Loading...
HomeMy WebLinkAbout2017-3288.Baker et al.21-09-17 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-3288; 2017-3290; 2017-3354; 2017-3609 UNION# 2017-0164-0050; 2017-0164-0052; 2017-0164-0056; 2017-0164-0070 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Baker et al) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Erin Thorson Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING September 13, 2021 -2- DECISION [1] The Board is seized with three grievances filed by Mr. Timothy Baker, and one filed by Mr. Kevin Arthur. Mr. Baker’s grievance dated November 24, 2017 and Mr. Arthur’s grievance dated the same day are identically worded, claiming that “The employer is in violation of MOA (page 240) and any other applicable clauses for not asking for O.T. on Saturday November 18, 2017.” Mr. Baker has also filed grievances dated November 29, 2017, and December 14, 2017. The former makes the same allegation as his grievance dated November 24, 2017, except that it is with respect to Saturday November 25, 2017. The latter alleges that “the employer is in violation of article 7.9 and any other applicable clauses. Did not ask for O.T. on Saturday December 2 and 9, 2017.” It was clarified that the reference in the grievances to “MOA (p. 240)” is a reference to the MOA at p. 199 of the collective agreement. [2] This decision deals with a motion by the employer that the grievances ought to be dismissed on a preliminary basis on the grounds that the union had failed to provide any particulars or documents it relies on to support the violations alleged. [3] The collective agreement between these parties sets out provisions governing the “Grievance Procedure”. It includes article 28.2(ii) which reads: “If requested, the Union shall provide the Employer with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedures”. [4] The documentary evidence before me establishes that the Registrar of the Board, by Notice of Proceeding dated December 21, 2020, provided notice of the hearing scheduled for September 13, 2021 to the parties. [5] By letter dated August 9, 2021, employer counsel wrote to union counsel, requesting inter alia, that full particulars and arguably relevant documentation be -3- provided no later than August 25, 2021, in preparation for the hearing on September 13, 2021. [6] On August 27, 2021, employer counsel again wrote to union counsel, referring to her earlier request and inquiring when the particulars and production will be sent. The same day union counsel replied, stating that she was trying to put the documents together, but could not indicate when it could be provided to the employer. [7] On August 20, 2021, employer counsel wrote to union counsel asking whether a call could be scheduled the same afternoon or the following week to discuss, because she was not sure whether the hearing could proceed on September 13, 2021 without the union’s particulars and production. On September 7, 2021, employer emailed again, following up on her previous correspondence. [8] On September 10, 2021, employer counsel again wrote to union counsel expressing concern that the employer is unable to proceed on September 13, 2021, due to the union’s continuing failure to provide particulars and production. Additionally, notice was provided that the employer would be making a motion at the hearing, requesting that the Board dismiss the grievances on a preliminary basis. Union counsel was invited to contact employer counsel, if union counsel wished to discuss or had any questions. There was no response from the union. Employer Submissions [9] Employer counsel reviewed the provisions of the collective agreement relevant to the issue of assignment of over-time, and pointed out that they contemplate equalization of overtime. She submitted that the assertion in the grievances that the employer had violated the collective agreement is a conclusionary statement. The union has not asserted how or what the employer did to violate the collective agreement – whether the allegation is that the employer failed to assign overtime to anyone; whether it assigned overtime to an employee who had done more overtime hours than the grievors; or to an employee with less seniority than them. -4- [10] The employer cited Re Gates et al, 2005-3003 (Dissanayake), where the Board wrote: 5 It is trite to say that the obligation to exchange information by way of particularization continues following the referral of a grievance to arbitration. This is particularly so where the Board has issued an order that particulars be provided. What constitutes adequate particulars has been considered in numerous decisions of the Board. In Re Damani, 1581/95 (Gray) the Board described the obligation of a union as "to provide employer counsel with written particulars of the facts that it and the grievor say demonstrate the discrimination alleged. With respect to each act or omission alleged, the union particulars shall indicate what was done or not done, when, where, by what means and by whom". In Re Ross, 2690/96 (Herlich), the Board ordered that the "written particulars are to include not merely legal conclusions, but in addition, the facts which the union and the grievor assert support any such conclusion and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant fact, with what motivation". . . . 6 … The issue in the instant case is whether the allegations have been particularized sufficiently to put the Employer on notice of the facts giving rise to the grievance. The Union has made a sweeping allegation that overcrowding at the Hamilton Wentworth Detention Centre is a violation of the Management Rights and Health and Safety and Video Display Terminals provisions of the collective agreement. It now asks the Employer to provide information concerning the decision-making process that established the capacity of the facility and the steps it took to alleviate the overcrowding. It seems to me that before the Union can expect that information, it must provide the Employer with more particulars concerning its allegations. The Employer is entitled to know when the alleged overcrowding took place, where it took place, who was involved and how it relates to Articles 2 and 9 of the collective agreement. Once the Employer knows those elements of the Union's case, it can determine what information it should provide the Union. [11] Counsel submitted that in the absence of any particulars from the union, the employer is left to guess what the allegations may be. She cited para. 22 of the decision in Re Singh, 2001-1070 (Abramsky) where the Board wrote: 22 The Union's argument misperceives the obligation to provide particulars. It is not for the Employer to guess the specifics of the alleged differential treatment, or to try to figure it out. Nor is it required to wait until the grievor's evidence on examination-in-chief to learn the basis of the grievor's claim of differential treatment. -5- [12] Counsel also relied on para. 36 of the Singh decision, where arbitrator Abramsky wrote: 36 In my view, the particulars provided are inadequate. The date, in an alleged overtime matter, must be provided. Again, it is not up to the Employer to guess, or comb its records to determine when these individuals were working, for an unspecified period, and whether or not they received overtime when the grievor did not. I conclude that the Employer does not have sufficient information to investigate or defend this claim. The grievor has had ample time to provide the required particulars but has not. This grievance is therefore dismissed. [13] Counsel submitted that as a result of the union’s failure to provide any particulars or production, the hearing day has been wasted. The time and resources of the parties as well as of the Board could have been used to deal with the merits of these grievances or to hear some other grievance. She submitted that, while the Board has held that dismissal of grievances is an extra-ordinary remedy for failure to provide particulars and production, it is an appropriate result in this case. Counsel pointed out that these grievances are about a claim for several hours of overtime pay, not about serious allegations such as termination, discrimination or harassment. [14] Counsel cited the following portion of the decision in Re Durnin, 2005-3281 (Dissanayake) at pages 4-5 to support her position that the grievances ought to be dismissed: Union counsel did not dispute that the Board had the jurisdiction in its discretion to dismiss the grievance, if it deemed appropriate in the particular circumstances. Indeed very recently in Re Tafesse, 2005-1342 (Gray) the Board did exactly that in similar circumstances. In so doing Vice-Chair Gray adopted the following reasoning in Re Toronto (City) and Canadian Union of Public Employees, Local 79, (1998), 73 L.A.C. (4th) 412 (Craven) at 416: Where a party, by its own conduct, has compromised its ability to proceed with the hearing on the scheduled date, it will not be entitled to an adjournment as a matter of right. In such a case, the arbitrator nevertheless has the discretion to award an adjournment, with or without conditions, upon full consideration of all the circumstances. This discretion arises out of the arbitrator’s authority to control the proceedings. The inconvenience and prejudice to the moving party of continuing with the hearing must be weighed not only against the inconvenience and prejudice of the other party in adjourning the hearing, but also against the public policy of expedition in the resolution of industrial disputes at arbitration. -6- Obviously, lengthy delay tends to make it more difficult to serve the attendance of witnesses. Memories become less reliable, and material and documentary evidence may go astray. Remedies may become less effective. For these and other reasons non-trivial delays are almost inevitably prejudicial. Still more importantly, excessive delay tends to undermine the parties’ interest in resolving their disputes efficiently, economically and expeditiously. It also tends to reduce confidence in the fairness and efficacy of the grievance arbitration system. In my opinion these considerations weigh heavily against the exercise of the arbitrator’s discretion to grant a lengthy adjournment where the party seeking the adjournment is clearly responsible for the inability to proceed in a timely manner. It would require a truly compelling a reason to overcome the weight of these considerations and justify a delay of the length sought here. Union Submission [15] The union did not dispute the facts asserted or the arbitral principles relied upon by the employer. However, counsel pointed out that both grievors had attended the hearing. From that the Board should infer that they have a continuing interest and had not abandoned their grievances. She also suggested that a Board decision on the merits of these grievances may have impact on other similar grievance between the parties which are outstanding. Therefore, even though the claim in these grievances is only for several hours of overtime pay, the collective agreement interpretation issue is broader and important. [16] Union counsel submitted that in the circumstances, to balance the interests of all parties, the Board should issue an order that the union provide particulars and production, and reschedule the hearing to deal with the merits of the grievances. Decision [17] The Board has considered the arbitral jurisprudence and the submissions of the parties in light of the conduct of the parties in this case. There were multiple requests by the employer for particulars and production. Employer counsel expressed concern several times that the scheduled hearing day may have to be cancelled. She invited union counsel to meet and discuss this concern. The union did not even respond, except once very briefly informing that it is attempting to put together the particulars. Even then, the union informed that it was unable to say when it would be able to do it. In the face of this evidence very little weight can be -7- given to the fact that the grievors joined the hearing, which they would have known would not proceed on the merits. [18] I also note that the union at no time informed the employer what was preventing it from doing what it was required to do. Even at the hearing the Board was not offered any explanation at all for its failure. Nor did it assure the Board that it would provide particulars and production within a specific timeline. Rather, it simply requested that the Board issue an order and reschedule the hearing. Even if the union made such an undertaking, and a Board order had been issued, the reality is that a rescheduled date would cause a delay of many months. [19] It is regrettable any time grievances are summarily dismissed without their merits being heard and determined. However, the rules, whether they be about timeliness or particulars and production, are there for important reasons. Those reasons for the need for timely and sufficient particulars and production are discussed in the arbitral authorities reviewed earlier in this decision. Nevertheless, arbitrators have the discretion to provide relief in appropriate cases. However, I cannot find this to be such a case. This is not a case of delay in providing particulars and production. The union has not provided any particulars or production even as of the date of the hearing. Nor is it one of inadequacy of what was provided as in Re Singh (supra). The union also ignored the employer’s communications expressing concern. Moreover, let alone a “compelling” reason as contemplated in Re City of Toronto, (supra), the union did not offer any explanation of any kind even at the hearing. In these circumstances, the employer’s motion must be upheld, and it is so ordered. [20] The grievances are accordingly dismissed. Dated at Toronto, Ontario this 17th day of September, 2021. “Nimal Dissanayake” _________________________ Nimal Dissanayake, Arbitrator