GSB # 0001/00
OPSEU # 00U041
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health and Long Term Care)
Employer
BEFORE Richard Brown Vice Chair
FOR THE Richard Blair
GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors
FOR THE Len Marvy
EMPLOYER Counsel Legal Services Branch Management Board Secretariat
HEARING August 18, 2000.
This union grievance arises from the transfer of psychiatric hospital facilities at London and St. Thomas from the Ministry of Health and Long Term Care to St. Joseph’s Hospital. St. Joseph’s Hospital has requested that the St. Thomas site be transferred on January 22, 2001 and that the London site be transferred on February 19, 2001. The employer proposes to grant this request. The union seeks an order directing the employer to establish a common transfer date.
I
The agreed statement of facts reads as follows:
The London/St.Thomas Psychiatric Hospital consists of two physical sites--London and St. Thomas.
Patients stay in their programs in one site or the other and do not move between sites.
Over the last number of years, the operation/administration of the hospitals have been integrated such that there is now:
a common administration
a common management structure
a singe operating plan and combined budgets
a program tranfers policy allowing staff to move between programs and the different sites without vacancies being posted.
Terms and conditions of employment at the two facilities when employees begin working for the new employer are set out in a memorandum of agreement between the Crown in Right of Ontario and St. Joseph’s Hospital. The union concedes the negotiation of these terms and conditions fulfills the employer’s “reasonable efforts” obligations under Appendix 18 of the collective agreement. The grievance relates to article 2.03 of the memorandum under which St. Joseph’s “reserves the right to request that the Minister of Health and Long Term Care set two separate Changeover Dates for the transfer.”
II
The union objects to the two facilities being transferred on different dates because of the impact this arrangement may have upon the seniority rights of employees at one facility vis-à-vis those at the other during the period when the sites are being operated by different employers. For example, if a layoff occurs at St. Thomas during this time frame, the affected employees would have no claim to jobs in London.
Counsel for the union contends the establishment of different dates would amount to an improper exercise of management discretion. In this regard, counsel relies upon a series of decisions of this board dealing with management rights. I was referred to two passages from OPSEU and Ministry of Natural Resources (Bousquet), File No. 51/90, dated March 1, 1991 (Gorsky). 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 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 added)
These passages were cited with approval in OPSEU and Ministry of Government Services (McIntosh), File. No. 3027/92, dated December 15, 1993 (Dissanayake) and OPSEU and Ministry of Community and Social Services (Boulet), File No. 1189/99, dated August 8, 2000 (Brown). Applying these authorities to the facts at hand, union counsel contends the establishment of separate transfer dates for the two facilities would adversely affect seniority rights without furthering any genuine governmental purpose.
Employer counsel advanced three arguments. This board is said to have no jurisdiction to review the exercise of management discretion in the instant case because no rights under the collective agreement are affected by the decision in question. Counsel suggests the concerns of the union relate to what may happen after the transfer when employees would no longer be covered by the collective agreement between this employer and this union. Translated into the language of Bousquet, the contention is that no rights under the collective agreement would be “negated or unduly limited” by the establishment of different transfer dates.
In the alternative, if the employer’s decision is reviewable by this board, employer counsel contends the establishment of different transfer dates should not be viewed as improper. The union’s concerns are said to be speculative. In addition, counsel suggests the impact of different transfer dates on seniority rights is analogous to the way seniority rights may be affected by timing according to the decision about the “best bump of the day” in OPSEU and Ministry of Natural Resources, File No. 318/96, decision dated June 17, 1996 (Briggs).
In the further alternative, employer counsel contends the concerns raised by the union should be addressed before the Labour Relations Board, under the Public Sector Labour Relations Transition Act, 1997, after the transfer takes place.
III
It is not necessary to decide whether the employer’s proposed decision, approving different transfer dates, is subject to review by this board under the approach taken in Bousquet. Assuming such jurisdiction exists, I would not find the employer’s proposal to be improper according to the standard set out in Bousquet.
The union bears the burden of demonstrating the employer’s proposed decision would not be made in “good faith” in the sense that it would not be “a genuine one related to the management of the undertaking”. The only facts before me are the uncontested ones contained in the agreed statement and the submissions of counsel. These facts do not amount even to prima facie proof that the employer would not be seeking to accomplish “genuine government purposes”. There is no evidence to suggest St. Joseph’s request to transfer the two sites on different dates is intended to do anything other than facilitate a smooth transition by reducing the size of the undertaking being transferred at any one time. Nor is there anything to suggest the Crown’s proposed decision to grant this request rests upon any different considerations. The achievement of a smooth transition would be a legitimate governmental objective. As Mr. Gorsky noted in Bousquet, so long as the employer’s decision meets this test, this board has no jurisdiction to determine whether it is a “correct” decision in any other sense.
The union’s request for relief is denied.
Dated at Toronto, this 5th day of September, 2000.