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HomeMy WebLinkAbout1980-0033.OPSEU.81-12-08 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 OUNDAS STREET WEST. TORONTO. ONTARIO. MSG 1X8-SUITE 2100 TELEPHONE' 4161598-0686 33/80 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND - THE CROWN IN RIGHT OF ONTARIO CIVIL SERVICE COMMISSION BEFORE: J. F. W. Weatherill , Chairman V. P. Harris, Member G. Beaulieu, Member For the Grievor: C. Paliare, counsel For the Employer: R. Dunsmore, counsel Heard at Taranto, July 3, 1980. 4 DECISION The grievance in this matter, dated January 22, 1980, is as follows: "The Union hereby grieves that the letters of "official reprimand" placed in the personnel files of employees who participated in the strike of December 3-5, 1979, exceed the terms of reference for dealing with such action that were prescribed by the parties in their Memorandum of Agreement dated December 5, 1979. The Union therefore requests that the employer comply with the terms of the Memorandum by removing any reference to official reprimands from any letters that are placed on employees' files pursuant to the terms of the December 5, 1979, Agreement. " There is no dispute as to the facts. From December 3 to December 5, 1979, approximately three thousand employees participated in a strike which was acknowledged to be unlawful , that is, contrary to Section 25 of The Crown Employees Collective Bargaining Act, 1972. On December 12, 1979, the employer sent the following letter to those employees who had participated in the strike and who were civil servants: - 2 - "I am writing to you in relation to the recent illegal strike by certain employees of the Ministry of Correctional Services which occurred between December 3 to 5, 7479. In accordance with Articles 5 and 7 of the Memorandum of Agreement signed by the Management Board of Cabinet and the Ontario Public Service Employees Union on December 5, 1979, this letter is to advise you that the Government does not condone illegal work stoppages, and that any repetition of such conduct by employees, individually or collectively, will not be tolerated. With regard to your own action in this matter, I have reviewed the evidence and am satisfied that you did, in fact, misconduct yourself and participate in an illegal work stoppage. Your misconduct was highly irresponsible, not only jeopardizing the security of the institution, but also endangering the safety of inmates and other staff. This illegal strike created . a potential hazard to the community. It is also evident that by your misconduct, you, as a member of the classified staff of the'Ministry; have breached your Oath of Office and Secrecy in which you swore that you would "faithfully discharge your duties as a civil servant and observe .and comply with the laws of Canada and Ontario". As you know, one of the laws of Ontario set out in the Crown Em to ees Collective Bargaining Act is that strikes in the ntarlo Public Service are prohibited. In view of the foregoing, you are hereby officially reprimanded and this letter of reprimand will form part of your permanent employment record and personnel file. Furthermore, you are warned that any further misconduct' on your part, including insubordination, abandonment of post or participation in any other illegal work stoppage will result in more severe disciplinary action, which may include dismissal . " 3 R similar letter was sent to other employees who had participated in the strike, but who were not civil servants. In the latter cases the third paragraph of the letter was omitted. In each case, however, it is clear that the letter constituted an "official reprimand", that is, a written warning constituting a disciplinary sanction and intended to form a part of the employee's disciplinary record. This grievance, it should be noted, does not raise the issue of just cause for the issue of such disciplinary notices. Individual grievances have been filed, and the just cause issue would arise in each of those. In the instant case, however, the union asserts that the employer's action in imposing such discipline constitutes a violation of a memorandum of agreement entered into by the parties on December 5, 1979, as a result of which the strike ended. The memorandum of agreement, which established a special procedure for resolving the issue of the scope of the bargaining unit which had motivated the strike, provided in clauses 5, 6., and 7 thereof as follows : "(5) The government intends to bring to the attention of each employee who has withdrawn his services that it cannot condone illegal work stoppages and that any repetition of such conduct by employees, individually or collectively, will not be tolerated. - 4 - (6) There shall be no dismissal , release from employment, or suspension of any employee as a result of his participating in the cessation of work. (7) The employer may send to all employees who participated in the work stoppage a uniform letter which may be retained in the employee's personnel file. " It is the union's contention that the letters of reprimand above referred to were issued in violation of clauses 5, and 7 of the memorandum of agreement. The employer raised a number of objections to the Board's jurisdiction in this matter, although it was content that those be dealt with at the same time as argument on the merits. In support of certain of the arguments it intended to make, the employer sought to call certain extrinsic evidence in explanation of the memorandum of agreement. The union objected to such evidence being called, and after hearing argument the Board made the following ruling: There are, as we see it, three major questions to be decided with respect to the evidence sought to be adduced. The first is as to the effect of those clauses - particularly clauses 5 and 7 of the memorandum - which are in issue. We do not consider that these clauses are ambiguous in the sense that extrinsic evidence would appear to be necessary as an aid to their interpretation. The matter is one of construction. The employer has, however, asserted that there was. a special understanding between the parties as to the meaning of these provisions. This is, in essence, an argument of estoppel . If the employer can show that there was in fact an explicit agreement between the parties, and that it relied on that agreement in taking the action it did, that is that the employer's action was one which the parties had, in effect, agreed might be taken, then the employer must be allowed to put in evidence of such circumstances. Apart from that, however, we would not receive extrinsic evidence as to the effect of the memorandum. Second, as to the nature of the document, we consider that that is a matter on which this Board must make its own decision, whether or not such decision be a final, and binding exercise of any jurisdiction this Board may have in the matter. Given that it is an agreement between the parties (and no question has been raised as to that), the document speaks for itself and its nature can be determined by the Board as a matter of construction. We would not receive evidence in this respect.- Finally, it was suggested that because of the circumstances in which the agreement was negotiated, it cannot now be enforced. If ,in fact the employer has moved in timely fashion to repudiate the agreement, then it may be that this Board would have to determine whether or not it was made, in effect, under duress. If in fact the agreement has been relied on by the parties, repudiation would not now be open to the employer. In summary, evidence as to some explicit special understanding as to the effect of the provision of the memorandum of agreement will be received; the parties are reminded that the issue in this respect is a narrow one. Otherwise, extrinsic evidence is not admissable. Evidence as to the circumstances in which the agreement was negotiated will be admitted only if the employer has in fact repudiated the agreement. c - 6 - Following this ruling, the employer indicated that it had not repudiated-the agreement and that it would call no evidence. The matter then proceeded to argument. In our view, the memorandum of agreement dated December 5, 1979, may properly be regarded as a collective agreement or an amendment to the existing collective agreement (or set of agreements) which was in effect between the parties at the material times. The document sets out an agreement in writing between the employer and an employee organization, and 1 it covers certain terms and conditions of employment. It would appear, then, to come within the definition of "collective agreement" set out in Section 1 (1 ) (e) of The Crown Employees Collective Bargaining Act, 1972. Since there is a diffe rence between the parties arising from the interpretation or application of the agreement, and since the parties have been unable to effect a settlement of it, this Board would appear to have jurisdiction in the matter pursuant to Section 18 (1 ) of the Act. The general managerial function of determining discipline, an exclusive function of the employer by virtue of Section 17 (1 ) of the Act is not, we think, in issue here. In any event, in view of the employer's position in this case, that it does not seek to - 7 - repudiate the agreement, we do not consider it necessary to make any final determination of the question whether or not the matter dealt with in clauses 5, 6, and 7 of the memorandum of agreement could properly be "the subject of collective bargaining" within the meaning of Section 17 (1 ). On the merits of the instant case, the issue to be determined is whether or not the employer, in issuing the letters of reprimand in question, has violated the terms of the memorandum of agreement. In our view, having regard to the provisions of the memorandum, the employer has not committed such a violation, but rather has taken action which the memorandum contemplated it might take. By clause 5 of the memorandum, the intention of the employer to -"bring to the attention" of the employees that their conduct would not be condoned is clearly set out, and the letters of reprimand, in our view, gave effect to that intention. Those letters did so in a manner which is contemplated by clause 7 of the memorandum, where it is acknowledged that the employer might send "a uniform letter" to the employees concerned, and that such letter "may be retained in the employee's personnel file" . The letters in question were, in our view, nothing more than what was contemplated by those provisions , although we do not suggest that the union actually concurred with the issuing of these warnings. Clearly it did not. - 8 - It may be noted that clause 6 of the memorandum appears to prevent the employer from imposing certain types of discipline on the employees concerned. There is to be no dismissal , release from employment or suspension. There is, however, no provision to the effect that no discipline whatever is to- be imposed. The only disciplinary action open to the employer in view of clause 6 would appear to be that of issuing a warning or "official reprimand", and such a disciplinary E measure is the embodiment of what is contemplated by clauses •5 and 1 of the memorandum of agreement. For the foregoing reasons, it is our conclusion that i . s F the employer was not restricted by the terms of the memorandum of agreement from imposing discipline in the form in which it did. Accordingly, the grievance is dismissed. DATED AT TORONTO THIS 28th DAY OF JULY, 1980. Chairman " C. Beaul i eu" Member " U.P. Harris" Member , Addendum While I agree with the decision of the majority that the memorandum of agreement does not preclude the placing of a letter of reprimand on employeest files; ;paragraph (5) of the memorandum also limits the scope of such a letter specific. ally to the "illegal work stoppages". The sample letter of rep- rimand that was provided to this Board was a general and wide ranging one that in my opinion goes far beyond what is outlined in paragraph (5) of the memorandum. The last sentence of the letter "Furthermore. . . . . . . . . .dismissal" changes the whole charii.` actor of the letter from a specific one referring to the work stoppage to a general one. I would have found that this sentence is inconsistent with the memorandum of agreement. i l • Guy Be lieu r �f'- 7. 40/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: Mr. Philip Vecchio (Grievor) - .and - The Crown in Right of Ontario (Ministry of the Attorney General) (Employer) BEFORE: Professor M. R. Gorsky Vice--Chairman Mrs. M. Gibb Member Mr. L. Robinson Member For the Grievor Mr. R. Anand, Counsel Cameron, Brewin & Scott, Toronto For the Employer Ms. K. A. Grant, Assistant Director Personnel Management Branch Ministry of the Attorney General DATE OF HEARING: November 24, 1981 PLACE OF HEARING: . Suite 2100, 180 Dundas Street West Toronto, Ontario AWARD At the opening of the hearing the parties advised the Board that the matter had been settled and requested that a consent order be made. Pursuant to the agreement of the parties it is ordered that the Grievor Philip Vecchio be reinstated to employment status with pay, appropriate compensation and back pay benefits, without prejudice to any rights to file a grievance under the Collective Agreement. The Board reserves jurisdiction to deal with any difficulties the parties may encounter in arriving at an amount to be paid to the Grievor under the terms of this Award. DATED AT London, Ontario this 8th day of December, 1981. '0JM_ M. R. Gorsky Vice-Chairman I concur Mrs. M. Gibb Member i I concur Per. L. Robinson Member