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HomeMy WebLinkAbout1984-0687.Union.85-02-20687/84 Between: Before: IN THE MAT<TER OF AN Under THE CROWN EMPLOYEES COLLEC Before ARBITRATION :TIVE BARGAINING ACT For the Griev,or: THE GRIEVANCE SETTLEMENT BOARD For the Employer: Hearing: OPSEU (Union Grievance) - an,d - .The Crown in.Right of On (Ministry of Health) ta r.io R. L. Ke,?nedy, Vice Chairman I. Freedman Member M. O'Toole Member M. Ball Counsel Cornish & Associates R. 6. Itenson Senior Staff Relations Officer Staff Relations Branch Civil Service Commission January 9, 1985 Grievor Emplqyer : i -2- DECISION This grievance was filed by Sean O'Flynn as a Union Policy Grievance and states as foll'ows: We grieve's violation of Section 18 (1) (a) and Section 18 (1) (b) of the Crown Employees Collective Bargaining Act in that the Employer is abrogating its management functions by assigning responsibility for performance appraisals, discipline and grievance handling to members of the O.P.S.E.U, bargaining unit. , The settlement required is that the Employer rescind forthwith directives to OPSEU bargaining unit members that they are responsible for performance appraisals, first level discipline and grievors, and that the Employer reassume its responsibility in these matters. The Employer took the initial position before this Board that we lacked jurisdiction to hear the grievance in the terms outlined in the grievance form, and by agreement of the parties we proceeded to hear argument on the aspect of jurisdiction prior to proceeding to the merits of the matter. The background facts relied upon by the Union were outlined to us by counsel for the Union. These facts were not conceded as being correct by the representative of the Employer, but in order to determine the natures of the case on .? . . -3- . the merits which the Union wished to pursue, we.accepted the oral outline from counsel for the Union. It was alleged that there had been a reorganization in the offices of OHIP, wherein some jobs were eliminated and others were changed around. Sixteen particular employees were reclassified as Clerk 5 General and Management expanded the supervisory duties of those employees to include responsibility for performance reviews, some aspects of discipline and some grievance handling with respect to other bargaining unit employees. It was the Union's position that while Management's right to organize the work force was not challenged, that right did not include the right to assign Management functions to bargaining unit employees. It was argued that such a process created conflict within the bargaining unit, wherein some employees were disciplining others and responding to grievances by other members of the unit; and it was argued that, in substance, Management was removing positions from the bargaining unit without the consent of the,other party to the Collective Agreement. The basis of the Employer's objection to jurisdiction was that under the Crown Employees Collective Bargaining Act R.S.O. 1980 c. 108 we acquired jurisdictionunder Section 19 (1) to determine only differences between the parties arising, from the interpretation, application, administration, or R ,. -4- alleged contravention of the Collective Agreement. It was' argued that based on the language of the grievance, there was no matter raised regarding the interpretation, application, administration or contravention of the Collective Agreement, and that indeed the only violation alleged was of a section of the Crown Employees Collective Bargaining Act. It was argued that we could not.take jurisdiction under the provisions of Section 18 (2) of the Act, since the rights under that section were the rights of an employee only, and on the facts and the contents of the grievance form, no individual employee was raising an issue relating to improper classification, appraisal contrary to governing principles and standards, or discipline, dismissal or suspension without just cause. Rather, all that- was asserted inthe language of the grievance was a breach of Section 18, and if the issue raised is a breach of a statute, the appropriate remedy is to be found in the act under Section 44; It was argued in the alternative that if the Union was alleging that Section 18 (1) was in substance a statutory management rights clause to be included in the Collective Agreement, then by virtue of the specific language of the last two lines of Section 18 cl), such matters could not be the subject of collective bargaining between the parties,.nor come within the jurisdiction of this Board. The substance of the Union allegation relates to the exercise of such management rights, and in,the absence of an allegation of a breach of - 5- some specific provision of the Collective Agreement, we were specifically denied jurisdiction under the provisions of. Section 18 (1). Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al (1981) O.R. (2d) 476 (C.A.). The argument of the Union focused more on the merits of the case, rather than the jurisdictional issue, and reliance was placed on such cases as Re Standard Sanitary and Dominion Rediator Limited (1954) L.A.C. 1684 (Roach) and Re Ontario Hydro (1976) 12 L.A.C. (2d) 143 (Shime). In the cases relied on by the Union, jurisdiction was not an issue, as specific provisions of the Collective Agreement~were relied upon as preventing the action complained of by the Union. Both cases in substance involved the performance of bargaining unit work by management personnel, and they are not material to the situation before us, wherein it is alleged that individuals who are acknowledged to be members of the bargaining unit are performing certain managerial functions. The sections of the Crown Employees Collective Bargaining Act material to this grievance provide as follows: 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer - 6 - to manage, which function, without limiting the generality of the foregoing,, includes the right to determine, (al employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified: (b) that he has been appraised contrary to the governing principles and standards: or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 1974, c. 135, s. 9, part. 19. (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any'differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. =z ,_ -f- The jurisdiction of this Board, and in particular its limited and statutory nature, have been dealt with in several prior awards, but in particular we would make reference to Re Haladay 94/78 (Swan) wherein at Page 3, referring to section numbers as , they then existed, the following is set out: We should note that our jurisdiction is statutory only, and has two main branches. First, we are vested with jurisdiction to hear and determine disputes about the .interpretation, application, administration or alleged contravention of the Collective Agreement: this jurisdiction arises under Section 18 [now Section 191 of the Crown Employees Collective Bargaining Act. Second, beyond that jurisdiction and independent of it, we have the jurisdiction set out in Section 17 (2) [now Section. 18 (2)J quoted above. We have no other authority to intercede between the parties: we do not have any inherent jurisdiction to do justice, or what we may conceive to be justice, or to provide remedies, no matter how desparately a particular case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a Collective Agreement, and our jurisdiction is thus broadened to the extent that they have done so. Beyond this circumscribed jurisdiction, the Board's legal authority is non-existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a court. We would accept the foregoing statement as to our jurisdiction, and we have not had drawn to our attention any particular provision of the Collective Agreement that is before us that would extend that jurisdiction or indeed which is alleged to have been breached in order to create an issue for us under the jurisdiction of Section 19. The grievance -8- language itself alleges only a violation of the statute, and neither in the grievance nor in the arguments presented at the c hearing was any reference made to any provision of the Collective Agreement which might be considered to have been breached by Management. The Union allegations clearly relate to the exercise of what-are commonly considered to be Management rights, and under Section 18 (l), such matters do not come within the jurisdiction of this board. Prima facie the reference in Article 19 to matters deaJing with the interpretation, application or administration of the Collective Agreement create a relatively wide jurisdiction, but in the absence of any specific' reference to any section of that Collective Agreement, apart from the provisions that are deemed included under Section 18 , and in view of the specific limitation in Section 18, we cannot find jurisdiction to hear the merits of the grievance. We might state that we reach this conclusion with some regret, since there clearly does exist a difference between the parties, and we presume that that difference will simply return to this Board in a different context, wherein the same issues are raised in a context that can attract j Section 19 ( 1 Similar urisdiction within the specific language of ) or Section 18 (2). jurisdictional issues have indeed arisen elsewhere in the context of rules promulgated by management which are - g-- challenged by the Union outside of the context of a disciplinary matter. Boards of arb,itration have frequently taken jurisdiction in such situations, and reference may be made to Re British Columbia Railway Co. (1982) 8 L.A.C. (3d) 250 (Hope) and Re Religious Hospitalers of Hotel Dieu of St. Joseph of the Diocese of London (1983) 11 L.A.C. (3d) 151 (Saltman). In each of those cases the employer raised an objection to jurisdiction in the board to review the propriety of a rule in the abstract and apart from a specific disciplinary situation or the alleged breach of a specific provision of the Collective Agreement. In those decisions the boards were prepared to adopt a wide definition of arbitral jurisdiction and consider the merits of the grievances. In our view, however, those boards were not subject to the strict statutory constraints as to jurisdiction that govern this board, and in particular, they were not subject to privative language such as is to be found in the last two lines of Section 18 (1) of the Act, which specifically provide that' matters coming within the provis ,i ons of Section 18 (1) are not to come within our jurisdiction. The grievance on its specific language raises only matters wi thin Section 18 (1). In the result, therefore, it is our conclusion that the ,ion to arbitrability raised by the Emp preliminary object layer - 10 - I is well founded and that this grievance must be dismissed. this 20th day of Febru ,ary, 1985. I. Freedman, Member