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HomeMy WebLinkAbout2837-07-U - Amodeo 08-04-28 RPR 28 2008 1~:10 FR OLRB SOLICITORS 416 326 6392 TO 94164438618 P.03/I3H ONTARIO LABOUR RELATIONS BOARD 2837~07-U Don Amodeo, Applic<ult v. Ontario Public Service Employees Union, Responding Party. 2838-07.0H Don Amodeo, Applicant v, The Crown in Right of Ontario 3S represented by the Minister of Labour, Responding Party. BEFORE: Mark J. Lewis, Vice~Chail' DECISION OF THE BOARD: April 28, 2008 L Board File No. 2837..07-U is an application filed pursuant to section 74 of the Labour Relations Act, 1995, SD. 1995, c. 1, as amended (the "OLRA'') alleging a violation of the duty of fair representation which is imposed upon trade unions. Board File No. 2838.07-0H is an application filed pursuant to section 50 of the Occupational Health and Safety Act. KS,O. 1990, c. 0.1, as amended (the "OHSA") alleging an unlawful reprisal by an employer against an employee The applicant in both applications is Mt Don Amodeo. The responding trade union in Board File No.. 2837-07-U is Ontario Public Service Employees Union ('~OPSEU"), The responding employer in Board File No" 2838-07-0H is The Crown in Right of Ontario as represented by the Minister of Labour (the "Employer"). ... 2. 1n addition to substantial disputes between these parties concerning the merits of the applications, a number of preliminary and/or procedural issues were also raised by all of the parties. These preliminary and/or procedural issues include (but are not necessarily limited to): (a) Mr. Amodeo's claim that the Employer should not be able to rely upon a late filed response in OLRB File No. 2838-07-0H and the Board should simply proceed to deal with that matter based solely on his application; (b) various positions of OPSEU and the Employer concerning the relationship between these two applications and a grievance filed by OPSEU with this Employer in respect of Mr. Amodeo on or about November 5, 2007, including, but not limited to positions that these two applications should either be dismissed or should not proceed further, if at all, until such time as the grievance has been fInally dealt with; and, (0) OPSEU7s position that the Board should exercise its discretion to dismiss the section 74 application without a hearing or consultation, pursuant to the provisions of section 96 of the Act andlor Rule 39,1 of the Board's Rules ofProcedw.e. 3, In view of the preliminary positions being put forward, the Board determined, in a decision dated February 6, 2008, that it was appropriate to provide the parties with a further RPR 28 2008 14=11 FR OLRB SOLICITORS 416 326 6392 TO 94164438618 P.04/08 ~ 2 - opportunity to ftle submissions concerning these issues prior to making its detenninations concerning the various requests which the patties had made, AU of the parties availed themselves of the opportunity provided by the Board to make further submissions and the Board has reviewed all of their further submissions (along with the pleadings which had been filed previously) in making this decision Section 74 Application 4, As noted above, there are significant disagreements between the parties with respect to the facts that arc relevant to this application. As must be the case with respect to the Union~s preliminary request for the dismissal of this matter, where such disputes exist the Board has assumed all of the material facts relied upon by the applicant to be true. 5. The applicant was employed by the Employer as an Occupational Health and Safety Inspector for a number of years prior to being discharged on October 26,2007. In this position he fell within the bargaining unit represented by OPSEU. 6. The events which form the basis of the applicant's complaint against his union essentially start on May 11, 2006, It was at that time that these parties entered into Minutes of Settlement concerning a grievance which OPSEU filed on the applicant's behalf, on or about February 13. 2006. alleging that he had been unjustly disciplined by the Employer. The events relevant to this complaint then continue for the rest of 2006 aod into 2007 dwing which there were numerous disputes, and/or alleged disputes, between the applicant and the Employer. 7. Specifically, on February 8, 1007, the applicant was suspended with full pay by the Employer pending investigation of certain concerns which it had about his work performance. Thereafter, on March 2, 2007, the applicant instigated a Workplace Discrimination and Harassment complaint, a process which is conducted by the Employer and which is separate from either the collective agreement itself and the grievance and arbitration process there under.. 8. Ultimately, the applicant was discharged by the Employer on October 26, 2007. On or about November 5, 2007, he signed a grievance, concerning both the suspension and the discharge, which had been provided to him by a representative of OPSEU. Thereafter, the OPSEU representative added wording to the grievance prior to filing it with the Employer, 9. As is often the case in such applications, much of the applicant's pleadings relate to the actions of his Employer rather than to the actions of OPSEU. However, in his further submissions addressing OPSEU's preliminary request that he has failed to set out a prima facie case establishing a violation of the section 74 dllty~ the applicant sets out four specific areas in which he claims OPSEU's actions (or lack there of) violated its statutory duty of fair representation. He states: T The position of OPSEU WIDI dear ~ a signatory to the memorandum of settlement dated May 6, 2006. The Union had every obligation to ensure the memorandum was enforced and that the parties met the obligations outlined in the memorandum When Mr.. Ward suspended the Applicant on February 9, 2007, citing in part, reason of the Applicant's failure to follow policies and procedures, the Union had an obligation to mke immediate action. The Union refused and failed to do so RPR 28 2008 14:11 FR OLRB SOLICITORS 416 325 6392 TO 94164438518 Pe051'08 - 3 - The Union also displayed indifference toward the Applicant when :Mr., Krulicki responded to Mr. Ward's threat of further disciplinary action~ The Union contributed to delay and additional conflict by failure to outsource representation to facilitate a meeting, A third occasion of unfair reprel>entation occurred when Ms Strensrud demonstrated bias. While discussing the Employers default with respect to the memorandum of settlement, Ms- Strensrud expressed her opinion the Applicant was "the last remaining bad character in an unfortunate circumstance", contrary to the position of OPSEU when signing the memorandum of settlement. A fourth occasion of unfair representation occurred when Ms. Strensrud instructed union steward Minlestaedt to alter the grievance of !he Applicant Strensrud instructed alteration to the grievance without the consent of the Applicant allowing the Employer to withhold full disclosure until settlement of the grievance. This alteration severely imp<:'lded and prejudiced the ability of the Applicant to deal with the allegations of the Employer which were Ihe subject of the grievance 10. As is clear from the above, Mr. Amodeo claims that his suspension in February 2007 constituted a violation of the previous Minutes of Settlement and that, as such, the Union should have taken immediate action against the Employer, The merits of this position, and whether or not any action that OPSEU took was sufficient and timely in the circumstances, is however not something for which there is any purpose for the Board to inquire into at this ti me. Mr. Amodeo's suspension was with pay, and as is clear on its face, the grievance which was filed following Mr" Amodeo's discharge makes specific reference to his positions concerning the alleged violation of the previous Minutes of Settlement. This grievance, filed on November 5, 2007 and which has already been referred to arbitration, states: Contrary to Article 22 of the collective agreement I grieve that I have been wrongfully dismissed without just cause and that Employer had defaulted on a Memorandum of Settlement dated May 11, 2006, requiring training of me grievor in enforcement practices, policiei:l and procedures, Contrary to Anicle 2.1, 21.1, 22014,5 and any other applicable sections of Artioles of the collective: agreement Reinstatement. full redress of wages, benefits, pension, all other entitlements retroactive with compound interest, removal of aU and any record of disciplinary action and compensation for default of tbe Memorandum of Settlement dated May 11, 2006. Full disclosures Re: Article 22.14.5 including report of Paul Pearce, Key Planning Group. 11 . In these circumstances, where an appropriate grievance has already been filed and referred to arbitration. there is simply no additional remedy which has either been requested or is appropriate for the Board to even consider granting at this time. 12. The same position concerning appropriate remedies applies equally to Mr. Amodeo's claims alleging indifference and/or inaction on the part of OPSEU in response to Mr. Ward's threats and alleging bias on the part of Ms. Strensrod. All of the action that was taken against Mr. Amodeo was taken by the Employer and not by OPSEU. Regardless of Mr. Amodeo's claims that OPSEU could have done more and/or should have acted sooner in response to the Employer's actions, there is no question that a. comprehensive grievance has now been filed and referred to arbitration, There is then no further remedy which the Board would consider granting. RPR 28 2008 14:11 FR OLRB SOLICITORS 416 326 6392 TO 94164438518 P.05/08 - 4 ~ 13. Finally, there is the issue of the addition to the grievance after Mr. Amodeo had signed it. Mr. Amodeo agrees that what was added by OPSEU (as one of the remedies being sought) was the phrase - Full disclosure Re: Article 22.14.5 including report of Paul Pearce, Key Planning Group, The applicant takes the position that this addition, specifically requesting disclosure as a remedy, somehow limited or restricted the disclosure that the Employer would otherwise be required to provide during the course of the grievance procedure. However, there are no particulars or material facts which alleged that either OPSEU or the Employer actually took that position during thc course of the grievance procedure in response to thc language of this grievance. 14, states: According to Mr'- Amodeo, Article 22.14.5 of the applicable collective agreement "The parties agree iliat at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure." 15. Given this clear collective agreement language, simply adding to the grievance a specific request for the required disclosure, referencing the specific article of the collective agreement which provides for such disclosure, cannot be said to in any way limit the:: disclosure which the Employer would otherwise be required to provide and Mr, Amodeo has failed to set out any, even arguable, basis on which the opposite conclusion could be drawn 16. Further, even if the language of the grievance had somehow limited the disclosure that was required during the grievance procedure (something that 1 do not fmd to be the case) there is still no need for a remedy from this Board at this time. As noted above, the grievance procedure has been completed and this matter has now proceeded to arbitration before the Grievance Settlement Board. The arbitrator hearing this grievance at the GSB has all of the necessary jurisdiction to order production of any additional documents and materials which may be arguably be relevant to this grievance, Therefore, there is no appropriate remedy for this Board to grant at this time. 17. Accordingly, for the reasons noted above, the Board flllds that it would not grant any of the remedies requested by the applicant in this application even if all of the facts relied upon him are true. Therefore, the Board hereby exercises its discretion under Rule 39,1 and dismisses this application concerning section 74 ofthe Act without a hearing or consultation. Board File No. 2838-07-0H 18. In addition to the grievance filed by OPSEU on his behalf, on December 3, 2007, Mr. Amodeo filed with the Board an application under OHSA against the Employer in which he alleged that his suspension and termination constituted a violation of section 50 of OHSA Pursuant to the Board's Rules of Procedure, the Employer should have filed a response to this application on or before December 14, 2007. 1t did not. A response was ultimately filed by the Employer on January 16, 2007, which is approximately 20 (Board) days beyond the deadline. 19. Based on the failure of the Employer to file a timely response and the burden of proof which employers have in such applications pursuant to section 50(5) of OHSA, on January 15, 2007, ML Amodeo requested that the Board :find that he had been tenninated in violation of section 50 and issue an order providing for, amongst other things, his immediate re~instatement RPR 28 2008 14:12 FR OLRB SOLICITORS 416 326 6392 TO 94164438618 P"07/08 - 5 - The Applicant's Motion 20. The time limit for the filing of a response in this matter, which the Employer failed to meet, is one which is established by the Board's Rules of Procedure, Accordingly, pursuant to Rule 3..2 and generally, the Board has the discretion to allow for a late filed response in such applications" In the circumstances of this application, and for the reasons set out below, the Board finds it appropriate to exercise its discretion and to allow fOJ this Employer's late filed response. Therefore, the Board declines to grant Mr. Amodeo's requests as set out in his preliminary motion of January 15,2008 21. In response to the Board's decision of Feblwuy 6, 2008, the Employer provided an explanation for its late filing. In particular, it alleged that it had filed its response late, in part at least, because Mr. Amodeo had deliberately chosen to deliver this application to the Employer in a manner that he knew would result in it not coming to the attention to anyone who could respond to it in a timely fashion. ML Amodeo vehemently disputes this claim. In such circumstances, and whatever the ultimate merits ofthe Employer's e>..-planation may be it is clear that, in order to assess whether to allow for the late filing, it would be necessary to conduct a hearing in any event. 22. Conversely, it is clear is that there is no prejudice to Mr. Amodeo as a result of this late filed response. Firstly, twenty (Board) days is not, in these circumstances, a particular long delay. Further, the issues in dispute, and the respective positions of the parties concerning those issues, were ablmdantly clear even before Mr, Amodeo fIled his application. As set out herein those issues form the subject of a grievance filed by OPSEU with the Employer on November 5, 2007 and which the parties had been dealing with and continue to deal with. Therefore, there is simply nothing in the Employer's response which could have come as a surprise to Mr. Amodeo. 23. In his further submissions concerning this preliminary motion. Mr. Amodeo did address the issue of prejudice if the Board allowed for the late filed response. Specifically, he claims that in mid-October 2007 he was diagnosed as suffering from reactive depression as a result of his suspension by the Employer. He further argues that his discharge of October 26, 2007, means that he is currently unable to receive insurance and medical benefits which would assist in his recuperation from this condition, However, even if these facts are true they clearly relate to and/or result from the conduct of the Employer prior to the filing of this application (on December 3, 2007), In this respect they do not constitute any form of specific prejudice which results from the late filing of the response, Employer's Motion Concerning Section 50(2) 24" In its response, whioh the Board has now concluded it will exercise its discretion to consider. the Employer requests, amongst other things, that the Board exercise its discretion not to inquire into this complaint given the November 5, 2007, grievance and the provisions of section 50(2) of the OHSA 25. Section 50(3) of the OHSA states: 50. (3) The Board may inquire into any complaint filed under subsection (2) and section 96 of the Labour Relations Act, 1995, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act (emphasis added) RPR 28 2008 14:12 FR OLRB SOLICITORS 416 326 6392 TO 94164438618 P.08/08 ~ 6 ~ 26. Clearly then the Board does have the discretion not to inquire into Mr. Amodeo's application. In the circumstances, and for the reasons set out below, the Board finds it appropriate to exercise that discretion and to decline to inquire into Mr. Amodeo's application, 27. Me Amodeo's application alleging a reprisal against him by his Employer contrary to section 50 of OHSA concerns the events and disputes involving him and his Employer commencing with his suspension of February 2007 and culminating in his discharge of October 26, 2007, As the text of the grievance which is set out above makes clear, this is exactly the same set of events and disputes which are covered by the grievance which was signed by Mr. Amodeo and filed by OPSEU with this Employer, on November 5,2007. That grievance has been referred to arbitration before the Grievance Settlement Board, 28, Contrary to the position of the applicant there is no significant distinction or separation between his claim under the grievance and his claim in his section 50 application, The mere fact that in responding to the grievance the Employer has asserted that its actions concerning Mr. Amodeo did not involve a reprisal under the OHSA does not, as the applicant seems to assert, establish a claim under OHSA which is separate and distinct from the claim set out in the grievance which relates to the same set of events Therefore proceeding to deal with this application, given the ongoing grievance arbitration, would result in both the Grieva.nce Settlement Board and this Board essentially hearing the same matter. 29. Section 50(2) ofOHSA states 50. (2) Where a worker complains that an employer or person aering on behalf of an employer has contravened subsection (1), lhe worker may either have the matter dealt with by fmal and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint 30, Given this specific statutory provision allowing for grievance arbitration concerning section 50 claims, the identical subject matter of both the grievance and this application, the fact that the grievance was filed prior to this application and has already been referred to arbitration, and the fact that in responding to this application the Employer has made it clear that the alleged reprisals contrary to section 50 of the OHSA form part of the grievance and arbitration proceedings already underway between these parties, it is neither appropriate nor necessary for this Board to consider this application further. 31" Therefore, and for the reasons set out above, the Board hereby exercises its discretion not to inquire into this application and it is hereby dismissed. "Mark J. Lewis" for the Board ** TOTAL PAGE.08 **