GSB#2007-3497

UNION#2007-0406-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nadeau et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Adrienne Liang Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Len Hatzis Ministry of Government Services Counsel

HEARING

February 26, 2009.

Decision

1This decision concerns the employer’s preliminary objection that the union is seeking to improperly expand the scope of the grievance before me and that, in any event, the facts alleged by the union, even if true, would not establish a breach of the collective agreement.

2Despite union counsel’s very thorough argument in defence of the grievance, at the hearing of these preliminary objections I ruled orally that certain of the claims that the union sought to pursue in these proceedings were beyond the scope of the grievance referred to arbitration, and that the remaining allegations would not, if true, establish a breach of the collective agreement. Accordingly, for reasons that follow, I dismissed the grievance without prejudice to any right the union may have to pursue the matters that I had found to be beyond the scope of the grievance before me.

3On the first day of hearing in November 2008, the parties agreed that Article 22.16 applies to this grievance, whatever the scope of the grievance may be. Articles 22.16.2 and 22.16.7 provide, in part:

22.16.2 … When determining the grievance by arbitration, the mediator/ arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.

The parties did not then and do not now agree that my decision in this matter will have precedential value. In the circumstances, I do not intend to catalogue and analyse in these brief reasons the many decisions and awards to which counsel referred in their arguments on the preliminary objections. Nor will I deal with the alternate arguments about whether either of the claims that I have found to be beyond the scope of the grievance before me alleges a breach of the collective agreement about which these grievors have standing to complain. Statements of fact in the reasons that follow reflect what the union alleged, and do not constitute findings of fact.

4The grievors previously worked for various lengths of time in a building owned by the employer on Tremblay Road in Ottawa, at which they always had free parking available. In 2006 the employer announced that at some future time the grievors’ work would be moved to leased premises on Preston Street. They were told that there was no free parking at that building, and that the building’s landlord then charged $150 per month for parking underneath the building. In November 2007, when it became clear that the move would occur in early 2008, the grievors filed this grievance alleging that the employer was “failing past practice in providing free parking” to employees moving from Tremblay Road to Preston Street.

5A stage 2 grievance meeting was held at some time before the move. Thereafter the grievance was referred to the GSB for arbitration in late February 2008, and scheduled for hearing on November 26, 2008. In response to a request for particulars, by letter dated November 24, 2008, union counsel alleged

a) that the grievors never expected that the Ministry would deviate from its long-standing practice by unilaterally taking away free office parking and instead “impose” a significant financial cost on the grievors;

b) that MTO employees at some other locations in the Province have free parking or pay considerably less than $150 per month for parking;

c) that the neighbourhood around the new building is unsafe, and while less expensive paid parking is available at outdoor lots in the vicinity of the new building they have been known to be the subject of vehicle break-ins and other attacks, so the grievors had safety concerns about not having free parking in the building; and,

d) that since the move management has given some employees, other than the grievors, the use of Ministry vehicles to drive to and from work and has helped another group of employees, other than the grievors, negotiate an allegedly preferential parking arrangement with the landlord.

These claims were further particularlized in the letter, at the November hearing and afterwards in response to my order of December 10, 2008.

6Employer counsel argued that two of these claims are beyond the scope of the grievance referred to this Board for arbitration: the union’s claim that failure to provide free parking breached the health and safety article of the collective agreement (Article 9.1) and its claim that post-move differential treatment of Preston Road employees breached the collective agreement. I agree.

7I agree with union counsel that in assessing the scope of a grievance one should not be overly technical, nor (unless the collective agreement requires it) limit the union’s legal arguments in support of a grievance to the legal characterizations or collective agreement provisions expressly identified in the grievance form. Grievance forms often describe grievances tersely in non-legal terms, and are not expected to serve the same function as pleadings in a civil action. The collective agreement, however, provides for a grievance process in which the employer has the opportunity to learn, and the union has the opportunity and obligation to disclose, the real substance of the claim being pursued. This enables discussion, and facilitates attempts to resolve or narrow the issues raised. This is not a mere formality. The opportunity to learn about and discuss the substance of a grievance before it is referred to arbitration is a substantive and important right that should not be denied by permitting the union to expand grievance so as to add at arbitration a substantially different claim from the one referred to arbitration. It is open to the employer to waive that right, of course, and to have the Board deal in one proceeding with the original and subsequent claims when the latter might otherwise become the subject of other proceedings. It is not obliged to do so, however, and chose not to do so here.

8It is sometimes difficult to draw the line between something that merely elaborates the argument in support of an existing grievance and something that asserts a “new” claim, one that is different in substance from the claim in the existing grievance. In this case, I was persuaded that the claims in question were different in substance.

9The substance of the claim set out in the grievance is that the employer has failed to maintain a condition that existed in the past – the availability of free parking at the grievor’s workplace. The safety claim is different in substance. It rests on the allegation that the grievor’s new workplace is in an unsafe neighbourhood. That was not alleged in the grievance. The parties agree that it was not alleged or discussed in any subsequent grievance meeting at which this grievance was discussed.

10The union says that there was an informal discussion in November 2007 between one or more of the grievors and their manager, in which things were said and concerns were expressed about how safe it might be to park above ground near the new building or, indeed, to walk in the vicinity of the building. That was not a grievance meeting. The fact that the concerns then expressed were not expressed in the grievance form nor in any subsequent grievance meeting only adds weight to the view that they were not part of this grievance.

11The alleged differential treatment of Preston Street employees with respect to parking had not occurred, and the grievors do not allege having had notice that it would occur, when this grievance was filed. Thus, a claim that such conduct violated the collective agreement could not sensibly be said to have formed part of this grievance. I recognize the attempt in the union’s particulars to characterize the alleged treatment of other employees as evidence of the reasonableness of the grievor’s safety concerns. Without accepting that the allegations have that probative value, I note that the issue addressed here is whether a claim for relief based on the alleged differential treatment itself is properly within the scope of the grievance. If the safety claim were properly before me, and if the subsequent differential treatment were found arguably probative with respect to that claim, then evidence about it would be admissible for that limited purpose.

12Turning to the claims that are properly part of the grievance, the union does not allege that the grievors are required to drive their own vehicles to work, nor that the new workplace is inaccessible except by private automobile. Parking fees are not “imposed” on the grievors. The union does not allege that any provision of the collective agreement expressly obliges the employer to provide the grievors with parking or speaks about parking in any way. The grievance form alleged that the employer was “failing past practice in providing free parking.” There was a discussion during the grievance process about the cost of parking at or near other MTO facilities. In that regard the parties agree for purposes of these preliminary issues that the landlord at Preston Street currently charges over $150 per month for parking. They also agree for that purpose that MTO employees across the province in some cases pay more and in some cases pay less than that to park at their workplaces: workers in Sault Ste. Marie pay $40 per month, those in St. Catharines pay between $30 and $69 per month, the cost at some MTO offices in Toronto is more than at the Preston Street location, and parking at the Downsview MTO office is free.

13This Board’s 1981 decision in Board File 455/80 dealt extensively with the very issue raised by this grievance. The representative grievor there had been working at a location at which parking was free. His employment was moved to another location at which parking was not free. He grieved that he should be provided with free parking at the new location. No provision of the collective agreement then required that the employer provide parking or spoke in any way about parking. The Board dismissed the grievance, rejecting the argument that an implied obligation to act fairly in the administration of the collective agreement obliged the employer provide the grievor with free parking at his new work location.

14The situation here is the same. The union has not since negotiated the matter of parking and its costs into the collective agreement. At all relevant times no provision of the applicable collective agreement required that the employer provide parking or spoke in any way about parking.

15Union counsel argued valiantly that the law had evolved since the 1981 decision. She acknowledged, correctly, that in the current state of the law no claim can be based on an allegedly arbitrary or bad faith exercise of management rights unless the conduct in question affects rights under some other, substantive provision of the collective agreement. She argued that the substantive provision affected here is the wage schedule, since the substantial cost of parking at the new location reduces the wages left over after payment for parking. The decisions she cited in support of that proposition, however, concerned the exercise by the employer of a discretion about wage rates that was expressly set out in the collective agreement.

16In decisions to which reference was made in argument, this and other Vice-Chairs have noted that when a discretion is expressly provided for by the collective agreement language negotiated by the parties, one may fairly imply a that the discretion is not to be exercised in an arbitrary, capricious or bad faith manner. Here no exercise of an express discretion was involved. There is no legal basis for finding in this collective agreement an implied employer obligation to act reasonably or “fairly” in determining whether to provide free parking.

17The fact that the employer had previously provided something for which the collective agreement made no provision was not, without more, a representation that it would continue to do so. The alleged “past practice,” either alone or in conjunction with the fact that the cost of parking varies among MTO workplaces, cannot be the basis of a claim that the employer has breached the collective agreement.

18For all of the above reasons, the grievance was dismissed without prejudice to any right the union may have to initiate and pursue a claim arising out of the matters that I found were beyond the scope of the grievance.