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HomeMy WebLinkAbout2021-0088.Michael.22-03-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2021-0088; 2021-0234; 2021-0399 UNION#2021-0542-0004; 2021-0542-0006; 2021-0542-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Michael) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Anjana Kashyap Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sean White Treasury Board Secretariat Legal Services Branch Counsel HEARING March 3, 2022 - 2 - Decision [1] Initially, two grievances were referred to me for resolution. At the commencement of the hearing, the parties advised that they had agreed to incorporate a third grievance (2021-0039) into the proceedings. [2] In each case, the employer asserts that the grievances ought to be dismissed on a preliminary basis for either one of two possible reasons. Principally, the employer asserts that the grievances were not properly advanced through the grievance procedure and the union had no authority to refer them to the Board at the time(s) it purported to do so. In the alternative, the employer claims that, even assuming all the facts as particularized by the union are true, the latter has failed to establish a prima facie case for the remedies it requests. [3] The parties agreed to restrict their submissions before me to the employer’s main argument and to defer any further consideration of its alternative position, should that become necessary. [4] This hearing was conducted as a “medarb” proceeding in accordance with the provisions of Article 22.16 of the collective agreement. Thus, while it will certainly be binding on the parties with respect to the matters before me, this decision will carry no precedential value. The relatively concise reasons that follow reflect the parties’ commitment to an expedited procedure. [5] I commence with the collective agreement provisions regarding the filing of grievances. Once a grievance is filed, the collective agreement stipulates that: 22.3 The designated management representative shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward. [“Days” excludes Saturdays, Sundays and designated holidays.] Referral to arbitration occurs as follows: 22.6.1 If the grievor is not satisfied with the decision of the designated management representative or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision. - 3 - And, finally, Article 22.14.1 provides 22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. [6] Thus, the general scheme is quite straightforward: in the typical case, once a grievance is filed, the employer has 15 days to schedule and hold a Formal Resolution Stage (“FRS”) meeting and then a further seven days to issue its decision; if the grievor is unsatisfied with that decision (or if the employer fails to provide it within the stipulated time) the matter may then be referred to the Board for arbitration. [7] The facts in the instant case are not typical. [8] It is not necessary for me to review the facts of all three cases in detail. A review of the facts of the first grievance will suffice. The facts of the three grievances do vary. However, and for the purposes of the employer’s motion, in each case the local union’s handling of the grievances displayed similar shortcomings. [9] The first of the three grievances was filed on March 26, 2021. It was referred to arbitration by the union on April 14, 2021. No FRS meeting had been held. Even assuming that the employer’s failure to hold a meeting permits the union to advance a grievance to arbitration (a question to which I shall return), the 15-day time period (taking into account the excluded days) for the holding of the meeting would not have expired until April 20, 2021. [10] There appears to be a dispute (in my view, easily resolved) between the parties as to why the FRS meeting was not held or, more precisely, who bears the responsibility for it not being held. There is, however, no dispute as to the facts. [11] Following the filing of the grievance, the employer responded suggesting possible dates and times for the FRS meeting. Its response and the times suggested were within the time frames stipulated by the agreement. The following day (April 13, 2021) the union responded as follows: Based on past experience where nothing was ever resolved for our member (Maria Michael) at the First Resolution Meeting, the member would like this grievance to be forwarded to the GSB. [12] As already noted, the next day (April 14) the union, without waiting for any further response from the employer, purported to refer the matter to the GSB (the referral - 4 - was copied to the Treasury Board Secretariat Employer contact, but not to any member of management at the ministerial level (local or otherwise)). [13] Two days later (April 16) the parties had a number of communications in the following sequence: [14] First, the employer responded to the union’s last communication, indicating that a waiver of the FRS meeting would require the agreement of the parties, something it was not prepared to agree to. It repeated its request that the union respond to meeting times already proposed. [15] The union responded: Due to your delayed response and the timeline, I forwarded the grievance to the GSB. The griever [sic] agrees to attend the FRS if the employer can confirm that there would be a positive resolution of her grievance at this stage. [16] The employer, in turn, noted its view that the union had referred the grievance to the GSB prematurely without the employer’s agreement. It asserted that the union’s request for advance confirmation of a positive outcome as a condition of attendance at the FRS meeting was inappropriate. In the absence of a union response to its proposed meeting times, the employer indicated the meeting would proceed at a specified time and should the union fail to attend, the employer would raise a preliminary objection in view of the union’s failure to comply with the requirements of the collective agreement. [17] The union’s final response was: The griever [sic] is not agreeable to having an FRS due to past experience of no resolution that is why the griever request the employer to waive the FRS meeting. [18] No FRS meeting was held. When the hearing before me commenced, the employer advanced its preliminary objection. [19] The employer’s position is straightforward: absent the mutual agreement of the parties to waive it, the FRS is a mandatory feature of the grievance procedure to which the parties are bound. The union’s failure/refusal to participate in an FRS meeting does not confer upon it the right to refer a grievance to arbitration. And, even if the failure to hold an FRS meeting might, in other circumstances, permit - 5 - the union to advance the grievance to arbitration, in the instant case, the union purported to advance the matter to arbitration prior to the expiry of the prescribed time period for the scheduling and holding of the meeting. [20] The employer relies on the decision of this Board in OPSEU (Samsone) v Ontario (MCSCS), 2020 CanLii 52660 (ON GSB) (Petryshen). [21] In that case the grievor’s disdain for the grievance procedure was even more pronounced – grievances were not filed locally nor were FRS meetings held; the union purported to initiate the entire process simply by referring the grievances directly to the GSB. The Board observed as follows at paras 28 and 29: Of course, in the absence of filing the grievances with management, the stage two meeting mandated by the grievance procedure did not take place. It is the timely decision of management flowing from the stage two meeting which triggers the right of the Union to refer the grievances to the GSB. In this case, the grievances were prepared by Mr. Samsone on February 24, 2006, sent to the Union’s head office by facsimile on March 2, 2006 and then referred by the Union on that day to the GSB. There is no indication that the Employer agreed that the grievances could be processed in this way. Indeed, the Employer has consistently taken the position that Grievances #1 and #2 were not arbitrable because they were not processed in accordance with the grievance procedure contained in the Collective Agreement. I agree with Employer counsel’s characterization that there has been a complete failure in this instance to comply with the grievance procedure. The grievances were not filed with the Employer and the steps set out in the grievance procedure were completely ignored. The obvious purposes for which parties have a grievance procedure have been completely thwarted in this instance. Unless the parties were to agree otherwise, there is an obligation on a grievor or a party to ensure that the steps of the grievance procedure are followed. As article 22.14.6 provides, the GSB has no jurisdiction to alter or amend a provision of the Collective Agreement, including of course the grievance procedure provision. Although the focus of article 22.14.1, the deemed withdrawal provision, is on timeliness, the importance of following the grievance procedure is captured by the article. Arbitrators have consistently found that a failure to comply with the grievance procedure will deprive the arbitrator of jurisdiction to hear a grievance. What has occurred in the instant case goes beyond a mere technical breach of the grievance procedure. It is my conclusion that the complete failure to comply with the grievance procedure, particularly the failure to file the grievances with the Employer, deprives the GSB of jurisdiction to hear grievances #1 and - 6 - #2. As the Employer has consistently maintained, these two grievances are not arbitrable. [emphasis added] [22] For its part, the union urges caution selecting the proper target for any finger pointing. In its view, it is the employer that has failed to abide by its collective agreement obligations. The employer is responsible to schedule and hold the FRS meeting (unless the parties agree to waive it). Given the union’s request to waive the meeting, the employer, in this case, had two and only two options available to it: it could have agreed to waive the meeting or it could have held it – it did neither and ought not to be permitted to rely on its own dereliction as a means to prevent these grievances from being heard on their merits. [23] This last assertion must be rejected. It is common ground that no FRS meeting took place. Whether that was because the union did not attend at the appointed time or because, in view of the union’s final response, the employer did not attempt to convene the meeting (and those two appear to be the only possible alternatives – the facts before me were not clear on the point) is a distinction without a difference. There is simply no doubt that it was the union’s refusal that was the obstacle to holding the meeting and the reason none was held. [24] What then are the consequences of a failure to hold the FRS meeting? The collective agreement does not answer this question, at least not explicitly. I agree, however, with the view expressed in Samsone, that: “It is the timely decision of management flowing from the stage two meeting which triggers the right of the Union to refer the grievances to the GSB.” And I also note that under the current collective agreement the FRS meeting (formerly called the “stage two meeting”) is the only guaranteed opportunity for the parties to meet, discuss and possibly resolve grievances short of a referral to arbitration. As such this meeting ought not to be dispensed with lightly. [25] However, I also agree with the submissions of the union that an employer’s refusal to schedule and hold an FRS meeting ought not to be permitted to block access to this Board. But that, as I have found, is not what happened in the instant case. [26] In the present case, the grievor and the union refused to participate in the scheduling or holding of the FRS meeting (short of the union’s preposterous “offer” to attend provided the employer meet the precondition of guaranteeing a “positive result”). It was common ground that these parties have had numerous occasions to deal with grievances filed on behalf of the grievor. It may well be that they have had a low success rate in resolving those grievances at the FRS stage. That, - 7 - however, does not provide the union with the right to unilaterally dispense with those meetings. I was also puzzled by the union’s reference, in its email response, to the “[employer’s] delayed response and timeline” as some sort of justification for the premature referral of the grievance to arbitration. The employer’s response was well within the period prescribed by the collective agreement and the “timeline” referred to was never cogently articulated. [27] Whether by application of Article 22.14.1 (as the Board in Samsone suggested) or simply by virtue of the preconditions to a referral to arbitration not having been met, I am satisfied the union lacked the authority to refer the matter to this Board when it purported to do so. [28] Subject to one comment, I will not review the details of the second and third grievances before me. It is sufficient for our purposes to note that in those cases as well, the union referred the grievances to arbitration prior to the holding of any FRS meeting. The FRS meeting never occurred in the second case and, in the third, the meeting commenced but was not completed prior to the matter coming before me. [29] The circumstances of the third grievance potentially raise the question of whether a premature reference to arbitration may be cured. In that case, the parties commenced a process that may have led to that result. After the premature referral the parties agreed to hold an FRS meeting. The meeting convened but, at the request of the union, was adjourned on agreement of the parties, pending the results of a WDHP investigation. Shortly thereafter, however, the union appears to have balked at the agreement, suggesting it would continue to rely on its premature referral to arbitration. There was no suggestion before me that the FRS meeting ever reconvened or was otherwise concluded. [30] Having regard to all of the foregoing, I am satisfied that the union lacked the authority under the collective agreement to refer the three grievances before me to arbitration. I therefore have no jurisdiction to hear them as the grievances were improperly advanced to arbitration and are not properly before me. Dated at Toronto, Ontario this 17th day of March 2022. “Bram Herlich” ___________________ Bram Herlich, Arbitrator