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HomeMy WebLinkAbout1984-1508.Elhadad.85-07-151508184 5 IN THE MATTER OF AN ARBITRATION Under i @ 7 -y-c'r THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT i,,tipJa" I?=- ,__~.i.:. Before THE GRIEVANCE.SETTLEMENT BOARD Between: \ Before: For the Grievor: For the Employer: Hearing: OPSEU Grievor - and - The Crown in Right of Ontario (Ministry of Health)~:. Employer R. 3. Delisle Vice Chairman I. J. Thomson Member G. K. Griffin Member Allan Millard' Barrister & Solicitor Paul Mooney, Senior Staff Relations Officer Civil Service Commissibn May 28, 1985 \ AWARD At the outset of the hearing counse 1 for the Ministry objected to the arbitrability of the grievance. The grievance was filed by David Elhadad, Chief Steward, OPSEU Local 413. The grievance, Exhibit 1, was filed on December 28, 1984, "on behalf of all members of OPSEU Local 413". The grievance is signed only by David Elhadad, though the Classification of grievor is given as "Ambulance Officers 1, 2 and 3" and the Date of Hire is given as 'Various".- The Manager of the Ottawa-Carleton Regional. Ambulance Service, responded to the grievance at Stage One of the grievance procedure by a letter of denial dated January 7, 1985, Exhibit 2. The grievance was submitted to the Regional Manager, Eastern Ontario at Stage Two of the grievance procedure and the grievance was again denied by letter dated February 7, 1985, Exhibit 4. By letter dated February 20, 1985 the Grievance Officer for OPSEU requested a hearing before this Board, Exhibit 5A, fork the grievance described above: in that letter the hearing is requested Re: Grievance of Union/Elhadad, Local 413. Counsel for the Ministry directed our attention'to Article 27 of the Collective Agreement - Grievance. Procedure. Article 27.2.1 to 27.5 describes the procedure to be followed for an individual grievance and Article 27.8.l'to 27.8.3 describes the procedure for a union grievance. Counsel notes that the grievance before us is not an individual grievance: it purports to be on behalf of all members of the local whereas the provisions in the collective agreement speak consistently of an employee proceeding with a grievance. .Counsel notes that the - -2- grievance before us cannot be a union grievance since it is not signed by the President or Vice-President as the collective agreement requires. The grievance before us is a group grievance and the Collective Agreement does not provide for such. Each individual within the local could have filed a grievance or the union could have filed but a group grievance is not arbitrable. The Roard was tempted to accede to the suggestion of counsel for the grievor and treat the grievance before us as the individual grievance of David Elhadad. Counsel for the Ministry however properly pointed out that in doing so we would not be ruling on the arbitrability of the grievance before us; we would be changing the grievance into someth.ing that was arbitrable. Counsel for the qrievor argues that arbitrators~ought not t0 stand on unimportant procedural points; we agree but cannot say that the point taken is unimportant. If we were to change this grievance and make it arbitrable what would be the limits to our power to change future disputed.grievances and .what would happen to the integrity of the process? .Does anything come.from the fact that the jurisdictional objection was not taken before the hearing date? We think not. We agree with the essence of the remarks in Re Robson-Lang Leathers Ltd. (O'Shea) (1973) 2 L.A.C. (2d) 289, at 297; The right to launch any grievance is a substanfive right and not merelv a Drocedural matter. Where-the parties in a collective aareement have subdivided the different tvoes of grievances. thee right to~bring each different type of grievance is likewise a substantive right. Accordinqly,~the right vested in the union in this matter to file a policy grievance under art. 7.01 is a substantive right with respect to which the parties have set up-certain procedures, i.e., the -. . I -3- _ union may bring forward such a gri,evance at step 3 of the grievance procedure with five&;working days. If a matter properl,y has given rise to a policy grrevance under art. 7.01 but was only grieved after the expiry of the five days referred to and was processed to arbitration without objection by the company as to its timeliness, a company may be said to have waived any objection it had..to the procedure followed by,the union in processing the grievance. However, If the union attempts to initiate a grievance which is not properly a policy grievance under art. 7.01, the company can object to the arbltrabrlity of the grievance at any time since such objection is directed to a matter of substance rather than procedure. We therefore find the grievance before us to be not arbitrable. Dated this 15th day of July, 1985. &p-w R.velisle, Vice-Chairman I.J. Thomson, Member ._ qg.~ =yy G. Griffin - Member