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HomeMy WebLinkAbout2013-1552.Moore.14-06-30 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#2013-1552, 2013-1553, 2013-1554, 2013-1591, 2013-1592, 2013-1593, 2013-1594, 2013-1595, 2013-1596, 2013-1597, 2013-1598 UNION# 2013-0440-0001; 2013-0440-0002; 2013-0440-0003; 2013-0440-0004; 2013-0440-0005; 2013-0440-0006; 2013-0440-0007; 2013-0440-0008; 2013-0440-0009; 2013-0440-0010; 2013-0440-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Moore) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Marilyn Nairn Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Suneel Bahal Ministry of Government Services Legal Services Branch Senior Counsel Thomas Ayers Ministry of Government Services Legal Services Branch Counsel CONFERENCE CALL June 23, 2014 - 2 - DECISION [1] This decision deals with a preliminary issue of whether third party notice ought to be given to two individuals in the circumstances reviewed below. [2] I am seized with the hearing of eleven grievances filed by the grievor, Mr. Moore. Mr. Moore was employed by the Ministry of Community Safety and Correctional Services (“CSCS”) and was a member of the bargaining unit represented by OPSEU. One of those grievances challenges the employer’s decision to terminate Mr. Moore’s employment following an alleged incident on or about January 23, 2011. Two other individuals, Mr. Portwine and Mr. MacNaull, are also employed by CSCS and are also members of the bargaining unit represented by OPSEU. They were also disciplined following the alleged events of January, 2011 and have also filed grievances challenging their discipline. [3] The employer has advised that it is seeking to have all of these grievances heard together. The union opposes that request. A hearing has been set for July 11, 2014 to hear that motion. The employer sought to give third party notice of that hearing to Mr. Portwine and Mr. MacNaull. The union took the position that third party notice was not appropriate in these circumstances. A conference call was convened to hear the issue. [4] It was the position of the employer that, while the Board could direct that third party notice be given, it had no jurisdiction to prevent a party from providing third party notice. In that regard it referred to the Notice of Proceeding issued by the Board and to the Board’s decision in Peake, infra. The employer argued that where a party believes there to be a third party right, it is entitled to provide notice and the Board retains the right to determine standing. Any issue of third party notice, it argued, was separate from the issue of standing, a matter to be determined once such notice had been given. [5] While accepting that the union was the party to the grievances, the employer relied on the decisions in Hoogendoorn and Bradley, infra. It asserted that Mr. Portwine and Mr. MacNaull should each have third party notice, as what would be under scrutiny went beyond Mr. Moore’s right (referencing Stuart, infra). The employer noted that regardless of whether or not the matters were consolidated, there could be damage to the reputation of one or other of the grievors as a result of the proceedings and referenced Fournier, infra, as support for giving third party notice. [6] The employer argued that the issue of consolidation had a direct and compelling impact on the interests of Mr. Portwine and Mr. MacNaull as their grievances arise out of the same factual context as Mr. Moore’s. Further, that the principles of natural justice required that there be a right to speak to fundamental interests and/or take any action they feel is necessary to assert or protect their interests (referencing the decisions in TVO v. CEP and Calgary Television, both infra) and that the Board has an obligation to hear the views of those who may be affected by its decisions, relying on the decision in CUPE 1750, infra.). [7] It was the position of the union that the Board is the master of its own procedure and as such, must have the jurisdiction to ascertain whether third party notice should or should not be given. Such a determination, argued the union, would be central to the conduct and control of the - 3 - proceedings (referencing Procopio, infra.). To suggest otherwise would leave it open for any party to provide notice in any circumstance whether warranted or not. [8] The logical extension of the employer’s argument, suggested the union, would be that every grievor would have an independent right to third party notice and, secondly, be able to make representations with respect to standing on an issue of consolidation. There is no authority for third party notice in these circumstances, argued the union, as it fails to have regard for the fact that the parties to the collective agreement and at arbitration are the employer and the union, and that the union has carriage of all grievances. These grievances involve discipline imposed on each of the grievors. None of those grievors, noted the union, would have standing with respect to each of the other’s discipline grievance. The issue of notice must be based on reasonable expectations regarding the interest at issue, argued the union. [9] In distinguishing these circumstances from the cases relied on by the employer, this is not, argued the union, a situation of bumping, lay-off, or a posting, where an incumbent’s right to continue in a position may be affected by the outcome of a grievance and that employee has no right to file a grievance to protect their position. It is not, argued the union, a claim of harassment by an employee against a manager who has no other ability to defend themselves. There are no conflicting bargaining rights. There is bargaining unit representation, and there is no impact on others that they are otherwise unable to defend, argued the union. [10] In all of these grievances, argued the union, the union was the instructing client, advancing the cause of each and all of the grievances. There was no suggestion that the union was acting otherwise than appropriately in its manner of pursuing the grievances, including its position on the issue of consolidation. The union has instructed counsel to argue against the hearing of the grievances together and those instructions apply to the grievances of all three grievors. If the union had decided that hearing the grievances together was appropriate, or if such is determined to be appropriate, that might give rise to an issue of independent representation, but only, argued the union, at that stage of the proceedings. Mr. Moore, argued the union, stood in the same shoes as the other two grievors, vis-à-vis the union and the issue of consolidation, and he was not entitled to third party notice. [11] It was not disputed that the union had carriage of the grievances, noted the union. Referring to Procopio, infra, it argued that it therefore must be given the right to determine if and how the cases are to be presented. That included, argued the union, procedural matters such as consolidation. If there was a complaint or a conflict between the individuals, that matter may be raised before the Ontario Labour Relations Board in a duty of fair representation complaint, noted the union. However, to require third party notice would undermine the principle of union exclusivity regarding carriage of the grievances. This was, argued the union, a statutory right with the attendant statutory obligation, whereby, if a member disagreed with the union’s decisions regarding its approach to the conduct of proceedings, it had the right to complain to the OLRB. However, noted the union, there was no suggestion of any inappropriateness concerning the union’s carriage of these grievances. [12] In reply the employer reiterated its position that the Board has no jurisdiction to prevent a party from providing third party notice. The employer argued that if there was any doubt as to the circumstances under which third party notice ought to be given, one should err on the side of - 4 - providing notice and then not granting standing, if appropriate. The outcome of the consolidation motion will bind these grievors to a procedure they may not want or appreciate, argued the employer. If no consolidation, the grievors may be forced to testify more than once, yet be faced with binding findings of fact from an earlier proceeding, such that damage to their interests is done. If consolidated, there may be a need for independent representation, argued the employer, and if then, it asked, why not now. Even in the absence of a natural justice requirement for notice, argued the employer, the Board had a discretion to allow persons to participate, referring to Weston Bakeries, infra. [13] I was referred to and have reviewed: Hoogendoorn v. Greening Metal Products and Screening Equipment Co. [1967] S.C.J. No. 75 (S.C.C.); Bradley et al and Ottawa Professional Fire Fighters Association et al, [1967] O.J. No. 1017 (C.A.); Peake et al v. Crown in Right of Ontario (Ministry of Correctional Services), decision of the GSB dated July 20, 1978; OPSEU v. Ontario (MGS) (Bargaining Unit Integrity Grievance), [2006] O.G.S.B.A. No. 56 (Petryshen); Calgary Television Ltd. and N.A.B.E.T., [1991] 20 L.A.C. (4th) 374 (Ponak); Ontario Educational Communications Authority (TVO) and CEP, (2010) 199 L.A.C. (4th) 211 (Nairn); CUPE 1750 and The Crown in Right of Ontario (WSIB), File #1029/94 decision of the GSB dated April 25, 1995; Weston Bakeries Ltd., (1999) 79 L.A.C. (4th) 189 (Gray); Re Ottawa (City) and Ottawa-Carlton Public Employees Union, Local 503 [1993] O.L.A.A. No. 718 (Jamieson); Ontario (Ministry of Transportation) and OPSEU (Fournier), [1994] O.G.S.B.A. No. 1 (Kaplan); OPSEU v. Ontario (MNR) (Stuart), [2006] O.G.S.B.A. No. 24 (Dissanayake); and The Corporation of the City of Vaughan and CUPE Local 905 (Procopio), unreported decision of Arbitrator Herman dated May 24, 2011. [14] There can be no doubt that the Board has the jurisdiction to determine whether third party notice is appropriate. Section 2 of the Crown Employees Collective Bargaining Act incorporates section 48 of the Labour Relations Act, 1995 (with modifications not relevant here). Section 48(12)(i) of the Labour Relations Act, 1995 expressly gives an arbitrator the authority to make interim orders regarding procedural matters. In addition, the decision in Bradley, supra, notes that the “fact that particular provision for notice is not made either in the statute or in the collective agreement is of no moment” and administrative law principles require tribunals to ensure that their proceedings are conducted according to the rules of natural justice. The Board’s decision in Peake, supra, cites the Court of Appeal’s decision in Bradley as follows: Finally, the arbitrator or arbitration tribunal must also be alert to refrain from adjudicating on the collective agreement benefits of unrepresented employees unless they have been given proper notice…. I would regard it as within [the tribunal’s] initial arbitral authority to give necessary directions. [15] At the same time, and in many instances, the issue of whether third party notice is required is not disputed. The Board’s Notice of Proceeding makes clear that it is incumbent on the parties to ensure that third party notice is provided appropriately in advance of a hearing date and, typically, the Board does not and would not act to prevent a party from providing third party notice to anyone whom that party believes has a third party interest. As noted in paragraph 4 of the decision in Weston Bakeries, supra, “the giving of notice to a third party is not necessarily an acknowledgement of the third party’s right to participate”. [16] What interest does third party notice seek to protect? In Hoogendoorn, supra, the union brought a policy grievance seeking the enforcement of a closed shop provision in its collective - 5 - agreement. The effective result of the arbitrator’s decision was to require the employer to terminate Mr. Hoogendoorn’s employment, a result that the union was seeking. Absent recognition of his interest in retaining his employment, Mr. Hoogendoorn would have had no opportunity or ability to seek to protect that interest. In Bradley, supra, the union took up the cause of one group of employees in the bargaining unit in opposition to another group of employees in the bargaining unit, and the union did not act to represent the latter group. In both cases, the issue was whether an employee whose status was being affected by the hearing was entitled to be represented in his own right, as distinct from being represented by the union that was taking a position adverse to his interests. In both cases, third party notice was found to be required where the union was taking a position at arbitration that was adverse in interest to a member of its bargaining unit and where the union was not representing that member’s interest. [17] The reasoning behind this principle was summarized in Bradley as follows: 11 …Once it is accepted, as it must be, that the benefits running to employees may differ according to job classification or seniority ranking (to take two illustrations), and that the representative union is put to a choice between employees who competed for the same preferment as to which it will support against a different choice made by the employer, substantive employment benefits of particular employees are put in issue and they are entitled to protect them if the union will not. 12 It follows that they are entitled to notice of arbitration proceedings taken to test their right to continued enjoyment of the benefits…. [18] What interest is at stake in the hearing of Mr. Moore’s grievances? The grievances filed by Mr. Moore allege that the employer violated the collective agreement and certain statutes by terminating his employment without just cause, by abusing its management rights, by discriminating against him by reason of his disability and by reason of the alleged disproportionate application of discipline; by delaying in providing him with a safety plan; by violating his privacy; by failing to provide a healthy and safe work environment; by breaching confidentiality and failing to keep him safe; by creating a poisoned work environment; by acting in bad faith in regards to his return to work following his WSIB claim; and by engaging in reprisals against the grievor allegedly due to his need for accommodation. [19] Mr. Portwine and Mr. MacNaull have no third party interest in the outcome of these grievances. The employer argued that the union will take a position in Mr. Moore’s grievances that is adverse in interest to these other individuals in the hearing of their discipline grievances. However, no remedy being sought by the union with respect to Mr. Moore’s grievances would have any impact on these individuals. Their continued receipt of any benefit to which they are entitled under the collective agreement will not be affected by the assertions made in any of Mr. Moore’s grievances. The union’s position in Mr. Moore’s grievances is a challenge to the employer’s actions and is not taken “to test any right to continued enjoyment of benefits” by Mr. Portwine or Mr. MacNaull. (See also the comments in paragraph 12 of Stuart, supra.) [20] These circumstances are also distinguishable from those in Fournier, supra, where the individuals held to have a third party interest were members of management alleged to have engaged in wrongdoing, whose interests were distinct from the employer’s and were thereby unrepresented in the arbitration, and who had no other means to protect their interests. - 6 - [21] The employer’s real concern is that the union may call evidence in the hearing of Mr. Moore’s grievances that may have an impact on evidentiary matters in any subsequent hearing of the grievances of Mr. Portwine and Mr. MacNaull. This is, in part, why it will seek to have all of the grievances heard together and why it feels that Mr. Portwine and Mr. MacNaull ought to be aware of its motion in that regard. However that is not an interest in the outcome of Mr. Moore’s grievances. It is not a third party interest. It is a matter for them as grievors, regarding the conduct of their grievances, a matter over which the union, as party to the arbitration, has carriage rights, with any attendant representational responsibilities. (Although I note that the chosen exercise of those rights may also ultimately affect an employer.) These individuals do not acquire a right to third party notice because they may be called to testify in the hearing of Mr. Moore’s grievances (see the Court of Appeal decision in Hurd v. Hewitt, cited in Fournier, supra). There is also, at this stage, no finding of any real or potential conflict between any position being taken by the union vis-à-vis Mr. Moore’s grievances and any position it may take with respect to the grievances of Mr. Portwine and Mr. MacNaull. The union has filed grievances on behalf of all three individuals and has referred all of the grievances for hearing before the Board, indicating its intention to pursue all of the grievances on behalf of all of these grievors. [22] Having regard to all of the above, I find that these circumstances do not give rise to a third party interest and therefore third party notice is not warranted. Whether it may be appropriate that Mr. Portwine and Mr. MacNaull be advised of the proceedings scheduled for July 11, 2014 as involving their grievances is not a matter for determination by this Board. Dated at Toronto, Ontario this 30th day of June, 2014. ____________________________________________ Marilyn A. Nairn, Vice-Chair.