Loading...
HomeMy WebLinkAbout1996-0596UNION96_07_23 ONTARIO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (418) 328-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 GSB "# F1f~f~W'LECOPfE (418)328-1396 OPSEU "# 96U022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINiNG ACT Before THE GRiEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE N. Dissanayake Vice-Chairperson FOR THE A Lee GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARiNG June 17, 1996 2 DECISION This is a policy grievance wherein the union claims that by removing two notices posted on the union bulletin board the employer contravened article A.1. 2. of the collective agreement which reads: A.1.2. There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the union The respective counsel argued this matter on the basis of the following agreed statement of facts. (Appendices omitted): STATEMENT OF FACTS 1. The strike between the parties ended on March 30, 1996. 2 The parties signed a "Return to Work Protocol" dated March 29, 1996 (Attached) which included a "no reprisals" clause (Article 10 1). (Appx A) 3 On April 1, 1996, the local union president, Mr. Leo Herskovi ts , put two lists (attached) on the union's bulletin board at 10 10 a.m. 4 Mr. David Gabay, Hanager Field Audit Operations and Mining, Corporate Tax Branch, removed these lists on April 1, 1996 shortly after 1 30 p.m prior to knowing who put them up, after a number of staff brought the lists to his attention. It was his view they were a violation of the Return to Work Protocol 5. Mr Leo Herskovits contacted Mr Grimsditch, Senior Manager, Audit and Mining Tax, who reviewed the lists and confirmed the view that posting the lists was a violation of the Return to Work Protocol (Memo of April 2, 1996) (Appx B) 3 6 On April 3, 1996, Mr Grimsditch reinforced the employer's position on the "no reprisals" clause in an e-mail to managers. (Appx C) 7. As a matter of general practice the union has posted material on the bulletin board without prior approval from management. It is common ground that the collective agreement contains no provision entitling the union to any rights to a bulletin board at the workplace. The employer submits that this grievance, being a policy grievance could l"'.ot succeed in any event because article A 1.2. prohibits discrimination and harassment of an employee and that the alleged facts do not suggest that any employee was subjected to discrimination or harassment. Counsel went on, however, to argue that even if the merits were to be considered no violation of article A.1.2 is established The two notices removed by Mr Gabay were hand-written The first consisted of a list of 19 names of employees preceded by the following preamble "Congratulations to the following members who stayed out the entire duration of the strike" The second notice contained a list of 67 employee names, preceded by the preamble "The following members crossed the picket line during the strike Thank you for extending the strike. We will be thinking of you in the days to come!" / 4 Counsel for the employer submits that the two notices constituted a breach of article 10.1 of the "Return to Work Protocol" dated March 29, 1996, which was part of the Memorandum of Settlement concluded at the end of the ontario PUblic Service strike which commenced on February 26, 1996 That article reads Both parties agree that there will be no reprisals, discrimination or retaliation for any act or inaction taken by any employee of the employer arising out of participation in the strike In addition, both parties agree that no employee shall initiate or participate in any reprisal, discrimination or retaliation for any act or inaction taken by a manager or excluded employee during the strike. Counsel submits that, particularly considering that the union has no collective agreement rights with regard to a bulletin board and that the particular material in question was contrary to the "Return to Work Protocol", the employer was entitled to remove the notices pursuant to its management rights. Union counsel submits that the notices do not constitute a "reprisal, discrimination or retaliation" within the meaning of article 10.1 of the protocol It is submitted that the removal of the material from the bulletin board amounted to harassment of the union representative who posted the notices and an interference in the union's internal affairs The Board does not wish to consider this grievance on the basis of whether the employer's first argument that a violation of article A.l 2 could not be established through a policy grievance ~ 5 It will be more useful to the parties as a matter of guidance, if the Board deals with the merits of this grievance. Obviously, the parties executed a "Return to Work Protocol" at the conclusion of the strike because they considered it important to put the strike behind them and move on to a harmonious relationship in the post- strike period. In Re smythe (Briggs) decision dated June 17, 1996, the Board recognized the significance of the "Return to Work Protocolll as follows Does a breach of the protocol constitute just cause for discipline? I believe it does The parties clearly felt the issue of no retaliation for strike activity or non activity was of ~ufficient importance that they specifically addressed it in their final settlement document Both parties agreed to refrain from retaliation. Therefore, both parties bear a significant onus to uphold their agreement. Generally, when parties involved in a work stoppage come to such an arrangement it is in the hope that, by forgiving the past, they can get on with the future This makes good labour relations sense. violations of such an agreement do not allow the parties to begin the journey back to their normal relationship. It is for this reason that such breaches of the protocol must be viewed as just cause. In dealing with a union's right to inform and communicate with its members, arbitrators have consistently_held that those rights must be balanced with the legitimate rights of the employer. See the cases reviewed in Re Plainfield Children's Home, (1985) 19 L A.C. (3d) 412 (Emrich) Having reviewed the case law, at pp. 23- 424 the arbitrator stated: Having reviewed the foregoing cases, it is apparent that management's rights provisions, rules promulgated pursuant to such provisions, and explicit rights of approval have been interpreted to authorize managerial control over certain activities on behalf of, or at the behest of a union, which are established to undermine or ,.- 6 inhibit legitimate employer interests Interests considered legitimate have included continued productivity, maintaining a clean and orderly place or work, and the maintenance of a working-force which is relatively discipline-free and in compliance with the standards of conduct mandated by statues governing industrial relations and recognized or incorporated in collective agreements. In this connection, management's control of union bulletin boards or of the distribution of literature has been upheld where the content is thought to incite breaches of discipline or unlawful industrial strife within the enterprise, or which could reasonably compromise the enterprise's public image as neutral or apolitical in respect to industrial disputes in other entities Such interests are weighed and balanced against the right Even in the absence of specific collective agreement rights to a union bulletin board, given that by practice such a board had existed without the need for prior approval by management for postings, the employer must demonstrate that it had a legitimate interest to protect by removing material posted on the union bulletin Board On the facts of this case, the Board has no hesitation in concluding that it did While the union attempted to address the first notice related to the list of employees who stayed out on strike for the duration in isolation, it is not reasonable to do so The two notices were posted on the same bulletin board, clearly drawing a distinction between the two groups of employees While one group is congratulated, the statement addressed to the group that crossed the picket-line, at the very least, could be perceived to be a weiled threat, whether so intended or not. There is a sarcastic "thank you" for extending the strike The objective reader will have no difficulty understanding that as a statement of anger or displeasure with the ~ I 7 employees concerned This is followed by a promise or statement of intention that "We will be thinking of you in the coming days". That latter statement could easily be perceived to be threatening. Whether intended or not, the combined effect of the two notices is to communicate that the union will be viewing the two groups differently in the future. That, in the Board's view is clearly contrary to the intent and spir it of article 10.1 of the "Return to Work Protocol" In the Board's view, even apart from the issue of whether the notices technically constituted a contravention of the "Return to Work Protocol", their effect is to promote disharmony, conflict and division within the workforce. Such a workforce cannot be expected to be effective and productive. Thus the employer had a very legitimate interest in taking steps to avoid that possibility On the other hand, upon inquiry by the Board as to what the purpose of posting those notices was, the union counsel could only say that the purpose was lito let everyone know who crossed the picket line and who did notll The union did not offer a legitimate reason as to why it was important for that information to be communicated It is the Board's view that the facts of this case do not disclose that by removing the notices in question the employer engaged in discrimination or harassment by reason of an employee's membership or activity in the union On the contrary, the employer had a legitimate interest in upholding the intent and spirit of the 8 "Return to Work Protocol" and to prevent conflict and division within its workforce For the above reasons the grievance is hereby dismissed Dated this 23rd day of July, 1996 at Hamilton, ontario ~ ~~~---- Nimal V Dissanayake Vice-Chairperson