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HomeMy WebLinkAbout1989-0117.De Petrillo et al.89-10-20, · ' ONTARIO EMPLOYES DE LA COURONNE ' ' . CROWNEMPLOYEE$ DEL'ONTARiO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS · 180 DUNDAS STREET WEST, TORONTO. ONTAR;O. MSG 1Z8 -SUtTE 2100 TELEPHONE/T~L~'PHONE 180, RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG IZ$- BUREAU 2100 i 1 7/8 9t 11'8/8 9, 1 1 9/8 9 '.. IN. THE HATTER OF AN ARBITRATION Under · · .. THE CROWN~ EMPLOYEES COLLECTIVE BArGAINING_ACT ~- , : Before, .-~ . ., TBE. GRIEVANCE SETTLEMENT::BOARD .. Between: OLBEU (De Petrillo et al')' · ' :' ' ,'; : ~ G~"ievor ,- :, , - and -- The Crown in Right of Ontario .- (Liquor. Control Soard'of Ontario) ~:~' ? Employer · Before,: '~ "' ': M.R. Gorsky -: . .Vi.ce~Chairperson _ .' J. McManus' .. Member: ...... G. 'Milley Member · For the Grievor: E. Mitchell Counsel ' ' Koskie & Minsky ·. Bar riste'rs · & For the Employer: S. McDermott Counsel ~ Hicks- Morley Hamilton Stewart Storie -. Barristers & Solicito~s ~earing: ~ :. August 2, 1989 . ~, . AWARD There were three grievance before us (117,118, and 119/89). At the opening of the hearing, counsel for the parties informed us that grievance 117/89 had been settled, and we heard the remaining grievances. In both cases, the grievances are based on alleged Violations of articles 6.6 (b) of the collective agreement, which is as follows: "Where there is a requirement for overtime to be awarded~ it shall be offered to full time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to part-time store cashiers or temporary employees and failing sufficient volunteers shall be assigned to full-time employees on a rotational basis." Both grievors claim payment of the money they would have earned if they,~had been given the opportunity to work the overtime assignment which was agreed to have taken place on March 18, 1989, which was assigned on March 17, 1989, and which was for a period of eight hours. The overtime was worked in Dept. 940 located in the employer's Toronto warehouse. The position taken on behalf of the employer at the hearing was that the grievors were not in Dept. 940 on March 17 or 18, 1989, and, therefore, we were not entitled to be offered the overtime in question pursuant to the above quoted article. The further position taken on behalf of the employer, was that even if the grievors were in Dept. 940 at the relevant dates, their seniority did not entitle them to be chosen for the overtime assignment, and that the full complement of employees needed to work overtime was obtained from employees in Dept. 940 with greater entitlement under the collective agreement. Counsel for the grievors objected to our entertaining any argument based on the second submission because such a position had not been taken prior to the hearing, and that the only basis previously relied on by the representatives of the employer for denying the grievances was as set-out in exhibit 12, where the reason stated for denying the grievances was that the grievors were not in Dept. 940, effective March 6, 1989, and for this reason were not entitled to be considered for overtime under the provisions of the above quoted article. There are reasonable limits to the grounds of defence to a grievance that can be~relied upon. Where grounds for rejecting a grievance are not relied on at anytime prior to the date of the hearing, there must be a very good reason for permitting 1 the new' grounds to .be' religdJ upon as a defence', to the grievance. Where this is permitted, it will usually be.~ on terms. .For.the reasons' to be given, it will not be necessary to rule on whether the_particular grounds for defence can be raised and argued. Ih should~be mentioned '{hat the. e~hibits.filed (4,5,6 and 12), addressed to· Mr~ Burthwright, were also sent to Mr. De Petrillo, by~acknowledgement~of the parties. Th~' parties'.agreed~that should we find that the grievors were entitled, to the .disputed overtime, then we should- retain jurisdiction to deal with any di~fic~lties experienced by them b in implementing the. award. The parties agreed that the ~rievo~s had been in Dept. 940, but they disagree as to when t~ey ceased to b9 in that~department. The position of .the.employer-is that they were transferred to Dept. 910 effective March 6, 19~9. The~grievors testified that they had never been given specific notification, either written or oral, of their having been transferred'until receipt by them of notification from their now manager, Ms. Camilla~Smith, on March 17,. 1989, of their having been transferred to Dept. 910, "effective~March 6~ . 1989."~·If the employer's submission is acceptedf then the grievances must fail.~ The. position of ~he grievors is that they had never been told 'that they were being transferred to Dept. 910 at a. meeting held on January 25,-1989,. as alleged in the~ letter from Ms.~ Smith (exhibit 12), 'but~had. only been informed, at that time, by representatives of the. employer that a change was being planned whereby some. employees in. Dept..940' would be transferred to another department,'.then not finally, decided, to perform the private stock function formerly part of the work performed in Dept.· 940, to which-the grievors ·had been assigned at that time, along with occasional general, warehouse duties..in that Department. Ms. smith's-.notification to the grievors, as set out in exhibits 4 and-~6, are identical except for their dates, exhibit 4 being dated March.8, 1989,~and exhibit 6, March 21, 1989. It is clear from ~xhibit 9, that the letter was not given to the grievors until March 17, 1989. Against Ms. Smith's reference, to -th~ date when ~he grievors ~ere notified of the effective date·~.~ their transfers, is the evidence of the grievors who .gave viva voce evidence, and, unlike Ms. smith,, were subject to crqss-examination. The only other viva voce evidence given on the. matter of when the grievors had notice of when they were., to be transferred to' Dept. 910 was that of Mr. J. Barker, ~who was, at al-1 material times the Manager of'DeRt.'. 940. Mr. Barker retired on. May 31, 1989. Mr...Barker testified that a meeting was called by the employer of all employees in ~ Dept~~ 940 'on. Jan. 25, 1989, when the employees were told that .certain.changes would be introduced which would'have the effeCt of transferring the private stock function from the latter department to Dept. 739 (Distribution Depot). This would necessitate the transfer of certain of the employees in Dept. 940 to perform the same work that had been performed there as private stock work, but in Dept. 739, with a different reporting relationship. Mr. Barker had made notes at the meeting, which he had before him at the hearing, and to which he referred, from time-to- time, in order to refresh his memory. Mr. Barker's evidence was that the timing of the changes was not disclosed in any specific way at the meeting. While the plans were stated in a way that would convey to the employees that they would be implemented, no binding specific date was announced as being the effective date of- transfer~ for the employees to be transferred. In fact, the impression was left that the department to which the employees to be affected were to be transferred was only tentative. As matters transpired, the department finally established for the transfer of the private stock functions was Dept. 910. Although Ms. Smith referred to it as Cost Centre 910, all witnesses at the hearing referred to it as Dept. 910, and that is how it was referred to by Mr. Barker in exhibit 3. Mr. Barker also testified about a further meeting, held on Jan. 27, 1989~ which was intended to deal with the same subject. His evidence relating to this meeting did not touch on the subject of when the transfer would take place, but it appears to have dealt with a number of .employee concerns which were responded to by the employer's representatives. He did not refer to any specific concerns that were raised or addresed, but he acknowledged, in cross - examination, that the concerns could have related to how notice of transfer would take place, but it appears to have dealt with a number of employee concerns which were responded to by the employer's representatives. He did not refer to any specific concerns that were raised or addressed, but he acknowledged, in cross - examination~ that the concerns could have related to how notice of transfer would be accomplished. Both grievors indicated that the way in which notice of the transfer date would be communicated was a principal concern of the employees and that it was communicated to the representatives of the employer at most if not all of the meetings. Mr. Barker also testified as to a further meeting concerning the proposed transfer, which was held on February 1, 1989. would note that Mr~ Barker was not the spokesperson for the employer at any of the meetings he referred to but was merely an observer as manager of Dept. 940. Although he appears to have 'had some small consultative role in the decision making process, his knowledge of the timing of the effective transfer date was somewhat sketchy. When questioned by counsel for the employer as to whether the decision had been reached by February 1, 1989, to transfer employees then in Dept. 940, performing private stock duties, to Dept. 739, he replied that he thought that the decision was "pretty well definite." He then went on to describe the decision in much less definite 3 terms. I. am' left~to conclude that not~ing .in Mr. Barker's evidence indicates'that the grievors~ knew that they. had been transferred to another' department until .they received' Ms. Smith's ~letter ~-(exhibit 4.),~%on Ma~ch 17,--1'989. Although Ms. Smith, in her"letter tol-the grievors>delivered,.,to them~on April 3, 1989, 'being the reply to the grievances.(exhibit 12)~ Stated that they had; on Jan.. 25, i989,,been~advised'of the~ransfer rto take effect on March 6, 1989, they de~ied, that they had been informed-~.~f. the transfer as alleged, and there was nothing in Mr.':Barker's~..testimony~ which supported the statemen~, ~On the evidenCe~'I conclude~that ~the~.grievors had not~received notice of 'their~actual transfer unti~ March 17, 1989..~_ ' ~. -~. 'I haVe no. doubt the ~grievors Understood that the changes discussed, at.'-the variouS, meetings.were~going~to, take place and thatl, because of'their 'lesser.'seniority,· they were likely to be among the .emploYees ~ransferred. in.'the absence of volunteers from the more senior~ employees.~in Dept. 940. Mr.' Barker testified that,~at .the meeting of Feb. 1, 1989, the..employer sought expressions of willingness from employees -in Dept. 940 to accept a ~transfer when the decision to effect the change was finalized. ~t'~He~.made·it~'clear .that if there were insufficient .volunteersl employees with .the. lowest seniority would b~ transferred. ~. Because''of their~ lessor seniority they were · ~'likely t6'be, transferred.. What they-.did not know was...when the transfer qo~ld ~becOme effective. As .above indicated, I find that this~knowledge did~not'exist~'.untiI March 17, 1989.~. The position- of the' grievors'~ was that they were entitled to rely on the~ provisions .of Art. 21·.4 (d) ~of the Collective Where-'an employee is to be transferred,, the employee shati be given ~wo (2) weeks notice of.transfer~when There was no evidence adduced that it was not practicable to give notice as~' required by Art.. 21.4 ~'(d). . Counsel for the employer'~argued that if I did not accept that notice_.had been given to~ the grievOrs· on Jan. 25, 1989~,. or, ~in fact', until March 17,·'1989, then. I should, still find ·that. the grievors had been transferred on the earlier date, _and that Art. 21.4 (d). had no application to these facts. ~That is, that the grievors are to be'. treated as having been transferred to .Dept. 910 on the-~ate they'·were transferred and not on the date~that the-' notice expired dnde? Art..21.,4.(d). Counsel for the grievors argued tha~ the article did apply and that notification'under it had to be·in writing, .I cannot read the article as' requiring ·written .notice. In any event,'~ I have found·that notice was first given on March 17, 1989. Assuming, without having to decide the point', that the employer had effected the transfer· internally on-March 6, 1989, this was not commuhicated to the grievors .until Mar~h ·17, 1989.. If Art. 2~.4 (d) applies', then'the transfer could not become effective until the expiry of a period of two weeks, being some time 4 after the relevant dates, and the grievors would have to be considered to be in Dept. 940 for the purposes of the assignment of the overtime of March 18, 1989. Counsel for the employer argued that, in context, Article 21.4 (d) should be limited to transfers contemplated in Art. 21.4 (c), which deals with transfers to complete a required complement when there are insufficient applicants under Art. 21.4 (a). Article 21.4 (a) is' Concerned with the posting of notices of new job classifications created within the bargaining unit or notice of a permanent vacancy in an existing classification. Article 21 deals with the subject of "Assignments and Job Postings." It had been intended to limit the kinds of transfers to which Art. 21.4 (d) was intended to apply, it would have been a simple matter for the parties to have employed appropriate limiting language. In Art. 5.2 (c), dealing with the assignment of surplus employees, such transfers are to be made without reference to Article 21. Therefore, employees who are surplus and are transferred "to a vacancy in {their) work area" pursuant to Art. 5.3, would not be entitled to the notice provided for in Art. 21.4 (d). This is not a case covered by Art. 5, nor was it suggested that it was. Mr. Barker, although he did not suggest that this was a case involving employees transferred as surplus under Art. 5, evidently confused the position of the grievors as being subject to the provisions of Art. 5.8, when he stated that should they decline a transfer to Dept. 910, they would be subject to lay off as is provided for in that article. As I have found that Art. 21.4 (d) is applicable in the case of the grievors and that they did not receive notice until March 17, 1989, absent any other evidence to the contrary, I would find that they were in Dept. 940 on March 17, 1989, and were entitled to be considered for overtime in accordance with the practice of the parties that I find Go have been established. There was no contrary evidence with respect to Mr. Burthwrighto There was such evidence in the case of Mr. De Petrillo. As indicated above, Mr. De Petrillo testified that he had received the identical communications as were sent to Mr. Burthwright (exhibits 4, 5, 6, and 12) and, accordingly, should have his case treated in the same way. In the case of Mr. De Petrillo, the employer tendered exhibit 7, which is a letter dated March 13, 1989, from Mr. De Petrillo to Mr. Barker, in which Mr. De Petritlo requests a "transfer from {his) present position" in Dept. 910 to Dept. 940. This letter would seem to indicate that Mr. De Petrillo was in Dept. 910 on March 13, 1989. Mr. De Petrillo testified that he was still in Dept. 940 on March 13, 1989, but knew that a transfer out of that department was imminent. He testified that his letter to Mr. Barker was sent in anticipation of his being.transferred in order that his request could be recorded at the earliest opportunity. He further testified that he continued to report to Mr. Barker to March 17, 1989, and beyond, and. did not report to Ms. Smith 5 until~ sometime after that~ date.. Mr~ Barker did not dispute this 'evi~enc~. In the absence.of ,a~y_evidence undermining that of Mr. De Petr~llo,' I find ~hat ..he,, too, only received notification of transfer on March ~7, 1989, and was not yet in Dept. 910 on Mar~h. 1~,.1989. -- ~.~. ~,.. Even if Mr. De' Petrillo ~had "volunteered" tb transfer out of Dept. 940, .as Mr. Barker -testified, he was still entitled to notification of that transfer in·~a~c°rdancW With the provisions of Art.~'21.4 .(d)., and the. tran%f~r 'would only be effective two weeks .from[ the..date..0f notification .... On the, evidence before us, .I could-.not find that ~otifica~ion occurred before March 17~, 1989, in the ~case. o.f 'Mr.~ Burthwright.' Mrl]'.~.De_ Petgillo's acknowledgement in..exhibit 7 +is equivocal~ and .~or the above reasons ~,.acqept his explanation,. ~.~ For the-reasons above .set out, I. h~d c~nsid~rabl~·reservations about permitting the employer to~ rely on a ground of defence to the grievances which was not raised ·until the hea-ring.· The ground of defence objected to was: Even if the grievors were.- still -in. Dept.~-i940 on March 17 and 18, 1989,..then a full complement of_employees was obtained_. _ .from full~me..~mployees in the department with superior_entitlement to the gr~evors. It' was .the .evidence' .o~.. the grievors a~d Mr. Barker that -overtime in Dept.. )40 ~as at all material '~i~es assigned as ..follows and that this practi~e had ~een'f61io~ed for som~ time: (a) FuilTt~m~-emPloyee$~.were g~ve~ ~he first~ opportunity -.to work overtime.. on., a rotation~l.-basis, with seniority.' being... the~ dg~D_rmining factor at the beginning _. .of each ~otation. ~ .. .(b) ·/"If~ i~sufficient-.emp!6Yees Qere'obtained · -~. '~ ~.from such-full-time employees, then the ·, ~_ ~cwork. would..be offered to. private s~ock 'employees ~in D~pt. 940~ on the basis of seniority, also on a rotational basis. .(c) ' .W~ere an.,insuffici~nt n~.mber ~of employees ~- ~as obtained through the application of ~ ~ paragraphs (a) .~a~. (b), ~then. the wor~ . .would be offered .to ~mployees_ in-~Dept~ 96:Q~ ~(Bot~li.ng. Shop,) iq. order, of seniority. ... .... ~ · ~ (d)- If.. th~e -.were stil.1., an insufficient -.' number o.f employees o~ain.e~ by resort to ..'~ the above procedures, then the.work could . be;offered to casual.employees. .~ · .The. above, description of th~ pr~gtice for awarding no~private +.stock overtime 'in· Dept. 940, .was ~isagreed with by Robert .MacDougalL% a staff-relati0n~ 6kficer with the empl.oy~r. He described the procedure, as follows: 6 (b) Instead of then going'to private stock employees in Dept. 940, resort was then had to employees in Dept. 960. (c) Then to private stock employees in Dept. 940. (d) Then to casual emDloyees. The grievors and Mr. Barke~ were far more familiar with the practice for assigning non-p~ivate stock overtime in Dept. 940, as Mr. MacDougall did not work at the warehouse and was there 'about one day a week. In the circumstances, I accept the description of the grievors and Mr. Barker. While it differs from the way in which overtime is to be assigned, as described in Art. 6.06 (b), there was no dispute about it being a practice of long standing, accepted by the parties, and it was not suggested that the provision in the collective agreement should govern in this case. Mr. MacDougall testified that his investigation satisfied him that even if the grievors were in Dept. 940, on March 17 and 18, 1989, then in accordance with either view of how overtime was distributed in Dept. 940 the grievors would not have been chosen because a full complement of employees was obtained from full-time employees in Dept. 940 not assigned to private stock duties. It was acknowledged that no other employees would be resorted to until the.list of general warehouse personnel, who were entitled to the overtime, was exhausted. As I understood the evidence of the grievors and Mr. Barker, the overtime in question, when available, would always be offered to general warehouse employees, on the basis of seniority, on a rotational basis. That is private stock employees in Dept. 940 were not part of the rotation of general warehouse employees for non- private stock overtime in Dept. 940, but were part of their own rotation and only had a right to be offered the non-private stock overtime after all of the general warehouse employees in Dept. 940 had been canvassed and vacancies still remained. Mr. MacDougall testified that the person who had assigned the overtime was Lionel Bourque, the general foreman in Dept. 940. I gathered that while Mr. Bourque was the best person to testify about the assignment of the overtime in dispute, he was not called because he was oh vacation. Although Mr. Bourque's absence placed the employer at a disadvantage, this is not the fault of the union or of the grievors. Mr. MacDougall testified that in preparation for the hearing he attended on Mr. Bourque, on or ~about July 27, 1989, at the latter's office in the Toronto warehouse. Mr. MacDougall requested that Mr. Bourque consult his overtime records and read out the names of the employees in Dept. 940 who worked the disputed overtime on .March 18, 1989. Although he could only confirm what he was being told by Mr. Bourque at the time by reading the names of the emDloyees upside down, Mr. MacDougall 7 claimed t~at-he had'no difficulty· in doing so, but he does not "appear to have examined the records .in the usual way (right side up). He said that he made rough notes ~ff the information furnished by~ Mr. Bourque-.of the names of the .employees who worked and who were from the fu%l-time, non-private stock group of general warehouse employees in Dept. 940. Mr. MacDougall used the information obtained from Mr. Bourqu~ to check the seniority,~list~.in order~to verify that those chosen had the requisite, seniority, and that they were Dept. 940 employees h~ving, the first priority to the overtime. Counsel for the grievors argued that Mr. MacDougall's evidence ought not to be .given any weight because he made no effort to ascertain whether the overtime had 'been assigned n6t only in accordance ..with seniority, but also in accordance Qith the correct rotation. As the'grievors would be part. of the Private stock, rotation, this objection would not affect Mr. MacDo~gall's evidence. What is far more serious is thelhearsay nature .of the. eVidence which was not tendered'under some 'exception to the hearsay rule. In the circumstances, I must decide how much weight should be given to this evidence~ Because of the way that the evidence.was tendered, the grievors were placed at a.double disadvantage. Because they only found out about the overtime after it.had been worked, they had to rel~ on informat'ion from other employees Concerning whether employees outside of .-Dept. 940 had been asked to work the overtime. They indicated that this is what they had been informed by other employees. Counsel for the employer objected to this hearsay evidence. Counsel for the grievors responded that, in the circumstances, the nature of the evidence on the subject of who worked the overtime, as testified to by the grievors, .is understandable. Given the position taken by the employer, that 'its. defence to the grievance was being limited to the grievors not being in Dept. 940 at the grounds of defence included the position first raised by the employer at the hearing, and that this- was, in the circumstances, sufficient to raise a~ prima facie case to be responded to by the employer. It was suggested that more than the hear~py evidence of Mr. MacDougall was necessary to rebut the prlma. facie case. The difficulty that affected the grievors in presenting evidence of who actually worked overtime and whether .it included persons over whom the grievors had a prior.claim was within the knowledge' of the employer. It was not within the knowledge of Mr. MacDougall, who only knew what he learned from Mr. Bourque. It would have been a simple matter for Mr. Bourque to. testify as to the grievors' belief, based on information received, that persons had worked the overtime over whom the grievors had priority. 8 The result might well have been different if the grievors had sufficient foreknowledge that there was an issue relating to their entitlement, even if they were considered to be part of Dept. 940. They did not, and the employer chose to address the issue using the hearsay evidence of Mr. MacDougall, who could not respond to the grievors' assertions on the basis of his first hand knowledge. It is regrettable that on occasion, a grievance may succeed because of the absence of a necessary witness, whose presence is foregone because of a desire not to interfere with vacation plans. No special exception exists to cover such situations, and the grievors ought not to be penalized because of the absence of the ~ voc____ge evidence of Mr. Bourque. Cases must be decided on the evidence adduced, and in this case, for the foregoing reasons, the grievances must succeed. Counsel for the grievors asked that we award a monetary amount rather than an in kind remedy. Counsel for the employer asked that we award an in kind remedy, should we allow the grievances. From the evidence of Mr. Barker, it appears that the employees in Dept. 910, although they performed when in Dept. 940, are not assigned general warehouse overtime in the latter department, as was formerly the case. In the circumstances, awarding an in kind remedy, as was requested, could interfere with the rights of other employees to whom overtime would now be assigned. I was not satisfied, on the basis of the submissions made to us, that an in kind remedy would not create problems for other employees now in the overtime group, and, accordingly, award that the grievors be paid what they would have earned if they had worked the disputed overtime shift. As noted above, the.parties agreed that we should retain j~risdiction should they experience difficulty in agreeing as to the amount payable to the grievors. Dated at Toronto, this 20th day of 0ctober , 1989. M.R. Gorsky Vice Chairperson ! J.D. McManus Member "I dissent" (Dissent attached) G. Milley Member OLBEU (De Petrillo et al) Dissent of Georqe'Mille¥ -' ~ I' have-read the Vice-Chair's award in this case..agd after, some reflection, I must, with respect, demur from his conclus~0ns. The grievances are based on'alleged violations of Article 6.6(b). Specifically, that the 'grievers were not asked to wo~.gvertime in Dept. 940 on March 18/89 TherEmployer took the position 'that the grievers were not in Dept. 940 on Marc~ 17 'or ~8,1989, and therefore wore no.t ehtitled to be offered the'o~ertime. Second'ly, even if they'were'in Dept. 940 at-t~e relevant time, their seniority ~did not enti.tle' them to be c~led for the overtime assignment. ~ The award concludes that, on the evidence, the .grievers were in Dept. 940 on March 17. Notwithstanding that in my view, the explanation given for the emanation of Mr.~De Petrillo's letter to Mr. Barker of March 13 from Dept. 910 was less than overpowering, perhaps they were, indeed., in Dept 940 at 'the time in question. The Vice-chair has great difficulty with the Employer's second position because ib was said to be not timely. However, it appears to me, regardless of the Employer's defen'se, it would be necessary in order for the grievances t'o succeed for the grievers to show thab, not only were they in Dept 940 6n the relevant date but also that they were entitled to be called for overtime. The Board could not conclude that the mere fact of being in Dept 940 on March I8 automatically entitled them to the overtime claimed. There were~ as well seniority and rotation provisions tO be considered and the matter of whether the. grievers had a prior claim over other employees. Thus, what is described as the second part of the Employer's defense is, in fact, an onus of proof to be discharged by the grievors. On page 8 of the award, the position is taken that a prima facie case on the matter of who worked the overtime had been made against the Employer which should be responded to by the Employer. I cannot agree with this. There was no evidence that the grievors asked for and was refused information by the Employer on who actually worked overtime on the day in question and what their entitlement was. Inherent in any claim to overtime, these are factors which the claimant must be prepared to prove. It is their responsibility to show that they have been unjustly deprived of the overtime claimed. Admittedly, Mr Bourque, if he had been available, could have testified as to the grievors' belief resp- ecting the overtime worked. However, with respect, I do not see that it became the employer's responsibility to respond to the grievor's mere assertions. It was the grievors' responsibility to make their case. For the above reasons, I would have dismissed' the grievances.