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HomeMy WebLinkAboutUnion/Walker 18-04-24BETWEN: Grievance File Nos.: 2016-0226-0003 2017-0226-0003 IN THE MATTER OF AN ARBITRATION Under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A NORTH WELLINGTON HEALTH CARE CORPORATION (the "Employer"), - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 226 (the "Union"), AND IN THE MATTER OF A POLICY AND INDIVIDUAL GRIEVANCE OF DARLENE WALKER REGARDING ALLEGED IMPROPER SCHEDULING PRACTICE FOR REGULAR PART-TIME EMPLOYEES. SOLE ARBITRATOR: Gordon F. Luborsky APPEARANCES For the Union: Alison Neilson -Jones, Grievance Officer Darlene Walker, Local President/Grievor For the Employer: Michael Allen, Counsel David Logan, North Wellington Health Care Wilma Kassian, North Wellington Health Care HEARD: September 21, 2017 and April 18, 2018 Guelph, Ontario RULING [ 1 ] This Ruling addresses a dispute related to the extent of the agreed-upon productions from the Employer said to be reasonably required by the Union. [2] The parties acknowledge that I have jurisdiction to determine the following two gnevances: Page 2 of 7 [3] The first is a policy grievance dated October 26, 2016 alleging: "The Employer has breached articles 3, 4, 5, 16 and 19 specifically but not exclusively and any other articles and/or legislation that may apply". It seeks as redress that, "Employees be scheduled vacation without penalty; All issues be brought to full and acceptable redness; [and] All members be made whole". [4] The second is an individual grievance on behalf of the Local Union president, Ms. Darlene Walker dated March 22, 2017, which states: "I grieve that the Employer has breached articles 3, 4, 5, 9, 16 and 19 specifically but not exclusively and any other articles and/or legislation that may apply by the assignment of shifts and hours on the schedule posted for March 20 — April 16, 2017. The grievance demands as settlement that, "All issues be brought to full and acceptable redress." [5] It appears from the parties' oral representations that the essence of the dispute is related to the Employer's practice in scheduling vacations for regular part time (or "RPT") employees. The Union contends the Employer has gradually changed its previous consistent practice to the prejudice of the RPTs generally, while the Employer maintains that it has and continues to adhere to the relevant provisions of the collective agreement. [6] Although focusing on the Employer's alleged change in practice, the Union does not claim that the contractual language in issue is ambiguous to authorize the admission of extrinsic evidence going to practice for the purpose of resoling an ambiguity. Rather, the Union claims that extrinsic evidence of past practice is relevant to an estoppel argument on behalf of the Union that may be applicable in the event that the Employer's current practice is found to comply with the applicable contractual provisions. In that event, the Union has advised it will argue the Employer is estopped from strict compliance with the contractual language until the parties have had an opportunity to negotiate terms of a new collective agreement. On that matter the parties advised the current collective agreement dated April 1, 2012 to March 31, 2017 is being renegotiated for eventual submission to interest arbitration if the parties cannot conclude a new collective agreement themselves. Page 3 of 7 [7] In the foregoing circumstances the parties have agreed on the nature of the productions that the Employer is to make to the Union prior to the next hearing date in order to ensure a fair adjudication of the Union's dispute; however, they differ on the extent of the productions. Presently, with the exception of the time period for the disclosure obligation that is highlighted below, the Employer has agreed to produce the following: (1) Production of the Master/Template Schedules and Posted Schedules, and any supporting documents (including call-in sheets as may exist which were used to prepare the posted schedules), to show how the Master/Template are altered when an RPT is granted vacation in each of the 4 "departments" (Nursing, SRC, Housekeeping and Dietary). The time period will be for the year prior to the Policy Grievance to the date of the Walker grievance, except for SRC where the time period will be the year prior to the departure of Angela Clausson from her role in scheduling. Note: for Nursing the Union seeks proof that the Master/Template schedules were without names from the year prior to the policy grievance to the date of the Walker grievance. (2) Production of documents to show how each RPT's vacation is tracked. For each employee, this should disclose how much leave is taken, and what remains to be taken. This applies to all 4 departments. The time period is the same as in iteml, above. For clarity, if an RPT is granted 2 days of vacation, how is that recorded so that the entitlement is reduced by the amount of leave granted? (3) Policies and procedures of the Employer that were in effect in the year prior to the policy grievance (except SRC in which case it is the year prior to the departure of Ms. Clausson noted above) to the date of the Walker grievance which concern scheduling of vacation for RPTs in the 4 departments. (4) Other relevant documents. [Emphasis added] [8] While the Union demands that the Employer produce the agreed-upon documentation for the time period that is "for the year prior to the Policy Grievance to the date of the Walker grievance" that essentially covers the 17 month timeframe of October 27, 2015 to March 22, 2017, and for the one year period prior to the departure of Ms. Clausson in SRC (referring to the Switchboard Registration Clerk role, the precise date not having been disclosed to me), the Employer claims that the only relevant timeframe for such production is tied to a vacation year which under article 19.01 of the collective agreement covers a period from May 15 to May 14. The Employer accordingly agrees to produce the documentation itemized above in its possession from May 15, 2016 to May 14, 2017, which encompasses the same vacation year as both the Page 4 of 7 Union's policy grievance dated October 22, 2016 and the individual grievance on behalf of Ms. Walker dated March 22, 2017. [9] This is unacceptable to the Union, which demands production of the agreed-upon documentation for the period commencing some six months earlier than what the Employer is prepared to produce, going back to October of 2015. The Union stated the production of documentation for the two month period after the date of Ms. Walker's grievance was not required. The parties are essentially in dispute over approximately six additional months of disclosure of the foregoing itemized documentation from October 2015 to May 2016; and hence that is the narrow issue for determination in this Ruling. [ 10] In argument on this point, Ms. Neilson -Jones submitted on behalf of the Union that the extent of the production going back to October of 2015 (as opposed to May 2016 which the Employer had agreed to provide) was necessary to support the Union's estoppel argument relying on the Employer's alleged past practice, which was also compliant with the principles for production described by Arbitrator Paula Knopf in West Park Hospital v. Ontario Nurses ' Assn. (Discharge Grievance), [1993] O.L.A.A. No. 12, 37 L.A.C. (4th) 160 (Ont. Arb.), who set out the governing principles for production requests as follows at para. 20: First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a "fishing expedition". Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board must be satisfied that disclosure will not cause undue prejudice.... [ 11 ] In response, Mr. Allen submitted for the Employer that the only relevant production related to the scheduling of regular part time employees occurred during the vacation year that encompassed both the Union's policy and individual grievance of Ms. Walker, being the May 15, 2016 to May 14, 2017 timeframe. It was not disputed that the Union had never explicitly placed the Employer on notice, prior to these arbitration proceedings, that it was pursing an estoppel argument to justify a broader form of disclosure; but even if the Union had, the Employer asserted it would need to review comprehensive particulars of the Union's estoppel claim, which Page 5 of 7 it might be in a position to challenge as insufficient, thereby undercutting the Union's claim for its extended production demand. On the evidence before me, and having regard to the positions of the Union and the Employer during the grievance procedure (which it was asserted did not include an estoppel claim), the Employer submitted that the Union's request for the production of scheduling documents prior to the vacation year in effect at the time of its policy and individual grievances was irrelevant to an interpretation of the contractual language in dispute between the parties. [ 12] While the Union agreed in reply submissions that it never expressly used the term "estoppel" in describing one of the its legal grounds for challenging the Employer's actions giving rise to the present grievances, it had always indicated that it was relying in a "change of practice" to support its claim that the Employer was acting contrary to the collective agreement. [13] After informally discussing the merits of each party's position with them, but being unable to broker a resolution of the matter, I have determined that absent the Union's estoppel claim the Employer's position in this matter is correct in that my immediate concern is whether the Employer complied with the relevant provisions of the collective agreement at the time of the policy and individual grievances. I noted that article 9.03 of the collective agreement, which is under the section governing the parties' "Grievance and Arbitration Procedure" provides that an individual employee wishing to grieve an alleged violation of the collective agreement "shall" complain to his/her supervisor "within fourteen (14) calendar days after the circumstances giving rise to it have occurred or ought reasonably to have come to the attention of the employee". Similarly, in the case of a Union policy grievance concerning the interpretation, application or alleged violation of the collective agreement, the Union is entitled to initiate the complaint at Step No. 2 of the grievance procedure "within fourteen (14) calendar days following the circumstances giving rise to the complaint or grievance." The Employer's proposed scope of disclosure of agreed relevant scheduling records going back to May 15, 2016 readily satisfies any of those 14 day time limits in the grievance procedure. Thus if the Union does not have a valid estoppel argument, the extent of the production offered by the Employer, described above, is Page 6 of 7 more than sufficient to satisfy its obligations to make reasonable disclosure and production of all arguably relevant documents. [ 14] That said, and accepting while not explicitly using the word, "estoppel" the Union told the Employer at least during the grievance procedure that it was asserting a violation of "past practice" supporting its claim for relief in both grievances, I consider it inappropriate to take too technical a view in the matter (recognizing an elemental informality to the grievance procedure) that would have the effect of denying the Union an opportunity to make any appropriate argument in support of its position that the Employer violated the collective agreement or is not entitled to its strict application on the grounds of what, to date, have been vague and unspecified "past practice" grounds. [15] Accordingly, in order to ensure fairness to both parties in the circumstances, and recognizing that the parties have already agreed to the continuation date of June 14, 2018, where they hope to present "agreed facts" in order to expedite the evidence required in this case, I have determined that the following procedure is to be followed related to (a) the particularization of the Union's estoppel claims; and (b) the timely production of all relevant documents from the Employer: (a) The Employer will produce to the Union (through their representatives) the agreed documentation (described above) from May 15, 2016 to May 14, 2017. Such production will be made on or before Friday, May 18, 2018; (b) By the same May 18, 2018, the Union is to forward particulars to the Employer supporting an alleged estoppel argument, with any written submissions it considers appropriate in aid of its claim that the particulars establish an estoppel that justifies the additional disclosure that the Union has demanded; (c) The Employer will have until Friday, June 1, 2018 to advise the Union (and me) whether it challenges the Union's claims and for receipt of any appropriate submissions by the Employer on the matter; (d) Based on the Union's particulars and the parties' submissions on the matter, if any, I will render a "bottom line" decision (likely on or before Monday, June 4, 2018) on Page 7 of 7 whether and to what extent the production of the additional documentation requested by the Union is granted or denied; (e) In the event that I grant the Union's request for the additional disclosure requested herein, the Employer is expected to make such disclosure within five business days (i.e. likely on or before Monday, June 11, 2018). As a matter of prudence the Employer is requested to compile the additional information in advance of my Ruling on the matter, for timely transferal of documentation to the Union in the event of the Union's success on its motion for extended disclosure; M The parties are in any event directed to confer on the finalization of an agreement on facts related to the policy and individual grievances, to the extent possible, prior to the continuation date scheduled for Thursday, June 14, 2018. [ 16] I shall remain seized of any dispute respecting the interpretation and/or implementation of the terms of this procedural order, including the authority to amend the details and/or time limits of any of the requirements thereunder at the request of the parties or as circumstances may dictate. DATED AT MARKHAM, ONTARIO THIS 24TH DAY OF APRIL, 2018. Gordon F. Luborsky, Sole Arbitrator