GSB#2009-1656, 2009-1657

UNION#2009-0502-0003, 2009-0546-0010

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 -

Ministry of Community and Social Services

Employer

and

Association of Management, Administrative and Professional

Third Party

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

FOR THE THIRD

PARTY

Richard Blair

Ryder Wright Blair & Holmes LLP

Counsel

C. Michael Mitchell

Sack Goldblatt Mitchell LLP

Counsel

FOR THE EMPLOYER

Len Hatzis

Ministry of Government Services

Counsel

HEARING

June 29, 2010

DECISION

1There are two grievances before me, both dated March 26, 2009. The grievances relate to the positions of Policy Analyst - Junior and Senior Procurement Analyst, positions in the Ministry of Community and Social Services which OPSEU claims fall within its bargaining unit. The common text of the grievances states as follows:

The Employer is in violation of Article 1, specifically, but not exclusively, Article 1.8 of the collective agreement and any applicable employment legislation, by not including the newly created position of [Policy Analyst – Junior, Ontario Works Branch/Senior Procurement Analyst, FCMS Project, I&IT Cluster] in the OPSEU bargaining unit.

Article 1 of the Collective Agreement, the recognition clause, refers in Article 1.1 to:

… a bargaining unit consisting of all employees employed within the two bargaining units (Unified and Correctional) which are the successor units to the six bargaining units as described by the Lieutenant Governor in Council in OIC 243/94 dated February 3, 1994, in the Tripartite Agreement between the Crown, OPSEU and AMAPCEO dated April 21, 1995, plus those employees included in the six bargaining units by the agreement of the Crown and OPSEU from February 3, 1994 to December 31, 2008.

Article 1.8 provides that:

For clarity, the Employer agrees that any new positions or any new classifications of employees not excluded pursuant to Article 1.1, Article UN 1.1 and Article COR 1.1 will be placed in a bargaining unit represented by OPSEU

OPSEU’s view is that the positions in issue are properly placed within OPSEU’s bargaining unit.

2It is the Employer’s view that both of these positions properly fall within the AMAPCEO bargaining unit. It is the Employer’s further position that the hearing of this grievance should defer to the jurisdictional dispute resolution process before the Ontario Labour Relations Board, whereby that Board would determine the appropriate bargaining unit placement of the positions in issue. An application under section 99 of the Labour Relations Act in relation to each of these positions was filed by the Employer on June 22, 2010.

3AMAPCEO appeared in this proceeding solely for the purpose of making submissions on the Employer’s deferral motion, expressing its position that it did not attorn to this Board’s jurisdiction to resolve this dispute as it relates to AMAPCEO’s rights under its Collective Agreement. AMAPCEO’s view is that the positions fall within its bargaining unit. It concurs with the Employer that the appropriate forum for the resolution of this dispute is at the Ontario Labour Relations Board.

4OPSEU opposes the motion for deferral, noting that deferral is not mandatory, and submits that I should exercise my discretion in favour of the resolution of this matter by the Grievance Settlement Board. Mr. Blair noted that pursuant to the provisions of the Crown Employees Collective Bargaining Act, this Board has been established to resolve grievances between OPSEU and the Employer, and submitted that it is most appropriate for this Board, with its expertise in OPS labour relations, to resolve these grievances, grievances in which new language will need to be interpreted and grievances that are viewed by OPSEU as relating to a matter of critical significance. Mr. Blair referred me to the following awards in which arbitrators have determined that there would be no deferral to the jurisdictional dispute process at the Ontario Labour Relations Board: Re Robertson-Yates Corp. Ltd. and United Brotherhood of Carpenters & Joiners of America, Local 18 (1972), 1972 CanLII 2031 (ON LA), 1 L.A.C. (2d) 91 (Weatherill); Re Boise Cascade Canada Ltd. and C.P.U., Local 92 (1990), 1990 CanLII 12912 (ON LA), 17 L.A.C. (4th) 347 (Palmer); Re Sudbury District Health Unit and ONA [1995] O.L.A.A. No. 828 (Brown). Mr. Blair further noted that the jurisdiction of the Board pursuant to the provisions of the Crown Employees Collective Bargaining Act to resolve disputes arising under collective agreements between Crown employers and their bargaining agents, includes the Collective Agreement between this Employer and AMAPCEO. In that regard, Mr. Blair referred me to MBS & AMAPCEO (GSB 1357/00) (Knopf), a case involving a grievance filed by AMAPCEO in relation to a tag end unit, in which OPSEU sought third party status, with such status being opposed by AMAPCEO. The decision deals only with that issue but included consideration of whether the granting of status meant that OPSEU would be bound by the ruling. In support of the position that he was advancing, Mr. Blair referred me to paragraph 32 of the decision, which states as follows;

It is not necessary in this case to resolve the dispute about whether third parties can or should be bound by the arbitration constituted under the original grievance. In the case at hand, there is a compelling reason to consider that OPSEU must be bound by these proceedings. This case has been launched by a grievance at the Grievance Settlement Board. Unlike arbitrators sitting in private arbitrations in the cases cited above, a Vice-Chairman of a statutory tribunal is hearing this case. This means that a decision rendered in this case has a profound impact not only on the direct litigants in these proceedings, but upon crown employees as a whole.

[The decision then goes on to refer to and quote from Go Transit and ATU (Blake), (1276/87) (Shime) a decision of the former Chair of this Board that endorses the principle of adjudicative consistency at the Grievance Settlement Board and will be referred to infra.]

As one entity, a decision by the Grievance Settlement Board through a Vice-Chair is a decision affecting this whole labour relations community. Therefore it may not be necessary to make OPSEU’s participation contingent upon its agreeing to be bound by the result. It may be that OPSEU is practically and legally bound by the result in accordance with the Blake decision whether it participates in these proceedings or not. Therefore, in accordance with the principles in the Blake decision and consistent with concepts set out in [the] Stelco, Western Bakeries and City of Toronto cases, supra, I conclude that there is jurisdiction to order OPSEU to be bound by the result in this proceeding as a condition to their participation. Given the circumstances of this case, it is appropritate to do so. However, to avoid any jurisdictional uncertainty in the future, since OPSEU has sought to obtain status in these proceedings, it behooves OPSEU to also agree to be bound by the result. Accordingly, I order that OPSEU may intervene in these proceedings as a party upon its delivery to MBS, AMAPCEO and PEGO of a written undertaking and an agreement that OPSEU will be bound by the decision in this matter in the same manner and to the same extent that the other parties are bound.

5Mr. Blair suggested a similar outcome in this case, arguing that a decision by the Ontario Labour Relations Board may not be entirely dispositive of the matter, but that a decision of the Grievance Settlement Board would be.

6Mr. Hatzis and Mr. Mitchell referred me to some of the many cases in which arbitrators have deferred to the jurisdiction of the Ontario Labour Relations Board as an arbiter of jurisdictional disputes, including decisions of that Board acting in its capacity as an arbitration board dealing with grievances that have arisen in the construction industry. As well, both Mr. Hatzis and Mr. Mitchell emphasized the fact that this issue has been addressed by the Grievance Settlement Board in Ministry of Community and Social Services and OPSEU 2004-0911 (Stephens). That case involved a grievance filed by OPSEU in connection with a position that had been posted in the AMAPCEO bargaining unit. As in the case here, a jurisdictional dispute had been filed with the Ontario Labour Relations Board and the issue was whether the Board should defer to that process. The Board concluded that it was appropriate to defer, stating in paragraph 12:

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.

7Earlier in this decision I made reference to what is frequently referred to as the “Blake” principle, that is, the principle of consistency that discourages the re-litigation of the same issue. There is, in this instance, considerable force to the application of that principle. No factual situations will be identical, however the circumstances before Vice Chair Stephens are clearly analogous. While, at issue here is new language in the OPSEU collective agreement, it is readily apparent that what has arisen here is a jurisdictional dispute. The Board has ruled that such disputes are more properly disposed of pursuant to the process that was specifically designed to deal with such disputes, established by s. 99 of the Labour Relations Act, to be dealt with by the Ontario Labour Relations Board.

8In any event, I am unable to accept Mr. Blair’s submission that the decision of this Board referred to in paragraph 4 contemplates a process that would be satisfactory in terms of addressing the advantage of the process under s. 99 of the Labour Relations Act, in that parallel proceedings could be avoided. In that case, there was an intervention by OPSEU in a grievance filed by AMAPCEO, with the ultimate ruling that all parties would be bound by the Board’s decision. However, AMAPCEO has not intervened in this proceeding, except for the limited purpose of making submissions on the preliminary issue. No jurisdictional dispute application had been filed in that case, which involved an unusual factual scenario. Compelling AMAPCEO to accept the result in connection with the determination of the OPSEU grievance, whether it participates in the proceeding before me or not, where there is access to a process specifically designed to deal with such disputes, and where that process has been commenced, is not, in my view, the appropriate approach to the matter before me.

9Two of the cases that Mr. Blair relies on are, in my view, readily distinguishable from the circumstances before me. As Mr. Hatzis pointed out, in Boise Cascade no other union was claiming the work in issue, and in Sudbury District Health Unit, supra, no jurisdictional dispute application had been filed with the Ontario Labour Relations Board. In Robertson-Yates, supra, an application had been filed, however the majority of the arbitration board did not find that to be a barrier, noting that the union was entitled to file a grievance and seek a remedy. This is, however, a case decided some time ago, and it does appear that the more recent authorities, a number of which were provided to me by Mr. Hatzis and Mr. Mitchell, give more weight to the concerns arising from the prospect of parallel proceedings and the appropriateness of deferring to a process specifically designed to resolve jurisdictional disputes. As noted in Re Waste Management of Canada Corp. & Labourers’ International Union of North America (2007), 162 L.A.C. (4th) 282 (Nairn) at paragraph 17, the Ontario Labour Relations Board has “… the multi-party, overriding jurisdiction to inquire into and make any orders that may be appropriate in order to resolve overlapping and competing union jurisdictional claims”.

10There was reference to the fact that many of these kinds of disputes involving these parties have been and continue to be dealt with by the Ontario Labour Relations Board. While that is a matter of some weight, the significant aspect of the matter is that the matters raised by these grievances are clearly jurisdictional disputes. Here, where applications have been filed before the Ontario Labour Relations Board to have these jurisdictional disputes resolved in a process that was designed to deal with precisely this kind of dispute, I am compelled to conclude that I should defer to that forum. I would add that the fact that there are a large number of these disputes is not a factor in my decision to defer. This Board exists to resolve disputes arising under collective agreements between the parties that it serves, as Mr. Blair has noted in his submissions. However, in this instance, and in accordance with the decision of Vice Chair Stephens regarding this issue, it is my view that the Ontario Labour Relations Board is the more appropriate forum for these matters.

11Accordingly, this proceeding is adjourned. I retain jurisdiction to deal with any aspects of these matters as necessary, following the resolution of the jurisdictional disputes by the Ontario Labour Relations Board.