Loading...
HomeMy WebLinkAbout1987-0433.Union.88-01-21File # C&35/87 I Between: IN THE MATTER OF AN AF.BITBATION Under TBR CROWN RNPLOYRES COLLECTIVE BARGAINING ACT Before TBR GRIEVANCE SETTLENRNT BOARD f OPSEU (Union Grievance) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: I. Springate Vice Chairman I. Freedman Member P. Camp Member For the Grievor: A. Ryder Counsel Gowling and Henderson Barristers and Solicitors For the Employer: D. Brown Crown Law Office Civil Ministry of the Attorney General October 02, 1987 Grievor Employer .(. DECISION These proceedings arise out of a policy grievance filed by the union in which it complains that the employer contravened Article 27 of the collective agreement by failing to hold stage two grievance meetings with respect to a number of employee grievances. The collective agreement provides that an employee with "a complaint or a difference" is to first discuss it with his supervisor. If the matter is not settled as a result of this discussion, the employee is entitled to go to stage one of the grievance procedure, which involves filing a written grievance with his supervisor. If the matter remains unresolved, the employee may progress to stage two. He does so by submitting a grievance to the relevant deputy minister or his designee. The deputy minister'or his designee is then required to meet with the employee. At such a meeting, the employee is entitled to be accompanied and represented by an employee representative. If the grievance is not settled at the stage two meeting, the employee can apply to the Grievance Settlement Roard for a hearing. The relevant collective agreement provisions provide as follows: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the -2- 27.2.1 27.2.2 27.3.1 .27.3.2 27.3.3 interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. An employee who believes he has a complaint or a difference shall first discuss. the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. If any complaint or difference is.not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within anadditional ten (10) days in the following manner: STAGE ONE The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TN0 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his,designee within seven. (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. The Deputy Hinister or his designee shall hold a meeting with the employee within fifteen (13) days of the receipt of the grievance and shall give the grievor his decision i -3- . in writing within seven (7) days of the meeting. 27.4 If the grievor is not satisfied with. the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time limit for receiving the decision. 27.5 The employee, at his option, may be accompanied and represented by an employee representative at each stage of the grievance procedure. The facts relevant to this case’ are not in dispute. Following a change in.the classificaUon system for employees in the office administration group, a substantial number of employees filed grievances alleging that they had not been properly classified. At the hearing, the employer did not challenge union counsel’s contention that 172 employees within the Ministry of Correctional Services had filed grievances, and that some 86 of these grievances had been dealt.with at stage two’meetings. The Hinistry decided not to hold stage two meetings with respect to the remaining grievances. The employees involved.were informed of this decision by way of a letter from Hr. J. F. Benedict, the Ministry’s manager of staff relations and compensation. on agreement of the parties, one such letter, addressed to a Hr. - 4 - P. R. Antwi, was filed at the hearing. The letter reads as follows: Dear Hr. Antwi: We acknowledge receipt of your grievance dated January 30, 1987 in which you claim that your position is improperly classified in the Office Administration Group. The employer, as well as the ministry, has. received a large number of similar grievances from across the province. Unfortunately deputy minister designees will not be able to meet with each grievor individually to hear these classification grievances. Nevertheless the ministry is committed to giving your grievance its fullest consideration and your co-operation would be sincerely appreciated. .With this objective in mind attached you will find a copy of your present position specification. It would be helpful, to further consider the classification of your’position, if you would review this specification in consultation with your local union representative. Should you feel that this specification omits important duties or requires more elaboration you are invited to forward (without prejudice) your comments, preferably within a month, directly to the undersigned using the enclosed stamped self-addressed envelope. YOU may be assured that the comments and information you provide will be carefully discussed and analysed and, if necessary, a revised position specification will be prepared and your duties re-evaluated. YOU will be notified in writing at the earliest possible time of the outcome of the re-evaluation of your position. Thank you for your anticipated co-operation. Yours sincere.ly, J. P. Benedict Hanager Staff Relations and Compensation Copies of letters sent to employees were forwarded to a union representative. The union was not, however, consulted in advance concerning the contents of the letters or the decision not to hold stage two grievance meetings. It 7ppears that all employees who received a letter from Mr. Senedict~ subsequently forwarded their grievances to the Grievance Settlement Board for a hearing. The union filed a policy grievance alleging that the employer’s refusal to hold stage two meetings was a breach of the collective agreement. The employer denied the grievance. In doing so the employer contended, in part, as follows: . . . In this case we do notbelieve that the failure to hold second stage grievance meetings represents a violation of the collective agreement except perhaps the most technical sense. In our view there has been no substantial wrong or miscarriage of justice; the employees have not been prejudiced in any way and the.method selected by the employer is, under the circumstances,, consistent with the intent of the grievance procedure - “to adjust as quickly as possible any complaints or differences.” . . . - 6 - The union contends that the appropriate remedy for the employer’s alleged breach of the collective agreement is for the Board to grant all of the grievances which were not considered at a stage two meeting. In the alternative, the union asks that the employer be required to post notices at its various facilities advising employees that Mr. C .>‘. Benedict should not have sent the complained of letters and that they are entitled to attend stage two grievance meetings. According to union counsel, “such a posting is required to correct the false impression created by Mr. Benedict’s letters that the employer controls the grievance procedure. At the hearing, counsel for the employer indicated that he had “no difficulty” with the Board making a finding that the employer had breached the collective agreement. He further advised the Boa~rd that the employer is now prepared to hold second stage grievance meetings with respect to the grievances in question. Counsel opposed the automatic granting of any of the grievances as well as the requirement that it make a general posting to employees. Article 27.3.3 of the collective agreement provides that the Deputy Minister or his designee “shall hold a meeting” with an employee who has submitted a grievance at stage two. The language employed is mandatory. The employer - 7 - does not have the discretion to decide not to hold’such a meeting. We disagree with the statement in the employer’s reply to the grievance that if the collective agreement was violated it was only in a technical sense. A stage two grievance meeting provides an employee with the opportunity to set forth his position directly to a’senior representative of the employer. The Board regards stage two grievance meetings as privileged settlement discussions. Accordingly, , the parties can enter into frank discussions free of any concerns that their comment6 might later be used against them. As a result of such discussions, the employer may conclude that a grievance is meritorious, and accord redress to the employee without the necessity of a hearing before the Board. Alternatively, as a result of such discussions an employee mai decide that his~grievance is lacking in,merit and should not be forwarded to the Board for a hearing. Another possibility is that the parties might agree on a compromise solution to the grievance. Given these considerations, we are satisfied that not only did the employer breach Article 27.3.3 of the collective agreement, but that the breach was not merely technical in nature. Notwithstanding the benefits that can generally be gained from a stage two grievance meeting, such will not always be the case. In certain situations, such as when a number of grievances have issues in common, the parties might -e- reasonably conclude that little benefit would be gained by discussing each and every grievance. In such circumstances, they might agree that some of the grievance6 should by-pa66 a stage two meeting. Similarly, if difficulties arise due to the sheer volume of grievance6 filed, the employer and the union might jointly extend the time limits for stage two meetings. Any such arrangements must, however, be mutually agreed to. Given the number of classification grievances that were filed by employees in the Ministry of Correctional Services, one can understand why Mr. Benedict felt that some special arrangement was required to handle them. It was not,. however, ? open to him to impose such a special arrangement 2 without the union’6 consent. We are unable to agree with the union’s contention that the appropriate remedy for the employer’s breach of Article 27.3.3 is to grant all of the relevant grievances regardless of their individual merit. The situation at hand differs materially from’those cases where an employer has disciplined an employee in the absence of a union representative notwithstanding a collective agreement requirement that such a representative be present. In such cases, arbitrators have generally held the discipline to have been void ,b initio, and directed that the situation be returned to what it was prior to the imposition of the invalid discipline. See, for example, Re Toronto Western -9- Hospital and Canadian Union of Public Employees, Local 1744 (1985), 19 L.A.C. (3d) 191 (M. Picher). In the instant case,, however, the employer’s failure to properly follow the grievance procedure does not itself invalidate its earlier conduct when classifying the employees. See : Re Harry Woods Transport Ltd. and Teamsters Union, Local 141 (19731, 2 L.A.C. (2dl 393 (FOX). Further, unlike the situation in cases such as Toronto Western Hospital, to automatically grant the grievances would be to go well beyond returning the situation to what it was prior to the employer’s breach of the collective agreement. Given these.considerations, we are satisfied that the appropriate remedy is to require that the employer now hold the required stage two grievance meetings. To this end, we direct the employer to meet with the union to develop a mutually agreeable time schedule for the stage two meeti,ngs. Failing agreement as,to such a time schedule, it will be set by the Board. The letters sent to employees by Nr. Benedict must be withdrawn and the employees advised of their right to attend at stage two grievance meetings. It is far ‘from clear that this requires a posting by the employer addressed to all employees, including non-grievor6 and employees not in the office administration group. The desired result can be achieved by the employer sending a letter to each employee denied a stage two grievance meeting advising the employee . . ,. ( i - 10 - that pursuant to an order of this Board, Mr. Benedict’s letter is being withdrawn. The letter should also indicate that the employer will be meeting with the union to work out a mutually acceptable time table for the holding of second stage grievance meetings. The union is to receive a copy of each such letter. If the unibn is of the view that the letters do not conform with the intent of this direction, the matter may be raised with the Board. .The Board will remain seized of this matter ,in connection with the implementation of its directions. DATED at Mississau,ga, this 21st day of January 1988. - Vice Chairman I. Fj&dman - Member P. Gamy: