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HomeMy WebLinkAbout1986-1528.Francis.86-07-11IN TBE MATTER OF AN ARBITRATION UNDER TEE CROilN EHPMYBES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETUBEN:.;, AhlAL&WTED TRANSIT UNION, LOCAL 1587 (Ronald Francis) -and- 'THE CRONN INRIGBT OF ONTARIO fToronto Area Transit Operating Authority) Grievor Employer BEFORE: G. J. Brandt Vice-Chairman I. J. Tho&on Nemher L. R. Turr'le. Hy+$S FOR TliF. GRIEVOR: c. B. iiestJnsn Counsel westman, Voll &.Elstner FOR lX!,FXPLOYER: E. T. McDermott Counsel Osler,~Eoskin & lIarcourt REARING: March 30, 1987. 2 DECISION ,. The grievor, Ronald Francis. was employed as a bus driver for GO Transit. He wasp aischarged froth his employment effective January 7. 1986. The letter of dtscharge, dated~January 9. 1986, recites that “between September I985 and December 1985 on numerous occasions you sold irom various bus tic&et registers tickerr valued in. excess of f I.500 2s of this date, and witheld the revenue t’pr )YxJr own personal use. You also failed to follow cash in procedures as outlined in your Driver’s Manual.” Following hl!: discharge the grievor began~to.make Various attempts at kxring reinstatement in employment which have led him on a merry goose chase in and around the vari&s nrganizations and institutions WhiCh .’ regulate labour relations in the Ontarin public sector. Unfortunately for him hu journey is not yet over.’ He filed a grievance,against~his.discharge on January 13, ‘1986. By ., letter dated Januai-y 14. I986 he yas informed by Mr. A. F. Leach, Managing Director of GO Transit. that h!s grie’vance was denied and that, in view of the “nver!+elming evidence and certain admissions that he had made as to misappropriatxm oi company f’unds. “we see no purpose being served in holding a second stage grievance hearing”. The grievor was told that he could proceed to arbitratinn if’ he wished. On January 22, I986 a meeting was heid between management and the union at which time the By letter dated February J 14, 19Sfi Mr. R. J Desjardins. Director, Personnel, .4udit anh Security of GO Transit coniirmed IO Mr. M. Carter. the President and Business Agent of Local I587 of the Union. the understanding that the Union .would not be filing a grievance with the Grievance Settlement Board and that the matter was closed. That letter also stated that Mr. Leach would be sending his letter discharging the grievor to the Lletro Police requesting them to consider the mltter. In due course criminal charges were laid against the grievor. Sometime in late February. 1956 the L:nion asked management to consider making representations~to the police to have the charges against the grievor withdrawn. That was agreed to and the criminal proceedings came On for trial on June 2. 1986. Mr. S. Horvath. .Security Manager for GO Transit. .- 3 informed the court that after discussiorxwith the Crown Attorney GO Transit ._ did not wish to proceed with the matter. The charges were withdrawn. Mr.~Colin.Westman. the grievor’s solicitor on the criminal matter, then contacted GO Transit asking it to re-instate the grievor. They de,clined. On August i2.’ 1986 %Ir. Westman. on behaff of the grievor. filed a complaint against the Cnion under section jfl of the Crown Employees Collective Bargaining .4ct alleging that the L’nion had acted ,in a manner that was 1 jrbitrary. discriminatory and in bad faith in that the Union did agree to a dismiscai for cause with Go-Transit contrary to’the instructions and/or interests’of Ronald Francis.” On September 9. 1986 notice of that compiaint xx served’on both the Cnion and on GO Transit and the parties were informed that a hearing into the complaint would be held on January 19, 1987 before the Public Service Labour Relations Tribunal. It the hearing no determination was made by the Tribunal on the ~. merits of the complaint. Rather the matter was adjourned sine die in order to permit the grievor to attempt to bring this ~proceedingbefore the Grievance Settlement Board. .<lthough !.Ir. Besjardins was present at the hearing and participated in these discussions, GO Transit was not : 4 represented by.counseL On January 19. 1987 Mr. Westman made. .;- application to have a hearing before the Grievance Settlement Board under section 19 of the Crown Em olovees Collective Bargaining Act. On February 9. 1987 the Registrar of the Grieirince Settlement Board notiried GO Transit that the Board would hear the matter on %arch .$I. 1987. On March 3. . 1987 the solicitor for GO Transit advised the Registrar and Mr. Westman that GO Transit intended to take the position that the Board lacked jurisdiction to hear the matter. At the hearing before the Board the grievor ~8s repr~esent6d by Mr Wesrman. No one appeared on behalf of the Union and the Board was informed by Mr. Westman that, to the best of his knowledge, the Union had ‘u’ashed its hands” of the matter.,~ ‘- Counsel for GO Transit made a number of submissions with,respect to the jurisdiction of the Board to hear the matter. A number of these reiated to the issue as to whether or not the grievor was. ate the ~time’af his discharge. a probationary employee in which case,, by reason of various provisions in the &fIective agreem’ent. he would be disentitied to grieve his discharge. In view of our conclusions on certain other issues in the case it is unnecessary to de31 with that matters The jurisdictional question relates to the interrelationship~between the provisions of the collective agreement and Sections J 8 and 19 of the Crown Employees Collective Bargaining .Act. The effect of ihese sections of the Act - on the resolution of disputes under the collective agreement has been been ~: ~.’ the subject of discussion and comment by the Board on a number of occasions. ., Section l&c2 1. provides that “in guUaKU&under a collective agree-an employee claiming...that he has ’ s .._ been . ..dismissed...without just cause may process such matter in accordances -, with the grievance procedure ,ptovided in the collective agreement. and failing final determination under Such procedure, the matter may be -99 It is now well established that this SeCtiOn gives to employees a statutory right to grieve in respect of- the’items listed in .. Section 18!21 one of which is the matter of discharge. The issue which arises here, and which has arisen in other cases before the Board, is the extent to ’ which that statutory right can be compromised by the provisions of a collective agreement and by the administration of those provisions by the union. The provisions of the cohective agreement between these parties establish clearly that the time limits for filing a grievance are mandatory. Article 4.3!2) deals with Step Two of the grievance’ prkedure wherein a grievance which is not resolved at Step One may.be submitted.io the Managing Director. Here the grievor appears to have bypassed Step One and submitted his grievance directly to the SIanaging Director. Mr. Leach. the Vanaging Director. indicated that no purpose~~would be-served by holding a Step Two hexing and denied the grievance. Article 4.3(41 provides that if the grievor is not satisfied with the decision of the Managing Director, “the.grievor may applyto the Grievance Settlement.Board” for arbitration of the grievance within 20 calendar days...” That article concludes as follows: If no ritten reauest for arbttI&xt& .-~’ .- w . . . ~.. submitted Within~e~Deriods. the grievance s,W be deemed to have been abandoned”. Article 4.6 provides that where a grievance is not processed within the time allowed or has not been processed by the Employer or the Union 6 .within the time prescribed, itsball barred.” Article 4.8 provides that no matter may be submitted for arbitration to the Grievance Settlement Board until the Grievance Procedure by this agreement has been exhausted and Article 4.9 provides that the Grievance Settlement Board shall not have jursidicridn to alter or amend the provisions of rhe agreement. ’ Thus. on the strength of this language, there can be little doubt that the parties to the collective agreement have made it abundantly Clear that compliance with the time limits under the agreement is mandatory and that failure to so comply will result in the grievance being treated as abandoned and inarbitrable. The question before us concerns the impact of Section 18(t) on these provisions. Counsel for GC Transit acknowledged that S: 18(Z) gave a grievor an independent statutory right to process a grievance independently of the’ . . I’nion. However. it was subktted~thal this right to p&cesS a grievancewas. by the language of the section, q&fied to the’extent that it had to be ,~.~. processed “in accordance with the grievance procedure provided”. Thus, since the provisions ,oT the agreement are mandatory and since the grievor here did not refer the matter to the Grievance Settlement soard until ;Ipprosimately one year from the date ihat his original grievance was denied, ” he had not processed the grievance “in accordance with the gr+mze procedure” as required by the Act. - Secondly. reference was made to that portion of Section ,18(Z) of the ‘.::. .- Actwhich provides that “failing final determination under such procedure”. the matter may be processed in accordance with the, procedure for final- determination applicable under section 19.” It was submitted that the provisions of the agreement providing that grievances which have not been 7 processed.in accordance with the grievance procedure shaII be deemed to be withdrawn or abandoned $ofi#utes the ‘Tinal deteqination” contemplated tq Section 18(21: Thus, the &ndition which has to be met in drder to carry the matter on to the Grievance Sett!ement Board, viz. a Tailure to determine.:+;..: ..G .~ _“. the matter linally under the grievance procedure. has not. id COUnSei’S submission. been met. ..A Counsel acknowledged-that the position which he was taking was contrary to that which had, heen adopted by the Board in &&z an early decision’of a panel chaired by Dean Pritchard [GSB 45/78). fiOWeVer. it Was argued that the Board should recxsider the positian which it took in &Z&lg and reach a different conclusion than was reached there. SpeciIictily it was suggested that ihe reasoning in,K&ing was based on the view that since, by reason of Section 7, of the Act. an em@Oyee organization is not entitled to bargain on matters rela!ed to, inter al& discipline or dismissal. Seciion’ 1N2) protects the independent rights of employees to go to arhilratjon over such matters. However, it U?~S argued that since &,&E& ~-as decided the Public Service Labour Relations Tribunal. a-hen dealing with issues as ~to whether or not a subject is a proper one for collective bargaining under Section 40!21 or the ,\ct. has developed a policy u’herein, provided no one make: application under that section for a decision, the parties qe rree to bargain over whatever rhey wish. (&&BQ 77184). It was noted that in this case the parties had specifically bargained a just clause into their collective agreement. Thus. it was suggested that One-. of the Underlying concerns which may have motivated the Board in Keelins! was no longer present and that the Board should. on that account, reconsider its position. 8 We fate not persuaded that K&lkshould be reconsidered oti the basis of this argument. We have reviewed the &eci.sioq in that case and are unable to see how it can be said to be grounded in a concern oirei the inability of the employee organiration to bargain cOlleCtiVely Over matters such as discharge and discipline. .~>loreover. this is not the f’irst time that the Board has been asked to .’ reconsider its decision in w. A review of the cases in which k?kg has been discussed is set-out in &g&&Ji xx/S2 ;‘a decision of a panel chaired ., ~. by the current chair man. Counsel~for the Employer in that case mad,e virtually the same argument as US made in this~,case (except for the submissions concerning the poliv of th;‘Tribunal addressed above). The Board had the fof!oaTing to say in connection with the K&rig case. This i!i not the fii occasion that the rislom of gppIinr he0 come under eueck bofom+ii%Boud. In w (28 L&C (Zd) zg9) 8 penal of,lhis Baud vu lnv@ed Lo refuss to follov Q&g. It rppks from the ropoit of the Baud’s d&ion in th8t cus thu counsel ooughc to ma& ossonli&y the wo uguk+f u vu prosMUd to US in the insant caso. that is. to urge the Board to mcognize I di+inction ktvwn 8 provision vhich ban a griovaco outright ad one vhich purports to mguluc hov I &VMCS should be channelled through ogrcod upon pmcedum. mover. the krd , Lvo of ohon mombon &a sat on Cho ponol vhich docidod w sUt8d thU thooo w argumonu had boa considomd by the Baud vhon it vu docidod.. In the rosulI tho Bad. vhilo mcognizing the “strong end meritorious ugumonts Thor un bo audo on., both sides of the issue’ roitomtod iki viov thrt the ‘bettor via’ is thU dopLod in md uphold it. In &Q&c (l/80) the Board. in vhu must bo rogudod ss obitor. vent somoyhu furthor in suggesting titi Kooling bo mconsidomd. It mgudod Clomonu os ‘or~moing oome ho&&ion vith mpoct to the decisien in Kooiing’ rad suggosUd thU ‘....it~yvellk, puticululy in the IighroCcrruln docislensof thr cout?svhich .:i, . :.i * : . . 9 hvo boon iad sine0 holing vu decided, thet thr Baud’s interpfU&aa of -a IS of the Crovn Employeti Coilective Bargaining Act should be reconsidered. The provision in a collective agreement of procedural provisions, such es t@ne limits. governing the oxerclse of a right should not be rood. ve &in& u conuuy to the -tory estahiishment of thet right.’ The concluding batence appears to adopt and accept the vdidity of the distinction advanced by counal in this cu ktveen rbrolute t&s, vhich do conflict vith the !%atutory intent, md negotiated lagulUion of tho pmcesing of a grievance. Apart from these tvo cases it oppeus that the Board hu consiktly follokd &&.g. Indeed the Bond in w stated that it hu ‘been generally accepted u established in the Board’s jurisprudence. Tho most recent case Co vhich vo vep referred ves Re (7741831, the averd in vhich vu issued on April 24. I%>. thrt vu a clawificuion gritiance to vhich the Employer r&ed 8 prem obipction rolatod to timeliness. In d$dssing t&e objection es to t&elinti the Loud st8ted t!W the ‘definitive’ case in pointvaa mvhich tho Board noted vu effikmed iy tho DivisionalCourt (from vhich decision leaye to appeal to the Cat% ofAppe8f v8s denied) md vhich has been folloved by thy Bawd in ‘a number of later sees, among them C)emcnu”. Aput entirely from the merits of the argument concerning the propw interpretation to be placed on section 18(Z) of the Act there is the quartion as to the propriety of .&regarding vhat appears to be rvell established md consistent jurisprudence. In w (Z/77) the Board stated that oao pan01 of tho Boar(should folIov the decisions of o+er pmek of the Board in tho rbance of being porsueded t&t the previou~decision vu manifestly erroneous. Genof8Uy the soIut.ion to Boud “_ ‘- decisions vhich creete difficulti for t&e parties ti to look to tho bargaining tab10 rather than to uk the Ebd itself to reconsider end reverse ite ovn decisions. Nohithstanding this it hu been indicated in w that rhore tho Lruo coacoras tho interpretation of s statute rubor then tho interpretuion of the collective agreement it mey veil be appropriate for the Beud to edopt a more relaxed W&d for 10 d-i v&o&u or not it rho&d ticonsidor iu ova d~clsions~ ~Jn SUCA cuw ~nogothtion batvwn the parties is less effective as a ta@ @Mt Ql consid02Vd decisions of tho Bwrd. Vhu is leh k judicial revik, IegisiUivo amendment or s reconsideration by UIO Board. In Qsmuua the Bad conshbmd judicirlmim md lkgislothe amondmont to be generafly unlikely end unsukehb u e remedial rltefn&e. Coneequontly. the only recourse left is tho Bawd itself. Eovever, hrviag srid that the Board in Clements ves very sens@tivc to the dutgeninvohd in reconaiderstion by the Board of its ovn previous decisions. As tho hard there su&d....7het is not to sly the Board vould vish to encouhge repeated refitigeting of ourdecisions involving statutory interpretation. Nor vouldve vish to seo our viilingness to reconsider such matters construed as it inviution to +courage < mpeeted revers+is of our previousdecisions. R&r, vo are simply suigesting’thUin LLL those cases in vhich tho qthor remedial forums are m&holy le+r ryailablo, th6 Borrd~ may vish to relax urn&hat its standud of wiev in reconsidering previous do@sions.’ A numbor of factors persuade us that ve ought not to enter upon a cohsiderUion of the corroctnes of Ro Keeling/ First, esOindica&d in Clomenu. thoc ue eng md iaeritorious arguments on both sides of the issue kh the Board hes con&ently’In8& s choice LT to vhich vguments to accept. Vere ve to reopen the meuer nov md accopt tho othor argumenta it ti dilkult to see vhu vould prevent 8 furl&or recowideration of our rverd in by another panel.~ Secondly. Keeling is voll established in the Baud’s jurisprud& and pnsumebly hu been relied upon by the parties in their dealings !itJ one another. .The caeea relied upon u celling into question the visdom of Keeling are not strong CUES. Clements oxpress& rerftirms it. Vhilo McGregor suggests that the 5oud in Qemonts oxpmseed some hesitation vith respect to Keeling vo do not, vith mepect, read Clements u going that far. Apert from these caeee the Boerd’s prutico vile mulct tr’Kwlin& hu bwn uniform. II ,i ” We endorse the views set out in Maphsoudi and acCardinly decline to accept the submissions mabe respecting the right of the grievor to process the grievance to the Board. However, the matter dws not end at that. This case is different from m in that here there has ~bekn a settlement of the grievance between rhe Union and the Empoyer. In’&,&& aridTin the other cases reviewed in .CIanhsbudj the Lkion was pressing the grievance on behalf of the grievor’ : before the Board. -. msa*A%z&mWeve ,- ..- dure,. . l: The resolution of this question requires an,analysis of the language of ‘Section 18(2) wherein it is provided that the “matte? may be processed in accordance with the orocedure for final det em secljon The sub mission of counsel for GO Transit is as follows. M then- ., in weis submitted, firstly. that there has been a settlement of Fe matter by the parties and that consequesitfy, the,condition-khich must be : .~ satisfied before a matter cti be referred to the Board, that is,.that the. I~:’ ~- “parties” have beep Q&& lo effect a settlement. is not satisfied. Secondly. it is submiited that, having regard to certain provisions of the collective agreement respecting the job security rights af probationary employees, there cannot, in law. be a “difference” which can be referred to arbitration. Briefly, it is argued that.since the collective agreement states in Article 4.4( 1 I that probationary employees may be released “at the’ sole discretion“ of the Employer and thal’kch release or dismissal “shall be deemed to be for iusC CauSe”. the agreement does not confer on probationer) emplo)‘ees any substantive right the denial of which can be the subject of a “difference” or .“dispute” within the meaning of Section 19. In view of our conclusions on the first ol‘ COUnSel’s stibmissions it IS unnecessary to address this argument. Xor IS this con@uSion inconsistent with the statutory policy reflected in Section I S(Z) by which emplo:‘ces are given a StatUtOry right to grieve independently OF the l!n&. -\I first glance it may app.ear that this statutory right is sigkkanrly com@rcjn!ised’if”it can be.barred kf a prior settlement of rhr grievxxe by the I’nicn. Hoa~e~~r. ir is important no! to lose sight of the fx1 that the ?.c! x 3 %‘hole is an ;?ct ileigned to regulate &ollective - bargaining in the pubhc sector. Primarily the empioymtint interests df public SeCtiJf employees are intttnded to be protected through collective This view is’well established in the private .ceclor a-here L&our %el~tions Boards have frequently stated that a union enjoj-s a discretion trl determine a-hether or not, in ~Jhe interests of the Collectivity. an inUi:‘idual grievance should be settled or withdrawn. .A 13 useful account of the relationship between contract negotiation and contract administration may be found in gavoaiet Ltd. v IWA. ‘119751 2 Can. LRES! 196(~.c. In our opinion similar considerations prevail under the Crown Employees Collecttve Bargaining Act Section j0 of theAct puts‘upon the - employee organtzation ii duty not to “act in a manner that is arbitrary. .disaiminatory or in bad faith in the representation of any of the employees n-hether members of the emplc)‘ee organization or not.” That language directly p?rallekthat found in Section 68 of the Labour Keiations Act. It is through Section jb ol’ the &&!hat the interests ol individual employees are prolected in situations like the one before us where the Union has settled a grievance and thereby prel-ented the Grievance Settlement Board from taking jurisdictian under Section 19 of the Act: - Sect& IS!21 and Section j0 can thus be read as establishing a code of inJi\Mual emplog’ee rights u-ithin a collective bargain!ng regime. SN S ure The \concIudlng clause of Section ISI?! provides that u-here a grievance is not resolved in the grievance procedure it may be processed to the Grievance Settlement Board indance with lhe Drocedure form le Section j0 has the effect of protecting individual employee interests a-here the “settlement”. which has the effect of depriving the Grievance Settlement Board,of jurisdiction, has been improperly secured. In that’event the “settlement” would not, in our opinion. be a settlement of the kind which deprived us of jurisdiction. If sections IS!Z! and 19 were reaa as giving an employee a right to process a grievance to the Cries lnce Settlement Board independently of the Cnion and in the face of~a prior settlement of that grievance wherein it was withdrawn, Section 30 of the .Vct .a’ould be deprived. of application in the very kind of circumstance when il is intended to apply. viz. COntraCt administration. An employee would have no need to seek relief ‘under Section 30 if he could, in ail cases. take his grievance directly to the Grievance Settlement Board. Nor do-we have any jurisdiction to determine whether or not Section 30 has been breached by the Union in this case. That is a matter for the Public Service Labour Relations Tribunal. Section 32 :4) (cl gives the ., Tribunal the,authouriQ to inquire into a complai~nt th;li an employee organization has acted contrary to section j0 and, where it is satisfied that there has been a violation. it “shah determine what, if anything. the employee organization. employer, person~or employee shall do or refrain ., from doing...” It would appear to us Ihat. in view of this language. it would be possible for the Tribunal. should it find a violation of Article 30. to direct as part of its relief that the “settlement” be vacated.in which case the way would be cleared for the grievor to return to this Board for a hearing of his grievance on the merits. Consequently, it is our conclusion that so long as the Current “settlement” is in effect. we do nrlt have jurisdiction to hear the grievance. It is therelore. our order that the matter be adjourned sine die. In the event that the grievor were to successfully pursue his claim before the Tribunal and obtain reli&i‘af a kind which would permit us to take jurisdiction the : matter may be rescheduled for hearing on its merits. DaIed at LOSDOY this 11th day of June j . IVF;: . ...; .’ G j Brandt. Vice’Chair I. J. Thomson Mtkmber L. R. Turtle Member 15