GSB#2001-0557, 2002-0050, 2002-0321

UNION#OLB132/01, OLB096/02, OLB327/01

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Control Boards Employees’ Union (Policy Grievance)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Craig Flood Koskie & Minsky Barristers & Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

September 30 and October 7, 2003.

PRELIMINARY DECISION

The Board is seized with three grievances, all related to an Attendance Review Policy (hereinafter “the policy”) implemented by the LCBO at its Durham Logistics Facility. The first is a policy grievance wherein the union grieves:

The union objects to the employer’s attendance review process (also known as the mandatory Q. 11). The process is unfair, unreasonable and arbitrary and is a violation of the collective agreement, articles 2.1, 9 and any other applicable articles and statutory provisions.

The other two grievances were filed by an employee, Mr. Joe Sousa, claiming that the employer had contravened articles 2.1 and 9 and any other applicable clauses of the collective agreement by subjecting him to the policy.

At the commencement of the hearing the parties raised two preliminary issues. This decision deals with those.

Union’s request that a grievance filed by Mr. Robert Browning be heard together with these grievances.

Mr. Browning has filed a grievance stating: “Article 2.1 (b) Discrimination and harassment as defined in the OHRC and any other applicable clauses in the CA and OLRA”. While the grievance makes no reference to the Attendance Review Policy, there is no dispute that the crux of Mr. Browning’s grievance is that the employer’s application of the policy to him was in contravention, inter alia, of the collective agreement and the Human Rights Code. The union requests that this grievance be heard together with the policy grievance and Mr. Sousa’s two grievances. The employer objects to the request.

The employer agreed that under the Labour Relations Act and the Grievance Settlement Board Rules of Procedure the Board has the power to order that grievances be heard together in appropriate circumstances. See Re Toronto District School Board (2002) 2002 CanLII 79047 (ON LA), 109 L.A.C. (4^th) 20 (Shime). However, it took the position that in the particular circumstances of this case it was inappropriate to make such an order.

The union submits that the three grievances before the Board, as well as the Browning grievance, arise out of the same employer policy. While the facts in the Browning case may not be identical, all four grievances raise common issues such as discrimination on the prohibited grounds of handicap, and unjust discipline. The parties are the same and they raise the same provisions of the collective agreement and legislation in all four grievances. In the circumstances, counsel submits that it is efficient and expeditious to join the Browning grievance in this proceeding. Counsel admitted that while the remedies ordered in favour of the individual grievors may be different, the Board can bifurcate remedial issues as it commonly does and proceed to determine liability in all four grievances in one proceeding.

Employer counsel submitted that the Board ought to exercise its power to order that grievances be heard together only where such an order results in efficiency. According to counsel, in this case the test of efficiency is not met. He contended that since Mr. Brown’s grievance arises out of the actual application of the grievance to him and its impact on him, it may involve medical evidence and evidence relating to the employer’s duty to accommodate. That evidence will be specific to Mr. Browning. Counsel’s main concern was that as a result of this “grievor-specific” evidence, there may be a delay in obtaining a decision in the other three grievances.

In Re Dresser Canada Inc. (1987) OLRB Rep. Oct. 1243 at para. 8, the OLRB reviewed the purpose of and applicable considerations for hearing cases together as follows:

8. Strictly speaking, the effect of consolidation is to fuse two or more proceedings into one. Accordingly, consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that “consolidation” may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be “heard together” rather than “consolidated”. When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law. Hearing matters together can be a useful alternative to consolidating them into one, where the circumstances are such that consolidation is inappropriate but the practical exigencies make it desirable to have the matters proceed together. The object of either consolidating a number of proceedings, or have them heard together, is the same, that is, to save expense and avoid a multiplicity of proceedings. Underlying these practical concerns are legal considerations; namely, the parties involved and the issues raised in the various proceedings in question. Where the parties and issues are not substantially the same, it will generally not be appropriate or particularly useful to either consolidate the various proceedings or have them heard together. It is trite to say that it will not always be obvious that two or more proceedings should or should not proceed together and the Board, as master of its own procedure, has the discretion to determine the manner in which matters brought before it will proceed.

I have concluded that it is appropriate to hear the Browning grievance together with these grievances. All grievances are between the same union and employer and the focus of each is on the same policy. No arbitrator has been appointed to hear the Browning grievance. Hearing grievances together avoids duplication of expenses. Moreover, there is the potential that if these grievances are heard in different proceedings, it may result in the Boards reaching conflicting and inconsistent conclusions. While it is likely that the Browning grievance will involve additional evidence relating to the application of the policy to the grievor, I do not agree that such evidence will necessarily be irrelevant to the other grievances. On the contrary, that evidence may assist the Board in understanding the real impact of the policy on employee rights. It may provide a factual context for the legal issues. Moreover, at this time I have no knowledge as to how brief or extensive the medical evidence in the Browning grievance will be. To the extent that there is grievor-specific evidence relating to Mr. Browning’s remedial claim, that need not delay the issuance of a decision in the other matters. If such evidence is lengthy, it is open to either party concerned about delay to move that the liability issues and remedial issues be bifurcated. On an overall assessment, the benefits resulting from hearing all of the grievances together far outweigh any adverse consequences of doing so. Therefore, the Board orders that the Browning grievance will be joined and heard together with the other three grievances. Any issues relating to the most efficient process of doing so may be determined at the instance of either party.

Jurisdiction to review exercise of management rights for reasonableness

As part of this issue the parties disagreed as to whether or not the policy was disciplinary, and if so, whether it exposes the whole policy to arbitral review. In my view it is not appropriate to determine as a preliminary matter, whether or not the policy is disciplinary on the basis solely of the language used in the written policy. A much more informed decision can be made after the Board has heard evidence as to the application and administration of the policy on individual employees. Therefore, that issue should be argued and determined after all of the evidence has been tendered, and not as a preliminary matter.

The parties have properly raised in a preliminary way, the issue of the Board’s jurisdiction to determine whether or not the employer had acted reasonably when it exercised its management rights to create the policy. The dispute is whether the Board had such jurisdiction in the absence of an allegation that the employer’s action was contrary to or inconsistent with some specific provision of the collective agreement or a statute. It is the employer’s position that a simple allegation that a policy is “unreasonable” is not one that comes within the Board’s jurisdiction. As employer counsel put it, for the Board to get jurisdiction the allegation must have “a hook” to some provision in the collective agreement or statute. He went so far as to submit that as long as it is not contrary to a provision in the collective agreement or statute the employer is not obliged to exercise its management rights reasonably.

It must be made clear that the union has in fact alleged that the Policy conflicts with the collective agreement in a number of ways, and further that the policy contravenes the Ontario Human Rights Code. The employer agrees that those issues are properly before the Board. However, the preliminary issue has arisen because the union has taken the alternate position that, even if no specific provision of the collective agreement or the Human Rights Code has been contravened, the board ought to strike down the policy on the grounds that it is an unreasonable exercise of management rights. The employer takes the position that this particular collective agreement does not require that management rights be exercised reasonably or that employer policies must be reasonable. Since the Board lacks jurisdiction to amend or add to the collective agreement, counsel submits that by introducing a “reasonableness requirement, the Board would be exceeding its jurisdiction.

The collective agreement that governs the rights and obligations of these parties does not include a management rights clause. Nevertheless, the union did not dispute that it is a legitimate function of the employer to implement a policy designed to manage absenteeism in the workplace. See Re B.C. Railway Co. 1982) 1982 CanLII 4999 (BC LA), 8 L.A.C. (3d) 250 (Hope). It’s complaint is that the employer has exercised that management function unreasonably.

The parties referred me to a large number of court decisions and arbitration awards. The arbitral jurisprudence represents an attempt by arbitrators to reconcile what appears to be conflicting and inconsistent pronouncements by the Ontario Court of Appeal in its judgments in Re Metropolitan Toronto Board of Com’rs of Police and Metropolitan Toronto Policy Asso. et al (1981), 124 D.L.R. (3d0 684 and Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants’ Union No. 10 et al, (1983) 1983 CanLII 1638 (ON CA), 149 D.L.R. (3d) 53.

What is no longer controversial is the principle that the employer has a duty to act reasonably in exercising its management rights, where such a duty is required, explicitly or implicitly, to give effect to employee rights explicitly recognized in a collective agreement. Arbitrators have expressed this proposition in different ways. For instance, in Re Westin Harbour Castle, (1991) 1991 CanLII 13414 (ON LA), 23 L.A.C. (4^th) 354 (R.M. Brown) it was held that a duty to act reasonably should be implied where it is necessary “in order to harmonize management rights with rights accorded to employees elsewhere in the collective agreement”. In Re Municipality of Metropolitan Toronto (1991) 1991 CanLII 13494 (ON LA), 19 L.A.C. (4^th) 287 (Davis) it was stated that a duty to act reasonably should be implied “only where it has been necessary to avoid a conflict with, or undermining of rights conferred by some other provision in the specific collective agreement”. Consistent with this case law, the employer conceded that the Board has jurisdiction to deal with the union’s allegation that the policy is in conflict with various provisions of the collective agreement.

The more contentious issue is whether a duty to act reasonably may be implied even when it is not necessary to avoid conflict or inconsistency with employee rights accorded elsewhere in the collective agreement. The union relied on a line of cases that had interpreted the decision in Re KVP Co., (1965) 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson) as imposing a general requirement that any rule promulgated by the employer in the exercise of its management rights must meet a test of “reasonableness”. It is the Board’s view that a notion of such a general implied duty to act reasonably is no longer tenable after the clear pronouncement by the Court of Appeal in the Police Com’rs case. The better interpretation is that the Board’s requirement in Re KVP that the rule must meet a test of reasonableness was made in the context of the just cause requirement in the collective agreement. See, B.C. Railway Co. (1982) 1982 CanLII 4999 (BC LA), 8 L.A.C. (3d) 250 (Hope) and Re Central Park Lodge Ltd., (2000) 2000 CanLII 50121 (ON LA), 91 L.A.C. (4^th) 403 (Ellis).

The decision in Re McKellar General Hospital, (1986) 1986 CanLII 6710 (ON LA), 24 L.A.C. (3d) 97 (Saltman) contains an excellent review of the relevant case law. I can do no better than to quote at length from that decision at pp. 103-109:

The question of whether or not the requirement of reasonableness ought to be implied into a collective agreement has been the subject of considerable arbitral and judicial debate. In 1975 the Ontario Divisional Court issued a decision in the case of Re Municipality of Metropolitan Toronto and Toronto Civic Employees’ Union, Local 43 et al. (1977) 1977 CanLII 1278 (ON HCJ), 79, D.L.R. (3d) 249, 16 O.R. (2d) 730 (the “Metropolitan Toronto” case), which appears to have accepted the notion that management is bound to a so-called “duty of fairness” in the exercise of its management rights. Following the Metropolitan Toronto decision, a large body of arbitral jurisprudence was developed which held that management was bound to act fairly and reasonably in the exercise of management rights.

Subsequently, the notion of a superadded “duty of fairness’ was rejected in the case of Re Metropolitan Toronto Board of Com’rs of Police and Metropolitan Toronto Police Ass’n et al. (1981), 1981 CanLII 1689 (ON CA), 124 D.L.R. (3d) 684, 33 O.R. (2d) 476, 81 C.L.L.C. para. 14,116 (leave to appeal to S.C.C. refused D.L.R. loc. Cit., 39 N.R. 499n) (the “Metropolitan Toronto Police” case). In that case, the grievors alleged that they had been denied the opportunity to participate in the annual inventory on an overtime basis in a manner which was arbitrary, discriminatory, unfair or in bad faith. The collective agreement contained no express provision dealing with the assignment of either overtime or inventory work. Accordingly, the matter fell to be determined under the management rights clause which provided, among other matters, that it was the exclusive function of management to “manage the operation”. Following the authority of the Metropolitan Toronto decision, the arbitrator held that the employer was bound to exercise its management rights fairly and without discrimination and, therefore, that the employer violated the collective agreement by unfairly denying the grievors the opportunity to participate in the annual inventory on an overtime basis.

An application for judicial review was filed in the Ontario Divisional Court. However, the Divisional Court did not decide the matter and, under the authority of s. 35 of the Judicature Act, R.S.O. 1980, c. 223 (repealed 1984, c. 11, s. 187), referred the matter for determination to the Ontario Court of Appeal. The Court of Appeal held that where management has the exclusive right to determine how it shall exercise the powers conferred under the management rights clause, the exercise of these powers cannot be challenged solely on the basis that they were made unfairly or in a discriminatory manner. At p. 687 D.L.R., pp. 478-9 O.R., the court said as follows:

In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement.

Having regard to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a term that the management rights clause will be applied fairly and without discrimination. If such a term were to be implied, it would mean that every decision of management made under the exclusive authority of the management rights clause would be liable to challenge on the grounds that it was exercised unfairly or discriminatively. In our opinion, this would be contrary to the sprit and intent of the collective agreement.

Following the Metropolitan Toronto Police case, the Ontario Court of Appeal had further occasion to consider the exercise of management’s discretion. In the case of Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants’ Union No. 10 et al. (1983), 1983 CanLII 1638 (ON CA), 149 D.L.R. (3d) 53, 42 O.R. (2d) 404, 83 C.L.L.C. para. 14,050 (leave to appeal to S.C.C. refused 52 N.R. 308n) (the “Council of Printing Industries” case), the collective agreement required the company to “permanently” classify 34 employees, thereby making them immune from lay-off. The grievance arose because the union claimed that the company violated the grievors’ seniority rights in permanently classifying five of these employees. The arbitrator held (Re Photo Engravers & Electrotypers Ltd. And Toronto Printing Pressmen & Assistants’ union, No. 10 (1980), 1980 CanLII 4043 (ON LA), 25 L.A.C. (2d) 88) that the job security rights of employees permanently classified by the company under art. 22 of the collective agreement were an exception to the seniority rights provided by art. 6 of the collective agreement and in effect abridged the seniority rights of employees not so classified. He further held that because of the fundamental importance of seniority rights under the collective agreement, the company must exercise its discretion to permanently classify employees in a reasonable manner, without discrimination, bad faith or arbitrariness. The arbitrator’s decision was quashed by a decision of the Divisional Court (unreported), which was ultimately set aside by the Court of Appeal. In restoring the decision of the arbitrator, the Court of Appeal made it clear that it was not dealing with the exercise of management rights under the management rights clause (as had been the case in the Metropolitan Toronto Police case) but with the exercise of management’s discretion under art. 22, a substantive provision, in light of the collective agreement as a whole. As a result, the court declined to interfere with the arbitrator’s determination that management was bound to exercise its discretion under art. 22 in a manner which was not arbitrary, discriminatory, unreasonable or in bad faith.

Numerous arbitration awards have been written in an attempt to reconcile the apparent conflict between the decisions in the Metropolitan Toronto Police and Council of Printing Industries cases. Some arbitrators have held that the decisions can be explained on the basis of a distinction (referred to by the Court of appeal in the Council of Printing Industries case) between the exercise of management’s discretion under the management rights clause and under a substantive provision of the collective agreement: See Re Royal Ontario Museum and Ontario Public Service Employees’ Union (1983), 1983 CanLII 4868 (ON LA), 12 L.A.C. (3d) 207 (P.C. Picher); Re City of Windsor and Ontario Nurses’ Assoc. (1985), 1985 CanLII 5389 (ON LA), 19 L.A.C. (3d) 1 (McLaren). Other arbitrators do not accept this distinction: see Re McKellar General Hospital and Ontario Nurses’ Assoc., association grievance on the employer’s nepotism policy (August 24, 1984), unreported (Beatty) (reported 1984 CanLII 5161 (ON LA), 15 L.A.C. (3d) 353) the “McKellar Hospital” case); Re Toronto East General Hospital and Service Employees Union, Local 204 (1984), 13 L.A.C. 93d0 400 (Burkett) (the “Toronto East General” case); Re Great Atlantic & Pacific Co. of Canada Ltd. and Bakery, Confectionery & Tobacco Workers Union, Local 264 (1984), 1984 CanLII 5168 (ON LA), 18 L.A.C. (3D) 44 (Burkett).

In the McKellar Hospital case, the association challenged the employer’s anti-nepotism policy, which prohibited the employment of family members in the same department or unit on the grounds, among others, that the policy was unreasonable. The employer submitted that the arbitrator lacked jurisdiction to determine whether or not the policy was unreasonable as the exercise of management rights was not subject to the test of reasonableness. After reviewing the decisions in the Metropolitan Toronto Police and Council of Printing Industries cases, the arbitrator rejected the distinction made by the Court of Appeal in the Council of Printing Industries case between the exercise of management’s discretion pursuant to a management rights clause and the exercise of management’s discretion pursuant to a substantive provision of the collective agreement and held that the same considerations apply to both. To the extent that the Court of Appeal held that different considerations apply, the arbitrator held that the two decisions cannot be reconciled. Preferring to follow the decision in the Council of Printing Industries case, the arbitrator concluded that the standard of reasonableness applied to the exercise of management’s discretion to promulgate plant rules and policies under the management rights clause.

In The board’s view, the distinction made by the Court of Appeal in the Council of Printing Industries case between the exercise of management’s discretion under the management rights clause and under a substantive provision of the collective agreement cannot be entirely ignored. Firstly, weight ought to be given to the fact that the court expressly stated that it was making this distinction. Secondly, the distinction is consistent with the theory that a party to a collective agreement is bound to administer its obligations under the agreement in a reasonable manner: See Re Int’l Nickel Co. of Canada Ltd. and U.S.W. Local 6500 (1977), 1977 CanLII 2938 (ON LA), 14 L.A.C. (2d) 13 (Shime); Re Royal Ontario Museum and Ontario Public Service Employees’ Union, supra, whereas no similar theory would appear to apply to the exercise of management’s discretion under the management rights clause. However, even if there is no distinction between the exercise of management’s discretion under the management rights clause and under a substantive provision of the collective agreement, the different conclusions in the Metropolitan Toronto Police and Council of Printing Industries cases can be understood in relation to the test for implying a term into the collective agreement. In essence, the test holds that an arbitrator (or board of arbitration) has the power to imply a term into a collective agreement if two conditions are met:

(1) if it is necessary to imply a term in order to give “business or collective agreement efficacy” to the contract, in other words, in order to make the collective agreement work; and

(2) if, having been made aware of the omission of the term, both parties to the agreement would have agreed without hesitation to its insertion.

See Re Kennedy Lodge Nursing Home and Service Employees Union, Local 204 (1980), 1980 CanLII 3978 (ON LA), 28 L.A.C. (2d) 388 (Brunner); Re Orenstein & Koppel Canada Ltd. and Int’l Assoc. of Machinists, Local 1740 (1976), 1976 CanLII 2147 (ON LA), 12 L.A.C. (2d) 417 (Brunner).

In the Metropolitan Toronto Police case, the court expressly stated that the test for the inclusion of an implied term had not been met. More particularly, at p. 687 D.L.R., p. 479 O.R., the court said: “we see no necessity in this case to imply a term that … management rights … will be applied fairly and without discrimination” (emphasis added). By way of contrast, the implication arises from the decision in the Council of Printing Industries, case that the arbitrator was of the view (1) that the insertion of the implied term of reasonableness was necessary to give “business efficacy” to the collective agreement, i.e., to ensure that valued seniority rights under the collective agreement would not be eroded; and (2) that the parties would have agreed to the inclusion of the term had they put their minds to it.

This latter approach to the exercise of management’s discretion is consistent with the view taken in the Toronto East General case. In that case, the arbitrator was required to determine whether there was in implied restriction on the employer to act reasonably in the exercise of its function to lay off employees. After considering both, the arbitrator concluded that the decisions in the Metropolitan Toronto Police and Council of Printing Industries cases can be understood by reference to the general principles of contract law and, more particularly, to the rules relating to implied terms and not to any doctrinaire distinction between the exercise of management’s discretion under the management rights clause and under a substantive provision of the collective agreement. At pp.407-8 of the decision, the arbitrator’s reasoning is set out as follows:

In our view the attempt to distinguish the judgments of the Court of Appeal in Council of Printing Industries of Canada, supra, from that of Metropolitan Toronto Board of Com’rs of Police, supra, on the basis that the latter case deals with the exercise of a management discretion under a management rights clause while the former deals with the exercise of a management discretion found elsewhere in the agreement is an artificial distinction which misses the point. A closer reading of Metropolitan Toronto Board of Com’rs of Police, supra and the arbitration awards that were under review in that case makes it clear that the Court of Appeal was concerned with the importation into a collective agreement of “a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provisions of the agreement must stand the further test of whether in the opinion of the arbitrator they were made fairly and without discrimination” (p. 687 D.L.R., p. 478 O.R.). In the face of these words, we must adopt the interpretation of the Metropolitan Toronto Board of Com’rs of Police judgment expounded by arbitrator Swan in Re Meadow Park Nursing Home and Service Employees Int’l Union, Local 220, supra (1983), 9. L.A.C. (3d) 137 (Swan) (which preceded the judgment of the Court of Appeal in Re Council of Printing Industries of Canada, supra), which focuses on the court’s prohibition of the importation of a general rule which is not supported on the language of the agreement. The awards reads (pp. 140-1):

“What the Metropolitan Toronto Police decides, in our respectful view, is simply that arbitrators exceed their jurisdiction if they purport to establish general principles for the administration of collective agreements divorced from the language negotiated by the parties in the matter before them, and that they commit errors in law if they purport to treat a judgment of the courts, refusing to interfere with an arbitration board on the basis that it did not give collective agreement language a meaning which it could not reasonably bear, as binding expositions of the general law. Unfortunately, many arbitrators, and indeed some courts, have turned the rationale of Metropolitan Toronto Police upside down, and have taken it instead to mean that there can never be implied into a collective agreement a duty to exercise a management function or prerogative in accordance with tests of fairness or reasonableness. The Metropolitan Toronto Police case does not and cannot alter the law of contractual interpretation; every allegation that an employer is in breach of the collective agreement must be considered individually, against the language which the parties themselves negotiated, and in accordance with the well-known canons of construction. If, based on the general law of implied terms in contracts, as the general law may be adapted to the particular case of collective agreements, the implication arises that a particular management function must be exercised in a certain way, then an arbitrator is bound to make that implication, since it arises from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between the parties. To whatever extent such cases as Re United Glass & Ceramic Workers of North America et al. and Libbey-St. Clair Inc. et al. (1981), 1981 CanLII 1728 (ON HCJ), 125 D.L.R. (3d) 702, 33 O.R. (2d) 760 (Ont. Div. Ct.), appears to suggest some other conclusion, it would be our respectful submission that they should not be followed”.

(See also Re Board of Education for the City of Toronto and Toronto Teachers’ Federation, supra (1982), 1982 CanLII 5103 (ON LA), 3 L.A.C. (3d) 336 (Kennedy).)

On our reading the judgment of the Court of Appeal in Council of Printing Industries of Canada, supra, does not in any way conflict with the prohibition in Metropolitan Toronto Board of Com’rs of Police, supra, against the importation into a collective agreement of a general requirement of reasonableness and fairness. The arbitration award in Council of Printing Industries of Canada, supra, was upheld on the ground that the interpretation placed on the article which gave management the authority to classify was one it could reasonably bear. The court framed the issue as one of interpretation (as distinguished from the importation of a general requirement not referenced to the language of the collective agreement) and found that the language of the clause, when read in a labor relations context and in the context of the agreement as a whole, could support an implied requirement to act in a “bona fide” fashion (in the sense that it must put its mind to relevant considerations). In our view, the two decisions can be read together as standing for the proposition advanced by arbitrator Swan; that is, “If based on the general law of implied terms in contracts, as the general law may be adapted to the particular case of collective agreements, the implication arises that a particular management function must be exercised in a certain way, then an arbitrator is bound to make that implication since it arises from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between the parties.”

In light of the two Court of Appeal decisions, the most sensible approach, and the one that I subscribe to, is that taken in Re Meadow Park Nursing Home (supra). The state of the law following the Toronto Police Com’rs and Printing Industries court decisions, as I read them, may be summarized as follows: An arbitrator has no jurisdiction to import into a collective agreement a general duty on an employer to exercise management rights reasonably. However, if on an application of the general law of implied terms in contract, the implication arises from the collective agreement itself that a particular management right must be exercised reasonably, the arbitrator is bound to make that implication since it arises from the collective agreement negotiated by the parties, from which the arbitrator draws his or her jurisdiction. Such an implied duty may arise from a specific provision of the collective agreement, or from a reading of the agreement as a whole in a labour relations context.

In the instant case, the union has not pointed to anything in the collective agreement that could give rise to an implied term that management rights must be exercised reasonably. Nor is there anything in the collective agreement to justify an implied term that the particular exercise of the management right to create an attendance review policy must be reasonable. Therefore, the Board has no jurisdiction to review the reasonableness, of the employer’s exercise of management rights to create the policy, or of the policy itself. The Board, however, does possess jurisdiction to determine whether the policy conflicts with any employee rights conferred by the collective agreement, including the issue of whether the policy constitutes discipline. And of course, the Board also has jurisdiction to determine the union’s allegation that the policy is contrary to the Ontario Human Rights Code.

This proceeding will continue in accordance with the directions contained in this decision. The Registrar shall schedule further hearings in consultation with the parties.

Dated this 2^nd day of January 2004 at Toronto, Ontario.