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Home My WebLink About2003-0711.Union Grievance.04-03-16 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# 2003-0711 UNION# 2003-0999-0015 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 of TransportatIOn) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Craig R. CollIns-WillIams PalIere Roland Rosenberg RothsteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Lucy McSweeney Counsel Management Board Secretanat HEARING March 12,2004 2 Order [1] ThIs order concerns a request by the umon that the employer be ordered to produce certam records that may be relevant to Issues m thIS proceedmg For reasons set out hereafter, the order was granted orally on March 12, 2004, and IS hereby confirmed [2] ThIs gnevance, filed Apnl 28, 2003, concerns the assIgnment of employees to perform work on what came to be known as the VehIcle Resolve ProJect The work was done by employees m the Mmlstry's Kmgston office, and by Mmlstry employees mother regIOns of the provmce Generally speakmg, the umon's contentIOn IS that between roughly May 2002 and August 2003 a number of Mmlstry employees dId that work contmuously for more than SIX months and that, m the cIrcumstances, the employer was oblIged to post and fill by competItIOn the temporary assIgnments to that work, pursuant to ArtIcles 8 6 1 and 6 of the collectIve agreement. [3] In November 2003, the partIes agreed to an order reqUIrmg that they exchange partIculars of theIr posItIOns and copIes of the documents they relIed upon. The order dId not reqUIre that eIther party produce relevant documents m ItS possessIOn on whIch It dId not mtend to rely At that tIme the partIes agreed to a tImetable for exchange of partIculars, and to contmued hearmg dates of March 9 and 12, 2004 [4] In ItS partIculars of February 6, 2004, the employer contended that employees outsIde of Kmgston only dId VehIcle Resolve work on overtIme durmg the first thIrd or four months of the perIOd m Issue, performmg theIr regular dutIes durmg regular workmg hours m that penod, that such employees dId VehIcle Resolve work durmg theIr regular hours only from roughly Apnl to August, 2003, and that m every case there was between those two perIOds a gap of between three weeks and two and a half months durmg whIch the employees m questIOn performed no VehIcle Resolve work at all. The umon has not accepted the truth of those assertIOns, and persIsts m the allegatIOn that employees outsIde of Kmgston were assIgned to VehIcle Resolve work for contmuous penods of SIX months or more 3 [5] When the hearmg resumed on March 9, 2004, wIthout pnor notIce counsel for the umon sought productIOn from the employer of certam addItIonal records He stated that the umon had recently learned that employees performmg VehIcle Resolve work outsIde of Kmgston had been reqUIred to keep track of the tIme they spent on that work durmg theIr regular workmg hours and had provIded that mformatIOn by emaII to theIr supervIsors on a daIly (or, at least, frequent) basIs, and that the employees had understood that the mformatIOn they provIded was transmItted to Kmgston on an ongomg basIs for use m trackmg the costs of the proJect Based on that mformatIOn, umon counsel sought productIOn of any records m the posseSSIOn of the Mmlstry showmg detaIls of the tIme spent on VehIcle Resolve work by the employees m questIOn durmg the penod m questIOn. [6] Counsel for the employer obJected to bemg reqUIred to produce documents at that stage, contendmg that the matter ought to have been raIsed earlIer [7] It IS Important to note that the order for partIculars and productIOn dId not reqUIre eIther party to produce any document m ItS possessIOn, custody or power on whIch It dId not mtend to rely (or wIsh to keep the optIOn of relymg), even If the document was relevant The order dId not reqUIre that eIther party IdentIfy any document on whIch It mIght wIsh to rely other than a document m ItS possessIOn, custody or control. [8] Apart altogether from what the order for partIculars and productIOn of documents reqUIred, the expedItIon expected of the arbItratIOn process reqUIred and reqUIres that each sIde mvestIgate ItS case and marshal the eVIdence m support of that case m a tImely way, so that scheduled hearmg dates are not wasted The dates when and basIs on whIch employees performed the work m Issue are matters for proof by the umon as part of ItS case The umon had known for months that ItS contentIOns m that regard were m dIspute It was the umon's oblIgatIOn to determme whether there were any documents on whIch It mIght wIsh to rely to support ItS posItIOn, and to make whatever applIcatIOns for pre hearmg productIOn and serve whatever summonses mIght be necessary m advance of the scheduled hearmg dates, m order that the hearmg could proceed as scheduled wIth whatever eVIdence It could muster m support of ItS case 4 [9] The umon's counsel contended on Its behalf that It had not mvestIgated the matter of record keepmg by bargammg umt employees earlIer because It had mterpreted certam employer representatIOns about dIsclosure as mdlcatmg that there were no pertment records other than those It had produced I wIll not reVIew m detaIl what I have been told about the com mum catIOns between counsel wIth respect to productIOn. It suffices to say that I am not persuaded that there was any representatIOn by or through employer counsel eIther that there had been an exhaustIve search for all relevant records or that none could or dId eXIst other than those It had produced. [10] When thIS Issue arose for the first tIme on March 9, umon counsel saId he only had two wItnesses to call. At that pomt It seemed not unlIkely that the testImony of those wItnesses mIght be complete, and the umon's case closed, before the end of the second hearmg day on March 12 It would sImply not have been realIstIc to expect that before then the employer could respond to a summons served or order pronounced on March 9 by completmg a search for and makmg productIOn m Toronto of any such records as mIght stIll eXIst concermng the mformatIOn allegedly provIded electromcally to management by employees durmg a penod that begun almost 18 months earlIer Smce the records concerned matters that the umon would have to establIsh m ItS case m chIef (ItS counsel havmg clearly stated that he dId not mtend to attempt to prove through the employers' wItnesses any Issue to whIch the sought after records would be pertment), It seemed that no useful purpose could be served by reqUIrmg the employer to search for and produce the records unless the umon's case dId not close on March 12 Accordmgly, I deferred the Issue to the hearmg of March 12 [11] The testImony of the two wItnesses that the umon had on hand was completed before the end of the day on March 12, 2004 At that pomt employer counsel was not ready to proceed, however, as the only wItness she had had wIth her had left the hearmg early In those cIrcumstances, I was not prepared to reqUIre that the umon call another wItness or close ItS case The earlIest date on whIch the hearmg could contmue was June 9, 2004 In those cIrcumstances, there was no longer the prospect of hearmg tIme bemg wasted by an adJournment to awaIt the sought after records [12] It appearmg that the contents of such records, If they eXIst, would be relevant to matters m Issue between the partIes, I dIrected orally that the employer produce to the 5 umon copIes of any paper or electromc records m Its posseSSIOn, custody or power wIth respect to the nature of work performed on a day to day basIs by the MTO employees outsIde of Kmgston named m the umon's partIculars as havmg been mvolved m VehIcle Resolve work. Such records, If any, are to be produced wIth respect to each such named employee for the penod commencmg on the first date on whIch the employer's partIculars IdentIfy that that employee began domg VehIcle Resolve work and endmg March 31, 2003, mcluslve, and, for employees m the Northern RegIOn, also for the penod August 16 to September 29, 2003, mcluslve The aforesaId records, If any, are to be produced to the umon by Apnl 30, 2004 [13] I note the umon's undertakmg to advIse employer counsel of any dIssatIsfactIOn wIth the response to thIS order by May 14, 2004, and of any mtentIOn to call any addItIonal wItnesses by May 28, 2004 [14] The deadlmes stated m thIS order may be vaned by agreement of the partIes oronto thIS 16th day of March, 2004