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HomeMy WebLinkAbout2002-2260.Union Grievance.04-03-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2260 UNION# 2002-0248-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Richard Blair Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING March 23 2004 2 DeCISIon On December 3 2003 the Umon filed the folloWIng gnevance The Employer has vIOlated specIfically but not exclusIvely ArtIcle 2 and 9 of the CollectIve Agreement In regards to occupancy loads wIthIn the HamIlton-Wentworth DetentIOn Centre It asked for a declaratIOn and full redress At the first day of heanng on March 23 2004 a prelImInary Issued was argued concermng the Umon's request for productIOn of the folloWIng any documents related to the establIshment of the operatIOnal capacIty for the HamIlton-Wentworth DetentIOn Centre, IncludIng but not lImIted to any documents related to the creatIOn of the CorrectIOnal FacIlIty CapacIty CertIficate for that InstItutIOn, copIes of the CorrectIOnal FacIlIty CapacIty CertIficate for the years 2000 2001 and 2002 any documents related to the calculatIOn of capacIty or occupancy In the facIlIty as It relates to the Ontano BUIldIng Code and any documents In the posseSSIOn of the Mimstry related to any efforts made to reduce occupancy In the HamIlton-Wentworth DetentIOn Centre to bnng occupancy wIthIn the operatIOnal capacIty for that facIlIty Mr Blair counsel for the Umon, was seekIng an order from the Board for productIOn of the above noted documents It was said that the allegatIOns raised In the gnevance raise an arguable Issue concermng the safety of the employees due to overcrowdIng. The Umon belIeves thIS overcrowdIng has resulted from the Mimstry's methods of calculatIng or establIshIng capacIty levels and the Employer's faIled steps to deal wIth It at the InstItutIOn. The detaIls of those decIsIOns and steps are wIthIn the knowledge of the Employer not the Umon, and should be provIded to the Umon. The documents requested are relevant or arguably relevant to the case and the Umon IS entItled to them ArtIcle 22 14 5 of the collectIve agreement provIdes as follows The partIes agree that at the earlIest stage of the gnevance procedure, eIther party upon request IS entItled to receIve from the other full dIsclosure That provIsIOn, It was argued, reqUIres the Employer to provIde the Umon wIth the InformatIOn It IS seekIng. The Umon relIed on the folloWIng cases Re University of Saskatcheyt,an and Faculty Association 59 LAC (4th) 274 andRe Children s Aid Society of City of Belleville County of Hastings and City of Trenton and Canadian Union of Public Employees, Local 2197 (1994) 42 LAC (4th) 259 (Bnggs) Mr HatzIs, Counsel for the Mimstry took the posItIOn that the request for productIOn must follow a reqUIrement for full partIculars It was argued It IS a two pronged test that must be followed In sequence The Umon must establIsh a prima facie case before the Employer can be reqUIred to provIde dIsclosure The Umon must furnIsh the Employer wIth the matenal facts 3 upon whIch It Intends to proceed before a determInatIOn of the relevance or arguable relevance can be made The Employer pOInted to the test for partIculars used by the Ontano Labour RelatIOns Board as the appropnate approach thIS Board should take In consIdenng thIS Issue In the BridgeYf,ood Plumbing Limited case ([1995] 0 L R. D No 3153) the Board stated, at paragraphs 4 and 5 As a general pnncIple, partIes here seekIng productIOn of documents from Local 183 are entItled to have those documents produced If they eXIst, are In the posseSSIOn or control of Local 183 ItS agents, or officers, and If they are arguable relevant. Of course, arguable relevance wIll depend upon the partIculars that have been filed, whIch partIculars crystallIze the Issues and set out the matenal facts In the proceedIngs A request for productIOn of documents cannot be a fishIng expedItIOn, but must relate to the matenal facts and allegatIOns pleaded. In lIght of the partIculars, where specIfic employers have been IdentIfied, together wIth sufficIent matenal facts to allege a PRIMA FACIE case wIth respect to Inappropnate or Improper employer conduct, the partIes seekIng productIOn of documents are entItled to have produced to them documents that mIght contaIn matters of arguable relevance wIth respect to the employer mIsconduct or conspIracy allegatIOns Conversely where there have been no sufficIently partIculanzed allegatIOns of Improper employer conduct, eIther actIng Independently or as part of the conspIracy allegatIOn, partIes are not entItled to productIOn of any documents contaInIng reference to such employers The Employer also relIed on a decIsIOn of a panel of the PublIc ServIce Gnevance Board (Chyczij andMinistlY ofLabour(September 19 2001), GSB # P/0017/00 (Maeots) whIch Involved a prelImInary Issue of dIsclosure The Board stated, on pages 2 & 3 as follows In the normal course of the employer's gnevance process, opportumtIes are afforded to define the Issue between the partIes However as the ImtIal posItIOn of the employer had been that the matter In Issue was not a gnevable one, no gnevance meetIngs had been held and, as a result, the employer now contends that It lacks sufficIent InformatIOn about the specIfics of the gnevor's allegatIOns to enable It to prepare a response Each sIde IS entItled to know the case that It IS reqUIred to meet. When a party IS faced wIth allegatIOns, It should expect to receIve an answer to the questIOns "when" "where" "how" and "who" from the party makIng the ImtIal allegatIOns AccordIngly I dIrect the gnevor to proVIde the employer wIth full partIculars of the allegatIOns of fact on whIch he relIes In thIS proceedIng IncludIng 1 detaIls of the speCIfic acts and/or admIsSIOns commItted by or on behalf of the employer that the gnevor alleges constItutes eIther a breach of PolIcy DIrectIves, GUIdelInes or past practIce, or whIch were made In bad faith or In an arbItrary or dISCnmInatory manner 2 detaIls of actIOns or facts whIch the gnevor wIll contend constItute a flawed competItIOn process 3 detaIls of actIOns or facts relatIng to the gnevor's contentIOn of IneqUItable treatment, 4 4 the names of the IndIVIduals alleged to have commItted any of the above alleged acts, and 5 the dates and places where such acts were allegedly commItted. In provIdIng partIculars of the above, the gnevor IS reqUIred to provIde only the matenal facts relatIng to each Issue and IS not oblIged to set out the eVIdence upon whIch he wIll be relYIng. The Employer submItted that It too IS entItled to know the "who" "what' "where" and "how" before It can be reqUIred to respond. The Umon must make a connectIOn between ItS allegatIOns and the provIsIOn of the collectIve agreement It claims was vIOlated. The Employer IS aware of It oblIgatIOns under the collectIve agreement to dIsclose and IS prepared to do so but only after the Umon has partIculanzed the matenal facts of ItS allegatIOn. The Employer also relIed on the folloWIng cases Barillari and the Ministry of Community Family and Children s Services (October 9 2003) GSB # 2002-2390 (DIssanayake), Tefoglou and Ministry of the Solicitor General and Correctional Services (March 26 1998) GSB # 1378/97 (Abramsky) In reply the Umon asserted that the OLRB has ItS own rules respectIng pleadIngs, partIculars and dIsclosure based In part on It authonty to determIne whether aprimafacie case eXIsts In the first Instance It IS not appropnate for thIS Board to apply theIr rules to ItS procedures In addItIOn, It submIts that the Employer has suffiCIent InformatIOn about the allegatIOns to know the case It has to meet. It knows that the Issue IS overcrowdIng at the faCIlIty and IS aware of the health and safety concerns of the Umon as a result of that overcrowdIng. The InfOrmatIOn beIng sought by the Umon related dIrectly to the fact of that overcrowdIng, IS In the exclusIve control of the Employer and should be proVIded to the Umon. DECISION ThIS prelImInary Issue has been the subject of much lItIgatIOn. The questIOn of what a party must proVIde to the other party before a case can proceed IS of cntIcalImportance to a party In determInIng how the case IS to be presented or whether It ought to proceed at all The collectIve agreement recogmzes the Importance of each party knowIng In advance the case It must meet and has addressed that mutual need In ArtIcle 22 14 5 of the collectIve agreement. There IS a recIprocal duty to proVIde that InformatIOn. The collectIve agreement does not, however define what must be dIsclosed to the other for ObVIOUS reasons It depends entIrely on the pleadIngs If specIfic facts are proVIded In the gnevance, the collectIve agreement reqUIres the Employer to respond to those facts There IS no dIspute between the partIes on that Issue The dIspute lIes In each party's InterpretatIOn of the meamng of the word "partIculars" The test for the dIsclosure of InformatIOn dunng the gnevance procedure has been set out In prevIOUS decIsIOn and approved and applIed conSIstently That test IS set out In the Children s Aid Society (supra) at page 262 as follows Those cntena are that the requested InformatIOn must be arguably relevant, must be partIculanzed clearly to aVOId later dIsputes, cannot be a "fishIng expedItIOn" and must 5 be clearly connected to the dIspute at hand. FInally the productIOn of the InformatIOn requested should not cause undue prejUdICe The Issue In the Instant case IS whether the allegatIOns have been partIculanzed sufficIently to put the Employer on notIce of the facts gIVIng nse to the gnevance The Umon has made a sweepIng allegatIOn that overcrowdIng at the HamIlton-Wentworth DetentIOn Centre IS a vIOlatIOn of the Management RIghts and Health and Safety and Video DIsplay TermInals provIsIOn of the collectIve agreement. It now asks the Employer to provIde InfOrmatIOn concernIng the decIsIOn makIng process that establIshed the capacIty of the facIlIty and the steps It took to allevIate the overcrowdIng. It seems to me that before the Umon can expect that InformatIOn, It must provIde the Employer wIth more partIculars concermng ItS allegatIOns The Employer IS entItled to know when the alleged overcrowdIng took place, where It took place, who was Involved and how It relates to ArtIcles 2 and 9 of the collectIve agreement. Once the Employer knows those elements of the Un IOns case It can determIne what InformatIOn It should provIde the Umon. For these reasons the Umon's request for dIsclosure IS demed at thIS tIme The Employer's request for partIculars IS allowed. The Employer conceded ItS duty to provIde dIsclosure and has agreed to do so after It receIves the partIculars from the Umon. If the partIes have further dIfficulty In determInIng what partIculars or dIsclosure IS appropnate I remaIn seIzed. to thIS 31 st day of March, 2004