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HomeMy WebLinkAbout1992-3126.Spicer.94-04-21 - -' ....~ (. ( - , , " ",,, ONTARIO EMPLOYES DE LA COURONNE " CROWN EMPLOYEES DEL 'ONTARIO ; ~ ' , II' II GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE /TELE COPIE (416J 326- 1396 3126/92 IN THE HATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Spicer) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: 0 Grgy_ Vice-Chairperson S. Urbain Member M O'Toole Member ) I FOR THE A Ryder GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE M Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors \ I HEARING October 20, 1993 -, . -- -------.--. ( --_._.~-,_. --. ---.- r-. \ '" AWARD When tills matter came on for hearmg on October 20, 1993, counsel for the employer , objected to our hearing what he understood that the UnIon proposed to put before us. ThIS decIsIOn deals wIth that obJectIOn. '\ Dwam Spicer IS a member of the Mmlstry's unclassIfied staff employed as a Correctional Officer at the MetropolItan Toronto East DetentIOn Centre In October 1992 he filed a grievance form which saId this. Statement of Grievance I grieve management at the Toronto East DetentIon Centre has vIOlated ArtIcle 3 15 of the collective agreement. This artIcle is in relation to the converSIOn of unclassIfied positions to classIfied posItions. Settlement DesITed, ThIS vacancy posted for competItIOn m accordance with ArtIcle 4 of the collective agreement. -- The Ministry replied to the grievance at stage 2 ofthe grIevance procedure by this letter dated December 2, 1992 Dear Mr Spicer' WIth ,reference to your grievance whIch states: "I grieve management at the Toronto East Detention Centre has violated Article 3 15 of the collective agreement. ThIS article is in relation to the conversion of \, unclassified positions to classIfied pOSItIons," a meeting was scheduled for Tuesday, November 24, 1992 at 3'00 p.m, at the Metro Toronto East DetentIOn Centre. This date and time were confirmed and acknowledged by you in a telephone conversation with Ms, K. Lehmkuhl, Superintendent's secretary Neither yourself nor your representative, Mr M. McKinnon appeared for this meeting on the above date. Smce that time I have not heard from yourself or Mr McKmnon regardmg your non-attendance at this meeting, ---- ("- -_....- --.- ~-~----_._--.-.~ \ ( .. '" -2- In the absence of any submission from you regardIng thIS matter, r must deny your grievance at Stage II: The gnevance was thereafter referred to the Gnevance Settlement Board ("the Board") for ( arbItratIOn. The employer does not suggest that the umon's faIlure to attend a stage 2 meetmg made the grIevance marbltrable. ArtIcle 3 15 provides as follows. 3 15 1 Effective April 1, 1991, where the same work has been performed by an employee m the Unclassified Service for a penod of at least two (2) consecutive years, and where the mmistry has determmed that there is a continuing need for that work to be performed on a full tune basis, the mmIstry shall estabhsh a position wIthm the ClassIfied Service to perform that wor]{, and shall post a vacancy in accordance wIth ArtIcle 4 (postmg and Filling of Vacancies or New PosItions) 3,15.2 For the purpose of this section, "full.tune" shall mean a mmimum of one thousand seven hundred and thrrty-two and three quarter (1,732,75) straight- time hours or one thousand nine hundred and twelve (1,912) straight-time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by an unclassIfied employee while he is replacing a classIfied employee who IS on an authonzed leave of absence shall not be included in computing the annual hours worked by the unclassified employee, In accordance WIth its practice, the Board scheduled a pre-trIal conference, which representatives of the parties attended on April 13, 1993 It IS common ground that the only work hours referre<;l to at this meet10g were hours worked by the gnevor The matter I , was thereafter scheduled for hearing 10 August 1993 On August 12, 1993, counsel retained by the union to act in thiS matter sent the following letter by facsimile transmIssion to the M1Olstry's representative. I It will be our contention, when this matter comes before the Gnevance Settlem-ent Board, that at the date of the gnevance all full time unclassIfied pOSItions fell within the scope-of Article 3 15 of the Collective Agreement, AccordIngly, the employer's 'breach of the collective agreement m thIS case has deprIved the gnevorof the abilIty to compete for all of the full time unclassIfied pOSItions that then eXIsted. Accordmgly, by way of remedy we will be asking the Board to post all of the full tune unclassifIed ~ ( ! -~.- (. ( ~- --.- f ~ .,. -3- posItions and penult the grievor to compete for them, In addItion we will be askmg the Board to direct that the competItions be conducted faIrly so that, at a mmrmum, they will consist of a WrItten test and, should any oral mterview be conducted, that the examiner's notes be made in writing. The heanng scheduled for August 1993 was cancelled. It IS not apparent whether the letter and the cancellatIOn were related. The heanng was later rescheduled for October 20, 1993, the day It came on before us. On October 19, 1993, counsel reta10ed by the Ministry to act. for It 10 this matter sent the followmg letter by facsImile transmISSIOn to the umon's counsel. I would like to take the opportunity to ensure that you are aware that we will be ralsmg the followmg objectIOns WIth respect to the Board's jUrISdIctIOn. (1) With respect to your letter dated August 12, 1993 to Mr Jim BenedIctconcernmg the expansion of the grievance to cover all unclassified positIOns at the Toronto East Detention Centre, it is our VIew that thIS is a change in the substance of the grievance and the position of the grIevor at the prehearing and should not be permitted, (2) With respect to your letter dated August 12, 1993 to Jim Benedict concernmg the expanSIOn of the grievance to cover all unclassIfied positions at the Toronto East Detention Centre, it is-our pOSItion that thIS is not the proper subject matter of this gnevance as It should/be properly brought as a Umon policy grIevance rather than an mdIvldual grIevance, and \ \ ) (3) With respect to Mr SpIcer's grievance that "the vacancy should be posted" it is our pOSItion that tne question of wllether any particular vacancy should be posted is not the proper subject matter of an indIVIdual grievance and should be brought as a policy gnevance, - The partIes have agreed that the issue raIsed in the second and third numbered paragraphs of this letter may be dealt with later They ask that we determine as a preliminary issue the "scope" issue raised 10 the first of the three numbered paragraphs. The theory of the case which counsel for thepmon proposes to present IS that the hours whICh must be considered when applY10g ArtIcle 3 15, are the hours spent by all unclaSSIfied correctional officers in the institutIon doing the work in question. If the hours regularly worked by unclassified staff otherwise than in replacmg a claSSIfied employee ! ~ _~n___'__~'___~_'___'__~ __.._____,~.__ .._ ---.-.. ---- .........- .........-- -- ') ,- ----, .- -- -~..__._-~-~-_. ... -4- \ who IS on an authorized leave of absence could together constitute one or more full-time posItions, he sayS, then the employer must post that number of positions in the ClasSIfied ServIce if it proposes to continue to operate In that way If this theory IS pursued In this case, the number and purpose of all hours worked by all unclassified correctional officers at the MetropolItan Toronto East Detention Centre wIll be relevant, and the employer's response will reqUIre rather more effort than would be expended in dealing WIth the number and ,purpose of the hours worked by the grievor, which IS what ItS counsel says the employer thought the case would be about at the( conclusion of the pre-hearing conference. Counsel for the employer does not ask (at least at this stage) that we reject the uOlon's theory on its merits. What he asks is that we tefuse to entertain the theory m th~s proceedmg, because It transforms the grievance Into a grIevance different from the grievance filed by the grievor Counsel for the union argues that there has been no change in the substance of the grievance,-but only a change in the partIculars on whIch the union is relYing and a change in the remedy sought. In th~ cIrcumstances, he says, the employer 18 not preJudIced by the changes. Counsel for the employer replIes that hIS obJectIOn raIses a matter of jurIsdiction" so that the absence of preJudIce IS not a consideration. Counsel for the employer cited Bouchard, 467/83, (Roberts) and Krajnomc, 2049/90, (Low) In support of the proposition that we have no Jurisdiction to entertain a grievance whIch is "different" from the one.filed by the grievor ) The grievance In Bouchard alleged that the grievor was Improperly classified as an EnVIronmental Technician 3 and ought to have been classified as an Environmental TechmcIan 4 At hearing, the grievor sought to amend his grievance to claim the classificatIOn of Systems Officer 2, whIch the Board noted was "an entirely dIfferent classification", "in a completely different class series and different category from the ( ---- ( _u ~..- -,- l C' ~..- .__._~-- --.'.- ~ -5- classificatIOn of EnvIronmental TechmcIan 4" and "not even related m terms of salary negotiatIOns" The Board refused to allow "such a drastic amendment to a classification grievance" cItmg another decIsIOn whIch held that "it would be Improper to allow an amendment requestmg an entirely dIfferent claSSIficatIOn senes from that set out m the grievance form." " In Kraj7wvl,c, the umon took the pOSItion that It had no oblIgatIOn to let the employer know the case it had to meet, and could present a grIevance on the basis of a health and safety complaint at the arbItratIOn hearing notwIthstandmg that the grievance was on ItS face a complamt about the assignment of work and traImng and had been so characterized at every stage of the proceedings prior to the hearing The Board found that a grievance about the assignment of work and training was inarbitrable, and that because the language of the grievance cannot reasonably be construed to encompass the health and safety concern which the UnIon now urges on thIS Board as the basis of the gnevance and m hght of the nature of the grIevance as prosecuted thus far, we must dIsmISS the grievance as filed as marbItrable, I --- I I Incommg to that concl~ion, the Board cited the followmg passage from Houghton, I I 0771/88 (Knopf); in which the union sought to present a health and safety complamt at the hearing of a grievance about work assignments. It IS the opinion of thIS panel that steps 1 and 2 of the grIevance process are extremely important for the proper resolutIOn of complamts. 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 eafly stages, Had it been, we I could have been prepared to accept jurisdiction on the health and safety aspect of the \ grievance and process the case as such. But because it was not raISed mItIally, and because we have no JurisdIction to amend or alter the gnevance, we must deal WIth the grievance as it was framed, The Board also CIted thIS passage from Warden, 1152/87 (DIssanayake) The Board.agrees WIth counsel for the gnevor that It IS not essentIal that the grIevance refer specifically to a partIcular artIcle in the Collective Agreement or provision ill the Act before It becomes arbitrable. Nor are we unduly concerned that the grievance dId not use the phrase "health aJ,ld safety" and did not articulate a health and safety issue ..J ------ - ( --.------1 , t\; -6- precisely In that we recogmze that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a gflevance merely because of techmcal defects or imprecIse language, All that is requIred is that the true nature of the grievance must be communIcated to the employer At all times matenal to the ISsue at hand, section 19 of the Crown Employees Collect we Bargammg Act, R.S.O 1990, c.C.50, ("the Act") defined the Board's JurIsdictIOn to arbitrate a dispute. 19.-(1) Every collective agreement shall be deemed to provIde that in the evenL the partIes are unable to effect a settlement of any differences between them aflsmg from the mterpretatlOn, apphcatlOn, adminIstratIon or alleged contraventIon of the agreement, mcludmg any questIOn as to whether a matter IS arbItrable, such matter I may be referred for arbItration to the Gnevance Settlement Board and the Board after givmg full opportumty to the parties to present theIr eVIdence and to make theIr submIssIons, shall decide the matter and ItS decISIon IS fmal and bmdmg upon the partIes and the employees covered by the agreement, Article 27 of the partIes' collective agreement proVIdes that a "complaint or dIfference concerning the mterpretation, application, administration or alleged contraventIOn" of the agreement should first be the subject of dIscussion between the aggneved employee and his/her supervisor If the matter is not thereby settled, It may then be processed 10 the followmg manner- STAGE ONE 273.1 The employee may fIle a grievance m writing WIth hIS supervIsor The supervIsor shall gIVe the grlevor hIS deCISIOn m wntmg wIthm seven (7) days of the submissIOn of the grIevance. STAGE TWO 273.2 If the grievance is not resolved under Stage One, the employee may submIt the grievance to the Deputy Minister or hIS designee WIthin seven (7) days of the date that he receIved the deciSIOn under Stage One. In the event that no \ deciSIOn m writing is receIved in accordance WIth the specified tune hmIts in Stage One, the grievor may submit the grievance to ~he Deputy Minister or his designee within seven (7) days of the date that the supervIsor was required to give hIS decision in wntmg in accordance with Stage One. - ~, --- -~. ( ~-~-- -- --- -~----_._--~----+._._._-- - ----- (-' _~.__u _____,___ _ +___ --- ~_.- .- - -"- .~-- \ ;. -7- 273,3 The Deputy MinIster or his desIgnee shall hold a meetmg wIth the employee within fifteen (15) days of the receipt of the gnevance andsh1;lll gIVe the grievor hIS decision in wntmg wIthin seven (7) days of the meeting. 274 If the grievor is not satIsfied with the deCISIOn ofthe Deputy MmIster or hIs designee or If he does not receive the decIsIon wIthm the specIfied trme the grievor may apply to the Grievance Settlement Board for a hearing of the gnevance withm fifteen (15) days of the date he received the decIsIOn or wIthin fifteen (15) days of the specified time hnut for reCelvmg the decIsion. ) Without the consent of both parties we cannot make a bmdmg determinatIon of a dIfference or dispute whICh has not been referred to the Board in accordance wIth the "' provisions (deemed or actual) of the collectIve agreement. SubsectIOn 19(1) of the Act contemplates the referral to arbItratIon of dIsputes whICh the partIes have been unable to settle. This ImplIes at very least that both parties must be aware of the existence of a t dispute before it can be referred. Such awareness reqUIres some communIcation. Article 27 requires a senesof communicatIOns which become focused at Stage One on a "grievance" filed "in wrItmg" It might be saId that the grievance whICh ArtIcle 27 4 says the grievor may ask the Board to hear is the grievance that he or she files m WrIting The Houghton \ and Warden decisions seem to suggest that the referral of a gnevance to arbItration wIll give the Board JurisdIction over further or other matters of dIspute identified durmg the grievance procedure, even if the written descnption of the grievance filed at Stage One could not reasonably be construed to encompass those further or other matters. That issue does not arIse here. It IS not suggested that any commumcatIOns durmg the grIevance I procedure enlarged the dispute to be arbItrated beyond whatever may be encompassed by the grIevance filed in wrItmg at Stage One. There is a difference between the nature or substance of a dIspute, on the one hand, ) and the factual partIculars and legal arguments relIed upon by the party who seeks to have the dIspute arbitrated, on the other When arbItratmg a dIspute referred to It, the Board is required to give the parties full opportumty to present their eVIdence and to make their submIssions. In order to have that opportunity, each party must have reasonable notIce of the case it must meet. A mere statement of the nature or substance of the dIspute, such as I --.---- ( ~, ._.._.. ,-' ,- ---- r- -- - --- ( , ". -8- may be set out 10 a grievance form, may not gIve the opposite party sufficIent notice m that regard An exchange of particulars of the facts relIed upon and an opportumty for consequent investIgatIOn may be reqUired before a faIr hear10g can proceed. Particulars needed for the conduct of a fair heanng are often sought and obtamed durmg the gnevance I procedure. The fact that such particulars are not exchanged before a dispute IS referred to I I arbItratIOn may affect how and when the hearing is conducted, but WIll not deprive the I Board of jurisdictIOn to entertain relevant factual allegations and legal arguments merely because the responding party did not anticIpate them when the matter was referred to I( arbItration. \ I I Here, the language whIch the grievor wrote on the grIevance form below the headmg "Statement of Gnevance" defined the nature of his grievance. I gneve management at the Toronto East Detention Centre has violated Article 3,15 of the collectIve agreement. ThIS article is in relation to the conversion of unclassified pOSItIOns to classIfied positions, Standing alone, this language was-clearly broad enough to embrace the dispute wIth which the union now wishes us to deal in this proceeding It IS noteworthy that thIS language stood alone 10 the employer's letter of December 2, 1992, when the employer used It to \ describe the gnevance to whIch It was respondmg By way of remedy for the alleged breach of ArtIcle 3 15, the UnIon will be askmg for the posting of as many vacanCIes as it can establIsh that the employer ought to have posted pursuant to that artIcle. Under "Settlement Desired", the grievor asked only for the posting of a single vacancy There may be cases 10 whIch a change in the relief sought ImplIes a change in the substance ofthe grIevance In our VIew, the change 10 the relief sought here dId not ImplIedly change the substance of this grIevance, which IS the allegatIOn that the employer has violated ArtIcle 3 15 by not converting unclassified pOSItions to classified positions I --- --...--..-. -- - ,-----~_..~~. '~ J' -9- In Its argument that we have no JurlsdictlOn to entertam the grievance as elaborated by umoncounsel, the employer relies heavily on the fact that at the pre-hearing conference, the partIes only discussed the number and purpose of hours worked by the gnevor There was no mentlOn at the meetmg of the number and purpose of hours worked by other unclassIfied Correctional Officers, matters on wh1ch the union has since said It will rely in support ofits posItion that the employer has breached Artlcle.3 15 The employer does not claIm that it is prejudIced in any way by th1s enlargement of the factual alfegations relled upon by the union. Its argument is that the substance of what was referred to the Board for arbitratlOn should be determined wIth reference to what was saId aft~r the referral and before the hearing, at a pre-heanng conference convened by the Board, but not with reference to what was sald 10 any other, later pre-hearing commumcation. Counsel offered no authority for th1s proposition, but suggested that it followed from the importance to the ~J Board's process of the pre-hearing conference. { If what the union said at the pre-hearing conference could fairly be described as an uneqUIvocal wIthdrawal or ab~ndonment of the elements of the union's case to which the employer now objects, then we would indeed be without junsdlctlOn to enterta10 what the umon had Wlthdrawil or abandoned. The employer does not characterize those events that way, however It simply says that the union and grievor must now be limIted to the factual assertions they made at the pre-hear1Og conference The pre-hearing conference is 10tended to play an Important part in the Board's process. The extent to which it achieves its goals in any partIcular proceedmg depends on the effort and good-will of the partIcIpants in that proceed1Og. It might seem useful to have a rule that no allegatlOn of fact could be the subject of eVIdence at a hearing unless that allegatlOn of fact had been communicated to the oppointe party or partIes by some particular means and before some particular point 10 time prlOr to the hearing We leave any debate about that to another occaSlOn. There was no such rule of whIch we are aware in operation m April 1993, when the partIes had theIr pre-hearing conference, certamly '" ,-, ---- ._... ~.__.. .....--. -- -- ,,- -.. ..-- i!J S! ~: -10- none which depnved the Board of any discretIOn to entertain the additional allegations if, as here, the delayed dIsclosure has caused no prejudIce to the opposite party Accordmgly, the prehminary obJectIOn IS dIsmIssed The gnevance may be scheduled for hearing on its merits at the request of eIther party Dated at Toronto tlus 2 1 day of April, 1994. ~ U~ S. Urbain, Member -- 7/1'1 [)?:1~o e; _ M. O'Toole, Member -, I