tie presilaxy~ (of his ND; 3iding ;.ssociarion) or suffer severe consequences. 3 ,xost cases, and indeed, perhaps in almost ever; c&se, 5e Union h&s little legitimate interest ir. ?ursuins a discharge or dis- i cipliray grievance axe the mi~loyee has left the emplo? of the &mployez and danages are not in issue. There cre innumerable cases to suppxt such a con- cl usic.:. However, evcl: in disciplinary cases there may be the odd time w3.q the L'r;on does have a 'legitizte interest ir: ?ursuir.g the ratter. However, we do rot look upon t?..s case ds a disciplinary matter. Rather, we 1co.k upcr! Ltis case as one which questixs the lawfulness of ah order given to the qrievcz. When viewed in this lianner, it would appear obvioc;- that the Union: 5as a legitimette and contin- uing 2terest in the Ceterminarfon of that.issue. The fezt that the qricror has since 2eft the.employ of the .Yinistry do& r.zt lessen that legitimate interest. The real issue between the ?artieS is ,whethc the Ministry 3 zi?ino Association choose between the presidency 3i I , and hL3 or her job. Zt is well establi-&shed that arbitztfon procedures should be directed to tieter- ~mininc the real issue between :5e oarties. To qive effect to the orelitir~ry objection raised by the Emplo;zr would &earl,; t.'wart t.%t Objective. - 2 - notwithstanding that the qrievor has ;Ince Liszt the employ of the Ministry." Only a few changes of warding wo'u:; .suffice to make the italicized sentences above fit com:;etely the present case, insofar concerned. as the question of the Board's jurisdiction is Underly i ng the similarity however, there are a.number of relevant differences between the two cares: il In may, the Union processed,the grievance on behalf of a specific grie~vor, whereas here a speci~fic grievor, namely Mr. Pelletier, is waiting in the wings so to speak. ii) In m, the order was to an inc!vidual employee to obey the employer's interpretaticn of sections of the Public Service Act, whereas 'here :he order 'is to all Liquor Control Board employees to obey the Employer's opinion of what constitutes "appropriate dress for store employees, while on duty." In the former case, the issue was one~of the Employer's interpretation of a statute, whereas here the issue is one of the , Emp'loyer,'s view in a matter of sartorial taste. ,iii) In a, although the grievor was told that failure to obey the order would result i: discharge, the nature of the griever's alleged transgression led the Soard "not (to) look upon this case as a disciplinary matter." - 3 - Here, because of the: earlier stage at which the matter is being raised, it cannot be viewed as a disciplinary matter either, but the consequence of failure to comply will clearly be ,disciplinary in nature. i ‘I ) in w, the case invo left the Xinistry's emp came before the Board. ved one employee who'had oy by the time the grievance Here, the case involves a collectivity of employees all of whom were in the Liquor Control Board's employ at the time the case came up for a hearing. In both cases,~ the Union appeared on behalf of all employees who, in ~ci(ay, might be affected by the order in question and, in this case, have already been affected by,it. The Soard accepted ju,risdiction in ~c.~ay. Are the dif-' ferences between the two cases sufficient to nut this case beyond the Board's jurisdiction? With respect to the fourth difference, which also includes similarities, in neither Casey was there a specific grievor before the Boar:. Bur in both cases, the status of the Union was the same. This would seem to me to argue in favour of answering NO to the above question and hence of the Board accepting jurisdiction.. tiith respect to the third difference, since the Board's jurisdicrion undoubtedly covers discipline, the answer would again seem to te NO. - 4 - With respect ;:,the second :ifference,. in ~citay the Board undertook to judge the reasona;Yaness of the employer's interpretation of a stat.te. ,?ere t?f 3oarc is asked to judge the reasonableness of an order concer;ing dress. Thus, both cases involve the power :f the Smplo>sr to issue orders which may be unreasonable. Although the issue in this case is less. weighty than in ?ICK~U, tris differencs would not, I.submit, absolve the Board from assuming a corresponcingly lesser'burden. The heart of t-e matter lies with ihe first difference. Is this difference enoug; to outweigk the tilt of the other three and deny the Board juris:i ction, thus bringing on Mr. Pelletier's case and, it may reasonail, y be assume!, a good many others to follow. With respect, m:; opinion is that here also the. answer should be NO, and I ~woul: rest the B::rd's jsrisdiction'on article 21.1 (c) of the Collective Agreement. By issuing the circular in question and makin,g i't plain that discipline would follow failure to comply, the Employer -as created.~: diffe ence arising from the administration of the ag-eement. The majority atiard, however,: cone udes that the Board lacks jurisdiction on the ground tha: the grievance "does not recognizh the distinction between thr reasonableness of a rule as applied to a particular individua', and ;he 'reasonableness' of a$rule in a general way. . . . If (It is argued) the distinc- , tion is not made, then virtually any -?nage-ent action becomes, as such, subject to rev:?:~ by this 5:s:.d." The reasonableness of management rules. pronulcited in the :i,?rcisr of its functions "may be put in issue where d'::,ipl ine is z:sed c' them, but it would, we think, be beyond the,:liris diction :: this 3oard. to enter into a'nenquiry ?s to their reasonableness as a 'policy' matter; however genuine the uhion's 'nterest in such questions might be. In 0:r vieu, the arbitrafon provided for b:: the legisla- tion and -he collective agreement does not contzplate this sort of p-ospecrive adiudicarion, but contemplaras~ rather the hearing o"=grieva~nces *elatir.,g to actual or alle;ed violations of the- co:lective agreement. .Those may arise what-e discipline is impose:. They do r,ct arise by reason of the exercise 'of managemen: functions as such." This is nc doubt a valid statement of the ?oard's juris- diction with respect t;~~the exercise of management's functions in genera:. But the crse before us deal with a specific ' subjec't on which a considerable jurisprudence has been built up, namel::, that of ee:loyees' personal appearance and dress wh'ile at work. .Ilthough many of the cases submitted to the Board dea; more particularly Nith hair grooming, others do not - see for example .?e Pacliic western Airlines Ltd. and Canadian, Airline E3nloyens' Asszciaticn (1981), 29 LAC (.‘d) 1 (Chrisiie). Consequently, in accepting jurisdiction in this case, the Board would not so much be venturing into a wide open and uncharted field of "prospective adjudication" as it would be undertaking to abply established i:;risprudence to a rather zarrow and well defined 'ssue. Ifly exercise cf manage~mentts functions which ' falls witnin,an area :f established jurisprudence can readily be distic;uishe: from .-thers :qhich do not. Art:tratiz~n boar;s have heard policy grie.ances, on the issue before us :<itho:: invo':ing a specific gr'?./or. ?eference . - 6 - (HacIntyrel‘ in which the issue was "whether d directive containing certain details of Aair qrsominq is Sinding upon the e'mployees. As get the question is hypothetical since no diszizlinzr y action has been taken upon the dir- ect:-Je, bzr the employees take the position that the direc:ive constitutes an,unreasonable invasio.7 of their right to wear their hair as they choose. The ?istri:t takes the position that it has the riq?t, ant' perhaps the duty, to impose such regxiatioxs for safety and other reasons. Hence this application for w.!at is in effect a declaration as :o the -alidity of~t;le directive." (gage 204; emphsis z-lded) .Precisely such a de:laration was sought.by the Union here. In raising the-grievance, the Union may also have though: it necessary to protect the individual rights of its members. After all, net all of them could be expected to grieve indivi- dually as soon as the circular was brought to their attention. The Union wished tc make sure that acquiescence, which might. be inferred from their failure to grieve, would not lead to an argument by the Employer of estoppel. In the District~of North Vancouver cas?, employees where required as a condition of employment to sign the rul'es and regulations, which however were later changed unilaterally by the new "hair code" corn- plained of. The E-ployer nevertheless argued estopped, an argument which the 3oard fortunately rejected. Nhat would havt been'the out:ome if the Board had declined to hear the policy grievance? There are moreover persuasive reasons from the point of view of empl:yer-e-pl,oyee relations for dealing with the issJi now rather,t-an la:er. The circular off September 29, 1931, was issued fillowicg what employees thought was a settlemert of an indiv::ual 9*ievance applicable to them all, in the , same way as a-norm?1 arbitration award is,- The circu.lar . 7 - , accordingly caused scce ill feeling, a sense of having bee- "let down" if rot' "doubl e crossed." The Union nevertheless counselled'its members t o comply with the circular'pending the hearing before the Board, and we were informed that the members havs in fact done sod. In other words, the emp;,yees have followed the ruie of "obey and grieve later", with ths difference that the grievance-took the form 0f.a Union poi-cy grievance rather ,than a series of individual grievances. The'se will now follow. ining jurisdiction, the Board will not a:o Thus, by decl having to deal with id the issue; it will merely postpone hav:?g to do so. For individual grievances to arire, however, em;:oyees must disobey the circular and be disciplined or threatened -dith discipline. In some of the earlier cases, employees ref~us?:g to comply were'in fact disciplined for insubordination; th!s may happen again. Counsel for the Union pointed out that the Employer, in objecting to the Board assuming'jurisdiction, ;!as in effect inviting its employees to disobey the circular ic order to bring the matterbefore the Board in the form of individual grievances. By declining jurisdiction, the Boarl will in effect require,some of them to do so. All of this will'envenom rather than soothe labour relations, There is a furtier difficulty. Although the circular is of general 'application. and although the Liquor Control Board operates throughout the Pro,vince, Counsel for the Ezr‘syer argued that dress which may be appropriate inone place <:i':ssor was mentioned) :ay n:t be appropriate in another. F?! tni . reason, he suggested that indiv~idual grievances were necessary in order to enable the Board to d.ecide whether the circular was reasonable in the particular circumstances and place of each individual grievance. This poses what seems to me an insoluble dilemma. According to the established jurisprudence, ,one of the requisites which a rule unilaterally introduced by the Enployer must satisfy is that it be uniformly and consist- ently enforced from the time of its introduction. Another requisite is that it must be reasonable. Counsel for the Employer was however saying that if the rule with respect to dress satisfied the,first requisite, it might be found reason- able in some places but unreasonable in others, and could therefore not satisfy the second requisite in all places.. Alternatively, if the rule is enforced only in the places where it is considered reasonable, it could:not be consistently, enforced and would accordingly fail to satisfy the fi.rst requisite. Thus, in the consideration of individual grievances, two of the requisites of unilaterally introduced rules would inevitably be in conflict, and this conflict would become vexaZiously apparent in the likely event that the Board had before it a number of grievances from several ~localities at the same time. If Counsel for.the 'Employer takes the same position at the hearing of such~ individual grievances, the Board =ay well find itself in a fog of subtle distinctions or reasonableness here and unreasonableness there, depending .on the particular circumstances of different places. This difficulty kiould have been avoided if the Board had accepted * . - 9- More disqu~ieting is the fact that the circular was issued after the Pelletier case had been se::led b:/ the media- tion efforts of the GSB's Vice-Chairman. T:<en tczefher with the~Employer's argument that dress which ma, be ac:epted as appropriate in one place might not be so inanother, the implication appears to be that the Liquor C:itrol foard might not recognize any general validity of 'an ariifration Soard's decision in an individual case. This possi:il~ity :,:ould.have two c'onsequences, once serious and the other 1ess sc. 1,t would l.ead to'the prospect of a stream of cases, e:ding'only when either the circular had been withdrawn or tie issue had worn itself out - and had perhaps in the process 'xorn out some lawyers and members of the Board as well. rnd it would call into question a basic principle of arbitratfln, on,nhich its effectiveness in resolving differences c0nce.rning'the rights and obligations to a Collective Agreement deoends, namely, o,n the princple that an award in one case will govern the disposi- tion by the parties of all other similar cas?s. This possibility would likewise have be~en avoided if the Boar! had~accepted juris- diction in this case. .For the foregoing reason& and with great respect, i am of the view that the Board should have accer:ed jurisdiction: