GSB#2008-3496

UNION#2008-0205-0160

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Black)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Alick Ryder Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jamie Kneen Ministry of Government Services Labour Practice Group Counsel

HEARING

June 22, 2011.

Decision

1The employer, by way of a preliminary motion, has asked that the grievance in this matter be dismissed by the Board, without a hearing on the merits. It asserts that the union’s allegations, even if accepted as true and provable, fail to disclose a prima facie case of any violation of the collective agreement.

2For the purposes of the employer’s motion, the following particulars are assumed to be both true and provable:

i. Ms. Black [the grievor] was hired on contract by the Ministry of the Attorney General as a Court Reporter at the Hamilton Court in February 1999.

ii. Ms. Black’s direct supervisor was Betty MacDonald.

iii. Ms. Black worked primarily in Family Court for the first three years on the job. However, she had started receiving a variety of Superior and Ontario Court of Justice Criminal trials.

iv. She received little training from the employer in this position.

v. Ms. Black received no negative feedback from Ms. MacDonald with respect to her work performance.

vi. At some point in late 2001 or early 2002, Judy Mann assumed the role of Supervisor of Court Operations.

vii. Within one year of Ms. Mann assuming supervision of Ms. Black, Ms. Black stopped receiving trial work. Instead she was assigned primarily to “Bail” and “Set Date” Courts.

viii. From 2002, Ms. Black approached Ms. Mann at least once per month requesting to be put on trials and asking why she was not receiving trial work. Ms. Mann responded by stating that the employer could assign Ms. Black wherever it wanted.

ix. Ms. Black also approached her group leader, Linda Laidman about assignment to trials. Ms. Laidman referred Ms. Black to Ms. Mann.

x. [deleted on consent of the parties]

xi. [deleted on consent of the parties]

xii. Ms. Black went on a medical leave from approximately April 2007 to August 2007 and from April 2008 to September 2008. Ms. Black returned to work in approximately mid-September 2008.

xiii. Both Ms. Mann and Ms. Laidman had left the Ministry by the time Ms. Black had returned to work.

xiv. Ms Black approached her new Group Leader, Deb Sine, in September 2008 about being assigned to trials. Ms. Sine informed Ms. Black that she had been instructed by Ms. Mann and Ms. Laidman that Ms. Black was not to be assigned to any Judge’s court. Ms. Sine stated that she had been told that there was a letter from a Judge on Ms. Black’s file to this effect.

xv. Ms. Black became quite upset as she had never been informed of the existence of any such letter. Ms. Black contacted the new supervisor, Bernadette Flis.

xvi. Ms. Flis stated she was not aware of any such letter on file. This information was confirmed by Human Resources. In fact, there are no disciplinary letters on Ms. Black’s file.

xvii. Ms. Black filed a grievance on December 18, 2008 after receiving the confirmation that there was not a letter on her file.

xviii. The preparation of transcripts is bargaining unit work.

xix. Transcript work flows mainly from the assignment to trials.

xx. The actions of Ms. Mann resulted in Ms. Black receiving significantly less trial work, and therefore, less transcription work than she was entitled to.

xxi. Ms. Mann acted in an arbitrary or bad faith manner in her assignment of Ms. Black duties. Ms. Mann’s conduct targeted Ms. Black, was unjustified, and had a negative impact on Ms. Black’s level of income.

xxii. Ms. Black only became aware of the nature of Ms. Mann’s actions following Ms. Black’s discussion with Ms. Sine.

xxiii. As a result of Ms. Mann’s treatment of Ms. Black, Ms. Black has lost out on the opportunity to work in trials. This also means she has lost out on the opportunity to produce numerous transcripts. Ms. Black estimates this has cost her approximately $20,000 per year in lost transcription work.

3The employer asks that the grievance be dismissed on a preliminary basis without any further inquiry. Essentially, the employer asserts, the union is attempting to challenge the exercise of managerial discretion. The management rights provision of the collective agreement is found at Article 2.1. And although both parties referred to and, to some extent, identified the present matter as raising a “management rights” issue, neither party referred specifically to the provision or identified which specific portions of it are relevant to the current inquiry.

4The employer, however, relies on authorities of this Board which it asserts stand for the general proposition that there is no “free-floating” obligation on the employer to act in a good faith and reasonable fashion in the exercise of its managerial prerogatives. Such a review may only be performed by this Board when the result of that exercise (to appropriate some of the language of the caselaw) is to negate or unduly restrict some right that emerges from the collective agreement. And as the matter of the union’s complaint in the present case cannot be linked to any such provision of the collective agreement, the grievance must be dismissed.

5For its part, the union asserts that the exercise of management rights is – regardless of whether the particular subject matter in issue engages any other specific provision of the collective agreement – subject to review by this Board against a minimal good faith standard. The employer cannot and should not be expected or permitted to exercise its discretion in bad faith and for improper purposes. (I should note, however, that the union also asserted that the impugned employer conduct does trench on certain collective agreement provisions.)

6It is, however, the question of whether there is any obligation on the employer to exercise its management rights in good faith which I have found most troubling. As will become clear, I have determined not to allow the employer’s preliminary motion, at least not in this stage of the proceedings. I am doing so without (yet) deciding any or all of the legal issues which may be necessary to its determination. I have come to this conclusion largely because of the fashion in which the parties addressed this issue in their submissions before me and because I view the issue as one which may have significant ramifications for the parties and for this Board beyond the facts of the instant case.

7In that context, it would be improvident to express any views or come to any legal conclusions without insuring that the parties are afforded every opportunity to address all of the issues which may have to be determined in the resolution of this matter.

8Having said that, however, it may benefit the parties in their preparation for the continuing litigation in this matter, to identify some of the issues and concerns not yet fully addressed by them before me.

9The employer referred to two decisions of this Board: OPSEU (Ashley) and Ministry of Community, Family and Children’s Services (2003), GSB No. 1999-1997 (Abramsky) and OPSEU (Lesieur) and Ministry of the Environment (2005), GSB No. 2002-1756 (Briggs). Neither of these cases dealt directly with claims or findings of bad faith per se (although, in Ashley the union did suggest that the employer had engaged in a negligent misrepresentation). These cases (and others) make it clear that the touchstone of this Board’s jurisprudence in respect of the appropriate review, if any, of the exercise of management rights is its decision in OPSEU (Bousquet) and Ministry of Natural Resources (1991), GSB No. 541/90 (Gorsky). Neither of the parties filed or reviewed that decision in their submissions before me.

10The Bousquet award is a nuanced, complicated and difficult analysis of the state of general arbitral jurisprudence and its application to this Board. At least at that time, the general state of the law in respect of arbitral review of the exercise of management rights was or had been in considerable flux. Despite the intricacies of the award, more recent decisions of this Board appear to have encapsulated its application as in the following observation from Ashley (at page 14 et seq.):

The decision [in Bousquet]…did not adopt a general duty of good faith and reasonableness in the exercise of management rights…

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…” Instead, the Board had the right to review the employer’s exercise of its discretion for good faith and reasonableness because the developmental opportunities impacted an employee’s ability to compete in job competitions under then 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.

11As indicated, neither of the parties before me referred to the Bousquet award. I trust they will take the opportunity to address the appropriateness of the above “encapsulation” of its application.

12The parties may also wish to address the question of whether, even assuming the “encapsulation” is an accurate reading of Bousquet, the employer is still subject to an obligation to exercise its management rights in good faith. In that regard, any cases in which involve specific allegations of bad faith will, of course, be instructive.

13The parties may also wish to consider the cases referred to in Hadwen et al, Ontario Public Service Employment Labour Law at pp. 572-575.

14I will make a brief comment about the facts. The employer did not aim its objection at the sufficiency of the facts, per se. It did, of course, argue that the case, as pleaded, did not disclose any violation of the collective agreement. It did not, however, specifically address the question of whether the facts, as pleaded, might support a finding of bad faith. Rather, it argued that its conduct was not subject to review as no provision of the collective agreement, apart from the management rights clause, was engaged.

15Bad faith is generally difficult to establish. And I am not persuaded that a conclusion of bad faith conduct flows inexorably from the facts as pleaded. The pleaded facts, however, are certainly curious and afford no immediate or obvious explanation for the employer’s impugned conduct. Of course, one would not expect that the employer’s reasons for its conduct would necessarily be captured in the union’s pleadings. It may be that there is a simple explanation not grounded in any bad faith or improper purpose. If that is ultimately the case, the disposition of this matter may be much simpler than some of the foregoing might otherwise suggest. I am not prepared, however, to conclude, at this stage and based on the pleadings before me, that the employer’s conduct could not possibly be found to constitute bad faith.

16The Registrar is directed to confer with the parties to set a further hearing date in this matter. The parties should be prepared to adduce all relevant evidence. Once the hearing is completed and I have had the benefit of hearing the relevant evidence and the parties’ submissions, I will, with the benefit of the full evidentiary context, address all issues as may be necessary.