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HomeMy WebLinkAbout1976-0073.Lariviere.77-06-23Ontario 73/76 ._~ .._ --.- CROWN EMPLOYEES GRIEVANCESETTLEMENT 60ARO 416 984,6426 Suite 405 77 3tcor Street Ve TO3ONT0, Ontario :MSS IM2 Iii THE MAATTER OF All ARGITRAT!C:I Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT HOARD Between: Mr. F. Larfviere And Ontario Housing Corporatipn Eefore: K. P. Swan Vice-Chairman Mary Gibb Member I. Levack Member For the Grievor: Mr. P. J. O'Keefe Assistant Regional Director Canadian Union of Public Employees For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial -Relations Institute Hearinq: June 13th, 1977 Suite 405, 77 Bloor St. W. Toronto, Ontario e ~. i i 2. The grievance in this matter is dated June 4, 1976,, and is in the following terms: Please be advised that the Union hereby grieves on behalf of F. LaRiviere under article 3:Ol discrimination and intimidation because of the reasons given to him by Mr. C. Coulter for his failure to be successful in the recent competition for the senior heating serviceman position in District D. Redress Sought - That the said competition be reopened and that all applicants including Mr. LaRiviere be reinterviewed and that the union have a seat on the selection board to ensure a fair and impartial selection. To the arbitrability of this grievance Hr. Tarasuk raised the objection that it was a matter which had been previously settled, and that it was not a matter which could now properly be before the Board. The Board heard the parties on the preliminary issue of arbitrability, and subsequently rendered an oral decision that the grievance would be denied on the grounds that it was untimely, for reasons to be given subsequently in writing. Those reasons are set out hereinafter. The grievor applied in early January, 1976 for the posted position of Senior Serviceman (Heating)(See Exhibit 2). That position was subsequently offered on February 20, 1977 to a Mr. E. Broughton, and two alternate candidates were recommended, neither of whom was the grievor. On ELarch 17, 1076 a policy grievance was filed by the Union 1 as follows (Exhibit 4): Please be advised that the Union hereby grieves that the Corporation is misusing the procedure of candidate selection on job postings. Redress souyht - that the procedure be changed to take experience and seniority into consideration. a, . 3. A meeting subsequently took place, as a part of the grievance procedure, in which certain representations were made on behalf of the Union, and certain undertakings were made on behalf of the employer by Mrs. G. Niddrie, the Director of Housing Operations for Metropolitan Toronto. The substance of that meeting is not really in issue and, in the view we take of that matter is mostly irrelevant to these proceedings. The present grievor and another unsuccessful candidate also attended that meeting, however, and they also participated in the discussions each on his own behalf. There is some dispute as to whether this manifested an intention to treat the grievance as an individual one or whether it simply amounted to "an audience" on a related matter. In any event, Mrs. Niddrie conceded that unsuccessful applicants had a right to be informed in what ways they were less satisfactory and how they might improve. As a consequence, a meeting of the grievor with Mr. C. Coulter was arranged for this purpose; it is that meeting which is alluded to in the present grievance. Briefly put, Mr. Tarasuk argued that the policy grievance was on the same subject as the present grievance, and that a settlement of the former was a settlement of the latter, and an absolute bar to its arbitrability. As a part of the settlement, he asserted, the grievor had elected to accept whatever might come from the interview with Mr. Coulter as his final answer, for better of for worse. Mr. O'Keefe replied that there was no specific settlement of the issue set out in the present * 4. grievance and that the Cror~~ employees collective ~argainlng ~ct,~ s. 50 expressly provides that no technical irregularity shall invalidate any proceeding under the Act. He further submitted that the present grievance constituted a statutory grievance under s. 17(2)(b) of the Act, in respect of which an individual employee is given the right to grieve. As a consequence, he suggested, there might be some statut0r.y limitation on the Union's right to settle a grievance even over the objections of the individual grievor, a right clearly protected in arbitration under the Labour Relations Act,‘R.S.O. 1970, c. 232 as amended, and implicitly upheld in respect of this Board's proceedings as to the interpretation, application, administration or alleged contravention of a collective agreement as provided by 5. 13 of the C~OWII employees Collective Bargaining Act by the Oral direction of the Board in Re Barnfidd, 67/76 (written reasons not yet released). In this view of s. 17(2), even if the Union had intended to settle the individual grievances along with the policy grievances, which it did not. that settlement would have been invalid as purporting to olust a statutory right. Taking the Union arguments in reverse order, we are not yet prepared to come to a final determination on the specific rights of an individual employee vis-a-vis the Union in respect of a grievance commenced under s. 17(Z). That determination must await full argument and careful consideration in an appropriate case. Rather, we prefer to dispose of this argument on the basis that we can see no justification for characterising this grievance as an appraisal grievance. d . ? 5. "Appraised", as the word is used in s. 1 7(2)(b)> is nowhere defined, but it is clear from the context of s. 17(l) (b), where the word "appraisal" is used, that what is contemplated is a formal process of employee evaluation. The Board has dealt with one appraisal grievance in ne Scott 23/76, and has taken the position that a letter warning of a possible unfavourable appraisal is not an "appraisal" in me Cloutier, 20/76. The present grievance specifically refers to a grievance under article 3.01 of the collective agreement and alleges discrimination and intimidation in respect of the promotional competition. In addition, the relief requested is clearly related to the promotional competition and not to any appraisal procedure. As a consequence, we are of the view that the grievor is complaining about the relative -- assessment of his suitability for a specific promotion rather than about some more absolute assessment of his worth as might be expected in an appraisal procedure. Whatever may be the effect of s.l7(2)(b), therefore, it simply doesn't apply to this case. We turn now to s.50 of the Act, which states: 50. No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial~wrong or miscarriage of justice has occurred. We are of the view that this specific provision does not apply to time limits set out'in the grievance procedure negotiated between the parties, but rather to proceedings before the Tribunal or before this Board; the reference to judicial review appears to confirm this inter- pretation. This does not mean that this Boardmay not act, in some ,? _ 6. appropriate case, to ignore technical defects in the grievance procedure' agreed between the parties. Indeed, it already has indicated a willingness to do so, at least in respect of s. 17(2) grievances, in such cases as ne Dykstra, 25/76 and e Fournier, 86/76. In the event we are wrong in our interpretation of this section, however, it would appear from the interpretation given to the similar provision in the Labour Relations Act, s.103, ill Re Union Carbide Canada Ltd. (1967), 18 L.A.C. 74 Weiler); aff'd 65 D.L.R. (Zd) 417, Ilg621 1 O.R. 59 (Ont. C.A.); rev'd 70 D.L.R. (2d) 333, (19681 S.C.R. 966 (S.C.C.) that the Union's case would not in any event be enhanced. Finally, we are persuaded that the Union may well be right on the question of the settlement of the policy grievance. We can see nothing in the evidence which clearly indicates a decision to treat the grievances as individual and to dispose of them, and we doubt that the grievor (or, for that matter, the Union on his behalf) could properly be said to have agreed to the settlement of his own grievance on the basis that he would accept whatever explanation was offered, no matter how unpalatable. In addition, the policy. grievance is so fundamental in its approach that an individual grievance about a specific result might well have been able to stand independently of it. The fact is, however, that the grievor did not have a grievance, at that time, to be settled. He knew, on or about February 20, 1076 that he had not been successful. He participated in a meeting in Karch in support of a union policy grievance which directed criticism I a^ . 7. I at various aspects of the selection procedure, and participated in discussion about his own case on that occasion. Clearly, then, he felt aggrieved from the beginning about this question, but his own grievance was not filed until nearly three months later. Article 8.01 of the collective agreement in effect between the parties provides, in relevant part: 8.01 Where a difference arises between the parties hereto relating to the interpretation, ap- plication or administration of this Agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this Agreement has been violated, such difference or allegation being hereafter referred to as "the grievance", the following procedure shall apply: STEP 1 The aggrieved employee(s) shall forthwith submit the grievances in writing through his Shop Steward to the Chairman of a Grievance Committee established by the Union. .cxEP 2 If the Grievance Cotittee of the Union considers the grievance to be justified, the Union, through the Shop Steward, shall within fifteen (15) working days after the grievance first arises file the said grievance and redress sought in writing with the appropriate Area Supervisor who shall confer with the employee involved within five (5) working days of receipt of the grievance and who shall render his decision in writing within five (51 working days of the time of the conference. The employee shall be accompanied at the said conference by the Shop Steward. 8.04 The time limits provided in this Article may be extended or otherwise amended by mutual agreement of the parties. As we have noted above, we do not wish it to be understood that this Board will not, in an appropriate case, hear grievances despite the existence of time limits. On the other hand, ‘3 - r , 2. these time limits are not imposed by some tyrannical third party, but are negotiated freely and openly by the parties to this agreement, presumably in order to structure the grievance procedure and provide for its efficient operation. In such circumstances, a Board responsible for the proper administration of collective agreements, as we are, ought to give considerable weight to the procedures which the parties have negotiated. This presumption in favour of the negotiated procedures is all the stronger in a case of a contested promotional selection, where the vested rights of another person, the successful applicant, would also be in issue. In the absence of serious ex- tenuating circumstances, or some compelling argument to the contrary, we are of the view that the agreed time limits ought to be followed in such a case. Consequently, we consider the present grievance to have been submitted outside the negotiated time limits, and it is accordingly dismissed for that reason. Dated at Toronto this twenty-third day of June 1977. j.&&L~ ’ K. P.. Swan - Vice Chairman I concur Mary Gibb Member I. Levack Member