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 -
The Crown in Right of Ontario (Management Board Secretariat)
Employer
- and -
Ontario Public Service Employees Union and Professional Engineers Province of Ontario
Intervenor Intervenor
BEFORE
Paula Knopf
Vice-Chair
FOR THE UNION
Howard Goldblatt & Andrea Bowker Sack Goldblatt Mitchel Barristers and Solicitors
FOR THE EMPLOYER
Mary Gersht & Meredith Brown Counsel Management Board Secretariat
FOR INTERVENOR OPSEU
Donald Eady Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors
HEARING
June 17 & 18, 2003.
INTERIM AWARD
After this case convened before the Grievance Settlement Board for several days of hearing in which matters regarding standing and production were determined, the Employer raised preliminary objections as to the jurisdiction of the Grievance Settlement Board (GSB) to hear and determine many aspects of this grievance. An oral ruling was rendered to the parties after hearing and considering the arguments. The following interim award summarizes the positions of the parties and the oral ruling which they have received.
In its simplest form, this is a grievance concerning the interpretation and application of the recognition clause in AMAPCEO’s collective agreement. The Employer raises preliminary objections to the jurisdiction of the GSB to make determinations regarding three main areas. It was said that the GSB has no jurisdiction to make determinations about Orders-in-Council, whether or not they are erroneous or whether an amendment or a new OIC will be required to define or affect the bargaining unit. Further, it was submitted that the GSB has no jurisdiction to make determinations about classifications and that there is no power to determine whether specific classifications should be created or amended. Finally, it was submitted that the GSB has no jurisdiction to render decisions that impact upon management and excluded employees or whether employees are properly deemed to be management or otherwise excluded. Counsel for the Employer submits that these types of ruling are effectively being sought by the grievance as outlined in OPSEU’s opening submissions. The Employer argues that these issues must be determined at the outset in order to focus the case and prevent unnecessary exploration of evidence and argument in the areas where the GSB will ultimately have no authority. In support of its arguments, the Employer relies on the statutory restrictions set out in the Crown Employees Collective Bargaining Act, sections 4(11), 51(1) and (2) and 1.1 (3)(9). The Employer argues that these aspects of AMAPCEO’s grievance should properly be determined by the Ontario Labour Relations Board pursuant to section 114 of the Labour Relations Act or by the Court in an application for judicial review alleging an improper delegation of authority. Counsel for the Employer stresses that the GSB only has the power to impact on employees who are capable of collective bargaining. The Employer expressed concern that the scope of enquiry raised by AMAPCEO’S arguments will result in determinations that go beyond the jurisdiction of the employees covered by the collective bargaining scheme under the Crown Employees Collective Bargaining Act (CECBA).
Counsel for AMAPCEO argues that the issues raised by the Employer do not constitute preliminary objections. Instead, AMAPCEO suggests that the Employer’s concerns amount to arguments that only affect the remedial scope of authority if and when the GSB makes a substantive finding in favour of AMAPSEO’s grievance.
Counsel for OPSEU agreed with AMAPCEO’s position that the issues raised by the Employer do not amount to preliminary objections. Further, it was pointed out that section 114 of the Labour Relations Act does not confer inclusive authority on the OLRB to determine jurisdictional matters. Counsel for OPSEU also presented arguments regarding CECBA and Orders-in-Council. For reasons that are outlined in the Decision, these arguments need not be reproduced at this time.
The Decision
The GSB’s jurisdiction in this case is derived from CECBA, the collective agreement and the grievance which triggers this hearing. The grievance is, in essence, a grievance regarding the interpretation and application of Article 1.1 of the recognition clause of AMAPCEO’s collective agreement. In opening statements, AMAPCEO’s counsel characterized this case as both “simple and complex.” The simple part was said to be the issue of interpreting the wording of Article 1.1. The complexity was said to arise from the evidence that will be presented about how the language came into being in the negotiations for the first collective agreement.
Accordingly, the interpretation and application questions raised by this grievance may also turn out to be simple and complex. However, it is impossible at this stage of the proceedings to determine or foresee what the possible findings will be. It is even more difficult to foresee what the remedial response will be if there is finding in favour of the grievance.
It is very attractive in a case of this size where multiple days of hearing have been scheduled to try to focus the evidence and to prevent the expenditure of resources that may not ultimately be productive. But at this stage of the proceedings, acceding to the Employer’s preliminary objections will not accomplish this. Defining the scope of remedial authority as requested will not result in the narrowing of the relevant evidence or shortening the proceedings. Further, It would not be appropriate to declare that the GSB has no jurisdiction over certain items listed by the Employer when many of those items have not even been requested in the submissions made to the Board by AMAPCEO. Specifically, the Employer expressed concern over the potential of an order requiring amendment to the OIC for the creation of new classifications. AMAPCEO has not indicated that it will be seeking such orders.
Essentially, the Employer is asking at this stage that limits be declared on the scope of remedial jurisdiction. That can only be done in the broad sense of acknowledging that jurisdiction is limited by the statutory restrictions in CECBA, the collective agreement language and the grievance itself. The Employer does not challenge the GSB’s jurisdiction to define the recognition clause and its effect. Indeed, arbitrators and this tribunal are regularly called upon to define recognition clauses and determine the effect of such definitions. While the effect of that definition may impact on those who are determined ultimately to fall within the area of recognition and leave others on the outside, that does not mean that the Board has asserted jurisdiction on those outside the scope of collective bargaining or this collective agreement.
There are several threshold issues that must be determined in this case regarding the scope of the recognition clause. Once that is done, there may be several important issues to be determined regarding what further authority, if any, can then be exercised by the GSB. However, AMAPCEO has appropriately invited the Employer to renew these objections if and when AMAPCEO seeks relief that may be beyond the GSB’s jurisdiction. That would be the proper time to consider the kinds of arguments that the Employer has raised at this preliminary stage. However, to comply with the Employer’s request at this stage of the proceedings would be premature because it would lead to a situation that would inhibit the full and proper review of the recognition clause itself.
Accordingly, the Employer’s preliminary objection as framed is dismissed as a preliminary objection. However, it must be noted that no ruling has been made regarding the merits of any of these jurisdictional arguments. These arguments may be revived and renewed if and when they become relevant at any later stage of the proceedings.
DATED at Toronto, Ontario, this 27th day of June, 2003.