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HomeMy WebLinkAbout1990-1206.Hardeman et al.91-04-09EMPLOVk?DELA COURONNE CROWNEMPLO”EE.9 DE L’ONTARlO CQMMISSION DE T REGLEMENT DES GRIEFS 1206/90, 1207/90, 1208//90, 1209/90, 1210/90, 1211/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLBCTIVB BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWBEN OPSEU (Hardeman et al) - and - Grievor The Crown in Right o,f Ontario (Ministry of Community & Social Services) BEFORE: R. Verity D. Wintermute A. G. Stapleton Vice-Chairperson Member Member FOR THE GRIEVOR B. Rutherford Counsel Gowling, Strathy & Henderson Barristers h Solicitors FOR THE .EMPLOYNR C. Kay-Aggio Counsel Hicks Morley Hamilton Stewart & Storie Barristers & Solicitors HEARING : February 15, 1991 2 INTERIM DECISION ------------_--- --_~~~---____--- In this matter there are six identical grievances filed by employees in various classifications who work on Ward .8--C at the Oxford Regional Centre. All grievances, filed in May 1990, allege a violation of Article 18.1 of the collective agreement in management's failure to make reasonable provisions for employee health and safety. At the outset of the hearing, Counsel for the Union requested directions on two preliminary matters: 1) a request for consolidation of the six grievances with a number of additional grievances relating to employee:; at the Centre, and 2) the enforcement of a summons issued by the U:nion for production of documents. Some background information may be necessary to properly understand the preliminary matters. Oxford Regional Centre is a large facility for the developmentally handicapped located at w00ast0Ok. In recent years there has been a trend to return a large number of residents to life in the general community. The Union maintains that this trend has resulted in a "downsizing" of Oxford Regional Centre, beginning in 1987, which has lead to staffing concerns that impact upon employee health and safety. In particular, the Union alleges that its concerns relate to three areas at the Oxford Regional Centre; namely two "continuing care" 3 units (Wards 8-C and l-East) and the dietary unit. The parties agree that there are three issues: (1) The adequacy of staff scheduled on shifts. (2) The adequacy of staff training. (3) The appropriateness of the use ,of relief staff. In the first preliminary matter, the Union seeks to consolidate the six grievances concerning employees assigned to Ward 8-C with a number of additional grievances relating to employees assigned to Ward l-East together with a Union grievance involving Ward 8-C, Ward l-East and the Dietary Unit. The Union maintains that all grievances involve essentially the same facts and the.same law. The panel was referred to Rule 6 of the Rules of Civil Procedure entitled "Consolidation Or Hearing Together": WHERE ORDER MAY BE MADE 6.01 (1) Where two or more proceedings are pending in the court and it appears to the court'that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the courtmay order that, (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (ii stayed until after the determination of any 4 other of them, or (ii) asserted by way of counterclaim in anv other of them. Lam.0. Reg. 711/89., s. 1 (2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and. abridge the time for placing an action on the: trial list. I In support 0f.a consolidation order, the Union cited CUPE 1750 (Diane Mesh) and Worker's Compensation Board, GSB 284/85 (Draper); and OPSEU (Clerks 3 General) and Ministrv of Health, GSB 240/84 (Verity). 'The Employer maintains that the hearing should be confined to the grievances on Ward 8-C with the Ruth Dirse grievance (GSB 1969/89) being consolidated with the six grievances. The Employer's position is to the effect that the Union's case at its best involves employees assigned to Ward 8-C and a decision should be issued in that matter which might resolve the remaining grievances.' Under s.ZO(B) of the Crown Emolovees Collective Barsaininq ACt, the Board has the statutory authority to determine "its own practice and procedure" with the proviso that the parties be given full opportunity to present evidence and make submissions. By memorandum dated April 11, 1986, GSB Chairman Shime issued a Direction which, for all intents and. purposes, adopted the provisions of Rule 6.01. 5 After carefully considering the submissions, the Board is persuaded that there is reason to avoid a multiplicity of proceedings before different panels of the Board and to accommodate some form of 'expeditious procedure. Essentially, there are three groups of grievances - seven individual grievances (after consolidating the Dirse grievance) involving health and safety concerns by employees assigned to Ward 8-C, a number of additional grievances pertaining to employees assigned to Ward l-East (GSB 1965/90, 2006/89, 1966/89, and 1971/89) together with a union grievance involving Wards 8-C, l-East and the dietary unit (GSB 650/90). All three groups of grievances have questions of law and fact in common whereby the. relief claimed directly arises from management's decision in 1987 to "downsize" the Oxford Regional Centre. It would appear to us that the grievances filed are of a continuing nature and arise, at least to some degree, as a result of the "downsizing" of the facility in 1987. Accordingly, we would direct that all grievances shall be heard at the same time by one panel of the board. The Registrar shall be requested to contact the parties to arrange for a number of hearing dates. The second preliminary matter arises from the Employer's objection to a request for production of documents as a result of a subpoena,issued by the Union on September 21, 1990. The summons, as amended at the hearing, reads as follows: 1) 2) 3) 4) 5) 6) 7) a) 9) 10) 11) I 12) Any documents indicating the number of residents of the Oxford Regional Centre for three years prior to the date of the grievances, including a h'reakdown per ward. Copies of schedule reports including the daily roster of projected and realized staff levels and over-time records for the'three years prior to the date of the grievances, including a breakdown per ward. Any documents or statistics indicating the amount of sick time claimed by Oxford Regional Centre staff for the three years prior to the date of the grievances, including the monthly WCB statistics, and statistics showing those persons on LTIP and the reasons therefor. Copies of all pertaining to incidents involving altercations between residents or between residents and Oxford Regional Centre staff for the three years prior to the date of the grievances. All accident and injury reports for the Oxford Regional Centre during the three years prior to the date of the grievances. Any documents indicating the number of resignations and hirings of Oxford Regional Centre staff for the three years prior to the date of the grievances by classification with an indication of whether they are full or part-time. Any documents indicating the staffing levels of Oxford Regional Centre staff to client ratio (including only the appropriate classifications and the identification thereof) for the Oxford Regional Centre, for the 'three year period prior to the date of the grievances. The manual of standards and procedures for Oxford Regional Centre. Any documents relating to the downsizing of Oxford Regional Centre: including an analysis of the wards that have been or will be closed, the staff that have been or will be relocated, and/or declared surplus. Floor plan of Oxford Regional Centre. Any documents, letters or memoranda pertaining to the type and number of residents to be housed at Oxford Regional Centre and the staffing ratios to be maintained. Any documents indicating the number of hours the staff were required to work per day per ward and the number of 7 staff so required for the period of three years prior to the grievances. 13) Nurse II general position specification. 14) Training Records of all employees during the past three .years. Essentially, the Employer's objections are three-fold: (1) The time period is too long; (2) The request for production is too broadly framed; (3) The summons is in the nature of a fishing trip. The Employer contends that the alleged cause of the grievances, namely. "downsizing", is irrelevant and that the issue is whether or not there is a health and safety problem at the centre at the time the various grievances were filed. The Union submitted that all grievances involve staffing following the downsizing and that the staffing issues are in the nature of continuing grievances. Ms. Rutherford argued that the Employer's actions were taken in the absence of any consultation with the Union and has adversely affected its ability to co-operate with the Employer as required in the second sentence of Article \ 18.1. The'parties referred the panel to the following authorities: (, OPSEU Dowhe 1562188, 1567/88 (Kirkwood); OPSEU (Miller) and Ministrv of 8 Correctional Services, 1535/88 (Gorsky); and OPSEU (Hvland) and I Ministrv of Correctional SerViCes, 1062/89 (Ratushny). On the strength of the authorities submitted, there is no dispute that the appropriate test for production of documents under a summons in the nature of a subpoena duces tecum, is whether or not the documents are "arguably relevant". In making that determination, the cases support the principle that relevance should be broadly construed on the clear understanding that an order for production will not preclude argument as to admissibility at the time of the hearing. It would appear to us that these grievances, all of which involve staffing concerns which all'egedly impact upon on health and safety, are of a continuing nature. Accordingly, all documents required on production should cover the period immediately preceding the downsizing in 1987 until the time of the filing of the grievances in 1990. The request for production of documents shall, however, be restricted to Wards 8-C, l-East and the dietary unit. While it may.be said that the scope of ,the summons is broadly based, we are satisfied that the documentation requested may well be relevant to the preparation and presentation of the various grievances. Therefore, we place no restriction on the request for I production of documents except as stated above. The Employer shall 9 be given two months from the date of this Interim Decision to produce the documents. This panel is not seized of the merits of these grievances. Following production, the parties shall contact the Registrar to obtain a series of hearing dates before a separately constituted Panel. DATED at Brantford, Ontario, this9tb _ day of April, 1991.