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HomeMy WebLinkAbout1991-2536.Ethier.92-09-01' ~, ;' ~;,~ ' ,' '; ONTARIO EMPLO¥~$OELA COURONNE ' .;.~ + , ~. , CROWN EMPLOYEES DE L 'ON 7AR;O GRIEVANCE C,OMMISSION DE SETTLEMENT . REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET wEST, SI./.~TE 2.~00, TORONTO, ONTARIO. MEG ;Z,¢ TELEPhIDNE/TEL£PHOcN'E: (4 IS; 226- ~80. RUE OUNDA$ OUEST. BUREAU~2~O0, TORONTO (ONTARIOI, MSG 'IZ8 FAC$.~M~LE,'TELC:COP~E ,.(4 ~6I 325- 2536/91, 2537/91, 2811/91 IN THE M~TT~R OF ~N ~BITI~TXON Under THE CROW' EMPLOYEES COLLECTIVE B~,RGAINING ACT Before THE GRIEVANCE SETTLEI4~NT BOARD BETWEEN OPSEU ('Ethier) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: P. KnOpf ' ' Vice-Chairperson · I. Thomson . Member D. Clark Member FOR TNB R. Davis UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Ethier GRIEVOR FOR THE S. White E~PLOYER Counsel Legal Services Branch Ministry of Community & SOcial Servfces HEARING July 8, 1992 This case involves a grievance alleging violations failure to grant one day's leave with pay, the deduction of half a day's wages and a complaint about the Employer's conduct during the processing of a grievance by contacting the Union Representative directly. At the outset of proceedings, a preliminary matter arose. The griever, David Ethier, made it clear that he wanted to present the grievance personally and not through the counsel who had been retained by the Union. Counsel for the Union took the position that .the Union has carriage rights of cases before the G'rievance Settlement Board and asked that the matter be adjourned to enable the griever to give proper instructions to the Union counsel. Counsel for the Ministry took the position that it was neither.consenting to nor o~posing the adjournment. However, the Ministry's position is that the matters of representation and carriage rights are vested solely with the Union as the party to the Collective Agreement. The Board gave the griever an opportunity to explain his position thoroughly. Mr. Ethier explained that he wished to assert what he considered to be a fundamental right to present the grievance himself. He argued that he had filed a proper grievance within the Collective Agreement. He said that the grievance is "his grievance" and that he has the right to present the grievance in his individual way, but that he would be doing so "as the Union." He feels that the Union has no 'existential right" to process the grievance on his behalf. The griever fundamentally believes that, as a member of the Union and as a Steward for the Union, he "is the union" and has the right to present the grievance on his own. Mr. Ethier voiced complaints over the fact that the Union President had not contacted him with regard to this case nor had Mr. Ethier been consulted about the choice of lawyers. }]owever, he did .indicate that he.had mo particular objection to'the counsel who had been chosen. He just felt that, as a member of the Union, he ought, to have the' right to pursue his Grievanc~ without the assistance of a lawyer. Mr. Ethier believes that if the lawyer retained by OPSEU proceeded without Mr. Ethier's consent "a fundamental injustice will occur.' Counsel retained for the Union argued that the Union is a party to the Collective AGreement and as such has been Given the right under the Crown Employees Collective Bargaining Act to. present cases.before the Grievance Settlement Board. In this Way, the Union is able to protect the collective interests of all the Union members and can ensure that a case put before this Board represents the Union's interpretation of the Collective Agreement. "Counsel points out that in any individual grievance, more than individual rights may be at 'stake because all the members of OPSEU would have an'interest in the Outcome. of the the arbitration'case. As an example, counsel pointed out that the griever wished to assert in this case that it would be a violation of the Collective.Agreement for the Union Representative to talk .to the Employer's representative. directly during the processinG of a.G~ievance. This is clearly contrary to OPSEU's practice and interpretation of the Collective AGreement. 'Thus, it was .argued that the Crown Employees Collective Bargaining Act and the Collective AGreement provide that OPSEU should have carriage rights in .arbitration-in order to ~rotect the members' interest as a whole. Both. counsel for OPSEu and the Ministry presented a selection of previous Board jurisprudence on this issue: - 3 - ~gal~ama~ed Transit Union, Local 1587 (Francis) an~ Toronto Area Transit Operating Authority, GSB File 1528/86 (Brandt) dated June 11, 1987 Blake'and Amalgamated Transit Union and Toronto Area Transit Operating Authority, GSB File 1276/87, (Shime) May 3, 1988 Freedman and Ministr~ of Attorney General, GSB File 0012/84, (Samuels) dated January 23, 1980 and Fun~/Anand and Ministry of Revenue, GSB File 1798/89 (Stewart) dated September 3, 1991. The Decision The following Collective Agreement and statutory language is critical to the determination of this case. The Collective Agreement provides: 27.4 If the griever 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 griever may apply to the Grievance Settlement Board for a hearing of the grievance within 15 days of the date he received the decision or within 15 days of the specified time 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 Crown Employees Collective Bargaining Act provides: 18.-(2) In addition to any other Fights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he had .been appraised contrary to the governing principles and standards; or (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 provided in the collective agreement, and failing final determination under such procedure, the matter may be'processed in accordance with the procedure for final determination applicable under section 19.-(1) Every collective agreement shall be deemed to provide that .in the event the parties are unable to effect a settlement of any'differences between them arising from the-interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbit'rable, such matter may be .referred for arbitraion to the Grievance Settlement Board'.and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, ~shall decide the matter and its decision is final and binding upon the parties and the employees covere'd' by the agreement. Ours is not the first case where this dilemma has come before the Board. It was decisively dealt with in the Francis grievance when it was held: Section 18(2) has been held by this Board in cases like Keelin~ to prevent the parties to collective bargain.lng from negotiating provisions which would have the effect of preventing employees from processing certain kinds of grievances through the grievance procedure. It does not however contemplate an automatic' right to carry a grievance to the Grievance Settlement.Board. The concluding clause of Section 18(2) provides that where' a grievance is not resolved in the'grievance procedure it may be processed to the Grievance Settlement Board in accordance with the procedure for final determination applicable under Section 19. Under Section 19 the Board has jurisdiction where the 'parties", that is the Employer and the Union, have not been able to effect a settlement of the matter, This case has b~en applied consistently in Blake, Freedman and Fung/Anand, as cited above. Indeed, in the Blake decision, the Chair of our Board,· Mr. Shime, notes: ... Section 18(2) specifically grants the employee the right to grieve in the active sense but ... the employee's right does not continue through the Section. Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only "the matter" that is entitled to proceed in accordance with the arbitration procedure in Section 19. The employee while given the right to grieve is.not specifically g'iven the right to arbitration. ~ Mr. Ethi.er has told this Board that a fundamental injpstice would result 'if he were not allowed to process his grievance personally before this Board. With respect, we fundamentally disagree. As the cases cited above indicate and as good labour relations dictate, the parties to a Collective Agreement are the Union and the Employer. Under the statute and the Collective Agreement, they are parties who administer the contract together and who have carriage rights at arbitration. Individuals, such as Mr. Ethier, are not without protection to ensure that their ".fundamental rights" are addressed. First, the Crown Employees Collective Bar~ai~ing AC__~t imposes a duty of fair representation upon OPSEU and provides a method of redress for a Union member before the Public Service Labour Relations Tribunal. If, at the end of the day, Mr. Ethier believes that he has not been properly served by the Union he can launch a complaint there. Further, the Law Society's Code of Ethics for lawyers protects Mr. Ethier with regard to his relationship with the lawyer retained by OPSEU so that he is not in a position that he is being represented' at a hearing by a counsel who is in conflict with Mr. ~.thier's inte'res~s. ' Finally, we note that'Mr. Ethier has voiced no objection to the particular counsel ~etained by OPSEU. It is clear from the'representations made to us that Mr. Ethier and Mr. Davis have. simply been .unable to discuss.the case regarding the merits of the grievance because of Mr.. Ethier's refusal to provide instructions to counsel. Our'belief is that if Mr. Ethier were to co-operate with counsel he would quickly-realize'that he could be well served by an . experienced law firm, expert in labour relations and the administration of this Collective Agreement. The Ministry is also represented by an experienced lawyer. Mr. Ethier would undoubtedly be best'pro~ected if his case were presented through a properly instructed and co-operative firm of labour relations lawyers who are sympathetic to the union cause and effect in their' field. We urge Mr. Ethier to reconsider Eis position and co-operate with counsel. As sta'ted above, this Board has consistently held, and we :agree-that-the prod~sing of cases before the · Grievance settlement Board must proceed in accordance~with Section 19 of the Crown Employees Collective Bargaining Act which provides that the Union alone has carriage on behalf of its membership of all cases before the Grievance Settlement Board. The Union has requested that this matter be adjourned in order that it obtain instructions from Mr. Ethier. We' grant that request to the Union-. We urge Mr. Ethier to co-operate with counsel. We direct that the matte~, be adjourned sine die returnable before the Board at the request of either the Union' or the Employer. If, at' the expiration of one .year following the date of the decision, the matter has not been 'requested to be rescheduled for hearing, the grievance will be deemed to be withdrawn. As this panel of the Board heard no evidence regarding the merits of the case and as the Union and the Employer' counsel agree that we are not seized with the case, . we retain no jurisdiction over the matter. DATED at Toronto, Ontario this tst day of September, 199~. Paula K hairperson D. Clark - Member