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HomeMy WebLinkAbout1992-3076.McLeod-Grass.95-10-11 :r .. - ~'-'f .f 0--9-. ONTARIO EMPLOYES DE LA COURONNE ~L CFlOWN EMPLOYEES DE L'ON1ARIO 10f0 (~f~ . . 'GRIEVANCE COMMISSION DE ' l\~' / ~.f, I 1111 SETTLEMENT , \9- . t\. c ;-tf REGLEMENT OS-\ . ~'i~) " ..- BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS,OUEST BUREAU 2100 TORONTO {ONTARIO} MSG lZ8 FACSIMILE ITELI:COPIE (416) 326-1396 I '~._---\ c_P:""" , Ir~~;~ GSB # 3076/92, 3129/92 . =-CEI ..~ , '. ,-. .... ~. ,. ~wr~ t R It: '. . il1Iil. VI ~.\.~{~ Y OPSEU # 93A163, 93A209-213 SEP 1 2 1995 PUBUC SEHViCE +N THE MATTER OF AN ARBITRATION L APPEAL BOl\RDS -'It': Under THE CROWN EMPLOYEE~ COLLECTIVE BARGAINING ACT - Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McLeod/Grass) Grievor - and - The Crown in Right of ontario (Ministry of the solicitor General & Correctional Services) Employer BEFORE F. Briggs vice-Chairperson FOR THE D Wright GRIEVOR Counsel (McLeod) Ryder, wright, Blair & Doyle Barristers & Solicitors ~ FOR THE R Davi's GRIEVOR Counsel (Grass et al) Koskie & Minsky Barristers & Solicitors FOR THE M. Mously EMPLOYER Grievance Administration Officer Ministry of the Solititor General & Correctional Services FOR THE P Kinsella THIRD PARTY HEARING June 14, 1995 (, - -- ~ \ There are five grievances that allege the Employer has violated the collective agreement '\ regarding the posting and filling of a Correctional Officer 2 position in the Stratford Jail. , ( All of the grievors are unclassified Correctional Officers. The Union argues that the .~~ Employer, in this job competition, has acted in an arbitrary, discriminatory manner or in ~ , -" bad faith. Four of the five grievors were represented by Mr Davis and one was t ! represented by Mr Wright. The incumbent was present and represented himself. \ ) ., - At the first day of hearing a number of preliminary matters arose. The Union issued two subpoenas duces tecum for certain information to be provided. The first subpoena \, i requested particular documents and information regarding a number of other job competitions. The second required the budget of the Waterloo Detention Centre to be ~ - disclosed. It was the Employer's position that it should not be required to provide the -, documents and information requested in both subpoenas. This decision deals only with that preliminary matter. - ., In the fall of 1992, the Employer posted a job competition for a Correctional Officer 2 which stated that the successful applicant had to live within forty kilometres of the Stratford Jail. Many applications were received and a number were rejected based solely on that qualification. Although there was some initial dispute about the matter, all of the ( parties are now agreed that the incumbent lives outside the forty kilometre range stated in the posting. - i - 1 ~ 2 i On behalf of the four grievors, the Union alleged that the Employer fIlled the position in such a way as to repay a "favour" owed to another institution, that is, the Waterloo Detention Centre This "favour' was in return for the fact that the Waterloo Detention Centre took eight Correctional Officers into its complem13nt when the Stratford jail was ,- closed due to construction. This action had a significant impact on the Waterloo Detention Centre's budget and, in return; the Stratford Jail promoted the incumbent, an unclassified correctional officer, to classified status. It was the Union's position that the . I facts surrounding the filling of this position are consistent with previous actions of the Jail. It claims there has been a pattern of bad faith. '" MrMcLeod, the fifth grievor, also contends there is a pattern of discrimination and bad faith in the filling of job 'postings. Additionally, he alleges, in his two grievances, that the - ) - Employer has discriminated against him due to handicap. Given that he' was the most senior applicant he asserts he would have been awarded the position absent the discrimination. ./ < f It is appropriate, at this point, to reproduce a letter sent toMr Mously, Grievance Administration Officer for the Employer, from Mr Davis, dated June 7, 1995. That letter ,~ stated. You have requested particulars of the Union's case in respect of the above grievances. This Union's case is that the decision to hire Mr Kinsella, who lived outside the area of search, was just one more in a series of arbitrary, unreasonable, discriminatory and bad faith decisions concerning the filling of C.O.2 positions at the Stratford Jail since 1991 A competition was held on or about January 21, 1991, for a C 0.2 position which was awarded to Ms. Burdick over other more experienced unclassified correctional officers. ~ 3 - Prior to,the competition, Ms. Burdick was assured by theSup~~i~eodent, Mr Brunton, that she shOl:-!ld not woriy because the job washers; \. t On August 15, 1991, the Stratford Jail increased its compliment (sic) of C 0.2 positions but ,J Mr' Brunton chose t6 fill them,by a competition in which'the entire public service was allowed to apply which'led to,two CO.2~s employed at the BluewaterYputh Centre being -'" awarded the, positions. In addition, approximately. three 'days before the cClmpetetion was to close, SuperintendentBrunton:told Mr 'Ra<::kham a:managerial emploYee at the Stratford Jail that a Mr Kloss was going'to be given one of these C.0.2 ppsitions at ,Stratford Jail. '- I ~f In August, 1992, a competition was ,held in which only female employees were permitted to apply A M~. Rosseel w.as awarded the position as a C 0.2 at the Stratford Jail. The decision to restrict-the,compet~ionV/as made by ~!JperinteQde~,Brunton of the Stratford JaiL Pr{or to the October, 1992 i9b competition in which Mr P. Kin,sella was awarded the C.0.2 position,~m~nagement at the WaterlooiDetention Centre accepted eight correctional officers from the-Stratford Jail i~o their compliment (sic), while the Stratford Jail was closed for construction. These correctional officers caused qonsiderable problems for the staffing budget of the Waterloo Detention Centre due to the' need to replace them when they were ill or otherwise absent. Mr Kinsella, prior to his appointmel)t as a C..O.2at the Stratford Jail, worked as an unclassified correctional officer at the'Waterloo-Detention Centre. The inexplicable decision to accept Mr Kinsella's application and award him the C 0.2 position was a partial repayment by Stratford Jail management for the inconvenience caused to the management of the Waterloo Facility by the eight correctional officers from Stratford Jail. - As such, it was contrary to the'Collective agreement as an. unreasonable, discriminatory, arbitrary and bad faith decision by management at the Stratford Jail. - / Soon after the October, 1992 competition, the Stratford Jail held another competition on , May 25, 19~3. A Ms. BUrf9rd, who had taken partin the October, 1992 competition under the name Lewis was awardedf'a C:0;2 position even though in the previous competition she has scored very poorly on the test results in comparison to the unclassified correctional,officers in the October competition. These, same unclassified correctional -officers also took part in the May, 1993competition in which Ms. Burford was awarded the position of C C.? at the Stratford Jail. Clearly, if Ms. Bj,Jrford (Lewis) was not qualified to perform the C.O.2 position in 1992, she had done nothing in the interim to increase her level of aptitude and qualifications. Therefore, her appointment to the C 0.2 position in May 1993, most have been based on considerations other than her ability and qualifications. Finally, a Mr Chircop who worked as an unclassified cook at the Stratford Jail was unsuccessful in the coml?~tition for the po~ition of a regl,Jlar. part-time cook at Stratford Jail. Mr Chircop apparently finished sixth out of the six applicants for the regLilar part-time position. Notylithstanding his appar~nt poor showing in the competition, the Stratford Jail management hired him back under to GO Temp Program on two occasions to replace absent employees as cook, in preference to the other individuals who had supposedly out- , performed Mr Chircop in the, competition for the cook's position. In September 1993, th~, Superintendent allowed a Mr Blakely; a regular part-time maintenance mechanic 2 to work as a correctional officer at the Stratford Jail. Mr Blakely ., . 4 "- was given hours as a correction officer despite the fact that he had received no, training as a correctional officer whatsoever This situation lasted until~.oct0bel' 1993, when Mr , I Brunton ceased to be the Superintendent of the Stratford Jail. Mr Blakely was no longer given any hours as a correctional officer after Mr Brunton left. J 'The above particulars detail a history of favouritism, arbitrariness, qiscrirl1i.na~ory decision making and bad'faith in the filling of C. 0:2 positions by management, incluping the position aWarded to Mr Kinsella. When situated,in the .context of the pa.rtic~lar$ ~et 0,lJt above, the qecision which 'is'subject,_to the ,grievance assumes its true character as one more in the patternof likedecisions'which constitute violations of the Collecti'.(e Ag[(;)ement. The parties agreed that: ) .J. ~. Throughc;>Ut 'ttle grievance procedure, up to and including the pre-hearing :i conference, MrBrunton, Superintendent, was never told-that the issues raised in the June 7, 1995,Ietter from Mr Davis were part of the Union's case. 2. i,' Of ttleJive competiti9hs referred to in'the above noted June 7, 1995 letter, three pljor were not grieved, qne was after the i1iStar'rt'matter and a grievance has been ~ filed, and one concerning the cook position was grieved:and a'tlecisibn is pending from another panel. r { EMPLOYER'SUBMISSIONS :r' ,.. .. -, .......-. ~ li" ., Mr Mously, .for -the Employer, submitted that there' -are' two -preliminary matters for the c-~ ~ - Board to qeqiqe. The first is that the grounds of the ~evances have been expanded. - \ Until the letter of tune 7" 1995, th~ Employer pelieved' that the ~ole baS!s for the allegation that the job posting was a\riolation of the collective agreement was because the area of .., the ~ea.rc}:l w~ ~mproper The Union now asks this Board to consider five correctional I' .. L officer job competitions, one cook's posig~m competition, a. temporary assignment of a ~ . maintenance mechanic and the second issue of temporary work for correctional officers at the Waterloo Detention Centre due to construction. None of these facts are Gontemplated in the grievances and now, some two ~d a half years after the .ruing ,of the grievances, the Union is improperly attempting to put the Employer iI}.to a position where it will hav.e to defend matters which took place years ago. - , !> ! J " 5 ,- Further, a review of the additional management practices are not relevant to the issues before this Board. The parties agreed that in order for the grievances to succeed, bad faith must be established. It is the Employer's position that in order to meet that test, the Union must establish bad faith with respect to the filling of the instant job position. Any - allegations, or indeed evidence of, bad faith in other past matters have no bearing on the \ ~ issue at hand and would not prove the case that the Union has to meet in order for these '< - grievances, to succeed. Bad faith in another matter would not be proof of bad faith ..1 "" regarding the filling of this position. The Employer dealt with the specific situations addressed in the June 7, 1995, letter - Generally speaking, it will suffice to say that it was the Employer's position that if there j , - ,- was an impropriety at any point, a. grievance should have been filed and the failure to do - , so must be look~d upon suspiciously Given the passage of time, the Employer is not in ~ a position to respond to evidence about some of the situations. In some circumstances, files have been destroyed, which could have been saved if there had been mention of a .. ( dispute at the time. Regarding the situation which took place in May 1993, the matter has been resolved and therefore the Employer should not have to deal with the issue again. - The cook position deals with another classification and is therefore not rel~vant, and given that the matter is before another panel of the tribunal, the Employer is concerned that it should not have to litigate this matter twice with possibly two different results. The issue of bad faith is an issue in the part time cc;>ok grievance and that Board will make that r " " '1 I I . 6 determination. Finally, the mechanic position was a different classification and no job ,J~ -, competition was held. Therefore it is not relevant. ; '-I The Employer pointed out that some of the situations that the Union wants to rely upon happened subsequent to the filing of this grievance. Obviously, it would have been I \ :; impossible for these situations to have any bearing on the instant grievances. Bad faith , must be established at the time of the incident. The Union carmot suggest that bad faith c - is projected retroactively I Mr Mously argued that the Union is attempting to shift the focus of the litigation because \ it cannot show, on the facts of this case, that the Employer has acted in bad faith. The ,- Union is taking a "kitchen sink" approach and trying to frustrate the Employer with lengthy -' litigation on a variety of issues which are not properly before this Board. The Union is . engaged in a fishing expedition which it hopes Will reveal some proof of bad faith. In conclusion, the Employer asked the Board to limit the scope of the issue to that which r is reflected on the face of the grievances and to disallow the documents requested in the subpoenas duces tecUm on the basis that they are not relevant to the matters at hand or 'I ~ that production would cause real prejudice tcrthe Employer The Employer relied on Re ~ Crown in Right of Ontario (Ministry of Natural Resources) and OPSEU (Krajnovic) (April 18, 1991), unreported (Low), Re Crown in Right of Ontario (Liquor Control Board of Ontario) and OLBEU (Speare) (N6vember 25, 1991), unreported (Gorsky), and Re The ~ ~ " 7 Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (O'Neill et al) ~ (August 26, 1990), unreported (RatushIiy) UNION SUBMISSIONS / _. Mr Davis sugg~sted that it was unfortunate that the entire grievance procedure was spent arguing about whether the incumbent lived inside the forty kilometre limit. The Employer ... J, ,- has now conceded that fact. It is the Union's position that the Employer filled the position in a fashion which is discriminary, arbitrary or bad faith. As such action the job competition for the position of -, -' Correctional Officer 2 position violated the collective agreement as contemplated in Re Crown in Right of Ontario (Ministry of Government Services) and OPSEU (McIntosh) (December 15, 1993), unreported (Dissanayake) In the instant matter, the Employer ~ / asked the Union for an adjournment to wait for the McIntosh decision to enable the parties to know on what grounds, if any, the Board would accept jurisdiction of a grievance from - an unclassified employee regarding a job competition. For the Employer to now suggest .,. that it is surprised by ~, ~gument that the position was awarded in had faith is not credible. Indeed, if the issue was as clear and as narrow as the Employer has suggested then why did it ask for particulars in the first instance. -, 8 The UnioI1 argued that the Employer overstated the len9th of time which had evolved in this matter. The grievances were filed in November of 1993, and the evidence which the i Union intends to rely goes back a further twenty months. The Union agreed that it is obliged to establish, on a balance of probabilities, that the competition at hand was based on bad faith. However, the Union cannot be r~stricted to the nan:ow issues that the Employer seeks. The attitude towards further competitions is - indicative of the Employer's willingness to act in bad faith. The McIntosh decision was issued ip December of 1993. At the time the instant grievance was filed, it was not yet known to the Employer that it could not act in bad faith when filling such a competition. _j ~ r r Therefore, the Employer did not know that its conduct could be reviewed and that fact is , -' relevan~ and telling. The Union is not asking for a declaration or any other remedy with :). + respect to any situation other than the filling of Competition Number CI - 4043-92. - , - --, Mr Davis urged that the fourgrievors he represents ought not be held responsible for the fact that the parties failed to agree on the matter of distance throughout the grievance - ....... procedure The discuSsion never evolved because that first hurdle of distance was never ,- resolved. That failure of the parties does not mean that this Board cannot hear the particulars of the case. The Union has not changed the grounds or altered its position. The face of the J I' J grievances allege a violation of Article 4 of the collective agreement and that continues r. ~ ( 9 to be the Union's position. In response to the Erdployer's argument that if the matters were not grieved, there was no bad faith, Mr Davis suggested that the fact grievances were not f1led only supports the fact that people are reluctant to allege bad faith until a pattern emerges. The:Jact that the pattern continued is probative of the Employer's total lack of respect for the grievors' rights under the collective agreement. In the absence of 1. any request for a remedy for those other fact situationS, this Board should agree to hear \ the evidence. ...J , Regarding the situations which occurred subsequent to the filing of these grievances and - any remedy that may have been arrived at between the parties, the Union takes the \ position that the Employer did not protect itself in those settlements from those facts being raised again. The Employer cannot ask this Board to find that those files are closed and are unreviewable merely because the matters may touch upon the issue at hand. .I , ~ -- Regarding the maintenance worker, the UniQn argued that the mechanic was given hours which should have gone to members of the bargaining unit and are, therefore, relevant. Regarding the specific claim of prejudice, the Union submitted that any such claim does , J not go to the admissibility of evidence but to the relia,pility .of that eVidence. There was ,., no evidence of prejudice provided. Further, the parties are still available. Indeed, the - - Union may be more prejudiced by the destruction of documents than the Employer The Board ought not to be persuaded by the O'Neill decision because, in that matter, the , , '- 10 destroyed records were the records of the grievance at hand, not of the record of other matters. ~ 1 With respect to the budget information requested in the second subpoena, Mr Davis stated that the Union is in agreement that the test for an order for production is arguable "- relevance In the instant matter the Union has shown ,how the budget of the Waterloo , Detention Cehtre is, at the very least, arguably relevant to the matter at hand. The Union took the position that the Stratford Jail owed a IIfavoutl because of the Detention's Centre agreement to take correctional officers on a temporary basis thereby throwing its budget into disarray .:", ,~ ~ ~--'if " Mr Wright, for Mr McLeod, agr~ed with the submissions made byMr Davis. However, - - Mr Wright offered the B<(ard an opportunity to avoiq. making a decision on the preliminary matter It was submitted that I have the authority to control the procedure and, accordingly, I should take an expedient approach to this -matter and elect to hear and , v- det~rmine Mr McLeod's grievances first. If that approach were decided upon, the Board would place Mr McLeod into the position that he should have and would have been awarded, had it not been for the fact that he was discriminated against due to a handicap. In effect, the Board was asked to deal with the two grievances of Mr McLeod first and ., then, only if necessary, address the other grievances and the preliminary objections regarding those grievances. Mr Wright suggested that this approach is akin to reserving on a preliminary and proceeding on the merits. ) ~ .. 11 In the alternative, Mr Wright argued that I ought to allow evidence regarding the various .;. ! situations the Union alleged were in bad faith because I may be more persuaded to make a finding of bad faith in these circumstances if the evidence revealed a pattern of bad faith. ( Mr Wright suggested that, in effect, the Employer is asking this Board to find that a Union must state, on the fact of the grievance, the nature of the grievance as well as the - argument upon which it intends to rely Such a decision would be wrong and would do -. I significant harm to labour relations. The question for this Board to consider is whether ( the evidence is arguably capable of assisting in the determination of the matter at hand. The answer must be answered in the affinnative in these circumstances and, therefore, the i preliminary objections should be denied. Mr Wright addressed the Employer's argument that I cannot hear evidence about some of the situations because no grievances were filed and/or because grievances were med. '\ He contended the Employer can not to be allowed to have it both ways. Further, there , is no significance to the fact that certain situations occurred subsequent to the ming of the I grievances. The Employer\was co~cemed about a projected retroactive finding of bad faith. This argument is flawed and that is clear when a simple example is considered, ! such as a situation where an Employer admits bad faith the day after a grievance is med. The only test is relevance, not time. 1 " ! ,- \ \ 12 Regarding the matter of the budget information, Mr Wright urged that all a Board needs i is a theory of a case which is capable of success and the Union has provided such and therefore the documents should be produced. ~ Finally,~regarding the Employer's argument that because documents are destroyed, they are prejudiced and therefore the evidence ought not to be allowed, Mr Wright pointed - out that there is no, evidence of prejudice before this Board. There was not a suggestion that there is no one from management who could give evidence regarding these other situations. The Employer must establish prejudice and it has failed to do so. In the further alternative, Mr Wright invited me to reserve on these matters and proceed with the evidence on the merits and make any rulings regarding evidence as they arise To procee~ in that fashion would allow the Bocu:d to deal with specifics and not role on ~ matter as a hypothetical issue. Mr Kinsella, the incumbent, took rioposition on the issue of bad faith. He urged the Board, in the event that this Board decides to award the position to Mr McLeod, to order the Employer to create a position for himself and thereby not displace him from his full time job. f ( ,~ 13 ( In reply, Mr Davis stated that I have no evidence that Mr McLeod'15 the'inost senior I applicant or that he was relative'ly equal to the incumbent. Therefore, I muSt hear the entire matter arid make a decision based on all of the evidence. I " By way of reply; Mr Mously, for the Employer, strongly urged the Bbfu-d to resist the suggestion of counsel for Mr McLeod as unclassified employees have no seniority and I , i therefore, Mr Mcleod is not the most senior applicant. Regarding ilie matter of surprise, the Employer conceded that it kI1ew that there waS an allegation of'bad faith. However, it was not known was that the allegation included specific past incidents. Some of the files h~ve been destroyed and-that prejudices the Employer ~ " DECISION " c ..> ~ The partres did not dispute that the 'B9ard has the jurisdiction to entertain a grievance from an unclassified employee that tiley were not awarded a job competition where the Employer has acted in bad faith. The Board stated in McIntosh: Considering the deliberate steps taken by the parties to facilit?te participation by unql.assifi~d employees! in job competitions under article 4, could, it reasonably be concluded that the pa.rtie~ intenc1.ed to permit the Employer to act in any fashion as it Wishes"eveninan'!lrqitrary or unreasonable r;nann~r or even motivated by bad faith? We do lJot think so. IUs,not,reasona~leto conclude that the parties would go,to the trouble of amencling the collective agreement to facilitate, and inde~d encourage (by providing for paid tim!3 off in article 4 4), participation by unclassified employees in job competitions and at th~e same time permit the Employer to render ,those provisions meaningless by acting in bad faith. The bad faith conduct of the Employer would unduly limit, and indeed, negate, the rights of unclassified employees under articles 4 1 and 4.4 Those rights would ,be rendered meaningless. Having facilitat~d and encouraged participation in job competitions, it must be reasonably be inferred that the parties would have envisaged at the very least that those unclassified employees who do participate will have their applications considered by the Employer in good faith. ~--~ ~- 14 Th~ Employer ~ks this Board to . rule that the documents the lJ.nion requested do not have ~ to be produced; and thp.t some of the eviden,ce w~ich it }nten~ to introduce s,hould not be allowed because, in part, it would allow the Union ,to expand the grounds of the " original grievances. In Krajnovic (supra), the original grievance was an allegation that the grievpr had rece~ved no training or development on a particular airplane. At the hearing, . \. .. r ~ the Union mentioned, for th,e first time, that the grievor had difficulty with his sight and that ,) it woltld he ar~ng: tl1at the grievor's health and safety was being irrperilled and that he was beh1g discriminatect agaipst on the basis of haI1_dicap. In its decision, the Board r ,considereq., an aWl;l.rd of !\rbitrator Knopf, in Houghton, 0771/88, where the original 1 grievance addressed th~ assignment of certain job functiol!5 but which, at the hearing, was an assertion of a health and safety complaint. Arbitrator Knopf said in that case It is the opinion of this panel that steps 1 and 2 of the grievance process are extremely important for the proper resolution of complaints. This grievance, as processed, could not give effect to that mechanism of dispute resolution because the substance of the complaint was not revealed to the Employer at the crucial early stages. Had it been, we could have been prepared to accept jurisdiction on the health and safety aspect of the grievance and process the cas~ a~ ,SlJch. But beca,use it was not rai~,ec;l initially, and qecause we .have no jurisdiction to amend or alter the grievance, we muSt deal whh the grievance as it was framed. r Reference was also made to Re Warden (SUDIa) 1162/87 wherein Arbitrator Dissanayake stated. The Board agrees with' counsel for the grievor that it is not essential that the grievance refer specifically td a particular article in the Collective Agreement or 'provision in the Act before it becomes arbitrable. Nor are we unduly concerned that theg'fievance did not use the phrase "health and safety" and did not articulate a health' and safety issue precisely In that we recognize that grievances are not written necessarily by legally trained persons, the Board will' not refuse to accept a grievance merely because of technical defects or :imprecise language. All that is required is that the true nature of the grievance must be communicated to the Employer I am of the view that the true na!Ure of this matter has not changed. Thegrievors allege that they hav~ been improperly denied a job competition. The grievances specifically - i 15 stat~ th~t the Employer has "failed to comply to the Collective Agreement as it applies to I Article 4 - Posting and fIlling of ;vacancies or new positions ~ as per Competition Number 1 - I CI-4043-92" The first day of hearing, the nature of the issue was tl1e same The grievors ! continUe to allege that th~ Employer improperly failed to award them the joh arising from J Competition CI-~043-92. The remedy requested has not changed, that is, to be given the I I - - J ( job retroactively back to October of1992. The parties are now aware, and have been for c some time, tha~ I would only h?ve the jurisdiction to award a remedy in this matter if there is a finding of bad faith. The Union is now attempting to proceed with the evidence it believes is, necessary to prove its allegation of bad faith. In these circumstances it would be difficult to find that the Union is expanding or altering the grounds. '" I In the opening sta~ements and in the short agreed statement of facts, it was apparent that - the parties had not discussed the issue of bad faith during the grievance procedure. The \ \ Union suggested that the parties_ did not ever have a full discussion of this_matter because they focused on the issue of whether the incumbent lived within the specified territory This was not disputed by the Employer Mr Mously canc:Udly admitted that the Employer was not l?i.1rprised by tJ;te ailegationand that the. parties had 'previously adjourned these , proceedings in anticipation, of the McIntosh decisio.n which would determine the issue of jurisdiction in those cases where unclassified employees allege .that they have been denied a job competition because of bad faith. . l ( 16 It is always unfortunate when discussion is stifled during the grievance process. In any event, the issue at hand has not expanded. The U~ion initialiy alleged the grievo~ were ,- " denied ,a job competition. Given the earlier adjournment of this matter it was known to '-' the employer that the Union was alleging bad faith. That aliegation continues. What has ~, -, changed is that, as requested, the Union has particularized the allegation. One of the ) - arguments that the Union hopes to put forward is that the Employer has acted in bad faith ) regarding other job competitions in the past and that this pattern of behaviour will lead this Board to find that the Employer acted in bad faith in the instant matter This issue is ,/ part of the evidence and argument, not an expansion of the grounds. ,; , , In Re Reitsma 93/89 (Me Camus) , it was said, at page 10, that the Board must avoid "unfairness to the Employer in permitting a grievance 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 undermined by a willingness to allow what is, in effect, a new -- grievance at this stage" However, at page 12, the Board 'stated that: It is entirely within the spirit 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 an,alysis or argument that may not have- been precisely formulated by the Union's representatives 'at-earlier stages in the process. It is therefore necessary to distinguish, then, between the kind of I fundamental change in the nature of the grievan,ce that engages the line of jurispruc;ience IC set out above with the result that the grievance must be dismissed and the introduction of legal arguments and analysis that do nClt have this ""result. I In that result, the Board found that the Union's position at arbitration was not a request to I entertain a fundamentally altered matter tantamount to hearing a different grievance but --. r- (i \. 17 a change in the argument in support of its initial allegation that there wa:: a violation of the collective agreement. Thatis precisely the case in the instant matter Tl1ere is no change in the nature of the dispute It ~as originally, and remains, allegations of a violation of the collective agreement by failing to award the griev9rs a job competition. As previously mentioned,in this, matter there is no alteration of the remedy requested. While it might have been helpful for the Union to have commUnicated that informatioI). to ,the Employer earlier than it did, the-Union's failure to do" so does not lead me to the conclusion that it is not entitled to the aocuments. I Some of the documents and information which the Union requested and intends to introduce arise from events which have occurred subsequent to the filing of the instant - grievances. I can see no reason to stray from the general proposition !;hat post grievance evidence is not admissible and therefore, those documents Iio not have to be produced. The jurisprudence on this matter is consistent and": grounded in logic. While there have been occasions when arbitrators have found that an exception, is warranted, the Union ! offered no particular reason why I should deviate 'from the norm. and I will not do so. The Employer was quite concerned about those situations where the records have been destroyed. Indeed, it was argued that it-would'suffer real prejudice if those instances were allowed to be raised. I ,agree with the Union that I did not hear any evidence about prejudice. I did not hear that the Employer had no one who could testify about these I occasions. I accept that there may be no surviving documentation about some matters. ---.--- .~ ,I f 18 However, in the absence. of evidence that makes clear that- Employer could not offer any defense, I am reluctant' to find for the Employer on this matter While I have some sympathy for the Employer regarding the destrucJion of so1;tle records, \ ( it is to be remembered that the Union bears the onus in this matter Further, there is a I ( I significant onus-regarding, an allegation of bad .faith. The Union'm~y be."as prejudiced as .1 the Employer regarding"the destroyed files. Again, in the aJ::?sence qf evidence of real I prejudice, I am not prepared to find that the Union is restricted from introducing evidence , about a pattern of bad faith. The Employer suggested that I should not hear any evidenc:e. abOllt these other instances because they were not grieved. Further, others matterp shou1~ not 1;>e addressed because they were grieved, and, in,any event, the EmploYE3! was not maqe aware at the time of any suggestion of bad faith and. that alone should prompt me to find for the Employer in this objection. 1 must disagree.., If I were to accept the Emp19yer's argument, there would I virtually never bean occasion where a party was allowed to .argue that there was. a pattern of behaviour over a period time. The other aspect of the Employer's preliminary objectiqn w~ that I alter the subpoena duces tecum so that the information requested regarding the staffing budget and actual costs for staffing in the' Waterloo Detention Centre . from April 1992 to March 31, 1993 need not be produced. ( -- !; ~ e~; 19 1 The test for documentS requested through a subpoena duces tecuin has been accepted ) by most arbitrators as, arguable relevance. The request has to be particularized so that it is clear what is being sought so the request does not constitute a fishing expedition. Finally, a nexus has to be made connecting the infonnation to the issue at hand. In my view, the Union has met all of the usual criteria for the request for the budget documents. I make no conunent on admissibility of such evidence, only that it should be provided as \ requested in that subpoena. ~ Counsel for Mr McLeod suggested that I could avoid dealing with much of the evidence in this matter by electing to hear the grievance of Mr McLeod first because he was the most senior applicant and had he not been discriminated against on the basis of handicap, he would have received the position. In the alternative, it was submitted that I need not c decide any of these matte~ preliminarily and deal with issues as they may arise. As was pointed out in reply argument, I have no evidence regarding seniority before me and therefore, to proceed as suggested by Mr. Wright would be improper Further, I believe it would be more expedient and helpful to the process to issue tile preliminary ruli!tg Therefore I order the Employer to proVide the infonnationrequested in the subpoena issued to Doug Foulds. Further, the Employer is to provide whatever records it has regarding all the job competitions or work assignments which were requested in the subpoena issued to Jim Featherston which occurred prior to the filing of the instant grievances. '!'..... ./ 20 Datec:i ~t T, onto this 11 day of September, 1996. ; :j / / r------ !;luw , :vcy~ ~ Felicity D. Briggs 1 -, < - , ) i ~ - i I I I I r' ! I I ~ I I I 1 .' I , ! ~ 0 A