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HomeMy WebLinkAbout2005-3601.Sin.07-07-24 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2005-3601 UNION# OLB001/06 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sin) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. Dissanayake Vice-Chair FOR THE UNION Laurie Kent Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario HEARING July 12, 2007. 2 Decision The grievor, Mr. Lawrence Sin has filed a grievance with respect to a job posting for the position of Product Consultant, for which he had applied unsuccessfully. This preliminary decision deals with a request by the union for an order directing that the employer provide to the union in advance of the hearing of the merits, certain particulars and disclosure. The employer has opposed that request. The union alleges that the employer has contravened article 31.4(b) of the collective agreement in not awarding the posting to the grievor. That provision provides: The Employer agrees to give consideration to the qualifications and ability of casuals for permanent full-time vacancies at the entry level in their geographic area, provided that no permanent part-time employees have applied. Where qualifications and ability are relatively equal, seniority shall be the determining factor. The employer has taken the position that article 31.4.(b) has no application to a job posting for a position of Product Consultant, because that is not an “entry level” position. The employer submits that as a casual employee, the grievor has a right to have his qualifications, ability and seniority considered according to the “relative equality” principle in article 31.4(b) only with respect to vacancies at the entry level. Counsel points out that the entry-level position is the position of Customer Service Representative. The Union’s Submissions The union asserts, inter alia, that the employer is estopped from taking the position that article 31.4(b) does not apply to casual employees competing for product consultant positions, 3 because it has followed a practice of applying that provision in those situations going back many years preceding the filing of the instant grievance, as well as subsequent to its filing date. Counsel filed two decisions of the Board in Re Falcioni, 2308/91 (Kaplan) to demonstrate the existence of such a practice. In that case, the grievor was a casual employee. She grieved that she was denied a permanent full time position of Wine Consultant. Union counsel referred me to the following portion of the decision at p.13, where the Board sets out the submissions of the employer counsel, who had taken the position that the grievance was untimely: In counsel’s submission, the key question in these circumstances was whether the grievor was then aware of a right, in that she was aware of a problem. In this regard, counsel suggested that she was aware of the right, and he referred to the grievor’s evidence in which she testified that she knew that jobs were to go to the most qualified person. The grievor considered herself more qualified because she thought that she had passed the French test and that the incumbent had not. Accordingly, in counsel’s submission, the grievor was aware of a right, and it mattered little whether she was aware or not of the specific provision of the Collective Agreement giving rise to that right. Counsel for the union submitted that through those submissions, the employer had accepted that the grievor in that case, a casual employee, had a substantive right under the collective agreement. She further pointed out that even in the second decision dated June 29, 1993 in Re Falcioni, while the employer made several other arguments, it did not assert that the grievor had no right under the collective agreement to have the relative abilities considered because she was a casual employee applying for the position of wine consultant. Union counsel’s position was that the Wine Consultant position was essentially the same as the Product Consultant position. Counsel submitted that the foregoing demonstrates that the employer had conducted job postings for Wine Consultant as if casual employees had rights under article 31.4(b). 4 Counsel submitted further that it was aware that this practice of the employer goes back at least to 2001. She asserted that the grievor himself had applied for Product Consultant positions in 2001, 2002, 2003, 2005, 2006 and 2007. The instant grievance stems from the 2005 application. Union counsel submits that prior to 2005 and following the grievance, the employer has conducted job postings for Product Consultant positions as if casual employees were entitled to rights under article 31.4(b). Counsel submitted that in those job postings the employer had not taken the position that article 31.4(b) had no application to the grievor. She submitted that to the contrary, the employer had acknowledged that article 31.4(b) applied in those circumstances, when the employer wrote the following letter dated May 5, 2003 to the grievor following a job competition for a Product Consultant position. This letter is further to your recent interview for the position of Product Consultant for the LCBO. We would like to thank your for your involvement in this challenging process and we appreciate your interest however the position has been awarded to the most senior qualified candidate. Counsel advised that the employer has taken the position that following the change of the position title from “Wine Consultant” to “Product Consultant”, the employer had ceased its practice of applying article 31.4(b) to those job postings. Counsel submitted that the union is unaware of any such change of practice, and none had been communicated to it by the employer. Therefore, she submitted that the union is entitled to particulars and production relating to this alleged change of practice. Counsel submitted that in order to properly cross-examine any employer witnesses who assert such a change of practice, those particulars and disclosure are essential. The union in these circumstances seeks particulars and production of all documentation from 2003 to 2007 that indicate when and how the employer ceased its practice of extending 5 article 31.4(b) to applications by casual employees for positions of Product Consultant, including the following: - How the position of Product Consultant is different from the position of Wine Consultant. - A list of all job postings held in the Province of Ontario for positions of Wine Consultant and Product Consultant subsequent to the issuance of the second Falcioni decision in 1993 to the present, - A list of all casual employees who were successful in those job competitions with their seniority dates. - A spread-sheet indicating the scores given to candidates and how scores were arrived at in each posting, similar to the spread-sheet provided to the union with respect to the 2005 job posting. Counsel drew my attention to a number of authorities standing for the proposition that for purposes of production, as opposed to admissibility, the standard the union is required to meet is much lower. Counsel urged that an order be issued for particulars and production as requested. The Employer’s Submissions The employer took a three-fold position in opposing the union’s request. First, it took the position that no particulars or production of documents should be ordered at all in the circumstances of this case. It was submitted in the alternative, that the request of the union was too broad and went too far back in time, imposing an unfair and costly burden on the employer. Thirdly, it was the employer’s position that in any event, post-grievance evidence is irrelevant, and that no particulars or production should be ordered with respect to anything that post-date the filing of the grievance. In employer counsel’s view, this case simply requires an interpretation of article 31.4(b), i.e., whether it applies where a casual employee has applied for a position which is not an entry level position. It is the union that has raised an estoppel. Thus, submits counsel, it is the union’s onus to particularize the facts it relies on to allege a representation by the employer and 6 detrimental reliance by the union. It is then, and only then, that the obligation falls on the employer to particularize and make production with respect to any position it takes in response. Employer counsel submitted that the union here is seeking particulars and production in order to ascertain whether there is evidence to establish a past practice and an estoppel. That counsel submits, amounts to a “fishing expedition”, and switches the onus on to the employer to prove that there was no estoppel. The union in effect is making a sweeping allegation, without any specifics, that the employer applied article 31.4(b) to casual employees competing for Product Consultant positions, and then wants the employer to disprove it. Counsel submits that where the union cannot point to any evidence of an estoppel, the requested particulars and disclosure does not meet the test of “arguably relevancy”. Counsel submitted that the Re Falcioni decisions are not relevant because that case did not turn on the interpretation of article 31.4(b). There the issue was the French proficiency of the applicants. Employer counsel relied on the following portion of this Board’s decision in Re Simon et al., 1390/00 (Mikus) at p. 4: The test of disclosure of information during the grievance procedure has been set out in previous decisions and approved and applied consistently. That test is set out in Children’s Aid Society supra at page 262 as follows: … Those criteria are that the requested information must be arguably relevant, must be particularized clearly to avoid later disputes, cannot be a “fishing expedition” and must be clearly connected to the dispute at hand. Finally, the production of the information requested should not cause undue prejudice. The issue in the instant case is whether the allegations have been particularized sufficiently to put the Employer on notice of the facts giving rise to the grievance. The Union has made a sweeping allegation that overcrowding at the Hamilton Wentworth Detention Centre is a violation of the Management Rights and Health and Safety and 7 Video Display Terminals provision of the collective agreement. It now asks the Employer to provide information concerning the decision making process that established the capacity of the facility and the steps it took to alleviate the overcrowding. It seems to me that before the Union can expect that information, it must provide the Employer with more particulars concerning its allegations. The Employer is entitled to know when the alleged overcrowding took pace, where it took place, who was involved and how it relates to Articles 2 and 9 of the collective agreement. Once the Employer knows those elements of the Union’s case, it can determine what information it should provide the Union. For these reasons the union’s request for disclosure is denied at this time. The Employer’s request for particulars is allowed. The Employer conceded its duty to provide disclosure and had agreed to do so after it receives the particulars from the Union. If the parties have further difficulty in determining what particulars or disclosure is appropriate, I remain seized. Counsel also relied on Re Patterson, 2003-1588 etc. (Abramsky). There the employer submitted as follows: The Employer asserts that it is not sufficient to assert that there is a pattern of discrimination and then demand documents to determine if a pattern exists. Yet, the Employer contends, that is exactly what the Union is trying to do here. In its view, the grievor’s assertion of a pattern of discriminatory assignments is speculation and is not supported by the particulars provided. From its viewpoint, the Union’s request for documents is an improper fishing expedition to determine if such a pattern exists which the Board should not allow. While the Board did not order all of the disclosure requested by the union, it held that the request was not a fishing expedition, and ordered some production. At p. 4 it wrote: I conclude that the Union is entitled to production of the documents listed in Request Nos. 4, 5, 6,7 and 9 for the period of August 2003 to December 2005. These documents are arguably relevant to the Union’s claim of discriminatory assignments. That claim is more than a bald assertion. It has been supported by particulars allegedly within the knowledge of the grievor. Her particulars cite numerous examples of alleged discriminatory assignments over the period of time in question. Counsel for the employer submitted that in any event, the union’s request for particulars and production is far too broad. She suggested that the disclosure of information about the 8 applications, seniority dates, and scores relating to a large number of employees who had participated in job competitions may raise privacy issues. Counsel also argued that the union’s broad request for particulars and production puts an unreasonable burden on the employer. The employer will be required to go through large volumes of documents going back to 1993, which are in archives maintained by a third party. It would be required to spend considerable time and money, searching for documents, which may or may not exist any longer. Finally, employer counsel submitted that information relating to job postings that post- date the filing of the instant grievance is irrelevant. While the authorities cited by the union recognize that in appropriate circumstances arbitrators may consider post-grievance evidence, counsel pointed out that most of those cases involved post-discharge evidence. None of the cited cases involved evidence relating to job competitions which post-dated the grievance. In reply, counsel for the union pointed out that the employer has not disputed that at some point in the past, it has followed a practice of extending article 31.4(b) to casual employees competing for Product Consultant positions. The union has, in any event, substantiated that fact through the decisions in Re Falcioni, and the letter the grievor received following his unsuccessful application for a Product Consultant position in 2003. It was the employer that claimed that at some point it had changed that practice. Counsel submits that the union is entitled to particulars and production with regard to that claim of change in practice. Counsel stated that it was the employer’s claim that it changed the practice that necessitated the request for particulars and production. 9 DECISION In Re West Park Hospital, (1993) 37, L.A.C. (4th) 160, arbitrator Knoff wrote at p. 167: … where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the board of arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the board should be satisfied that disclosure will not cause undue prejudice. In Re Canada Post Office Corp., (1986), 24 L.A.C. (3d) 157 (Weatherill) at p. 159, the arbitrator defined a “fishing expedition” as an endeavor “not to obtain evidence to support a case, but to discover whether one has a case at all.” In the present case I do not find the union’s request to be a sweeping allegation which is not substantiated. While the issues themselves in the Falcioni decisions are not the same, they indicate that the employer had at that time accepted that casual employees have collective agreement rights in relation to a Wine Consultant job posting. The employer has disputed that the Wine Consultant position is distinct from the Product Consultant position. Presumably the argument is that while Wine Consultant was a entry level position, Product Consultant was not. The union has disagreed that there is any substantive differences between the two positions. In order to litigate that issue, information about the transition is relevant. In any event, union counsel repeatedly stated during her submissions, that the employer’s position was that while it had a practice of applying article 31.4(b) to casual employees’ job postings for Product Consultant positions, it had changed that practice following the change from the position of Wine Consultant to Product Consultant. The employer counsel did not at any time dispute that assertion. 10 Union counsel was very clear that the union’s request for particulars and production was made not for the purpose of discovering whether it has an argument to raise an estoppel. She was clear that it was the employer’s assertion of a “change of practice”, that necessitated the request. In that light, I have concluded that the union is entitled to particulars and production, but not to the extent of its request. In determining the extent of the particulars and production that should be ordered, I have considered the burden that would be placed on the employer by the order, relative to the probative value of the information sought. On the other hand, I have also recognized that information as to how the employer conducts its job postings is, to a large extent, peculiarly within the employer’s own knowledge. Unless this information is communicated to the union, it will not be privy to what practice(s) the employer followed in conducting a particular job posting. Considering the applicable legal principles and the particular circumstances of this case, the Board orders that the employer provide to the union particulars and production as follows: (1) Particulars and production relating to the transition from the position of Wine Consultant to Product Consultant, and how the employer claims the two positions differ for purposes of article 31.4(b). (2) A list of all casual employees who were successful in competitions for the position of Wine Consultant or Product Consultant, held between 1993 and 2007, where the employer relies on those job competitions as supporting its claim of “change of practice”. (3) A spread-sheet as requested by the union, only with respect to job competitions for the position of Wine Consultant or Product Consultant held between 1993 and 2007, where the employer relies on those job competitions as supporting its claim of “change of practice” (4) Any and all correspondence, memoranda, and material touching on the claimed change of practice. 11 In ordering particulars and production that postdate the grievance, I agree with union counsel that such information is arguably relevant in that “a practice” in necessarily a continuing pattern of conduct. I remain seized with respect to any disputes relating to the orders made herein, and with respect to all matters outstanding arising out of the instant grievance. Dated this 24th day of July 2007 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson