GSB#1357/00

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN:

ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL CROWN EMPLOYEES OF ONTARIO (Policy Grievance) Grievor

• and -

(Management Board Secretariat) Employer

BEFORE: Paula Knopf Vice-Chair

FOR THE GREIVOR

Michael Mitchell, Counsel Sack Goldblatt Mitchell Barristers & Solicitors

Rob Smalley Team Leader, Dispute Resolution Association Of Management, Administrative and Professional Crown Employees Of Ontario

Burke Moffat Project Officer Association Of Management, Administrative and Professional Crown Employees Of Ontario

FOR THE EMPLOYER

Leonard Marvy, Senior Counsel Legal Services Branch Management Board Secretariat

Meredith Brown Counsel Legal Services Management Board Secretariat

Linda Wendel Co-Coordinator Union/Management Relations Management Board Secretariat

Anna Hoad Mediator Policy & communications Division Management Board Secretariat

FOR OPSEU

Andrew Lokan Counsel Paliare Roland Rosenberg Rothsteinlop Barristers & Solicitors

Timothy Hadwen Counsel Ontario Public Service Employees’ Union

FOR PEGO

Larry Robbins Labour Consultant Barrister & Solicitor

Dan Conte President Professional Engineers and Architects of the Ontario Public Service

HEARING DATE: January 9 and February 21, 2002.

PRELIMINARY AWARD

This case involves a grievance concerning the interpretation of the recognition clause in the collective agreement between AMAPCEO and its employer, the Management Board Secretariat (MBS). The grievance asserts that the Employer is failing to include or recognize employees or groups of employees under the recognition clause of the collective agreement. The recognition clause reads;

PART I - RECOGNITION

1. The Government recognizes the Association of Management, Administrative and Professional Crown Employees of Ontario as the exclusive bargaining agent for a bargaining unit composed of all Crown employees as defined in section 1 of CECBA, 1993 who are Public Servants, who were not included in the six bargaining units described by the Lieutenant Governor in Council in the classifications listed in Order-in-Council 243/94 dated February 3, 1994, plus such other classifications created after February 3, 1994 and properly included in the six units, save and except, persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations, or lawyers and engineers who are employed in their professional capacity. For greater certainty, all employees in the classifications listed in Order-in-Council 243/94 in respect of the seventh bargaining unit, which list of classifications is attached as Schedule 1, all Go Temp employees, students and interns as provided for in Part VIII of Order-in-Council 243/94, and all other employees in any other similar classes to those listed in the Order in Council in respect of the seventh unit as may be established (save and except, persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations, or lawyers and engineers who are employed in their professional capacity) fall within the seventh bargaining unit, together with any other Crown employees who are not included in the six bargaining units described by the Lieutenant Governor in Council pursuant to CEBA, 1993.

In a nutshell, the Employer’s position is that the AMAPCEO bargaining unit is defined by the OIC referred to in the recognition clause. On the other hand, AMAPCEO’s position is that the recognition clause creates a tag end bargaining unit which encompasses all employees who are not in the six bargaining units represented by OPSEU. Further, AMAPCEO argues that employees have been improperly excluded from the OIC and that the classifications covered by the collective agreement include more than those set out in Order-In-Counsel 243/94 and issued by the Employer.

Notice of these proceedings was given to PEGO. This is partly because after this grievance was filed, the Employer entered into a voluntary recognition agreement with PEGO that included land surveyors. AMAPCEO has filed a challenge to that voluntary recognition agreement before the OLRB. That matter has been “stood down” pending resolution of this grievance in these proceedings. The Employer and AMAPCEO agree that this grievance may affect the rights of the land surveyors and PEGO’s bargaining rights. Accordingly, there is no dispute between the parties that PEGO ought to be granted third party intervener status in this case. PEGO has indicated that it is prepared to be bound by the award in this matter.

However, before the matter could proceed to a hearing on the merits, the Employer raised the question of whether OPSEU should also be given notice of these proceedings and an opportunity to seek status as an interested third party. AMAPCEO opposed this, arguing that no OPSEU interest would be affected by the issues raised in the grievance or the remedies being sought. In order to ensure procedural and substantive fairness, these proceedings were then adjourned to provide notice to OPSEU and to allow it the opportunity to consider whether it wanted to seek status in this grievance. Thereafter, OPSEU did attend on the date set for resumption of the matter and sought status in these proceedings. The purpose of this preliminary award is to determine that question.

The historical context of this case is interesting and relevant. The Ontario Public Service was originally organized by statute into one bargaining unit and was represented by OPSEU. Reforms relating to crown employees and their collective bargaining rights in the 1990’s resulted in many changes which included the separation of the one OPSEU bargaining unit into six smaller units. Around the same time, it was recognized that a large number of people working within the public service who had been labeled as “managerial” and excluded from collective bargaining would not be excluded from a bargaining unit if the classic definitions of “employee” and “manager” were applied to them. A decision was then made to create a seventh bargaining unit of these administrative, managerial and professional crown employees. This group is now represented by AMAPCEO.

AMAPCEO has launched this grievance to seek clarification and resolution of the questions surrounding the recognition clause in the voluntary recognition agreement between itself and MBS. The grievance seems to have been triggered by the fact that the Employer is allegedly leaving some classifications out of the schedule of employees listed in Order-in-Council 243/94 which is referred to in the recognition clause. The grievance also seems to have been triggered by the creation of new classifications that MBS is treating as non-unionized. AMAPCEO asserts that the purpose of this grievance is to establish that the Employer cannot create new classifications of employees that do not fall within unionized classifications. AMAPCEO seeks a declaration that it has bargaining rights to everyone in the Ontario Public Service who is not properly covered in OPSEU’s original six bargaining units or who the parties have agreed belong elsewhere. AMAPCEO asserts that there is no employee or classification that it is seeking to include in its bargaining unit that would be entitled to be represented or covered by OPSEU. AMAPCEO claims that it is seeking recognition of its right to represent all employees who are not properly included in OPSEU’s six bargaining units. In essence, AMAPCEO seeks a declaration that it is a “tag end” unit.

Counsel for AMAPCEO acknowledges that there may be some classifications in the OPSEU classification scheme “at the very bottom of the classes” that AMAPCEO now represents which are not now in the OPSEU descriptions or bargaining units. AMAPCEO promises that if these are properly OPSEU classifications, it will not seek to represent them. Instead, AMAPCEO is seeking the following declarations:

a. Save and except with the agreement of the parties, the AMAPCEO 7th unit is a “tag-end” unit - which includes all non-OPSEU employees, save and except those persons in the professional units (lawyers and engineers) and those excluded by statute;

b. For certainty, all MCP classes (tops and bottoms), but not necessarily the employees within them;

c. That the Crown cannot create new classes that are non-union;

d. That the land surveyors are covered by the AMAPCEO collective agreement;

e. In the alternative, that certain classes are included and have to be listed because they are employees in them now paying dues to AMAPCEO.

MBS’s position on the merits of this case is that AMAPCEO does not have bargaining rights for “all other” crown employees who are not included in OPSEU’s six bargaining units. The Employer’s position can be summarized as follows:

a. The AMAPCEO recognition clause includes only those employees included in OIC 243/94 as modified by Schedule 1, similar classes to those in the modified list, and similar Go Temp, students or interns. It does not include MCP classes which were not listed (whether tops or bottoms) in the modified list to the OIC. It does not include “Tier II” classes, subject to the VRA process. It does not include new classes, unless they are similar to AMAPCEO. A new class is not a part of AMAPCEO, only if it is not similar to OPSEU.

b. Only those MCP classes listed in the modified schedule 1 referred to in the AMAPCEO recognition clause are a part of their unit.

c. The Crown can create new classes of employees, which, if the class is not “similar” to OPSEU or “similar” to AMAPCEO, do not automatically fall within the AMAPCEO unit. These employees would have the right to chose [sic] whether they wish to belong to a bargaining unit and if so which one. Accordingly, non-managerial, non-statutorily excluded Crown employees can exist who do not belong to a union.

d. The land surveyors are not covered by the AMAPCEO collective unit

e. The employees in classes which the employer claims are not covered by the AMAPCEO recognition clause, and who have been paying dues, are not covered simply because of that fact. The employees in those classes either fall within the recognition clause definition or they do not.

Therefore the Employer is vigorously opposing this grievance. It also argues that the issues raised by the case dictate that OPSEU should be present and have status at the hearing of this grievance.

AMAPCEO opposes the granting of status to OPSEU, arguing that it is not seeking to take anything away from OPSEU and that nothing in this case could negatively impact upon OPSEU’s rights.

The Argument of the Parties Regarding Third Party Status for OPSEU

OPSEU’S POSITION

Counsel for OPSEU asserts the right to third party status in these proceedings arguing that this dispute may involve or affect OPSEU’s interests. It was argued that issues raised by AMAPCEO and MBS could involve a termination of OPSEU’s rights. For example, OPSEU’s bargaining units may have classifications that could fall within the MCP classes or descriptions or that may more closely resemble OPSEU than AMAPCEO. It was argued that the determination of who is properly within the descriptions can only be done with OPSEU’s participation because the outcome will affect the union’s representational interest.

OPSEU agrees with AMAPCEO that the government as employer cannot create new classifications that are non-unionized. Therefore, OPSEU would seek a similar declaration that is being sought by AMAPCEO in this regard. However, OPSEU seeks status to ensure that such a declaration does not result in AMAPSEO gaining exclusive representation rights for those new classes.

Further, counsel for OPSEU points out that the creation of the bargaining units for Crown employees were the result of discussions between OPSEU and MBS. It became apparent from the submissions set out by the parties that the circumstances surrounding the evolution and creation of the six OPSEU bargaining units and the seventh unit represented by AMAPCEO will be part of the evidentiary foundation of AMAPCEO's case. Negotiating history and documentation were identified by AMAPCEO as part of its case. Therefore, OPSEU submits that it can offer “special knowledge” to these proceedings and has an interest in the results.

Further, OPSEU argues that the issue of the land surveyors raises questions about whether this group properly belongs within the OPSEU bargaining unit. Therefore OPSEU claims an interest in this issue as well.

OPSEU takes no comfort from AMAPCEO’s assurance that the grievance may not affect OPSEU or its rights. OPSEU argues that it could have a claim on the Tier 2 incumbents who are found eligible for collective bargaining. Because this dispute was said to “touch upon” the rights and interests of the OPSEU bargaining unit, counsel for that union argued that the proper approach would be to grant OPSEU third party status at this time.

Counsel for OPSEU relies on the decision of the Ontario Court of Appeal in CUPE v. Canadian Broadcasting Corporation et al, 1990 CanLII 8078 (ON CA), 70 DLR (4d) 175, affirmed 1992 CanLII 8644 (ON CA), 91 DLR (4d) 767 and the Supreme Court’s decision in the same matter at 1992 CanLII 108 (SCC), [1992] 2 SCR 7. It was said that this case supports OPSEU’s position that status is “essential” in this case because the Employer has a “limited interest” in the position that OPSEU is advocating and OPSEU’s collective agreement will have to be interpreted and applied to resolve AMAPCEO’s grievance. OPSEU also relies on the following cases: Ontario Hyrdo and Ontario Hydro Employees Union (1990), 1990 CanLII 12695 (ON LA), 17 L.A.C. (4th) 212 (P.C. Picher) and Scarborough General Hospital and CUPE, Local 1487 (1999), 1999 CanLII 35845 (ON LA), 79 L.A.C. (4th) 246 (L.M. Davie).

MBS’s POSITION

The position of Management Board is that a “crucial” issue in this case is whether AMAPCEO is a tag end unit pursuant to the recognition clause. It was submitted that the determination of that question will involve analyzing Management Board’s voluntary recognition agreement with AMAPCEO as well as an interpretation of OIC 243/94 which ties together both OPSEU and AMAPCEO in the creation of the seven bargaining units. Further, MBS is arguing that AMAPCEO is not a tag end unit which would automatically be entitled to represent any new classes not already covered by OPSEU or AMAPCEO. Therefore, it was argued that since OPSEU could seek bargaining rights for such groups, that union should have status in these proceedings to assert its interests in that aspect of the analyses.

MBS also argues that OPSEU may have an interest in the issue of crown employees who are not excluded and who do not belong to a union. For example, there may be people in the Tier 2 group who may be entitled to be bargaining unit members but who may choose not to become part of AMAPCEO. Therefore, it was argued that OPSEU has an interest in this issue because of the question of AMAPCEO's “tag end” entitlement.

Finally, it was submitted that the nature of these proceedings suggests the importance of including OPSEU as a third party with status. It was submitted that since this case is being heard by a vice-chair of the Grievance Settlement Board, the determination of AMAPCEO’s collective agreement and the rights of MBS will have a significant if not authoritative effect on OPSEU’s interests. OPSEU would then have to show “exceptional circumstances” in any other proceeding to be able to challenge the determinations made in this case. Therefore, it was submitted that it would be better to allow OPSEU to participate and be bound by these proceedings in order to bring finality and resolution to the important issues raised by the grievance. The Employer relies on the decision between Blake et al. and Amalgamated Transit Union and Crown in Right of Ontario, GSB decision 1276/87 etc. decided by O.B. Shime May 3, 1988.

AMAPCEO’S POSITION

AMAPCEO opposes the granting of third party status to OPSEU. Counsel for AMAPCEO concedes that Management Board’s counsel has raised some legitimate questions concerning OPSEU’s rights. However, it was argued that those questions can and should be resolved in other proceedings, not this one. It was stressed that there is not one job or class that AMAPCEO is seeking that could affect OPSEU’s rights or interests. AMAPCEO dismisses OPSEU’s attempt to assert rights over the land surveyors as something that can or should be easily determined in a separate hearing. AMAPCEO claims that OPSEU has no basis raising this matter at this time given that MBS has entered into a voluntary recognition agreement with PEGO for that group and AMAPCEO is challenging that before the OLRB without any previous intervention or interest being expressed by OPSEU. That is the proceeding being held down pending the outcome of this grievance. Therefore, AMAPCEO suggests that if OPSEU has any real claim over this group, that matter could and should be resolved in a preliminary fashion before the rest of this grievance proceeds on its merits. (OPSEU asserts that until the proceedings in this case, it was unaware of the issue of the land surveyors and AMAPCEO’s proceedings before the OLRB.)

AMAPCEO also argues that if OPSEU is granted status on the basis that it may have an interest in newly created positions that OPSEU may want to organize or represent, then any other union would or should be given similar status, such as CUPE or even the CAW. It was argued that the desire to organize a potential group that does not currently exist should not give OPSEU or any other union status in a grievance that seeks to clarify the scope of a recognition clause.

AMAPCEO also stresses that it has launched this grievance to rectify an alleged “mischief” being created by Management Board’s exclusion of certain groups in the OIC generated by the recognition clause. AMAPCEO does not want this case to be perceived as a claim for any OPSEU classes or groups.

AMAPCEO also argues that if any issues should arise as to whether a particular job or class belongs within AMAPCEO or OPSEU, that should or could be resolved on the basis of clear, concrete facts, outside of this particular grievance process. It was stressed that the grievance should not become a forum to decide the dividing line between OPSEU and AMAPCEO. It was said that there are other mechanisms available to the parties should the need arise.

AMAPCEO argues that the current authoritative cases on the status issue are: Weston Bakeries Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (1999), 1999 CanLII 35821 (ON LA), 79 L.A.C. (4th) 189 (O.V. Gray); Toronto (City) v. Toronto Civic Employees Union, Local 416 (2001), OLAA No. 599 (J. Johnson) and Stelco Inc. (Hilton Works) and United Steel Workers of America, Local 1005, (2001) OLAA No. 308 (H.D. Brown). It was also submitted that these cases dictate that interveners are obliged to be bound by the results of arbitrations at which they have sought status. In the event that OPSEU is given status, it was submitted that it should be made to be bound by the results as a condition of participating in these proceedings.

DECISION

One should begin with the legal analysis of the standing issue. The question of third party status in a grievance arbitration is both a natural justice and a labour relations issue. On a basic level, grievance arbitration is designed to resolve a dispute under a collective agreement between the two parties to that contract. However, if the determination of that grievance will have a significant effect upon another party, natural justice demands that the third party be given status and appear to be able to protect its position in those proceedings. This concept was set out in the CUPE and CBC case, supra. That was a jurisdictional dispute in which the rights of three unions were at stake. The Court of Appeal said at page 177:

My thinking starts with a practical, common-sense compulsion to put all these parties in one room, before one tribunal, to obtain one ruling on their differences. Upon analysis I find that legal precedent supports this view.

The practical rationale cannot be better put than in the majority decision in Re: Toronto (Municipality) and C.U.P.E., Local 43 (1989), 1989 CanLII 9416 (ON LA), 5 L.A.C. (4th) 404, 14 C.L.A.S. 29. The grievance was by Local 43 of CUPE complaining that work to which they were entitled was being assigned to Local 79 of CUPE. Local 79 wanted status before the arbitration board and Local 43 objected. In their reasons, the majority said at pp. 410-1:

The cases offer very little guidance on the consequences of a party being given status. It was pointed out in argument before us, that it would be unfair for Local 79 to have status in these proceedings and, if Local 43 were to succeed, process a similar grievance under their collective agreement.

The purpose of arbitration is to provide an expeditious settlement of disputes between employees and unions concerning the interpretation of their various agreements. It is a private system that the parties commit themselves to (albeit through legislative direction). It is intended to be practical, accessible and remedial

Here we have one employer and two unions, each of which is bound to such a system of dispute settlement with that common employer. It is academically correct, but totally impractical, to say that in disputes such as the one before us, the board should deny status to the other union.....

Page 179

Continuing with a common-sense analysis, we have a two-party dispute in which the employer has limited interest and a third party’s agreement has been interpreted, leading to an award that effectively directs the transfer of work assignments while the individuals who suffer are left to pursue grievances under their own collective agreements in hope of receiving a conflicting decision. In the alternative, they may refer the issue to the Canada Labour Relations Board under s, 65(1), the language of which does not clearly embrace this type of dispute. We were told that the board does, in fact, entertain such referrals and no inference should be taken from these reasons as to its jurisdiction to do so. I only observe that there is no clear legislative path to resolution of these overlapping disputes though practicality in day-to-day labour relations demands that there be one. In fact, we were referred to a number of arbitration awards adopting some form of involvement by non-parties to an agreement in similar situations, indicating that, whatever the legal obligation, this is the usual practice.

Page 181

Arbitrators are working within a statutory framework to assure that employers and employees treat one another fairly within the context of their agreements, that disputes are efficiently resolved and that labour relations do not break down through the alternative of protracted court proceedings. Their awards can become judgments of the Federal Court when filed pursuant to s. 66 of the Canada Labour Code. They must be fair and should not be restricted to hearing only persons with a strict legal interest.

In my view, it was unfair and constituted a failure of natural justice to deal with the employment opportunities of the CUPE and NABET union members, in the circumstances of this case, in the absence of notice and an opportunity to seek involvement in the decision-making process.

The Supreme Court of Canada affirmed this decision, supra, holding that it is a denial of natural justice to fail to give notice to a union when the result of the grievance arbitration could have “a significant effect” on that union.

In the Ontario Hydro case, the issue of third-party status arose when one union brought a grievance that raised an issue of the effect of the recognition clause vis à vis another union. In that case, arbitrator Pamela Picher found that some of the positions in the arbitration arguably fell within the bargaining unit defined in the other union’s collective agreement. Therefore, if the grieving union succeeded in its case, the other union would lose positions from its bargaining unit. Because of the long-standing relationship with the Employer, the clearly definable rights were held to be of substantial legal interest which were jeopardized by the grievance. Therefore, relying on the CBC case, status to participate in the grievance was granted.

These cases make some issues in the case at hand clear and leave other issues not so easily resolved. If AMAPCEO’s grievance had the potential of directly affecting the integrity of OPSEU’s bargaining or certain classes within that unit, OPSEU’s right to participate would be unquestioned according to the dictates of natural justice. That is precisely why PEGO has been given uncontested status to participate in the proceedings because of AMAPCEO’s claim to the land surveyors. But OPSEU vehemently asserts that nothing in this grievance can or will directly affect OPSEU’s rights, interests or the integrity of its bargaining unit.

These proceedings and the resulting award can, to some extent, be controlled by this Vice-Chair to ensure that this process could remain within the scope of AMAPCEO’s promise that nothing in these proceedings could directly affect any existing OPSEU positions or classes. It is also true that other avenues exist that allow Management Board and OPSEU or AMAPCEO resolve any jurisdictional disputes that could arise in the future about whether a position properly fits within the AMAPCEO or OPSEU bargaining unit. It is also clear from OPSEU’s submissions that it never intended this grievance to become a jurisdictional dispute between OPSEU and AMAPCEO. In that way, this case is distinguishable from the CBC and Ontario Hydro cases.

The conceptual difficulty with this case is that AMAPCEO’s grievance seeks to define its own bargaining rights. However, those rights are, by definition, determined in part by another bargaining units recognition clause. Article 1 of AMAPCEO’S voluntary recognition agreement with MBS defines AMAPCEO’s bargaining unit in part as crown employees “who are not included within the six [OPSEU] bargaining units.” The definition is much more complex than that. But part of the analysis of this case will involve a determination of the effect of this language. Can this then be done without OPSEU being given status in these proceedings?

This case is, in its essence, a labour relations arbitration designed to resolve and normalize the rights and responsibilities of the Employer and the AMAPCEO bargaining unit. I accept the approach taken by the collective agreement in the CBC case wherein it was said:

Arbitrators are working within a statutory framework to assure that employers and employees treat one another fairly within the context of their agreements, their disputes are efficiently resolved and that labour relations do not break down through the alternative of protracted court proceedings... They must be fair and should not be restricted to only hearing persons with a strict legal interest.

Therefore, while it may be academically or technically possible to conclude that this grievance can be determined without granting OPSEU status, the effect of that would be counter-productive to the purposes of labour relations. Further, in essence, AMAPCEO’s grievance asserts that its bargaining unit is a tag end unit. If that were the case, then this grievance would be a fight only between AMAPCEO and Management Board because it would determine their relative rights. However, the issues raised by the Employer question whether AMAPCEO’s bargaining unit is indeed a tag end unit. The Employer’s defence to the grievance raises issues with regard to the OPSEU bargaining unit and it therefore becomes in OPSEU‘s interest to argue whether AMAPCEO’s bargaining unit is a tag end unit or not. This gives OPSEU a real and substantial interest in the question of whether AMAPCEO’s bargaining unit is a tag end unit under the scheme of labour relations between these three parties. Because the question of tag end status is the fundamental question in this case, it would be improper “to put the cart before the horse” and deny OPSEU status before it is determined whether or not AMAPCEO’s bargaining unit is a tag end unit.

The issues in this case also raise fundamental questions about the scope of AMAPCEO’s bargaining rights. The answer to the grievance brings into play questions concerning the creation and the scope of the OPSEU bargaining rights and its six bargaining units. It is difficult to imagine how the facts could be examined or their impact determined without the participation of OPSEU as a party. Further, the issue of whether AMAPCEO’s bargaining unit is a tag end unit may have impact on the scope of the six other bargaining units. I agree with AMAPCEO that status should not be given on the basis that OPSEU may wish to assert claims over new, non-unionized groups. If any union has a claim to those groups, OPSEU may have no better claim than any other. Therefore, it would make no sense to grant status in an arbitration on the basis of such potential or tenuous claims. But the basis of OPSEU’s right to participate flows from the essence of AMAPCEO’s grievance. It claims its bargaining unit covers anyone not included in the six OPSEU bargaining units. The determination of that question brings this arbitration into a direct analysis of the OPSEU bargaining units and their scope. To make a decision about those issues without OPSEU present as a party would not only deny OPSEU natural justice, it would also create unnecessary labour relations difficulty. The recital of issues raised by AMAPCEO’s grievance shows some significant differences between AMAPCEO and OPSEU over certain groups of employees. Including OPSEU in these proceedings will resolve those questions for the Employer and these two unions. Excluding OPSEU from the proceedings allows the possibility that it could launch a new case in the future that may well be greatly influenced by these results, but would nonetheless engage the Employer in further protracted proceedings. Therefore, for all these reasons, it makes labour relations sense and is consistent with the concepts of natural justice to grant OPSEU third party status in this case.

Having said all this, there is a note of caution that must be stated. This is AMAPCEO’s grievance. The grievance was launched to clarify the scope of AMAPCEO’s bargaining unit and to determine if it is a tag end unit and the consequences that flow from such a finding. This shall not become a jurisdictional dispute where the proceedings bog down into intricate enquiries over whether one classification falls better within the OPSEU or the AMAPCEO unit. There are other avenues for such factual and legal analyses.

Finally, the terms of OPSEU’s participation need to be addressed. There is a split in arbitral authority over whether an arbitration board has the power or the jurisdiction to bind an intervening third party union in a grievance arbitration. The Scarborough General Hospital case suggests not, whereas the Stelco, Western Bakeries and City of Toronto cases, supra, suggest otherwise. The latter cases are the most recent and are based on the concept that a party relying on the rules of natural justice to attain status should also be required to assume the “usual and reasonable burdens of that status.” (See Western Bakeries at page 202.) Specifically, one of the burdens of achieving party status in a proceeding is that one is bound by the results of those proceedings.

It is not necessary in this case to resolve the arbitral dispute about whether third parties can or should be bound by the arbitration constituted under the original grievance. In the case at hand, there is a compelling reason to consider that OPSEU must be bound by these proceedings. This case has been launched by a grievance at the Grievance Settlement Board. Unlike arbitrators sitting in private arbitrations in the cases cited above, a Vice-Chairman of a statutory tribunal is hearing this case. This means that a decision rendered in this case has a profound impact not only on the direct litigants in these proceedings, but upon crown employees as a whole. The words of the Blake decision, supra, are very à propos:

.... 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.

As one entity, a decision by the Grievance Settlement Board through a Vice-Chair is a decision affecting this whole labour relations community. Therefore it may not be necessary to make OPSEU’s participation contingent upon its agreeing to be bound by the result. It may be that OPSEU is practically and legally bound by the result in accordance with the Blake decision whether it participates in these proceedings or not. Therefore, in accordance with the principles in the Blake decision and consistent with concepts set out in Stelco, Western Bakeries and City of Toronto cases, supra, I conclude that there is jurisdiction to order OPSEU to be bound by the result in this proceeding as a condition to their participation. Given the circumstances of this case, it is appropriate to do so. However, to avoid any jurisdictional uncertainty in the future, since OPSEU has sought to attain status in these proceedings, it behooves OPSEU to also agree to be bound by the result. Accordingly, I order that OPSEU may intervene in these proceedings as a party upon its delivery to MBS, AMAPCEO and PEGO of a written undertaking and an agreement that OPSEU will be bound by the decision in this matter in the same manner and to the same extent that the other parties are bound.

Dated at Toronto, this 22nd day of April, 2002.