Re The Crown in right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union
[Indexed as: Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Howe/Dalton/Loach), Re]
File Nos. 3155/92; 643/93; 656/93; 2168/93 Ontario, Crown Employees Grievance Settlement Board, N. Dissanayake, Vice-Chairperson, T. Browes-Bugden, M. Milich. October 11, 1994.
INTERIM AWARD concerning scope of remedial jurisdiction. I. Anderson, for the union. A. Gulbinski, for the employer.
INTERIM DECISION
This board is seised with five grievances, two filed by Ms Diane Howe, two by Ms Cynthia Loach and one by Ms Nancy Dalton. Ms Loach is a part-time casual cook at the Haileybury jail. In October, 1992, she complained to the employer that she had been subjected to sexual harassment by Mr. Eric Erickson, the superintendent of the jail. The employer initiated an independent investigation into her complaint. The investigator concluded that her complaint was partially substantiated. As a result Ms Loach was issued a letter of apology. Mr. Erickson was transferred. The employer has informed the union that the transfer of Mr. Erickson was in response to the findings in the investigation report.
In November, 1992, Ms Dalton and Ms Howe laid complaints alleging sexual harassment on the part of Mr. Erickson and Mr. Mike O'Donnell, a lieutenant at the Haileybury jail. An independent investigator appointed by the employer concluded that some of the allegations against Mr. O'Donnell were substantiated. Ms Dalton and Ms Howe received a letter of apology with regard to the actions of Mr. O'Donnell. The union claims that while the employees were informed that disciplinary action was taken against Mr. O'Donnell, the employer has persistently refused to disclose the nature of that discipline. No evidence was called at this stage of the proceeding. Union counsel set out the foregoing factual background in very general terms, and informed the board that the union will be taking the
position that as a direct result of the conduct of Mr. Erickson and Mr. O'Donnell, both of whom are members of management, a poisoned environment has been created at the Haileybury jail. It is alleged that the employer contributed to the continuation of the poisoned environment by failing to take appropriate action in response to the grievors' complaints. In these grievances the union contends that the investigations conducted, as well as the action taken in response to the investigation results, were so inadequate that the employer has thereby failed to comply with its obligations under art. A and/or art. 27.10 of the collective agreement. The parties mutually requested the board to rule upon a dispute between them as to the scope of the board's remedial jurisdiction in the event the grievances are upheld. The board was advised that the union will be seeking, inter alia, a direction that the employer take specific action against Mr. Erickson and Mr. O'Donnell, namely, that they be transferred or discharged. The issue between the parties was whether the board had the jurisdiction to make such a remedial order. Employer counsel assured the board that Mr. Erickson and Mr. O'Donnell received
notice of this proceeding and that both had indicated that they did not wish to participate in the hearing on the issue of the board's remedial jurisdiction. However, the parties felt that it was
necessary to obtain a ruling from the board on this issue prior to hearing the merits of the grievances, so that Mr. Erickson and Mr. O'Donnell would be able to make an informed decision whether to participate in the hearing with their own counsel as affected third
parties. The board having agreed to the parties' request, the issue to be determined was framed as follows: Does the Grievance Settlement Board have jurisdiction to direct the employer to take any specific
disciplinary action against a member of management, as a remedy in a sexual harassment/discrimination grievance? The following provisions are relevant to this issue. Articles A-1 and 27.10.1 and 27.10.2 of the collective agreement:
A.1.1. There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).
27.10.1 All employees covered by this Agreement have a right to freedom from harassment in the workplace because of sex by his or her Employer or agent of the Employer or by another employee. Harassment means engaging
in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
27.10.2 Every employee covered by this Collective Agreement has a right to be free from,
(a) a sexual solicitation of advance made by a person in a position to confer, grant or deny a benefit or advancement to the employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a
position to confer, grant or deny a benefit or advancement to the employee.
Sections 18(1)(a) and 19(1) of the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50: 18(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, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions .. .
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.
The employer relied on Re C. U.P.E. and O.P.E.I. U., Loc. 491 (1982), 4 L.A.C. (3d) 385 (Swinton) (hereinafter "CUPE case"); Re Canada Post Corp. and C. U.P.W. (1983), 11 L.A.C. (3d) 13 (Norman) (hereinafter "Canada Post case"), and Re Newfoundland (Newfoundland Farm Products Corp.) and N.A.RE. (1988), 35 L.A.C. (3d) 165 (Dicks) (hereinafter "Newfoundland Farm
Products Corp. case"). Counsel for the union relied on a number of authorities including, O.P.S.E. U. and Berry v. Ontario (Minister of Community & Social Services) (1986), 15 O.A.C. 15 (Ont. Div. Ct.) (hereinafter "the Berry case"), and Re Courtenay, GSB 912/88 (Wilson). Counsel for the union pointed out that the awards relied on by the employer are all from the private sector. In each of the cases the arbitrator concluded that the remedy sought in the particular circumstances was punitive and therefore refused to grant it. He submits that in the present case that is not so because the removal of the harassers either through transfer or discharge is necessary to remedy the grievances. He submits that the fact that discipline is stated to be an exclusive management function under s. 18(1) of the Crown Employees Collective Bargaining Act does not exclude the board's jurisdiction to order that specific action be taken against the two management personnel, where it is necessary to provide redress to the grievors. Counsel for the employer points out that under s. 22 of the Public Service Act, R.S.O. 1990, c. P.47, the authority to discipline public servants lies with the Deputy Minister or his designate. She further noted that discipline is explicitly mentioned in s. 18(1) of
the Crown Employees Collective Bargaining Act as an exclusive management function over which this board had no jurisdiction. While conceding that the authority conferred on the board by s. 19(1) of the Crown Employees Collective Bargaining Act to "decide the matter" included the authority to provide an effective remedy for a breach of the collective agreement, she points out that s. 19(1) does not expressly empower the board to impose discipline as part of that remedial authority. She submits that where the board finds a contravention of the agreement, the purpose of any remedial order must be limited to making the
grievor "whole", that is, to put her as much as possible in the position she would have been in if the contravention had not
occurred. She submits that an order that Mr. Erickson or Mr. O'Donnell be discharged or transferred does not have the effect of making the grievors whole. It simply results in punishing them. Employer counsel submits that in any event such an order is inappropriate because it is ineffective in eradicating the root problem at the workplace, which is the poisoned environment. Relying on the arbitration awards cited above, she submits that any order for the removal of a member of management by transfer or discharge must necessarily be punitive by the very nature of the impact it has on the individuals. It is her position that while the board may have authority to review the employer's conduct
for reasonableness after the employer has exercised its exclusive management functions, the board does not have jurisdiction to exercise the exclusive management functions itself. She contends that this is exactly what the board would be doing by granting the type of order sought. As an alternate argument counsel submitted that since the employer has already imposed discipline on the two individuals to a degree it felt appropriate, imposition of further discipline by the employer at the direction of the board would result in "double jeopardy". The two individuals would be left with no recourse against the board's orders. This, she submits, will result in a denial of natural justice. In the CUPE case, supra, a female grieved that she had been unjustly dismissed for absenteeism which she claimed resulted from years of sexual harassment by a co-worker, to her employer's
knowledge. By way of remedy she sought reinstatement, restoration of her sick-leave credits, the removal of the alleged harasser from the office and an apology from the employer and the alleged harasser.
At pp. 388-9, the board states:
There are few Canadian cases on point. In Re United Packinghouse Workers, Local 114, and Canada Packers Ltd. (1958), 9 L.A.C. 200 (Laskin), the union sought removal of a subforeman from his supervisory position because of his abusive language and belligerent attitude. The board held that the substantive terms of the collective agreement did not cover such an issue. In terms of remedy, the board held that it could order cessation of the offending conduct and left open whether it could order the supervisor's removal (at p. 203). In Re Stanley Works Ltd. and Int'l Assoc. of Machinists, Local 1226 (1979), 24 L.A.C. (2d) 395 (Hinnegan), an employee requested an apology from another employee who shouted at her. The board held that it was the exclusive function of management to maintain order and discipline.
Furthermore, it doubted the utility of an apology as a remedy.
American arbitrators show a similar reluctance to order the employer to discipline another employee: e.g., Re Marinette General Hospital and Marinette General Hospital Employees, Local 1752 (1976), 67 L.A. 785 (Schoenfeld) at p. 787; Re San Antonia Packing Co. and Amalgamated Meatcutters and Butcher Workmen of North America, Local 171 (1977), 68 L.A. 893 (Bailey) at p. 897. In Elkouri and Elkouri, How Arbitration Works,
3rd ed. (1973), it is stated that American arbitrators are generally reluctant to require discipline of supervisors, either because such a matter is not
arbitrable or the board has no jurisdiction to award such punishment (at p. 548).
We agree with the reasons underlying these cases. From a grievor's perspective, the concern is a remedy. Traditionally, those remedies have been compensatory in nature, based on contractual considerations, as Polymer indicates. They include reinstatement (a form of specific performance), damages, compliance orders and declaratory relief. An order to the
employer to discipline another employee, particularly one outside the
bargaining unit, or to require him to apologize is not compensatory in nature. Rather, it has the flavour of punitive action demanded by the grievor.
That is not to say that if one employee's conduct constituted a violation of the collective agreement the grievor would be without remedy. It would be entirely appropriate, in some cases, for an arbitration board to order that the employer cease from violating the collective agreement or that the employer comply with its obligations to provide a safe work place or one free from discrimination. The result might well be the discipline of the offending employee, if the employer felt that was the best way to ensure compliance.
The decision whether or not to discipline or how to control employees is one best left to management, as the cases discussed above have found. A major part of "management rights" is the employer's right to select and direct staff and to decide the severity of disciplinary action required.
In the Canada Post case, supra, the board concluded that a supervisor had sexually harassed the female grievor and that the employer was vicariously liable for the violation of the collective agreement that resulted. The collective agreement empowered the arbitrator to "grant any remedy or compensation he deems appropriate". The union sought a number of remedies including an order directing that the employer require the harasser to make an apology to the grievor. After reviewing the CUPE decision, supra, arbitrator Norman simply held at p. 21 that "I am persuaded that an apology ought not to be ordered." Instead, he issued a declaration that the collective agreement was violated and also awarded monetary damages for mental suffering. In the Newfoundland Farm Products Corp. case, supra, also, the arbitrator concluded that the collective agreement had been contravened when a temporary foreman sexually harassed the female grievor. The arbitrator reviewed the arbitral jurisprudence, including the CUPE and Canada Post decisions, and concluded at p. 175 as follows:
These cases establish the authority of an arbitrator dealing with cases of sexual harassment. A board of arbitration does not have the broad remedial authority given to the Human Rights Commission. As was stated in Re C.U.P.E. and O.P.E.I. U., the remedies are compensatory rather than punitive in nature. Consequently, in a case such as this where it is not the grievor who has been disciplined, the remedies may include damages, compliance orders and declaratory relief. Orders to the employer to discipline another employee or to require him to apologize are punitive rather than compensatory and therefore beyond the jurisdiction of an arbitrator. Consequently, in this case, I see no legal basis on which I can order the request to remove the management employee from the work place.
The starting point for a review of this board's remedial jurisdiction has to be s. 19(1) of the Crown Employees Collective Bargaining Act. The mandate and the obligation of the board is contained in the words "shall decide the matter". The extent of the
board's remedial jurisdiction flowing from these words was considered by the Ontario Divisional Court in the Berry case, supra. There the issue was whether the board, having found that the employer had improperly classified the grievors' positions, had power to require the employer to find or create a classification for grievors. The court held that it did. In that case also the argument
against jurisdiction was the fact that under s. 18(1) "classification of positions" was an exclusive management function over which the board had no jurisdiction. In the present case the argument is the same. It is claimed that since discipline is an exclusive management function, this board has no jurisdiction to direct the employer to exercise that function in any specific way in order to remedy a grievance. After observing [at p. 20] that "[i]t is a commonplace of the law that the existence of a right implies the existence of a remedy", the court stated in the Berry case:
25The employer initiated the process which led to grievors being wrongly classified. The employer alone can create classifications yet it has failed or refused to do so and seeks to take advantage of its failure. Classification is not a mere matter of title, it is a matter of money. The employer has given grievors added responsibility yet refuses to compensate them accordingly. That situation has existed since "the end of 1983", to state a fact asserted in applicant's factum and accepted by respondents.
26The object of arbitration boards, both in the public and private sector, is the resolution of differences. That is the mandate of this board. It has been stated in unequivocal terms by this court. In R. v. O.P.S.E. U. (1982), 38 O.R. 670, Linden, J., said for the Divisional Court, (at p. 675)
"... [W]e are of the view that the board was correct in its interpretation of s. 18(1) in the circumstances of this case. The plain and natural meaning of the words has been adopted by the board. In order to `decide the matter' at issue between the parties, the board had the power, pursuant to the wording of s. 18(1), to grant the job to an unsuccessful applicant in appropriate circumstances. That is the clear mandate of the board pursuant to s. 18(1) and the labour relations jurisprudence of this province. Our courts have interpreted other labour relations legislation in a consistent way in the past in order to arm arbitration boards with sufficient weaponry to perform their responsibilities effectively. Courts have been unwilling to limit the remedial powers of arbitration boards so as to enfeeble them. On the contrary, our courts have sought to ensure that arbitration boards can effectively bring about the final and binding settlement of all differences between the parties. As Mr Justice Lacourcière stated in Re Samuel Cooper & Co. Ltd. and Intl Ladies' Garment Workers, [1973] 2 O.R. 841 at 846; 35 D.L.R. (3d) 501:
`... the special tribunals created by unions and employers, and directed by statute to bring about final and binding settlement of all differences, ought to have the necessary powers to achieve such results'." (emphasis added)
27The board's obligation under s. 19(1) is to "decide the matter". When looked at without the confinement imposed by Article 5.1.2 "the matter" grieved was wrong classification. 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. In making the decision it made the board refused to decide the matter, it simply finessed it. In doing so it erred in law. Its error was so serious that, in my opinion, it falls into the category of cases requiring the intervention of this court, in accordance with O.P.S.E. U. v. Forer, supra.
In O.P.S.E. U. & Anderson v. The Crown in right of Ontario (judgment dated September 21, 1990), the Divisional Court of Ontario had another occasion to comment upon the extent to which s. 18(1) of the Crown Employees Collective Bargaining Act restricts the board's remedial jurisdiction in a classification grievance. At pp. 18-20 the court stated:
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?
Although Berry did not deal with 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.
In 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 statutory 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 restriction on the board's power.
The power contended for by the employee does involve the board in some classification activity, but no more than is necessarily incidental to the employee's right to grieve classification and the board's power to effect the final settlement of classification grievances. This necessarily incidental activity on the fringe of the classification system reserved to the employer under s. 18(1)(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.
The only decision of the Grievance Settlement Board to deal with this issue appears to be Re Courteney, 912/88 (Wilson). There
the board held quite unequivocally that it did possess the authority to direct the removal of a harasser from the workplace as a remedy in a sexual harassment grievance. However, in the particular circumstances before it, the board declined to exercise that authority. The board reviewed the Canada Post and CUPE awards and stated at pp. 82-3:
These decisions are somewhat ambiguous as to what the scope of authority of a board of arbitration is. As a matter of policy, they both, in effect state that they do not think an arbitration board should be meting out punishment or making punitive orders against employees not subject to the collective agreement from which they derive their jurisdiction. As a matter of policy, I
would agree that a board of arbitration should not get itself into the business of punishing non-bargaining unit employees. Even in the case of discipline of bargaining unit employees, a board only reviews the discipline originally imposed the employer. The question of what remedies a board feels are necessary to put an end to sexual harassment is of course the real issue. In that regard, I have not [sic] doubt that this board under s. 19 of the Crown Employees Collective Bargaining Act has extensive powers. Indeed, the
Divisional Court has repeatedly reminded the Grievance Settlement Board of the scope of its remedial powers, as for example in the areas of job classification and the Beresford type cases. The same is certainly true in the area of sexual harassment. Of course, for any order made by this board either directly against such a non-bargaining unit employee or indirectly imposed by an order directed to the employer under which that non-
bargaining unit employee is effectively ordered to be transferred, the rules of natural justice must be complied with. We have done so in this case by giving Fawcett full status. The real question therefore is not what powers this board has, but what specific orders out [sic] to be made on the facts in a case if a violation has been found.
(Emphasis added.) At p. 85 the board gave its reasons for not exercising its
extreme remedial powers:
The grievor is entitled to a declaration that sexual harassment to the extent found by this board did occur. I, however, do not think that it would be appropriate to direct the employer to transfer William Fawcett. The findings
against him are not anywhere near as serious as the allegations made against him. Such an order would only be justified if there was no hope of remedying the situation without such an order. I do not believe that the facts disclose
such a situation. The employer is directed to comply with the collective agreement as provided in art. 27 and to take whatever steps are appropriate to maintain a work environment free from sexual harassment. In particular,
it is so directed with respect to William Fawcett's behaviour towards the grievor. I personally believe that he will comply: it is a matter of exercising self-restraint and refraining from inappropriate comments such we have
found he made in the past.
(Emphasis added.) We agree that the only clear principle that emerges out of the
arbitral jurisprudence in the private sector is that discipline or punishment of employees is a management function, which is
beyond the scope of the jurisdiction of a board of arbitration. In the circumstances before them, the boards concluded that the orders sought were punitive. The difficulty, however, with those awards is that the boards make general statements which appear to assume that any disciplinary action directed by a board of arbitration is in every case "punitive". This, in our view, is not necessarily so. In the case at hand, one of the allegations is that the manner in
which the employer exercised its management authority to discipline contributed to or caused the poisoned environment. That very conduct is said to constitute a violation of the collective agreement. The union is claiming, inter alia, that by taking
inadequate action against the perpetrators, the employer continued to expose the grievors to the poisoned environment. The employer has already decided the appropriate level of discipline
required in its judgment. If the board agrees with the union that the choice made by the employer in that regard constituted a violation of the agreement, it does not make sense to allow the employer to hide behind the management function theory. It
makes no sense to make a general direction to the employer to take whatever action it deems necessary to eradicate the problem, because it already has made that decision and that very action has been found to be a contravention of the collective agreement. In the Berry case at para. 25, supra, the Divisional Court stated: "The employer alone can create classifications yet it has failed to do so and seeks to take advantage of its failure." Here if we conclude that the employer has failed to properly exercise the management function of its disciplinary authority and that it has thereby contravened the collective agreement, the board has an
obligation to remedy that contravention. The only effective way of doing that in these circumstances is by directing the employer to do whatever is required to remedy the grievors. In our view the Divisional Court decision in Anderson, supra, also supports the board's jurisdiction in these circumstances. It is
true that unlike the right to grieve improper classifications, s. 18(2) of the Act does not specifically guarantee the right to grieve sexual harassment. Nevertheless, the specific rights recognized in s. 18(2) are said to be "in addition to any other rights of grievance under a collective agreement". There can be no doubt that under the collective agreement an employee has a right to grieve sexual harassment. When she grieves, it becomes "a difference ... arising from the interpretation, application, administration or alleged contravention of the agreement" within the meaning of s. 19(1) of the Crown Employees Collective Bargaining
Act. The statute requires the board to "decide the matter" and render a final and binding decision. Therefore, we have no doubt that the Act recognizes the right of an employee to grieve a violation of the collective agreement, including a violation of arts. A and 27.10. Therefore, the reasoning of the court in Anderson at pp. 18-20 quoted above applies equally to this case. The issue here, as it was in Anderson, is whether the employees' right to grieve and the statutory mandate of this board to decide all grievances finally and efficiently must yield to the reservation of the management functions to the employer or the corresponding restriction on the board's jurisdiction. Just as the board's exercise of its remedial powers in Anderson resulted in some incursion into the management's exclusive rights relating to classification of positions, an order for the removal of the harasser by a transfer or discharge will have a similar effect. However, as the court stated, that incursion will only be to the extent "necessarily incidental to the employee's right to grieve ... and the board's power to effect final settlement of .. grievances". As the court held, the restriction on the board's jurisdiction over exclusive management functions "must be read
subject to the employee's statutory right to grieve ...", and "the board's statutory duty to effect a final settlement of .. . grievances". In Re Courteney, supra, at p. 85, the board stated that an order for the transfer of a harasser "would be only justified if there was no hope of remedying the situation without such an order". In our view, whether a particular remedial order is absolutely necessary to finally and effectively remedy a grievance is directly linked to
the question of whether the board has jurisdiction to grant that order. If the grievor can be redressed without such an order, the granting of such an order will not be "necessarily incidental" to the employees' right to grieve and the board's statutory duty to finally decide grievances, as contemplated by the courts. It would rather be an incursion by the board into the prohibited zone of management rights. Similarly, if such an order is not absolutely necessary to remedy the grievance, it takes the flavour of punitive action as opposed to remedial action. In other words, it is the necessity of a particular order to remedy a grievance, which makes it a remedial order within the board's powers rather than
an unauthorized exercise of management functions or punitive
action. In the case before us the grievors were subjected to sexual harassment. What does it take to put a stop to that? As already
noted, the board must give specific directions to the employer because it has already exercised its management rights in a manner that contravened the collective agreement (assuming that the board agrees with the union in that regard). Is it sufficient to simply issue a cease and desist order against members of management who have been found to have engaged in sexual harassment of an employee or is it necessary to direct his removal from the grievor's workplace? Again it depends on the degree of confidence or the lack of it gained by the board on the basis of all of the evidence as to whether the harasser will cease his offensive conduct. For example, in Re Courteney the board had the confidence that the harasser would comply with a direction from the board and, therefore, the board declined to direct that he be transferred. The same considerations will apply where the direction sought is for the discharge of the harasser. Remembering that the mandate of the board in these grievances is to provide redress to the particular grievors, the appropriateness of such an order will depend on whether the board is satisfied that nothing short of such drastic action can reasonably be expected to achieve that
result. One of the factors that may be pertinent is whether a less drastic order, such as a transfer, would not ensure that the grievors will not be exposed to further harassment by the individuals. Union counsel submitted that discharge would be the only appropriate order, because if the harasser is transferred, the harassment "is going to continue in some other institution within the OPS". We do not agree that that necessarily will be the case. In a given case the board may well decide, as it did in Re
Courteney, that a less drastic remedial order will be sufficient to deter the harasser. Besides, while the cleansing of the OPS from harassers may be a very noble objective, this board does not, in our view, have such a broad mandate in the course of remedying individual grievances.
To summarize, then, our decision flowing from all of the foregoing, we find that, if based on all of the evidence the board concludes that it is absolutely necessary to direct the employer to take specific disciplinary action against a member of management; in order to remedy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the board's jurisdiction. The fact that such an order may have the incidental result of penalizing the member of management, and of encroaching into areas reserved to the employer as exclusive management rights, does not mean that the board must decline to exercise its authority to remedy a violation of the collective agreement found to exist.
The other side of the coin is that if the board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a
punitive direction which will be beyond the jurisdiction of the board. Then it is also an unauthorized usurpation on the part of the board of the management's exclusive functions
We do not find any merit in the alternate submissions of employer counsel based on "double jeopardy" and denial of natural justice. If the board makes an order, all that the employer would be doing is complying with an order of the board, as it is bound by law to do. No double jeopardy issue arises. Similarly, no denial of natural justice results to the individuals affected by a board order, as long as they have been given full opportunity to participate in
the proceedings that resulted in those orders. They are in no different position than any other third party affected by a board order, such as an incumbent who is ousted from a position as a result of a board order in a job competition grievance. Having regard to the reasons the parties sought a ruling on this issue, the short answer is that the board has jurisdiction to direct the removal of a harasser through a transfer or discharge, if the board concludes on the basis of the evidence that the particular order sought is absolutely necessary to finally and effectively remedy these grievances. The parties are directed to provide appropriate notice of the hearing into the merits of these grievances to each affected
individual together with a copy of this decision. It will be up to the individuals to decide the extent to which they would participate in the proceedings. The board will reconvene on October 14, 1994, to commence the
hearing into the merits of these grievances.
[M. Milich dissented.]