GSB# 2002-1756, 2003-3511

UNION# 2002-0205-0042, 2004-0257-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lesieur et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Andrew Baker Counsel Ministry of Government Services

HEARING

January 30, 2004, June 14, 2004 and July 27, 2005.

WRITTEN SUBMISSIONS

August 16, 2005

Decision

On November 22, 2001, Ms. Janet O’Grady, Director of the Human Resources Branch of the Ministry of the Environment, wrote to Mr. James Connelly, one of the grievors in this matter the following, in part:

In June 2000, the government proclaimed the Professional Geoscientists Act. The Act and its regulations govern the practice of professional geoscience in Ontario. It establishes the Association of Professional geoscientists, and empowers the association to establish standards of professional practice for persons who will be recognized as professional geoscientists.

The Act defines the practice of professional geoscience as:

Section 2(1) – An individual practices professional geoscience when he or she performs an activity that requires knowledge, understanding and application of the principles of geoscience and that concerns the safeguarding of the welfare of the public or the safeguarding of life, health or property including the natural environment.

The Ministry undertook a comprehensive review of our geoscience positions against the requirements of the Act. The result is that the Ministry has identified your position of Hydrogeologist/Group Leader (RM4) with the Water Resources Section, West Central Region as requiring the incumbent to possess the Professional Geoscientist certification. Accordingly, as a condition of employment you are required to now obtain your certification as a Professional Geoscientist. Please submit your application to the Association of Professional Geoscientists of Ontario (APGO) no later than December 31, 2001.

Attached to this letter were a series of Questions and Answers for employees to read. Included was the following:

Q. How was it decided which positions would be designated and which not? Why aren’t all positions being designated?

A. Designated management leads of each respective ministry were assigned to review the requirements of the legislation against the job functions and accountabilities of positions. Consistent with the government’s policy/practice on credentialism, the designation is only required for those positions that are clearly mandated to require such under the terms of the legislation.

Q. Who controls the designation process and criteria, entrance requirements, fees, ongoing membership?

A. It is the responsibility of each ministry to identify the positions requiring designation. Under the Act’s regulations, the Association of Professional Geoscientists of Ontario (APGO) has the authority to set the criteria, conduct examinations and assessments, establish fees, set and monitor standards, etc.

Q. What if designated staff don’t want to become a certified professional Geoscientist?

A. For those positions designated by the Employer as now requiring the professional certification, in accordance with the newly proclaimed legislation and regulations, the achievement of this certification is a condition of employment for this position. The ministry has agreed to the payment of initial costs for registration.

……..Annual membership fees remain the accountability of the employees.

As set out in the above questions and answers, the following year the annual membership fees were not reimbursed to employees. The six grievors, all of whom are professional geoscientists, filed grievances that alleged a breach of the collective agreement as a result of their having to pay annual membership dues to the Association of Professional Geoscientists of Ontario (hereinafter “APGO”) because the Employer has made membership in that organization mandatory. It was further alleged that management has “misused” its rights.

The Union’s position was set out in a letter provided by its counsel to the Employer following a request for particulars. It read as follows, in part:

It is the Union’s position that 1) the Professional Geoscientists Act, 2000 is not applicable to the Crown and therefore the grievors are exempt from its requirements and 2) if the grievors are required to be members of APGO they qualify for reimbursement of the professional association fees pursuant to the applicable Management Board Secretariat policy, namely because the Ministry derives a benefit.

The Employer raised a preliminary objection that the grievances are inarbitrable and this decision deals only with this matter.

EMPLOYER SUBMISSIONS

It was the Employer’s view that it properly determined that certain employees must be members of APGO. Further, it is entirely within their discretion as to whether to pay the APGO dues and its failure to do so is not a matter over which this Board has jurisdiction. There is no provision in the collective agreement that obliges the Ministry to pay these dues. Given the absence of any such provision in the collective agreement there is not a difference between the parties regarding its interpretation or administration and therefore the matter is inarbitrable.

In large measure, Mr. Baker, for the Employer, relied upon earlier Board jurisprudence to establish the basis for this argument. In Re: The Crown in Right of Ontario (Ministry of Natural Resources) and OPSEU (Anderson) G.S.B. # 2183/02 Chair Stewart considered and determined the identical issue. In that case, after the Professional Foresters Act 2000, was enacted, the Employer evaluated the grievor’s position and notified him that “the Act is applicable to your position”. The Union asserted that any dues owing as a result of that decision should be paid by the Employer. In denying the grievance Chair Stewart said, at page 3:

There are a number of bases upon which the Union challenges the rejection of Mr. Anderson’s claim for reimbursement. It is argued that if professional membership with associated costs is a condition of employment, the Employer is compelled to assume those costs. I am unable to accept this submission. The Collective Agreement sets out the terms and conditions of employment, including, in some instances, reimbursement provisions. Where there is no specific provision in this regard such an obligation cannot, as a general rule, be imposed by an arbitrator. It is also noted by Mr. Barclay that the Employer does reimburse Law Society fees for its employees who engage in the practice of law as employees of the OPS and thus that its rationale for denial of Mr. Anderson’s fees is factually incorrect. As Ms. Demal points out in her submissions, however, there is a specific provision in the Collective Agreement between the Employer and ALOC, which compels reimbursement. Accordingly, I am unable to accept this basis upon which the decision is challenged as compelling the conclusion that there is a requirement to pay or that there is a fundamental flaw in the manner in which the Employer has dealt with this matter. Mr. Barclay further argues that membership in the Association is properly viewed as “beneficial to the Ministry” as contemplated by the policy referred to. In that regard he referred to the 2002-2003 Ministry of Natural Resources Business Plan wherein its goals are outlined and suggested that the standards embraced by the OFPA could only enhance those goals. He further noted that the Employer’s interests in such professional accreditation were evidenced by the mandatory statutory requirement that it be obtained. While the validity of Mr. Barclay’s submission in this regard is apparent, we are dealing with a situation where the Employer has discretion whether or not to reimburse. In his reply submissions Mr. Barclay referred to Ministry of Transportation and OPSEU (Kuyntjes) 513/84 (Verity) in support of the proposition that there was not a proper exercise of discretion in this instance and that “the Ministry rigidly adhered to what they believed Management Board policy to be” in denying the request. There is no need to deal with the Employer’s position that this is an argument which must be rejected on the basis that it was raised for the first time in reply as it is my view that this argument cannot succeed on its merits. The background facts are reviewed in the response to the grievance and Mr. Anderson’s basic position is outlined. I do not view the response as a blind adherence to a misapprehended policy as Mr. Barclay has suggested in his submissions. Reference is made to the Travel and General Expenses Guidelines and while reference is also made to what the Ministry “does not do” I view this as a reference to past practice within this Ministry, something that will inevitably form the background for consideration of a matter. While, as Mr. Barclay emphasized, the mandatory obligation for a Forester in Mr. Anderson’s position to be a member of the OPFA was a matter of relatively recent history, and thus this aspect of the matter that was within the knowledge of the decision maker. Indeed, this matter was specifically clarified by Mr. Anderson’s supervisor at the meeting and is referenced in the decision. The issue is whether a basis upon which the exercise of discretion in this instance can be impugned has been impugned. It is my conclusion that such a basis has not been established and, accordingly, the grievance is dismissed.

The Employer contended that this matter is inarbitrable. In order for this Board to take jurisdiction there must be some provision in the collection agreement other than the management’s rights provision that is said to be violated. In this regard the Employer relied upon Re Ministry of Labour and OPSEU (Anthony et al) GSB# 1999-1997 (Abramsky) wherein it was stated at page 8:

The problem is that the Union has not alleged any unfairness or discrimination in regard to the Employer’s actions in relation to the grievors. It has alleged improper action in relation to two other individuals – Mr. Hughes and Ms. McCourt – which it asserts resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable situation is not enough. In OPSEU (Ashley et al) and Ministry of Community, Family and Children’s Services, supra at p. 14-15, the Board held:

The decision in OPSEU (Bousquet), supra, does not assist the Union. The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights….[U]nder Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s rights.

The Board’s jurisdiction depends on an allegation that the Employer’s actions interfered with the grievors’ rights under the collective agreement. In this case, those elements are missing. There is no allegation that the Employer improperly denied the grievor’s a merit pay increase – only that the Employer improperly granted it to Hughes and McCourt. Nor is there an allegation that the Employer’s actions impacted any rights of the grievors’ under the collective agreement.

Mr. Baker asserted that in Re The Crown in Right of Ontario (Ministry of Community, Family and Children’s Services and OPSEU (Ashley et al) Vice Chair Abramsky undertook a helpful analysis including the effect, if any of the Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 (S.C.C.). The Employer anticipated that the Union would rely upon this decision and contend that it has been determined that boards of arbitration have exclusive jurisdiction where a dispute expressly or inferentially arises out of the collective agreement. In this regard, the Employer submitted that this Board should specifically consider the comments of Vice Chair Abramsky in Re: Ashley (supra) wherein she stated, at page 12:

As noted above, for a dispute to be arbitrable before this Board, it must involve a difference between the parties “arising from the interpretation, application, administration or alleged contravention of the [collective] agreement”. Under the analysis set forth in Weber v. Ontario Hydro, supra, an arbitrator has exclusive jurisdiction when the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

As cited in London Life Company, supra at para 21, the Supreme Court of Canada elaborated on the Weber approach to determining arbitrability in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 13, 183 D.L.R. (4th) 14, at para 25:

To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, supra, at para. 43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject-matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it completes such factual situations. It is clear that the collective agreement need not provide for the subject-matter of the dispute explicitly. If the essential character of the dispute arises either explicitly or implicitly, from the interpretation, applications, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.

Vice Chair Abramsky went on at page 14 to say:

…Nevertheless, the board also concluded that the employer did not have “carte blanche to do what it wishes under the purported exercise of an exclusive management function with respect to training and development”. (p. 58). Instead, the Board had the right to review the employer’s exercise of its discretion for good faith and reasonableness because developmental opportunities impacted an employee’s ability to compete in job competitions under Article 4 of the collective agreement. The Board held at p. 35: “[T]he 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 a particular application of such right”. Consequently, under Bousquet, supra, the jurisdiction of the board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s action.

……In Bousquet, supra, the Board determined that there is no general requirement of good faith and reasonableness in the exercise of rights reserved to management, unless it impacts a right contained in the collective agreement.

The majority of the factual issues as they apply to jurisdiction have been previously considered, Mr. Baker claimed. An extremely similar fact situation was contemplated by Vice Chair Gray in Re The Crown in Right of Ontario and OPSEU (Cherwonogrodzky et al) (April 14, 2004), GSB#2002-0994. In that decision the grievors alleged a violation of the collective agreement because the Employer failed to reimburse tax auditors for their membership in various professional associations. The union asserted in that matter that “the employer has breached an implied obligation to exercise management’s rights in a manner that is reasonable and not arbitrary, discriminatory or in bad faith”. Vice Chair Gray failed to take jurisdiction of the matter and found that the Union failed to allege a violation of the collective agreement and failed to impugn the Employer’s actions such that there was an adverse impact upon a provision of the collective agreement. It was stated at page 16:

The union argues that the board has jurisdiction to review the exercise of discretion complained about here because if the employer had exercised its discretion differently – by reimbursing the dues of some employees – that could have been characterized as interference with the compensation provisions of the collective agreement.

For the purposes of analysis I will accept that if the employer were to reimburse some employees’ memberships dues for the avowed purpose of improving their compensation, or if one could infer from the circumstances that that was the predominant purpose (as where, for example, it was evidence that the reimbursement gave the employer no benefit other than the gratitude of the recipients), the reimbursement could constitute a breach of the provisions that the parties have negotiated with respect to the allocation of compensation among bargaining unit employees. On that view, if the union were to grieve that the employer should not have reimbursed dues because its doing so was inconsistent with the compensation provisions of the agreement, the Board might then have to enquire into the reasons for reimbursement.

It does not follow that the Board has jurisdiction on that basis to review these decisions not to reimburse dues, particularly dues of a sort that have never before been reimbursed. Such a decision cannot be characterized as inconsistent with compensation provision which make no provision for reimbursement. That is not to say that a decision not to reimburse could never be the subject of a grievance. It could if, for example, if it was alleged that the decision amounted to discrimination on a basis prohibited by Article 3 of the collective agreement or by the Ontario Human Rights Code. That is not alleged here. The actual exercise of reserved managerial rights complained of in these grievances does not interfere with the compensation provisions of the collective agreement.

In short, there is no provision of the collective agreement that the employer is alleged to have breached by refusing to reimburse the grievors’ professional dues, and no provision of the collective agreement capable of being adversely impacted by that exercise of management’s discretion. Accordingly, I agree with the employer that its decision not to reimburse the grievors’ dues in professional accounts’ organizations is not subject to review by this Board for reasonableness.

The Employer submitted that for this Board to entertain this grievance would cause serious ramifications. Members of the bargaining unit who were unhappy with any issue that arose from his or her employment would take the Board’s valuable time hearing and determining these matters. Such a decision would be wrong, in the Employer’s submission.

UNION SUBMISSIONS

Mr. Leeb, for the Union, suggested that there can be no doubt from the question and answer document that it was the Employer who had mandated membership in the APGO. That is to say it is not the Association that has determined these employees should be members. It is the Union’s position that the Employer erred when it promulgated this rule and established it as a condition of employment. This Board has the jurisdiction to determine that matter given the significant financial implications the rule has upon the grievors. Further, the Board has jurisdiction to hear and decide the issue because membership in the Association brings duties and obligations upon the grievors such as disciplinary action with ramifications beyond employment with this Ministry. At the very least, this must be seen to be an inappropriate exercise of management’s rights.

The Union took issue with the Employer’s contention that there must be some alleged violation of the collective agreement in order for this Board to take jurisdiction. The jurisprudence stands for the proposition that once a valid business objective is established by an Employer it is reviewable. It has been decided that management’s rights cannot impose constraints upon employees unless it is done in pursuit of a legitimate business objective. In this regard the Union relied upon Re: The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Anderson) (October 1, 1991), GSB#3005/90 (Watters). Vice Chair Watters said at page 8:

This Board cannot isolate any sound reason for refusing to extend this logic to the present collective agreement governing the relationship between these parties. Indeed, an analogous approach was taken in Baylis. The Board there determined that “even in the absence of any specific language in the agreement, it is implicit in the collective agreement that management will administer the collective agreement in good faith” (page 3). While the Employer’s good faith was not challenged in these proceedings, we think that the same inference should be made in respect of the notion of reasonableness.

…..In the absence of an explanation as to why there was a change in the status quo, we are prepared to hold that the Employer acted unreasonably.

The second argument put forward by the Union was made in the alternative. If the employer is correct and it can oblige its employees to become members of APGO, its decision to not reimburse the membership monies paid by the grievors is a violation of its own policy regarding membership fees and this decision is subject to review. The relevant portion of the policy states:

Payment of membership fees may be authorized when membership in an organization is beneficial to the ministry, or when required, under the provisions of the collective agreement.

According to Article 2 of the collective agreement, the Employer is obliged to make reasonable rules and regulations and this instance the Employer has promulgated a rule that the grievors must be members of APGO and that rule is unreasonable. In this regard the Union referred to Cherwonogrodzky, supra. Unlike the matter at hand, current membership in a professional association was not a condition of employment. While it was conceded that the Board failed to take jurisdiction in that instance, Vice Chair Gray did state, at page 10:

It is difficult to imagine that by agreeing that “rules and regulations” would be reasonable the employer intended or the union believed that any decision of general application that the employer might announce concerning how it would thereafter manage its operations would be exposed to arbitral review for reasonableness. ….

The Cherwonogrodzky matter is distinguishable in the Union’s view. In that case there was no Employer requirement that employees become members of their professional association. Vice Chair Gray said that in the specific circumstances of the matter before him it was not unreasonable for the Employer to elect to not reimburse the costs of association membership. Further, Vice Chair Gray was not asked to consider the issue of general powers of review. He was merely asked to determine whether the policy was reasonable, not whether it was applied in good faith or arbitrarily applied. The grievors in the instant matter have been mandated to belong to APGO. In any event, even if I feel bound by Vice Chair Gray’s decision in this matter this Board should consider new arguments. The issue of whether management’s policies are subsumed within management’s rights was not considered in the Cherwonogrodzky decision. In this regard the Union relied upon Re: The Queen in right of Ontario and Ontario Public Service Employees’ Union et al. (1984), 42 O.R. (2d) 361 [Divisional Court] wherein it was said at page 365:

It seems to us that from a rather complicated series of documents the grievance settlement board has discerned a consistent policy and has interpreted the language of the agreement with reference to the management manual. In art. 22, management has undertaken to pay mileage allowance, but that article gives no indication of a formula by which allowance is to be calculated. In carrying out its right to manage, management has issued the manual which does contain such indication and it has acted upon it by changing the grievor’s designated headquarters. In so doing, it has ignored the undertaking that the headquarters is to be periodically reviewed to determine “whether or not the original arrangement continues to be equitable to both the employee and the Ministry”. The obvious implication is that any headquarters so designated is to be equitable to both parties.

There is much jurisprudence, asserted the Union, standing for the proposition that Employer policies are a manifestation of their rights and therefore subject to arbitral review. In this regard the Board was directed to Re: The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Andersen et al) (November 12, 2002), GSB#1093/01 wherein it was said by Vice Chair Brown, at page 6:

Counsel for the employer relies upon Abbott Laboratories Ltd. And Retail, Wholesale Canada (1998), 1998 CanLII 30005 (ON LA), 74 L.A.C. (4th) 331 (R.M. Brown) where I commented on the meaning of the phrase “expressly or inferentially” in Weber:

[T]he Supreme Court said the jurisdiction of an arbitrator encompasses disputes arising from the express or implied terms of a collective agreement. That is how the Court’s reference to “expressly or inferentially” was interpreted by Mr. Hope in Canada Safeway……..I agree with his interpretation. (page 347; emphasis added)

This understanding of Weber subsequently was adopted by the Supreme Court of Canada as well by the Ontario Court of Appeal. Mr. Justice Bastarache spoke for the Supreme Court in Board of Commissioners of the City of Regina v. Regina Police Association Inc., 2000 SCC 14, [2000] 1 S.C.R. 360:

Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. ….. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly or implicitly, from the interpretation, application administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.

The Union said that it is important for this Board to appreciate that new issues and/or arguments are being raised in this matter. As mentioned above, various issues at hand were not considered by Vice Chair Gray or others in previous decisions issued by the Grievance Settlement Board. When there is a change in considerations a fresh look should be taken. According to Re: The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Cleveland) (October 6, 1993), GSB#2350/92, Vice Chair Stewart (as she then was) accepted that the Board was unable to accept an early determined principle because since the issuance of an earlier decision language in the collective agreement had changed. In the matter at hand the Union takes the position that the Employer improperly interpreted and applied the Professional Geoscientists Act when it determined that the grievors hold positions that require incumbents to possess the Professional Geoscientist certification. In Re: The Crown in Right of Ontario (Fleetwood Ambulance Services) (September 18, 1997), GSB#1013/96, Vice Chair Stewart (as she then was) found that the Employer had erred when it determined that the French Language Services Act applied to its operations “notwithstanding the fact that it has not been designated by regulation as a government agency as contemplated by the provisions of the Act”. In upholding the grievance, she went on to find that the Employer did not establish a “reasonable relationship between the requirements of the position and facility in the French language”. In this matter, the Board should determine whether the Employer properly applied the Professional Geoscientists Act and if it did not, the grievors should not be subject to the Act’s constraints. Indeed, for this purpose it can be said that the Act is an employment statute and therefore this Board properly has the jurisdiction to interpret and apply the provisions as established in Re: The Crown in Right of Ontario (Ministry of Health) & OPSEU (1996), 1996 CanLII 20359 (ON GSB), 61 L.A.C. (4th) 284 (Mikus). When employees’ rights are interfered with then a statute can be said to the employment statute. That is particularly the case in the instant matter because there exists potential for employment consequences if the grievors fall out of favour with the rules and regulations of the association. Vice Chair Mikus stated at page 286 of her decision:

The amendments to the Labour Relations Act were intended to give arbitrators and arbitration boards broad powers to deal with the issues before it/them. It expressly allows them to interpret and apply employment-related statutes to avoid multiplicity of hearings, inconsistent decisions, expense and delay. While the Election Act is not strictly speaking an employment-related statute, to the extent that the employer applies that Act in such a way that rights under a collective agreement are affected, an arbitrator has the obligation to interpret that Act and apply it in such a way that any conflict between it and the collective agreement are resolved in a final and binding manner.

In this case, the Employer scheduled the grievors’ three-hour voting period to include their lunch period. The hours of work in the collective agreement provide for an unpaid lunch period during the shift. It is within my jurisdiction to determine, on the facts of this case, whether the Employer properly applied the Election Act when he included a one-hour unpaid lunch period in the three-hour voting period.

The Union further suggested an appropriate consideration for this Board in the determination of its jurisdiction is the jurisprudence that contemplates the issue of surveillance. It is trite to note that most collective agreements do not include a provision that sets out management’s rights in this regard. And yet many employers take the position that they are entitled to implement surveillance on employees. In this regard the Union relied upon Re: Centre for Addiction and Mental Health and OPSEU (2004), 2004 CanLII 94808 (ON LA), 131 L.A.C. (4th) 97 (Nairn) and Re Securicor Cash Services and Teamsters, Local 419 (February 6, 2004), unreported (Whitaker) wherein it was stated at paragraphs 48 and 49:

There is no question that arbitrators have for decades subjected these types of employer inquiries to a reasonableness test. This is done on the theory that where a collective agreement is silent, an employer is generally exercising its management rights by making inquiries of employees that are necessary for the carrying on of business.

…… The theory then is that it is part of management’s residual rights under the collective agreement to undertake investigations that might impinge on the privacy of employees if such investigations are reasonable in the circumstances. In this way it can be said that the test of reasonableness arises from the collective agreement itself. The test of reasonableness is an implicit term of the agreement. The other side of the implicit term however is that unreasonable investigations that trench on the privacy of employees are contrary to the collective agreement.

The Union asserted that irrespective of whether the collective agreement is silent, where management intrudes on the rights of employees, those actions must be subject to arbitral review. In this matter the consequences of the Employer’s determination that the Professional Geoscientists Act applies are significant such as the payment of dues and being subject to the Associations rules. There can be no doubt this Board has jurisdiction.

In reply, Mr. Baker noted that at no point in the Union’s submissions was there mention of a specific provision in the collective agreement that has been violated. Each of the cases provided by the Union wherein the Board accepted jurisdiction there was an allegation of a violation of a specific provision in the collective agreement such as unjust cause for dismissal, mileage allowance or, as in the decision from Vice Chair Mikus, hours of work. In this matter, reference has been made only to Article 2 of the collective agreement and there is no nexus to any breach of any other provision. Further, it was asserted that the decision of Vice Chair Gray was precisely on point. It is not relevant that his decision does not contemplate a situation where management obliged employees to be members of a professional association. Any factual differences between that case and the instant matter are not determinative when considering the issue of jurisdiction. Indeed, there are at least three previous decisions that make clear there must be a violation of some article other than management’s rights for this Board to take jurisdiction.

DECISION

As stated from the outset, the Union’s position is twofold. First, the Employer’s decision to oblige the grievors to become members of and pay dues to APGO was a misapplication of the Act and constitutes a violation of the collective agreement because it has significant impact on the grievors’ compensations and their terms of employment. Second, if the grievors are required to be members the Employer must pay for the fees because it has derived a benefit.

After much consideration I am of the view that the Employer’s preliminary objection must be upheld. Accordingly to the Crown Employees’ Collective Bargaining Act, in order for this Board to take jurisdiction of a matter there must exist a dispute between the parties that constitutes a difference between them “rising from the interpretation, application, administration or alleged contravention of the [collective] agreement”. In my view, in this matter there is no dispute that arises from the collective agreement. The Union contended that the Management’s Rights provision has been violated and the grievances suggest that the Employer “misused” its rights. I think not. As set out in Re Bousquet (supra), a restriction of the “unfettered exercise of a management right” would require the negation or undue limitation of the application of a specific provision in the collective agreement. There is no provision in the collective agreement that has been negated or unduly limited. While the Union might suggest that the compensation provisions are affected, this Board has been previously determined that there is no violation of the compensation provisions when employees are required to pay dues to professional associations.

The Supreme Court set out the appropriate approach in determining arbitrability after Weber (supra) in Regina Police (supra). It was said that there are two elements to consider. The first is the nature of the dispute and the second is the ambit of the collective agreement. It was stated that the nature of the dispute is made by determining the essential character based on the facts and not on the basis of how the legal issues are framed. Simply put, does the essential character of the dispute concern a subject matter covered by the collective agreement. Once the essential character of the dispute is identified an examination of the provisions of the collective agreement must be undertaken to determine whether it takes into account such factual situations. It was said “if the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide”.

In the matter at hand the essential character of the dispute is involves whether the Employer can impose, as a condition of employment, professional association membership and whether it is obliged to pay dues flowing from membership. The Union also raised whether the Employer misapplied the Professional Geoscientists Act in determining that the grievors held positions that require Association membership. In my view, nothing in this dispute “arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement”. While it might be the case that the Union would frame its legal argument in a somewhat different manner in this fact situation from earlier cases, the essential nature of this dispute is not arbitrable.

The matter of jurisdiction has been the subject of many previous Board decisions. In Anthony et al, supra, Vice Chair Abramsky stated simply how this Board obtains jurisdiction of a matter. She said:

The decision in OPSEU (Bousquet), supra, does not assist the Union. The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights….[U]nder Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s rights.

That succinctly stated principle has been consistently applied by this Board. There is nothing in the instant matter that would cause me to stray from that principle or find that it does not apply.

Both parties relied upon Cherwonogrodzky (supra). As mentioned earlier, the Union asserted that the collective agreement has been violated because the grievors are impacted in their compensation and employment conditions. This matter was addressed by Vice Chair Gray and he found that the policy statement (which is virtually identical to that before me) is “not something that Article 2.1 expressly requires to be reasonable”. He found that the discretion implicit in the policy statement was “not one conferred by a provision of the collective agreement”. It was a “discretion conferred by one level of management upon another, concerning a matter on which the collective agreement is entirely silent”. He also found that a decision not to reimburse for payment of dues “cannot be characterized as inconsistent with compensation provision which make no provision for reimbursement”. I accept that there are some factual differences in that case to the matter before me. However, I am of the view that Vice Chair Gray’s finding that the Board was without jurisdiction because there is “no provision of the collective agreement capable of being adversely impacted by that exercise of management’s discretion”, must lead me to the same result. The factual differences are not sufficient or of the sort that would have me find that I have the jurisdiction to hear this matter.

The issue of Employer imposed mandatory membership has been considered by this Board. In Anderson, (supra) the parties put facts and submissions regarding preliminary objections as well as the merits before the Chair. In her decision, Chair Stewart dismissed the grievance and in doing so she rejected the Union’s assertion that if professional membership with associated costs was a condition of employment, the Employer is compelled to assume those costs. She specifically found that there was “no specific provision in this regard” and that an arbitrator could not, as a general rule, impose such an obligation.

For all of these reasons, the Employer’s preliminary objection is upheld and the grievance is dismissed.

Dated this 14th day of December, 2005.