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HomeMy WebLinkAbout1991-0113.Speare.91-11-25 ~' '" ~ =.~ ~" 'i ": ~ " ONTARIO EMPLOYES DE LA COURONNE ~, '. ! CROWN EMPLOYEES DEL'ONTARiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TE£~.PHONE: (4?6) 326-~388 180, RuE DUNDAS OU~ST, BUREAU 2100, ToRO,*'~I'O (ONTARIO). MSG IZ8 FACS)Mf, LE/TEL~'COPtE : (476) 326-~'396 113/9[ ZN THE MATTER OF ~NARBZTRATZON Under THE CROWN EMPLOYEES COLLECTZVE BARGAZNING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN : ..... OLBEU (Speare) .... ,, Grievor - The Crown in Right of ontario (Liquor Control Board of Ontario) Employer BEFORE: M. Gorsky Vice-Chairperson w. Rannachan Member A. Stapleton Member FORT HE S. Philpott ., GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR ~THE R. Drmaj EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors October 25, 1991 INTERIM DECISION The Grievor, Glynn Speare, was at all material times classified as a 'C' Store Manager with the Employer. Although the Union alleges that there are two grievances before us: one dated January 28, 1991 (Exhibit 3); the other dated February 1, 1991 (Exhibit 2), c~unsel for the Employer took the position that only Exhibit 2 was filed, processed through the required stages of the grievance procedure, referred to arbitration, and scheduled before this panel of the Board by the Registrar. Accordingly, it was submitted that the grievance represented by Exhibit 3, was not properly before this panel of the Board, and the issues raised by it are not within our jurisdiction. In Exhibit 2, the "statement of grievance (clauses violated)" in that grievance is as follows: 18-2-C. of CECBA Also refer to grievance of 1988 and settlement. 3rd 'C' Mgr. to go out of this store. Why? The "settlement desired" states: To be made whole in all aspects. Plus all material removed from file. Also written apology from !. Ginsberg and anyone else in mgt. involved, The Employer acknowledges having received Exhibit 2, that it~ passed through all of the requisite stages of. the grievance procedure, and was properly referred to arbitration, a~d maintains that.it is the only grievance that has been placed before us by the Registrar for hearing. 2 In Exhibit 3, the "statement of grievance (clauses Violated)" is as follows: 18-1-A-B-2-B CECBA. Also refer to 1989 grievance. ~The "settlement desired," is stated as follows: To be made whole in all aspects. Also harassment to stop. Counsel for the Employer objected to the Board assuming jurisdiction to hear.the grievance set-out in Exhibit 3, alleging ..-~, .,that .it rhad.~never~been~ filed with the Employer; that its subject . matter was never agreed .to be. treated as part ~f the subject matter of the grievance in. Exhibit' 2 during any stage of the grievance procedure or thereafter; and 'that it had ~never been referred to the Board for hearing. We are satisfied from the evidence that Exhibit 3 was never filed with the-Employer; that the Employer never agreed, during any of the stages of the grievance procedure, or thereafter, to treat the subject matter of Exhibit 3 as being incorporated in the subject-matter of Exhibit 2; that it never proceded through the _grievance procedure mandated in the collective agreement; and was never referred to arbitration or placed before the Board by the Registrar. The position 'of the Union is set out in a letter of September 5, 1991, from Ms. Philpott, its counsel, to Mr. S. Shamie, then 3 acting as counsel for the Employer. The letter is stated to be "without prejudice", however, counsel for the Union waived any privilege. The said letter, Exhibit 7, is, in part, as follows:: We confirm that the hearing in the above-noted grievance, scheduled for July 19th, 1991, has been adjourned, with the consent of the Union, due to the unavailability of the L.C.B.O.'s witness, Ian Ginsberg. We have just received notice that the rescheduled date fdr hearing is October 25th, 1991. There are a number of matters to address prior to the hearing as there appears to be quite a history to the ~rievor's relationship with Ginsberg, all of which fo]~ms the background of this grievance. As .you are aware, the grievance J. nvolves, firstly, a two day suspension which was. imposed upon the grievor by letter dated January 28th, 1991, to be served on February 12th and 13th, That suspension has never been served, although the discipline remains.on the grievor's file- Secondly, the grievance.alleges harassment and. refers to a 1989 grievance and settlement which.play a part in the history of this matter. Copies of the 1989 grievance and settlement are enclosed. There are actually two grievance forms, copies of which we enclose. However, it appears that the January 28th, 1991 grievance has been treated by both parties as subsumed urtder the February tst, 1991 grievance. In any event, the current grievance should be regarded as two tiered, and complains of both unjust discipline .and harassment. Should an amendment to the grievance form be necessary, kindly advise. The suspension was not served as the grievor went on sick leave immediately after receiving the letter of suspension, upon his physician's recommendation. Speare had been visiting his family physician periodically prior to that time for treatment of job related tension. This tension was the direct result of harassment by Ginsberg. The two day suspension was apparently the final straw in the grievor's eyes and his physician accordingly recommended that Speare take sick leave for an indefinite period pending resolution of the situation with Ginsberg. Speare returned to work early in July of 1991 after some five months' absence. His physical and emotional ability to return to-work were a-direct result of the removal .Df 4 Ginsherg from his position as District 21 manager and, I understand, removal from the store system altogether. The removal of ,Ginsberg from an active management position in the store system has come a long way toward rectifying the situation and assuring Speare that his health will no longer be.jeopardized.by his employment with the LCBO. There is, however, the matter of the five months of sick credits~which he has.used and the mental · anguish, pain and suffering he has endured, to which his physician will attest, which must be compensated. In order to avoid a protracted hearing which will likely be damaging to both the grievor and the L.C.B.O., we propose the following terms of settlement: 1. The L.C.B.O. will reimburse Speare's sick bank with ~ the 100 days [this~is an approximate number] he was ..required to-use ast~ r~sult.of his illness. 2. Th~..L.C.B.O.~ wi'll pay to Speare $3,000 in recognition of the, mental 'anguish,. pain and suffering he endured and the disruption to his family and marital stabilityt all a result of his treatment by Ian Ginsberg. 3. The two day suspension will be removed from the grievor's file. Counsel for the Employer took issue with the allegation contained in Exhibit 7 that "the January 28, 1991 grievance has been treated, by both parties as subsumed under the February 1st, 199i grievance," nor did he agree with any of the other factual assumptions expressed in the letter. On September 26, 1991, Ms. Philpott again wrote to counsel for the Union, at this point being Mr. D. J. McKeown (Exhibit 8), the letter being as'follows: ~ We have been advised that you are now handling this 5 matter, scheduled for hearing on October 25, 1991. We enclose a copy of our September 5, 1991, letter to Mr. Shamie of your offices, for your' review and response. In addition, there is one further matter which we neglected to address in our September 5 letter to Mr. Shamie. The reference in the January 28, 1991, grievance to the "1989 grievance" and the reference in 'the February 1, ~1991, grievance to "grievance Of 1988 and settlement" both speak to the fact that the settlement reached on October 17, 1989, has been breached. As you are aware, the earlier grievance involved an allegation of a disciplinary transfer of Mr. Speare 'from store nun~er 551 to store number 573. In exchange for withdrawing his grievance and accepting the transfer to store number 573, Mr. Speare was assured that the harassment by Ginsberg would stop. Because the harassment resumed, we now · advise that. an additional condition of settlement is tlhat 'Mr. Speare~be transferred back to store number 551. Kindl~ contact the undersigned .once you have had an opportunity to review the above with your client. Exhibit 9 is a letter, dated October 18, 1991, .from Mr. Dry, j, now counsel for the Employer, to Ms. Philpott: Further to our telephone conversation of today's date, please be advised of the following: (1) The proposed settlement forwarded under letter of October 8, 1991 from Dan McKeown is hereby withdrawn; (2) Enclosed is a copy of a letter dated October 18, 1991 to Mr. Glynn Speare from the LCBO rescinding the 2-day suspension. As the issue now appears to be settled with the withdrawal of the suspension, it is our position that the grievance is resolved and the Grievance Settlement Board does not have any jurisdiction to hear this or any other matters. In the event you choose to pursue this matter at the Grievance Settlement Board on October 25, 1991, we are advising that we have no knowledge of any of the particulars on which you plan to rely and by this letter, I am requesting you to provide us with any and all particulars and documents related to your presentation to 6 the Board. I trust this is satisfactory. The' letter of October 18, 1991 to Mr. Speare from the LCBO (Exhibit 5), was signed by Dave Marshall, Regional Director Central Region, and is as followS: Further to .my memorandum of April 24,~1991, and our Stage 3 grievance meeting,on April 10, '1991, I have once again reviewed the circumstances of your grievance. While'I cannot condone the language that you utilized in correspondence to your Supervisor, Mr. Ian Ginsberg, it would not appear to be in the LCBO's.~best interests to pursue+ the issue ~t'~this ~'im~, '~spec~lly in view of Mr. ~ '' Ginsberg's resignation. ' ~ " . .~ Therefore, we will withdraw Mr. Ginsberg's letter of January 28, 1991, which suspended you for two days without pay. Since the suspension was never served, -there-will'n0t be a need to'Yeimburse you for any lost time. On a more personal note, I hope that you will. make every effort to build an effe6~i~e working relationship with your new District Manager, Mr. Larry Flynn. The grievance of February 1, 1991 (Exhibit 2) was the only grievance placed before the Board by the Registrar. The reference in Exhibit 2 is to section 18(2)(c) of the Crown Employees Collective Bargaining Act R.S.O., 1980 cap. 108: In addition to any other'rights of grievance under a collective agreement, an employee claiming, (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in'accordance' with the procedure 7 for final determination applicable under section 19. Mr. Drmaj argued for the Employer that the grievance must be found to relate to the imposition of discipline by Mr, Ginsberg on January 28th, 1991, as set oUt in Exhibit 4: i have reviewed your reply to the Notice of Intended Discipline issued to you on January 15, 1991. It is obvious from your letter that you continue to be insolent and insubordinate. I have no alternative but to suspend you for two days without pay, namely~Feb<uary 12 ~nd 13, 1991. " '= Glynn,: a'ny more i~stances of this nature will not be tolerated and will result in furthe~ discipline up to and including dismissal. Mr. ~rmaj .submitted that" when the discipline meted out on January 28th 1991 was rescinded by Exhibit 5, that .ended the matter. Exhibit"< 5 was said to amount to a settlement of the grievance and to the removal of the mat{er from the jurisdiction of the Board. Mr. Drmaj relied on J~sCn, 888/89 (Watte~s) and ~Q3_~]2, 256/80 (Kennedy). in both Of those cases, the well established jurisprudence of the Board was reviewed, a~d all the cases referred to the issue of whether the parties had entered into an agreement to settle the.grievance before the Board. In this case we are not dealing with a situation where the grievance was alleged to be' settled between the parties, nor with the other situations referred to in the cases: where the grievance was abandoned or withdrawn, but where the Employer unilaterally withdraws the imposition of discipline. 8 The position taken on behalf of the Grievor was that the "settlement" of the grievance by the withdrawal of the suspension did not end the matter. It was submitted that'.the imposition of the discipline was merely another example of ongoing harassment by the Grievor's then'supervisor Ian Ginsberg, and that the G'rievor was also entitled to reimbursement to his sick bank of the approximately 100 days he was required to use as a result of his illness, allegedly precipitated by the alleged acts of harassment, and to payment of $3,000 "in'recognition of the mental anguish, .~ain and suffering~he endured.in,the disruption to his-family and marital stability,~all as a result of" the alleged harassment. The .Union therefore t~eated the grievance form as being with respect~to two grlevances: (1) A grievance, claiming.that the Grievor had been disciplined without just cause, and that as'part'of his defence he could establish 5y way of evidence acts ~of ~arassment directed against him by Mr..Ginsberg, and to rely on suc~ acts as a defence to any claim by the Employer that he had, by.his actions, furnished it'with just cause for the imposition of discipline. The remedy for this grievance woul6 entitle the Grievor to the withdrawl of the disciplinary notice from his record and, if he had served the' suspension, to payment of all wages' and benefits lost. (2) A grievance that the Grievor's rights under the collective agreement had been violated by acts of harassment by Mr. Ginsberg directed' against him, and based on this allegation the'Grievor was entitled to the credit to his sick bank and to the damages for "mental anguish, pain and suffering" etc., as above referred to in Exhibit 9 7. It was the position of the Employer that there had. never been any acts of harassment as alleged; that no separate grievance based on an allegation of harassment had been made in Exhibit 2; and that as Exhibit 3 was not.before this Board it could not now be dealt with, even assuming it contained a separate claim based on harassment, which was denied. An examination of Exhibit 2 'does'not. discl'ose ..any direct reference to a separate claim based on harassment~ nor does the settlement desired disclose a request arising out of such a claim. Counsel for the Union.suggested that such a claim arose out of the Grievor's defence, to his suspension, and that a claim for harassment could be derived from the remaining statement{{ contained in the statement of grievance in Exhibit-'2. The reference in Exhibit 2 to: "also refer to grievance of 1988 and settlement," concerns a memorandum of settlement dated October 17, 1989, arising out of an earlier grievance by Mr. Speare (GSB'654/89) which grievance was not filed with us, but which, we' 'were advised, concerned an allegation by the Grievor that an earlier transfer was, in fact, disciplinary in nature. The terms of settlement are as follows: 1. The Employer assures Mr. Speare that his transfer was not in any way for disciplinary reasons, but rather because~ of the Employer's needs for his special skills and aptitudes in the new location. Further, the Board assures Mr, Speare that there is nothing on his file or the Employer's records that would have a detrimental~ effect upon his eligibility for promotion. 2. The Union and Grievor agree to withdraw the captioned grievance. Although there was nbthing in the minutes of settlement to indicate that it was concerned with any alleged acts of harassment, the Grievor regarded the settlement as an assurance that he would no longer be subject to acts of harassment by Mr. Ginsberg. .. As to the words: "3rd 'C' Mgr. to go out of this store, why?", found in,'Exh'ibit 2, the~rievor viewed them as amounting to an allegation that it ~as because' ~f acts of harassment by Mr. Ginsber'g tha~ three "C' managers left s~e~573. Although Mr. ~'Speare may h~ve intended the abov~ quoted s~at~ment tO convey that Mr. Ginsberg had harassed .him and that he was raising a separate griegance based on'harassment, it 'can reasonably be viewed as merely asking a question, the nature of which is unclear. It is evident that the Grievor now regards the allegations in Exhibit 2 as arising out of his claim that he was being subject to acts of harassment b~ Mr. Ginsberg. On the evidence before us, including~Exhibit 6, there is nothing that could be interpreted as an allegation of harassment in Exhibit 2. The language chosen to convey a grievor's complaint need not meet an unrealistic standard of clarity, and boards of arbitration will strive to discern the real as opposed to the ostensible grievance. In the circumstances of this case, it would have been a simple matter to assert in the statement of grievance th,_= Grievo~'s complaint that he was being harassed by Mr. Ginsberg, and that this claim represented a further matter included in the grievance. This was not done in the case of Exhibit 2, It was up to the Grievor to convey his intention and not up to the Employer to divine a meaning from cryptic references which, on their face, do not suggest the existance of a seperate grievance based on harassment. Counsel for the Union argued ~that if the evidence in defence. of the Grievor's allegation that he had been disciplined without just cause involved evidence of harassment by Mr. Ginsberg, then the issue of harassment was before the Board; and if the defence based on harassment was established, the Board could grant the relief requested in her letter of September 5, 1991 (Exhibit 7). While the acts of alleged harassment might have beer, raised in support of a defence to an allegation by the Employer that the- discipline had been imposed for just cause, it is quite another thing to then endeawour to utilize the alleged acts of harassment as a basis for a distict claim and for consequent relief. There is no reasonable way that the language of the claim in Exhibit 2 could be so interpreted. The only way that such a claim could be regarded as properly before the Board would be if there was evid.ence that, notwithstanding the ostensible form of Exhibit 2, the Employer had 12 responded to its being subsequently raised by the Grievor. in such a manner as to recognize that it was the real grievance. ~ The Board must strive to avoid what was referred to. in Reits~aL 93/89 (McCamus), at p.10, as "unfairness to the Employer in permitting a 9rievance to unfold on the basis of a particular set of allegations and a particular theory of liability, only to have it altered fundamentally at the arbitration process. The integrity of the earlier steps .in the dispute resolution process would ,,obviously' be unde'rmined by-¥a wiilingness.~to"allow what is, in effect, a new grievance at thi~ stage." Although the }{ei tsma case refers to the unfolding of the new basis for the grievance at the'arbitration s~age, we do not read 'the quotation 'as 'permitting a ~ew .grievance not raised in the grievance form to be advanced during the grievance procedure even if it is not accepted by the Employer as being within the grievance as filed. That this-is the case can be seen from the further statemnts of the Board. 'At pp. 10-12 of Reitsma, the Board in noting the' need to recognize that the formulation of the grievance need not meet some standard of perfection, stated: - On the other hand, if the Board were to give too sweeping a view to the applicatibn of [the above] proposition, other harmful effects to. the dispute resolution process provided for in the collective agreement would follow. As the Board noted in Gwin [27/83 (Draper)], an overly legalistic approach to. the treatment of grievances may frustrate the objective of "acting upon grievances so as to achieve settlement of the true dispute," Thus, it cannot be the ·case that the Union is precluded from advancing legal arguments at the arbitration process that may not have been precisely formulated by the 13 representatives of the Union at earlier stages of the process. There are two reasons for this, Firs]:, the various steps in the grievance process envisage increasing levels of familiarity with the factual circumstances underlying the dispute. It is therefore obvious: that the Grievor' s understanding of the factual basis of his or her claim w'[ll evolve as this process unfolds · Thus, even though the fundamental nature of the grievance may not be effected [sic], the factual contours of the dispute may be adjusted over time and may lead the Union, for example, to rely on facts of which it was not completely aware at the initial stages of the process. Second, if the initial grievance document and the initial statements made on befalf of the Grievor by the Un2Lon at step one, for example, were held, in effect, to be legal pleadings in the technical sense from which no deviation could be contemplated at a later stage, the early stages of the process would, in our view, become needlessly technical and legalistic. It is entirely within the ~.~pirit of the mechanisms set forth ~in the collective agreement that lawyers may not · ' become involved in the process until its later stages. Accordingly, it is consistent with that general structure that the gravamen of the Union's grievance may be put forward at the arbitration stage within the framework of the legal analysis or arguent that may not have been precisely formmulated by the Union's representatives at earl'ier stages in 'the proceess. It i~ therefore necessary to distingui.={h, then, between the kind of fundamental change in the nature of the grievance that engages the line of jurisprudence set out above with the result that the grievance must be dismissed s, nd the introduction ~f legal arguments and analysis that do not have this result. In Re~tsma, at p. 13, the Board regarded the change in the Union's position as being a change in argument in support of its initial allegation that there had been a violation of art% 3.20.1 of the collective agreement and not "in_ effect a request to this Board 'to entertain a grievance, so fundamentally altered as to be tantamount to a sperate grievance raising different issues'." In the case before us, as is noted above, the Grievor could have, by way of defence, attempeted to rely on the alleged acts of harassment in support of his position that he had not been disciplined for just cause, and reliance on such evidence would have been within the "second category" referred to at p. 12 of Reitsma. Where, however, the alleged acts of harassment are being relied upon as amounting to a separate claim they 'fall within the first category and 'represent an attempt to raise "a separate grievance -raising separate issues," and not merely a "'new argument' in support of what. is essentially the' same grievance seeking essentially the ~ame relief." (Reitsma, at p. 13.) If'a grievor could, at a later stage, raise a new issue not set-out in the grievance form, without the employer recognizing the -new .issue .as~ being included in the ,statement i-of grievance, the limitation provision of the collective agreemen%J (art, 27~13) would be.rendered ineffective. -, ,' We are satisfied that when. Exhibit 2 was filed, the Grievor's concern was with respect to his having been disciplined without just cause. The quite distinct claim for damages based on alleged acts of harassment that he now raises (See Exhibit 7) was not likely within his contemplation when Exhibit 2 was framed, and his grievance was prepared accordingly. There was no evidence that the Grievor, prior to filing the written grievance pursuant to art. 27.3.1, had indicated, pursuant to art. 27.2.1, that he had a specific grievance based on harassment as opposed to a claim that he had been discipl-ined -without just cause, where part of the 15 explanation for his behaviour, which was said by the Employer to represent just cause, was related to alleged acts of harassment. We are also satisfied that Exhibit 3 was neither filed nor processed through the grievance procedure because it was intended that it would be replaced by Exhibit 2. Exhibit 3 was p~epared in anticipation of discipline being imposed, but because this had not yet happened, an attempt was made to grieve against the "Notice of Inteded Discipline" of January 15, 1991, referred to in Exhibit 4. When the actual discipline was forthcoming, Exhibit 2 was filed and it, al~ne, was processed through the..stages of the grievance procedure and referred to arbitration. It was only some time after Exhibit 2 had been. filed~.that the Grievor wished to convert it from a grievance claiming discipline without just cause', in which part of the explanation for his allegedly culpable beha¥iour was to be based on alleged acts of harassment directed against him by Mr. Ginsberg, to one including a distinct grievance claiming damages for the alleged acts of harassment. This conclusion is consistent with Exhibit 3 never being processed through the grievance procedure. There was no evidence of anyone on behalf of the Grievor endeavoring to convince the EmPloyer' that Exhibit '3 had been somehow misdirected. The evidence is more consistent with its never having been filed for the reasons above stated. It is clear from the Grievor's evidence that he regarded himself as being subject to harassment by Mir. Ginsberg except for 16 a short period of time proximate to the settlement of his earlier grievance (Exhibit 6;, yet at no time was a grievance filed based on such alleged actions. Given the form of Exhibit 2, and the Grievor's failure to rely on earlier acts of alleged harassment prior to filihg it, we~conclude that to the extent that the latter grievance contained a basis fo.r relying on the alleged acts of harassment, it was by way of defence only. As we must find, after a most generous reading of Exhibit 2, ,'that a claim based on harassment was not raised in the statememt of grievance,' .is there any evidence to demonstrate that the matter was raised by or on-behalf Of the Grievor duri~g~ the grievance procedure or thereafter, and treated as beihg part ~f the real' grievance~by the Employer? Ms. Ellen Thomas, the zone representative for ~rea 19,.and the local president of the Union, who investigated a~d handled the grievance, testified that although the subject of harassment was raised by the Grievor at the second stage grievance meeting, the representatives of the Employer refused to treat it as a matter properly raised by Exhibit 2, sta%ing that the matter was "not on the table for discussion." The matter does not appear to have been pursued further on behalf of the Grievor during the grievance procedure. Ms. Thomas also testified that the Grievor had also raised the 17 subject of harassment at the third stage of the grievance procedure and management once again refused to discuss the matter for the same reason given at t~e second stage meeting. The only matter referred to by Ms. Thomas that was discussed was the subject of removing any detrimental references to the Grievor from his file, apparently referring to letters between the Grievor and Mr. Ginsberg, as well as the letter threatening the two day suspension and the letter of suspension. The Union also relied.on the letter of its counsel to the then Employgr counsel (Exhibit 7), as evidence that the claim arising out of the allegations with respect to harassment had been raised, if not in the grievance, at least in subse~aent discussions between the parties and accepted by the Employer as being a valid addition to the real grievance of Mr.Speare, and .that the. grievance allegedly raising a claim for harassment ~Exhibit 3) was subsumed in Exhibit 2. Exhibit 7 is in the form of an offer to settle, wlhich offer was not _accepted. In the circumstance, it is not possible to insinuate into the grievance before us .issues which were not contained in that grievance, and which were never accepted by the Employer, by its conduct, as being properly before us. There is a suggestion in Exhibit 7 that this was tlhe case, however, tlhe evidence is to the contrary. 18 There were additional allegations that at the pre-hearing meeting an endeavor was once again made to raise the issue of harassment, which attempt was again rejected. The evidence .also discloses that not only'was'Exhibit 3 never received .by the Employer 0r by the Grievance Settlement Board, it was never dealt with at any of the stages of the grievance procedure. 'Even if that grievance can be interpreted as raising a claim for harassment with consequent relief, the matter not being befo~e ~s,'we hav~ no'jurisdiction to deal wit~ it. ~" What we are left'with is a grievance ~Exhibit '2) that can only be interpreted as raising a claim that Mr. Speare had been disciplined without just cause. As the discipline has been withdrawn and as the suspension was never served, there is no basis for awarding additional relief to the Grievor for harassment. Harassment, if established by the Grievor as a defence to an allegation by the Employer that the discipline had been imposed for - just'cause, could net serve as a basis for claiming the additional i relief set out in'Exhibit 7. In the circumstances, we do not have to deal with issues relating to the jurisdiction of the Board to award the kind of relief requested. This decision is limited to dealihg with the preliminary objections raised on behalf of the Employer that have disposed of the basis for our jurisdiction and does not attempt to deal with the.' merits of the allegation that the rights of the Grievor under the collective agreement were violated by certain alleged acts of harassment directed at him by Mr. Ginsberg, or whether the Board can grant relief for acts of harassment or the nature of such relief. In the result, and for the above reasons, we declare: (1) 'the grievance claiming harassment, said to be~ found or subsumed in Exhibit 2, to be inarbitrable and (2) that we have no jurisdiction to deal with the grievance set o~t in Exhibit 3, there being no evidence that it was ever processed through the grievance procedure nor referred to the Board for arbitration. , Dated at Toronto this 2§£h day u~f November, !991. M. R. Gorsky...,~ice Chairperson / W. Rannachan ~-~ -~'. Sea~letog - ,~)6mbez'