Loading...
HomeMy WebLinkAbout1994-0661TRYBUS95_11_01 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION 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) MSG lZ8 FACSIMILE ITELECOPIE (416) 326-1396 GSB # 661/94, 662/94, 667/94 OPSEU # 94A940, 94A938-94A939, 94A937 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Trybus) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE F Briggs Vice-Chairperson T Browes-Bugden Member M Milich Member FOR THE A Ryder GRIEVOR Counsel Ryder, wright, Blair & Doyle Barristers & Solicitors FOR THE C Nikolich EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 1, 1995 March 29, 30, 1995 . There are three gnevors mvolved m thIS matter While theIr gnevances are not IdentIcal, they are sImIlar and, to a great extent, the facts WhICh wIll be relIed upon are the same At the hearmg, the MmIstry raIsed a prelImmary objectIon wIth respect to tImeliness and this decIsIon deals only wIth the prelImmary matter In order to put the facts relatmg to the tImelIness of the grievances mto context, It IS necessary to outlme some of the hIstory between the parties whIch was not m dIspute Pnor to mId 1991, a polIcy gnevance was filed on behalf of seasonal employees allegmg they were Improperly classIfied In the summer of 1991, the partIes sIgned a Memorandum of Settlement regardmg the employment status of seasonal employees That agreement was made an order of the Board It was dated July 17, 1991 and stated. In full and final settlement of the above-captioned grievance, the parties agree as follows 1 The Ministry shall identify to the Union all Group 3 positions of at least 43 week duration and shall also identify any and all current incumbents 2 The Ministry shall appoint all of the current incumbents of positions of 43 weeks or longer duration, provided they have completed at least two seasons of employment as a seasonal unclassified employee, or have been incumbent in the position for the last 52 weeks of active employment, to the classified civil service effective the date of this settlement 3 The Ministry shall calculate each incumbent's length of continuous service as a classified civil servant by crediting each incumbent with seniority accumulated under article 3 20 1 of the collective agreement, to be pro-rated as a calendar rather than hourly service, thus providing a calendar date of continuous service, based upon hours per day on the appropriate schedule 4 The Ministry shall, upon having implemented paragraphs 2 and 3 above, apply article 24 of the collective agreement to all incumbents identified under paragraph 2 and the incumbents shall also have the benefit of the job security guarantees provided by the Ministry pursuant to the Deputy Minister's bulletin dated May 21, 1991 5 The Ministry agrees that positions identified as 43 weeks or longer but which have no incumbent who shall be appointed to the civil service pursuant to 1 2 paragraph 2, shall be posted in accordance with article 4 of the collective agreement or staffed in accordance with other procedures agreed to by the parties or deleted Posted positions will contain an area of search allowing applications only from current classified and unclassified staff within the Ministry 6 The Ministry and the Union agree to appoint an equal number of representatives to a joint committee to resolve anomalies flowing from this settlement where the duration of the position or tenure of the incumbent is unclear or in dispute The parties further agree that there shall be full disclosure of all relevant information to facilitate this committee's operation 7 Any dispute that is not resolved by the joint committee under paragraph 6 above, may be advanced by the Union directly to step 3 of the grievance procedure as a means of speeding resolution 8 The Ministry agrees that seasonal unclassified positions shall not be of 43 weeks or more duration followed by nine or less weeks inactive employment in any twelve-month period The Union agrees that the positions below 43 weeks per year are properly characterized as seasonal in nature 9 In the event that the Ministry does not adhere to paragraph 8 above, the provisions of this settlement shall apply However the parties may agree mutually to alternative remedies 10 The Ministry and the Union agree that this settlement shall be communicated to Ministry staff by way of simultaneous communications 11 This settlement shall be made an order of the Grievance Settlement Board after the issuance of the communications in paragraph 10 above 12 The grievance is withdrawn It was apparent during the ImplementatIon of this agreement that, as occasIonally happens, the partIes held differing views as to the meanmg of the settlement. Hence, the partIes agreed to have the Grievance Settlement Board hear and determine the matters m dIspute The first hearmg was held m October of 1992, and the Board, chaIred by Arbitrator Barrett, Issued Its decISIon m March of 1993 WhIle this award determined many of the Issues that separated the parties, there remained additional matters WhICh were put to the same Board m May of 1993 and that decIsIon was released m August of 1993 3 The essence of the Instant dIspute IS captured In the wording of the gnevance filed by Tara Jones which is dated May 6, 1994, and states RE IMPLEMENTATION OF MEMORANDUM OF SETTLEMENT UNION GRIEVANCE GSB #2181/90 (ROLLOVER SETTLEMENT) Paragraph 2 of this Settlement was not adhered to by the Ministry Two co-workers (John Connor & Kevin Levesque) were rolled over when they had not passed probation and had not worked for 43 weeks as Group 3 s in the same Group 3 positions Both had worked on a combination of Gr 1 and Br 3 contracts, Mr Connor in the same position, Mr Levesque in two different positions Contrary to Article A, Section 1 of the Collective Agreement, these two co- workers were given Superior Benefits and I was discriminated against. Mr Connor worked 40 weeks as a Gr 3 (not 43 as the Settlement required) and 11 weeks as a Group 1 I worked 21 weeks as a Gr 1 and 28 weeks as a Gr 3 in the same position similar to Mr Connor Mr Connor was rolled over using his Gr 1 time and I was not The terms of this Settlement were violated when these people who did not meet the criteria were rolled over in the Grievance Settlement Boards first decision on this matter, dated February 25 1993, (GSB#2181 /90), they state on page 7 paragraph 2 Thus we conclude that at a fair and reasonable interpretation of the Memorandum in accordance with it's purpose and intent, is to provide that gll incumbents of a 43 out of 52 week position, who alone have held the position during the year preceding or encompassing the settlement, should have the benefit of oaraaraoh 2 of the Memorandum. I alone held my position for the year preceding the settlement, and therefore according to this statement by the GSB, should have been given the benefit of paragraph 2 of the Memorandum This appears to be the kind of criteria which was used to roll over Mr Connor by the Joint Labour Management Committee I feel that I should be given the same benefits as my co-workers and be reinstated to my pOSition in Terrace Bay retroactive to June 19 1991, the same as my co-workers, my co-workers did not have to compete for their positions in the classified service and I should not have to either All I ask is to be treated in a manner which is equal to my co-workers All three of the gnevors gave eVIdence regardIng the tImIng of theIr gnevances It is faIr to say from the eVIdence that, of the three, Tara Jones was the "leader" and InstIgator of the three with respect to thIS matter Ms Jones compiled a "Sequence of Events" In preparation for her testimony GIven the numerous dates and occurrences that took place over a sIgmficant penod of time, it is helpful to replicate the part of the document whIch touches upon the matter of the timIng of the gnevances That document stated. June 6, 1990 Hired by Ministry of Natural Resources, Terrace Bay, Group 1 Contract, Fish and Wildlife Technician (RT 2) position number 09-2480-01 4 June 13, 1991 Memorandum of Settlement regarding Group 3 Conversions August 28, 1991 Letter sent by Local Union President, Mr Stacy Turnbull, to the Joint Labour Management committee requesting that I be converted to the Classified civil Service I was told at this time by Mr Turnbull tat I could not file an individual grievance as everyone involved was going to file together as a group January 1992 Reorganization chart for Nipigon District showed two Area Technician positions with Fish and Wildlife Core Duties for the Terrace Bay Area February 13, 1992 Received first memorandum regarding Group 4 category from Fish and Wildlife Supervisor, Mr Jim Chappel March 28, 1992 Received second memorandum regarding Group 4 category from Fish and Wildlife Supervisor, Mr Jim Chappel June 1,1992 Received registered letter informing me that my position would be abolished effective June 15, 1992 June 1992 Sent OPSEU copies of all my contracts and extensions October 30, 1992 First Arbitration Hearing March 1993 Received Grievance Settlement Board's first decision Tried to contact Mr Gavin Leeb immediately He was on vacation took two weeks to contact him May 6, 1993 Second Arbitration Hearing May 1993 Informed by Mr Leeb that I had not been accepted by the Ministry for conversion i August 1993 Received Grievance Settlement Board's second decision Immediately tried to contact Mr Leeb - he was on vacation again August 23, 1993 Local Union President, Mrs Linda Melnyk-Ferguson and myself tried to reach mr Leeb - he could not be reached August 30, 1993 Mrs Ferguson and myself tried again to reach Mr Leeb with no ! success We did talk to Mr Leeb's secretary, Mr Howard, Law and other people at OPSEU No one knew anything about the case August 31, 1993 Mrs Ferguson and I reached Ms Ethel LaValley and faxed her a letter looking for answers to our questions We never heard back from her 5 September 20 1993 Mrs Ferguson and I finally reached Mr Leeb We were told I could not file a new grievance I contacted Office of the Ombudsman in Toronto by letter November 1, 1993 Ombudsman told me to take my case back to OPSEU November 2, 1993 I wrote back to Ombudsman explaining that OPSEU refused to look at my case January 1994 Received letter from Ombudsman saying that this was not in their jurisdiction and that I should contact the Ontario Public Service Labour Relations Tribunal January 9 1994 Wrote to Ontario Public Service Labour Relations Tribunal regarding my case January 25, 1994 Received letter from Ontario Public Service Labour Relations Tribunal containing copies of Complain Form 28 s and a telephone number where I could order a copy of the Crown Employees Collective Bargaining Act. February 10, 1994 Filed complaint against OPSEU with the Ontario Public Service Labour Relations Tribunal February 25, 1994 Informed by Ontario Public Service Labour Relations Tribunal that the Crown Employees Collective Bargaining Act had been repealed and that my case was being forwarded to Ontario Labour Relations Board March 30 1994 Date of first letter from Ontario Labour Relations Board April 7, 1994 Received response from OPSEU regarding my complaint April 12, 1994 Filed hearing estimate form and copies of all documents with OPSEU and the Ontario Labour Relations Board April 28, 1994 Received Grievance forms from OPSEU May 6, 1994 Filed Stage 1 Grievance with Mr Ron Running District Manager Nipigon after receiving the go-ahead from the Ontario Labour Relations Board Ms Jones' viva voce eVIdence substantiated the above noted document and It suffices to say that the eVIdence of the other two gnevors was materially Identical They commumcated wIth each other throughout and often acted together For example, the complamt to the Labour Board was filed on by Ms Jones on behalf of the three gnevors Regardmg certam dates, one of the 6 gnevors may have taken some action a few days or a week after Ms Jones, for our purposes, It IS reasonable for this Board to accept Ms Jones' outlIne of the facts and dates as outlIned above UNION SUBMISSION Mr Ryder, for the Union, suggested that there are five distinct Issues for thIS Board to address, although only three must be considered m the preliminary decisIon. The first IS the Issue of whether the grievances were filed in a tImely fashion. The second Issue is whether the doctrme of laches IS a JunsdIctIOnal matter to be determmed as a prelImmary matter The next matter IS whether these gnevances can be used to enforce the Memorandum of settlement. The fourth pomt IS whether the memorandum of settlement has been VIolated and finally, what remedy can thIS Board provIde m the event that it is decided that the grievances should be upheld The Umon asserted that the gnevances were filed m a timely fashIon The Memorandum of Settlement was sIgned by the partIes m the summer of 1991 That memorandum addressed the breach of the collective agreement on behalf of seasonal employees The gnevors took appropnate steps to ensure that they got their complaint addressed As can be seen by the sequence of events, the gnevors dId not abandon theIr claim The gnevors were told by the Umon that they could not file mdIvIdual gnevances regardmg a breach of the collective agreement gIven the terms and conditIons of the memorandum of 7 settlement sIgned by the partIes m 1991 However, thIS IS not the case and these gnevors should not be vIsited wIth the result of incorrect advise by the Umon. Mr Ryder contended that the abndgment of the gnevor's nghts to file indIvIdual gnevances would requIre clear language and such cannot be found in the memorandum of settlement. The Umon submItted that the "clock does not start to tick" m these matters untIl the gnevors became aware that they had a complam and when they knew that the complam could be dealt wIth by way of a grievance under the collective agreement. In the mstant matter, there was a sIgmficant delay between the first and second pomt. The grievors dId not become subjectIvely aware that they could file a gnevance untIl they receIved the copIes of the gnevance forms from the U mon m mid Apnl, 1994 Regardmg the matter of laches, It was Mr Ryder's submIssIon that rehef under thIS doctnne IS not avaIlable to the MmIstry The doctrine does not apply where the time hmIts m the collective agreement are mandatory Further, there was no eVIdence of prejUdICe to the MmIstry, and 10 order to rely on laches, prejUdICe must be present. Indeed, in the 10stant case, the eVIdence was that although some of the people mvolved have retired, they are all still avaIlable for testImony Further, documents eXIst WhIch would be of assIstance The MmIstry knew throughout that the gnevors were not satIsfied wIth the manner m WhICh they had been treated and cannot now suggest that It has been "ambushed" Finally, in order to have the doctrme of laches apply would reqUIre a findmg of fault on the grievors for the delay and such a finding would be most 1Oappropnate 10 these CIrcumstances 8 Regardmg the matter of JunsdIction of havmg thIS Board enforce a settlement arnved at between the partIes, the Umon asserted the merits would have to be heard m order to establIsh whether the grievors have met the cntena set out in the memorandum of settlement. The U mon argued that the jurisprudence was clear that we would have the Jurisdiction to do so The U mon rehed on Re The Crown in the Right of Ontario and Ontario Public Service Employees' Union (Dale) (March 27, 1995) Barrett (unreported), and Re The Crown in Right of Ontario and OPSEU (Edgett et al) (June 18, 1992) Dissanayake (unreported) MINISTRY SUBMISSION Ms Nikolich, for the MmIstry, argued that the gnevances should be dismissed on any of the followmg bases the grievances are all outsIde the mandatory tIme hmIts set out m the collective agreement; the Board should not exercise ItS dIscretIOn under Section 45(8) of the Labour Relations Act R.S 0 1990, c L-2 to extend the tIme limits, the doctrme of laches apphes WhiCh, it was conceded goes to the merits, and, there is no difference between the partIes that IS between the umon and the employer First addressmg the matter of timehness, the Ministry urged the Board to find the gnevances out of time The partIes are agreed that the test for tIme hmlts in found m Pierre, that IS, subjectIve awareness However, m the mstant case, it is clear from the evidence of the gnevors that they knew that they had a gnevance m August of 1991 It IS then that Ms Jones was told that she 9 could not file a gnevance However, It was apparent from the evidence that a number of other mdlvlduals dId file theIr own gnevances That fact, coupled wIth the eVIdence of the gnevors that they knew that they were entItled to be converted, makes clear that they were subjectively aware of theIr right to file grievances In the alternatIve, at the very latest, accordmg to the eVIdence of Ms Jones, she knew after the first arbItratIon award of Ms Barrett, that IS March 1, 1993, that she should be converted and the Mimstry refused In the case of the other two gnevors, they were less vigIlant m pursumg the matter Ms Trybus admItted that m March of 1992 she knew that she was not converted Ms BlIer also conceded that m March of 1992, she "thought that she had a case" In each mstance, theIr sUbjectIve awareness was much earlIer than days before the filmg of the gnevances Regardmg the Board's dIscretion to extend the tIme lImIts of the collectIve agreement, It was urged by the Mmlstry that "reasonable grounds" for the extensIOn must eXIst as well as no prejUdICe On eIther of the above two grounds, thIS Board can choose not to extend the tIme lImIts It was suggested that the mere passage of tIme IS prejUdICIal In consldenng the factors to take mto account when determmmg whether to extend the time lImIts, It was conceded that the nature of the gnevances are serious However, that senousness IS offset by the level of partIcIpatiOn of the parties to resolve thIS matter The length of the delay IS substantial and we are not clear as to the reasons for the delay It IS unfortunate that the gnevors have been the cause of the delay, however, the Mmlstry ought not to be vIsited upon With these dIsputes and become potentIally lIable for the Umon's faIlure Accordmgly, this 10 IS not a case where the Board should exercise its discretIon to extend the tIme limIts set out In the collective agreement. In the alternative, if the time limits are extended, the MInIstry WIll take the posItIon that the remedy is confined to twenty days pnor to the filmg of the gnevances Ms NIkolIch suggested that thIS Board can rely on the doctrme of laches to dIsmIss these gnevances prelImmarily In this case, the MImstry would be precluded from a faIr heanng and that IS sufficIent cause for the doctrine to be applIed. FInally, regarding the Issue of no difference between the partIes, the Mimstry suggested that thIS gnevances were not brought forward by the U mono Indeed, the Umon appeared to take the same VIew of tne merits of these matters as the MmIstry Therefore, neither the Umon nor the gnevors should now be allowed to lItigate this matter Some of the law the Mmistry relIed on was Re The Crown in the Right of Ontario & OPSEU (Union Grievance) (February 25, 1993) Barrett (unreported), Re The Crown in the Right of Ontario & OPSEU (Union Grievance) (August 9, 1993) Barrett (unreported), Re The Crown in the Right of Ontario & OPSEU (Pierre) 74 0 R. (2d) 701, Re The Crown in the Right of Ontario & OPSEU (Cuthbertson) (July 5, 1994) Briggs (unreported), Re General Freezers Ltd. and United Steelworkers of America (1983), 9 L.A.C (3d) 279 (O'Shea), Re Greater Niagara General Hospital & Ontario Nurses' Association (1981), 1 L.A C (3d) 1 (SchIff), Re Clements and the Crown in Right of Ontario (Liquor Control Board of Ontario (1981) 11 28 LAC (2d) 289 (Prichard), and Re: The Crown in Right of Ontario & Amalgamated Transit Union (E. Blake et al) (May 3, 1988) Shime (unreported) In reply, the Umon responded that the gnevors were proper to walt untIl the mechamsm put mto place between the partIes were exhausted before they sought their own remedIes DECISION The first Issue for thIS Board to address IS whether the gnevances are tImely We are of the VIew that the gnevances were filed outsIde the tIme limIts set out m the collectIve agreement In Pierre, (supra) and subsequent deciSIOns It has been determmed that m considenng whether a gnevance IS tImely It IS appropnate to take mto account when the gnevor became aware of both the eXIstence of a nght under the collectIve agreement and a set of CIrcumstances which contravene that contractual nght. In the mstant matter, based on the eVIdence of each of the gnevors, we are of the VIew that each was aware months before the filing of the mstant gnevances that they had a complamt that their contractual nghts were VIolated and that they mtended to, and wanted to, file gnevances Accordmg to theIr eVIdence, each gnevors clearly dIsagreed With the deCISIon of the employer not to convert theIr status Further, they spoke to a number of people from the Mmistry as well as the U mon about filing gnevances That dId not occur for a varIety of reasons At one pomt the U mon told them that there would be an arbItration hearmg which would resolve the matter . . 12 They were later mformed that the decision dId not apply to them but that there would be another arbItratIon hearmg about the Issues According to the forthright testImony of the gnevors, they were firmly of the view that they met the cntena set out in the first decisIon of ArbItrator Barrett and wanted to file gnevances However, when they were told that a procedure was m place to deal wIth outstandmg matters and to WaIt for that process to be completed, not surpnsmgly, they acqUIesced However, clearly thIS IS not a case where the gnevors were unaware of theIr nghts and how they should proceed wIth theIr dIsputes The second Barrett decision was Issued August 9, 1993 Ms Jones attempted to contact staff from the Umon three or four times over the next month - When she finally spoke to a representatIve she was told that she could not file a gnevance Apparently, after the issuance of the second arbitration award, the Umon dId not agree that there was a VIolatIon of the Memorandum of Settlement and adVIsed the grievors accordmgly There was some suggestion by the U mon that a gnevance was filed pnor to the gnevances before thIS panel WhICh mcluded the gnevors That gnevance took the form of a letter, dated August 27, 1991, to the letter to Ms Coombs, a representatIve on the committee that was establIshed to deal with the converSIons CopIes of that letter were sent to the Dlstnct Managers of Terrace Bay and NIpIgon. Without gomg mto the detaIl of that eVIdence, we dIsagree that the letter was a grievance and we find that the first time grievances WhICh were filed for the gnevors were dated May 6, 1994, May 9, 1994, and May 24, 1994 13 We are of the view that It IS not necessary to ascertaIn the exact date that each of the gnevors became aware that they had a complaInt and that a grievance could be filed because, In each case, that occurred months pnor to the gnevances beIng actually filed However, at the very latest, the gnevors should have filed their gnevances in August or September of 1993, after the second deCISion of Arbitrator Barrett. The grievances were not filed until May of 1994 Therefore, the gnevances are slgmficantly outside the time lImits set out In the collective agreement. HaVIng decided that the gnevances are untImely, we now turn to whether we should exercise our statutory authonty to extend the time lImits and allow the matters to be heard on the ments Section 45 (8 3) of the Labour Relations Act R.S 0 1990, c L-2 states (8 3) An arbitrator or arbitration board may extend the time for any step in the grievance or arbitration procedure under a collective agreement, despite the expiration of the time, if he, she or it is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension AccordIng to the Junsprudence, when considenng whether to exercise discretion to extend the time lImits, the nature of the gnevance IS a matter of slgmficant Importance In the Instant matter, the gnevances contemplate the Issue of the gnevors' employment status It would be difficult to suggest that the nature of the gnevances at hand was not slgmficant. Indeed, the MInistry conceded that the Issue was slgmficant. In determInIng whether to exercise discretion to extend the time lImits of the collective agreement, arbitration boards must be satisfied that there are reasonable grounds for the extension and that there IS not substantial prejudice to the MInIstry Turmng first to the Issue 14 of prejUdICe, the evidence of the Mimstry was that the people involved In thIS matter are avaIlable to be called as witnesses although two have retired Further, the eVIdence was clear that the applIcable documents are still avaIlable Therefore, we are of the VIew that, not only IS there no eVIdence of substantial prejudice, the evidence is clearly to the contrary The MInIstry suggested that the very fact of the delay IS prejudicial In some cases, we may be more persuaded by such an argument. However, in the Instant matter we have cogent eVIdence that the MInIstry can produce ItS evidence Therefore, In the absence of legItimate concern regardIng Its abIlIty to present Its case resultIng in procedural unfairness, we cannot find the fact of the delay sufficient reason, in and of Itself, to refuse to exercise our dIscretion to extend the time limIts In the Instant matter, the gnevors testified that each was of the VIew they had a legItImate gnevance and sought counsel from theIr U mono It IS apparent from the eVIdence that they followed Instructions and proVIded the personal Information that was requested The MInIstry was aware, at least as of the above mentioned letter of August of 1991, that the gnevors were of the VIew that they thought of they were to be converted. We are of the VIew that It cannot be saId that the gnevors ever abandoned theIr claIm that they ought to be converted to full time status In accordance WIth the ongInal Memorandum of Settlement. VarIOUS U mon representatives and others told them how the process of converSIon was to unfold. To the extent that was possible, they participated In that process and then waIted until ItS conclusIon at WhIch pOInt they were told about the second Barrett deCISIon and ItS result. 15 The eVIdence was not clear that there was any substantIve discussIOns between the gnevors or theIr Immediate supervisors regarding theIr VIew of thIS matter However, gIven the process that the partIes establIshed to deal wIth these cases, that IS the review commIttee, that apparent lack of specIfic and ongomg dIScussIon ought not to be held agamst the grievors When they were clearly informed by the Umon that no gnevance would be filed for them Ms Jones Immediately sought help from the Ombudsman on behalf of herself and Ms Trybus and Ms BlIer After months of attemptmg to obtam satIsfactIon from the office of the Ombudsman, they were told to pursue theIr complamt wIth the PublIc Service Labour RelatIons Tribunal They promptly dId so TheIr Journey to get before this Board was tortuous, however, they were vIgIlant and dIG not appear to abandon theIr cause They were prepared to work wIthm the appropnate structure They were patIent but unrelentmg Due to theIr fortItude, the Umon ultImately agreed to file gnevances and have the matter dealt WIth WhIle we have sympathy for the Mimstry not wantmg to be held responsible for, or be vIsited WIth the results of, the delay m this matter, neither should the gnevors and If we faIled to exerCIse our dIscretIOn to extend the tIme lImIts, that IS precIsely what would occur In thIS prelImmary deCISIon we make no comment regardmg the effect of delay on the remedy, If any, If we were to find for the gnevors on the ments of their gnevances We suspect that the MImstry will proVIde submIssIons as to why Its lIabIlIty ought to be curtailed to the filmg of the actual gnevances and we WIll consIder the matter at that pomt. 16 The MmIstry suggested that we should rule, as a prelimmary matter, that due to the doctrme of laches, we wIll not hear these gnevances We are not prepared to dIsmIss these matters based on the doctrine of laches as a preliminary matter The doctnne of laches does not go to our jUnSdIctIon to hear and decide these matters on their ments In Boldt (supra), the Board dId not hear the gnevances on the merits because it was clear from the eVIdence that due to the seven year delay which occurred between the grievor's active employment and the filIng of the gnevance, the employer was substantIally prejudiced and could nOt hope to present a case Further, the gnevor had died and the employer would have been further prejudIced by ItS mabIlIty to cross-exam me the gnevor Agam, while we may be more sympathetic to the argument regardmg delay and laches on other matters, m the mstant case we have clear eVIdence that the MmIstry can call WItnesses and has the applIcable documentatIon. Given that clear lack of prejUdICe, we cannot accept that the gnevances should not be heard on theIr ments In Re The Crown in Right of Ontario and OPSEU (Black) (November 14, 1990) unreported (Stewart), the Board refused to deal with a gnevance regardmg suspensIons, one of WhICh was grieved fourteen months later and the second was filed after twenty six months It was saId at page 4 that, " the absence of thIS kmd of prejUdICe does not mean that a gnevor IS entitled to leave a dIscIplInary matter unchallenged for an extended penod of time and, provIdmg no explanatIon for the delay. be allowed to proceed to challenge the discipline" (emphasis added) We do not disagree WIth the result m Black However, the mstant matter IS quite different. We are of the VIew that there is an explanation for the delay m the filing of these grievances The gnevors dId not sImply decIde months after 17 the fact to file the gnevances They attempted to do so and when they were unsuccessful m havmg theIr gnevances filed, they continued to make efforts to get theIr complamts lodged and dealt wIth Fmally, we are not prepared to dIsmIss the gnevances because there IS no "dIfference between the partIes" However, as of May of 1994, that IS, at the pomt that the gnevance forms were gIven to the gnevors and filed, there was a dIfference between the partIes The gnevances are on the usual forms used by the U mono The gnevors are bemg represented by the U mono In Re Blake (supra), rehance is placed on Re Amalgamated Transit Union, Local 1587 and The Crown in Right of Ontario (G J Brandt) 1528/86 (FrancIs grievance) In that matter, the Umon had agreed that a gnevance claImmg an Improper dIscharge was wIthdrawn The gnevor pursued the matter on his own behalf and the employer took Issue WIth the Board's JunsdICtIOn because, in part, there was no difference between the partIes The Board agreed that It dId not have JunsdIctIon to determme whether the gnevor was Improperly dIscharged because of the settlement between the "partIes" It was found that mdIvIduals dId not have the nght to take a gnevance to the Gnevance Settlement Board independently The decisIOn of Blake (supra), expressly agrees wIth the reasonmg m Francis but also goes on to make clear the Gnevance Settlement Board IS one Board. That IS to say that a decIsIon of one panel becomes the decIsIon of the Board 18 There IS no eVidence before this panel which supports the proposItion that, presently, the gnevors are not represented by the U mono Their gnevances are on the U mon' s standard gnevance forms Mr Ryder presented himself as counsel for the Umon. Further, there was no settlement presented which expressly resolves the instant disputes between the Mmlstry and the three gnevors There IS the Memorandum of Settlement dated July 17, 1991 However, the dispute before this panel IS that the settlement has been improperly Implemented as It applIed to the gnevors For all of those reasons, we Will hear the gnevances We ask counsel for the parties to contact the registrar for the establIshment of hearmg days Dated m Toronto, this 1st day of November, 1995. ~du l' .c{ FelICIty D Bng s, VIce Ch~ J&rJVlRdt1L Tammy Browes-Budgen, Member "I Dissent" (dissent attached) Mike MIlIch, Member Dissent in the Matter of OPSEU (Trybus et al) and the Ministry of Natural Resources GSB # 661/94 I have reviewed the decision in the above matter and cannot join with my colleagues in this award. While I agree that the grievances were out of time, I cannot agree with the exercise of our discretion to extend the time limits in the Collective Agreement pursuant to s 45 (8.3) of the Labour Relations Act. In The Corporation of the City of Mississauga [1982], OLRB Rep Mar 420, the Vice-Chair cogently describes the importance of time limits in labour relations, on page 425, he states. "It is by now almost a truism that time is of the essence in labour relations matters. It is univerSany recognized that the speedy resoulution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized (sic), could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances been satisfactorily settled, will not reemerge later That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. " In a discussion on the factors to be considered and the degree of lattitude to be provided to inexperienced individuals he concludes on the same page "But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years. If In Sheller-Globe of Canada, Ltd. [1982], OLRB Rep Jan. 113, the Vice-Chair indicated that, where there was undue delay, the onus shifted to the party bringing forward the complaint to justify proceeding with the litigation. On pages 116 and 117 (1982), he states. -A delay of the present magnitude carries Mth it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence win deteriorate for that reason alone. This is parliculary true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. .It might be noted parenthetically the Labour Board, in administering the Labour Relations Act, is prlmariJy concemed with the ongoing labour relations of a wOl1cplace, and workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an approprite (sic) remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelHng labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89. - Although these decisions dealt with complaints regarding the duty of fair representation under the Labour Relations Act, their insight to the issue of undue delay has equal bearing on the exercise of our discretion under s. 48 (8 3), particularly when we consider that the above decisions are dealing with a statutory right which has no prescribed time limits. They recognize that undue delay is inherently prejudicial to the opposite party and that compelling and cogent policy and labour relations reasons are required in order to overcome the prejudice created by the delay and to proceed with the hearing. While the legislation provides us with discretion to extend time limits in the appropriate circumstances,it does not abrogate our primary, if not overriding, responsiblity to give force to the bargain struck by the parties. If that were not the case, s. 48 (8.3) would have been drafted differently It is the well established jurisprudence of this Board that the time limits in the Collective Agreement before us are mandatory This fact places a much greater onus on the grievors and the Union to establish reasonable grounds for any extension of the time limits. In Re General Freezers Ltd. and United Steelworkers, Local 7455 (1983), 9 L.A.C (3d) 279 (O'Shea), the arbitrator states on pages 286 and 287 ., accordingly find that when giving effect to the provisions of s. 44(6) mandatory time-limits place a heavier onus on a party to estabHsh that there are reasonable fTOoodS for the extension of those time-limits. Again, I find that the reasonable grounds refered to in s. 44(6) relate to the reasons why there was a failure to abide by the time-limits rather than to the type of gievance, or to the relief claimed. In the instant case, the provisions of art. 6.06 provided a means to avoid the result of a failure to comply with the time-limits. Again, the length of the delay which was largely unexplained, also militates against the exercise of my discretionary authority My disaetionary authority under s. 44(6) must be exercised judiciously in light of an the facts including the provisions of the collective agreement. To extend the time for the filing of the gievance in this matter would not only contravene the intention of the parties that was expressed in arts. 6 and 9 but would also offend the purpose of the collective agreement as expressed in art. 1 01 and would render meaningless the time-/imits which wete ageed to by the parties. - In my opinion, neither the Union nor the grievors have discharged this onus. In fact the evidence that was presented to us provides compelling policy and labour relations reasons for not granting an extension of the time limits. We have evidence that the Union believed that the grievors' cases were part of the policy grievance that went to the panel of the Board chaired by Arbitrator Barrett. We also have evidence that the Union felt that after the second decision of this Board the outstanding issues were resolved and expressed this publicly in one of its bulletins. However, most telling regarding the Union's position with respect to these grievors was the evidence that the Union did not believe that the grievors had a case and, therefore, did not proceed with a grievance The Union was well within its rights to make such a determination as this Board has acknowledged in the past. Commenting on the Board's decisions in Blake et al 1276/87 and Francis 1528/86, the Vice-Chair in FunglAnand 1798/89 stated on page16: "In the Francis and Blake decisions, ~ the Board dealt with persons who were seeking to pursue matters that they were entitled to greve by statute. The interest of a person in such a situation could not be greater However, in those circumstances the Board has clearly, and correctly in our view, concluded that it is the Union and the Employer who are the parties to a collective agreement and that an individual employee whose rights are cfvectly in issue is not entitled to demand that a grievance be pusued if the Union chooses to with draw the grievance. Such an analysis recognizes a fundamental premise of collective bargaining, which is the representation of individual interests by a bargaining agent which is entitled to determine which interests will be advanced and which will not. " This also applies to the Union's decision to pursue or not a grievance in the first instance If the Union is entitled to make such a determination regarding a statutory right, it certainly has an equal entitlement to make such a determiniation regarding a grievance arising out of the collective agreement. As a party to the agreement, it is bound by the time limits established by the parties It is not enough for the grievors to have presevered in their attempts to have their grievance heard. That pursuit was directed at the Union not the Employer The Employer could reasonably believe that no grievance was forth coming after the decisions were made pursant to the second award of the panel chaired by Arbitrator Barrett and no grievance from these grievors surfaced. When viewed within the context of the evidence before us, the Employer was right to do so To extend the time limits in these circumstances strikes at the very heart of the policy and labour relations reasons that both the Ontario Labour Relations Board and boards of arbitration have expressed in maintaining that issues and disputes be dealt with in a timely fashion. As mentioned before, boards of arbitration have recognized that delay is inherently prejudicial and even more so where the delay was at the initial lodging of the grievance. In such circumstances, arbitrators have upheld the time limits in the collective agreement and not proceeded with the case. In Re Clements and the Crown in Right of Ontario (Liquor Control Board of Ontario) (1981), 28 L.A.C (2d) 289 (Walsh), the arbitrator found that the undue delay in grieving his dismissal was so prejudicial to the employer that it outweighed his statutory right to grieve Although the employer's witness recalled the dismissal and documents were still available, he found on pages 293 "The absence of notice of the grievance for 14 months is so completely at odds with the type of procedures developed throughout labour relations for the timely identification of gievances that we do not believe that it would be possible to hold a fair hearing In this case at this stage. No amount of evidence which we might hear at this stage could eliminate or outweigh the inherent prejudice done to the employer's position by viltue of the delay · later on the same page he continues. "The prejudice to the employer's ca.se and our ability to hold 8 fair heaing does not turn on the potentially increased Dability of the employer That dimension of the prejudice could be met through an appropriately designed remedy SimiHar/y, the retirement of one of the employer's witnesses does not constitute substantial prejudice. The prejudice arises from the fact that as a result of the Union's faHure to file the grievance, the emplOyer was precluded from a fun, effective and timely investigation of the discharge with a subsequent deteriOration in the quality of the case that the employer would be able to put foIward. This prejudice is not contradicted by Mr Kyfe's testimony that he was able to recall the discharge and that documents were still available. What has been lost by the absence of a timely investigation and consideration of the case cannot now be known. As a result, despite Mr Kyle's self- perception, the reality is that the employer's position has been irreversibly prejudiced.. We must bear in mind that the issues in this case date back to August, 1991 when Ms. Jones first approached the Union in the belief that she should be converted to the classified staff The delay in not filing grievances until May of 1994 only exacerbated the time frames. The fad that witnesses are available does not overcome the inherent prejudice that a more timely investigation might not have faced. In Re Greater Niagara General Hospital and Ontario Nurses' Association (1981), 1 l.AC (3rd) 1 (Schiff), the arbitrator lists a number of fadors including those discussed above which he considered should be reviewed in the mix going into a determination to extend time limits. Neither a grievor's perseverence nor the nature of the grievance were given precedent. They do not in the instant case overcome the other fadors considered. Whether one accepts the proposition that the delay must be justified before an extension is granted or that it, as are the nature of the grievance and a grievor's persistence, is only one of the factors among others which must be considered, reasonable grounds for the extension of time limits were not established. For these re$sons I would have dismissed the grievances. Michael Milich I