GSB#2009-0167, 2009-0810

UNION#2009-0999-0011, 2009-0999-0012

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services/ Ministry of Children and Youth Services)

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

Andrew Lokan Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Ferina Murji Ministry of Government Services Counsel

HEARING

November 4, 2009, March 29, 2010, May 4, 2010.

Decision

1This decision deals with a preliminary issue raised by the Employer that these two grievances cannot be heard because they are beyond the jurisdiction of the Board. The heart of the matter is found in a letter delivered by the Employer to the Union, which is as follows:

February 28, 2009

Warren (Smokey) Thomas

100 Lesmill Road

North York, Ontario

M3B 3P8

Dear Warren (Smokey) Thomas:

I am writing to advise you that upon the ratification of the Correctional Bargaining Unit collective agreement and until further notice, the Employer will no longer be agreeing to extend the March 31^st date for pay out of any substitute days which were accumulated under Articles COR13.2 and COR13.5 as per Article COR13.7. Further, the Employer will no longer be agreeing to allow employees to receive compensating leave in lieu of pay, in accordance with Article COR8.8 and COR16.4. Compensating leave accumulated in the 2008 calendar year, which has not been used before March 31, 2009, will be paid out as per Article COR8.6 and COR16.5. Any compensating leave accumulated between January 1, 2009 and the date of ratification will be paid out concurrently with the compensating leave accumulated in the 2008 calendar year.

Sincerely,

David Logan

Assistant Deputy Minister

Employee Relations Division, HROntario

Ministry of Government Services

cc. Steve Small, Assistant Deputy Minister, MCSCS

Gilbert Tayles, Assistant Deputy Minister, MCYS

2As is evident from the letter, the Employer advised the Union that it would no longer agree to allow employees to take compensating time off (hereafter “CTO”) for overtime worked. The collective agreement provisions referred to are as follows:

ARTICLE COR8 – OVERTIME …

COR8.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave.

PART B – REGULAR PART-TIME EMPLOYEES

COR16.4 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave.

3The matter was first scheduled to be heard on November 4 and 5, 2009. Seemingly, the Employer made a demand for particulars prior to those dates that went unanswered. Accordingly, on the first day of hearing the Employer renewed its demand for particulars, submitting it was “vexed” at the Union’s failure to provide them earlier. It was agreed that the Union would make an opening statement that would stand as its particulars of the alleged breach of the collective agreement. In the course of making its opening statement, the Union referred to a number of local agreements between the parties governing CTO. The Employer took the position that it needed time to review those agreements. Although the Union expressed surprise that the letter set out above was sent without knowledge of the local agreements, in the result, the remainder of November 4 and November 5, 2009 were adjourned. Five days were then scheduled for the hearing of these matters.

4On the next hearing day, March 29, 2010, the Employer raised its preliminary issue regarding the Board’s jurisdiction. It reiterated that on the first day it had raised “quite an issue” that the Union had not provided particulars, and it confirmed the agreement that the Union’s particulars were to be found in its opening statement. Accordingly, the basis of the Employer’s objection to the Board having jurisdiction is to be found in the Union’s opening statement. I turn now to the Union’s particularization of its case.

The Union’s Particulars

5The Union said that the grievances arise from the Employer’s decision to abolish CTO. It said that CTO is a feature of the collective agreement found in articles COR8.5 and 16.4. It said that the grievances also raise article 16.1, which reads as follows:

16.1 It is agreed that all ministries may enter into local and ministry employee relations negotiations such that are appropriate as not being excluded by the provisions of the Crown Employees Collective Bargaining Act, 1993. Such negotiations shall not be subject to the mediation and arbitration procedures under the Act, provided however, that nothing shall preclude a grievance alleging a violation of the Central Collective Agreement, as provided in the said Act.

6The Union said that CTO had been a feature of local agreements and practices for over twenty years and it was at the local level that the codification of the circumstances of taking CTO has occurred. It was during the course of negotiating the current collective agreement that the February 28, 2009 letter set out above was sent. Shortly after that letter the following memorandum, dated March 18, 2009, was sent:

MEMORANDUM

TO: Superintendents

Brian O’Rourke, Offender Transportation Operations

FROM: Lori Potter

Director

Management and Operational Support Branch

DATE: March 18, 2009

SUBJECT: UPDATE: ACCRUAL OF COMPENSATING LEAVE BY EMPLOYEES IN THE CORRECTIONAL BARGAINING UNIT

During the recent OPSEU collective agreement negotiations with the Correctional Bargaining Unit, the employer provided notice that employees will no longer be able to receive compensating leave in lieu of pay for overtime.

As a result, you are now advised that all hours of compensating leave banked by employees in the correctional bargaining unit, during the 2008 calendar year and all compensating leave banked from January 1, 2009 up to March 31, 2009 will be paid out concurrently at the rate it was earned.

Approvals for the use of compensating leave that were given prior to the date of this memo will be honoured as the only exception.

Your assistance in the implementation of this direction is appreciated and should you have any questions about this change, please contact your Human Resources Advisor.

Yours truly,

Lori Potter

7A further clarification was sent in a memorandum dated October 20, 2009:

MEMORANDUM TO: Donna Keating, Superintendent

Vanier Centre for Women

Brian O’Rourke, Manager

Transportation & Communication Services

Jenny Cece, Manager

Offender Transfer Operations

FROM: Lori Potter, Director

Management and Operational Support Branch

DATE: October 20, 2009

SUBJECT: Overtime Provisions for Employees in Schedule 4

It has come to my attention that there is a need to clarify the overtime provision of the Collective Agreement for those employees in Schedule 4. Specifically, in accordance with OPSEU Collective Agreement Article COR8.4, Provincial Bailiffs and Hairdresser Instructors as Schedule 4 employees are entitled to compensating time off for working overtime.

Article COR8.5 allows the parties to elect overtime pay in lieu of compensating leave. The Employer is in agreement to provide pay in lieu for those employees who so choose.

Please share this information with your affected employees. If you have any questions, please speak to your manager and they can provide you with clarification.

Thank-you.

Lori Potter

c.c. S. Small, Assistant Deputy Minister, Adult Institutional Services

M. Conry, Regional Director, Central Region AIS

M. Welch, Management Co-chair, Ministry Employee Relations Committee

E. Almeida, Employee Co-chair, Ministry Employee Relations Committee

8Article COR8.4 referred to in the October 20, 2009 memorandum reads as follows:

COR.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7 ¼) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (1 ½) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave.

9The Union said that the letters and memoranda were not negotiated; they were unilateral directives amounting to rigid Employer rules with no exceptions. The Union said that they fly in the face of numerous local agreements. It provided copies of documentation of such agreements at the Toronto West Detention Centre, the Central North Detention Centre, the Central East Detention Centre, the Mimico Correctional Centre, the Elgin-Middlesex Detention Centre and the Hamilton-Wentworth Detention Centre.

10The Union said that on February 15, 2000 a grievance at Toronto West was settled on the basis that the past practice regarding CTO would continue. Two subsequent CTO agreements were negotiated at Toronto West. In March 2006 the agreement included a cap of 120 hours, as per past practice, CTO could not be taken in prime vacation time and the agreement was to be reviewed in 90 days. The April 2008 agreement included, inter alia, no cap; restrictions on who may approve the request, 30 days lead time and no time limitation.

11The Central North agreement included 90 days notice of any desire by either party to change the agreement.

12The Elgin-Middlesex agreement is a detailed code for CTO, which did not have a cap and was entered into on a one-year trial basis. The parties continued to adhere to the agreement after the expiry of the year.

13The agreement at Hamilton-Wentworth also was entered into on a one-year trial basis. The parties also continued to adhere to it there after the year expired.

14In the cases of Central East and Mimico, the Union relied on the minutes of Local Employee Relations Committee meetings to demonstrate the evolution of the CTO agreements at those institutions.

15The Union said it had surveyed the remaining institutions. Of those institutions contacted, all but Roy McMurtry had an established CTO practice. Roy McMurtry opened after the February 28, 2009 letter set out above. The Union identified the Toronto East Detention Centre and the Quinte Detention Centre as institutions that had written agreements. It could not locate copies of those agreements and asked the Employer for production of those documents.

16The Union said that all of these local agreements cannot be swept away with a unilateral letter. Such a fundamental change must be negotiated. The Employer is treating the local agreements with contempt by its unilateral action.

17The Union said that a blanket denial of CTO makes no sense. CTO plays an important role in allowing employees to manage their stressful jobs by permitting time off from the difficult environment in which they work. CTO is important to obtaining a work/life balance by permitting employees to deal with doctor’s appointments, childcare, eldercare, parent/teacher interviews, especially for junior employees. CTO is a limited form of flex time that has been in the workplace for many years. The Union said that the grievances raise health and safety issues.

18The Union said the Employer’s unilateral act is invalid for four reasons:

1. It is contrary to COR8.5 and COR16.4 to announce in advance that there will never be mutual agreement. To do so reads those articles out of the collective agreement without seeking to amend the collective agreement;

2. It undermines and is contrary to the whole system of local bargaining in article 16, which is reflected in many years of practice;

3. It contravenes specific settlements and local agreements;

4. It is not a reasonable and valid exercise of management rights since it admits of no discretion. There is no conceivable purpose for the Employer to say it will no longer agree to CTO. It would be open to the Employer to codify rules, but it is not open to the Employer to do away with CTO.

19By way of remedy, the Union asks for a declaration that the unilateral abolition of CTO contravenes the collective agreement. In the alternative, the Union asks for a declaration that the abolition of CTO contravenes local settlements and agreements in place.

20By way of redress, the Union asked that each affected employee be given 40 hours in their CTO bank because, to date, no CTO had been permitted.

The Submissions of the Employer on Jurisdiction

21The Employer submitted that the default arrangement of the collective agreement is to pay money for eligible overtime worked. It referred to article COR8.3.1:

8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7 ¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

22COR8.5 provides the option of CTO where the parties mutually agree. It is a permissive clause and neither party is required to agree. Accordingly, schedule 3.7 and 4.7 employees are entitled to overtime pay and may get CTO if there is mutual agreement. The Employer submitted that it is not obliged to agree. On that basis, there is no tangible right in article 8.5 and nothing for the Board to enforce. Accordingly, the Board has no jurisdiction to review the Employer’s decision to agree or not. There is no jurisdiction for the Board to enforce a provision that does not impose a positive obligation on the Employer.

23As to the first of the four positions summarized in the Union’s particulars, the Employer said that the Union overstates the content of the letter of February 28, 2009. The letter does not say there will never be agreement, only that any current agreements are withdrawn. In either event, the Board has no jurisdiction.

24As to the second position advanced by the Union, that the central decision undermines local agreements, the Employer said that the Union is seeking to put in place a process for withdrawing agreement to CTO. It submitted that the plain language of the articles do not require any such process. There is no obligation to engage in discussions. If either party does not want to agree, they cannot be made to agree.

25The Employer said that the question of agreement or non-agreement is not arbitrable; the Board has no jurisdiction. It said that local agreements are tools to implement agreement on CTO but they are not the agreement itself. The Union is attempting to use these practical, local agreements to require negotiations to withdraw from them at the local level. The Employer said that the Union’s submission that the letter undermines the system of local bargaining may not be a contravention of the collective agreement and there is no specific allegation of how the local agreements were undermined. The Employer submitted that the Union’s claim was said to be contradictory in that on the one hand it says that the parties must negotiate locally to end CTO agreements while on the other hand it says the Employer must bargain centrally, and pay a central price, to negate the clause. However, there is no price to pay because without mutual agreement on CTO, the overtime rate is paid. If the Union was of the view that the Employer’s notice affected collective agreement rights, it could have, and should have, dealt with it in negotiations. There is no obligation on the Employer to agree – there is nothing that makes the Union’s complaint arbitrable. There is no requirement that there be mutual agreement to withdraw the practice of CTO. Either party may simply elect to do so.

26As to the Union’s third point that the Employer’s actions contravene specific settlements and local agreements, the Employer submitted that its submissions regarding point number two are applicable. Further, there is no specific language in any of the local agreements purportedly contravened. The Employer submitted that the local agreements are mechanical tools for implementing agreement and nothing requires the Employer to provide local notice to abandon the practice.

27As to the Union’s fourth point that the blanket denial of CTO was not a reasonable and valid exercise of management rights because it admits of no discretion, the Employer said that there was opportunity at the bargaining table to address the issue, but there was no change to the language of article 8.5. Accordingly, the default provision of pay for overtime is operative. The Employer said it is not up to the Board to create new collective agreement language.

28As to the Union’s assertion in its particulars that there is no conceivable purpose to this decision, the Employer said cost was an issue, and, in any event, it did not need a reason to exercise its choice and the board is not entitled to review the Employer’s decision. The Employer is not required to explain its decision.

29The Employer said that the Union was not relying on specific provisions of the collective agreement to give the Board jurisdiction. It said that articles COR8.5 and COR16.4 are permissive, creating no obligation on either party. For the Board to have jurisdiction to review management actions there must be a connection to a substantive provision of the collective agreement and neither article conveys substantive rights. The Union has raised claims that articles 3.1 and 9.1 are involved, but the Employer said that no particulars have been provided of those purported breaches.

30The Employer relied on the following authorities:

OPSEU (Glenny) and Ministry of Government Services, GSB# 1983-317 (Roberts); OPSEU (Ropars) and Ministry of Government Services, GSB# 1984-400 (Jolliffe); OPSEU (Algerson et al.) and Ministry of Government Services, GSB# 1987-1942 (Watters); OPSEU (Emmett et al.) and Ministry of Health and Long-Term Care, GSB# 2001-0147 (Johnston); OPSEU (Sutherland) and Ministry of Labour, GSB# 2006-0519 (Dissanayake); OPSEU (Heike Geodhuis) and Ministry of Correctional Services, GSB# 1982-482 (Kruger); OPSEU (Union Grievance) and Ministry of Natural Resources, GSB# 2001-0352 (Fisher); OPSEU (Anthony et al.) and Ministry of Labour, GSB# 1999-1977 et al. (Abramsky); OPSEU (Dobroff et al.) and Ministry of the Environment, GSB# 2003-0905 et al. (Dissanayake); OPSEU (Giannou) and Management Board Secretariat, GSB# 1996-570 (Leighton) and (Ont C of A); OPSEU (Klonowski et al.) and Ministry of Finance, GSB# 1999-1799 (Fisher); OPSEU (Singh) and Ministry of Community Safety and Correctional Services, GSB# 2001-1070 (Abramsky); OPSEU (Belanger et al.) and Ministry of Community Safety and Correctional Services, GSB# 1999-1782 et al. (Harris); OPSEU (Waraich) and Ministry of Labour, GSB# 2003-0187 (Watters); OPSEU (Esmail) and Ministry of Education, 2002/2533 (Gray); OPSEU (Warling) and Ministry of Community Safety and Correctional Services, 2005/3765 (Grey); Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (BCCA); Canadian Staff Union and Canadian Union of Public Employees, [2006] C.L.A.D. No. 452 (Christie); Jacobs Catalytic Ltd. v. I.B.E.W. Local 353 (209), 2009 ONCA 749, 98 O.R. (3d) 677 (Ont. C of A); Hiram Walker & Sons Ltd. and Distillery Workers, Local 61 (1973), 1973 CanLII 2117 (ON LA), 3 L.A.C. (2d) 203 (Adams).

The Submissions of the Union

31The Union submitted that the effect of the February 28, 2009 letter was to sweep away numerous, detailed, local agreements and remove the clauses from the collective agreement. It is a central Employer edict that also sweeps away the MERC and LERC mandates. Manifestly, it has an adverse impact on a number of provisions of the collective agreement. The Union said that the cases dealing with the review of an exercise of management rights only require an adverse impact on other collective agreement provisions, not a breach of them. The Union reviewed the specific agreements and settlements set out in its particulars. It submitted that it is not open to the Employer to violate those agreements, arrangements and commitments. Such local agreements have been enforced by the Board.

32The Union submitted that the articles in question give the employee a right to have their request considered, not a right to have the request granted, but they have the right to be heard. The February 28, 2009 letter removes that right. The Board has the jurisdiction to hear the grievances and needs to hear evidence in order to determine them.

33The Union also submitted that the letter amounts to the promulgation of a province-wide rule, which, pursuant to the management rights clause, must be reasonable.

34The Union also made submissions on the role of particulars, given the Employer’s insistence, during the Union’s argument, that the Union was limited by its particulars, which limitation would prevent it from calling specific evidence of the negative impact of the letter on family status. The Union said that particulars are situational. That is, what is or is not sufficient depends on the circumstances. The purpose is to ensure that the Employer is not prejudiced. It said that with its opening statement and the documents it produced there is sufficient information that it can proceed with its case. The Union submitted that if the Employer’s approach is correct, the requirement on the Union would be to lay out its whole case in advance. That was said to be contrary to litigation in labour relations matters, the hallmark of which is flexibility.

35The Union also submitted that it had provided adequate particulars regarding the adverse impact of the Employer’s decision on the no-discrimination and health and safety articles. It distinguished labour relations matters from the procedural requirements of civil law suits. An adequate factual basis has been pleaded. There is no requirement for the Union to disclose its evidence or argument at this stage. The Union said that CTO is an effective tool for managing the stress of these workplaces, engaging article 9. It also submitted that the decision centrally to end CTO has a negative effect on family arrangements, such as childcare, which engages article 3, involving as it does discrimination on the basis of family status. Here, with more than 5000 employees affected, can it really be required to provide to the Employer in advance all the evidence of the impact of the alleged breach? If that is so, multiple binders of information would be required and pre-hearing processes will become more protracted. Particulars are not the same as evidence. The Union said it has provided the broad brush strokes of the kind of impact the letter will have, but it did not provide all of the evidence, which is a sufficient response.

36The Union relied upon the following authorities:

OPSEU (Union) and Ministry of Correctional Services, GSB# 0236/98 (Lee); OPSEU (Union) and Ministry of Community Safety and Correctional Services, GSB# 2004-3577 (Briggs); OPSEU (Union) and Ministry of Health, GSB# 443/95 (Kaplan); OPSEU (Patterson) and Ministry of Correctional Services, GSB# 1977/89 (Kaplan); OPSEU (Emmett) and Ministry of Health and Long-Term Care, GSB# 0147/01 (Johnston); OPSEU (Kuyntjes) and Ministry of Transportation and Communications, GSB# 513/84 (Verity); OPSEU (Boulet) and Ministry of Community and Social Services, GSB# 1189/99 (Brown); Simcoe County District School Board and OPSEU Loc. 330 (Griffith) (2002), 2002 CanLII 79036 (ON LA), 103 L.A.C. (4^th) 309 (Davie); Hoyt v. Canadian National Railway, [2006] C.H.R.D. No. 33 (Loyd); Johnstone v. Canada (Attorney General), 2007 FC 36, [2007] F.C.J. No. 43 (F.C.C.); Johnstone v. Canada (Attorney General), 2008 FCA 101, [2008] F.C.J. No. 427 (F.C.A.); IBEW and Power Stream Inc. (Bender) (2009), 186 L.A.C. (4^th) 180 (Jesin); Canadian Labour Arbitration (Brown and Beatty, Canada Law Book, 3:2100); Ontario (Liquor Control Board of Ontario) and O.L.B.E.U. (East) (2005), 2005 CanLII 94143 (ON GSB), 142 L.A.C. (4^th) 442 (Dissanayake).

The Submissions of the Employer in Reply

37The Employer objected to any facts asserted by the Union that were not in its particulars. It said that particulars are the facts the Union will rely on to establish its assertions. It said it would be improper to allow the Union to enlarge its particulars in the face of this jurisdictional motion or, differently put, to find the Board’s jurisdiction in facts not pleaded in the Union’s particulars. Particularly with respect to the discrimination claims, the Employer said that none of the facts underlying the work/life balance claim were provided and it would be a significant departure from the Board’s practice to permit evidence to be called to establish such underlying facts.

38The Employer reiterated its submissions that CTO is an alternative to the default provision that payment is made for overtime: that it is solely within the purview of the parties to agree or not agree, and such agreement or non-agreement is beyond the Board’s review. As to the effect of the local agreements, the Employer submitted that they cannot fetter the permissive nature of CTO. Agreement on the process for approving CTO does not create an obligation to grant CTO.

39The Employer also submitted that nothing in the language of articles COR8.5 or COR16.1 restricts the Employer from giving the central notice it did, nor requires notice on a local level. The local agreements were described as procedural, not substantive, and, again, the Board cannot engage in a query where the Employer has decided not to provide the CTO option.

40The Employer disagreed with the Union’s submission that the letter of February 28, 2009 amounts to an Employer rule. It said neither the option to agree to CTO nor withdrawal of such agreement is a rule. In any event, a rule promulgated under management rights is only reviewable on a standard of reasonableness if it relates to a “substantive” provision in the collective agreement.

41The Employer also submitted that CTO is not the only vehicle to accommodate employees as regards their family status, and it is not open to the Employee to pick their preferred accommodation. Further, the allegations of breaches of article 3 and 9 were not sufficiently particularized to amount to a prima facie case.

Reasons for Decision

The Jurisdiction of the Board

42The Employer relied on Glenny 317/83, Ropars 400/84 and Algerson 1942/87 as analogous situations to the present. Those cases dealt with grievances complaining that the Employer had not agreed to a compressed work week. They held that the Board had no jurisdiction to consider the Employer’s refusal because the collective agreement provisions there did not oblige the Employer to exercise a discretion. Rather, they provided “no more than a consensual framework to enable individual locals and Ministries mutually to agree to institute compressed work week arrangements.” (Glenny at pages 3 – 4). The Employer first submitted that Glenny was “on all fours” with this matter, but subsequently conceded that Glenny dealt with the outset of the compressed workweek arrangements, not the ending of such arrangements.

43Emmett et al 0147/01 also dealt with a grievance regarding a failure by the Employer to consider a compressed workweek. There the Union submitted that the case differed from the earlier authorities in that it alleged that management rights had been exercised in an irrational, unreasonable and discriminatory fashion (at page 9). Emmett is a more recent case and, unlike the earlier cases, considered the effect of the developments in the jurisprudence relating to the review of management decisions for reasonableness.

44The foundation case often relied upon regarding the Board’s jurisdiction to review decisions of management is Bousquet 0541/90 (Gorsky). In Ashley, 2001–1700 (Abramsky) the Board commented on Bousquet as follows at page 14:

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.

45The Board’s jurisprudence is summarized in Sutherland, 2006-0519 at paragraph 16 as follows:

The principle that results from the above-noted authorities (See also Re McIntosh, 3027/92 (Dissanayake) and Re Boulet, 1189/99 (Brown)) is that, for the Board to seize jurisdiction, there must be an allegation that the employer’s exercise of management rights resulted in a contravention or abridgement of a substantive right under the collective agreement.

46An “abridgement” of a substantive right in the collective agreement is no different than a provision of the collective agreement being adversely affected. The test in Bousquet set out above is still valid. This view is underscored in paragraph 19 of Sutherland:

The authorities reviewed above establish two propositions with respect to CWW arrangements. First, that article 10.1 does not impose any obligation on the employer to enter into a CWW arrangement with any employee. Second, article 10.1 “… does not provide for a discretion to be exercised by the employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et al, set out at p.7 (supra). It follows, therefore, that the employer’s decision to negotiate or not negotiate a CWW arrangement is a matter of a management right to “among other things, manage its business as set out in article 2.” (Re Emmett), (supra), at p. 11). Therefore, this Board has no jurisdiction to review the employer’s exercise of a management right, in the absence of a claim that such exercise (in this case the non-exercise) of management rights affected a right of the grievor under the collective agreement. Since the union has not made such a claim. Nor has it alleged bad faith. In the circumstances the Board lacks jurisdiction. Therefore, the employer’s first motion succeeds.

(emphasis added)

47Here the Union says that a number of rights in the collective agreement have been adversely affected, including the right to local processes and the right to at least ask for CTO. In the cases put before me, the grievor’s were at least afforded the opportunity to request a compressed workweek or CTO. In the matters before me, there are real and substantive differences between the parties that arise out of the collective agreement. It is within the Board’s jurisdiction to consider and determine those differences. The collective agreement includes provisions that cover the matters raised by the Union. The Board has the jurisdiction to decide whether those provisions encompass the rights asserted in the grievances. It is a matter of contract interpretation, a fundamental responsibility of the Board. Put differently, the dispute arises expressly or inferentially out of the collective agreement. That was not the case in Belanger, supra, where there was no article in the collective agreement dealing with the provision of uniforms to employees.

48The Employer submitted a number of times that CTO had to be mutually agreed and the decision not to agree was not reviewable. In Emmett, supra, the Board concluded it had the jurisdiction to review management’s refusal to meet with the grievors and attempt to negotiate a compressed workweek schedule. After reviewing Boulet, 1188/99; McIntosh, 3027/92 and Bousquet, 541/90, Vice Chair Johnston in Emmett characterized the standard of review as follows at page 14:

Therefore in making the decision not to sit down with the grievor’s and attempt to negotiate a CWWS, management’s motives should be reviewed in light of the standard set out above. That decision must not be motivated by bad faith or discriminatory considerations and must be based on legitimate of genuine government purposes.

The union has grieved that management has contravened the collective agreement by not managing in a fair and equitable manner and has systemically discriminated against the grievors. It was argued that the employer has improperly exercised its right to manage the workplace in that the decision to refuse to meet and negotiate a CWWS with the grievors was not motivated by good faith or legitimate or genuine government purposes and that management’s decision resulted in a contravention of several articles of the collective agreement.

At this point in the proceedings, I do not have any information regarding management’s decision-making process in this case. I do not know why there has been a refusal to sit down with this particular group of employees. Until I hear from the employer on these issues, I have no way of assessing the validity of the union’s assertions. These are issues that I have the jurisdiction to hear and determine.

(emphasis added)

49Vice Chair Johnston also relied on the following excerpt from United Parcel Service and Teamsters Union (1981), 1981 CanLII 4389 (ON LA), 29 L.A.C. (2d) 202 (Burkett). Arbitrator Burkett said the following at page 213:

In our view the employer’s decision making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management, they do so in the knowledge that management’s decisions in these areas will be made in management’s self-interest, may adversely affect individual employees, and/or may not impact on all employees equally. However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described. If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective agreement.

(emphasis added)

50All of these cases are cited in Emmett from the decision of Vice-Chair Brown in Boulet, 1189/99.At page 12 in Boulet Vice Chair Brown said the following about the scope of the Board’s jurisdiction:

How does the ruling in Bousquet apply to the facts at hand? As noted by counsel for the union, if the employer has violated the collective agreement by failing to post jobs, the grievors” rights under article 6 are affected in the sense that they would not have lost their employment if such jobs had been posted and awarded to them. Using the language of Bousquet, I conclude management’s determination of ODSP workloads would be open to challenge if it was not “genuine” in the sense that it was not “related to management of the undertaking”. The standard to be applied is not whether the decision was “correct”, but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.

51I agree with these analyses. The Board has the jurisdiction to hear and decide the merits of these grievances.

Sufficiency of the Union’s Particulars

52The Board’s jurisprudence includes a number of cases relating to the provision of particulars. What is required are particulars of the alleged breach of the collective agreement. An instructive review of examples of adequate and inadequate particulars is to be found in Singh, 2001/1070. Those claims that were allowed to proceed had particularized the alleged breaches. Harassment grievances are a case in point. Mr. Singh’s harassment grievance of September 20, 2001 was dismissed by Vice Chair Abramsky for the following reasons:

In my view, there were no particulars provided in regard to this grievance. There is a general claim of harassment by Mr. Richard on August 2, 2001 – but no specifics. What harassment? When? Where? The Employer is left to guess what this grievance is about. The grievor had ample time to provide the required particulars but failed to do so. The grievance is dismissed.

53Vice Chair Fisher said the following in Klonowski, 1799/99:

In essence I expected that the Union would respond in a fashion as follows:

Allegation One; John Employee, who worked out of the Toronto Office and lived at 123 Anywhere Street, Brampton at all material times did on, January 4, 2001, proceed from his house to his first call at 123 Edward St Toronto, a distance of 22 km, whereas he should have first gone to the Toronto Office and then to the Edwards Street location, which was only a distance of 8 km from the Toronto office. He was permitted by manager to do so and in fact was paid by the Ministry for the 22 km.

Providing particulars in this fashion would have allowed the Ministry to respond to each incident in clear and concise fashion. It also would have made the hearing of this case proceed in an efficient manner because everybody would know before the hearing exactly what the case was about.

With respect to remedy, I can see no practical remedy except to dismiss the grievance. The Union has had ample time to do the necessary legwork; giving it more time would make simply a joke out of the December 19^th order. Moreover claims of discrimination should not be thrown around with the hope that the evidence will come into place as the case proceeds, rather the party making such an allegation should have its basic factual research in place at least by the time the case is scheduled for a hearing. (emphasis added)

54The purpose of particulars is to permit the employer to know which facts are claimed to be part of the alleged breach of the collective agreement. Particulars do not include evidence nor do they include argument. In harassment and discrimination matters it is only fair to individually itemize the various actions alleged to be part of the course of conduct that amounts to the alleged breach.

55Esmail, 2002-2533, is an Order of the Board issued by Vice Chair Gray. The Order is not contextualized, and it does not suggest that it lays down a procedure that is required in all cases. The requirement of particulars is situational. It is not always, or perhaps even often, that a party or parties are to be required to lay out their entire cases in advance.

56Here, the act leading to the allegation that there has been a breach of the collective agreement is, at its most basic, the sending of the letter of February 28, 2009. The required facts are evident on the face of the letter. The Union has explained in its particulars which articles of the collective agreement are impacted and provided facts relating to the local agreements and settlements that it says are affected. It points to two internal memoranda of the Employer as facts related to the alleged breach. It has challenged the bona fides of the management decision on the basis of the negative impact it will have on work/life balance and listed the types of impact. In my view, there are sufficient facts asserted in the particulars to draw the Employer’s attention to the breach alleged in order to permit it to prepare its defence. The Employer knows what this case is about. In the unlikely event that it is taken by surprise at some point, options are available to prevent prejudice. Indeed, counsel for the Union has indicated his willingness to keep counsel for the Employer apprised of the evidence he expects to call as the case proceeds.

57Accordingly, the preliminary objections of the Employer are dismissed.