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HomeMy WebLinkAbout1985-0497.Anderson et al.90-09-21DES GRIEFS IN THE HATTER OF AN ARBITRATION Under TBE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT . _ --- i. ._ Before GRIEVANCE SETTLEHENT BOARD Between: OPSEU (Anderson et al) n - and - The Crown in Right of Ontario (Ministry of Natural Resources ) Before: POT the Grievor: For the Employer: Bearings2 ,-.. . . Grievor Bmployer R.J. Roberts Vice-Chairperson I. Freedman Member A. Stapleton Rember J. Mike Grievance Officer Ontario Public Service Employees Union S.A. Currie Counsel nanagement Board of Cabinet Hay 9, 1999 INTERIM AWARD This is yet another in a series of rulings which this Board has been required to make in the pre$ent case, which has been in litigation between the parties since July 2, 1986. This time, the Ministry raised in the form of a preliminary objection an important issue which has to do with defining the interface between the decision of the Divisional Court in Re Ministrv of Communitv and Social Services and OPSBU (Berry et el) and the exclusive right of management under Section 19 (1) of the Crown Employees Collective Bargaining Act to classify positions. The Ministry took the position that under Section 19 (1) of the Act this Board did not have jurisdiction to review for sufficiency the content of a class standard develoged and implemented by management. All that the Board was entitled to do, it was submitted, was to measure the jobs of the grievors against a class standard and decide whether they fit within it. The Union, on the other hand, took the position that the Board was entitled to review the content of a class standard which ~management established pursuant to a a-type direction from the Board and instruct management to alter or amend this standard in order to reflect properly the duties, responsibilities, etc. of the grievors. To place this issue in context a brief review of the history of proceedings in this case is required. On August 26, 1986, 2 this Board reached the conclusion that the grievors were improperly classified in the classification of Resource Technician 3. We Issued the following direction to the parties: In accordance with the decision of the Divisional Court in Re Ministry of Community-and Social Services & OPSEU (Berry et al), (unreported) (Samuels), the matter is remitted to the Ministry for purposes of establishing a proper classification for the grievora. . . . Id. at p. 9. It will be recalled that in Betry, the Divisional Court decided that upon concluding that the position of a'grievor was improperly classified, this Board's mandate was to effect a proper classification. In early 1987, the Minist.ry reclassified the grievors as Resource Technicians 3 (Atypical). The Union claimed that this reclassification did not properly implement the terms of our 1986 award, and brought the matter back to us. On February 10, 1987, we concluded that we had jurisdiction to review-such a claim, and issued an interim award to this effect. Thereafter, management reconsidered,its position and decided to establish a new class standard for purposes of classifying the grievors. On November 25, 19.87, management received approval from the Civil Service Commission to create a new class standard which added a higher working level to the Resource Technician series called Resource Technician 4. It was anticipated that the grievers would be classified at this level. Thereafter, 3 management discussed with the Union the title and content of this new class standard as a preliminary step to negotiations for a new salary level pursuant to Article 5.8 of the Collective Agreement. In these discussions, the Union indicated dissatisfaction with the content of the class standard and management made some changes to deal with some, but not all, of these concerns. . Throughout this procedure,. management maintained the position that its consultations with the Union were nothing more than a voluntary accommodation and that management alone retained the exclusive right to determine the content of a class standard. Remaining dissatisfied that all of its concerns were not met, the Union once again applied for a hearing before this Board. The Ministry thereupon gave notice of its objection to jurisdiction. Section 19 of the Crown Employees Collective Bargaining Act reads, in pertinent part, as follows: 19. - (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organixation, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and . ..such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. 4 (2) In addition to any other rights of grievance under a collective agreement, an employee claiming: (a) that his position has been improperly classified: . . . may process such matter in accordance witti the grievance procedure provided In the collective agreement, and failing final determination under such procedure, the mattsr may be processed in accordance with the procedure for final determination applicable under section 20, 1974, c. 135, 5. 9 part. Under Section 19 (1) this Board is denied jurisdiction to review the exclusive right of management' to determine, inter alla, the classification of positions. Under Section 19 (2), however, we are granted jurisdiction over claims by employees that their positions were improperly classified. Over the years, the Grievance Settlement Board has developed a considerable body of jurisprudence governing application of the foregoing statutory provisions. In Re Rounding and Mini&r+ of Communitv and Social Services (1976), G.S.B. #18/75 (Beatty), the conclusions of the Board in this regard were set forth as follows: In the first place it is readily apparent that the methods and principles by which positions are to be classified Is, as a result of the most recent set of amendments to The Crown Employees Collective Barqaining Act, a bargaina= Issue between the .various employee representatives and the employer. However, by virtue of s. 17(l)(a) of~that same Act, It Is manifest that having settled on a particular classification and job evaluation system, the actual classification of positions is within the exclusive prerogative of the employer. In the result and for purposes of entertaining grievances under s. 17(2)(a) of the Act, in which an employee alleges that he or she has been improperly 5 classified, it necessarily follows that this.Board must take as a given and cannot interfere either with the classification system agreed to and adopted by the parties or' 'the application of that system to the various positions within the public service. Rather this Board's sole function in the resolution of grievances alleging an improper classification, is to determine whether the employer is conforming to the classification system as it has been established and/or agreed to. . . . Lat pp. 3-4. The Board has held that under. Sections 19(l) h (2) of the Act it does not have jurisdiction to Interfere with the classification system or the application of it to positions in the public service. Our sole function is to determine whether the classification system so established properly was applied to the position of the grievor. This view of the limitation upon our jurisdiction has consistently been applied through a number of decisions. See @ Lynch and Ministtv of Health (1978), G.S.B. #43/77 (Adams): s Pretty and Ministry of the Solicitor General (1978), G.S.B. #64/77 (Swinton); Re Wheeler atid Ministry of Correctional Services (1979), G.S.B. #166/78 (Swlnton); Re McCourt and Ministry of the Attorney General (1980), G.S.B. #198/78 (Saltman); Re Barnard and Ministry of Transoortation and Communications (1983). G.S.B. #327/82 (Samuels); Re Parker and Ministry of the Enviroiunent (1983), G.S.B. #107/83 (Draper): & Goobie and Ministry of Health-(1986), G.S.B. #240/84 (Verity): ti OPSBU (Union Grievance) and Ministry of Health (1985), G.S.B. #687/84 (Kennedy). 6 It was the submission of the Union that at least in cases such as the one at hand, where ,management created a new classification in response to a Berry-type award of this Board, the Board should make a broader interpretation of its power under Section 19 (,2) of the Act to decide whether a position was improperly classified. In such, circumstances, it was submitted, the jurisdiction of the Board ought to be regarded as extending to reviewing the classification created by management to determine if It is "proper" as to its content and, if not, to direct management to make whatever changes are necessary to make it "proper". In her submissions, counsel for the Union stressed that the Divisional Court in Berry said in the penultimate paragraph of its reasons, "If the Board concluded that the classification was wrong its mandate was to effect a proper classification. Its jurisdiction is unrestricted. Its mandate is remedial." 5 at p. 15; 'In this passage, it was submitted this Board was directed to "effect a proper classification". This meant, it was I submitted, Identifying the short-comings in the classification in question and directing appropriate amendments thereto. 1 In our opinion, however,- the Divisional Court in Berry did not intend to overturn the entire body of jurisprudence of this Board regarding the limitation which Section 19 (1) of the Crown 7 Employees Collective Bargaining Act places upon our jurisdiction. Thfs limitation was not at issue in Berry. The court did not have an opportunity to consider it: And given the extensive nature of the applicable jurisprudence and its consistent application, we would not be induced to depart from it without a clear and unmistakable direction from the court to do so. This, we do not have. Moreover, considering the wording of Section 19 (2),of the Act, we likewise would have to reject the contention of the Union. Under this provision, we have the jurisdiction to decide whether the position of an employee has been improperly classified: not whether the classificati.on,or class standard applied to the position was"improperlyYdrawn. The act of classifying a position is a narrow one. .It means applying to the position an existing classification system. It does not embrace the drafting of the components of thatsystem. Yet if we were to accept the submissions of the Union we would, in fact, become involved in reviewing and directing the drafting ~of one such component, i.e., the class standard for Resource Technician 4. We recognise that the limitation upon our jurisdiction may mean that in Berry-type cases, the process might become exhausting and protracted. Where the Board issues an award concluding that a grievor is improperly classified due to certain specified short-comings in the assigned class standard, it is 8 I forbidden to take what might be regarded as a logical and efficient step toward a final and binding resolution of the dispute. The Board cannot direct management to alter or amend the class standard to take care of those short-comings. To do so would be to stray beyond its jurisdiction. All that the Board can do is remit the matter to the parties for the purpose of having management either establish a new class standard or find a pre-existing one whic.h, in its opinion, "fits" the position of the grievor. If the latter disagrees, he or she must return to the Board. The Board must then, once again, determine whether the position in question fits within the new class standard. And so on until management gets it right. As the present case ambly illustrates, this process can be frustrating and inefficient. Frustration and inefficiency, however, do not constitute grounds for ignoring statutory limitations upon jurisdiction. In classification cases, our jurisdiction "is confined to two considerations: (1) is the grievor performing the duties assigned to a particular classification by the relevant class stindards, and even if this is so, (2) are there other employees performing the same duties as the'grievor who are included in a more senior classification?" Re Pretty and Ministry of the Solicitor General, w at p. 6. These are the considerations which are L i “ 9 I involved in deciding whether a position has been improperly classified within the meaning of Section 19 (2) of the Act. The preliminary objection to jurisdiction is allowed. We do not have jurisdiction to decide whether the content of the class standard for Resource Technician 4 was improperly drafted either in form or in substance. DATED at London, Ontario, this 14th day of June, 1989. - Member 5 2&A A‘., .- A. Staoleton Member ONTARIO COURT OF JUSTICE (GENERAL DIVISION) (DIVISIONAL COURT) Campbell, McKeown and Coo JJ. BETWEEN: ) ONTARIO PUBLIC SERVICE EMPLOYEES UNION and DAVID ANDERSON ET AL. Applicants -and- THE CROti IN RIGHT OF ONTARIO as ) represented by the MINISTRY OF ) NATURAL RESOURCES and the CROWN ) EMPLOYEES GRIEVANCE SETTLEMENT BOARD i I Respondents CAMPBELL J.: No. i187/89 Raj Anand for the applicant Dennis Brown, Q.C. for the respondent Ministry Donald J. M. Brown, Q.C. for the respondent Board .,.#.i Heard: September 14, 1990 The Issue: The case tur.ns on the applicat'ion of the principle in Ontario Public Service Employees' Union and Berry v. Ontario -. Ministry of Community and Social Services (19851, 15 O.A.C. 15 at P-. 20 (Div. Ct.) that the Crown Employees Grievance Settlement Board in a classification grievance, once it decides that a classification is wrong, has an unrestricted remedial.~jurisdiction to effect a proper classification. Does that unrestricted remedial jurisdiction, in the case of a class standard established by management pursuant to a Berry- type direction from the Board to create. a proper classification, include the power to review the content of the class standard and decide whether it was properly drafted? The Facts In the spring of 1985 two hundred conservation officers filed classification grievances on the grounds that they were improperly classified as Resource Technicians,3, having regard to the actual duties then,,*assigned to them by the Ministry of Natural Resources. The parties proceeded with the evidence of one Giievor, 1-.1 .~ Mr. J. B. Armstrong, and agreed to take that evidence as represen- tative of 8 grievors in the Kenora district, holding the remaining grievances in abeyance and applying to them as far as possible the conclusions reached in that arbitration. The first Board hearing was in early July of 1986 and on August 26 the board issued its first award. It accepted the evidence that the grievors work had changed from technical and management duties, of the sort described in the class standard for Resource Technician 3, to almost ~entirely 'enforcement-related ^~ - 3 - duties which were mentioned only incidentally in the class standard. The Board said: Here, virtually the only duties that the grievors performed -- enforcement work -- are given little significance in the description of the Class Standard. They are overwhelmed by technical and management duties. We be- lieve that in a non-atypical classification such as the one at hand, the Class Standard must contain a more significant reference to the work being done before it can be said to embrace virtually the totality .of a job. Accordingly, it is the conclusion of the Board that the grievors are improperly classified in the classification of Resource Technician 3. In accordance with the decision of the Divi- sional Court in Ministry of 'Community and Social Services and OPSEU (Berry et al.) lunreoorted Samuels) the matter is remitted to the M'inistry for purposes of'%tablishing a proper classification for the grievors. The Ministry in early 1987 reclassified the grie vors from Resource Technician 3 to Resource Technician 3 (atypical) . Because the rec$ssific~at:ion involved a change in title only, with no change in duties or-pay, the grievers asked the Board to reconvene on the grounds that the Ministry had not properly implemented the award of the previous August. This triggered the second board hearing on February 6 1987: The Ministry argued that the Board's jurisdiction was spent, -4- and the grievors' only remedy was to start the process all over again by filing new grievances. Four days later on February 10 1987 the Board in its second decision held that it did have jurisdiction to consider whether‘the Ministry had properly imple- mented the first award of August 25 1986. Eight months later, on October 15 1987, over two years after the original grievance was filed, the board held yet a further hearing, its third hearing, and it issued its decision that very day: The Board does not consider [the Ministry's] action to satisfy the requirements of our award, and we express our concern at having to be recalled to deal once again with this problem. Accordingly, we remit the matter to the parties for the purpose of establishing on an, urgent basis a proper classification for the grievor*. Mr. Anand submitted, and there is evidence in the Board's awards to support him, that there is a constant theme throughout these proceedings of lack of satisfaction on then part of the Board, .with steps taken by the Ministry. The board, yet again, retained jurisdiction pending 'implementation. : In November of 1987 the Ministry received government approval to create a new class standard which created a higher classification called Resource Technician 4. The union was not satisfied with the content of the classification and no agreement was reached with management. The case therefore came on yet again before the Board on May 9 1989 for a fourth hearing in relation to the classification grievance filed about four years before. The employer took preliminary objection to the board's jurisdiction, saying the Board had no jurisdiction to review the content of the class standard proposed by the Ministry in response to the Board's Berry type award, and that the Board had no juris- diction to direct the correction of the standard to reflect properly the duties and responsibility of the grievor*. The Board on June 14 1989 gave effect to the Ministry's ' preliminary objection and declined ju~risdiction to decide whether the content of the class standard was improperly drafted either in form or in substance. e., ;. The union seeks judicial review of that decision. .. -6- Berry:The Underlying Authority This is a convenient place to refer to the governing case, Ontario Public-Service Employees Union and Berry v. Ontario (Ministry of Community and Social Services, supra. In Berry this court held that once the Board decided in a classification grievance that the classifica~tion wasimproper, the Board hadthe mandate to require the Ministry to find or create a proper classification. The governing principle in Berry is that the Board in the case of a wrong classification has an unrestricted remedial jurisdiction to effect a proper classification: The board is obliged to follow the law and no question of reasonableness arises. The ques- tion that does arise is whether the board had power to require the -employer to find or ':L- create a classification for grievors. I think it had that power. Its authority under s. 19 .~ of the Act is untrammelled. It "shall decide the matter." Simply to dismiss the grievances when it acknowledges that the grievors are wrongly classified is to empty the-grievance procedure of any meaning. It is a coimnonplace . . of the law that the existence of a right implies the existence 0f.a remedy. . . . . . . If the board concluded that the classification was wrong, its mandate Gas to effect a proper c.lassification. Its jurisdiction is unre- stricted. Its mandate is remedial. Berry, supra, per Reid, J. at p. 20' - 7 - The Statutory Provisions The Crown R.S.O. 1980 c. 108 as amended provides in s. 7, s. 18 and s. 19(l) as .._I. follows: 7. Upon being granted representation rights, the employee organization is authorized to bargain with the employer on terms and condi- tions of employment, except as matter that are exclusively the function of the employer, under subsection 18(l), and, without limiting the generality of the foregoing, including rates of remuneration, hours.of work, overtime and other premium allowance for work performed, the mileage rate payable :to an employee for miles travelled when he is required to uses his own automobile on the employer's business, benefits pertaining to time not worked by employees including paid holidays, paid vaca- tions, group life insurance, health insurance and long-term income protection insurance, promotions, demotions, transfers, lay-offs or reappointments of employees, the procedures applicable to the processing of grievances, the classification and job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office or political activities o,r training and development. 18.(l)--Every collective agreement shall be deemed to provide that it is.' the exclusive function of the employer to manage, which function, without limiting the generality. of the foregoing, including th~e~'right to deter- mine, '. (a) employment, appointment, camp- : lement, organisation,. assignment, discipline,. dismissal, suspension, work methods and procedures, kinds and locations of equipment and clas- sification of positions: and . _’ - 8 - (b) merit system, training and development, appraisal and superan- huation, the governing principles of which are subject to review~by the "i? 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 grie- vance under a collective agreement, an emplo- yee claiming, (a) that his position has been im- properly classified: (b) that he has been appraised con- trary to the governing principles and standards; or (c) that he has been disciplined or .>.,~ dismi-ssed 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 pro- cessed in accordance with the procedure for ~final determination applicable un.der section 19. .19.(l)--Every collective agreement shall be deemed to provide that in the event the par- ties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, inclu- ding any question as to whether a matter is .arbitrable, such matter may be preferred for arbitration to the Grievance Settlement Board and the BoaFd'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. . - 9 - The Board's Decision The -Board upheld the employer's preliminary objection and held it had no jurisdiction to review the form or substance of the class standard. The Board held that the exclusive management right under s. 18 (1) to determine the classification of positions prevented the Board from interfering with the classification system or the application of it to positions in the public service. The Board rejected the union's position that the juris- diction of the Board under ferry was to~effect a proper classifica- tion,~ which necessarily includes the identification and correction of shortcomings in the existing class: In our opinion, however, the Divisional Court in Berry did not intend to overturnthe entire body of jurisprudence of this Board regarding the limitation which Section. 19 (1) ::of~~. the Crown Employee's .Collective Bargaining Act places upon our jurisdiction. This limitation was not at issue-in Berry. The court did .not have an opportunity to consider it. And given the extensive nature of the applicable juris- prudence and its consistent application, we would not be induced to depart from it without a clear and unmistakable direction from the court to do so. This we do not~have. 5. 18 ( It is common ground that the Board intended to refer to l), not s. 19 (1). - 10 - The Board held that the act of classifying a position was a narrow function of applying to the position an existing classi- fication system which did not include the drafting of the compo- nents of that system, that the Board had no j'urisdiction to decide whether the classification or class standard applied to the position was improperly drawn, and that' it could not become involved in reviewing and directing the drafting of the components of the classification system. The board from its experience recognised that this refusal of jurisdiction could lead to delay, frustration, ineffi- ciency, multiplicity of-proceedings, and would generally impede the inal and binding resolution of the dispute: f We recognise that the limitation upon our jurisdiction may mean that in --type cases, the process,might become exhausting and protracted. Where the Board issues an award concluding that a griever is improperly clas- sified due to certain specified short-comings in the assigned class standard, it is forbid-, den to take what might be regarded as a logi- cal and efficient step toward a. final and binding resolution of the dispute. The Board. cannot direct management to alter or amend the class standard to take care of those short- comings. To do so would be to stray beyond its. jurisdiction. -.. All that the Board can do is remit the matter to the parties for the purpose of having management either establish a new class stan- dard or find a pre-existing one which, in its opinion, "fits" the position of the grievor. If the latter disagrees, he or she must return - 11 - to the Board, the Board must then, once again, determine whether the position in question fits within the new class standard. And so on until management gets it right. As the present case amply illustrates, this process can be frustrating and inefficient Frustration and inefficiency, however do not constitute grounds for ignoring statutory-limita- tions upon jurisdiction. . . . . . . . This appears to represent a reluctant conclusion by the Board that its statute compelled it to decline a jurisdiction that would conduce to the final settlement of differences between the parties and make good labour relations sense. Scope of Review This case turns on the board's interpretation of'the -limits of its statutory~jurisdiction: This court decided that this _- .:.,.. board, in arriving at its conclusion about.the limits of its 1. :. statutory jurisdiction, has to be correct. In Re OPSEU and the Queen (1985) 51 O.R. (2d) 474 another case where the Board declined jurisdiction, Saunders .I. said at p. 475: In my opinion, in arriving at that conclusion, the board had to be correct and is not en- titled to curia1 deference: see Syndica~t des Employes de Production du Quebec et de L'Aca- . . die and Canada Labour Relations Board jet al., 119841 2 S.C.R.~ 412, 14 D.L.R. (4th) 447, 84 C.L.L.C. para. 14,069 (S.C.C.) and Blanchard v. Control Data Canada Ltd. et al, [19841 2 S.C.R. 476, 14 D.L.R. (4th) 289, -04 ~C.L.L.C. para. 14,070 .~ . . I i: 'L 12 - The Court of Appeal (Howland C.J.O., Thorsonand Krever JJ.), on June 2, 1986, some months after its judgment in OPSEU and Forer (19851, 52 0..R. (2d) 705, refused leave to appeal the judgment of Saunders J. I take nothing from that fact, and there is, in any event, no inconsistency between Forer and the judgment of Saunders J. See also Re OPSEU and Board of Governors of Seneca College (1989) 68 O.R. (2d) 593 per Saunders J. at p. 596. 'To use the language of Blair, J.A. in Dayco (Canada) Ltd. V. National Automobile, Aerospace and Agriculturai Implement Workers Union of Canada et al (C.A., September 13, 1990) following Union des Employes de Service v. Bibeault [1988]n 2 S.C.R. 1048 the test for distinguishing questions of law falling wi~thin the ~.L jurisdiction of a tribunal from those which limit its jurisdiction (P* 16). is whether the question is one~,.that falls within the ' pragmatic and functional definition of the:.-tribunal's jurisdiction ._. or whether the question concerns a legislative provision limiting the tribunal's jurisdiction (p. 20). It is clear that the board proceeded not on the basis of. any pragm.atic or functional definition off its jurisdiction but rather on its interpretation of the legislative provisions which it felt limited its jurisdiction. It did not proceed on any basis that attracts curia1 deference to its labour relations expertise. It obviously declined jurisdiction reluctantly and against its best labour relations instincts. The Board understands far better than this court what tools are necessary to bring about fairly and quickly the final and binding settlement of labour disputes, and the court must defer to their selection of the tools given them by the legislature. But if the Board because'of a legal error about its statutory juris- ,diction denies itself a remedial power it considers in its labour relations expertise to be a useful, logical, and practical tool to effect a final and binding settlement of the differences between the parties, it attracts no curia1 deference td.‘its jurisdictional decision. .:r. ;:~?;? .:i ‘: - The questionfor this court is whether the board correct- ly interpreted the statutory 1 ,imits on its jurisdiction. Non-Issues It is not necessary~to determine whether-.or not the board erred in its interpretation of the-word "board" in s. 18 (1). The Board based .its jurisdictional decision on the content of the . . - 14 - management rights clause. That clause in the context of the statutory scheme as a whole including s. 7 and s. 19 does impose limits on the jurisdiction of the rights arbitrator in relation to functions reserved by statute exclusively to management and the question is whether the Board in the result correctly interpreted those limits. The Governing Principles This case reguires the court to balance three jurisdic- tional principles: (1) The right of the employee to grieve classification (2) The duty of the Board to bring about the final and binding settlement of all difference between the :-.. parties, and to bring it about fairly, effectively, and efficiently within a reasonable time. ' : 92 (3) The right of management to classify positions and the corresponding restriction on the Board's jurisdiction _. ,. - 15 - Applying the'Governing Principles Under the first principle, -the right to grieve classi- fication should not be restricted unless the legislature clearly intended the restriction; Where a right to grieve a particular matter is specifically. recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislat,ure to do ~, so. OPSEU v. The Queen (1982) 40 O.R. (2d) 142 per Callaghan J at p. 145. Under the second principle, the need .for the Board to bring about the final and bindi%&settlement of classification grievances with some degree of efficiency is obvious from the long and tortuous history of this case. It is obviously the Board's view that'it would make good labour relations sense to be able if necessary, in the somewhat unusual Berry type case, to review and direct in some manner the development of one component of the classification - in this case ..::, the class standard for Resource Technician 4. The Board might choose not to exercise that ultimate remedial power in this case or any other case. The Board might prefer to'keep it in reserve asa lurking ultimate power, the mere existence of which might encourage management 'to get the Berry- “. - 16 - directed reclassification right the first or second time instead of being able in extreme cases to come back forever with inappro: priate classifications. To deny the board that ultimate power is to deny it a tool, necessarily incidental to the Berry power, that the Board obviously considers useful to effect the final resolution of disputes. The power to implement a proper classification. must necessarily include the power to review the contents of that classification for sufficiency and to instruct management to alter or amend the class standard to reflect properly the duties, responsibilities, etc. of the grievors The power to require management to create a proper classification necessarily includes the power to require management to get it right. otherwise would restrict the unrestricted To hold remedial jurisdict classification. ion, referred to in Berry, to effect a proper - 17 i To hold otherwise would defeat the legislative object of efficient and final settlement of grievances. It would promote the very mischief described by the Board: multiplicity of proceedings, exhausting and protracted delay, frustration, needless ineffi- ciency. It is now some time since the grievance was filed in the spring of 1985 and since the Board's Berry direction of October 15 1987 that the employer establish, on an urgent basis, a proper classification for the grievors. The Board did not think it made any practical sense for it to duck the question of class standard content repeatedly.and force the'parties to come back again and again until the.employer finally, if ever, gets it right. It is worthwhile to repeat in this context the Board"s description of the practical effect of its self-imposed jurisdictional restriction: All that the board can do is remit the matter to the parties for the purpose of having management either establish a new class stan- dard or find a pre-existing one which, in its opinion, "fits" the position of the grievor. If the latter disagrees,~ he or she must return to the Board. The Board must then, once again, determine whether the position in question fits within the new class standard. And so on until management gets it right. As the present case amply illustrates, this process can be frustrating and inefficient. .-’ - 18 -, I Frustration and inefficiency, however, do not constitute grounds for ignoring statutory limitations upon jurisdiction. . . . . . . The Board's mandate includes finality. Yet it describes as the antithesis of finality the effect of its self-imposed jurisdictional limitation. It made no labour relations sense to the Board to decline its jurisdiction and attract the mischief of lack of 'finality and bad labour relations practice. The .Board described the impugned jurisdiction as a logical and efficient step toward a final and binding resolution of the dispute. The Board declined jurisdiction not, on the grounds that it made any labour relations sense to decline, but because the statutory restrictions prevented it from taking steps it considered logical, reasonable, and efficient to carry out its mandate. Does the third principle, management's right to classify positions under s. 18 (1) (a) and the corresponding restriction on the Board's jurisdiction, ..require the defeat of'~the employee's right to grieve classification and the Board's duty to effect final settlement of all grievances? . ,. - 19 - Although Berry did not deal w ,ith this precise set of facts nothing in its language suggests that the right to grieve classification and the duty to settle all grievances finally and efficiently must yield to management classification rights or the corresponding restriction on the board's jurisdiction. fin fact the language of Berry, the explicit reference to a remedial mandate With unrestricted jurisdiction once the board concludes that the classification is wrong, suggests a wide view of the remedial power necessary to‘ give effect to the right to grieve classification and the duty to settle such grievances finally and efficiently. The statut0r.y right to grieve classification under s. 18 (2)(a), and the Berry duty to effect a proper classification once the board concludes the classification is wrong, have coexisted ~with management's right to classify and the corresponding restric- -' tion on the board's power. The power contended for by the employee doe.si,nvolve the, board in some classification activity, butt no more than is necessarily incidental to the employee's right to grieve classi- fication and the board's power board to effect the final settlement of classification grievances. This necessarily incidental activity . - 20 - on the fringe of the classification system reserved to the employer under s. 18 (l)(a) does not represent any incursion into the statutorily protected zone of management classification rights. The statutory restriction on' the Board's jurisdiction must be read subject to the employee's statutory right to grieve ~'._. classification, the board's statutory duty to effect a-final . settlement, of classification grievances, and the narrow ambit of necessarily incidental Board activity around the outer edge .of management's protected classification zone. To restrict the power of the board in the manner sug- gested in the relatively rare Berry decision would lead to the kind of delay, frustration, and other mischief identified by the Board, .~'. thus producing bad labour relations practice and frustrating the intent of the legislature. The jurisdiction' contended for does not involve a.ny significant inroad on management's right to classify. The Board noted in its decision of July 2.1986 that this is an extreme case because virtually the only duties performed by the grievers - enforcement - were given such little significance in the original description of the class standard: .c. -- Try as the Board might, however, it does not seem possible to .,avoid being drawn into a quantitative assessment in the circumstances of the -present case. These circumstances represent an extreme. It would be entirely a matter for the Board whether it considers this or any other case appropriate for the exercise of its remedial jurisdiction to review the content of.a.class standard and instruct management to alter or amend it. The Board might take the view that such cases would be rare and that the power should only be exercised in extreme cases. However rare may be such an extreme.case, however rare may be the establishment by management of a class standard pursuant to a Berry-type direction from the Board, however reluctant may be the Boa.rd exercise such jurisdiction, the power is in law avail- able to the Board in any case it considers it necessary in order to establish a proper classification pursuant to a Berry-type direction. CONCLUSICN I conclude that the Legislative Assembly, by.~leaving the employer a protected core of management rights, did not intend to frustrate the employees' right to grieve classification or the Board's duty to bring about a final and binding settlement of differences between the parties. i - 22 - I therefore con'clude that the Board is entitled to review the content of a class standard established by management pursuant to a Berry-type direction from the Board and instruct management to alter or amend the standard in order to reflect properly the duties, responsibilities, etc. of the grievors. :.+ I would grant the application with costs, quash the decision of the board, and remit the matter to theesame panel of the board for r-e-hearing in light of these reasons. Released: September 21, 1990 ,. No. 1187/89 ONTARIO COURT OF JUSTICE (GENERAL DIVISION) (DIVISIONAL COURT) Campbell, McKeown and Coo ~>J. BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION and DAVID ANDERSON ET AL. Applicants -and- THE CROWN IN RIGHT OF ONTARIO as represented by the MINISTRY OF NATURAL RESOURCES and the CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Respondents REASONS FOR JUDGMENT CAMPBELL J. Released: September~ 21, 1990 :-; ,:.