Ontario Public Service Employees Union v. The Crown in Right of Ontario as represented by the Ministry of Transportation

[1995] OLRB Rep. December 1429

1978-95-U Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario as represented by the Ministry of Transportation, Responding Party

BEFORE: Dale L. Hewat, Vice-Chair, and Board Members W. H. Wightman and B. L. Arm­strong.

APPEARANCES: L. Steinberg and T. Merante for the applicant; S. Patterson, W. Peck and J. Hen­derson for the responding party.

DECISION OF THE BOARD; December 15, 1995

1. This is an application under section 91 of the Labour Relations Act R.S.O. 1990 c.L2, as amended (the "Act"), in which the applicant (the "Union") alleges that the responding party (the "Ministry") has violated sections 15, 65, 67 of the Act and section 43(1) of the Crown Employees Collective Bargaining Act ("CECBA"). On November 10, 1995 the Labour Relations and Employ­ment Statutes Law Amendment Act, 1995 was given Royal Assent, thereby bringing into effect the Labour Relations Act, 1995. The differences between the Labour Relations Act and the Labour Relations Act, 1995 have no bearing on this case. The section numbers referred to in this decision are as they were under the Labour Relations Act.

2. This matter arises out of the negotiation and implementation of a new class standard for Ministry Highway Transportation Inspectors pursuant to the terms of the collective agreement in effect between the parties. For the purpose of this decision, the background to the current applica­tion is as follows. On March 22, 1991 grievances for improper classification were filed by the Union on behalf of the complainants in the instant application who held positions of Highway Construc­tion Inspector II. By a consent order of the Grievance Settlement Board (the "GSB"), dated March 19, 1993, the parties agreed to create a new class standard for the Highway Construction Inspector II positions. A new class standard entitled Quality Assurance Inspector was ultimately negotiated between the parties. However, the parties were not able to agree on the appropriate salary rate for the class standard and therefore, the salary issue was remitted to arbitrator R. J. Roberts, per article 5.8.1 of the collective agreement. A decision was issued by arbitrator Roberts on January 13, 1995 in which he awarded a 10% salary increase for Quality Assurance Inspectors. Following the award, the parties entered into a memorandum of settlement in order to implement the 10% salary increase within 90 days of execution of the memorandum of settlement. Prior to the final implementation of the memorandum of settlement, the Ministry announced, on June 28, 1995, that a decision had been made to abolish the position of Quality Assurance Inspectors in the geographic unit known as the Central Region. As a result of this announcement, the complainants were transferred to the position of Senior Technician Transportation Construction pursuant to arti­cle 5 of the collective agreement. On July 20, 1995 each of the complainants filed grievances alleg­ing that the Ministry "acted in bad faith, and in an unreasonable manner, by abolishing the posi­tion of Quality Assurance Inspector when in fact the work continues to exist and continues to be done".

3. The current application states that the responding party has violated sections 15, 65, and 67 of the Act and section 43(1) of CECBA when it abolished the positions of Quality Assur­ance Inspectors. In addition to other remedies sought, the applicant is seeking a declaration that the Ministry has violated CECBA/ the Act by abolishing the position of Quality Assurance Inspec­tors, thereby imposing reprisals as a direct result of the group seeking reclassification. The appli­cant is also seeking a declaration that the Ministry bargained in bad faith during the reclassification negotiations.

4. The Ministry brought a preliminary motion in which it requested the Board to exercise its discretion to defer this matter to the GSB. The Ministry maintains the position that the griev­ances filed on July 20, 1995 involve the same subject matter and request for remedial relief as the complaint before the Board, and argued that the GSB is the more appropriate forum to deal with the complaints. The parties agreed to have the Board deal with the preliminary matter of deferral before dealing with the case on the merits. Having considered the submissions of the parties, the Board is of the view that in this case it is not appropriate to exercise our discretion to defer to the GSB. What follows are our reasons for the decision not to defer.

5. Counsel for the Ministry submitted that the instant complaint is essentially about a clas­sification grievance and the implementation of that grievance, which he stated is an issue for which the GSB, not the Board, holds expertise to determine. As well, counsel noted that under section 19(1) of CECBA the GSB has the authority to exercise jurisdiction on classification questions. He stated that any allegations pertaining to reprisals and requests for remedial relief can be dealt with by the GSB pursuant to article A.1.2 of the collective agreement which provides that "There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the Union." Counsel also submitted that the complaint does not raise any important or broad application of the Act which would require the Board to seize jurisdiction. In addition he stated that the exercising of any rights with respect to a classification grievance is now a moot point since classification grievances can no longer be raised. Counsel acknowledged that the Ministry had intended to raise an objection to the GSB's jurisdiction with respect to the July 20, 1995 griev­ances. However, Counsel agreed that the Ministry would request the GSB to reserve on the juris­dictional issue and render its decision once it determines whether the union is able to prove that the Ministry's actions were motivated by anti-union animus. Counsel referred to the Board's juris­prudence in Valdi Inc., [1980] OLRB Rep. Aug. 1254, The General Hospital of Port Arthur, [1986] OLRB Rep. Sept. 1218, Lloyd-Truax Limited Wingham, [1986] OLRB Rep. July 994 and Fortinos Supermarket Limited, [1993] OLRB Rep. Oct. 974. Counsel also relied on the Divisional Court's decisions in OPSEU and Carol Berry et al and The Crown in Right of Ontario (Ministry of Commu­nity and Social Services), Ontario Divisional Court, unreported, February 17, 1986 and OPSEU (Anderson) and The Crown in Right of Ontario, Ontario Divisional Court, unreported, September 21, 1990, to establish that the GSB has extensive remedial powers to determine classification mat­ters.

6. Counsel for the union submitted that the matter before the Board is not one simply involving a "private" matter of a classification grievance. Rather, counsel characterized the com­plaint as one pertaining to the process that followed the the initial classification grievance which involved the negotiation of the new class standard, the steps taken with respect to implementation of the class standard and arbitrated salary award, and the ultimate elimination of the position of Quality Assurance Inspectors. The union alleges that the Ministry knew that the position of Qual­ity Assurance Inspectors would be eliminated yet proceeded to negotiate and discuss the class stan­dard, appeared before arbitrator Roberts and took steps to implement Roberts salary arbitration by signing the memorandum of settlement. Counsel stated that the complaint is about allegations that the Ministry abolished the Quality Assurance Inspector positions in retaliation for the com­plainants exercising their rights to grieve improper classification and about the Ministry's failure to negotiate in good faith which represents a repudiation of the collective bargaining process. Fur­thermore counsel asserted that, given the Ministry's objection to the GSB's jurisdiction, the com­plainants may not have access to a remedy in the event that the Ministry's objection is successful. In any event, counsel argued that the remedy available under the collective agreement may be less extensive than the remedies under the Act. Counsel referred to the Board's decision in Cuddy Foods Ltd., [1988] OLRB Rep. Aug. 768.

7. The Board's jurisprudence with respect to deferral is succinctly set out in Valdi Inc., supra. At page 1258 of that decision, the Board states as follows:

8. It may be that the Board's approach has been somewhat less refined but the American treat­ment of deferral issues is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited, (1954), 54 CLLC ¶17,083; John Inglis Co. Ltd. (1953), 53 CLLC ¶17,049; National Showcase Co. Ltd. (1961), 61 CLLC ¶i6,i85; Heist Industrial Services Ltd. (1963), 63 CLLC ¶16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC ¶16,198 and Collingwood Shipyards, [i967] OLRB Rep. July 376 all approach the deferral doctrine as one that will encourage the practice and procedure of collective bargaining. These cases are also aimed at dis­couraging dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedures for dispute settlement which they have created. See Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49. But it is also apparent that in those cases the Board acted on the premise that the resolution of the contractual issues was congruent with the resolution of the statutory unfair labour practice issues. See Imperial Tobacco Products (Ont.) Ltd. et al, [1974] OLRB Rep. July 418 at para. 26. This congruence between the contractual dispute and the overlying unfair labour practice complaint is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties. See Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427 at para. 4. However, where key provisions of The Labour Relations Act require important elaboration and applica­tion or where the employer's or trade union's conduct represents a total repudiation of the col­lective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction. The former situa­tion is reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb. 264 and the latter can be seen in New Gregory House, [1977] OLRB Rep. Sept. 584. Other circumstances in which the Board has been unwilling to defer to grievance arbitration involve cases where arbitration may have been unavailable to the complainant or where relief in that forum could have been inade­quate.

The Board, in Valdi also remarked, at page 1259, that disputes over the extent and exercise of con­tractual rights are not unusual and will not normally become a policy concern transcending the col­lective bargaining relationship. The Board also commented that a disciplinary dispute over union activity within the context of a long-term bargaining relationship, where there exists a "no discrimi­nation" provision on the basis of union membership, may be amenable to resolution by the parties through their own dispute resolution procedures. In The General Hospital of Port Arthur, supra, at page 1221 the Board summarized the considerations with respect to deferral in the following way:

The Board's practice with respect to the issue of deferral to arbitration has, at its starting point, a policy that the practice and procedure of collective bargaining are to be encouraged and that dual litigation or forum shopping are to be discouraged. However, if the Board is to defer to arbitration, it must be satisfied that the resolution of the contractual issue is "congruent with" the resolution of the complaint that here has been a breach of the Act. That congruence is essential if the Board is to defer to arbitration, where, the matters in dispute involve a signifi­cant elaboration or application of significant provisions of the Act and where the impugned con­duct at least arguably constitutes a violation of fundamental rights under the Act, and where the complaint transcends the interests of the immediate parties, the complaint cannot be character­ized as being essentially contractual... Consequently, even where the complaint does involve conduct which is either a violation or not a violation of a collective agreement, there may still exist an unfair labour practice that is appropriate for this Board to deal with.

8. The complaint before us involves a grievance under the collective agreement with respect to abolishing the position of Quality Assurance Inspectors, and also involves a dispute about the actions and motives of the Ministry in negotiating and implementing the new class stan­dard for Quality Assurance Inspectors. Without commenting on the merits of the union's allega­tions, the complaint raises serious questions with respect to the application of sections 15, 65 and 67 of the Act. Although the collective agreement contains a "no discrimination" clause, the lan­guage is not as exhaustive as the language in sections 65 and 67 of the Act, nor does it fully address the allegation of bad faith bargaining. Thus, in our view, the issues raised by the union cannot be characterized as essentially contractual in nature or that the resolution of the grievance will be con­gruent with the resolution of the unfair labour practices alleged (see: The General Hospital of Port Arthur, at page 1221).

9. It is also apparent that the remedies available to the complainants may be inadequate should these matters be deferred. Although it is recognized that the GSB retains broad remedial jurisdiction with respect to effecting a proper classification, as stated by the Divisional Court in Anderson and Berry, supra, it is questionable whether the remedial powers of the GSB include addressing the issues raised in the instant complaint. In the Anderson case, the Court confirmed the GSB's statutory duty under CECBA to effect a final and bindin.g settlement of all differences between the parties with respect to effecting a proper classification. In this regard, the the Court stated that the GSB's "power to implement a proper classification must necessarily include the power to review the contents of that classification for sufficiency and to instruct management to alter or amend the class standard to reflect properly the duties and responsibilities, etc. of the grievors" (at p.16). In this case, the GSB has already made a final determination on the proper classification and salary rate for the class standard of Quality Assurance Inspectors. The fact that the right to file a classification grievance is now moot, does not address the issues in the union's application. The allegations raised in the application do not challenge the appropriateness of the classification, but rather challenge the motives and action taken by the Ministry in negotiation of the class standard and in the implementation of the GSB's final and binding interpretation of the

classification. Characterized in this way, the allegations, in our view, more appropriately fall within the statutory provisions in the Act under which the Board has a duty to enforce and retains exten­sive remedial powers. Having made this determination, we do not find it necessary to make a determination with respect to section 43(1) of CECBA. Likewise, it is not necessary to determine whether the preliminary objection regarding the GSB's jurisdiction which would be raised by the Ministry at the arbitration of the grievances, could deny the complainants access to remedial relief under the collective agreement.

10. Accordingly, in the circumstances of this case, and in light of the alleged violations of significant statutory rights, we have concluded that this is not an appropriate case for the Board to defer this matter to the GSB. The Board will therefore hear this matter on the merits. The matter is referred to the Registrar for rescheduling. This panel is not seized.