David E. Smith v. Ontario Public Service Employees Union, 1995 CanLII 9969

David E. Smith v. Ontario Public Service Employees Union

[1995] OLRB Rep. June 893

4662-94-U David E. Smith, Applicant v. Ontario Public Service Employees Union, Responding Party v. Crown in the Right of Ontario represented by Management Board Secretariat, Intervenor

BEFORE: S. Liang, Vice-Chair.

APPEARANCES: David E. Smith appearing on his own behalf; Paul Cavalluzzo, Andy Todd, Mary Anne Kuntz and Prabhu Rajan for the responding party; Melissa Nixon and Robert Younger for the intervenor.

DECISION OF THE BOARD; June 9, 1995

1. This is an application made pursuant to the provisions of section 91 of the Labour Relations Act, alleging a violation of section 69 of the Act, which states:

2. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

3. The hearing of this matter proceeded largely on the basis of an Agreed Statement of Facts and documents, supplemented by oral evidence from Andrew Todd, Chief Negotiator of the responding party (hereinafter referred to as "OPSEU"). The Crown in the Right of Ontario appeared at the hearing and made submissions through counsel. No party objected to its participation. Although no formal Intervention has been filed, the Government of Ontario has a clear interest in the matter and I hereby add it as an intervenor to these proceedings.

4. The applicant, David Smith, represented himself at the hearing. The Board explained to Mr. Smith that he was entitled to have counsel, or to represent himself, at the Board's hearings. I explained the nature of my role, which is to hear the parties' evidence and submissions and make a determination on the case. It would be inconsistent with my role to advise any party about how to present its case. The Board's hearings are legal processes to which certain rules apply. Having chosen to represent himself, Mr. Smith was still expected to conform to those rules, and bore any risk associated with lack of legal representation. I invited Mr. Smith, however, to ask any questions that he may have concerning the Board's procedures during the course of the hearing.

5. This complaint arises out of the withdrawal by OPSEU of a grievance filed by Mr. Smith in April of 1992. Mr. Smith is a Senior Environmental Planner employed by the Ministry of the Environment in the Ontario government. The grievance alleges that Mr. Smith is improperly classified. In August of 1993, as part of an agreement concluding Social Contract negotiations with the Ontario government, OPSEU agreed to withdraw about seven thousand outstanding classification grievances, including Mr. Smith's. Mr. Smith alleges in this complaint that the withdrawal of his grievance violates section 69 of the Act. It is his position that OPSEU had no authority to withdraw his grievance, because of the provisions of the Crown Employees Collective Bargaining Act, R.S.O. 1990, c.50 (an Act which was repealed effective February 14, 1994, and to which I will refer as the "old CECBA"). Relying on these provisions, Mr. Smith asserts that he possesses an individual legislated right to pursue his grievance to arbitration and as such, that OPSEU's duties under section 69 are to him and him alone. He also submits in any event that in failing to consider the individual merits of his grievance prior to agreeing to withdraw it, OPSEU has acted in a manner contrary to section 69.

6. It is the position of OPSEU that the Labour Relations Board has no jurisdiction to deal with the subject matter of this complaint, since it concerns events which occurred prior to the time when the Labour Relations Act became applicable to Crown employees. In the alternative, OPSEU asserts that if the Labour Relations Act applies, this complaint is untimely in any event. Finally, OPSEU states that its conduct with respect to this grievance does not violate its duties under section 69 of the Act. The Government of Ontario supports the positions taken by OPSEU.

FACTS

6. As indicated above, in April of 1992, Mr. Smith filed a grievance claiming that his position was improperly classified. OPSEU assumed the role of his representative in carrying forward the grievance. The grievance was referred to the Grievance Settlement Board for hearing. A preliminary meeting into the grievance was convened by the GSB, at which Mr. Smith was represented by legal counsel retained by OPSEU to act on his behalf. In a letter from legal counsel to Mr. Smith dated February 3, 1993, legal advice was given indicating that the grievance "bears a very good chance of success."

7. In April of 1993, the Government of Ontario initiated discussions with unions representing public sector employees, which became known as the Social Contract negotiations. The government took the position that the province faced extraordinary fiscal difficulties which required some measures to control the public debt. One of these measures would be the negotiation of a Social Contract between the government and its employees to reduce operating costs. The government proposed that the negotiations take place at a number of sectoral "tables", such as health, municipalities, social services, and the Ontario Public Service.

8. OPSEU represented employees in the Ontario Public Service in these negotiations. Mr. Todd was a member of the fifteen-person OPSEU negotiating team. The negotiations between OPSEU and the government took place from around the end of May to August 1, 1993, when an agreement was concluded.

9. During the course of these negotiations, the government supplied the unions with economic data and studies illustrating the gravity of the fiscal situation. It was made clear that the failure to reach agreement on cost reductions would have serious consequences. Firstly, if costs were not brought under control in the new future, then in the long term the public sector would be in danger of drastic reduction. Secondly, if costs were not brought under control through negotiated measures, the government intended to take action unilaterally to do so. It was understood that an element of these unilateral measures would be layoffs of public sector employees. It was therefore understood that the Social Contract negotiations were the unions' opportunities to avert layoffs as a method of reducing the province's financial burden.

10. On July 8,1993, the Social Contract Act, 1993 was enacted to give the legislative framework to these government initiatives. A critical feature of the Social Contract process, provided for in the Act, was the establishment of "expenditure reduction targets" for sectors and for individual employers in the public sector. In essence, the government set specific monetary targets by which the costs in each sector and for each employer would be reduced as a result of the Social Contract Negotiations. The Act provided for the negotiation and designation of a sectoral framework consistent with these expenditure reduction targets for each of the sectors identified. Further, the Act provided for the negotiation of local agreements between each bargaining agent in a sector and its employer. Local agreements had to be concluded by August 1, 1993 and ratified by August 10th.

11. The results of failing to reach local agreement were made clear in the Act. Among its provisions was the establishment of "fail-safe" measures which would apply where a bargaining agent failed to reach a local agreement with the government. These fail-safe measures, for example, permitted public sector employers to impose up to twelve days of unpaid leave in a year in order to meet their expenditure reduction targets. Most importantly, however, was the fact that failure to reach a local agreement would result in a dramatic increase in the expenditure reduction target for a given employer. For instance, for OPSEU, the expenditure reduction target governing its local agreement was $132.8 million for each of the three years of the agreement. If OPSEU failed to reach agreement, the expenditure reduction target applicable to its members would be $160 million each year. The result of the imposition of the fail-safe measures was obvious to all: the loss of public sector jobs. OPSEU's priority during these negotiations was to avoid this result.

12. From the outset of the social contract negotiations with OPSEU, the government took the position that something had to be done with the approximately 7,000 classification grievances outstanding (involving about 9,000 grievors). Many of these grievances had been outstanding for some years. The potential liability under these grievances and particularly the potentially enormous retroactive payments which might be ordered led the government to propose a total moratorium on classification grievances during the term of the local agreement (including the withdrawal of all outstanding grievances). This suggestion was vigorously opposed by the OPSEU negotiating team. Over time, the position of the government remained steadfast and over time, it also became apparent that the government intended to meet any potential liability resulting from these classification grievances through layoffs. OPSEU became convinced that the government was absolutely serious in its intentions. Ultimately, the issue of the classification grievances became the last issue remaining in the way of reaching a local agreement between OPSEU and the government. OPSEU proposed, and the parties agreed to a compromise on this issue. In this compromise, certain grievances in which the Grievance Settlement Board had made "Berry Orders" were exempt from the moratorium. That is, those grievances which had received a determination from the Grievance Settlement Board which required further remedial negotiation or arbitration remained alive. The parties agreed that "[e]ffective August 1, 1993, all other classification grievances are withdrawn and no new ones may be filed."

13. In return for this moratorium, the government agreed that the expenditure reduction target applying to the OPSEU bargaining unit would be reduced by $20 million for the year 1993/94 and $40 million in each of 1994/95 and 1995/96. Further, the government agreed to allocate a lump sum of $20 million for the purpose of compensating employees whose classification grievances had been withdrawn by the local agreement. The details of this payout would remain to be negotiated between the government and OPSEU. As well, OPSEU and the government agreed to establish a new classification system through a "bargaining unit overhaul" commencing within thirty days of ratification of the local agreement and having a target date of December 31, 1994. The government committed another $20 million towards any salary adjustments which might be made as a result of this bargaining unit overhaul. It was anticipated by the 'bargaining team that those grievors whose grievances had been set aside by the moratorium and who could establish that they were improperly classified would be beneficiaries of this bargaining unit overhaul.

14. In his testimony, Mr. Todd explained some of the principles which came to bear on the decision by OPSEU to agree to the withdrawal of the classification grievances. The bargaining committee reviewed the relative harm that would come to members of the bargaining unit from each possible outcome. It concluded that the harm of layoffs outweighed the harm of being denied, at this stage, a classification increase. Further, it judged that classification issues could be fought another day, and had an opportunity of being addressed in the bargaining unit overhaul in any event. As well, the committee was aware that some of the persons who might have received classification grievances might also ultimately be the victims of layoffs. Mr. Todd noted in his evidence that some of the very members of the bargaining committee were grievors whose classification grievances were withdrawn as a result of this agreement, including Ron Elliott, the chief elected spokesperson. OPSEU does not dispute that it did not evaluate the individual merits of each classification grievance before agreeing to its withdrawal. In the circumstances, it would have been impossible for the union to have weighed the inclusion of a given grievance in the agreement on the basis of its individual merits, because of the logistics, time, resources and costs that would have been involved in such a process.

15. By letter dated August 3, 1993, OPSEU advised its members of the terms of the tentative agreement with the government, and invited them to participate in the ratification vote. Mr. Smith received a copy of this letter on or about this date. This was the first communication Mr.

Smith had received regarding his grievance since the opinion letter of counsel, dated February 3, 1993. The letter sets out highlights of the agreement. It states, among other things:

Employees with classification grievances who have received "Berry orders" from the Grievance Settlement Board can negotiate and arbitrate their classifications under the collective agreement. The result will apply to all employees in the affected classification. Effective August 1, 1993, all other classification grievances are withdrawn and no new ones may be filed. This will reduce the target by $20 million this year, and $40 million in each of the next two years. The employer will pay (1) a $20 million lump sum which the union and employer will distribute to employees whose grievances are withdrawn, and (2) another $20 million to create a new classification system by Dec. 31, 1994, so members will be properly paid in relation to one another. Members will be able to grieve under the new system.

16. The local agreement (also referred to by the parties as the "local appendix") was ratified by the membership. Since ratification, an important benefit of the local agreement has, in fact, been realized: as of the date of the hearing before me, there have been virtually no layoffs of persons in the OPSEU bargaining unit.

17. After the ratification of the local agreement, OPSEU advised the Grievance Settlement Board of the withdrawal of classification grievances, requesting, however, that they simply be adjourned pending a determination by OPSEU of the specific grievances which had been exempted from the overall withdrawal (i.e. those which had been the subject of "Berry Orders").

18. In November of 1994, OPSEU and the government reached agreement as to the $20 million payout to grievors whose classification grievances had been withdrawn. OPSEU members were advised by this by memo dated November 22nd. Mr. Smith first heard of the agreement on or about December 12th. Members who received a payment also received a memo signed jointly by the President of OPSEU and the Secretary of Management Board of Cabinet stating:

As you may be aware, the Government and the Ontario Public Service Employees Union, as part of the Social Contract Act, 1993 and the Local Appendix agreed to settle all unresolved classification grievances filed between January 1, 1986 to August 1,1993. All such grievances were withdrawn or rendered void by the terms of the Local Appendix and a $20,000,000.00 settlement amount, for compensating those employees whose classification grievances were withdrawn or rendered void, was established.

As such, you were identified as one of the eligible individuals entitled to compensation as a result of your classification grievance being withdrawn or rendered void. In this regard, this letter is to draw to your attention that included in this pay cheque is the "initial payment amount", you are entitled to pursuant to the terms of a Memorandum of Agreement entered into by the parties.

Accepting this initial payment amount and any subsequent payment amount you may be entitled to, is formal recognition by you that the parties have met all of their obligations pursuant to the Social Contract Act, 1993 the Local Appendix and the above Memorandum of Agreement, as it concerns your void or withdrawn classification grievance.

It should be noted that failure to accept the enclosed amount by returning the initial payment amount and any subsequent payments does not have the effect of reactivating your classification grievance. Your classification grievance is still withdrawn or rendered void.

Should you have any questions or concerns with respect to this issue please do not hesitate to contact your local union representative.

19. Since it was not feasible to calculate each individual grievor's entitlement to a payout based on the merits of his or her grievance, OPSEU and the government agreed to a payment calculation based on the number of days a person's grievance had remained outstanding as of the date of the Social Contract. OPSEU also anticipated that those with meritorious grievances would receive proper recognition during the bargaining unit overhaul. The time and resources which went into the negotiation and implementation of this payout were considerable. OPSEU alone devoted three full-time workers to this process. As of the date of this hearing, 85% of grievors had received a payout.

20. By letter dated January 30, 1995, Mr. Smith wrote to Mary Anne Kuntz, Grievance Officer with OPSEU, requesting that "OPSEU proceed forthwith on my behalf to pursue a final determination of my classification grievance of April 24, 1992." Mr. Smith also indicated that in the event he was dissatisfied with OPSEU's position in response to this request, he intended to pursue such courses of action as may be available, including the filing of an application under section 91 of the Labour Relations Act. He also sets out his reasons for believing that OPSEU had no authority to settle his grievance on his behalf. Not surprisingly, Ms. Kuntz responded by referring to the negotiated moratorium and withdrawal of classification grievances under the Social Contract.

21. This complaint was filed by Mr. Smith on March 30, 1995.

DECISION

22. It is unnecessary to set out the arguments of the parties. Where necessary to deal with specific aspects of them, I shall make reference to them.

Whether the Labour Relations Board has jurisdiction to deal with this complaint

23. Having carefully considered the submissions of the parties and the relevant statutory framework, I come to the conclusion that the Labour Relations Board is without jurisdiction to make a determination on this complaint.

24. Firstly, I am satisfied that the decision by OPSEU to withdraw Mr. Smith's complaint was made on or about August 1, 1993. At the time of those events, the duty of fair representation owed by OPSEU to Mr. Smith arose from the provisions of the old CECBA. Section 30 of that Act provided:

25. An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees, whether members of the employee organization or not.

26. The old CECBA also provided that a complaint about a contravention of section 30

could be made to the Ontario Public Service Labour Relations Tribunal ("the Tribunal"). Section

39 of the Act also provided:

39. The Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by this Act and to determine all questions of fact or law that arise in any matter before it, and, except as otherwise provided in this Act, the action or decision of the Tribunal thereon is final and binding for all purposes, but nevertheless the Tribunal may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

40. As indicated earlier in this decision, old CECBA was repealed effective February 14, 1994, as part of a transfer of jurisdiction over public sector labour relations in Ontario to the Labour Relations Act and the Labour Relations Board. Effective February 14, 1994, therefore, section 69 of the Labour Relations Act commenced to apply to those persons formerly covered by old CECBA. Among the provisions of the Crown Employees Collective Bargaining Act, 1993, S.0. 1993, c.38 (referred to herein as the "new CECBA") which effected these changes, were specific transitional provisions, to which I will refer. There are no transition provisions dealing specifically with the duty of fair representation.

41. It is the applicant's position that the provisions of the Labour Relations Act apply to his complaint. What Mr. Smith seeks, effectively, is that the Board apply section 69 to events which occurred at a time when the old CECBA, and not the Labour Relations Act applied to those events, and to determine questions of fact and law arising under the old CECBA.

42. In my view, there are essentially two ways in which the Board can have jurisdiction over this complaint. It can have jurisdiction because it is a matter arising under the Labour Relations Act; or, it can have jurisdiction because the Board has been given the power to apply the provisions of the old CECBA and the provisions of the old CECBA in question survive the repeal of the old CECBA as a whole. I find neither ground present in this case to support the Board's jurisdiction. There is nothing in the new CECBA which states that the Labour Relations Act can have any retrospective effect with respect to the rights of those persons formerly under the old CECBA and now under the Labour Relations Act. Both the old CECBA and the Labour Relations Act speak in the present tense and, like all statutes, are presumed to apply to events as they arise. To apply section 69 retrospectively to events prior to February 14, 1994 would be contrary to a basic common law presumption of statutory interpretation, that statutes are not intended to have retrospective application (see, for instance, Re Latif and Canadian Human Rights Commission, 1979 CanLII 4045 (FCA), 105 D.L.R. (3d) 609 referred to by counsel for the union, and the reference within to Maxwell on Interpretation of Statutes, 12th ed. (1969), p.215)

43. Further, given that the Board is a statutory tribunal, it can only exercise the powers granted to it by statute. Although it was not argued by the applicant that the Board ought to deal with this complaint by applying section 30 of the old CECBA (since it was his position that section 69 of the Labour Relations Act applies), I am satisfied in any event that nothing in the Labour Relations Act or the new CECBA gives the Board the power to apply section 30 of the old

CECBA.

30. I am mindful of the fact that in the new CECBA, the Legislature has put in place specific transitional provisions arising out of the repeal of the old CECBA. For instance, in section 59(2), the Act states that despite the repeal of the old CECBA, the Tribunal is continued for the purposes of disposing of "any matters in respect of which an application was made to the Tribunal before the repeal of the old Act." In this very specific way, the Legislature has recognized and preserved the ability of parties who were already before the Tribunal to achieve a final determination of their dispute. The fact that the new CECBA contains these and other similar provisions suggests that transitional problems were considered by the Legislature. It was open to the Legislature to provide that upon the passage of the new CECBA, the Labour Relations Act applied to events which occurred prior to February 14, 1994. It did not do so. It was further open to the Legislature to provide that the Labour Relations Board could hear and determine duty of fair representation issues which arose under the old CECBA, and apply the provisions of the old CECBA. Again, it did not do so. This is quite a different case from Toronto Area Transit Operating Authority, [1994] OLRB Rep. July 943, where the events at issue arose after the passage of the new CECBA, and section 57(1) of the new CECBA continued the provisions of the old CECBA to those sorts of events. I find in this case that the Labour Relations Board is without jurisdiction in this matter, because the Labour Relations Act cannot apply to these events and the Board has no authority to apply section 30 of the old CECBA.

31. It could be argued that such a result might work an unfairness, leaving some litigants

without a procedure for redress. For instance, it may be the result of my findings that if a union violated section 30 of the old CECBA a day or a few days before the repeal of the old CECBA, and there was no practical possibility of filing a complaint to the Tribunal over this violation, then neither is there the legal possibility of filing a complaint to the Board. These, however, are not the facts before us. In this case, Mr. Smith had ample time even before the repeal of the old CECBA within which to complain of these matters to the Tribunal before February 14, 1994. The Board is unaware of any potential litigant which presents these hypothetical facts and it is therefore not apparent that any unfairness has, in fact, resulted from this statutory framework. Further, even if that were the result, it is a result which flows from legislation. The Board cannot change it.

32. In arriving at the above conclusions, I reject the argument of Mr. Smith that this complaint falls within the jurisdiction of the Board because it concerns the conduct of the union in February and March of 1995 in refusing to revive Mr. Smith's grievance, and not the conduct of the union in August, 1993. The actions of the union in 1995 are purely derivative of the decision that it took in August of 1993. They have no independent legal meaning. The letter from Mr. Smith to Ms. Kuntz in January of 1995 is a fairly transparent attempt to prompt a fresh step that might have enabled him to bring his complaint under the Labour Relations Act, or counter an argument that he has delayed in pursuing his rights. It does not succeed, however, in altering the legal framework which existed at the time the real substance of this complaint arose.

Whether, even if the Board has jurisdiction over this complaint, it is untimely

33. I find, in any event, that even if the Board has jurisdiction to deal with this complaint, it would be untimely on the basis of the Board's long-standing principles concerning delay in the filing of complaints.

34. By the time this complaint was filed, approximately twenty months had passed since the time that Mr. Smith became aware of the union's decision to withdraw his grievance. As I have indicated, he had ample time within which to make a complaint to the Tribunal. And, even after the repeal of the old CECBA, he waited more than a year before bringing the matter to the Board.

35. The Board's approach to issues of undue delay has been set out in many of its decisions, including Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, where the Board stated:

36. It is by now almost a truism that time is of the essence in labour relations matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it -including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G.E. 3 L.A. C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [19661 18 LAC. 51 (Arthurs)).

37. In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.

38. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

39. In the context of the concerns expressed by the Board above, the delay in this case is of such a magnitude that the Board would expect a complainant to establish some good reasons why the Board ought to overlook it, and inquire into the merits of the complaint. However, in this case, there is no evidence of any reason why Mr. Smith could not have pursued this matter much earlier. The Board certainly gives some latitude to parties who may require some time to focus their concerns and search out their remedies. But even allowing for this, the delay in this case is unreasonable.

40. This is particularly so when balanced against the significant implications of the remedies sought by Mr. Smith. It is difficult to separate his individual situation from that of the other 9,000 some grievors affected by the withdrawal of the classification grievances. Potentially, the same arguments which he wishes to advance may apply to scores of other grievors. Potentially, therefore, a significant element of the local agreement reached between OPSEU and the government in August of 1993 would be at risk of being set aside. But even if no other grievor wished to challenge OPSEU's actions, the remedies sought by Mr. Smith would result in the repudiation of one aspect of the local agreement, which was that all classification grievances, save those for which Berry orders had been given, would be withdrawn.

41. In determining whether there has been undue delay in the filing of this complaint, the Board must take into account the actions which have been taken by the parties to the local agreement since August of 1993, in reliance on and in fulfilment of their obligations under that agreement. As put by counsel for OPSEU, a "lot of water has gone under the bridge" since August of 1993. I have described how the issue of the classification grievances was the final stumbling block to the achievement of the local agreement. In a sense, therefore, all of the obligations which were undertaken under the local agreement, even those not related directly to classification issues, can be seen as flowing from the parties' agreement on the withdrawal of the classification grievances. Since August of 1993, both sides to the settlement, OPSEU and the government, have expended considerable resources and time in the implementation of the local agreement. Further, and more particularly related to the withdrawal of the classification grievances, most of the grievors whose classification grievances were withdrawn have been paid out of the $20 million devoted to compensating them.

42. The potential retrospective effect of the remedies which are sought in this application on the pattern of labour relations since August of 1993 and on the rights and expectations of the other employees in the bargaining unit are therefore significant. In this light, and in the absence of any good reasons for the delay in filing this complaint, I see no reason to inquire further.

Whether in any event OPSEU failed in its duty of fair representation

40. Because it may assist the parties, I have reviewed the merits of the complaint and I would have found in any event that OPSEU has not breached the duty of fair representation established under section 69 of the Act.

41. Firstly, I reject the argument that the provisions of the old CECBA establish the principle that a grievor in a classification grievance has sole carriage of that grievance. I do not need to address the conundrum which is posed by Mr. Smith's submissions, which is how the provisions of the old CECBA even apply and how the Board can apply them, if it is his position that the Labour Relations Act applies to his complaint. But in any event, I am satisfied that the arguments based on sections 18 and 19 of the old CECBA fail. The decisions of the Grievance Settlement Board to which I was referred makes it clear that although an individual may have a statutory right to file a grievance, section 19 of that Act preserves the union's right to decide whether to pursue the matter to arbitration: see E. Blake et al v. Amalgamated Transit Union and The Crown in Right of Ontario (Toronto Area Transit Operating Authority), (1988) GSB #1276/87 et al (Shime); Amalgamated Transit Union, Local 1587 (Ronald Francis) v. The Crown in Right of Ontario (Toronto Area Transit Operating Authority), (1987) GSB #1528/86 (Brandt); and OPSEU (Ethier) v. The Crown in Right of Ontario (Ministry of Community & Social Services), (1992) GSB #2536/91 (Knopf). There is therefore no statutory impediment to OPSEU's ability to settle Mr. Smith's grievance before arbitration.

42. Although an extract from the Constitution of OPSEU has been submitted to me, neither party relied on it in its presentation of its case.

43. As to whether OPSEU acted arbitrarily (it was not asserted that there was any bad faith or discrimination) in withdrawing the classification grievances, I was referred by the parties to a number of decisions of courts and tribunals, including Centre hospitalier Regina Lttee v. Labour Court, 90 CLLC ¶14,019; Frederick Carl Vincent, and United Steelworkers of America and Walker Exhausts Limited, [1979] 2 Can LRBR 139; Nick Bachiu and United Steelworkers of America, Local 1005 and Steel Company of Canada Limited, [1975] OLRB Rep. Dec. 919 and Dufferin Aggregates, A Division of Dufferin Materials and Construction Ltd., [1982] OLRB Rep. Jan. 35.

44. The applicant relies in particular on the reasons of the Supreme Court of Canada in Centre hospitalier Regina Ltee. In that case, an employer appealed the order of the Quebec Labour Court on the basis that the Court had no authority to order a referral of a grievance to arbitration as a remedy for a violation of the duty of fair representation. In the course of its reasons, the Supreme Court discussed a union's duties in dealing with employee grievances. The Supreme Court neither endorsed the notion that a union has an unlimited discretion to "sacrifice" a valid grievance in order to obtain benefits for the bargaining unit as a whole, nor rejected the notion that a union and an employer may settle a great number of grievances together. The Supreme Court quoted with approval a passage from the Ontario Labour Relations Board decision in Nick Bachiu, supra, indicating that it "clearly illustrates the necessity for a union to have some discretion in collective bargaining to "swap" grievances, even when they appear to be valid."

45. A number of factors in this case persuade me that the decision taken by OPSEU to agree to the withdrawal of all classification grievances (with the Berry order exception) does not violate the principles established in Centre hospitalier Rdgina Ltee, nor in any of the other cases to which I was referred. First, although the withdrawal may be seen as part of a "swap" of grievances for benefits to the bargaining unit as a whole, consideration was given to the nature of these grievances weighed against the nature of the benefits given in return for their withdrawal. The union's evidence was that the bargaining committee came to the conclusion that if no local agreement were reached, and if the union did not agree to some kind of disposition of the classification grievances, many jobs would be lost. The union made its priority the preservation of jobs. Not only did the union give thought to the interests at stake, it recognized, accurately in my view, that classification interests are not the sort of "critical job interests" identified in Centre hospitalier Rdgina Ltee which will substantially restrain a union's discretion to "swap" for a collective benefit.

46. Further, it would be inaccurate to state that the bargaining committee either completely ignored or failed to assess the individual merits of these grievances. It is clear that the bargaining committee was aware that some or many of these grievances were valid. There is nothing in the cases before me which suggests that a union is absolutely prohibited from settling a grievance which it believes to be valid. Again, the discretion given to a union to settle a valid grievance will likely be considerably different in a case involving a dismissal grievance than in a case such as the one before me.

47. Related to this, it would also be inaccurate to characterize this agreement as a simple exchange of individual grievors' interests for a collective interest. The evidence is that the union anticipates that those grievors with a valid classification complaint will have their interests addressed as part of the bargaining unit overhaul (to which $20 million has been devoted for the purpose of salary adjustments). Further, each grievor whose grievance was withdrawn was offered a share of the additional $20 million payout. It cannot be said, therefore, that these grievors have not received or will not receive any individual benefit from the agreement.

48. Rather than acting arbitrarily, therefore, I am satisfied that the union gave thoughtful and due consideration to both the interests of the grievors and the interests of the bargaining unit as a whole, taking into account relevant factors and arriving at a decision on the basis of principles which are not clearly unreasonable. Therefore, if I had been satisfied the Board had jurisdiction over this matter, I would have dismissed it on its merits.

49. In any event, this complaint is dismissed.