Loading...
HomeMy WebLinkAbout1982-0124.Maguire et al.84-03-02124/82 128/82 125/82 129/82 126/82 130/82 127/82 IN THE MATTER OF AN ARBITRATIOl’j Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ‘Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mr. Ronald 3. Maguire, et al) and Grievors The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer P. M. Draper Vice Chairman R. Russell Member E. R. O’Kelly Member For the Grievor: P. A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: D. W. Brown, C&C. Crown Law Office Civil Ministry of the Attorney General Hear+: January 17 & l&l984 -2- DECISION The seven grievances with which we are here concerned were listed to be heard together in Sault Ste. Marie on January 17 and 18, 1984, by the present panel of the Board. The Grievors and the corresponding case numbers are: Maguire (124/82); Beaver (125/82); Lapierre (126/82); Evans (127/82); Corbett (128/82); Warmington (129/82); Ouellet (130/82). On receipt of the Board’s Notice of Hearing, the Employer objected to their being heard on the ground that they had been the subject of an earlier decision of the Board, which had dismissed them. The decision cited, Williamson et al (289/81), was rendered on May 11, 1982, by a panel of the Board presided over by Vice-Chairman Barton, following a hearing on April 13, 1982. We convened on January 13, 1984, to hear the submissions of the parties on the objection. At theconclusion of the hearing, after retiring to consider the evidence presented and the argument made, we gave our decision orally that the Board is f.unctus officio as regards the seven grievances in question, and undertook to issue written reasons for that decision. A review of the relevant Board records establishes the following: (1) A Notice of Hearing for December I, 1981, bearing the name of the Grievor (Orr) and the case number 187/81, was mailed to the parties on November 18, 1981. The parties requested cancellation of the hearing, citing their agreement that all grievances in which the issue was mileage entitlement would be heard together. (2) A Notice of Hearing for April 19,1982, bearing the names of two Grievors (Peebles and Vecchio) and the case number 546/81, was mailed to the parties on March 10, 1982. Again, the hearing was cancelled at the request of the parties. - 3- (3) A Notice of Hearing for April 13,1982, bearing the names of three Grievors (Williamson, Sabatini and Hurley) and the case numbers 289/81, 682/81 and 454/81, was also mailed to the parties on March 10,1982. A letter dated April 2, 1982, addressed to the Registrar by the Union, listed six grievances which the Union and the Employer had agreed should be heard on April 13th (being the six for which earlier notices of hearing had been issued as already noted) and seven “new” grievances (being those now before us). Copies of the letter went to the Employer and to counsel who was to act for the Union on April 13th. Applications for hearings in the seven grievances, each with a copy of the grievance attached, were made in separate letters also dated April 2, 1982, and addressed to the Registrar by the Union. Copies of the letters went to the Employer and to the respective Grievors. The Registrar informed the Employer of the applications for hearings inseparate letters dated April 6, 1982, each of. which had the appropriate grievance attached. Copies of the letters were sent to the Union and to the respective Grievors. An Amended Notice of Hearing for April 13th (superseding the notice of March 10th for that date) bearing the case numbers of the grievances to be heard (being the thirteen grievances listed in the Union’s letter of April 2nd) was mailed to the parties on April 7th. The issue common to the grievances listed in the Union’s letter of April 2nd and submitted for determinnation to the Barton panel on April 13th, was that of mileage entitlement arising from changes made by the Employer in the location of designated headquarters. The representative of the Employer at the hearing of April 13, 1982, testified before us that immediately before that hearing he and counsel to the Union agreed that there were thirteen grievances to be heard. -4- There was also agreement as to the facts, so that no evidence was called by either party. One of the Grievors affected testified before us that he was present at the hearing of April 13, 1982, at the instance of the Union. He met counsel to the Union prior to the hearing and was told when and where it would be held. He was not called to testify. Two of the other Grievors testified before us that they were not present at the hearing of April 13th, and had not agreed to have their grievances heard with those of other Grievors or to be represented before the Board by anyone else. One of them had been told by the Union that only one of the Grievors would attend the meeting. The decision of the Barton panel, bearing on its title page the case numbers of the thirteen grievances to which it pertained, was mailed to the parties on May 25, 1982. At our hearing, counsel to the Union filed in evidence a copy of a handwritten list of some thirty grievances, including the seven before us. We are told that all of the grievances listed involved the issue of mileage entitlement. The origin of the list was not established in evidence but it is not in dispute that it was put before a panel of the Board presided over by Vice-Chairman Swan on November 28, 1983, at which the parties were represented and which resulted in the issuance of a direction by the panel on the same date. The direction provided that the grievances would be divided into three groups and that a separate panel of the Board would be constituted to hear the grievances in each group. Because the panel felt that the then pending decision of the Divisional Court on an application for judicial review of Howes, 356/82 (a decision rendered on November 25, 1982, by a panel of the Board presided over by Vice-Chairman Verity, involving the same parties and the same issue) might affect the Board’s jurisdiction, the direction also provided that either party could apply for -5- reconsideration of the direction when the outcome was known. We note, in passing, that the decision of the Barton panel in Williamson was extensively quoted by the Verity panel in Howes and that it was cited by reference to the case numbers that appeared on its title page. Pursuant to the direction, the present panel was constituted to hear the seven grievances which the Employer now submits have already been heard and dismissed. We believe that there can be no doubt that the seven individual Grievors affected chose to be represented by the Union, and that the Union undertook to represent them, before the Board. As a consequence, the Union had responsibility for the conduct of their cases and acted on their behalf whether by initiating, or consenting to, or acquiescing in the consolidation of their grievances with other like grievances for purposes of presentation to and determination by the Board. That being so, it cannot now be said that because the Grievors, with one exception, did not attend the hearing of April 13, 1982, and because none of them authorized any other Griever to represent him, their grievances have not been heard. As to the intervention of the Swan panel, its purpose was simply to expedite the scheduling of hearings. There is no evidence that the panel was referred to the decision of the Barton panel in Williamson. Instead, it appears that the panel worked solely from the handwritten list an? acted ., on the assumption, shared by the parties, that all of the thirty some grievances listed there remained unresolved. At all events, nothing that took place on that occasion could have the effect of reviving the jurisdiction of the Board in respect of the grievances with which !we are concerned if, in fact, it was exhausted with the issuance of the decision of the Barton panel in Williamson. In that case the direction of the panel, as it relates to them, including the reference to Howes, would be Without force of effect. -6- Having reviewed the Board’s records in the matter and considered the evidence adduced at our hearing, we are satisfied that (1) Due notice of the hearing of April 13, 1982, was served on the parties; (2) The Board became seised of the grievances in question on that date; (3) The Board gave full opportunity to the parties to present their evidence and to make their submissions; (4) The decision of the Board dismissing the grievances in question was communicated to the parties; (5) The decision of the Board dated May 11, 1982, is final and binding on the parties and on the Grievors affected. It follows that the jurisdiction of the Board with reference to the grievances in question is exhausted. The objection of the Employer ls accordingly upheld. DATED at Consecon, Ontario, this 2nd day of March, 1984. P.M. Draper, Vice Chairman “I dissent” (see attached) R. Russell, Member E.R. O’Kelly, Member -7- DISSENT Re: 124182, 125182, 126182, 127182, 128/82, 129182, 130/82 OPSEU (Mr. Ronald J. Maguire, et al) and Crown/Ontario (Ministry of Transportation and Communications) The above numbered grievances were scheduled to be heard by this panel in Sault Ste. Marie on January 17 and 18, 1984. On the 13th of January, management requested a hearing before the Board, objecting to proceeding on the grounds that the grievances had previously been disposed of in a decision dated April 13, 1982 by a panel chaired by Prof. P.C. Barton. At the hearing before this panel on Friday, January 13, 1984, management argued we were estopped from proceeding to hear evidence as the grievances had already been dealt with. However, a number of factors came to ligtit that influenced my thinking, to the end that we should hear the evidence to determine if, in fact, the Order of the Swan Board should be upheld in the circumstances. The factors contributing to my decision that our Board should proceed to hear the evidence was as follows: 1. Both witnesses, D. Beaver (125/X2), and R. LaPierre (126/82), testified they were not aware that a hearing of their grievance took place on April 13, 1982. They said they had not agreed to have anyone else speak for them. And if they could not testify (as to their grievance) before this Board, they would file another grievance. 2. A third union witness was R.J. Maguire (124/82). Maguire did attend the hearing on April 13, 1982 but said he did not testify there. Maguire said that he was not authorized by any of the other grievers to represent them or act on their behalf. Nevertheless, it appears that the factors put before the Barton Board are those relating to Maguire’s grievance, only. 3. It was contended by the union that because no evidence was presented at the hearing before Prof. Barton, several errors of fact were made which are reflected in his decision. They were: (a) They are not pool operators. (b) They do not all live in Sault Ste. Marie. (cl There is no reference in his report to Batchewan. While management ‘must .accept some responsibility for first . agreeing that these grievances should be arbitrated and later adopting the position they have already been dealt with, the union must also accept responsibility for not advising all the grievors of their right to be heard at the April 13, 1982 hearing;and making it possible for them to attend the hearing. It is my contention that a proper hearing should take’place, preferably in Sault Ste. Marie, where the grievors could testify in order that a genuine final decision could and should be made!of these grievances. R. Russell, Member