1276/87, 1342/87, 1858/87, 1887/87, 1888/87,

1889/87, 1890/87, 1891/87, 1892/87, 2292/87.

IN THE MATTER OF AN ARBITRATION

UNDER

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

BEFORE

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

(E. Blake et al)

Union

• and -

Amalgamated Transit Union

The Crown in Right of Ontario (Toronto Area Transit Operating Authority)

Employer

BEFORE:

O.B. Shime

Chairman

FOR THE GRIEVORS:

P. Sheppard Counsel

FOR THE UNION:

R. Stoykewych Counsel

FOR THE EMPLOYER:

G. Lodge Manager

HEARING:

January 22, 1988

DECISION

The hearing in this arbitration was held before a duly constituted panel of the Board, but, because there may have been a potential conflict of interest concerning one of the members of the panel which arose because of unforeseen circumstances subsequent to the hearing, the parties are in agreement that the decision of the Chairman be issued as the decision of the panel.

In this matter an issue has been raised as to whether the individual employee or the union controls access to arbitration with respect to those matters where an employee has the right to grieve under Section 18(2) of the Act.

At the outset, it is important to set out briefly the theoretical backdrop against which the Act must be considered. We note that the grievance procedure and arbitration are two separate and distinct processes and while the the [sic] grievance procedure may lead to arbitration it is preliminary to that process; the right to grieve is not synonymous with the right to arbitrate. The union is responsible for negotiating the collective agreement, and also for its administration including the administration of the arbitration processes. In administering the agreement the union has the responsibility to consider the needs of all the employees of the collective, and make decisions for the benefit of the group. Many factors will enter into a union's decision when it considers the competing

interests within the bargaining unit and the union will undoubtedly make decisions where the individual interest is subordinated to that of the group, subject only, to the union's duty under Section 30 of the Crown Employees Collective Bargaining Act that it "not act in a manner that is arbitrary, discriminatory or in bad faith". Thus it is important that the union which is responsible for the collective interests of the members of the bargaining unit control access to arbitration.

Section 19 of the Crown Employees Collective Bargaining Act reflects the theoretical position that it is the union, and not the individual, that controls access to the arbitration process. For convenience, Section 19(1) provides as follows:

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 reffered (sic) 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.

Thus it is apparent that the arbitration of disputes is to resolve "differences" between the "parties". Section 1(1)(k) of the Act defines a party as the employee organization and the employer - an individual employee is not a party.

Section 18(2) is a departure from the theoretical position that it is the union

that administers the collective agreement on behalf of the employees. Section 18(2) is as follows:

18.(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. R.S.O. 1980, c.108, s.18.

It is apparent that Section 18(2) grants an employee in limited circumstances the right to grieve and process the matter through the grievance procedure. What is not clear from Section 18(2) is whether the grievor may also process matters to arbitration?

In Keeling v the Crown in Right of Ontario 45/78 (Professor J.R.S. Pritchard), the employer raised the time limits in the collective agreement as a bar to a dismissal grievance. The Union argued that the time limits in the collective agreement were inconsistent with the employee's statutory rights under Sections 17 and 18 of the Act. The board concluded that the grievor had the statutory right to grieve and to arbitrate under the Act which could not be denied by the provisions of the collective agreement.

It should be noted in that case that the union was pursuing the grievance to arbitration and no argument was made that sought to distinguish the individual's right to grieve from the union's right to control which cases would be taken to arbitration. While the Keeling case asserts the grievor's right to arbitration it has done so in the context of a situation where that right was being aggressively pursued by the union. Thus when the board asserted that the employee had the right to bring the matter to arbitration, it was with the clear understanding that the union supported the individual grievor.

In Amalgamated Transit Union, Local 1587 and The Crown in Right of Ontario (G.J. Brandt) 1528/86, (Francis grievance), the board dealt with a situation that is more relevant to these proceedings. In that case the union had agreed that a grievance claiming an improper discharge would not be processed to arbitration and would be withdrawn. The grievor sought to pursue the matter under Section 19 of The Crown Employees Collective Bargaining Act. At the Board no one appeared for the union and the employer raised a number of preliminary objections particularly with respect to the relationship between Sections 18 and 19 of The Crown Employees Collective Bargaining Act. It is useful to set out the Board's reasons which are as follows:

"However the matter does not end at that. This case is different from Keeling in that here there has been a settlement of the

grievance between the Union and Employer. In Keeling and in the other cases reviewed in Maqhsoudi the Union was pressing the grievance on behalf of the grievor before the Board. This is the first occasion, to our knowledge, where the Board has had to consider the extent of a grievor's statutory right to grieve where his own Union has, during the course of the grievance procedure settled or withdrawn the grievance.

The resolution of this question requires an analysis of the language of Section 18(2) wherein it is provided that the "matter may be processed in accordance with the procedure for final determination applicable under Section 19.

The submission of counsel for GO Transit is as follows. Section 19 of the Act provides that a matter may be referred to the Board "In the event the parties are unable to effect a settlement of any differences between them". The "parties" to which reference is made are those referred to in S.1(1)(k), viz, the employee organization that is the bargaining agent and the employer. It is submitted, firstly, that there has been a settlement of the matter by the parties and that consequently, the condition which must be satisfied before a matter can be referred to the Board, that is, that the "parties" have been unable to effect a settlement, is not satisfied.

We agree with the submission that, by reason of the settlement of this matter between the Union and the Employer, the matter cannot be brought independently to the Board by the grievor. We do not regard the reasoning in Keeling as dispositive of this point.

Nor is this conclusion inconsistent with the statutory policy reflected in Section 18(2) by which employees are given a statutory right to grieve independently of the Union. At first glance it may appear that this statutory right is significantly compromised if it can be barred by a prior settlement of the grievance by the Union. However, it is important not to lose sight of the fact that the Act as a whole is an Act designed to regulate collective bargaining in the public sector. Primarily the employment interests of public sector employees are intended to be protected through collective bargaining. We do not regard the collective interests to be protected only at the negotiation stage of collective bargaining. They are also protected at the stage of contract administration. This view is well established in the private sector where Labour Relations Boards have frequently stated that a union enjoys a discretion to determine whether or not, in the interests of the collectivity an individual grievance should be settled or withdrawn. A useful account of the relationship between contract negotiation and contract administration may be found in Rayonier Canada Ltd. v IWA (1975) 2 CanLRBR 196 (B.C.).

In our opinion similar considerations prevail under the Crown Employees Collective Bargaining Act. Section 30 of the Act puts upon the employee organization a duty not to "act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees whether members of the employee organization or not". That language directly parallels that found in Section 68 of the Labour Relations Act. It is through Section 30 of the Act that the interests of individual employees are protected in situations like the one before us where the union has settled a grievance and thereby prevented the Grievance Settlement Board from taking jurisdiction under Section 19 of the Act.

Section 18(2) and Section 30 can thus be read as establishing a code of individual employee rights within a collective bargaining regime. Section 18(2) has been held by this Board in cases like Keeling to prevent the parties to collective bargaining from negotiating provisions which would have the effect of preventing employees from processing certain kinds of grievances through the grievance procedure. It does not, however, contemplate an automatic right to carry a grievance to the Grievance Settlement Board. The concluding clause of Section 18(2) provides that where a grievance is not resolved in the grievance procedure it may be processed to the Grievance Settlement Board in accordance with the procedure for final determination applicable under Section 19. Under Section 19 the Board has jurisdiction where the "parties", that is the employer and the union, have not been able to effect a settlement of the matter.

Section 30 has the effect of protecting individual employee interests where the "settlement" which has the effect of depriving the Grievance Settlement Board of jurisdiction, has been improperly secured. In that event the "settlement" would not, in our opinion, be a settlement of the kind which deprived us of jurisdiction.

If sections 18(2) and 19 were read as giving an employee a right to process a grievance to the Grievance Settlement Board independently of the Union and in the face of a prior settlement of that grievance wherein it was withdrawn, Section 30 of the Act would be deprived of application in the very kind of circumstance when it is intended to apply, viz. contract administration. An employee would have no need to seek relief under Section 30 if he could, in all cases, take his grievance directly to the Grievance Settlement Board.

Nor do we have any jurisdiction to determine whether or not Section 30 has been breached by the Union in this case. That is a matter for the Public Service Labour Relations Tribunal. Section 32(4)(c) gives the Tribunal the authority to inquire into a complaint that an employee organization has acted contrary to Section 30 and where it is satisfied that there has been a violation, it "shall determine what, if anything, the employee organization, employer, person or employee shall do or refrain from doing". It would appear to us that in view of this language, it would be possible for the Tribunal, should it find a violation of Article 30, to direct as part of its relief that the "settlement" be vacated in which case the way would be cleared for the grievor to return to this Board for a hearing of his grievance on the merits.

Consequently, it is our conclusion that so long as the current "settlement" is in effect, we do not have jurisdiction to hear the grievance. It is therefore, our order that the matter be adjourned sine die. In the event that the grievor were to successfully pursue his claim before the Tribunal and obtain relief of a kind which would permit us to take jurisdiction the matter may be rescheduled for hearing on its merits."

In our view the decision in the Francis grievance is directly on point and we see no reason to depart from the decision in that case. We adopt the reasons in total.

Parenthetically, we note, that grammatically Section 18(2) specifically grants the employee the right to grieve in the active sense but that the employee's right does not continue throughout the Section. Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only "the matter" that is entitled to proceed in accordance with the arbitration procedure in Section 19. The employee while given the right to grieve is not specifically given the right to proceed to arbitration.

But more important is that the decision in the Francis Case is the decision of the Grievance Settlement Board. In the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error.

But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under section 20(1) of The Crown Employees Collective Bargaining Act there is "a Grievance Settlement Board" - that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is "the decision" of the Grievance Settlement Board.

Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.

We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances.

In the result we determine that when an employee grieves under Section 18 of the Act that it is for the Union to determine whether such a matter shall proceed to arbitration in accordance with Section 19 of the Act. Accordingly, the matter is referred to the Registrar to fix a date for hearing in those cases where the union wishes to proceed.

Dated at Toronto, Ontario this 3rd day of May, 1988.