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HomeMy WebLinkAbout1984-0136.Pelletier et al.85-02-07IN THE MATTER OF AN Under ARBITRATION THE CROHN EMPLOYEES COLLECT IVE BARGAINING ACT Before 136/84 THE GRIEVANCE SETTLEMENT BOARD CUPE (Andy Pelletier, et al) -and- The Crown in Right of (Ministry of Municipa and Housing) Ontario 1 Affairs Grievors Employer Before: -- For the Grievor: G. Brent Vice Chairman B. Fishbein Member F. T. Collict Member T. Edwards National Representative CUPE For the Employer: A. P. Tarasuk Counsel Hearing: Central Ontario Industrial Relati ons Institute November 20, 1984 ._ - .i 2 I . .-~~ -",' DECISION The grievance before this board is dated December 23, 1Y83 and alleges that the Employer has violated the collective agreement by failing to pay the five grievers (Williams, Lombard, Mot-&in, Pelletier, and Abbott) for the days of November 16, December 28, and 29, 1983. The circumstances concerning the Employer’s refusal to pay the grievers for those days will be set out below. The facts in this case are not complicated and will be dealt irith very briefly. On or about September 7, 1983 the five grievers applied to the Ontario Public Service Labour Relations Tribunal (hereinafter referred to as the.Tribunal) for a declaration terminating the representation rights of the Union (See EX 6). The Tribunal set November 16, 1983 as the date for the hearing. The hearing commenced on that day and continued on December 28 and 29, lY83. The grievers, as applicants in that case, employed the services of coutvsel. The matter was a tripartite proceeding involving the grievers (as applicants), the Union, and the Employer. On or about October 20, 1983 the Tribunal issued five summonses to a witness, each one of those was directed to a different griever (applicant). Those summonses were issued on the instructions of the solicitor for the grievers (as applicants). The grievers were served with rhe summoose S. The grievers informed the Employer of the fact that they had been served and applied for leave of absence with pay pursuant to article 19.02 of the collective agreement (Ex 1). The Employer originally complied with the request; however, on or about December 22, lY83 each of the grievers received a letter (Ex. 4) in the same form from Mr. D. G. Wells, the Employer’s General Manager: It has come to our attention that a subpoena was issued to, and served on you, which summoned you tb appear before the Ontario Public Service Labour 3 P, ._ z Relations Tribunal on November 16, 1983 in the matter of Bill Williams, et al., and the Ontario Housing Corporation Employees Union, Local 767, C.U.P.E. As you are a named applicant to these proceedings, there is no provision or authority to cover the issuance of a subpoena, which summons you to appear as a witness to these same proceedings. There fore, Article 19.02 of the Collective Agreement would not be applicable and November 16 will be regarded as leave of absence without pay. Arrangements will be made to recover the overpayment of one (1) day from your next pay-cheque. The Metro Toronto Housing Authority will consider requests for time off for December 28, 29 and 30 to allow you to attend these proceedings, however time off for these days will be recorded as leave of a bsenCe without pay. There were other summonses to witnesses issued in connection WI th the termination application. It would appear that each of the three parties issued summonses, and that the Employer requested lists of employees who had been summoned from each of the parties. Those lists were supplied and the Employer then discovered that the grievers had not been summoned at the request of ei ther the Union or the Employer. It was then determined by the Employer that the grievers were not entitled to be paid and the letters reproduced above were sent to them. All other witnesses summoned by any of the three parties to the proceedings were given leave of absence with pay under Article 19.02. The evidence before us was that the grievers decided that they would have summonses issued to each of them in order to ensure that all of them would attend at the hearing. In other words, it would appear that they regarded the summonses as a form of insurance against any chang of heart or possible defection from their ranks. The board also heard evidence regarding the Employer’s practice concerning payment for witnesses summoned to appear before quasi- 4 5 . _. ? ) judicial tri burials such as this board and the Tribunal, and in particular concerning its payment to the grievers in March, 1983 when they were the complainants in a proceeding against the Union and again were summoned to appear as witnesses before the Tribunal at the request of their solici tar. The evidence was objected to by counsel for the Employer and was heard subject to that objection. For reasons which will become clear later, we consider that the March, 1983 evidence is irrelevant and does not in and of itself establish a practice. We do not consider that the evidence which we heard concerning practice need he relied on in any way to determine the issue before us. The provisions of the~collective agreement which are relevant to this issue are reproduce below: ARTICLE 2 - DISCRIMINATION OK INTIMIDATION 2.01 The Employer and the Union agree that no discrimination or intimidation will be practised or permitted by any of their official officers or otherwise against any employee or any Employer representative by reason of or arising out of directly or indirectly the activities of the Employer or out of trade union membership or activity, whichever is applicable, or by reason of race, creed, colour, age, sex, marital status, nationality, ancestry, or place of ori gin, as defined by the Ontario Human Ri &ts Code. ARTICLE 19 - LEAVE OF ABSENCE . . . . . . i... 19.02 COUKT SERVICE Employees who are called upon to serve as jurors or who are subpoened as witnesses to a court proceeding: (1) shall be granted leave of absence for such purposes provided that upon completion of the service such employee shall present to the Genera1 Manager, Metropolitan Toronto Housing Authority a satisfactory certificate showing the 5 i i period of such service; and (2) shall be paid for full salary or wages for the period of such service provided he shall pay to the Metropolitan Toronto Housing Authority the full amount of compensation received for such service and shall be given an official receipt thereof. Before proceeding to consider the arguments of the parties, we should point out that the Ontario Public Service Labour Relations Tribunal is established by the CrownEmployees Collective Bargaining ACt, R.S.O. 1980, c. 108, S. 38 and that section 43(2) of that Act provides that the Statutory Powers Procedure &, R.S.O. 1980, c. 484 applies to procceedings of the Tribunal. Section 12 of the latter Act provides for the summons of witnesses, and is reproduced in part below along wit? that portion of section 13 which deals with contempt proceedings against a witness who fail8 to attend after being summoned: 12. - (1) A tribunal may require any person, including a party, by summons, (a) to give evidence on oath or affirmation at a hearing; and Cb) to produce inevidence at a hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceedings and admissahle at a hearing. (2) A summons issued under subsection (1) shall be in Form 1 and, . . . . . . . . . . Cc) shall be served personally on the person summoned who shall be paid the like fees and allowances for his attendance as a witness before the tribunal as are paid for the attendance of a witness summoned to attend before the Supreme Court. . . . . . . . . . . 6 i ,i '- _j 13. Where any person without lawful excuse, (a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing, . . . . . . . . . . bhe tribunal may, of its own motion or on application of a party to the proceedings, state a case to the Divisional Court setting out the facts and that court may, on application on behalf of and in the name of the tribunal or by such party, inquire into the matter and, after hearing any witness who may be produced against or on behalf of that person and after hearingany statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of court. The summons served on each of ‘the grievers was in the form specified by the Statutory Powers Procedure Act and will not be reproduced in full. For the sake of convenience, though, the second note which appears at the foot of the form is set out below: If you fail to attend and give evidence at the hearing, or to produce the documents or things specified, at the time and place specified, without lawful excuse, you are liable to punishment by the Supreme Court in the same manner as if for contempt of that coGrt for disobedience to a subpoena. We have considered all of the submissions made by counsel and have read the authorities cited to us. Having done so, we wish to make the following general remarks before disposing of the matter before us. We accept that the Tribunal has the power to sum&n witnesses and that the grievers were issued summonses pursuant to that power. Had the grievers failed to attend at the Tribunal as directed in the summonses they could have been subject to proceedings pursuant to section 13 of the Statutory Powers Procedure Act. - The Union’s case rests on the broad proposition that the grievers must be treated as every other witness has been treated by the Employer. The main issues argued before us are that a summons is not a subpoena and so article 19.02, which refers only to subpoenas, does not apply and that the grievers as parties are not entitled to the benefit of article 19.02 when they cause themselves to be subpoenaed as witnesses. We have examined article 19.02 very carefully, and with respect, we believe that it is very clear on its face. The issue, as we see it is not whether a summons is a subpoena when determiningwhether article 19.02 applies. The issue is really whether article 19.02 applies to proceedings which are not ‘kourt proceeding’(s), and clearly on the face of the article there is nothing which obliges the Employer to pay wages to an employee who has been either summoned or subpoenaed to some thing other than a ‘kourt proceeding’: The Ontario Public Service Labour Relations Tribunal is not a court; therefore, it would follow that any proceeding before the Tribunal is not a ‘kourt proceeding’: As a consequence it would have to be concluded that article 19.02 does not apply to the situation before us. That analysis, however, does not end the matter. In disposingof the matter we do not wish to comment or rely on any of the evidence regarding past practice which was led in the case. We do wish to emphasize that the Employer paid every other employee who was summoned to appear before the Tribunal for the hearings on the termination application which commenced on November 16, 1983 except the grievers. On the face of it this behaviour on the part of the Employer would appear to be discriminatory and we consider that we must examine the reason gd ven, their role as parties to the application, to determine whether the Employer has in fact discriminated against the grievers contrary to article 2.01 of the collective agreement. It was argued that there is no need for parties to summon > 5 8 ‘I i - I themselves to testify and that to do so is to abuse the process. In the first place, we would like to note that section 12(l) of the Statutory Powers and Procedure Act clearly gives the Tribunal the power to summon a party to a proceeding before it to testify. MOIY!OVer, while we agree that in judicial proceedings parties would not have themselves summoned to testify and that such an action would not be necessary, we must consider the labour relations context when deter/mining whether parties can summon themselves to appear before labour relations tribunals. As the grievers themselves here pointed out, there may be a real or perceived need on the part of the employees bringing the application to ensure that they stay together to the bitter end and they may feel that pressure can be brought to bear on some or all of them to abandon the application thereby undermining the effort of the group as a whole. This would be especially true when all of the members of the group had relevant evidence which might be required by the Tribunal to deal with the application. In order to ensure that they will all be there why should they not be able to summon themselves to appear as witnesses? We confess that we do not consider that their actions were an abuse of the process. We further cannot accede to the suggestion that the summonses were nulli ties because they were issued to parties at their own request. In the first place, we are not the proper body to adjudicate on the validity of a summons issued by the Tribunal. The summonsa s were issued by the Tribunal in the proper form and we must respect.that. I” any event we know of no authority which would prohibit a body from summoning a witness to appear before it when the witness happens to be a party to the proceeding and the party requesting his own appearance. We must therefore conclude that there is no leg1 basis outside of j ,P 9 -. .z 5 i 7 the collective agreement for distinguishing between the grievers and the other witnesses on the basis that the grievers were parties to the proceeding and had caused themselves to be summoned. Since the Employer was making payments to employees who were summoned to appear before the Tribunal under colon of article 19.02 of the collective agreement, and since article 19.02 does not distinguish between parties and non- parties, we must also conclude that the collective agreement does not make such a distinction which would justify treating the parties to the application any differently than any other witness. The result is that the Employer is treating a group of employees who are ewrcising their rights as members of the bargining unit to bring an application before the Tribunal and to request the Tribunal to summon witnesses differently than every other employee who was summoned to appear before the Tri buna 1. The invocation of an action against the Union is as much a ‘trade union activity” within the meaning of article 2.01 as is running for office in the local, for example. To refuse to pay the grievers in this instance is to treat them differently from everyone else when they were engaged in a ‘trade union activity “to which other union members were not a party, and cannot be allowed in the face of article 2.01 unless there is something which specifically permits the Employer to act in that way. Since there is not, we must conclude that there has been a violation of article 2.01 and allow the grievance. The Union indicated to the board that this was no an easy case for it to argue. We certainly can appreciate that. The effect of this decision is to make the Employer give employees who sought to terminate its barginning ri&ts a day off with pay. Had the Employer done this on its own without the sumr~~onses having been issued, the Union, quite I, properly, would have urged the Tribunal to dismiss the termination application because of improper Employer support. It cannot be pleasant for anyone, either the Union, the Employer, or this board to be caught in a position where it may appear that a payment by the employer to employees making an application for the termination of a union’s bargainingrights is beingcondoned. Be that as it may, we consider that the Employer is not justified in treating the grievers any differently than any other employee summoned to appear as a witness. As mentioned earlier, we heard submissions from the Employer that a summons is not a subpoena. We have already determined that we do not have to decide that question and that nothing, in our view, turns on the question. In the event that we are wrong, we consider that for all practical purposes the distinction between a summons to a witness and a subpoena is one without a difference. We put no wei ght on the fat t that the note which appears on the bottom of the summons forin (supra) refers to treatment by the Supreme Court of someone who does not comply 1s if for contempt of that court for disobedience to a subpoena’: If one refers to section 13 of the Statutory Powers Procedure Act (supra) which - is the authority for the note on the form, it is clear that the tribunal issuing the summons, not being a body which can punish people for contempt, and the court, not being the body which has been treated with contempt, would be unable to punish a person for contempt of the tribunal unless the legislation specifically provided that the contempt was to be treated as though it were a contempt of the court which is asserting the Jurisdiction to punish the offender. The note on the bottom of the summons to the witness is not emphasizing tne difference between a summons to a witness and a subpoena; it is rather warning the witness that there is a pe.nalty for non-compliance and that that penalty f is the same as cour,ts impose for disobedience to their directions to attend i?hen summoned to testify. For all of the reasons set out above, the grievance is allowed and the Employer is ordered to pay the grievers their full salary or wages for the days of November 16, December 28 and 29, 1983 less the amount of conduct money which the grievers would normally receive for their appearance as summoned witnesses. The board will remain seized of the matter for the purpose of determiningcompensation should the parties be unable to agree. DATED AT LONDON, ONTARIO TtlIS 7th DAY OF February , 1985 ._-.----._~_~-----_--___ Gail Brent, Vice Chairman --z -- B. Fishbein, Member ----1--- F. T. Collict, Member Re: 136/84 CUPE (A. F'elletier, et al) am3 crcm/olttzn-io Ministryof~cipdLAffairs ardtlcusing I concur with the decision of the Vice Chairman for the reasons set out therein. However, I wish to make it clear that for my part the conclusion arises out of the peculiar cirfxns tames of this case. In effect, the Eqloyer will be ccqxlled to pay the grievers for the day they did not work in order to bring an application to t&in&e the Union's bargaining rights. This would norrally, and for quite proper reasons, constitute RqAoyer support and be fatal to the application to terminate the Union's bargaining rights. As was explained in the decision of the Vice Chairman, the collective a greement provides nc entitlement in Article 19.02 to such payment as it is clearly and unqivccally restricted to "court proceedings". However, this was not argued before us and the !&r@oyer has in fact chosen to ipore this restriction in Article 19.02 and pay some witnesses to the proceedings before the tribunal, which obviously is not a court. In the face of this apparently gratuitous payment by the Eqoloyer, the question becomes why only the grievers were not so paid. Article 2.01 clearly prohibits discrimination "...arising out of directly or‘ indirectly . ..out of trade Union membership or activity...". The wloyer, having chosen not to avail itself of the fact that Article 19.02 clearly does not require payment in these circmtances, could offer- no persuasive reason why the grievers were not paid while all others s-nsed to the hearing of the tribmal were. As outlined in the decision of the Vice Chairman none of the reasons offered by tne Esnployer were persuasive. In these peculiar ci -tances, I too concur that the grievers have been discriminated against and that the grievances must therefore be allowed. Had the Errployer been able to show a rational basis for not paying only the grievers, or forded the distinction on s- correct interpretation of the collective agreement, there muld be no discr imination and for my part the decision would be otherwise. I/ 4 i BernardFishkein 3 .., ; -> .?- MEMBER'S COMMENT RE FILE #136/84 (A. PELLETIER ET AL) 5 It is surprising that this case reached the point of arbitration. Counsel for both parties stated that the language of Article 19.02 is not ambiguous. Very clearly, it is not. In part, Article 19 is as follows: "Article 19 - Leave of Absence 19.02 Court Service Employees who are called upon to serve as jurors or who are subpoened as witnesses to a court proceeding: ,(l) Shall be granted leave of absence for such purposes . . . . . . . . . . . . . . . . and (2) shall be paid for full salary or wages for the period of such service 9, . . . . . . . . . (underscoring added) Vice Chairperson Brent has very clearly summarized the essence of this case at page 7 of the award, as follows: "We have examined article 19.02 very carefully, and with respect, we believe that it is very clear on its face. The issue, as we see it is not whether a summons is a subpoena when determining whether article 19.02 applies. The issue is really whether article 19.02 applies to proceedings which are not 'court proceeding'(s), and clearly on the face of the article there is nothing which obliges the Employer to pay wages to an employee who has been either summoned or subpoenaed to some- thing other than a 'court proceeding'. The Ontario Public Service Labour Relations Tribunal is not a court; therefore, it would follow that any proceeding before the Tribunal is not a 'court proceeding'. As a conse- quence it would have to be concluded that article 19.02 does not apply to the situation before us." In effect, payment would not have been required in the subject case. +=A- --: *, z I, . +, 2. 'i Notwithstanding this position, it is clear from testimony given before the Board that an employee who was called before the Board to a grievance hearing might be paid under Article 19.02. In fact the specific evidence was that "............. we probably would pay . . . . . . . . ...' This Member concurs with the majority award at page 4 to the effect that no evidence was advanced to establish a "practice" of paying wages to employees for attendance at Tribunals‘when subpoenaed. In any event, in face of the language of Article 19.02, the question of practice did not need to be considered as related to the issue before the Board. The only question remaining is one associated with discrimination. Were the grievors discriminated against in accordance with the provisions of Article 2.01 by virtue of the Employer's refusal to pay them for having been subpoenaed? This Member finds it difficult to regard this as a matter of discrimination. Rather, it would appear that vacillation more properly would character- ize the actions of the Employer. In summary, this Member supports the majority award in allocating payment to the grievors. It is clearthe Employer does not have a uniform practice. To avoid any further misunderstandings be- tween the parties it would be expected that the Employer would formally notify the Union of the interpretation of Article 19.02 as clarified in this award and of its intention to so implement the specific provision in the future.