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HomeMy WebLinkAbout1990-1990-Chan.93-03-01 I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUiTE' 2rOO TORONTO ONTARIO M5G lZ8 TELEPHONE TELEPHOt'E (~6J 326- 388 180 RUf DUNDAS OUEST BUREAu 2100 TORONTO (ONTAR(O) M5G rZ8 FACSIMILE TELECOPiE I~ i51 326- );6 1990/90,2269/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chan) Grievor - and - The Crown in Right of Ontario (Ministry of Education) Employer BEFORE N Dissanayake Vice-Chairperson p Klym Member D. Daugharty Member FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & solicitors FOR THE R. Dunsmore RESPONDENT Counsel HiCks Morley Hamilton stewart storie Barristers & Solicitors p Murray Counsel Hicks Morley Hamilton stewart storie Barristers & Solicitors HE~ING January 141 1993 I I 2 DECISIOt-[ This decision records a ruling orally rendered by the Board at the hearing on January 14 1993. This ruling was necessitated by a claim by thB employer that Mr Gary Shaul, Local Union President had contravened the Board's order of exclusion of witnessHs by causing or permitting the posting at the workplace of a notice, which induded an account of testimony adduced at the hearing by a management witness. Ruling At the hearing in this matter on November 26, 1992, the Board was faced with two substantive motions from the employer seeking' (a) that the Board state a case to the courts for contempt under section 13 of the Statutory Powers Procedure Act and (b) a direction be made under section 9 01 the same Act that the hearing be conducted in camera. In addition, the employer sought an award of costs occasioned by the adjournment of the hearing which was necessitated by the raising of these motions, The union made a counter-motion claiming that the employer had been in contempt of the exclusion order by distributing within the Ministry newspaper c1ippin\Js containing an account of evidence adduced at the hearing, Following deliberations which took up most of the day the Board scheduled all of the above mentioned matters to be heard on January 14 1993 3 On January 13 1993 the day before the scheduled date of hearing, employer counsel informed the Board with copy to union counsel that the employer was withdrawing the two substantive motions mentioned above, and that at the hearing it would instead be seeking other unspecified remedies from the Board itself At the hearing on January 14, 1993, employer counsel confirmed the withdrawal of the two motions in question. He went on for the first time to specify the nature of the alternative remedies it proposed to seek from the Board Counsel also indicated that the employer intended to pursue the issue of costs. Counsel 1m the union vehemently objected. Counsel pointed out that the union had come prepared to argue the two motions put fOlWard by the employer Considerable time had been spent in researching the law and a substantial book of legal authorities had been prepared. \n a nut-shell it was union counsel s position that it would be an abuse of the Board's process to now allow the employer to withdraw the motions in question and to seek new remedies. Counsel stressed that this is more so because the Board and the union was informed of the employer's change of position at the very last minute prior to the scheduled hearing. Counsel submitted that since the employer had withdrawn its motions, the Board should not entertain any further submissions from the employer on the issues covered by the two motions. Having considered aJJ of the submissions, the Board has decided that it will not entertain the proposed submissions from the employer In our view what in effect the employer has done is to unilaterally withdraw the motions scheduled for hearing. and to make a completely new motion which requires this Board itself to determine whether the al/eged conduct was contemptuous and if contempt is found, to provide its own remedies. . 4 This changed position adopted by the employer is significantly different from the motion for a stated case made earlier in that it requires the Board itself to d(~cide and remedy the alleged contempt. We refuse to entertain these submissions tor tvvo reasons. Firstly if we had }urisdictlon, as part of the Board's authority to control its own procedure, to decidl:! and remedy a contempt, the exercise of that authority is at the Board's discretion. In this caSE' we decline to exercise that discretion. The alleged contempt relates to the conduct of Local Union President Mr Gary Shaul Through union counsel, Mr Shaul admitted that what he did was inadvisable and apologized for the same. We are satisfied that the Board s integrity has not been harmed in the circumstances so as to warrant any further action. We believe also that the Board s ability to conduct this hearing has not been adversely affected and we have no reason to beljeve that its orders will not be complied with in the future. In deciding not to entertain the new submissions proposed by the employer we have also considered the manner in which the employer changed its position, Ttte issue of the exclusion of the media had been raised twice earlier and a considerable amount of th'9 Board's hearing time had been spent deliberating it Then at the hearing on November 26, 1992. the employer brought up this issue once again by way of a motion to conduct the hearing in camera. At the same time it raisecl the issue of Mr Shaul's conduct and moved that the Board stato a case to the courts for contempt. In an attempt to finally resolve these issues, which had already taken up a considerable amount of time, the Board adjourned the hearing of the merits of the grievances and went on to carefully and deliberately frame the issues in dispute. The Board scheduled these issues to be argued on January 14 1992. With in effect no notice to the Board or to the union, on January 14 the employer has taken a new position and sought different remedies than that sort in the motions listed for hearing. . 5 Under the circumstances, it is not reasonable to expect the union to have been ready to meet the employer's new submissions. If the Board agreed to hear the employer's alternate submissions, and the union sought an adjournment to facilitate preparation (as it did when the two original motions were made with no notice) the Board would have no choice but to grant the adjournment. This would have further delayed this proceeding which first commenced on May 16, 1991 I In our view the employer had ample opportunity to take whatever steps it deemed fit to red ress any concerns it may have had It chose to make the two original motions in question and the Board accommodated the employer by listing the motions for hearing on January 14, 1993. Since the employer has now decided to withdraw those motions, the Board IS not prepared to entertain any further requests for redress from this Board with regard to those concerns. As for the request for an award of costs, such relief can only flow from a finding by the Board that there had been misconduct which amounted to contempt. Since, the motion relating to the alleged contempt has now been withdrawn and since we have determined that no further submissions will be entertained as to the alleged misconduct, we will no longer entertain any submissions as to costs, The Board notes that these findings do not affect any remedies the employer may have in some other forum for the alleged misconduct. Our finding simply is that the employer is no longer entitled to seek from this Board, any relief with regard to the maners which flow from the subject maner of the two motions made and subsequently withdrawn. We record here that following the Board's oral ruling, the union indicated that it was withdrawing its motion for a stated case for contempt against the employer 6 As a general matter the Board has serious concerns about the number of interruptions that have taken place resulting in the significant delay in the hearing of the merits of this case. We wish to put the parties on notice that the Board will be! very strict in the future in deciding what procedural objections and motions it will entertain. The Board intends to get on with the merits of this case as expeditiously as possible and the parties are expected to govern themselves accordi'1gly Employer counsel submitted that pursuing Gontempt proceedings in the courts is not conducive to an environment which will encourage a sl3ttlement of this case by the parties and that its alternate position of seeking less drastic remedies from the Board itself must therefore be seen favourably We have encouraged the parties in the past to attempt to settle this matter and we continue to do so We believe that an inquiry at this time by this Board at the instance of the employer into the alleged contemptuous conduct of thl~ union represontative will not facilitate, and may even seriously impede any optimism that may still remain for a pOSSible settlement. As a result of the foregoing, the Board will continue with the employer's evidence on the next scheduled date of hearing. 7 Dated thisl s,t day of Ma rch 1993 at Hamilton, Ontario ~~1-4 -/ N Dissanayake Vi ce-C ha irpersoD el/L 0; V-- P Klym ~embe/I - /. '[ f I ~ I': (v- I I 11../ 'I L I\.. ,~,._{ ,",' o Daugharty Member