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HomeMy WebLinkAbout1984-1350.Union.85-08-27IN THE MATTER OF AN ARBITRATION Under, THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor - and - The Crowr'in Right of Ontario ~'-" (Ministry of Community & Social Services) Before: For the Grievor: 'For the Employer: Hearing: Employer R. J. Roberts Vice Chairman L. Robinson Member F. T. Collict Member D. I. Bloom Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors R. B. Itenson Senior Staff Relations Officer Staff Relations Branch Civil Service Commission March 21, 1985 . 2. INTERM DECISION At the outset of the hearin? in this ratter, the Ministry raised a preliminary object tc jurisdiction. The objection was based upon two grounds: the first.was that the Frievance was untimely because it was filed after the expiration of 30 days "followin? the occurrence or origination o f then circumstances civinc ,- rise to the grievance", within the meanin? of Article 27.8.1 of the Collective Agreement; the second grrour&was that .the present grievance was barred by the Unlon's withdrawal of an earlier qrie- Vance raisin? the same:issue. For reasons which follow, both of. these cuesticns are resolved against the'Ministry, and,hence, the Prelimina~ objection must be dismissed. -'-At the hearin?, the parties called.one witness each to testify to the circumstances touchins the questions raised in the preliminary objection. Mr. R. Marsden,, the Area Administrator, Human Resources, for the Southeast Region of the Ministry, testified that in April, 1984, the President of the Local Union,, Mr. B. Casey, advised him~that the Union believed that there was a violation of the Collective Ageement, in that the Ministry was nenotiatinp directly with one of its meders and not the Union. Th:s alleged violation involved a compressed work week which had been established for a contract employee, Ms. Toni Senoff. Under this compressed work week schedule, Ms. Semoff.was workin? 12 hours per day on some days and 8 hours per day on others. The usual work week for full -time staff was 9 hours ner day, 5 days per week. Mr. -, i - . . . . . . I -_.^I ~,_c,._L .:- --*-hlichi-c thie cc-mnressed 3. work week for Ms. Semoff, alone, the Ministry had violated the recognition clause of the Collective Agreement, Article 1.1, which established the Union as the exclusive collective bargaining agent for all public servants falling within the applicable definition of the Crown Employees Collective Eargaining Act. Fr . Farsden stated that in response to this advice from Mr. Casey, he performed an investigation. This ,.resulted in a finding, that !!s. Semoff had worked more than .40 hours in one week pursuant to this compressed work week's schedule, and he arranged for her to .- be paid overtime for the hours that she put in which exceeded 40 hours per week. Kr. Marsden, however, did not conclude that in establishing a compressed work week for KS. Semoff, there had been any violation of Article 1.1. He took the position that it was.within the exclusive rights of the Health Services Co-ordinator, Ms. Gerry Gerrow, to establish Ms. Semoff's hours of work. On April 6, 1984, a Union grievance was filed. ,,This Frievance claimed "that the Management of.Durham Centre is violating Article 1 of the Collective Agreement, Article 7.6, Article 35 and Addendum to the Collective Agreement." The "settlement required" in- cluded a claim for "immediate resumption of B-hour work shifts for ail unciassified nurses" and "oVertime payments for any nurses pre- viously scheduled to 12-hour shifts." According to Fr. !?arsden, there followed a Union-kanagement .nen+i-,c +-n r?i~?,,~s t-he arievance. In attendance were b!r. Marsden, 4. Representative for the Union, Mr. B. Casey, and Kr. F. Purificati, the &pu~ Minister's designate. At this meetinc, there was discussion of payment of overtime to Ms. Semoff for all hours worked in excess of 8 hours per day. Management,denied the grievance, stating that the Ministry had already arranged for payment of overtime to Ms..~ Semoff for any hours that she,had worked in excess of 40 hours per week. Thereafter, the matter was referred to the Grievance Settlement Board. On September 5, 1964, the matter went to mediation. Present at this mediation session were Vs. Joanne Yiko, a Staff Grievance Officer for the Union, Ms. L. Rock, a Representative from the Local, -and Ms. S. Stephen, who represented the Yeinistry. According to I-3. +!iko, who"'iias the only witness with direct knowledge of what occurred at this mediation, there were two topics of discussion. One topic centered upon some technical irregularities in the grievance. The other dealt with the m.erits of the issue of overtime for unclassified nurses who worked more than 8 hours in one day. The r.ecommendation of the mediator was that this latter issue should be referred by the parties to the Local Employee Relations Committee (ERC) for potential resolution. ES. Viko stated that she and Ms. Rock agreed with this recommendation, but it never was agreed that the merits of the issue were resolved. Ms. Kiko added that KS. Stephen for the Finistry was well aware that the issue was not finished. 5. Nevertheless, at the conclusion of the, meetinc, the Union representatives drafted and signed the following letter: 405/84 and Re: 430/84 OPSEU ,(Union Grievance) and,Ministry of Community and Social Services The Union hereby agrees to withdraw the captioned Srievance on the recommendations of the mediator. On behalf.bf OPSEU Lois Rock local 332 Joanne Mike Witnessed at Toronto, Ontario, this 5th day of September, 1984, by H. J. Waisglass As can be seen, the document was witnessed by the Mediator, Mr. H. J. VJaisglass. Ms. Miko stressed in her testimony that the forecoin? memorandum in which the Union aFreed to'withdraw the gievance, did not reflect that the cJrievance was settled. She stated that the grievance was withdrawn because there were technical irregularities in it. It did not co to what.the real issue was. Noreover, it was we<& understood between the parties that they both would attempt to reach some kind of a resolution at the next meetinq of the E.R.C. The E.R.C. meeting was held on October 30, 1984. F?r . Marsden testified that the discussion was not fruitful. He stated t that management told the Union that there was no way +he matter was i 6. -demanded that if Ms. Semoff was to work more than 8 hours on a given shift, she was to be paid overtime. Management, according to Mr. Marsden, flatly refused to do SO. Thereafter, Management continued to set a compressed work week for Ms. Semoff, which required~her to work two 12-hour shifts per week, and two 8-hours shifts per week for a total of.40 hours. Finally, on December 11, 1984, the Union filed the grievance leading to the present proceeding. The grievance stated that "Durham Regional Center has violdted Article 3.3 by not paying overtime to certain unclassified employees." As a settlement; the grievance claimed~ inter e, "proper payment in accordance with Article 3.3 and all monies owing to the affected employees retroactive to the ..> _i . . . . date of the shift change." Turning first to the question whether this second grievance was untimely, within the meaning of the Collective Agreement, it must be concluded that, at least for purposes other than retroactivity, the grievance was not filed out,of time. Article 27.8.1 of the' J Collective Agreement, which governs the filing of Union grievance&, reads as follows: Where any difference between the Employer land the Vnion arises from the interpretation, application, administration br alleaed contravention of the Agreement, the Unicn shall be entitled to file a grievance at the. second state of the grievance procedure provided it does so.within thirty (30) days following the occurrence or origination of the circum- stances giving rise to.the grievance. 7. As can be seen, this provision requires a Union grievance to be filed "within thirty (30) dalls following the occurrence or oricination, of the circumstances giving rise to the grievance" (emphasis supplied). Essentially, it was the position of the Ministry that the above-puoted wording meant that, regardless of the nature of the alleged breach of the Collective Agreement, the Union was reeuired to file its gr'ieva,nce within 30 days of the moment the breach first began. In particular, it was submitted, the use of the word "origination" tended to-indicate that even in the case of a continuing violation of the Collective Agreement, a Union grievance had to be filed within, 30 days.of the time the violation commenced. On this - view of the Article, it was submitted that the grievance was at. least 6 months-lout of time because the "occarion or origination" of the circumstances giving rise to the grievance-took place prior to May, 1984, when Ms. Semoff first commenced her compres~sed work week schedule. It must be .concluded, however, that it would take afar more orerise language than reference to "occasion or. origination" to convince the Board that the parties intended in Article 27.e.l to reverse the usual rule with respect to the grievance of continuing violations of a Collective agreement. As was stated in Re United Steelworks and Trianc?le and C'onduit & Cable C'anada (1968) Ltd.' (1978), 21 L.A.C. 333 (Weiler), that rule is that "The company's continuing breach (if any) entitles the union to grieve for each I-,* -,..-qm".,-,n+n T? at ". 333. The only . 8. retroactively in such circumstances may be limited by the time limits". Brown and Beatty, Canadian Labour Arbitration, at p. 96. l?ere, the subject matter of the grievance undoubtedly rested upon an allegation that the Company was committing a continuing violation of the Collective Agreement by failinc to pay KS. Semoff overtime for the days .in which she worked in excess of 8 hours per shift. The evidence disclosed that from I?ay, 1984, onward, MS. Semoff continued to work at least two 12-hour shifts per week without receiving any avertime pay. Each such 12-hour shift con- stituted a fresh basis for an arhitrable allegation of violation of the Collective Ageement. Each constituted a fresh "occurrence or origination" qiviny rise to a right to grieve in the Union within the meanino of Article 27.8.1. In this sense, the 30-day time-limit solely operates as a potential restriction upon the raantum of any relief or damaces awarded retroactively. Turning to the second issue; it cannot be concluded that I the withdrawal of the first grievance acted as a bar to consideration of the grievance at hand. It has been well settled that the with- dr$wal of a grievance is not necessarily fatal to a later Grievance raising the identical issue. This was recognized by the Board in Re Snider and Ministry of Transoortation and Communications (1984), G.S.B. No. 509/83 (Brandt), which 'stated, in pertinent part: A review of a number of cases would appear to indicate a determination by arbitrators to require more than conduct from which a mere inference can be drawn. Thus, in terms ._...._ 9. withdrawal or aba~ndonment of a grievance, without more, is not sufficient to prevent a subsequent grievance from being filed.(See Re County of Paintearth (1973) 3 L.A.C. (2d) 429 (Newman); Re Gibraltar Xines (1975) 8 L.A.C. (2d) 22.5 (Larson); Re City of London (1976) 13 L.A.C. (2) 213 (Hinnegan)). These results are supportable on .either the doctrine Of res judicata or Promissory estoppel. The act of s;ithdrabral or abandonment of a grievance is not a representation which is sufficiently unambiguous to create an estoopel; nor does it permit any conclusion that the parties are prepared to treat the matter as having been resolved or settled in such a way as to bind them in the future. . ..g. pp. 9-10. To act as a bar, the act of withdrawal or abandonment must constitute an unambiguous representation that the matter has been resolved or settled in a binding fashion. In the'present case, all of the evidence indicated that ..__. when the first grievance was withdrawn, both parties understood that nothing had been resolved in a binding fashion: ,In fact, the matter was to be referred for possible resolution to the E.R.C. Committee. Moreover, according to the testimony of P-r. Marsden, the matter was raised and discussed in the E.R.C. meeting of October 30, 1984 and this discussion according to his testimony, left little doubt that the matter was treated by both parties as unresolved. It was,the fact that the matter remained unresolved at the conclusion of~this meeting which ultimately led the Union to file the second,grievance. In the face of this evidence, .it would be imoossible to conclude that either party regarded the withdrawal .of the first grievance at the end of the mediation session to be an unambiguous representation that a binding settlement had been achieved. The issue was still _.. 1 10. The preliminary objection is dismissed. DATED at London, Ontario, this 27th day of August, .- Vice-Chaimai: T n-ki --on, Member