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HomeMy WebLinkAbout1984-0396.Rees.87-03-06IN THE NATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVNACE SETTLElfENT BOARD BETWEEN: OPSEU (John Rees) Griever - And - The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer BEFORE: G. Brent F. Taylor P. D. Camp Vice-Chairman Member Member FOR THE GRIEVOR: T. Hadwen Counsel Cavalluzzo, Hayes h Lennon Barristers & Solicitors FOR THE BNPLOYER: K. B. Cribbie Senior Staff Relations Officer Hum& Resources Branch Ministry of Transportation & Communications HEARING: December 1, 1986 2 Preliminary Decision The only matter to be dealt with in this award concerns Article 5.1.3 of the collective agreement between the parties, which is reproduced below: 5.1.3 The EmplOyer upon written request either by the employee or by the Union shall make available all information and provide copies of all documents which are relevant to the grievance or may be used by the E!JIplOyer in the presentation of the case before the Grievance Settlement Board. The grievance before us contains an allegation that the employee is improperly classified. The remedy being sought in the grievance is reclassification to a classification which is within the Management Compensation Plan (hereinafter referred to as MCP). The employee and/or the Union in this case has made a specific request in writing to the Employer to produce (1) the OST 15 benchmark and (2) the position des?ription for the Electrical supervisor position in Ottawa. The Employer has refused to make those documents available to the Union and the employee. AS we understand the Employer's position, the request was refused because the Employer considered the documents to be management documents and not relevant to bargaining unit personnel. In essence, the Employer wants the Board to reconsider its decision in Canninq (558/84) as upheld by the Divisional Court in an unreported decision dated April 17, 1986 (leave to appeal was denied on May 26, 1986). We do not consider that it would be appropriate to dealwith~an argument that the Canninq decision should be reconsidered in the context of a motion by the Union that we should order the Employer to comply with Article 5.1.3 of the collective agreement. Article 5.1.3 is a rather unusual provision to find in a collective 3 agreement, and it has not received a great deal of attention from this Board in the past. One can only assume that the parties have been able to establish a modus oosrandi under the article and have rarely had the occasion to have the Board interpret it. The only case which was cited to us as having considered the article was watterworth et al (1109/84, -- 1110/64 fi 0045/85). Watterworth dealt with a situation where the Employer sought to use a document which it had not supplied to the employee or the Union in response to a written request The particular situation is not the same as that before us. Clearly, the intent of Article 5.1.3 was toestablisha methodof obtaining the pre-hearing production of relevant documents, or documents which may be used by the Employer in the presentation of its case. The parties have used the words "shall make available", "all information" and "copies of all documents which are relevant" in the article. It is therefore our view that the parties contemplated a situation where the Employer would have no choice but to produce certain documents on request. In the instant case we are not faced with a generalrequestbut with a specific request for particular documents. The Union informed us that it was taking this position withoutpre)udiceto anypositionit might take in'the future regarding a generally worded request. We certainly can see that practical problems may arise in relation to generally worded requests and that it might even be necessary for this Board to become involved in some determination of the scope of the article if the parties could not agree on what should be produced; however, in this case there is no argument made that the documents ! 4 requested are not relevant to the grievance (assuming that the Cannins decision 1s correct). We therefore consider that, in view,of (a) the very particular request which was made, (b) the relevance of the documents to the grievance, and most importantly (c) the clear words of Article 5.1.3, the Employer is required to produce the documents in question to the Union in order to comply with Article 5.1.3. For all of the reasons set out above, we order that the Employer produce the specific documents requested to counsel for the Union before the next hearing date. DATED AT LONDON, ONTARIO THIS 6TH DAY OF NARCH, 1987. Gail Brent, Vice-Chairman /g&T. D,Ap P. D. Camp, Member