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Home My WebLink About1984-0585.McHattie and Watson.85-11-14IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. McHattie E C. Watson) Grievors - and - The Crown in Right of Ontario (Ministry of Transportation & Conmnications) Before: ! For the Grievor: For the Employer:' Hearing: Employer I. C. Springate Chairman F. Taylor Member M. F. O'Toole Member P. A. Sheppard Grievance Officer Ontario Public Service Employees Union B. Brown Counsel Hicks, Morley, Hamilton, Stewart, Storie November 26, 1984 I ’ The two individual qrievors contend that they are’entitled to be paid for two days that they spent at a Grievance Settlement Board hearinq held in connection with another matter. The qrievors appeared at the hearinq into the other matter pursuant to a summons ~issued by the Board at the request of one of the ,parties. The qrievors base ~their ~entitlement to be paid for the days in question on article 32.1(c) of the collective aqreement binding on the employer and the union. Article 32 of the agreement provides as follows: ARTICLE 32 - LEAVE - JURY DUTY 32.1 Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a witness, the employee may, at his option: (a) treat the absence as leave without pay and retain any fee he receives as a juror or as a witness; or (b) deduct the period of absence from his vacation leave of absence credits or his overtime credits and retain any fee he receives as a juror I or as a witness; or Cc) treat the absence as leave with pay and pay to the Treasurer of Ontario any fee he has received as a juror or as a witness. The employer’s position is that article 32 does not cover the situation of employees summoned to testify before the i - 2 - Grievance Settlement Board, but applies only to employees who have been called for jury duty or called to give evidence before the courts pursuant to a subpoena. On or about October 4, 1984, the employer requested that the Reqistrar of the Board~provide it with the names of all bargaininq unit employees who had been summoned to a hearing by the Grievance Settlement Board subsequent to January 1, 1982. The Registrar advised the union of the reauest. The union,‘in turn, indicated that it objected to the information in question being provided to the employer. Given this objection, the then Acting Chairman of the Board, who is the chairman of the’instant panel, directed the Registrar to advise the employer that the information it sought would not be provided to it~prior to the hearing into this matter, but that it could raise the issue at the hearinq. Counsel for the employer then contacted the Registrar with a.request that the Board issue a summons to the Registrar directing her to attend at the hearing and to brinqwith her: “the names of all employees in the bargaining unit covered by the working conditions collective aqreement between Manaqement Board of Cabinet and OPSEU who have received summonses from the GSR from Jan. 1, 1982." Because of concerns relating to the propriety of the Roard issuing such a summons-to its own Registrar, the Acting Chairman advised counsel that, at least for the time being, such a summons would not be issued, and that the propriety of the Board issuing such a summons could be raised at the hearing. The hearing was held on November 26, i984. At the hearing, counsel for the employer renewed the employer's request that it be provided with the names of employees who . had been summoned by the Foard. According to counsel, it is the employer's'understanding that in support of its interpretation of article 32 of the collective agreement the union will be relying on a number of instances where employees summoned to appear before the Board were paid for the days in question. The employer contends that any instances where this may have occurred were exceptions to the employer's, general practice of not payinq.employees summoned to Board hearings. According to employer counsel, unless the employer gains access to information in the Board's files indicating which employees have been-summoned to Board hearings, it will be extremely difficult for it to gather the necessary evidence to demonstrate that most i - 4 - employees summoned to Board hearings were not paid. In this regard, counsel contended that since there are approximately 50,000 bargaining unit employees , a review of the employer’s records relating to employee attendance would be a “hopeless beginning” in trying to ascertain what employees had or had not been paid as a result of being summoned to a Board hearing. Counsel further contended that even if the necessary time was spent to review all of.the employer’s attendance records, the records would only indicate which individual employees had been paid for days they were on witness duty, not whether the employees in question had been subpoenaed to attend at a Court proceeding or summoned to a, Board hearing. The representative of the union objected to the Board giving the employer any access to information i,n the Board’s files. He also strongly opposed any adjournment in the proceedings so as to allow the employer to obtain information from the files. This case raises a number of policy issues respecting access to Board files and how any such access is to be administratively handled. In our view, the setting of any general rules with respect to these matters is the responsibility of the Board Chairman, for it is the Chairman who has ultimate responsibility for the orderly administration of the Board and for the care and control of -5- the Board's files. The chairman of the panel hearing this case was, at the time of the hearing, Acting Chairman of the Board. However, his appointment as Acting Chairman was about to expire. Accordingly it was the view of the panel that before making any general pronouncements as to a general right of access to material in the files, or laying down any guidelines with respect to how such access should be achieved, the panel should await the appointment of a new Chairman so as to be able to consult with him or her with respect to these matters. As of yet, however, no Chairman has been appointed. The union, not unreasonably, has indicated a growing impatience with the delay in the .proceedings. In these circumstances, we propose to set out our views with respect to access to the Board files"for the purpose of these proceedings and these proceedings only. This decision is not to be viewed as setting out any general policy with respect to access to Board files or how such access is to be handled from an administrative point of view. The Board is a tribunal that is established and functions pursuant to a public statute. We see no valid reason for preventing the parties to these proceedings from being able to review documents in the Board files unless to do so would conflict with a reasonable requirement of - 6 - confidentiality. At the hearing, we were not presented with any cogent argument as to why there was a need to keep confidential the names of individuals who had been summoned to Board hearings that have already been held. There may be valid reasons for not providing one party with information as to who had been summoned by another party to a hearing not yet held. However, in that the employer has indicated it is not seeking access to information in any still active files, that is not an issue in this case. In all of the circumstances we are of the view that for the purpose of these proceedings, the employer and the union should be permited access to information in the Board’$ files. We do, not, however, feel it appropriate that Board staff should be reviewing the files and transcribing information for the use of one of the parties. Rather, the party seeking information should have direct access to the Board’s files and itself decide whatinformation it feels is relevant. We believe valid grounds do exist for keeping confidential certain material in the Board’s files. This material includes any internal correspondence between the Board Chairman and Registrar, between the Registrar and her staff, and any notes of Board vice-chairmen and members taken either at a hearing or in executive session. Having regard to the above and the need to handle access to Board files in anorderly manner, we are -7- satisfied that for the purposes of these proceedings, the employer and the union should have access to the Board’s files in accordance with the following conditions: 1 : 2. 3. 4. 5. there is no need to deal with the employer’s request that Requests to review particular .fileS should be addressed to the Registrar of the Board. The Registrar shall advise the party seeking access to the files as to a time or times that it would be appropriate to review the files. Before permitting any file to be reviewed, the RegisWar, or a member of her staff, will remove from the file any internal correspondence between the Board Chairman and Registrar, between the Registrar and her staff, any notes of Vice-Chairmenand Board Members, and any similar material relating to the internal administration of the Board or the adjudication of cases before the Board. The files shall not leave the premises of the Board. Any summons to a witness issued with respect to a hearing yet to be held will not be open to review. Having regard, to the foregoing, it appears .that the Board issue a summons to the Registrar. This panel will remain seized of this matter in the event there are any problems associated with the - 8 - implementation of this award insofar as it relates to access to Board files. This panel is not seized with respect to the actual merits of the grievances. DATED at Toronto this 14th day of November, 1985. ,./La” .” $.; i ,:,/‘~ & c I. C. Springate, Vice-Chairman F. Taylor "I dissent without written reason" F. Taylor, Member -