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Home My WebLink About1984-0866.Marino.85-05-13IN THE MATTER OF AN ARBITRATION under THE CROh'N EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: P. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: R. B. Itenson Senior. Staff.Relations Officer Staff Relations Division Civil Service Commission OPSEU (Len Marino) and Grievor The Crown in Right of Ontario (Ministry of Labour) Employer E. E. Palmer, Q.C. Vice Chairman R. Russell Member L. D. Foreman Member 9th April, 1985 Hearing: -2- * DECISION The present arbitration arises out Of d grievance written by Mr. L.Narino on 28 August 1984 and filed with the Employer on 13 September 1984. The gist of Hr. MerinO’s claim was that his position of Human Rights Officer 2 ~was improperly described and compensated. On 31 October 1984 the Union requested the Grievance Settlement Board to arrange a hearing in this matter. However, on 8 November 1984 the griever wrote a letter to the Deputy Uinister of Labour, the body of which simply read: “Without prejudice to my rights, I hereby withdraw my above described griev- ance [“My grievance dated August 28, 1984”l. Enclosed with this letter was another grievance of the same date, which was of the same nature, but differently worded than the earlier grievance and initiated at the first step of the grievance procedure. It would seem that the letter to the Deputy Uini- ster was not forwarded to the Grievance Settlement Board because on 19 December 1984 the Registrar of that Board wrote the Depu.ty Minister, with copies to interested part- ies, that the Board had received the letter of 31 October 1984 from the Union and intended to set up a hearing for the grievance with which this Board is now dealing. Ttfis griev- ance was described by the file number 866/84. On 1 February 1985 the Union again wrote to the -3- Ministry of Labour, stating they wished to proceed with a hearing of Mr. Marina’s grievance, captioned as “GSB #866/ 84 '. On 25 February 1985 the Grievance Settlement Board informed the concerned parties that a hearing in this matter, i.e., file number 866/84, would take place on 9 April 1985. On 5 Harch 1985 the Winistry of Labour informed the Union, with copies to appropriate parties, that this grievance had been withdrawn, citing and enclosing the griever's letter of November 8th. Apparently, there had also been telephone communication between the parties on this issue and the letter was confirmatory of this fact. On April lst, the Civil Service Commission informed the Union that ,they would challenge the jurisdiction of the present Board of Arbitration to hear this grievance on the basis of, among other things, the alleged withdrawal Of this grievance. The next day counsel for the griever wrote the Ministry of Labour, stating inter alia: --- Thank you for your letter of March 5, 1985. I have reviewed this matter with Ur. Harino and wish to advise that OPSEU will take the position at the hearing in this matter on April 9, 1985, that the withdrawal in your hands dated November 8, 1984, was delivered to you in error, and that it was not the intent of the griever at that time or at any time since to withdraw his grievance. We will submit to the court [sic1 that this is a matter of mechanical or clerical slipand should not be held against the griever. This is particularly true as a classification grievance is ongoing, as you are aware. . . . With this background, the matter came on for arb- . :\ -4- itration on the date mentioned. At that time~the question as to whether this grievance was withdraw” was Canvassed. The Board informed the parties at that time that it accepted' the Employer’s position that it was. Our reasons for this now follow. . First, we would note that we cannot accept the argument of the Union that the griever cannot withdraw this grievance because the Union is a party to-this arbitration and has a separate interest which the griever cannot com- promise. The Union used as basis for this claim the wording of s.t8(2/ of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c.108 (as am.1, which reads: 121 In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified . . . may process such matter in accord- ance with the grievance procedure provided.in the collective agreement, and failing final det- ermination under such procedure, the matter may be processed in accordance with the procedures for final determination applicable under section 19. Quite clearly, then, the above provision does not give any separate rights to the Union. What it does, at least in the opinion of this Board, is clearly give rights to a poten- tial griever: he or she is given the personal right to process their grievance - and to process it one must be able to compromise it as was done here. In a similar vein, the Union argued that they have rights separate to that of the griever under the . -5- collective agreement. Here reference was made to Article 5.1.1. Without dilating on this argument, however, it seems this provision is similar to Section lSf2) discussed above: it clearly vests the right to process a grievance in relation to a matter of classification,in the griever. Thus, the foregoing argument is equally applicable here. The Board Kocld note that the normal position in arbitration is that the right to process a grievance fend thus to withdraw it) lies with the Union, which, with the Employer, are the two parties to the collective agreement. Individual employees in these casts do not have the right to process theil grievarce where the Cnion does not wish to do so. Even ir those situations, however, it has been held that the Union cannot take the case forward of a recalitrant griever who does not wish his individual grievance arbit- rated. Co”sequectly, in the present situation where the griever has the right to process his grievance, the case is even stronger that he may withdraw it. Given that the griever may validly withdraw hjs gi~ievance, then, the question that remains is whether he did so. Here again the Board found that he did. It should be noted here that the griever did not put forward the same defense as was suggested by tne letter of Apr,il 2nd, i.e., that the letter was sent in error and did not reflect his intent. Rather at the hearing the griever stated that his . . -6- grievance was part of a conc,erted action by a.number of employees across Ontario to right what they considered were improper actions by the Employer. He testified that one of their membersfrom Windsor was orchestrating this matter. In ~this regard he said that he had been contacted by this person and told to file the reworded grievance end the covering letter which mentioned the withdrawal of his earlier grievance. Indeed, he said the language used was that given him by this person in Windsor. It was his understanding, however, that what was done consituted a re-wording of his original .qrievance. He did not claim that the letter was sent in error or the like. In our view, while the griever might have held the , views he now claims he did, such does not effect our deci- sion that his actions constituted en effective withdrawal-of his grievance which is the subject of this arbitration. His letter was clear and unequivocal: it stated he was with- drawing his grievance. A new grievance, commencing et the first step of the grievance procedure was enclosed. The only reasonable interpretation which can be put on this by someone rea,dinq it,is that taken by the Employer and this Board. In our view Mr. Uarino depended on e third party to express his position; he must be fastened with the obvious meaning of the language used. Mr. Uarino works in en aree where this kind of language is commonly used,; it is diffi- cult to believe that he would not know that Fhe language he I i I ,* ‘1 -7- actually used was not apposite to convey the meaning he now says he had. Finally, we would comment that, contrary to the argument of the Union; this decision does more then delay the hearing of the issue raised by the qrievor. We can accept the position that Ur. Uarino’s grievance is one of a continuing nature and so can eventually be heard. It will not be the same case, however. as would arise from his original grievance. Clearly, if successful, Mr. Harino’s claim for wages will be effected. Consquently, we hold that the instant grievance has been withdrawn and we have no jurisdiction to deal with it. DATED et Lynden, Ontario, this 13th day of .“\ May I 1985. E.E.Palmer, Q-C. Vice Chairman R. L--- . c R. RuSSel,~ Member L.D. Foreman Member