GSB # 1189/99
OPSEU # 99B926
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Boulet et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE Richard Brown Vice Chair
FOR THE David Wright
GRIEVOR Ryder Wright Blair & Doyle
Barristers and Solicitors
FOR THE Stephen Patterson
EMPLOYER Counsel Legal Services Branch Management Board Secretariat
HEARING July 5 and 6, 2000
The six grievors worked at the Ministry’s Sault Ste Marie office in the Family Benefits Program until the summer of 1999. Four of them were income maintenance officers, one was an eligibility review officer and the other was a clerk. The backdrop for these six grievances is the reorganization of social assistance programs. The Family Benefits Program previously administered by the Ministry was replaced by the Ontario Works program administered by the Sault Ste Marie District Social Services Administration Board (DSSAB) as the local delivery agent. At approximately the same time, the Ontario Disability Support Program (ODSP) was created within the Ministry. In April of 1999, the grievors were notified that their jobs would become surplus and that there was no ODSP work for them at present. Each of them obtained employment with the City pursuant to the “Memorandum of Understanding on Human Resources Transition Planning”, dated May 13, 1999, allowing Ministry employees to apply for approximately 23 jobs with the municipality and specifying terms governing such applications.
The grievances were filed on August 26, 1999, shortly before the grievors left the employ of the ministry. Each grievance claims:
That I am being unnecessarily transferred to the municipality insofar as there is an excessive workload within the Ministry currently. If this workload was distributed properly, there would be no need for a transfer to the new employer.
The union argues the grievors should have been allowed to retain their jobs with the Ministry because there is enough ODSP work to have kept them employed. In this regard, counsel for the union challenges the current assignment of ODSP work on three grounds: (1) the workload of employees administering this program is so heavy as to impair their health; (2) the assignment of work is unreasonable because the existing staff are unable to perform all of the functions expected and required of them; and (3) there has been an increase in the number of unclassified employees doing work related to social assistance. As to remedy, the union seeks an order directing the employer to establish additional positions to which the grievors may assert a claim under article 6 of the collective agreement, dealing with job postings, or under article 20, dealing with the redeployment of surplus employees.
Employer counsel has raised four preliminary objections: (1) that the grievance is barred in its entirely by minutes of agreement between the parties resolving all disputes relating to the transfer of social services in Sault Ste. Marie; (2) that the health and safety component of the grievance is barred by the settlement of a union grievance relating to health and safety issues in the ODSP program across the province; (3) that the review of management decisions on the ground of reasonableness is limited to decisions tainted by an illegitimate motive; and (4) that the grievors have no standing to challenge the workload of other employees. This award deals only with these preliminary objections.
I
The employer’s first preliminary objection is based upon a memorandum of agreement between the parties, dated July 5, 1999 and entitled “Re: Social Services Transfer--Sault Ste. Marie DSSAB”. It states:
This agreement resolves all disputes with respect to this transfer:
The Parties agree that any employee who is not offered a position with the Sault Ste. Marie DSSAB will retain their full Article 20 and/or paragraphs 2 to 5 of Appendix 9 rights in the event of a subsequent surplus.
For clarity, since the Sault Ste. Marie DSSAB has not agreed to make job offers without an interview and selection process, the parties agree that “any employee who is not offered a job” includes employees who choose not to compete or be considered for employment with the Sault Ste. Marie DSSAB or employees who choose to be considered for employment but who, for any reason, withdraw from competition or consideration prior to being offered a position as well as employees who compete but are not offered a job.
In the case of any employee offered a job without recognition of Ontario Public Service service/seniority for the purposes outlined in Article 6.5 of the January 20, 1999 Memorandum of Settlement between Management Board Secretariat and OPSEU and/or at less than 85% of their current salary, it is expressly understood that such employees will retain their full Article 20 and/or paragraphs 2 to 5 of Appendix 9 rights in the event of a subsequent surplus as a result of the transfer to the Sault Ste. Marie DSSAB should they decline the job offer. Such employees shall be so advised at the time of the offer. (emphasis added)
The record does not disclose whether this memorandum was precipitated by a formal grievance. Counsel agree if there was a grievance it would have asserted a violation of Appendix 9 of the collective agreement.
According to employer counsel, the grievors have no claim under article 20. That article is said to apply when the provincial government stops doing work without transferring it to another employer. Appendix 9 is said to apply when work formerly done by the government is transferred to another employer. As the employer in this case met its obligation under Appendix 9 to make “reasonable efforts” to obtain job offers, as evidenced by the memorandum of agreement resolving “all disputes”, counsel contends article 20 does not apply to the grievors.
Counsel for the union concedes that the grievors rights under Appendix 9 are limited to those specified in the memorandum of agreement. However, counsel argues the memorandum has no effect on their rights arising under article 6 or article 20 of the collective agreement. If the employer had created an additional ODSP position immediately before the grievors left the Ministry, counsel suggests the grievors could have asserted a claim to it under either of these articles. This hypothetical situation is said to be analogous to the facts at hand.
In my view, article 20 gives rise to different considerations than does article 6. The surplus rights created by article 20 are modified by Appendix 9. The last sentence of paragraph 1(a) of Appendix 9 states:
When an employee has been transferred to a new employer he or she will be deemed to have resigned and no other provisions of the Collective Agreement will apply except for Articles 53 or 78 (Termination Pay). (emphasis added)
This language contrasts sharply with the wording of paragraph 1(b) dealing with an employee who declines an offer of a job at less than 85% of current salary or without credit for service or seniority. Such an employee “may exercise the rights prescribed by Article 20 (Employment Stability) and /or paragraphs 2 to 5 of this Appendix”. A comparison of paragraphs 1(a) and 1(b) indicates that an employee whose work is transferred forfeits all rights under article 20 by accepting a job with the new employer, at least where the Ministry has fulfilled its “reasonable efforts” obligation. In any particular case, there may be a dispute as to whether this obligation has been met or as to whether the work of one or more employee has been transferred.
In the instant case, the memorandum of agreement confirms that article 20 rights are retained both by employees not offered a job with the City and by employees who decline a job at less than 85% or current salary or without credit for service or seniority. The implication is that the acceptance of a job with the City extinguishes an employee’s rights under article 20. The memorandum of agreement resolves “all disputes with respect to the transfer”. I take this to mean at least all disputes relating to the application of Appendix 9 to the transfer. The memorandum was signed after the grievors had been notified in April that there were no ODSP jobs for them. This notification clearly implied the employer was taking the position that their work would be transferred to the City. By signing a memorandum resolving all Appendix 9 disputes, the union gave up its right to contend not only that the employer had failed to meet its reasonable efforts obligation but also that the grievors’ work remained at the Ministry. Based upon the memorandum, I must conclude the grievors no longer have rights under article 20.
Does the memorandum of agreement prevent the grievors from asserting a claim under article 6? In my view, the only disputes relating to the transfer which are resolved by the memorandum are those arising under Appendix 9. The memorandum’s reference to “all disputes” must be read with an eye to the rest of the document. Paragraphs 1 to 3 deal exclusively with matters related to Appendix 9. The memorandum clearly would not preclude an employee with an ODSP job from challenging staffing levels on the grounds of health and safety, even though there is some relationship between the ODSP program and the transfer. Likewise, the memorandum does not prevent the grievors from invoking article 6 in an attempt to obtain an ODSP position.
In summary, the memorandum of agreement prevents the grievors from asserting a claim under article 20 but does not preclude a claim under article 6.
II
The second preliminary objection is based upon the settlement of a union health and safety grievance, No. 98U126, filed on November 24, 1998, some six months before the ODSP began to operate. The grievance states:
The employer is making no attempt to take reasonable precautions for the safety and health of employees assigned to the Income Maintenance Division. Presently the Division is seriously understaffed, workload assignments are excessive, projected caseload assignments within the ODSP are unreasonable and unacceptable. All of these conditions are promoting an unhealthy work environment and creating an adverse effect on the health of employees.
The remedy requested in the grievance is as follows:
That the employer and the union co-operate to the fullest extent possible in a review of current and anticipated workload assignments to ensure that assignments will reasonably provide for the safety and health of employees.
To settle this grievance, the parties on December 16, 1999, executed Terms of Reference for a MERC Subcommittee on ODSP. The relevant portions of this document state:
Purpose
The purpose of this agreement is to resolve Grievance File No. 98U126 related to health and safety Issues that impact ODSP staff. A subcommittee of MERC will be established to deal with issues of a provincial nature, including labour relations and program issues that affect ODSP staff. The subcommittee will be the forum to regularly share information and clarify issues and where possible determine plans of action. The mandate of the committee is to facilitate and expedite efficient resolution of issues and concerns relating to ODSP Staff who are members of OPSEU. ...
Process
Issues may be referred directly to the subcommittee for resolution by either of the parties provided that they are of a provincial nature and/or emerging trends, patterns or program issues. In sites where there are no LERC or health and safety committee at the local level, issues can be referred directly to the sub-committee through local stewardship if unresolved with the program managers. In addition either subcommittee co-chair may refer items to MERC for discussion and resolution and the item will not be return to the subcommittee unless directed by MERC.
The parties agree that it is important that health and safety issues be resolved in an expeditious manner. Therefore, where a health and safety issue remains unresolved by the subcommittee and possibly MERC and OPSEU chooses to file a union grievance, the grievance will not be viewed as untimely by reason of the time taken to process by the subcommittee and possibly MERC. And further, in the interest of efficient dispute resolution, and where OPSEU files a health and safety union grievance at stage 2 pursuant to the collective agreement, the parties agree that the subcommittee discussions that have already occurred may satisfy upon mutual agreement the requirements of the collective agreement for a stage 2 meeting. At that time [a] union grievance may be scheduled for mediation pursuant to the collective agreement process. (emphasis added)
This document makes no mention of the six grievances at hand, even though they were filed almost four months before it was signed. The meaning of this omission is not obvious. Perhaps the parties intended to resolve the union grievance while leaving outstanding the health and safety issue raised by the six grievors. Alternatively, the parties may have addressed the union grievance unaware a health and safety issue lurked beneath the grievors’ reference to an “excessive workload”. No evidence was led on this point.
If the union grievance was resolved without any consideration of these individual grievances, would the settlement preclude these grievors from raising matters of health and safety? The settlement establishes a joint subcommittee to address such issues but recognizes not all disputes may be resolved in this way. For matters that remain resolved, the normal procedure for a union grievance is modified by extending the time limit and waiving the requirement for a step two meeting. The settlement does not expressly bar any past or future employee grievances from being processed in accordance with the normal procedure for individual grievances. In the absence of an explicit prohibition, I conclude the parties did not intend to modify the contractual provisions allowing employees to grieve health and safety issues. Accordingly, the second preliminary objection is dismissed.
III
The third preliminary objection relates to the jurisdiction of this Board to review a management decision. Employer counsel concedes a decision may be reviewed on the grounds of health and safety. Health and safety aside, counsel asserts that arbitral review of a management decision is limited to a determination of whether it rests upon “improper motivation”. In the absence of an illegitimate motive, an arbitrator is said to have no jurisdiction to set aside a business decision merely because it is a “bad” decision or even a “very bad” one. In the context of the public sector, counsel suggests “business” reasons may properly include “political” reasons.
Employer counsel relies upon the following passage from United Parcel Service and Teamsters Union (1981), 1981 CanLII 4389 (ON LA), 29 L.A.C. (2d) 202 (Burkett):
In our view the employer’s decision making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management, they do so in the knowledge that management’s decisions in these areas will be made in management’s self-interest, may adversely affect individual employees, and/or may not impact on all employees equally. However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described. If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective agreement. (page 213; emphasis added)
In my view, the approach outlined by Arbitrator Burkett in United Parcel Services is not different in substance from the one followed by this Board in two decisions cited by counsel for the union: (1) OPSEU and Ministry of Natural Resources (Bousquet), File No. 51/90, dated March 1, 1991 (Gorsky); and (2) OPSEU and Ministry of Government Services (McIntosh), File. No. 3027/92, dated December 15, 1993 (Dissanayake). In McIntosh, Mr. Dissanayake cited with approval two passages from the Board’s very lengthy and unanimous decision in Bousquet. The first passage reads as follows:
Thus the significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by the particular application of such a right...
As noted above, if it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the employer to consider the advancement opportunities of employees. However, it cannot use its management rights to under s. 18(1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion. The employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded upon a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with. (pages 35 and 36; emphasis added)
The second passage from Bousquet states:
All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer so long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct. (pages 63 and 64; emphasis)
How does the ruling in Bousquet apply to the facts at hand? As noted by counsel for the union, if the employer has violated the collective agreement by failing to post jobs, the grievors’ rights under article 6 are affected in the sense that they would not have lost their employment if such jobs had been posted and awarded to them. Using the language of Bousquet, I conclude management’s determination of ODSP workloads would be open to challenge if it was not “genuine” in the sense that it was not “related to the management of the undertaking”. The standard to be applied is not whether the decision was “correct”, but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.
IV
The employer’s fourth and final preliminary objection is that the grievors have no standing to contest the workload of other employees.
In making this objection, counsel seeks to distinguish the facts at hand from those in OPSEU and Ministry of Natural Resources (Dey), File No. 1096/96, dated August 19, 1997 (Abramsky). Mr. Dey had registered under the voluntary exit program and grieved the employer’s decision not to assign his job to another employee who had been declared surplus. Ms. Abramsky held Mr. Dey had no standing to grieve because he was not “directly affected” by the decision about which he complained. She wrote:
Although the language of Article 22 is quite broad, allowing grievances over “any complaints or differences between the parties arising from the interpretation, application or alleged contravention of this Agreement...” that language cannot allow an employee to make a claim regardless of his individual interest in the matter. To grieve, an employee must, at least arguably, be directly affected by the employer’s action. That concept is clear from Article 22.11.1, Group Grievance, which states that “[i]n the event that more than one (1) employee is directly affected by one specific incident or circumstances and such employees would be entitled to grieve, a group grievance shall be presented ...”. While the purpose of this section is to allow the filing of group grievances rather than have multiple individual grievances, it clearly indicates that an individual must be “directly affected” by an incident or circumstance to have a grievance. (page 17; emphasis added)
The award in Dey was quashed by a unanimous decision of the Divisional Court, dated November 4, 1998. In a very cryptic judgement, the Court held that “Mr. Dey had the right to grieve on the ground that he was affected by the decision or lack of decision of management.” The Court noted article 22.11.1 “speaking of ‘directly affected’ is dealing only with group grievances”.
In the instant case, the grievors contend that the establishment of ODSP workloads in violation of the collective agreement has resulted in a failure to create positions for which they had a right to apply under article 6. If a violation has occurred the grievors are affected by it, but not in precisely the same way as Mr. Dey would have been affected by the contravention he alleged. There are two differences between the facts at hand and those in Dey. The first is that Mr. Dey wanted to be laid off, whereas the grievors seek to maintain their employment and therefore have more at stake.
The second difference relates to the nature of the causal connection between the alleged violation and the resulting harm to the grievor or grievors. If Mr. Dey’s job had been given to a surplus employee, as the grievance alleged should have occurred, Mr. Dey then would have been entitled to the benefit of a voluntary exit with surplus rights. In other words, correcting the violation necessarily produced the relief sought by the grievor. In the instant case, correcting the alleged violation would not necessarily produce a job for any of the grievors. If additional positions are created, the grievors only claim to these jobs would be under article 6, any claim under article 20 being barred by the memorandum of agreement. Under article 6, the grievors have a right to apply for any job posted, but so do other employees, and the grievors have no guarantee of being appointed. For this reason, counsel for the employer contends an order directing the employer to post jobs should not be granted at the behest of individual grievors, even if such an order would be an appropriate remedy for a union grievance.
In considering this argument, I begin by noting the right to submit grievances to arbitration is rooted not in the collective agreement but in the Crown Employees Collective Bargaining Act, 1993. Section 7(3) of the Act states:
Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. (emphasis added)
By virtue of this provision, both a trade union and an employer have a statutory right of access to arbitration. In the absence of any contractual limitation on this right, either party to a collective agreement may arbitrate any dispute arising under their contract. The remedies available in arbitration include not only a declaration that the agreement has been violated but also whatever relief is required to rectify any harm caused by the violation and, thereby, to produce “a final and binding settlement”.
The statutory right of access to arbitration is vested in the trade union which represents employees and does not reside with individual employees. See Blake and ATU, File No. 1276/87, dated May 3, 1988 (Shime). However, section 7(3) draws no distinction between grievances initiated by the union and grievances filed by employees and then carried to arbitration by the union. A trade union is entitled by statute to arbitrate both types of grievances.
There is a long line of arbitral authority recognizing that a statutory right of access to arbitration may be abridged by contract. Under some collective agreements, in certain circumstances, individual grievors are entitled to full redress but a declaration is the only remedy available in response to a union grievance. The arbitral jurisprudence on union grievances, also called policy grievances, is summarized in Brown and Beatty, Canadian Labour Arbitration, at 2:3124:
Indeed, at one time there was a view that certain types of grievances were inherently personal to individuals and could be grieved only by them and not by the union through a policy grievance. Thus, where the relief sought was peculiarly individual, such as a claim for monetary redress, reinstatement, relief from improper recall or layoff, arbitrators either held such grievances to be inarbitrable as policy grievances or alternatively limited the relief to a declaration only. However, this approach is no longer applied with the same vigour and it has been substantially eroded. Now, only where the collective agreement specifically prescribes the range of union policy grievances is it likely that such a limitation will be found to exist.
This passage is followed in Brown and Beatty by a quotation from Professor Weiler’s award in Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees and Weston Bakeries Ltd. (1970), 1970 CanLII 1647 (ON LA), 21 L.A.C. 308:
A union begins, under s. 34 [of the governing labour relations legislation] with the right to grieve itself for any violation of the agreement, even without the consent of an individual who may be directly affected as in U.A.W., Local 212 and Canadian Trailmobile Ltd. (1968), 1968 CanLII 1238 (ON LA), 19 L.A.C. 227 (Adell). However, it can contractually limit this right by appropriate language. No such limitation should be presumed from the alleged inherent “individual” (as opposed to “general”) nature of such grievances, though. Only if the explicit language of the agreement, as fairly interpreted without any such presumptions, leads to the conclusion that the parties did intend to limit access to arbitration through union policy grievances should arbitration boards give effect to any such limitation. (pages 313 and 314)
Just as a collective agreement may limit the remedies available for union grievances, an agreement may impose restrictions on individual grievances. Are the grievors in this case prevented by the contract from seeking an order directing the employer to establish additional jobs and post them, as employer counsel argues?
Counsel for the employer cited no cases interpreting a collective agreement as precluding a union from obtaining, on behalf of an individual grievor, an order directing management to post a job. The proposition that such relief is precluded, because there is no guarantee the grievor would have been selected for a position if it had been posted, would have far reaching ramifications. If this proposition is correct, so too would be its corollary that an individual grievor is not entitled to a directive requiring an employer to repeat a job competition because the process was flawed, as the grievor might have lost even if the competition had been conducted properly. The latter proposition is belied by the numerous cases where an individual grievor has brought a procedural challenge to a job competition before this board, under the same contract language or similar provisions in previous agreements, without any objection by the employer as to the employee’s standing. See, for example, the cases mentioned in OPSEU and Ministry of Finance (Miskelly), File No. 2622/96, dated March 4, 1999 (Brown). In Canadian Labour Arbitration, Brown and Beatty review a line of cases finding a contractual limitation on union grievances, but these authors make no mention of any case holding an individual grievor cannot obtain an order directing management to post a job or to repeat a competition.
In Dey, the Divisional Court appears to have suggested an individual grievor is not subject to the criterion of being “directly affected” which applies to group grievances. Even if this criterion does govern individual grievances, it would be satisfied in the case at hand. If the employer has violated the collective agreement by failing to post jobs, the grievors are directly affected by the violation in the sense that they would not have lost their employment if such jobs had been posted and awarded to them. The existence of an effect upon any particular grievor is contingent upon he or she being the successful applicant for a posted job, but if this contingency is met, there would be a direct effect. Until the job is posted and a competition carried out, there is no way of knowing who the successful applicant would be. Acceptance of the employer’s argument would mean that relief would be denied not only to an individual grievor who would have been rejected if the job had been posted but also to a grievor who would have been selected. A grievance filed by the union would be the only way to obtain a meaningful remedy for the latter employee. Such a grievance cannot be initited by the aggrieved individual. It is filed at step two of the grievance process and does not entail a step-one meeting between the employee concerned and his or or her immediate supervisor. For these reasons, the mechanism of a union grievance is not well suited to resolving a complaint by a single employee about a job posting or competition. Based upon this analysis, even if the words “directly affected”do apply to individual grievors, I would not interpret this language to preclude an individual grievance alleging that a position should have been posted or that a competition was flawed.
In short, the agreement does not abridge the union’s statutory right to arbitrate these individual grievances and to claim an order directing the employer to post jobs.
V
The preliminary rulings in this decision can be briefly summarized:
The memorandum of settlement bars the grievors from obtaining relief under article 20 but does not affect their rights under article 6.
The settlement of the union health and safety grievance has no bearing upon the grievances in this case.
This Board has jurisdiction to determine whether ODSP workloads were established in furtherance of genuine governmental purposes.
Individual grievors are not precluded from seeking an order directing the employer to post jobs.
Dated at Toronto, this 8th day of August, 2000.