Loading...
HomeMy WebLinkAboutBartley 03-01-14 IN THE MATTER Of AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCES OF $ONIA BARTLEY BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR ROBERT J. GALLIVAN COLLEGE NOMINEE SHERRIL MURRAY UNION NOMINEE APPEARANCES FOR THE COLLEGE: J. LYNN THOMSON DAVE IVANY DAN TSUJIUCHI APPEARANCES FOR THE UNION: TIM HANNIGAN MARILOU MARTIN SONIA BARTLEY OPSEU FILE NOS.: 02A395, 02A463, 02A464, 02A465, 02A466 HEARING DATE: DECEMBER 23, 2002 ! The Grievor, Sonia Bartley, works as an Accounts Payable Clerk in the Department of Finance at the College. In the spring of 2002, she filed five grievances as a result of various memoranda issued by Dan Tsujiuchi, the Manager of Financial Services. It is the position of the Union that these grievances ought to be heard by Arbitrator Rick MacDowell, rather than the present Board. In this regard, the Union advised that in April, 2001, the parties entered into Minutes of Settlement in connection with a number of grievances which had previously been filed by Ms. Bartley. Paragraph 6 of the Minutes of Settlement provides that, subject to the exception set out in paragraphs 4 and 5 (which is not relevant for purposes of these proceedings), the settlement represents a full and final resolution of all issues related to the Grievor's employment. This paragraph further provides that the parties, including the Grievor, agree not to refer to or rely on incidents which occurred prior to execution of the Minutes of Settlement, either in their day-to-day dealings or in any proceedings related to the Grievor's employment. Paragraph 7 provides that the terms of the settlement shall remain confidential and shall not be referred to in any future proceedings, except for purposes of enforcing the settlement. Paragraph 10 provides that any issues relating to implementation of the settlement are to be dealt with by Arbitrator MacDowell. The first of the five grievances filed by Ms. Bartley in the spring of 2002 concerns a memorandum issued by Mr. Tsujiuchi on March 4th, regarding a meeting with the Grievor on February 6th, during which he expressed concern about the Grievor 2 taking excessive breaks. The memorandum also sets out certain dates in January, February and early March, 2002, when excessive breaks were said to have been taken. As well, the memorandum refers to a similar issue having arisen in November, 2000 and, in view of this latter reference, the grievance filed by Ms. Bartley claims a violation of the Minutes of Settlement executed in April, 2001. As well, the grievance alleges coercion and intimidation and the Union advised that the grievance concerns the College's failure to accommodate the Grievor, based on medical documentation provided to the College both prior to and subsequent to execution of the Minutes of Settlement, indicating that from time to time, the Grievor may require longer breaks. The College acknowledged that in view of the Minutes of Settlement, the memorandum of March 4th should not have referred to the issue of excessive breaks having been raised in November, 2000. Accordingly, the memorandum was reissued on March 28th, omitting any reference to that time period. Thereafter, a second grievance was filed by Ms. Bartley, containing allegations similar to those in the initial grievance. In this regard, the Union contended that although the revised memorandum makes no reference to November, 2000, the College, nevertheless, relied on incidents at that time and thereby contravened the Minutes of Settlement. The third grievance concerns a memorandum issued by Mr. Tsujiuchi on April 8, 2002, confirming a meeting with the Grievor on that date regarding her failure to work overtime on April 6th and 7th. This grievance claims, among other matters, that the memorandum of April 8th is vexatious, that it constitutes harassment and intimidation, and that it is contrary to a number of Articles of the collective agreement. The fourth grievance filed by Ms. Bartley concerns a memorandum issued by Mr. Tsujiuchi on April 15, 2002: which is specified to be a written warning. Among other matters, this memorandum refers to the Grievor failing to complete her year end work, playing computer games and surfing the Internet during working hours and taking excessive breaks. The grievance claims, in part, that the memorandum of April 15th constitutes a reprisal and that it is frivolous and vexatious and contrary to the collective agreement. The fifth and final grievance filed by Ms. Bartley in the spring of 2002 concerns a memorandum issued by Mr. Tsujiuchi on April 19th as a result of an exchange which took place between the Grievor and another staff member some time in April. This grievance alleges a violation of the collective agreement and claims that Mr. Tsujiuchi's memorandum of April 19th reflects bias and serves to foster a poisoned work environment. It was the submission of Mr. Hannigan, on behalf of the Union, that the five grievances filed by Ms. Bartley concern a pattern of conduct on the part of the College, which took place over a six week period, and that all of the memoranda which gave rise to the grievances are disciplinary in nature. In these circumstances, it was 4 contended that the grievances ought to be heard together. Mr. Hannigan further contended that the first two grievances allege a violation of the Minutes of Settlement executed by the parties in April, 2001, which is clearly a matter for Arbitrator MacDowell. Moreover, like the memoranda which gave rise to those grievances, the memorandum of April 15, 2002 (which gave rise to the fourth grievance) refers to the Grievor taking excessive breaks and it was submitted that this reference reinforces the interrelationship among the five grievances. Accordingly, Mr. Hannigan submitted that the grievances ought to be referred to Arbitrator MacDowell. it was the submission of Ms. Thomson, on behalf of the College, that the grievances filed by Ms. Bartley concern events which occurred in the spring of 2002, approximately one year after the Minutes of Settlement were executed. Ms. Thomson further contended that although Mr. Tsujiuchi's memorandum of March 4, 2002 should not have referred to the matter of excessive breaks having been raised in November, 2000, that memorandum was reissued, omitting any reference to the earlier period. On this basis, therefore, Ms. Thomson contended that the first grievance is moot and that the Grievor's claim is effectively encompassed by the second grievance, which is properly before this Board. With respect to that claim, Ms. Thomson contended that there is nothing in the Minutes of Settlement which would preclude the College from raising concerns regarding excessive breaks taken by the Grievor in 2002, simply because similar concerns were raised prior to the settlement. Accordingly, it was $ submitted that the matter of excessive breaks taken by the Grievor in 2002 does not involve the interpretation or implementation of the Minutes of Settlement. As to the third, fourth and fifth grievances filed by Ms. Bartley, Ms. Thomson submitted that these grievances were filed as a result of memoranda issued by Mr. Tsujiuchi dealing with matters, such as the Grievor's failure to work overtime, her failure to complete year end work and an exchange between the Grievor and another staff member, all of which took place in 2002. Ms. Thomson further contended that only the memorandum of April 15th is disciplinary in nature. Moreover, it was submitted that there is no nexus between the events described and the Minutes of Settlement and, accordingly, the grievances filed by Ms. Bartley are properly before this Board, rather than Arbitrator MacDowell. By way of reply, Mr. Hannigan submitted a number of the grievances filed by Ms. Bartley raise issues with respect to the Minutes of Settlement. As a result, it was contended that it would be of benefit to both parties if all of the grievances were heard by an Arbitrator who has jurisdiction to deal with the settlement. The five grievances in question, which were filed by Ms. Bartley in the spring of 2002, concern memoranda issued by Mr. Tsujiuchi, which refer to conduct on the part of the Grievor during the period from January to April, 2002. Among other matters, these memoranda refer to the Grievor taking excessive breaks, failing to work overtime, failing to complete her year end work and making inappropriate use of the computer during working hours. The final memorandum refers to an exchange which took place between the Grievor and another staff member in April, 2002. The Union maintained, however, that a number of the grievances, which were filed as a result of these memoranda, raise issues with respect to Minutes of Settlement executed by the parties in April, 2001. Accordingly, it was submitted that all of the grievances ought to be referred to Arbitrator MacDowell as he is seized of matters relating to implementation of the settlement. As to the nature of the grievances filed by Ms. Bartley, the first grievance concerns a memorandum issued by Mr. Tsujiuchi on March 4, 2002, which confirms a meeting with the Grievor in February, in which Mr. Tsujiuchi expressed concern about her taking excessive breaks. As well, the memorandum sets out a number of dates in early 2002 on which excessive breaks were said to have been taken. However, the memorandum also refers to the issue of excessive breaks having been raised in November, 2000. In view of that reference, the Grievor claimed that the College violated the Minutes of Settlement, which provide, among other matters, that the parties will not refer to or rely on incidents which occurred previously. In fact, the College acknowledged that, based on the Minutes of Settlement, the memorandum of March 4th should not have referred to events in November, 2000 and, accordingly, the memorandum was reissued, omitting any 7 reference to such events. Although the Grievor then filed a second grievance containing allegations similar to those in the first grievance, the Union advised that the essence of the Grievor's claim concerns the College's failure to accommodate her, based on medical documentation provided to the College both prior to and subsequent to execution of the Minutes of Settlement, indicating that from time to time, the Grievor may require longer breaks. It was acknowledged, however, that the Minutes of Settlement make no reference to the matter of accommodation and, in our view, there is nothing to preclude the Grievor from relying on medical documentation provided to the College prior to execution of the Minutes of Settlement in support of her claim that the College has failed to accommodate her by allowing her to take extended breaks in 2002. Moreover, reliance on such documentation does not, we find, raise issues relating to the interpretation of the Minutes of Settlement. Similarly, to the extent that the memorandum of March 4th and the revised memorandum of March 28th, which gave rise to the first and second grievances, concern breaks taken by the Grievor in 2002, we cannot conclude that such issues relate to the interpretation or implementation of the Minutes of Settlement so as to warrant referral of the grievances to Arbitrator MacDowell, As to the third grievance filed by Ms. Bartley, this grievance concerns a memorandum issued by Mr. Tsujiuchi in April, 2002, regarding the Grievor's failure to 8 work overtime on April 6th and 7th. There was no suggestion that this grievance is related in any way to the Minutes of Settlement. The fourth grievance was filed as a result of a memorandum issued by Mr. Tsujiuchi on April 15, 2002, which claims that the Grievor failed to complete her year end work, played computer games and surfed the Internet during working hours and, as well, took excessive breaks. In our view, the reference to excessive breaks contained in that memorandum is not sufficient to find that the grievance filed as a result of that memorandum raises issues involving the interpretation or implementation of the Minutes of Settlement. The fifth and final grievance filed by Ms. Bartley concerns a memorandum issued by Mr. Tsujiuchi on April 19, 2002, due to an exchange which took place between the Grievor and another staff member earlier that month. Again, there was no suggestion that this grievance is related to the Minutes of Settlement. In the result; although the initial grievance, which was filed in response to Mr. Tsujiuchi's memorandum of March 4, 2002, alleges a violation of the Minutes of Settlement, this allegation was based on a reference to the issue of excessive breaks having been raised in November, 2000, which was acknowledged to be inappropriate. The memorandum was, therefore, reissued, omitting any reference to that time period. Moreover, although the second grievance, which was filed in response to the revised memorandum; contains allegations similar to those set out in the initial grievance, the Board understands that the essence of the claim concerns an alleged failure on the part of the College to accommodate the Grievor by allowing her to take extended 9 breaks in 2002. In our view, this matter, as well as issues raised in the remaining grievances, which concern events which took place in 2002, do not involve the Minutes of ,Settlement executed by the parties in April, 2001. Accordingly, we find that a proper basis has not been established for referring the grievances to Arbitrator MacDowell and, instead, we find that the grievances are properly before this Board. The hearing shall be reconvened to deal with merits of the grievances filed by Ms. Bartley and the Board shall remain seized pending final disposition of the grievances. DATED AT TORONTO, this 14th day of January, 2003. Chair "Robcrt J. Gailivan" College Nominee "Sherril Murray' Union Nominee