GSB# 2004-0911
UNION# 2004-0323-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
- and -
Association of Management, Administrative and Professional Crown Employees of Ontario
Intervener
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Donald K. Eady Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors
FOR THE EMPLOYER
Kelly A. Burke Senior Counsel Management Board Secretariat
FOR THE INTERVENER
Lyle S.R. Kanee Sack Goldblatt Mitchell Barristers and Solicitors
HEARING
December 15, 2004.
Decision
This case involves a grievance filed by OPSEU with respect to the position of Coordinator of Pharmacy Services, a position that has been posted by the employer in the AMAPCEO bargaining unit. At the outset of the hearing the parties advised that a jurisdictional dispute has been filed with the Ontario Labour Relations Board with respect to the position. The parties came before me to seek a ruling on whether it would be proper for me to adjourn this arbitration and defer to the outcome of the OLRB proceedings.
Ruling on AMAPCEO Participation
Prior to ruling on the issue of deferring to the OLRB, it was necessary to rule on a request made by AMAPCEO to make submissions on the issue. OPSEU objected to AMAPCEO participating in the hearing in any capacity unless it was joined as a full party, bound to the outcome of my ruling on the issue of deferring to the OLRB, and, if I ruled in favour of proceeding, bound by my ruling on the merits. After hearing from all parties, including AMAPCEO, I ruled that I would permit AMAPCEO to participate in the hearing in order to address the issue of deferring to the OLRB, but would not require a prior undertaking that it would be bound by any eventual ruling I might make on the merits of this case. At the time, I indicated to the parties that I would include my reasons in the award. Those reasons were as follows:
The issue at hand is whether AMAPCEO can participate in these proceedings for the limited purposes of addressing the motion that this board should defer to the OLRB in the jurisdictional matter.
The parties have provided no binding authority that is directly on point. The decision of Vice-Chair Knopf, [AMAPCEO and MBS (2002) G.S.B. 1357/00] as I understand it, deals with the question of the participation of OPSEU with respect to the merits of an arbitration, not just on a limited preliminary issue of adjournment and deferral.
Thus it appears that my ruling is a question of what is the best procedure in this instance, i.e. a procedural matter that is within the power of this board to determine as it sees fit given considerations of the potential for prejudice, multiplicity of hearings, natural justice and all of the other elements that make up good hearing procedure.
After reflecting on the matter, it is my view that AMAPCEO should be permitted to make its submissions on the issue of deferring to the OLRB, for the following reasons:
AMAPCEO is clearly an interested party to the overall issue raised by the grievance and would, if it sought intervener status, be considered an appropriate party to the merits of the case – without commenting at this stage about the conditions the board might require for such participation – and this status is not questioned by either of the other two parties. Thus this decision cannot be used as a precedent to permit a wide range of parties to make submissions on preliminary matters without having a clear interest in the case.
If I rule that it would not be appropriate to defer to the OLRB proceeding, the parties can then address the issue of AMAPCEO’s further participation, if it seeks standing, with respect to the merits of the case.
I can see no prejudice to the other two parties in adopting such a procedure that would outweigh the value of allowing an interested party to have a say on the preliminary matter.
Given AMAPCEO’s position as an interested party, it is my view that the board will gain by having the benefit of its perspective and submissions in making an appropriate ruling on the preliminary matter.
Deferral to the OLRB - Employer Submissions
The employer submitted that the jurisdictional dispute with respect to the position of Coordinator of Pharmacy Services should proceed to the OLRB for determination. The employer takes that position that the position in question is AMAPCEO work, involving a new job with new and enhanced responsibilities that fall within the AMAPCEO bargaining unit. The position was created in recognition of the need for more managerial skills at the professional level. A pharmacist in the former OSPEU position applied and was successful, but the OSPEU position remains vacant and has not been eliminated.
The employer asserted that the OLRB has exclusive jurisdiction over jurisdictional disputes between unions, as set out in s.99 and s.114 of the Ontario Labour Relations Act. If there was not exclusive jurisdiction, then the door would be open for both OPSEU and AMAPCEO to pursue grievances under their respective collective agreements, leading to the possibility of conflicting decisions. Even if the GSB had some concurrent jurisdiction in the area, it would be proper to defer to the OLRB, given that board’s expertise.
The employer submitted the following authorities: AMAPCEO and MBS, (Knopf), supra; Remembrance Services Inc., [2001] O.J. No. 2247 (Ont. Div. Ct.) Bradford et. al. and Ministry of Transportation (2000) P.S.G.B. (Leighton); Re Council of Printing Industries of Canada (Southam-Murray) (1983), 1983 CanLII 4864 (ON LA), 12 L.A.C. (3d) 1 (Brandt).
AMAPCEO’s SUBMISSIONS
AMAPCEO supports the position advanced by the employer, asserting that in a multi-party dispute it is appropriate to resolve the matter before the OLRB, which has jurisdiction over all parties, and which can avoid multiplicity of proceedings and ensure compliance. The present board is limited to the collective agreement under which the grievance has been filed, i.e. the OPSEU collective agreement, which is one reason why the Act stipulates that the OLRB should have jurisdiction in such matters. The factors considered by the OLRB are broader than those restricted to a single collective agreement, including the relationships between parties, levels of skill and training, business efficiency and so on. It is not appropriate for OPSEU to insist that AMAPCEO be bound to a process that involves only the interpretation of the OPSEU collective agreement, when the OLRB provides an appropriate forum for the consideration of the dispute from a wider perspective.
AMAPCEO relied on the following authorities: Re Kawartha Pine Ridge District School Board (2001), 2001 CanLII 62055 (ON LA), 101 L.A.C. (4th) 218 (O.V. Gray); E.S. Fox Limited, [1994] OLRB Rep. May 543; Robertson Yates Corporation Limited, [1992] OLRB Rep. April 507; PCL Constructors Eastern Inc., [1991] OLRB Rep. March 354; Jeffrey Sack, C. Michael Mitchell and Sandy Price, Ontario Labour Relations Board, Law and Practice, Third Edition, Vol. 1, Ch. 7, pp. 7.23 to 7.33.
UNION SUBMISSIONS
OPSEU submits that I should not defer to the OLRB, but that I should hear the grievance submitted. The union argues that the employer was aware of the fact that OPSEU was asserting a right to the disputed position, at the latest, when the grievance was filed in April 2004. However, the application to the OLRB was filed the day before the arbitration hearing. OPSEU has a right to have a jurisdictional grievance heard in an expeditious manner. The OLRB does not have exclusive jurisdiction, which means that the GSB has discretion to hear the matter rather than defer, and should not exercise that discretion in favour of a party that filed a jurisdictional dispute the day before the arbitration hearing. OPSEU asserts that a vice-chair of the GSB has the authority to determine practice and procedure under s. 48 of the Crown Employees Collective Bargaining Act. Section 99 of the Ontario Labour Relations Act is not mandatory, nor does it grant exclusive jurisdiction. The section uses the permissive “may”, as opposed to more mandatory or exclusive language. OPSEU also points out that under s. 99(3) of the Labour Relations Act, the OLRB is not required to hold a hearing and OPSEU has a right to be concerned that the matter in dispute be heard, and it should not be denied the right to such a hearing and a final resolution of the issues raised.
OPSEU also asserts that the nature of the dispute is not jurisdictional in a typical sense, because the work in question was always OPSEU work and ought to continue to be OPSEU work. OPSEU argues that the GSB is the appropriate forum for the dispute because it is expert in matters related to the Ontario public service, while the OLRB is expert in other areas, mainly in the construction industry.
DECISION
After giving careful consideration to the submissions, I have concluded that it would be most appropriate to defer to the jurisdiction of the OLRB in the jurisdictional dispute filed by the employer. This approach makes the most sense since, to do otherwise, risks that the issue at stake, i.e. under which collective agreement the Coordinator of Pharmacy Services properly falls, might be considered in two different arbitrations under each of the collective agreements, with the additional risk of conflicting or contradictory decisions.
While OPSEU might rightly feel that the employer’s application to the OLRB came at a late date – within days of the hearing – in my view, that fact does not impact on the issue I have to decide. There is no question in my mind that the dispute between the parties is a jurisdictional dispute over a position that involves both OPSEU and AMAPCEO, as well as the employer. OPSEU’s assertion that the work in question was “always OPSEU work” forms part of the dispute, but does not distinguish this case from other jurisdictional disputes, nor does it lead me to conclude that the issue would best be determined under the OPSEU collective agreement alone. While it is true that the GSB is expert in matters arising from the collective agreements of the various bargaining agents representing employees of the OPS, it does not follow that the GSB is also the best forum for resolving jurisdictional disputes. Rather, the GSB is in the same position in jurisdictional disputes as a board of arbitration under the OLRA, in that any arbitration of a jurisdictional dispute under one collective agreement leaves open the possibility of multiple, and possibly conflicting, arbitrations under the collective agreements of the other union or unions.
Given all of the above, the employer’s motion is upheld. It is my view that this arbitration should be adjourned, and the jurisdictional issue should be determined and resolved through the OLRB process.
Dated at Toronto, this 22nd day of February, 2005.