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HomeMy WebLinkAbout2003-1588.Patterson.07-01-23 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2003-1588,2004-1041,2004-1552,2004-1553, 2004-3489, 2004-3490, 2004-3491, 2004-3492, 2005-0714,2005-0715,2005-1492 UNION# 2003-0608-0018,2004-0618-0006, 2004-0618-0010, 2004-0618-0011, 2004-0618-0018, 2004-0618-0019, 2004-0618-0020, 2004-0618-0021, 2005-0618-0027, 2005-0618-0028, 2005-0618-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Patterson) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer Randi H. Abramsky Vice-Chair BEFORE Elizabeth Nurse Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE UNION George Parris Counsel Ministry of Government Services FOR THE EMPLOYER January 15 & 16,2007. HEARING 2 Decision The Union has requested an order for production of documents. All matters, except for two categories of documents, were agreed upon by the parties. This Decision deals with the two matters upon which the parties were unable to agree. Facts There are twelve grievances before the Board, alleging a variety of claims. One of the claims is that the grievor, a female Correctional Officer, has been discriminated against in regard to her assignments because of her gender. She alleges that she was regularly assigned to work in the female inmate cottage, which left her unavailable for escorts and Control as well as overtime opportunities in those areas. In her particulars, she has cited a number of examples of this type of alleged discriminatory assignment. In connection with this claim, the Union seeks to have the Employer produce the following records: 4. CFYC [Cecil Facer Youth Centre] Main schedule for all staff (cottages and main control) Aug 2003 to January 2006. 5. CFYC Staff Allocation Sheets, Aug 2003 to January 2006. 6. CFYC StaffDuty Assignment sheets Aug 2003 to January 2006. 7. CFYC Log Books for all Cottages, Control Office and the S.I.U Aug. 2003 to January 2006. 8. CFYC Overtime Log Books and sheets for Control Area - August 03 to January 2006. 9. CFYC Staff Escort Log Book August 2003 to January 2006. During argument, counsel for the Union conceded that the overtime log books (request #8), went to remedy and agreed that those records did not have to be produced at this time. The documents in Request #4 involve an annual schedule. There are daily records for Requests #5 3 and #6, and the Union is seeking copies of them. In terms of Request #7, the Log Books for all Cottages, Control and S.I.U, the Union acknowledges that these log books are voluminous and would agree to access to them, instead of copies. In regard to Request #9, the Staff Escort Log Books, the Unions submits that there is one book per year and is seeking copies of them. The second issue regarding documents involves the Union's request for "[d]ocumentation recording Compassionate/Special Leave days and Compensating Time Off (CTO) granted to CO staff at CFYC [from] Aug 2003 to January 2006." Due to privacy concerns, the Union is willing to have identifying information blanked out. These documents, according to the Union, relate to a grievance filed on December 24,2004, in which the grievor alleges that the Employer's refusal to grant her Compassionate/Special Leave, when her father was having surgery was di scriminatory. Position of the Parties The Union argues that the first group of documents are "arguably relevant" to the Grievor's claim of discriminatory assignments. It submits that the documents relate directly to an issue in dispute - that is, the alleged pattern of discriminatory assignments, based on gender. It asserts that the documents are arguably relevant and that there is a clear nexus between the documents requested and the particulars provided by the Union, that they are sufficiently particularized and do not constitute a fishing expedition. It also asserts that there is no undue prejudice caused to the Employer by their production. In support, the Union cites to Ontario Liquor Board Employees' Union and Ontario Liquor Control Board (Koonings Grievance) (2006), GSB No. 2003-3101(Gray, Vice-Chair). 4 The Employer asserts that it is not sufficient to assert that there is a pattern of discrimination and then demand documents to determine if a pattern exists. Yet, the Employer contends, that is exactly what the Union is trying to do here. In its view, the grievor's assertion of a pattern of discriminatory assignments is speculation and is not supported by the particulars provided. From its viewpoint, the Union's request for documents is an improper fishing expedition to determine if such a pattern exists which the Board should not allow. In support, the Employer cites to OPSEU (Union Grievance) and Ministry of Community Safety & Correctional Services (2006), GSB No. 2003-3766 (Briggs, Vice-Chair) and OPSEU (Ross) and Ministry of the Solicitor General and Correctional Services (2003), GSB 1996-2690 (Herlich, Vice-Chair). The Employer contends that the Union is only entitled to documents that relate directly to the particulars provided, not en masse production of schedules, assignments and so forth over such a long period of time. It asserts that production would be an enormous and cumbersome undertaking. In terms the Union's for documents concernIng Compassionate/Special Leave, the Employer contends that the request is too broad and too general, since there is no specific claim that others received such leave in a similar situation. Further, it submits that each claim is based on its own merits and the Employer's decision may be evaluated on its facts, without consideration as to other claims. It further argues that there are substantial pnvacy Issues involved in the documents requested and that even with the blocking out of names, given the small size of the institution involved, privacy would not be ensured. In the Employer's submission, the prejudice caused by the disclosure of these types of documents would outweigh any probative value that they may have. In support, the Employer cites to OPSEU (Tone) and 5 Ministry of the Solicitor General and Correctional Services)(2000), GSB No. 1996-2693 (Dissanayake, Vice- Chair). Decision I conclude that the Union is entitled to production of the documents listed in Request Nos. 4, 5, 6, 7 and 9 for the period of August 2003 to December 2005. These documents are arguably relevant to the Union's claim of discriminatory assignments. That claim is more than a bald assertion. It has been supported by particulars allegedly within the knowledge of the grievor. Her particulars cite numerous examples of alleged discriminatory assignments over the period of time in question. In my view, the Union's request is not a "fishing expedition." As set forth in Ontario Liquor Board Employees' Union (Koonings Grievance), supra at p. 6 (Quick Law Edition), Vice-Chair Gray quotes a Canada Post case which defined a "fishing expedition" to be "an endeavour 'not to obtain evidence to support [a] case, but to discover whether [one] has a case at all." He then continued: "If one can have production only of documents arguably relevant to allegations of fact already put in issue in the case at hand, it follows that there cannot be production in aid of discovering a case not already asserted." Here, the grievor's numerous particulars put in issue whether there has been a pattern of discriminatory assignments. The documents are an effort to obtain evidence to support that claim. It is not a fishing expedition to determine if there is a claim to be made at all. Except for the documents in Request No 4, however, I am not ordering that copies be produced. Instead, given the volume of documents involved (almost 2 1Iz years of daily 6 documents), the Union is to be provided access to the documents with copies to be provided upon specific identification of requested dates by the Union. In regard to the Union's request for documents concerning Compassionate and Special Leave, that request is denied. In OPSEU (Tone), supra, the Union sought records of "any and all incidents of discipline of other employees pertaining to incidents in detention centre yard..." and argued that how the Employer meted out discipline to other employees in relation to incidents in the yard was relevant to the issue of appropriateness of penalty and whether the grievor was singled out for harsher treatment. The Board rejected the Union's request, stating at p. 6: With regard to item 9 also, the request is a broad and general one. The union is seeking disclosure relating to any and all discipline arising out of incidents in the yard which may have occurred at any time and under any circumstances. If the union is able to point to any particular incidents which are similar to the one in this case, it may be entitled to disclosure relating to those. That is not being done here.... The Union's request is denied, subject to its ability to make a further request relating to any specific incident(s) of discipline which it claims to be relevant due to similarity of circumstances. The same analysis is applicable here. The Union's request is a broad request for all "[d]ocumentation recording Compassionate/Special Leave days and Compensating Time off (CTO time) granted to CO Staff at CFYC Aug 2003 to January 2006." There is an allegation, but no specifics, that the Employer's decision was discriminatory. Accordingly, the Union's request is denied, subject to its ability to make a further request relating to any specific incident of Compassionate/Special Leave which it claims to be relevant due to similarity of circumstance. Because of this ruling, I need not address the Employer's other arguments on this issue. 7 Conclusion: 1. The Union's request for documents in # 4, #5, #6, #7, #9 is granted for the period August 2003 to December 2005. However, except for #4, given the volume of documents involved, the Union is to be provided access to these documents, with copies to be provided upon specific identification by the Union. 2. The Union's request for documents concerning Compassionate/Special leave is denied, subject to its ability to make a further request relating to a specific claim for Compassionate/Special Leave which it claims to be relevant due to similarity of circumstances. Issued at Toronto this 23rd day of January, 2007.