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HomeMy WebLinkAbout2008-3061.DiSchiavi.09-04-21 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-3061, 2008-3062, 2008-3063, 2008-3064 UNION#G-23-08-FM, G-24-08 FM, G-26-08-FM, G-25-08-FM IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union ? Local 1587 (DiSchiavi et al) Union - and - The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit) Employer BEFOREVice-Chair Loretta Mikus FOR THE UNION Simon Blackstone Green & Chercover Barristers and Solicitors FOR THE EMPLOYER Sven Poysa Osler, Hoskin & Harcourt LLP Counsel HEARING April 3, 2009. 2 Decision [1]On April 3, 2009 I attended a hearing concerning four grievances, namely those of Roger DiSchiavi, Richard Milton, Floyd Wedderburn and Liliana Sanmarti. All of the grievances allege that the grievors have been harassed and bullied by their Supervisor, Kevin Gorman. All of them state that ?his actions and conduct towards me minimize, if not eliminate, a healthy work environment. They all ask that the Supervisor be relocated to another department. [2]At the hearing the Union brought forward a motion to consolidate all four grievances; the employer objected. This interim decision deals with that motion. [3]The Grievance Settlement Board has established rules governing the consolidation of grievances. Those rules state as follows: GRIEVANCE SETTLEMENT BOARD RULES OF PROCEDURE 3.Consolidation of Cases Where two or more proceedings are pending before the GSB and it appears to the GSB that, (a)they have a question of law or fact in common; (b)the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or (c)for any other reason an order ought to be made under this rule, The GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: (d)the proceedings be consolidated, or at the same time or one immediately after the other, and/or (e)Any of the proceedings is stayed until after the determination of any other of them. [4]Mr. Blackstone, counsel for the Union, took the position that the grievances all allege harassment and bullying by Mr. Gorman and the evidence of each of them will be offered at each hearing to support each individual claim. If the Board does not consolidate these grievances it will expose the parties to multiple hearing days on essentially the same evidence from the same witnesses, which would be a waste of the Board?s resources. 3 [5]He relied on previous GSB jurisprudence to prove the merits of his motion. In OLBEU (Attendance Review grievance) and LCBO (2004), GSB # 2001-0557 et al (Dissanayake) the Board was faced with a policy grievance, two individual grievances filed by one employee and another filed by a different employee. The union argued that they should be heard together since they all raised common issues of discrimination under the collective agreement and the Ontario Human Rights Code as well as unjust discipline. The Employer argued that the individual grievors raised personal issues related to the state of their health and might require medical evidence. These personal issues might protract the hearing for the other grievors and result in a delay in a determination of the merits. The Board decided to hear the grievances together because the parties were the same, the policy at issue was common to all, no other arbitrator had been appointed to hear the grievances and because hearing them together would avoid duplication of expense and inconsistent conclusions. [6]In the case of OPSEU (Dale Grievance) and Ministry of Health and Long Term care (2001), GSB # 0783/00 (Abramsky), the Board had been asked to hear two grievances, one filed by Gary Dale, the other by Gary Lawrence, both containing the same attachment entitled Group Grievance. At issue were six additional grievances filed by Mr. Dale which alleged that he had been harassed and discriminated against and unfairly disciplined. The Union took the position that these six grievances were part and parcel of the original grievance since they showed an animus towards Mr. Dale that began after the strike in 1996 and continued to the time of the grievances. The Employer took the position that the six grievances could not be consolidated with the earlier ones since the first ones were filed as a group grievance and the additional six were clearly individual grievances relating only to Mr. Dale. The Board determined that the grievances all raised the question of whether the Employer?s actions toward Mr. Dale were the result of union activity. Although they alleged discreet matters, the issue of the Employer?s motives was the same in each case. It found consolidation appropriate. [7]The Union asserted that the same principles apply to the instant grievance. The issue raised in all the grievances is the alleged harassing and bullying conduct of Mr. Gorman. The evidence will involve the same parties and the remedy claimed is identical in all 4 cases. There would be no disadvantage or prejudice to the Employer to have them consolidated. [8]Mr. Sven Poysa, counsel for the Employer, took the position that the collective agreement between these parties does not contain any provision for a group grievance, which is what the Union is seeking in this motion. He referred to the case of OPSEU (Carter Grievance) and Ministry of Health and Long Term Care (2006) GSB # 2004-0607 (B. Stephens) in which the Vice-Chair stated that the Board?s broad powers in respect of consolidating grievances should be exercised in a manner consistent with the collective agreement. It was said that the Union had attempted to negotiate a group grievance into the collective agreement in the instant case and failed. This Board should not give it what it could not achieve at bargaining. [9]Additionally, the Employer asserted, it would be prejudiced if the distinct and specific allegations of all the grievors were heard at the same time as those of Mr. DiSchiavi. The specific acts alleged to have occurred with respect to him are not similar to those alleged to have taken place with the other grievors. Mr. DiSchiavi has prepared a 52 page document outlining his allegations. The other grievors have offered much shorter lists entailing one to four pages of allegations. To require them to participate in the lengthy proceedings that Mr. DiSchiavi?s hearing could involve, including the 22 witnesses named in his document, would delay any determination on the merits of the other grievances unnecessarily. Many of the allegations of Mr. DiSchiavi do not involve the other three grievors and are discrete and distinct acts that only relate only to Mr. DiSchiavi. [10]The Employer reminded the Board of the comments in the Stephens case (supra) which held that the Board should utilize a procedure that avoids inefficient consequences, such as multiple hearings and inconsistent results. 5 REASONS FOR DECISION [11]The Board has broad discretion to issue orders in respect of the proceedings before it and specific powers with respect to consolidating and/or hearing grievances together. Where there are common issues of fact or law or where the remedy sought arises from the same transaction or occurrence, the Board is to consider whether, absent such an order, there will be a duplication of witnesses and evidence that would prolong or delay the determination of the issues and whether it would be a waste of the Board?s resources to proceed individually with a series of cases on the same issue. There is always a concern, as well, of inconsistent findings on the same facts and evidence, which is to be avoided. [12]In this case, the grievances allege that Mr. Gorman is harassing and bullying some members of his department. Although the actual acts alleged to have been committed or the conduct complained of are not identical for each grievor, they are of the same nature, involve the same work location and the same participants. The Employer has argued that it will be prejudiced by the consolidation of these grievances. I fail to see the prejudice when the Union has clearly stated its intention to proceed on all of the grievances, collectively or individually. DECISION [13]For the reasons mentioned above, it is the order of the Board that the four grievances referred to in the award are to be consolidated. st Dated at Toronto this 21 day of April 2009. Loretta Mikus, Vice-Chair