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Home My WebLink About1985-1546.Union.86-07-31IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between Before: For the Griever: For the Employer: Hearing: OPSEU (Union Grievance) - and - The Crown in Right of Ontario (Management Board of Cabinet) G.J. Brandt 1. Freedman G. Peckham M.I. Rotman Counse 1 Rotman, Zagdanski Barristers & Solicitors R.B. Irenson Senior Staff Relations Officer Management Board of Cabinet June 4., 1986 Griever Employer Vice-Chairman Member Member ,.:: 2 DECISION ., On January 17.1986 the Union fifed a Union grievance alleging that Ahe Ministries of Government Services and Labour respectively have violated several articles of the Collective Agreement with respect to Working Conditions and Employee Benefits. These violations arise as a result of the improper posting of vacancies for Leasing Officers (MGSJ and Workers Advise&din-Lab), and include contraventions of Article 4 and Article 24, but not exclusively. And further that these actions are contrary to the ,govem&g legislation.” The relief sought is a declaration. The events giving rise tothe grievance are the placing of two advertisements in Topical and Job Mart, two publications of the Civil Service Commission, for positions in the Public Service. The May 10, 1985 issue of Topical amtalned an advertisement for the position of Leasing Officer in the’ Ministry of Government Services and the August 16,1985 issue of Job Mart contained an advertisement for the position of Workers Adviser in the Ministry of Labour. On November 28,198s Mr. Mike Noon, a Chief Steward of Local 436 wrote to Mr. Mike Campbell, an OPSEU Regional Representative complaining of the fact that, when he had applied for one of the Workers Adviser jobs, he 18s informed that they were all to be contract jobs. In his letter he suggested that the Ministry of Labout had violated the Public Service Act and regulations in hiring contract employees for jobs that were to be a permanent part of the service and urged Mr. Campbell to pursue a Union :. ,. grievance protesting this action, He also apparently filed his own individual grievance which is. as we understand it. as yet unresofved. On December 3,1985 Mr. Campbell referred Noon’s letter on to Lillian Stevens, the Head of the Grievance Department, asking that either a Union Grievance or a~complaint to the Public Service Labour Relations Tribunal be filed. Ma Stevena passed the matter on to Mr. D. Stewart, a job security grievance officer, who investigated the matter and, in due course, fifed the Union Grievance which is before the Roard. The Employer takes the position that the grievance is untimely and that the Roard has no jursidiction to deal with it. For reasons which follow the Roard agrees with the, submissions of the Employer and has come to the txmclusion that the grievance is out aC time. The provisions of the collective agreement dealing with the filing of Union Grievances are found in Articles 27.8.1 and 27.8.2 which provide as follows: 27.8.1 Where any difference between the Employer and.the Union arises from the interpretation, appfication, administration or alleged contraventionof the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination d the circumstancP3 giving rise to the grievance. 27.8.2 Where the difference between the Employer and the Union involves more than one ! 1) ministry,‘the Union shall be entitled to file a grievance with the Executive Director of Staff Relations provided it does so within sixty (60) days following the occurrence or origination f d the circumstrnces givii rise to the grievance. The central issue in this case is that of defining the time when the clock starts running. In each d Articles 27.8.1 and 27.8.2 that is expressed respectively as 30 days or 60 days “following the occurrence or the origination d the circumstances giving rise to the grievance”. The Employer submits that the relevant event is the posting of the positions in question. Thus, taking the most charitable view d the Union’s case, the clock started 4 runnit@ on August 16,1985 and, taking into account week-ends and statutary holidays which are not to be counted for the purpose d calculating the time limits, the grievance was filed 1 dS days foffowing the occurrence or crigiiation d the circumstances givii rise to the grievance”. well in excess d either the 30 day or 60 day time period. The position d the Union is that the use d the disjunctive “or” between “occurrence” and “origination of the circumstances” sussests that a different interpretation should be given to each fmrt of the disjunctive and that, while ‘occurrence” may refer to the posting of the job, ‘origination d the circumstan&?s” should be taken as the origination of the circumstances that made the Union aware that a breach d the collective agreement had possibly taken place. 11 was argued that, on this basis, the si@ficant event is the sending of the letter from Campbell to Stevens on December 3, 1985. which occurred well within the 60 day period allowed where the dispute concerns more than one Ministry and, it was submitted, even fell wlthin the 30 day period allowed under Article 27.8.1. Even accepting the Union’s position as to when the clock should start, if the grievance is seen as falling under 27.8.1 it is clearly out of time. Again. aliowing for week-ends and statutory holidays, the period between December 3,1985 and January 17,1986 is 32 days and therefore outside the 30 day limit. For the purposes d this case; however, we are prepared to treat the grievance as concerning a dispute invofving more than one Ministry and that the appropriate time period is 60 days. On its face the grievance alleges that two Ministries have adopted practices which are allaed to violate the agreement. However; even on the assumntion that the relevant time ueriod is 60 days the Union cannot succeed. We agree with the submissions of the -. Employer that the time from which the count must begin is the time when the Employer took the action complained of and not the time that the Union became aware of the action and the possibility of a violation. In this regard it is significant to note that elsewhere in the same article the parties have specifically provided that, in respect of individual grievances, the time for filing is within 20 days of ‘first becoming aware of the complaint” (See Article 27.2.1 I. Thus, the question of knowledge.or awareness of a violation as a basis for determining when the time for fii begins has been specifically addressed by the parties. Had it been the intention of the parties to make similar provision in respect of Union grievances they could have easily done so by adopting that language in Articles 27.8.1 and 27.8.2. The fact that they did not so do persuades us that knowledge or awareness of the violation is not the appropriate basis on which to assess the beginning of the time period. ,We are conscious of the fact that with a Union as large as this one there may be practical difficulties associated with complying with Ume limits. However, that circumstance has already been recognized by the parties in that the time period for filing Union grievances is longer than that for individual grievances. Whether 30 or 60 days is adequate is not. of course, a matter on which this Board can or should presume to judge. Thus, we conclude that the grievance is out d time in that it has not been brought wlthin 60 days following August 16,198s . The question which remains is whether, notwithstanding that, the Etoard can relieve against that failure of the Union to grieve in time. Article 27.11 of the collective agreement provides tbat ‘where a grievance is not &icessed wlthln the time allowed orhas not been processed by the employee ~ within the time prescribed it shall be deemed .’ i_ &. 6 to have been withdrawn’ (Emphasis added). The )urisprudence of this Board . isclearthatthe timelimitsare mandalory.~317/82 (Swan),Goheen 32 l/82 (Vdrity). I&R 377/83 o&iffe), OffEu 67618 I (Teptitsky) and 742/83 (KeMedy)) Mmover, there is . . no provision in the Crown Employees CuBective Bargain@ Act comparable to s. 44(6) of the Labour Relations Act’which would alloar the Board to grant relief where there are reasonable grounds for an extensionand where no substantial prejudice would be suffered. Howe&, the L&m submits that a combined reading af sections 55, 20(8) and 19( 1) of the Cruwn EmDlDvees !&!&ctive l&@&k&& is sufficient to give the Board a discretion to relieve against a failure to meet U&mandatory time limits. Gcticm 55 provides that ,No proceedings under this A> are lavalid by reasm of any defect of form OT any technical irregularity and no such proceedings shah be quashed or sut aside if no substantial wrong or miscarriage of justice has occurred. Section 20(8) permits the Board to determine its own procedure and Section 19( 1) is the general provision under which disputes can be taken to theBoardfora"fiaafdecision". The argument based cm section 55 of theMhas been exhaustively rsviewed bythisBoardin (supra) and the Board there concluded that this prcrvision of the & did not give any jurisdiction to the Board to relieve against a faiiure to comply with mandatorytime limits. With respect, we concur with that view.. Counsel did not elaborate on his submissions b&d on Sections 20(a) and I9( I ). In &ny event we do not find them to afford a sufficient basis for exercising any discretion to relieve against what is a clear failure by the , .’ 7 Union to comply with the provisions of the agteetient respeCtin the filing of this gf ievank Consequently. the grievance is ~dismissed as being out of time. The Board has no jurisdiction to hear it. Dated at London. Ontario, this 31st day of July. 1986. G. Peckham