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Home My WebLink About1984-0240.Clerks 3 General.85-02-04i’ Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Clerks 3 General) Grievors - and - The Crown in Righ,t of Ontario (Ministry of Health) Employer Before: R. L. Verity, Q.C. Vice Chairman P. Craven Member L. Foreman Member For the Grievors: M. Cornish Counsel Cornish and Associate Barristers and Solicitors For the Emoloyer: J. P. Zarudny Counsel Crown Law Office Civil Ministry of the Attorney General Hearil?g: November 2, 1984 L ,, .:; :,,., T..: ,.... I’ - 2 - INTERIM DECISION In this matter, some 147 individual classification grievances were filed by Ministry employees in the positions of "Employee Information and Assistance Clerks". Each Griever is presently classified as Clerk 3 General, and each individual grievance seeks reclassification to Clerk 4 General. In matters involving multiple grievances, the Parties frequently agree to proceed on the basis of presentation of evidence and argument on certain selected grievances on the understanding that the Board’s decision or decisions would apply to all remaining grievances. In this matter, the Parties attempted unsuccessfully to fashion such a procedure. At the ,- Hearing on November 2, 1984, the Union requested the Board to issue a Directive setting out the procedure to be followed by the Parties in the presentation of these grievances. The Parties were in agreement that the grievances should be grouped into nine separate geographical districts, with some of those districts having satellite offices. . . - 3 - ( , The Union suggested a procedure whereby it would adduce evidence from a single major witness from each of the districts involved, with the requirement of the additional evidence from those districts with satellite offices. The Employer would be free to enter evidence showing that the Union’s witness was not representative of the grievers in the district. In the event that the Board found that the Union’s witness was improperly classified as Clerk 3 General, and would be more properly classified as Clerk 4 General, and was representative of the grievers in the district, it would proceed to issue an award reclassifying all of the grievers in the district from Clerk 3 General to Clerk 4 General. The Employer resisted the Union’s request for a procedural Directive, arguing that Article 27 of the Collective Agreement contemplated only two types of grievances, namely: 1 . . Individual grievances, and 2. Union grievances (commonly referred to as policy grievances). The Employer argued that the Collective Agreement does not contemplate “representative” or “test case” grievance or “group grievances”, and that in the absence of procedural - 4 - agreement between the Parties, each of the 147 individual grievances must be considered se~parately. On behalf of the Employer, Mr. Zarudny argued that the consolidation of individual grievances was a substantive matter, and that in the absence of agreement between the parties, the Board lacked authority to direct consolidation, either under the provisions of the Collective Agreement or under the governing act, namely the Crown Employees Collective Bargaining Act. On behalf of the Union, Ms. Cornish contended that the direct,ion sought was procedural rather than substantive, and that the Board had the authority and the responsibility to determine its own procedures pursuant to Section 20(S) of the Crown Employees Collective Bargaining Act. Notwithstanding that dispute, the Parties agreed upon terms of reference for the presentation of the Betty Goobie grievance as a representative grievance to determine the merits of all Hamilton area grievances filed. Accordingly, the Board issued a Directive in terminology agreed upon by the Parties to proceed with the Goobie grievance without resort to the - 5 - jurisdictional the jurisdicti issue. In addition, the Employer agreed to waive onal issue where there was agreement in each additional representative grievance. Essentially, two concerns separated the Parties: 1. The appropriate method for identifying representative grievers. 2. The nature and extent of presentation of evidence in a representative grievance. After careful consideration of the arguments presented,. -this Board is of the view that we are without jurisdiction to require the parties to deal with these grievances on a representative basis, or to impose criteria for the selection of representative cases from among the multiplicity of grievances before the Board. Articles 27.2.1 and 27.8.1 of the Collective Agreement establish procedures for processing indi vidual and union grievances. There is no provision in ei ther the Collective Agreement or the Crown Employees Collective Bargaining Act which provides for the processing of group grievances. Article 27.14 provides that an arbitration board has no authority to enlarge . . . upon the wording of the Parties' Collective Agreement. The Board concludes that the language agreed upon by the Parties in their Collective Agreement requires that grievances (other than Union grievances) proceed on an individual basis through the grievance procedure. If the Parties desire to permit the filing and processing of group grievances or (~ representative grievances or test cases, then the Collective .' Agreement must be amended to so provide. ,, . . However, having said that, the Board is of the opinion that the Crown Employees Collective Bargaining 4ct confers upon the Grievance Settlement Board the power to determine its own ,..:. ~.L.,, ,,. practice and procedures, while at the same time giving full opportunity to the Parties to present their evidence and make their submissions. It must be recognized that the Grievance Settlement Board has "consolidated" similar individual grievances in at least the following respects: 1. It has placed several individual grievances under a single file number. 2. It has scheduled the grievances so consolidated to be heard together by a panel of the Board on a single hearing date. 3. Panels of the Grievance Settlement Board have commonly given effect to procedural agreements of the Parties in the determination of multiple grievances. i 4. Panels of the Grievance Settlement Board hearing such grievances have considered it unnecessary to hear repetitive evidence during the course of consolidated hearings. In our view, the authority for these practices is to be found in Section 20(b) of the Crown Employees Collective Whi grievances in extend to the le this Board has the authority to consolidate the manner outlined above, its authority does not requirement that consolidated grievances be determined on the basis of a representative or a test case. Such.a requirement would be substantive in nature. Bargaining Act. These procedures have been adopted by the Board to facilitate the expeditious determination of grievances, which is also a mutual objective of the Parties as expressed in Article 27.1 of their Collective Agreement. These practices are procedural rather than substantive in nature. From the jurisdict power to determine its pract ional point of view, the Board’s ices and procedures is limited, in Section 20(a), by the requirement that full opportunity be given to the Parties to present their evidence and make their submissions. The Board concludes that neither Party can claim the unilateral right to determine which grievance qualifies as a test i 3. . - 8 - i c,ase, or how grievances are to be grouped for representative purposes, without the agreement of the other Party. Similarly, ith the board lacks the authority to make those determinations without the consent of both Parties. The -resolution lies w the Parties themselves, whom we urge to make all reasonable efforts to negotiate mutually acceptable procedures for the processing of these multiple grievances in an expeditious manner. With respect to the grievances before this Board, the i Parties have agreed that there are nine separate geographical districts, some of them containing satellite offices. This agreement will serve as a basis for future agreement on a single representative grievor for each district. As indicated previously, the Parties have also agreed upon terms of reference for the presentation of the Betty Goobie grievance in a representative capacity for all Hamilton district grievers. the mult i represen t The Board cannot accept the Employer's submission that ple grievances or, where agreement is reached, ative grievances, should be heard by different panels of the Board. The grouping of grievan~ces for hearing and the selection of a panel to determine those grievances is a procedural matter which is clearly within the Board's jurisdiction. Accordingly, and in order to expedite the determination of these grievances, and to ensure consistency in - 9 - results, all of the grievances outstanding will b,e determined by one panel of the Grievance Settlement Board. DATED at Brantford, Ontario, this 4th day of February, 1985. A. L. Verity, Q.C. - Vice-Chairman P. Craven - Member L. Foreman - Member