GSB#2011-3384, 2011-3475

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Union)

Association

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Bram Herlich Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Robert Fredericks Ministry of Government Services Labour Practice Group Senior Counsel

HEARING

March 16, 2012.

Decision

1There are two applications for interim relief before me; the parties agreed, as the cases raise similar issues, to have these applications consolidated and heard together.

2Both of the underlying disputes arise out of organizational changes implemented by the employer. It is not necessary, other than to provide the most basic foundation to understand the provenance of the instant applications, to set out the salient facts in great detail.

3As a result of the implemented change(s), the employer advised the Association that a number of employees (seven from OMAFRA and three from MNR) formerly included for many years in the Association’s bargaining unit are now excluded. They each continue to occupy the same positions in the same classifications as they did prior to their recent exclusion from the bargaining unit. The Association has challenged the propriety of those exclusions through the instant disputes.

4The changes implemented by the employer might be described (at least for current illustrative purposes, though not necessarily for the merits of the cases), in a somewhat truncated fashion, as changes in reporting relationships – certainly that appears to be the characterization offered by the Association. If one examines the (“before and after”) organizational charts depicting the corporate structure(s), including the reporting relationships of the relevant employees, some common characteristics emerge. In both cases the applications arise from the employer’s decision to realign, restructure or recreate certain Ministry divisions. The employer essentially asserts that, in both cases, local Ministry divisions (the Research & Corporate Services Division of OMAFRA and the Corporate Management Division of MNR) have been effectively merged, moved or replaced in such a fashion as to no longer be autonomous Ministry units. They have, rather, become part of an over-arching service wide entity, HR Ontario, which is within the mandate of MGS. And the employer points to the specific collective agreement exclusion of “those employed in HR Ontario…” to explain the need for the resulting exclusions.

5The union disputes the application of the exclusion to the facts at hand. It asserts that (at least at the time of the purported exclusions), there had been no change to the duties or responsibilities of any of the affected employees which would warrant the innovation of their exclusion from the bargaining unit. Further and even to the extent that HR Ontario is currently implicated in the affected employees’ organizational hierarchy, there has been no meaningful change in reporting relationships. It is only at levels fairly removed and remote from the affected employees that there is any change in reporting relationship and, even then, it is a dual, not a single, reporting relationship (i.e. to higher levels in both the individual Ministry and to MGS via HR Ontario).

6I stress once more that the preceding paragraph is offered for purposes of context only. It should not be seen as precluding the parties from calling any and all relevant evidence in support of their positions if and when these matters proceed to hearing on their merits.

7The Association asks for interim relief in both disputes. It asks that this Board direct the employer, on an interim basis pending the disposition of the merits of these claims, to revert to treating the employees in question as included within the bargaining unit.

8The employer offered a wealth of reasons why the requested relief ought not to be granted. It may be useful to provide a brief catalogue of those arguments.

9The employer began by pointing out that the impugned exclusions have now been in place for periods of some three months (in the case of OMAFRA) and 6 weeks (in the case of MNR) and yet no specific examples of resulting actual harm have been identified. That flies in the face of any assertion that protection from such harm is warranted. Indeed, pointing to the same periods of time, the employer suggested that the Association’s delay in bringing the instant application is a factor that ought to be considered in any disposition of the matter.

10For its part, on the latter point, the Association submitted that it filed its applications at virtually the very first moment that it became possible to do so. In other words, once the matter had proceeded through the parties’ dispute resolution procedure and had then been referred to this Board for arbitration, the applications for interim relief were made.

11Next, the employer also questioned whether this Board possesses the requisite authority to grant the relief being sought in the instant case. Employer counsel acknowledged a consistent line of decisions from this Board which might be said to have interpreted the Board’s power (derived from s. 48(12)(i) of the Labour Relations Act) in a broad and liberal fashion, building on a jurisprudential platform dating back to this Board’s decision in OPSEU (Nield) v Ministry of Labour, GSB No. 1996-1471 (Roberts), (affirmed on judicial review [1997] O.J. no. 427 (Div. Ct.)). Matters have changed, however, asserts the employer, since the subsequent decision of the Divisional Court in Ontario Power Generation v. Society of Energy Professionals, 2007 CanLII 342 (ON SCDC), [2007] O.J. No. 72 (Div. Ct.) (“the OPG case”). That case also considered the application and scope of section 48(12)(i) of the Labour Relations Act and, it is submitted, throws some doubt on the continuing application of the Nield award and its progeny. Subsequent cases at this Board involving requests for interim relief have, the employer claims, either not been asked to or have otherwise not been required to address this issue.

12The union points to what it asserts is a consistent line of cases at this Board which has, both before and after the OPG case, confirmed, adopted and applied the approach to the exercise of the interim relief power, an approach which has its genesis in Nield.

13Alternatively, the union submitted that, if necessary this Board can rely on the relevant provisions (in particular, s. 16.1) of the Statutory Powers Procedure Act (the “SPPA”) as an alternative or further source of authority for this Board to provide interim relief. The parties made further written submissions with respect to this issue.

14The employer disputed that s 16.1 can have any application to this Board since it (the SPPA) does not apply to “a proceeding…before an arbitrator to which the…Labour Relations Act applies” (see section 3(2)(d) of the SPPA and the decision of this Board in OPSEU (Villela) v Ontario (MSGCS), GSB File No. 1997-1662, December 11, 1996 (Gray)). In response, the Association, without prejudice to its future right to argue that the Villela case is wrongly decided and has been doubted in certain subsequent decisions of the Ontario Labour Relations Board, indicated that it was no longer relying on the argument that this Board has the relevant jurisdiction under the SPPA in the instant case.

15Notwithstanding the issues just referred to, there was no real dispute between the parties that, the disposition of any request for interim relief turns on a two-pronged approach. The first question is whether the applicant makes out an arguable case on the merits. The second is essentially an assessment of the harm that would result if the relief requested is not granted. The latter inquiry may also involve a relative assessment of the harm resulting from not granting as compared to that resulting from granting the relief sought.

16The employer submitted that this application should fail on either approach, although its urgings were much more enthusiastic in relation to the second prong.

17On the employer’s view of the case, the merits are simple and obvious – the employees in question are now “employed in HR Ontario”; the collective agreement excludes such persons; the employees in question are therefore excluded.

18The case the Association advances is more complex and, without limiting the Association’s arguments on the merits of its claims, may hinge, among other things, on the assertion that there had been no change in duties and responsibilities at the time of the exclusion; and what “employed in HR Ontario” means, an inquiry which, in turn, may require the consideration of extrinsic evidence and how, why and for what purpose the relatively new exclusion made its way into the provisions of the collective agreement.

19While there may well be at least some merit, on both sides, to all of the issues raised and responded to in the skeletal catalogue just provided, it is not necessary for me, in view of the conclusion I have arrived at in respect of the very last issue, to consider those questions any further than their slightly annotated enumeration.

20Even accepting, without deciding, that all of the issues, save the last one identified, can and should be decided in the applicant Association’s favour, I am unpersuaded that any significant harm will result from dismissing the Association claim and simply permitting the main matter(s) to be determined on their merits. Even if such potential harm can be identified, neither am I persuaded that it is sufficient to warrant the relief sought.

21The Association cast its description of the harm that would result from permitting the exclusions to continue in what might be described as a dual approach. First, there are all of the expected consequences that flow from the exclusion of an employee formerly included in the bargaining unit. These include the loss of various collective agreement benefits, including certain job posting entitlements; the right to representation by the bargaining agent; and the loss of the right to have a dispute filed to protect the employee’s rights, including a right to not be discharged from employment without cause. But Association counsel frankly conceded that these are concerns which would attend virtually any case where a bargaining unit employee is subsequently excluded from the bargaining unit and the Association did not suggest that any or all of such circumstances would virtually automatically warrant or require the timely intervention of this Board to provide interim relief in advance of a determination of the merits of the case.

22The Association points, however, to what it asserts is a much more specific and immediate concern which arises as result of the context in which the relevant events have occurred. The focus of this concern is job security. Job security is an important anchor of the collective agreement, some 28 pages of the agreement are devoted to the subject. Among the many job security rights bargaining unit members enjoy are rights to have seniority factor into the selection of employees to be laid off; the right of a laid off employee to be directly assigned to certain vacancies within wide geographic and salary parameters; and the right, in prescribed circumstances, to displace junior employees in order to avoid lay off. Personnel excluded from the bargaining unit do not enjoy such rights.

23The Association asserts that we are currently in or about to enter a period of major downsizing in the public service. FTE equivalents have already been significantly reduced and all indications are that this is a trend which, even in the immediate short term, is likely to escalate.

24If the affected employees are declared surplus and deprived of their job security entitlements, it will be extremely difficult, even if their legal positions are ultimately vindicated, to retroactively reassemble those shattered rights. To await a determination of the merits of the instant dispute(s) and to, only then, begin what still may be a lengthy process culminating in the need to untangle events which have occurred in the interim, will give rise to inadequate remedies and, at best, may result in the need to rewrite past events in a fashion which will potentially affect large numbers of other bargaining unit employees. All of these dreaded outcomes can be avoided if the affected employees are treated, at least in the interim, as bargaining unit employees who continue to enjoy job security rights under the collective agreement.

25The employer responded by outlining the harm which would result from granting the relief sought. I need not, however, consider those submissions for the purposes of the instant decision. I do note, however, that the employer may, to some extent, have relied on events which followed the filing of the disputes or, at a minimum, the filing of the instant application in support of its assertions regarding the harm it would suffer should the relief sought by the Association be granted.

26The employer also addressed the question of the resulting harm to the Association should the relief not be granted. Firstly, it submits that the claimed harm is entirely speculative in nature. Not only has not a single one of the affected employees been identified for lay off, but, on the contrary, it asserts that there is no present intention of laying off any of these affected individuals. Indeed, the workload for these individuals is on the increase. While it fell short of offering any guarantees or undertakings, it firmly underscored that any concern for the job security of the affected employees is entirely speculative.

27Even beyond that, it should not be assumed that excluded individuals are entirely without any employment protection. While the nature of their rights may differ, there clearly are some, including access to the Public Service Grievance Board and the Courts.

28In any event, there is no basis to assert that this Board would be incapable of fashioning an appropriate remedy, even in the extreme circumstances posited by the Association. While it may be true that surplus issues can be complicated, protracted and wide-reaching in their impact, that is true even in cases where there is no underlying issue about an individual’s inclusion in the bargaining unit. This Board can and has routinely dealt with those types of difficult cases.

29I am inclined, as I have already indicated, to largely accept the employer’s submissions on this point. The harm pointed to by the union is potential harm which may or may not arise. It is, currently, entirely speculative. Further, while the potential remedial issues that may arise could well be challenging, there is nothing that, for the moment, suggests they are beyond the capacity of this Board. In those circumstances, I am not persuaded that it would be appropriate to grant the interim relief being sought. These applications are hereby dismissed.