Loading...
HomeMy WebLinkAbout2004-1803.Degeer et al.06-05-11 Decision Crown Employees Commission de Nj 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# 2004-1803 2004-1804 2004-1807 2004-1811 2004-1917 2004-1921 2004-1922, 2004-1923 2004-1924 2004-19812004-2232,2004-2460 2004-2684 2004-2685 2004-2710 2004-3195 2004-3484 2004-3879 2005-0284 2005-0683 2005-0876 2005-1756 2005-1757 2005-1758 UNION# 2004-0368-0060 2004-0368-0061 2004-0368-0064 2004-0368-0068 2004-0368-0074 2004-0368-0070 2004-0368-0071 2004-0368-0072,2004-0368-0073 2004-0368-0080 2004-0368-0094 2004-0368-0104 2004-0368-0112,2004-0368-0113 2004-0368-0114 2004-0368-0132,2004-0368-0145 2005-0368-0012,2004-0368-0151 2005-0368-0028 2005-0368-0041 2005-0368-0073 2005-0368-0074 2005-0368-0075 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Degeer et al ) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Tracey Henry Cavalluzzo Hayes ShIlton McIntyre & CornIsh LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Benj amIn Parry Counsel Mimstry of Government ServIces HEARING Apnl 24 2006 2 DeCISIon [1] In December 2005 the partIes' representatIves at Jomt FIle RevIew agreed to schedule these 24 grievances together for arbItratIOn on April 24, 2006 ThIs order confirms and explams certam dIrectIOns that I made orally at that hearmg [2] A NotIce of Proceedmg lIstmg all 24 grievances was sent on December 12, 2005 to Scott Andrews and Ben Parry as the representatIves of the Umon and Employer, respectIvely, m these matters [3] By fax dated December 20, 2005, Mr Parry asked Mr Andrews for partIculars of the grievances Mr Andrews dId not respond, nor dId anyone else on behalf of the umon. By fax dated March 24, 2005, Mr Parry agam asked Mr Andrews for partIculars of the grievances Agam, Mr Andrews dId not respond, nor dId anyone else on behalf of the umon. By fax dated April 19, 2006, Mr Parry gave Mr Andrews notIce that the Employer would be brmgmg a motIon to dIsmIss the grievances because of the umon's faIlure to delIver partIculars No partIculars were delIvered. [4] The umon was represented by outsIde counsel at the scheduled hearmg on April 24, 2006 The Grievances in Board Files 2005-1756 and 2005-1757 [5] Umon counsel was able to provIde copIes of all but two of the grievances lIsted for hearmg before me CopIes of the other two grievances - those m Board FlIes 2005 1756 and 2005 1757 - were obtamed from the Board's files and provIded to counsel. [6] On readmg those two grievance forms, umon counsel stated that those grievances should not have been scheduled for hearmg together wIth the other 22 grievances before me Employer counsel concurred. [7] It seems unfortunate that thIS error, apparently detectable on readmg the grievances, went undetected eIther at the tIme the grievances were scheduled for hearmg m December 2005 or at any tIme between then and the scheduled hearmg over four months later 3 [8] Umon counsel asked that the two grievances m questIOn not be heard together wIth the others before me and, further, that they be scheduled for mediatIOn. [9] I accepted the agreement of counsel that the grievances m Board FIles 2005 1756 and 2005 1757 not be heard together wIth the other 22 grievances before me It dId not seem appropriate for me to go further than that In partIcular, It dId not seem appropriate for me to dIrect that they be scheduled for mediatIOn, or otherwIse mterfere eIther wIth the Jomt FIle RevIew process or wIth the applIcatIOn of any pertment agreed upon or Board Imposed rule concermng the tImely processmg and schedulmg for hearmg of grievances My understandmg IS that all grievances m thIS Mmlstry are first scheduled for mediatIOn and are not dealt wIth at Jomt FIle RevIew untIl after the scheduled mediatIOn date Counsel were not able to say that that process had not been followed here, although there was some suggestIOn from the umon advIsors that the grievances m questIOn had not actually been addressed on the scheduled mediatIOn date I advIsed counsel that they take should up wIth and through the partIes' Jomt FIle RevIew representatIves the matter of a belated second mediatIOn opportumty They may lIkewIse address the questIOn whether I should remam seIsed wIth those two grievances Application to Dismiss for Failure to Provide Particulars When Asked [10] The current collectIve agreement and the prevIOUS collectIve agreement, under whIch these grievances were filed, each contam the followmg prOVISIOns 22.1 It IS the mtent of thIs Agreement to adjust as qUIckly as possIble any complamts or chfferences between the partIes arIsmg from the mterpretatIOn apphcatIOn admmIstratIOn or alleged contraventIOn of thIs Agreement mcludmg any questIOn as to whether a matter IS arbItrable 22.14.4 The partIes agree that prmcIples of full chsclosure of Issues m dIspute as alleged by a grIevance advanced by the Umon on behalf of a member or members or the Umon Itself, and full chsclosure of facts rehed upon by management m a decIsIOn that IS subject to a grIevance are key elements m amIcable and expedItIOus dIspute resolutIOn processes 22.14.5 The partIes agree that at the earhest stage of the grIevance procedure eIther party upon request IS entItled to receIVe from the other full chsclosure 4 [11] In the face of these prOVISIOns there could be no questIOn that the employer was entItled to the partIculars Mr Parry sought on ItS behalf. Nor could there be any questIOn that the umon's entIrely unexplamed faIlure to respond to hIS repeated requests was a clear breach of ItS collectIve agreement oblIgatIOns The only questIOn was whether dIsmIssal of the grievances was the appropriate response to the umon's mlscond uct m the CIrcumstances [12] In answermg that questIOn I could not Ignore my experience of proceedmgs m thIS forum m recent years - proceedmgs m whIch there have frequently been pre hearmg breaches by one sIde or the other of eIther the letter or the SpIrit of the prOVISIOns quoted above, breaches that were generally met, at least at the tIme they occurred, wIth a certam resIgned tolerance by the OpposIte party My reference to thIS behavIOur IS not mtended to condone or encourage It. In the context created by It and m the absence of any mdlcatIOn that eIther party had prevIOusly sIgnalled to the other an unwIllmgness to contmue It, however, It seemed unduly precIpItous to dIsmIss the grievances, partIcularly when notIce that there would not be resIgned tolerance m thIS case was gIVen only two clear busmess days prior to the hearmg [13] Accordmgly, I concluded that the appropriate response was to call on the umon to gIve oral partIculars wIthout preJudIce to an applIcatIOn for adJournment If the partIculars caught the employer by surprise or an order reqUIrmg the delIvery of Written partIculars [14] Before turmng to the oral partIculars gIven on the umon's behalf and my subsequent dIrectIOn that It delIver Written partIculars, I should say somethmg more about pre hearmg dIsclosure [15] In thIS forum grievances are generally scheduled for arbItratIOn or mediatIOn arbItratIOn months m advance, as thIS one was Three or four months IS more than enough tIme for a complete exchange of partIculars and relevant documents on a consensual basIs through dialogue between counsel. Such a dialogue should start when the hearmg IS scheduled, If It has not already begun before then. If eIther party has a concern about the adequacy of the others' dIsclosure, It can and should request that a pre hearmg order for dIsclosure 5 [16] Request for orders dlrectmg pre hearmg partIculars and productIOn of documents can be dealt wIth m wrItmg or by telephone conference, and should be made well m advance of the mltIal hearmg date GIven the prOVISIOns of the partIes' collectIve agreement and the arbItral JUrisprudence concermng pre hearmg dIsclosure, any party argumg that such an order should not be granted would bear the burden of persuaSIOn on that Issue Unless that burden IS somehow dIscharged, an order for mutual dIsclosure can be m place wlthm a few weeks after the hearmg IS scheduled, wIth a tImetable for completIOn prior to the scheduled hearmg date It goes wIthout saymg that an unexplamed failure to comply wIth such an order could be expected to have seriOUS, adverse consequences for the party m default. The Oral Particulars [17] At the tImes they filed theIr grievances, the grIevors were unclassIfied employees at the Central East CorrectIOnal Centre m Lmdsay ("the mstItutIOn") Generally speakmg, theIr written grievances complam that on some occaSIOn or occaSIOns, specIfied or unspecIfied, the employer's "dIstributIOn" of hours or "unclassIfied hours" was unfair and/or unreasonable Some describe thIS as a breach of ArtIcle 2 - the management rights clause - and/or other unspecIfied "applIcable" prOVISIOns of the collectIve agreement. One grievance alleges that "management acted m bad faith by not hlrmg me for four hours, despIte the fact that a number of classIfied staff were on overtIme" [18] Umon counsel stated that m advancmg these grievances the umon does not allege vIOlatIOn of any prOVISIOn of the collectIve agreement. It alleges breaches of an undertakmg or representatIOn It says local management made to the umon and to unclassIfied employees at the mstItutIOn. The alleged undertakmg concerned backfill hours - hours of work that must be worked by someone else when the person orIgmally scheduled to work them IS absent on short notIce due to sIckness, bereavement leave or the lIke That representatIOn/undertakmg was that All possIble steps wIll be taken to schedule unclassIfied c/os for those hours aVaIlable for a two week perIod. 6 Begmnmg m January we WIll fill all open slots wIth unclassIfied c/os on a senIorIty basIs All operatIOnal managers are to ensure that all attempts have been made to provIde unclassIfied c/os wIth theIr 40 hours BEFORE hIrmg overtIme These words appear m a December 2, 2003 memo to operatIOnal managers from the mstItutIOn's Deputy Supermtendent/AdmmlstratIOn. DespIte ItS appearmg to be an mternal management com mum catIOn, the umon alleges that thIS memo became a representatIOn or undertakmg to the umon and the grIevors when someone posted It on a bulletm board. [19] The umon also relIes on representatIOns allegedly made to ItS representatIves at meetmgs of the Local Employee RelatIOns CommIttee meetmgs on September 16 and October 9, 2003, and recorded m mmutes of those meetmgs I note that the employer takes the posItIOn that no undertakmg gIven at such a meetmg IS enforceable and that nothmg said at such meetmgs may be the subJect of eVIdence m any arbItratIOn proceedmg, by vIrtue of ArtIcle 16 1 of the Central Agreement ARTICLE 16 - LOCAL AND MINISTRY NEGOTIATIONS 16 1 It IS agreed that all mInIstrIeS may enter mto local and mInIstry employee relatIOns negotIatIOns such that are approprIate as not bemg excluded by the prOVISIOns of the Crown Emplovee,., CollectiVe Bargml11ng Act 1993 Such negotIatIOns shall not be subJect to the mechatIOn and arbItratIOn procedures under the Act provIded however that nothmg shall preclude a grIevance allegmg a vIOlatIOn of the Central CollectIve Agreement as provIded m the saId Act. and ArtIcle 5 3 6 of AppendIx COR4 to the CorrectIOnal Bargammg Umt agreement. ARTICLE 5 - LOCAL EMPLOYEE RELATIONS COMMITTEES (LERCs) 5 1 Upon mutual consent the partIes wIll estabhsh a LERC 5 '3 Agenda and Minutes 5'36 The mmutes are not bmdmg on eIther party nor are they subJect to the grIevance procedure At thIS stage It IS not necessary to determme whether these prOVISIOns have the effect alleged by employer counsel. [20] The umon's posItIOn IS that the representatIOn/undertakmg referred to m paragraph [17] above IS enforceable because gave rise to an estoppel. Asked what detriment the umon alleges It suffered m relymg (If It dId) on the representatIOn, umon 7 counsel replIed that the umon had lost the opportumty to bargam wIth respect to the subJect matter It IS not apparent that any oblIgatory opportumty to bargam arose between the makmg of the undertakmg/representatIOn m December 2003 and the breaches alleged m the gnevances, whIch appear to focus on events at varIOUS pomts m the perIOd between Apnl 2004 and February 2005 NegotIatIOns for the current collectIve agreement dId not conclude untIl August 2005 It IS not clear whether the umon concedes that by the conduct complamed of or m ItS response to one or more of these gnevances the employer expressly or ImplIedly put the umon on notIce that It dId not consIder thmgs saId before or m ItS memo December 2003 to create an enforceable oblIgatIOn to provIde the nghts claimed by the gnevors [21] U mon counsel stated that If there was no detnmental relIance by the umon on whIch an estoppel could be based, the umon asserts m the alternatIve that each of the mdlvldual gnevors relIed on the employer's representatIOn/undertakmg to hIS or her detnment and that thIS IS a sufficIent basIs for the applIcatIOn of an estoppel. These mdlvldual detnments were saId to consIst of the gnevors' havmg made themselves more avaIlable for work at the mstItutIOn than they would otherwIse have done Counsel was not m posItIOn to say, WIth respect to any of the gnevors, how aVailable the gnevor alleged s/he had made hIm/herself before the representatIOn, nor how much more avaIlable the gnevor alleged s/he had made hIm/herself after the representatIOn, nor how the mcrement (If any) m bemg avaIlable wIll have resulted m a detnment to the gnevor If the employer IS not estopped from resIlmg (If It dId) from ItS alleged undertakmg [22] Umon counsel was unable to full partIculanze the gnevances at the hearmg I therefore orally dIrected that the umon delIver wntten partIculars of the facts on whIch It relIes m connectIOn wIth each of these gnevances (other than the two gnevances referred to m paragraphs [5] through [9] above) and that those partIculars are to mclude, with respect to each gnevance. a) The partIcular shlft(s) or hours of work that the gnevor alleges the employer should have offered to hIm or her and mstead assIgned to a classIfied employee on overtIme Each shIft m Issue IS to be IdentIfied by date, start 8 tIme, duratIOn and, where known to the gnevor or the umon, the name of the classIfied employee assIgned to work It b) As for the alleged estoppel, each representatIOn alleged to have been made to and relIed upon by the umon and/or the gnevor, mcludmg m each case the person who made the representatIOn on employer's behalf and by what means, and the detnment saId to have been suffered by the umon or the gnevor as a result of theIr relymg on the representatIOn. c) If It IS alleged that the employer conduct complamed of was arbItrary, dlscnmmatory or m bad faith, full partIculars of all facts on whIch the umon relIes m that regard, mcludmg the name or the person or persons who are alleged to have actmg m that manner on the part of the employer, and any facts relIed upon to demonstrate Improper motIve d) The remedy sought for the gnevor (In so far as the umon relIes m connectIOn wIth each gnevance on the same representatIOns to and detnmental relIance by the umon, subparagraph b) does not reqUIre that the partIculars thereof be set out more than once) [23] Umon counsel requested that I order productIOn by the employer of overtIme authonzatIOn sheets for the mstItutIOn for each of the shIfts that wIll be IdentIfied m the umon's partIculars From dIscussIOn of thIS request It appeared that the documents would be relevant to the questIOn whether a shIft so IdentIfied was worked by a classIfied employee on an overtIme basIs, as the umon IS expected to allege Such productIOn would only be needed for shIfts m respect of whIch the employer dIsputes an allegatIOn that the shIft was worked by a classIfied employee on an overtIme basIs Accordmgly, I dIrected that after It receIves the umon's partIculars the employer IS to produce to the umon overtIme authonzatIOn sheets for the mstItutIOn for any shIfts put m Issue by the umon's partIculars m respect of whIch the employer dIsputes the allegatIOn that the shIft was worked by a classIfied employee on an overtIme basIs [24] As a result of canvassmg the avaIlabIlIty of counsel, It appeared that the earlIest convement date on whIch the hearmg m these matters could contmue was November 2, 9 2006 In that context counsel agreed upon the followmg deadlmes for complIance wIth my dIrectIOns a) The partIculars reqUIred by the dIrectIOn confirmed m paragraph [22]above shall be delIvered to employer counsel by no later than June 30, 2006, and, b) The productIOns reqUIred by the dIrectIOn confirmed m paragraph [23] above shall be delIvered to umon counsel by no later than September 8, 2006, and I so dIrected. These deadlmes may be altered by agreement of the partIes [25] In a matter m whIch eIther party reasonably requests that the other be dIrected to provIde partIculars, It IS ordmanly my practIce to dIrect that both partIes delIver partIculars and copIes of any documents on whIch they may wIsh to rely, m an order and on a tImetable that takes mto account who bears the burden of proof and the nature of the task thus Imposed, wIthout preJudIce to any request for an order for further productIOn that eIther party mIght make once the Issues m dIspute have thus been defined see, for example, Koonlllgs, 2003 310 1, decIsIOns dated September 29, 2005 and February 17, 2006 [26] I dId not do that here for two reasons FIrst, I was persuaded that domg so mIght blunt or confuse the message that I dIsapprove of the umon's unexplamed faIlure to respond to the employer's repeated pre hearmg requests for partIculars Second, the employer takes the posItIOn that these gnevances are marbltrable In determmmg that Issue It WIll only be necessary to know what facts the umon alleges, smce ordmanly all such facts must be assumed to be true when assessmg arbltrabIlIty ArbltrabIlIty was a senous Issue on the face of the gnevances as filed, and may remam so after the umon's partIculars are delIvered WIthout suggestmg that a challenge of thIS sort by a respondmg party should m every case delay that party's dlsclosmg the allegatIOns of fact on whIch It may rely m defence on the ments, I was persuaded that It should m thIS case [27] My havmg declmed to dIrect that the employer delIver partIculars at thIS stage (or that the partIes exchange copIes of documents on whIch they may wIsh to rely, whIch would be equally unnecessary for the determmatIOn of the arbltrabIlIty Issue) IS wIthout preJudIce to any request that eIther party may later make for partIculars 10 and/or productIOn of documents If, after seemg the umon's partIculars, the employer chooses not to pursue the arbltrabIlIty Issue as a prelImmary matter In that event, the employer would be well advIsed to respond to the umon's partIculars wIth partIculars of Its own pnor to the next scheduled hearmg date Dated at Toronto thIS 11th day of May, 2006