GSB#0507/01, 0508/01, 0509/01
UNION# 01B204, 01B205, 01B206
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Fox et al)
Grievor
-and-
The Crown in Right of Ontario (Ontario Human Rights Commission)
Employer
BEFORE Susan L. Stewart Chair
FOR THE GRIEVOR Gavin Leeb Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Lisa Compagnone Counsel Legal Services Branch Management Board Secretariat
HEARING August 31, 2001.
DECISION
The hearing in this matter was convened to deal with the Union's motion for interim relief. The Employer had a preliminary objection to the Union's motion that it wished determined before evidence and argument on the main motion was adduced. It was the position of the Union that the proceedings should not be bifurcated and that this objection ought to be addressed in final submissions after the evidence on the main motion was heard. The Board granted the Employer's request that the preliminary objection be determined before the matter proceeded further. As the parties intended to call a number of witnesses on the motion, it was apparent that the entire matter could not be dealt with in the one day that was scheduled. As well, the Employer's success in its objection would have rendered any further proceedings in relation to the motion unnecessary.
The three grievors are Investigation Officers with the Ontario Human Rights Commission and have each filed a grievance dated June 27, 2001, in which a violation of Articles 2 and 21.1 of the Collective Agreement has been alleged and in which it is claimed that: "... I have been subjected to unjust and unreasonable rules and regulations and been threatened with termination of my employment ...". The grievances arose from letters sent to the respective grievors advising them of certain targets for the closing or forwarding on of files within a specified time frame. The letters go on to advise the grievors that if cases are not completed as prescribed, "your continued employment with the Commission will be reviewed and a decision made about your employment status".
The Union seeks interim relief precluding the Employer from taking actions that would have financial consequences for the grievors, that is suspending or discharging them, until their grievances have been decided and thus the validity of the directive determined. It is the position of the Employer that the Board is without jurisdiction to grant interim relief on the basis that the relief requested is not related to a "procedural matter" within the meaning of s. 48(12)(i) of the Labour Relations Act and, as well, that while disciplinary action with financial consequences is a possibility, it has not been imposed at this point and this motion is therefore premature.
By virtue of its incorporation pursuant to the provisions of the Crown Employees Collective Bargaining Act, s. 48(12) of the Labour Relations Act has application to this proceeding. Subsection 48(12)(i) provides an arbitrator with power: "to make interim orders concerning procedural matters". The nature of the Board's jurisdiction pursuant to this provision has been addressed in Ministry of Labour and OPSEU (Nield) 1471/96 (Roberts), a decision that was the subject of submissions on both aspects of the Employer's preliminary objection. Because of the emphasis on this case in the submissions of the parties and the fact that it was upheld on judicial review, I will refer to it in some detail.
Nield involved the case of an Occupational Health and Safety Inspector who was required by the Employer to divest himself of an interest in a business on the basis that his ownership placed him in a conflict of interest. A grievance was filed by the Union in connection with this requirement. Subsequently the grievor was advised that if he did not comply with the requirement to divest by a specified date, he would be subject to discipline, up to and including discharge. The Union sought interim relief from the Board enjoining the Employer from requiring divestment and from discharging the grievor. It was the position of the Employer that the order sought by the Union was substantive, not procedural in nature, and thus beyond the Board's jurisdiction and in that regard made reference to Re Beachvilime Ltd. and Chemical Workers Union, Local 3264 (1989), 1989 CanLII 9289 (ON LA), 7 L.A.C. (4th) 409 (Hinnegan), wherein it was determined that arbitrators do not have jurisdiction to determine anticipated breaches of a collective agreement.
The Board agreed with the principle expressed in Re Beachvilime, and stated, at p. 9 of the decision, that:
There is no procedural matter to trigger an interim order until there is a proceeding before the Board. There is no proceeding before the Board until the union refers to it a grievance alleging that the employer has already breached in some way the CECBA or the collective agreement.
The decision goes on to state, at pp. 9-10, that:
It follows that the Board does not have jurisdiction to enjoin the employer from disciplining or discharging the grievor, Mr. Nield, even though it was anticipated at the hearing that the employer intended to discharge him on the day following the deadline of October 15. The only grievance that was before the Board was the one Mr. Nield filed on August 6, 1996. The only breach it complained of was an unreasonable exercise of managements' rights in requiring him to divest himself of his interest in the business. It did not complain that the imposition of a deadline under threat of discipline was likewise a breach of managements' rights. In fact, it could not because the deadline of October 15 was not imposed until some time after the grievance was filed. The imposition of the October 15 deadline under threat of discipline is not the subject of any proceeding before the Board. Until it becomes one, the Board does not have any jurisdiction to issue an interim order concerning it.
This does not mean, however, that the Board is without jurisdiction to issue an interim order in the present case. Once Mr. Nield's grievance of August 6, 1996 was referred to the Board, the reasonableness of management in requiring him to divest himself of his interest in the business became the subject of a proceeding before the Board. The Board undoubtedly has jurisdiction under the Crown Employees Collective Bargaining Act to issue an interim order concerning procedural matters in this proceeding. It seems to me that one such procedural matter would involve the question of whether Mr. Nield should be permitted to retain his interest in the business pending determination of the merits of the grievance. I will now proceed to address this question.
The decision goes on to address the merits of the interim relief motion and ultimately determined that the test was met and an order should be granted for a specified period.
The Employer's application for judicial review of this and a related decision in which the interim order was extended was rejected by the Court in a decision dated January 22, 1997, wherein the Court expressed the view that the reference to "procedural matters" in s.48 (12)(i) of the Labour Relations Act was intended to have "broad meaning". The Court also notes that neither interim order decided the central issue of whether the grievor had a conflict of interest or made a finding relevant to its determination.
In her submissions on behalf of the Employer, Ms. Compagnone referred me to a decision of the Ontario Labour Relations Board in Ontario (Management Board of Cabinet) [1996] OLRB Rep. September/October 780, wherein it was concluded that s. 48(12)(i) should be interpreted as applying to ".. grant arbitrators to the power to run hearings and direct the conduct of the parties in the proceeding..." but not "...as granting arbitrators the right to make a variety of orders that govern workplace conduct and rights pending a final decision". This decision predates the Nield decision of this Board, as well as the Court's decision upholding Nield, wherein a "broad meaning" of the phrase "procedural matters" contained in s. 48(12)(i) was endorsed. Moreover, a different analysis by another tribunal does not compel a reconsideration of an approach taken by the Grievance Settlement Board. As was noted by Mr. Shime, the former Chair of this Board in Toronto Area Transit Operating Authority and Amalgamated Transit Union (Blake et al), 1276/87, decisions of a panel of the Board are decisions of the Board and are not subject to reconsideration or appeal. The Grievance Settlement Board speaks in one voice, providing the parties with consistent direction and discouraging the relitigation of issues that have been ruled upon. It is only in exceptional circumstances, circumstances that extend beyond manifest error, that the Grievance Settlement Board would depart from the path established in a previous decision.
It should be noted that Ms. Compagnone did not specifically argue that the standard of review established in the Blake decision was met here. Such an argument would have been surprising, given the Court's endorsement of the Nield decision in connection with a statutory interpretation. It was argued, however, that there was support for the Employer's position in Nield. It was emphasized that the ultimate result in that decision was that the Board determined that it had no jurisdiction to enjoin the employer from disciplining or discharging the grievor. While Ms. Compagnone is clearly correct in this regard, I agree with Mr. Leeb that these matters are distinguishable and that the rationale of Mr. Roberts in that decision is consistent with a determination that the Board has jurisdiction to consider whether interim relief should be granted in this case. As the foregoing excerpt from the Board's decision in Nield demonstrates, the reason for the determination that the Board did not have jurisdiction to enjoin the imposition of discipline or discharge is that it did not have before it a grievance relating to the imposition of a deadline under threat of discipline. The threat of discipline is specifically raised in the grievances in this case. Accordingly it is my view that the rationale of the decision in Nield clearly supports the notion that the Board does have jurisdiction to consider interim relief in connection with this case.
I turn now to the Employer's position that the Union's motion is premature, on the basis that no discipline has in fact been imposed. While there is considerable force to the notion that matters which are speculative are not properly the subject of grievance arbitration, the Employer has acknowledged that discipline as contemplated by the request for interim relief is one of the tools available to it and it may in fact be utilized. The issue of prematurity in an interim relief application was addressed by this Board in Management Board Secretariat and OPSEU 1196/97 (Dissanayake). In that case the Employer argued that the request was premature because the RFP had not yet closed and no contracts had been awarded. The Board rejected the Employer's prematurity argument, making the following comments at pp. 3-4 of the decision:
Arbitrators have held, and the courts have upheld, that employees may grieve the mere promulgation of a policy, without waiting for the policy to be applied to the detriment of any particular employee. Such a grievance is not premature. See Re Municipality of Metropolitan Toronto and CUPE (1987) 1987 CanLII 4179 (ON HCJ), 62 O.R. (2d) 636 (Div. Ct.) revd 1990 CanLII 6974 (ON CA), 69 D.L.R. (4th) 268 (Ont. Ct. of App), leave to appeal to S.C.C. refused 120 N.R. 192n (S.C.C.). Similarly, particularly considering that this is an application for interim relief, it does not make sense to hold that an application is premature until the impugned action is carried out and the harm is done. The purpose of interim relief is to prevent the potential for harm being done, where the union can establish certain conditions.
In my view the foregoing analysis is clearly applicable to the issue before me and I therefore reject this aspect of the Employer's objection to the Board's jurisdiction to consider the Union's application for interim relief.
Ms. Compagnone argued further that an interim order enjoining the imposition of discipline or discharge would fall within the prohibition contemplated by the Court in Nield in relation to a finding with respect to the central issue or a finding relevant to its determination. It is my view that consideration of the nature of any order which might be granted is more properly determined in the context of the main motion. Only if the Union is able to meet the test for interim relief will the nature of relief to be granted be considered. It will then, and only then, be necessary for consideration to be given to the nature of the relief that is appropriate in the circumstances and is in accordance with the direction of the Court in Nield. It is therefore unnecessary for me to address the submissions of the parties in this regard in relation to the decision in Re Brewers' Warehousing Workers' Provincial Board (1998) 1998 CanLII 19045 (ON LA), 74 L.A.C. (4th) 113 (Carrier).
In summary, for the foregoing reasons I have concluded that the Employer's preliminary objection to the Board's jurisdiction with respect to the Union's request for interim relief must be dismissed. Accordingly, the hearing on the merits of the interim relief application will proceed. I note that I have heard no evidence in connection with this motion and thus that the motion
may be heard by someone other than myself.
Dated at Toronto, this 5th day of September, 2001.