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HomeMy WebLinkAboutUnion 98-03-23 -, --. '.-.' '" . , . IN THE MATTER OF AN ARBITRATION BETWEEN: NETWORK NORTH THE COMMUNITY MENTAL HEALTH GROUP AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 666 IN THE MATTER OF GRIEVANCE: UNION GRIEVANCE DATED OCTOBER 15,1996 ARTICLE 5.03 - OPSEU File # 96H261 BOARD OF ARBITRATION: Kevin M. Burkett - Chairperson Ms. Susan Pratt - Employer Nominee Mr. John McManus - Union Nominee APPEARANCES FOR THE EMPLOYER: Marc Piquette - Acting Director Human Resources John Scott - Manager of Addiction Services Lilianne Lamontagne - Office Supervisor APPEARANCES FOR THE UNION: Jim Gilbert - Grievance Officer Don Malette - Staff Representative A Hearing in this matter was held in SUDBURY, Ontario on January 8, 1998 .' AWARD The union grieves in this matter that the employer is in breach of Article 5.03 of the collective agreement by reason of its refusal to accede to the request of Ms, Carole Anderson, a bargaining unit employee, to have Mr. Donald Malette, the union staff representative responsible for servicing this local, present at a meeting with management involving an issue of discipline. Although the employer had advised Ms. Anderson that she could have her steward present, (but not the staff representative), it takes the position that Ms. Anderson was not entitled to representation at this meeting and, therefore, there has been no breach of the collective agreements, There is no dispute with respect to our authority to hear and determine this matter, The relevant provision of the collective agreement are set out below; ARTICLE 5 - UNION RIGHTS AND ACTIVITY 5.01 The Employer agrees to recognize the following union stewards: One (1) steward from each of the eight (8) Community Clinics: Walden Help Centre, Positive Steps, Alternatives (St. Charles), Chapleau Mental Health Clinic East Algoma Mental Health Clinic (Elliott Lake) Espanola Mental Health Clinic Manitoulin Mental Health Clinic Nadmadwin Mental Health Clinic, '. .' 2. and Community Clinics - Central Team; one (1) steward from PineGate Addiction Services, one (1) steward from Men's Detox Services; one (1) steward from Women's Detox Services; one (1) steward from Developmental Clinical Services (Cottage 2); Two (2) stewards from Regional Children's Psychiatric Centre full-time; two (2) stewards from Regional Children's Psychiatric Centre part-time; one (1) steward from Speech/Language Service; one (1) steward from Occupational Therapy; one (1) steward representing R.M.C. and Education; and one (1) steward from Sudbury Algoma Hospital representing clerical employees; full-time and one (1) clerical part-time; plus three (3) stewards-at-Iarge whose jurisdiction and duties will be stipulated in writing bý the Union. The number of jurisdictions of stewards shall be reviewed by the Employee Relations Committee from time to time. 5.02 All the above-mentioned representatives shall be employees who have completed their probationary period, unless there are no employees off probation in the work area to be represented. 5.03 In addition to the above employees, the Employer shall also recognize a i Union Staff Representative who may be assigned to assist these employees in the discharge of their union duties. A Staff Representative may enter the premises of the Employer to conduct union business after having received prior permission from the Director of Human Resources. Such permission shall not be unreasonably withheld. The Emp!oyer may request the attendance of a Union Staff Representative at any meetIng. 5.04 The union shall provide the Employer with an up-to-date list of the names, office and jurisdiction held by each employee acting pursuant to this Article, and only those thus named shall be recognized by the Employer, Stewards will nonnally deal with matters arising in their area of jurisdiction. If the steward for an area is unavailable, the alternate steward, as designated in writing by the Union, may be excused by her supervisor to deal with the matter. 5.05 It is understood that representatives of the Union have their nonnal duties to perfonn; therefore, no representative shall leave her duties to conduct Union business as provided in this Agreement without prior consent of her supervisor which shall not be unreasonably withheld, .. . 3. 5.06 Union Stewards may attend at Grievance meetings with the Employer without loss of regular pay. It is understood that such time spent at Grievance meetings shall not be used in the calculation of any overtime pay. ARTICLE 6 - GRIEVANCE PROCEDURE 6.01 It is the mutual desire of the parties that complaints of employees shall be adjusted quickly and effectively. As provided in clause 5.05 and 5.06, an employee and her steward shall be given time off with no loss of pay to attend any grievance meeting with the Employer provided for in this Article. 6.04 Complaints An employee with a complaint shall discuss the matter with her immediate Supervisor within ten (10) days of the circumstances giving rise to the complaint, or of the date on which the employee ought reasonably to have become aware of the circumstances. During this discussion, the employee will infonn the immediate supervisor that such discussion should be considered as a complaint under the Grievance Procedure of this Agreement, Her immediate Supervisor shall give her answer within five (5) days of the discussion of the complaint. Failing settlement at the Complaint Step, within five (5) days of the answer or deadline for giving the answer, the matter may then be taken up as a grievance. 6.05 A grievance shall be derIDed as " any difference arising out of the interpretation, application, administration, or alleged violation of the Collective Agreement." An employee has no grievance until she has flISt discussed the complaint with her immediate supervisor, 6.06 Grievance Procedure Step 1 An employee may fùe a grievance in writing with the next supervisory level above the immediate supervisor. The grievance shall identify the nature of the grievance, the remedy sought and should specify the provisions of the Agreement which are alleged to have been violated, The grievance shall be dated and signed by the employee. The Employer shall reply in writing within five (5) days of the submission of the grievance, .. , , 4. The parties agreed on a statement of facts that is reproduced below; 1. Network North and O.P.S,E.U. are parties to a collective agreement with an expiry date of March 31, 1996 (appendix # 1 attached). 2. A disciplinary meeting was held in October 10, 1996 in a program operated by Network North called PineGate Addictions Services. The meeting involved Carole Anderson, a Secretary/Receptionist, employed in PineGate. Carole Anderson is covered by the scope and recognition clause of the collective agreement between Network North and O.P,S.E.U. Also present at the meeting were Lilianne Lamontague, Office Supervisor, and John Scott, Manager of Addiction Referral. 3. When Carole Anderson reported to Lilianne Lamontagne's office as requested, she was informed by John Scott that the meeting would involve an issue of discipline, Carole Anderson was then asked by John Scott if she wanted the assistance of the union steward for PineGate who was available to attend the meeting. Carole Anderson declined the offer stating that she wanted to select the union representative who would attend and stated that she wanted Donald Malette, the O.P.S.E.U. staff representative to attend the meeting. Carole Anderson asked if her request to have her choice of representative was being refused. The assistance of the PineGate steward who was available to attend the meeting was offered a second time by John Scott to Carole Anderson. Carole Anderson then left the office to make a telephone call. 4. When Carole Anderson returned to the office Marc Piquette, Manager of Labour Relations, by telephone speaker offered Carole Anderson the option of having the PineGate union steward attend the meeting. Carole Anderson again stated that she wanted her choice of representative and that her choice of representative would be the local 666 President, Fae Hancharyk, or the O.P.S.E. U. Staff Representative, Donald Malette. Carole Anderson declined the assistance of the PineGate union steward. Marc Piquette asked if Carole Anderson had a reason to justify her request to have the President or Staff Representative attend the meeting. Carole Anderson offered no reason and responded by reasserting that she wanted to select her own representative and that she wanted the President or Staff Representative to attend. The request to select her choice of representative and have the President or Staff Representative attend was then denied. Carole Anderson was then again offered the assistance of the PineGate Steward by Marc Piquette and she declined the offer, f .' 5. 5. The disciplinary meeting then proceeded. Carole Anderson was provided a letter of discipline which imposed a one shift suspension. Lilianne Lamontagne, John Scott and Carole Anderson were present at the meeting. Mr. Don Malette, the umon staff representative SIDce 1994, gave uncontradicted evidence that union stewards regularly attend meetings of the type at issue here and that over the initial objection of local management he attended one such meeting in the past. Although not contacted by either Ms. Anderson or the employer in advance or at the time of the meeting here, he testified that he would have cleared his calendar in order to attend if he had been asked. The union argues that bargaining unit employees have a right to union representation at meetings of this type, both under the statute and under the collective agreement. The union relies on the provision for stewards under Article 5.01, the recognition of a union staff representative assigned to assist stewards under Article 5.03 and the provision for stewards to attend grievance meetings without loss of pay under Articles 5.06 and 6.01. It is the position of the union that these. clauses, read together, entitle an employee to representation by both a steward and a union staff representative in a disciplinary, (as distinct from an investigative) meeting, More specifically it is the position of the union that under Article 6,01, representation by both a steward and, if requested, by the staff representative, is an entitlement when an issue involving employee discipline crystallizes. The union relies upon Fleet Industries and I.A.M. Local 171 (1975) 10 LAC . .' 6. (2d) 69 (Arthurs) and B.C. Telephone Co. and Telecommunications Workers (1988) 32 LAC (3d) (Kinzie) in support of its interpretation of these provisions of the collective agreement. Victory Soya Mills and Teamsters Local 1247 (1987) 28 LAC (3d) 349 (A. Barrett) is cited in support of the proposition that the employer cannot choose who will represent an employee. The union argues that in addition to whatever right to representation is found in the collective agreement, there exists a statutory right as well; a statutory right that would apply in the circumstances here, to entitle Mr. Anderson to the representation she sought. We are referred to Windsor Western Hospital O.L.R.B. rep. November, 1984 1643 in support of this proposition. i. The union argues in the flIst alternative that if the language is ambiguous the evidence establishes that stewards are regularly present at meetings such as the one at issue here and, therefore, by necessary implication, given the existence of Article 5.03, there is a right to have a staff representative present as well. The union argues in the second alternative that given the practice, given the failure of the employer to say anything about a departure from the practice at bargaining and given the union's reliance on the practice in accepting the status quo, the employer is now estopped from departing from the practice. The union argues in the fIDal alternative that on these facts and apart from any general right to representation, where representation by the steward was offered, the employer breached . .' 7. Article 5,03 when it refused to allow Mr. Malette, the staff representative to attend the meeting at which Ms. Anderson was disciplined. The employer asks us to apply the strict language of the collective agreement. The employer points to Article 5.06 as containing the representation right upon which the union relies; the right which the union asserts gives the steward standing at the meeting in question and by the operation of Article 5.03, the staff representation. It is the position of the employer that the right is to attend at "grievance meetings". Weare referred to Article 6 which sets out a process for registering employee complaints with the immediate supervisor following which a grievance may be fùed. Weare referred specifically to the stipulation in Article 6.05 that" an employee has no grievance until she has flISt discussed the complaint with her immediate supervisor," and the requirement in Article 6.06 that a grievance be in writing. The employer argues that whereas there is a right for a steward to be present at a grievance meeting, the meeting at issue here was in connection with the imposition of discipline prior to the fùing of any grievance, Accordingly, we are asked to fIDd that the grievor did not have a right to be represented by her steward or by the union staff representative. The employer relies on re Zellers Inc. and Department Store Union (1986) 25 LAC (3d) 222 (Haefling) in support of the position that absent an express entitlement in the collective agreement there is no requirement for representation prior to the implementation of discipline. Oshawa General Hospital and ONA (1997) 33 LAC (3d) J .' 8, 78 (H,D. Brown), Consumers Gas Co. and International Chemical Workers (1973) 2 LAC (2d) 366 (H.D. Brown) MacMillan Bathurst and Canadian Paperworkers Union (1992) 29 LAC (4th) 415 (Schiff) and Metro Toronto and CUPE Local 43 (1989) 9 LAC (4th) 353 (Joyce) are cited as examples where, absent express provision for representation in the specific circumstances of each case, fmdings were made that representation was not required. Weare asked to fmd that under this collective agreement there is no requirement for representation prior to the fùing of a grievance and, therefore, the refusal to allow the staff representative to attend (even though it would have allowed the steward to attend) does not constitute a breach of the collective agreement. In response to the union reliance upon post practice, both for purposes of resolving any ambiguity and for purposes of establishing an estoppel, the employer argues that one prior incident where the staff representative appeared at a meeting such as this does not constitute a practice that can be relied upon. In response to the union submission that there exists an independent statutory right, the employer submits that any statutory right must be applied having regard to the agreement of the parties. In so far as the union relies on the decision of the O.L.R.B. in re Windsor Western Hospital (supra), the employer points out that in that case the collective agreement provided for representation at the time discipline was imposed. Absent such a , ." 9. requirement under this collective agreement it is argued that a breach of the collective agreement cannot be found on the basis of statutory representation rights. We start by endorsing the general statement of principal articulated in re Windsor Western Hospital (supra), The O.L.R.B. relying on the reasoning of the United States Supreme Court in re J. Weingarten Inc. and Retail Clerks (1973) 485F 2d 1135, 84 LRRM 2436 U,S.C.A. 5th Circuit, 430 U.S. 251 (Sup, Ct.), stated as follows; The whole scheme of our Act is to reverse the imbalance that exists between individual employee and employer, The Act provides for the certification of trade unions to act as collective representative for all of those falling within a bargaining unit found to be appropriate for collective bargaining. It is clear on a reading of the Act as a whole that the right to collective representation encompasses not only the negotiation of the collective agreement but the representation of individual employees in pursuit of or in protection of their rights under the collective agreement. It follows that just as under the American and Quebec statutes, which are designed to serve essentially the same purpose, the right to collective representation under the Labour Relations Act (embodied in the right accorded to all persons under section 3 of the Act to join a trade union and participate in its lawful activities and the prohibition in section 64 of the Act against interference with the representation of employees by a trade union) extends to include union representation at a meeting called by the employer to charge an employee with misconduct or to impose discipline. While the statute does not give an employee the right to choose his union representative, it does protect the right to representation and prohibits employer interference with this right. It is not for the employer to decide who will be the employee's representative at a discipline meeting or to put impediments in place that cannot be reasonably justified. , .' 10. In that case, where the collective agreement provided for union representation at the time that discipline is imposed, the O.L.R.B. found that in the absence of any explanation from the employer as to why the meeting at which it was put to the individual employee that she could resign or be terminated, could not be rescheduled to facilitate union representation, the employer" exploited its authority over (the employee) to interfere with her right to be represented at the discipline hearing (as provided in the Act and under the collective agreement) and thereby breached section 64 (now Section 90) of the act." The board then remitted the matter back to arbitration; an exercise of its remedial discretion that was quashed by the court. The ratio of the decision, however was allowed to stand. While we are limited in our jurisdiction to applying the tenns of the collective agreement, the purpose and scope of the representation rights under the statute are instructive when faced with conflicting interpretations as to the scope of representation rights under a collective agreement. The position of the employer is that under Articles 5.06 and 6.01. read together, the right to fonnal representation commences after the fùing of a written grievance and that under the scheme adopted by these parties, under which the individual must [lIst disèuss a complaint with his/her supervisor before fùing a grievance, there is no right to fonnal representation prior to the fùing of the grievance. We do not read Articles 5.06 and 6.01 as having the limiting effect suggested by the employer. The purpose of these clauses, when read in the context of both the statutory framework and the , .' 11. related provisions of the collective agreement, is to provide an entitlement to union stewards to attend grievance meetings" without loss of regular pay," Without these clauses there would be no entitlement to payment of stewards for attendance at grievance meetings. We look to Articles 5.01 and 5.04 in derIDing the scope of representation rights. Article 5.01 provides for a number of stewards within identified areas of jurisdiction. Article 5.04 provides that" stewards will nonnally deal with matters arising in their area of jurisdiction. " There is no restriction on what these "matters" are. Finally, Article 5.05 stipulates that the prior consent of the employer will not be unreasonably withheld when a steward seeks to "leave her duties to conduct union business as provided in this agreement." These are the clauses that speak to the scope of representation. It must be presumed that the "matters" over which the steward is empowered to deal in his/her area of jurisdiction, given the extent of the statutory entitlement, would, at the very least, (whether or not the time off work is paid» encompass the representation of employees at meetings with management where discipline is imposed where such representation is sought by the affected employee, This would, of course, include the meeting at which Ms. Anderson was disciplined. It is our fIDding, therefore, (consistent with both the statute and the practice) that if requested, a steward is entitled to be present at such a meeting for the purpose of representing the employee who is about to be disciplined. In this regard it is to be observed that there is no such open-ended conference of representation rights in the contract language under review in Zellers (supra) and therefore that award must be distinguished. I " 12. We make this rIDding without intending to suggest that under Article 6.04 an employee is entitled to union representation when, as mandated under that clause, he/she discusses a "complaint" with his/her immediate supervisor, Complaints may encompass any number of work related matters such as a failure to properly schedule overtime, payments of shift premium or change in shift rotation, a change in job responsibilities, a failure to recognize seniority, the necessity for a medical certificate etc. These parties, in their wisdom, have agreed that initially complaints of this type shall be dealt with between the employee and his/her immediate supervisor. These parties have decided that matters such as these, if not resolved between the individual employee and the immediate supervisor may then be dealt with in the fonnal grievance procedure with the attendant union representation. However, there is a fundamental difference between matters such as these and 'the application of discipline. Discipline involves charges of improper conduct against an individual employee, the imposition of penalties up to the termination of employment and impacts the on-going employment record. Furthennore, the setting within which discipline is imposed, where statements or denials' may later be relied upon, constitutes a critical distinction that weighs in support of a rIDding that, absent express language to the contrary, the provision for dealing with individual complaints directly with the supervisor is not intended to deny an employee representation, if requested, in matters of discipline. In our view the scope of representation provided for under Article 5.04 encompasses representation at the time that discipline is imposed and is in no way limited J " 13. by the individual complaint process under Article 6.04. Accordingly, notwithstanding the parties' agreement that complaints be dealt with directly between the individual employee and his/her immediate supervisor under Article 6.04, the imposition of discipline is nevertheless a "matter" within the meaning of Article 5.04, in respect of which, if requested, representation rights apply. The issue before us is the refusal of the employer to allow the union staff representative to attend the meeting at which Ms. Anderson was disciplined. The employer offered to have the steward present but was not prepared to have the staff representative present. In most cases the presence of the steward would be sufficient, regardless of the desire of an individual to have a higher ranking union official present. However, under this collective agreement Article 5,03 stipulates that",., the employer shall also recognize a union staff representative who may be assigned to assist those employees (stewards) in the discharge of their union duties." The import of the clause is that a staff representative who is assigned by the union to assist a steward in the perfonnance of his/her union duties shall be recognized by the employer. We know that representation at a meeting for the purpose of imposing discipline is a matter within the realm of a stewards union duties. Indeed, the employer offered Mr. Anderson the representation of her steward. It follows from the clear meaning of Article 5.03 that if assigned, Ms. Anderson was also entitled to have present the union staff representative. The employer was emphatic that it would not recognize Mr. Malette, the staff representative, if he was assigned. It is our view that the . " 14, employer, in so doing, interfered with Mr. Anderson's representation rights under Article 5.03. Under the tenns of this collective agreement she was entitled to representation by her steward and, if assigned, her staff representative as well. It does not lie in the month of the employer to preemptively deny recognition to. the staff representative in circumstances, as here, where, if assigned, it was required to recognize the staff representative. Having regard to all of the foregoing the grievance succeeds. We hereby declare that by preemptively refusing to recognize the union staff representative as a participant at the meeting in which Ms. Anderson was disciplined the employer breached Anicle 5.03 of the collective agreement. i )~ßJ -'[¿,íP-\- ¿¿J DATED in TORONTO on this date o~ary, 1998, ,/ L 'ji II! < ~1---1 ~ 'i- ,t, ' ,Kevin M. Burkett' 'J --~ I ~r /Dissent ~ / r: ., O~\&J~ ~ fat' Susan Pratt I concur~t 1\ -', M¿ MC{i ll~ -r ~OV\~ John Mc:Nfanus DISSENT " RE: Network North and OPSEU Local 666 Union Grievance dated October 15, 1996 reo Article 5.03 - OPSEU # 96H261 I have given careful consideration to the Award in this matter, and I find that I must respectfully dissent. The statutory scheme underlying the collective bargaining relationship confers on the union exclusive rights to represent all employees in the bargaining unit. However, the point in time at which an employee may be entitled to union representation depends upon the specific terms of the collective agreement. Article 5.04 provides that stewards will normally deal with matters arising in their area of jurisdiction. Although "matters" are not defined, Article 5.05 stipulates that union representatives must obtain prior consent before leaving their duties to conduct union business l "as provided in this Agreement". Accordingly, the parties must look to the collective agreement to define what is union business which may be conducted by stewards. Article 6.04 stipulates that employees with a complaint must discuss thè matter with their immediate supervisor before it may be taken up as a formal grievance. This discussion must take place within 10 days of the circumstances giving rise to the complaint. Complaints may encompass any matters of any nature arising from the work place, including the imposition of discipline, even though discipline will usually have more serious consequences to the employee than other matters which may be the subject of Complaints, Nevertheless, no matter what the subject of the Complaint, Article 6.04 requires that it be discussed between the employee and supervisor before it can become a grievance. The parties have agreed in Articles 5.06 and 6.01 that the entitlement to union representation only arises after the Complaint discussion, if the matter is taken up as a formal grievance and grievances meetings are held. Entitlement to union representation at a meeting with the Employer to impose discipline is not provided for in the collective agreement. However, what is provided for in Article 5.05 is that Union representatives may only leave their duties with the consent of their supervisors to , conduct union business "as provided in this Agreement". Based on the above reasons, jt is my respectful submission that the scope of representation should be limited to what the parties have expressly agreed to in the collective agreement, and that "matters" referred to in Article 5.04 should not be given such a broad interpretation so as to include the right to union representation at discipline meetings. Accordingly, the grievance should be dismissed. Date: March 17, 1998 ~~vr-- \) {CJJ Susan Pratt Employer Nominee