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HomeMy WebLinkAbout2010-2654 Pacheco.17-07-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2654 UNION#2010-0234-0283 Additional grievances noted in Appendix “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pacheco) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel HEARING SUBMISSIONS July 6, 2017 July 12, 2017 - 2 - Decision [1] I have before me four discipline grievances filed on behalf of Mr. J. Pacheco. There is a grievance dated February 12, 2015, which challenges a 10-day suspension, a grievance dated May 29, 2015, challenging a 15-day suspension, a grievance dated December 7, 2015, challenging a 20-day suspension and finally, a grievance dated March 3, 2016, which challenges the March 2, 2016 termination of Mr. Pacheco’s employment. There are also grievances filed by Mr. Pacheco which allege that he was subject to harassment and discrimination by the Employer. Initial attempts to resolve the grievances were unsuccessful. There have been a number of hearing days held thus far, but it is likely that many of the remaining scheduled hearing dates will be needed just to complete the Employer’s case. [2] A mediation was held on June 22 and 23, 2017, in another attempt to resolve the grievances. This attempt to settle all of the grievances also proved to be unsuccessful. Up until that time, the Employer had maintained that it had just cause to discharge Mr. Pacheco, but if it was found that it did not have just cause to terminate his employment, the Employer indicated that it would request that Mr. Pacheco not be returned to the Bailiff Department. To put it simply, the Employer had been of the view that Mr. Pacheco was not a good fit for the Bailiff Department. However, the Employer advised the Union during the mediation that it had decided to return Mr. Pacheco to the Bailiff Department. It took this step without prejudice to its position on the termination grievance that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to be compensated for his losses. The Union attempted to convince the Employer that Mr. Pacheco should be reinstated on terms in order to help ensure that his return to the Bailiff Department would be successful. The parties were unable to agree on the terms proposed by the Union and the Union indicated that it would likely request the Board to make an appropriate order for terms relating to Mr. Pacheco’s return to work. [3] Soon after the conclusion of the mediation, the Employer sent Mr. Pacheco a letter rescinding the termination of his employment and directing him to return to work in the Bailiff Department on July 17, 2017. On June 26, 2017, the Employer sent a - 3 - notice to all Bailiffs essentially advising them that it had become aware that audio recording devices had been utilized in the workplace and that such devices were prohibited in the workplace. [4] In an email dated July 4, 2017, Union counsel indicated that the Union would be requesting that the Board order terms and conditions to be applied to Mr. Pacheco’s return to the workplace. Attached to the email was a document setting out the Union’s proposal entitled Terms and Conditions of Reinstatement. The Union’s proposal reads as follows: Terms and Conditions of Reinstatement In view of the following: 1. The Union and the Grievor allege in the grievances before the Board, and say that they will call evidence of, harassment and discrimination by the Employer against the Grievor because of his union activities and because of favouritism by Bailiffs’ Dep. Management of which the four disciplines, including the termination, are said to be some of the particulars; 2. In part, the union says this has contributed to what was already a poisoned work environment requiring outside intervention. The Grievor has concerns about how he will be treated on his return to work, especially until these proceedings have been completed; 3. On Monday, June 26, the first workday after the two days of mediation in this matter at the Board, the Employer sent correspondence to all staff in the Bailiffs’ department (the attached memorandum). In the circumstances prior to his termination, the Grievor had made audio recordings at work. The staff would have known that the memo referred to the Grievor and had been intended to create a negative impression of the Grievor in the workplace. No notice was given to the Grievor, the Union, the Board, or to the knowledge of the Union, that this was going to be the first step the Bailiff’s management would make to “welcome” the Grievor back to work. The local management knew or should have known that a substantial portion of the time at the Board on June 22 and 23 was spent on how the RTW should be managed so the re-entry of the Grievor into the workplace would be successful. The Employer knew that the Union was going to ask the Board to order terms and conditions on his RTW to ensure a better chance of a successful RTW. In that context the Union submits that the Employer’s actions will have made the Grievor’s re-entry into the workplace less likely to be successful and borders on contempt of this Board. - 4 - 4. The practice has been in this Ministry and elsewhere in the OPS to suspend employees with pay while they are under investigation on serious allegations against them. The Union asks the Board to order, as a term and condition of the Grievor’s reinstatement to his position: A. That the Employer place the Grievor on leave of absence with pay until the grievance presently before the Board are resolved or as the Board otherwise orders, without prejudice to any claim the Grievor may make in these proceedings for compensation including compensation for lost overtime pay. B. In the Alternative, a. Before the Grievor returns to work, the Employer via correspondence remind all staff in the Bailiffs’ department of their responsibility to interact with each other professionally and with respect and to maintain a work environment free from discrimination and harassment; b. With respect to the Grievor, the Employer direct all management and supervisory staff, including Regional Transportation Coordinators, to model the requirements in (a) and to enforce those requirements with the staff; c. Any discussion between management and supervisory staff including RTCs and the Grievor other than about the Grievor’s work assignments or with the Grievor’s consent will include a member of the Local Union executive chosen by the Grievor in his sole discretion (currently identified as the local Chief Steward Chris Lowry). d. Until the grievances presently before the Board are resolved or the Board otherwise orders, if the Grievor files a grievance, that grievance will be referred directly to the Board and all other steps provided for in the CA will be waived, and the Grievor will be placed on leave of absence with pay, without prejudice to any claim the Grievor may make by way of remedy; e. No subject or incident that took place before the Grievor’s return to work of which the Employer was aware or reasonably ought to have been aware involving the Grievor may become in whole or in part the subject of an inquiry, investigation and/or discipline, except by leave of the Board; f. Such other terms and conditions as the Board determines are appropriate. [5] At the hearing on July 6, 2017, I heard submissions from counsel about - 5 - the issue of reinstatement terms and conditions for Mr. Pacheco. I was advised that the majority of the Bailiffs were not pleased at the prospect of Mr. Pacheco’s return to the workplace and that the majority of them had filed a grievance related to his return. At the end of that day, counsel agreed to continue talking about these issues and requested I defer making a decision on the matter until I heard from them. In an email dated July 10, 2017, I was requested by the parties to render the decision on the return to work issues. [6] In a further email dated July 12, 2017, Union counsel advised me that the Employer had sent Mr. Pacheco a letter dated July 10, 2017, requesting him to attend an allegation meeting on July 19, 2017, at the Ontario Correctional Institute. The allegation to be considered at the meeting is that Mr. Pacheco “surreptitiously made an audio recording of a fact finding meeting held on February 12, 2016.” Union counsel made submissions on the Union’s and Mr. Pacheco’s concerns about this development in his email. The essence of the Union’s concern is contained in the following sentence: “The Union also says the action is a clear continuation of the effort of the Employer to poison the workplace against the Grievor, to try to intimidate, harass and discriminate against him and to undermine the Employer’s own reinstatement of the Grievor.” The Union requested that I consider this latest development when considering the Union’s request for reinstatement terms for Mr. Pacheco. Employer counsel made his submissions on this matter by email as well. [7] It is fair to say that both parties appreciate that Mr. Pacheco’s return to the Bailiff’s department will likely create some challenges for the Employer and for Mr. Pacheco. It is in the context of this reality that counsel made their submissions on the Union’s request that I make orders for Mr. Pacheco’s return to the workplace. The focus of the submissions were on whether I have the authority to make the requested orders and how I should exercise that authority if I have it in the circumstances of this case. I will briefly summarize the submissions of counsel. [8] Union counsel argued that I have the authority to make the requested orders based on the jurisdiction I continue to have over the termination grievance. He - 6 - submitted that the Employer’s rescinding of the discharge had only addressed the issues of just cause and into which position Mr. Pacheco will be placed, and that I still have the authority to provide other remedies related to the reinstatement issue, just as I would have had if I had reinstated Mr. Pacheco at the end of this proceeding. Counsel submitted that one option I have is to direct the parties, within a specified time, to attempt to resolve the reinstatement issues and to direct the Employer to place Mr. Pacheco on a leave with pay until the parties resolve the issues or I direct otherwise. In the alternative, Union counsel submitted that I should grant the orders the Union requests on the basis of my authority to provide interim relief. Union counsel submitted that the directions the Union has requested are only intended to ensure that Mr. Pacheco has a successful return to the Bailiff’s Department. Union counsel referred me to the following decisions: Ontario Power Generation v. Society of Energy Professionals, [2007] O.J. No. 72 (Div. Ct.); Re Ontario (Workplace Safety and Insurance Board) and CUPE, Local 1750 (2013), 231 L.A.C. (4th) 272 (Briggs); and, Re Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Ranger) (2004), 134 L.A.C. (4th) 347 (Leighton). [9] Employer counsel advised that the Employer sent a memo to the Bailiffs informing them of Mr. Pacheco’s return to the workplace and of its expectation that staff will act professionally. Employer counsel submitted that this action was sufficient to deal with Mr. Pacheco’s return to the workplace. Counsel also submitted that the Union’s request can only be characterized as a request for interim relief and that the request should be dismissed because of a failure to comply with the GSB’s Interim Relief Rule. Counsel also argued, if I was inclined to consider the merits of the Union’s request, that the elements of the Union’s request amounted to an infringement on management rights and was inconsistent with a number of provisions covered by the Collective Agreement. Counsel did not dispute that I had a broad authority to grant remedies after hearing the evidence in a case, but argued that there was no proper basis upon which I could grant the extraordinary remedy requested by the Union and he asked me to dismiss the Union’s request. - 7 - [10] In determining whether I have the jurisdiction to grant orders relating to Mr. Pacheco’s reinstatement and whether it is appropriate to grant or partly grant the requested relief, I too will assume that there may be some challenges when Mr. Pacheco returns to the Bailiff Department. I am prepared to assume that because I was informed that most of the Bailiffs have filed grievances upon hearing that Mr. Pacheco will be returning to the bargaining unit. The Union’s request is primarily based on its contention that Mr. Pacheco had been harassed and discriminated against by the Employer in the past, that the Employer had created a poisoned work environment for Mr. Pacheco and that it had disciplined Mr. Pacheco on a number of occasions without just cause. Many of the specifics of the Union’s request are designed to protect Mr. Pacheco from any further actions by the Employer that he might perceive as harassing, discriminatory and without just cause. [11] I agree with Employer counsel’s submission that the Union’s request can be accurately described as a request for interim relief. It is true of course that I retain jurisdiction over Mr. Pacheco’s discharge grievance and it may be the case that I would have had the authority to fashion the remedies that the Union now seeks if I had directed the reinstatement of Mr. Pacheco after hearing all of the evidence. At this stage however, I have not heard all of the evidence in this matter, including all of the evidence that might be relevant to finally disposing of the discharge grievance. It therefore appears to me that the Union is requesting some interim orders pending the final determination of the matters that are in dispute in this proceeding. The Employer’s position that the Union has not complied with the GSB’s Interim Relief Rule is also correct. In any event, in dealing with the Union’s request, my primary focus has been on the merits of the request and not whether the request is for interim relief or for a final order on the reinstatement issue. [12] On the merits of the Union’s request, I am simply not prepared at this stage to assume as true the allegations that form the foundation of the Union’s request. The issues of harassment, discrimination, the poisoned work environment and most of the remaining just cause issues are being vigorously contested in this proceeding. I am not prepared to conclude at this stage that it was inappropriate for the Employer to send the - 8 - memo about audio recording devices to the Bailiffs. Nor am I prepared to conclude at this stage that it is inappropriate for the Employer to hold an allegation meeting with Mr. Pacheco on July 19, 2017. The Union views these last two matters as simply a continuation of the Employer’s harassment and discrimination of Mr. Pacheco, while the Employer views this conduct as simply the proper exercise of its management rights. I am not in a position to reach a conclusion at this stage of this proceeding about whose perspective on these issues is most consistent with the truth. Whether or not I have the authority to make orders that have an impact on management’s right to manage the Bailiffs operation or that could alter some of the terms of the Collective Agreement, I am not convinced that it would be appropriate to do so in these circumstances. I am also not convinced that there is justification on these facts or that there could ever be justification for placing Mr. Pacheco on a paid leave of absence until the grievances before me are resolved or until the parties agreed on reinstatement terms. From what I observed at the recent mediation, it is very unlikely that these parties would ever agree on terms for the reinstatement of Mr. Pacheco. [13] I note finally that the nature of the request here is for extraordinary relief or at least somewhat unusual relief. Before granting such relief, I must be satisfied that there is a basis for altering the status quo and that any of the potential concerns raised by the Union cannot be adequately addressed by reliance on a remedial request at the end of this proceeding or by a reliance on the grievance procedure to challenge any new alleged contraventions of the Collective Agreement. I am not satisfied that I should make any orders that would alter the status quo. I am also satisfied that any concerns raised by the Union in its request can be adequately addressed either at the end of this proceeding or by the filing of new grievances. [14] I appreciate that Union counsel is strongly of the view that the parties should agree on reinstatement terms for Mr. Pacheco in an attempt to ensure his successful return to the Bailiff Department. I agree that an agreement by the parties on this issue would have been a useful exercise. On the other hand I believe that the request for me to intervene to direct the terms of Mr. Pacheco’s reinstatement at this stage of the proceedings, even assuming I have the jurisdiction to do so, is not warranted in the - 9 - circumstances. Accordingly, the Union request for orders relating to Mr. Pacheco’s reinstatement is hereby dismissed. Dated at Toronto, Ontario this 17th day of July 2017. Ken Petryshen, Arbitrator - 10 - Appendix A GSB Number OPSEU File Number 2012-0727 2012-0234-0066 2013-3214 2013-0234-0359 2014-0350 2014-0234-0061 2014-3305 2014-0234-0458 2014-3846 2014-0234-0508 2014-4854 2015-0234-0030 2015-0390 2015-0234-0058 2015-0494 2015-0234-0069 2015-0495 2015-0234-0070 2015-0496 2015-0234-0071 2015-0913 2015-0234-0085 2015-0914 2015-0234-0086 2015-0915 2015-0234-0087 2015-0916 2015-0234-0088 2015-1310 2015-0234-0108 2015-1311 2015-0234-0109 2015-1312 2015-0234-0110 2015-1313 2015-0234-0111 2015-1314 2015-0234-0112 2015-1315 2015-0234-0113 2015-1316 2015-0234-0114 2015-1317 2015-0234-0115 2015-1318 2015-0234-0116 2015-1319 2015-0234-0117 2015-1320 2015-0234-0118 2015-1321 2015-0234-0119