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HomeMy WebLinkAbout1989-0440.Taylor-Baptiste.90-01-16 ONTARIO EMIPLOYf3S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTA RIO GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS sTREET WEST, TORONTO, ONT.4R. tO. ME.G 17-8- SUITE2100 TELEPHONE/T~L~PHONE I80, RUE DUNDAS OuEST, TORONTO, (ONTARIO) MSG 'tZ8 - BUREAU 2100 (416) 598.0688 440/89, 441/89, 442/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Taylor-Baptiste) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: M.W. Wright Vice-Chairperson J. McManus Member D. Walkinshaw Member For the Grievor: R, Anand Counsel Scott & Aylen Barristers & Solicitors For the Employer: M, Galway Staff Relations officer Ministry of Correctional Services Hearings: October 20, 1989 Employer's Written Submission - November 1, 1989 Grievor's Written Submission - November 20, 1989 Employer's Reply - November 28, 1989 DECISION We record at the outset that Counsel for the Grievor advised us that G.S.B. File No. 442/89 has been withdrawn from arbitration. In this Decision we deal only with G,S.B. Files 440/89 and 441/89. This Decision deals with a preliminary objection submitted by the Ministry. Counsel for the Ministry submits that the grievance is not arbitrable because the meeting required to be held at Stage Two of the grievance procedure (Art. 27.3.3) was not held and, therefore, the grievance is "deemed to have been withdrawn" as provided in Art. 27.13 of the Collective Agreement. The relevant provisions of the Collective Agreement are the following: "27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or aiffer- ences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether' a matter is arbitrable." "27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting." "27.13 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.,' "27.15 The time limits contained inI this Article may be extended by agreement of the parties in writing." It is not necessary for the purposes of this Decision to set out in detail the factual underpinning of this matter. What is relevant for an understanding of this case is that, under Art. 27.3.3 "...the Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15} days of the receipt of the grievance and shall give the griever his decision in writing within seven (7) days of the meeting." The deadline for the meeting was June 9th, 1989. That day came and went without a meeting being held. Each side blames the other, We are unable, on the material before us, to maker a finding as to who is to blame; it is not facile to state that it is entirely possible that both sides ~ust share the blame. In a written submission which we received from Counsel for the Ministry, she says '~There were no mutually acceptable dates prior to June 9th, 1989." The Ministry points out that the Deputy Minister's designees attempted to obtain a waiver (Art. 27.15 provides that the time limits contained in this Article may be extended by agreement of the parties in writing) but the Grievor and the Union, for their own reasons, refused. The Ministry notified the Grievor that the Stage Two meetings (one for each of the two grievances involved) would be held on June 6, 1989 but the Grievor did not attend either of the meetings. Consequently, the Deputy Minister's designees -- one in each of the two grievances -- notified the Grievor in writing as follows: "As you failed to. attend the scheduled Second Stage grievance meeting on June 6, 1989 the above-mentioned grievances are, therefore, considered withdrawn in accord- ance with Art, 27 of the Collective Agreement." ~ It is now argued on behalf of the Ministry that the provisions of Arts. 27.3.3 and 27.13 are mandatory and not merely directory and that since_the grievances are "deemed to have been withdrawn" {Art. 27.13) nothing is left to be arbitrated; in other words, it is argued, the grievances are not arbitrable. We asked Counsel to submit written argument. One would have thought that this issue would have arisen before this Board frequently in the past. Surprisingly, that has not been the case. We have been referred by Counsel for the Ministry to several decisions of this Board but they are founded on different kinds of facts. We are not dealing here with a case of total refusal by the Grievor to attend the Stage Two meeting; rather, we have here a case in which the parties were unable to agree, in the language of the Ministry's Counsel, on a date which was ."mutually acceptable". We look somewhat askance at the statement by the Ministry's Counsel in her written submission that "The employer is under no obligation to hold Second Stage meetings at a time which is convenient to the Grievor." Article 27.3.3 places the initial responsibility on the employer for holding the Stage Two meeting ("the Deputy Minister or his designee shall hold a meeting with the employee...") but obviously, if Art. 27.3.3. is to have any meaning, such a meeting should be at a time and place when the employee will be available and the employee must co-operate to the fullest extent possible to enable Art. 27.3.3 to play the role intended for it in the grievance procedure. The issue before us arose in Myszko 2511/87 (Verity) where the employer r~ised a similar preliminary objection for the same reasons argued before us. Mr. Verity'referred to it as "a novel preliminary objection" and, in dealing with the merits thereof at pages 8 and 9, said the following: "The thrust of the grievance procedure as contained in Article 27.1 is to adjust complaints or differences in an expeditious fashion. On the particular facts before us, there has been no detriment, injury or substantial prejudice to the Employer by the Union'slpremature action in advancing the grievance procedure. Indeed, a Stage Two meeting was held in which the grievance was denied. Admittedly, the parties have developed a comprehensive grievance procedure with certain fixed time limits for their mutual benefit. However, failure to follow the grievance procedure by taking some form of premature action creates only administrative difficulties and additional cost. Any form of premature action by either of the parties in advancing the grievance procedure should be avoided, wherever possible. However, such action does not render a grievance inarbitrabl'e. For the above reasons, the Employer's preliminary objection is dismissed." On a set of facts only slightly different from those in Myszko another panel of this Board had before it a preliminary objection to the same effect, See Klassen 1609/87 and 1297/88 (Samuels). Mr. Samuels adopted the reasoning of Mr. Verity saying, at pages 9 and l0 as follows: Once before, this Board has ruled that taking a step in the grievance procedure prematurely does not render the grievance inarbitrable, provided there has been no real prejudice (see Myszko, 2511/B7 (Verity), at pages 8-9), and we agree with this ruling." Thus, in the two cases in which the same issue came before other panels of this Board, the preliminary objections were denied. We agree with _the reasoning in Myszk~ and for the reasons set out therein, as quoted above, we reject the preliminary objection raised before us. We point out that no substantial attempt was made by Counsel for the Ministry to distinguish the present case from Myszko or Klassen. This is a proper case in which to recall the words of Mr. O. B. Shime, the Chairman of this Board, in which he stressed the collegia) nature of the operation of different .panels of this Board. Mr. Shime said: "In the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error. But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbit- ration. Under Section 20(1) of The Crown Employees Collective Bargaining Act there is a "Grievance settlement Board"' · that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20{6) a decision of the majority of a panel is "the decision" of the Grievance Settlement Board. Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one pane! the right to overrule another pane) or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to pursuade one panel that another panel was in error only encourages a mu]tip]icity of proceedings and arbitrator shopping which in turn creates undue administrative aifficulties in handling the case load. We are mindful, however, that there is no provision for -appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this peint we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances." Mr. Shime's Decision has been adopted by a number of other panels of this Board. We agree with the reasoning in Myszko and Klassen. Also, we consider that the collegial role played by different panels of this Board, as explained by Mr. Shime, should be followed by us in this case. Accordingly, we reject the preliminary objection. But this is not the end of the matter. The parties to the Collective Agreement have provided that a Stage Two meeting should be held. We are of the opinion that the Stage Two meeting is not to be taken lightly and that the case is not to be tried on its merits until the parties have fully explored the merits of the grievances in the manner contemplated by the Collective Agreement, that is to say, at a meeting of the parties at Stage Two of the grievance procedure. A somewhat similar situation arose in the case of Re Canada Post ~orpor~tion and CUPW, 30 L.A.C. (3d) 349 (Burkett) in which Arbitrator Burkett directed the parties to convene a second level grievance hearing prior to proceeding before him by way of arbit- ration. We, therefore, direct ~he Ministry to hold a meeting with the Griever within fifteen (15) days of the receipt by them of this Decision an~ we expect the Griever to co-operate fully in the holding of such a meeting. In view of the fact that we did not get into any aspect of the merits of the grievances there is no purpose in our remaining seised of jurisdiction. If, after holding the Stage Two meeting, the grievances are unresolved and the Griever still wishes to bring the matter on for hearing by way of arbitration, a request should then be made to the Registrar to set up a panel of this Board for that purpose. We are grateful to Counsel on both sides for the careful preparation of their written submissions.' BATED AT OTTAWA this 2qth day of Ja~ua~9:~-I'~qO. · MAU~ICE W. WRIGHT, ~.~C.--' Vice Chairperson JOHN McMANUS, Member "I dissent" (DEssert attached) DONALD R. WALKINSHAW, Member GSB# 440/80, TAYLOR-BAPTISTE DISSENT I disagree with the decision of Mr. Wright, Q.C. for the followiing reasons: 1. It is the duty of management to set up stage 2 meeting at a mutually acceptable time if possible and if not possible to agree to an adjournment to a mutually agreeable date. 2.It is the duty of the grievor to attend the meetin9 or to ask for an adjournment to a mutually acceptable date. 3. Compliance with Article 27.3.3 is mandatory and must be obeyed by all parties and by failure to comply with this section the grievance is deemed to be withdrawn. FACTS 1. May 1st grievance filed. 2.May 10th management responded saying there was no violation of the Collective agreement. 3.May 18th Deputy Minister received grievance. 4.Management had till June 9~h to hold a second stage meeting. 5. May 29th Phillipson designated to meet with grievor to respond to grievance. 6. Mr. Phillipson's secretary attempted to arrange a suitable date for meeting before June 9th and there appeared to be no suitable date. 7.Management then requested a waiver of ~ime limit for the second stage meeting pursuant to Article 27.15. 8. On May 30th Union and Grievor verbally refused to agree to a waiver of time limit and confirmed it on June 3rd in writing. 9. June 2nd management advised grievor by letter that second stage meeting would be held on June 6th, .../2 Dissent, page 2. 10. Neither grievor nor union attended the meeting on June 9th or sent any further correspondence. On receiving the letter of June 2nd the grievor and union had two options. They could attend the meeting and ask for an adjournment or could immediately write to management and agree to the waiver and then negotiate a mutually acceptable date. Having taken neither of these options they had exhausted all their rights under the agreement and so Article 27.13 applies and the grievance is deemed to be withdrawn. While it is quite true that management knew that the grievor would not be available till 'after June 9th it still had to comply with Article 27. It endeavoured to accommodate the grievor by suggesting a waiver of the time limits so a mutually agreeable time could be arrived at but the union and grievor refused to waive time and insisted that management comply w~th the time limits. As a result management had to choose a time between June 3rd and June 9th to hold the meeting and chose June 6th. This whole matter could have been resolved amicabi~ if the union and grievor had not been so adamant in refusing to waive time. It is well settled by numerous cases that the time set out in Article 27 are mandatory and neither management nor grievor can opt out of this Article. The cases which deal with situations where grievor proceeds to arbitration before the time limit for stage 2 have expired do not apply to this situation because time limits had long since expired before application to arbitrate was filed. In those cases no stage 2 meeting was held and in this case a stage 2 meeting was held. Dissent, page 3. - lO - The courts in those cases held that premature application by grievor for a GSB hearing before expiration of state 2 time limit does not render a grievance inarbitrable but as I pointed out above this'is a different situation than one where grievor refuses to attend a second stage hearing. In Connelly 960/88 (Dissanayare) on page 10 it is stated "Before we may seize jurisdiction in this case it must be first established that the grievor has been unable to resolve the matter under the grievance procedure in the collective agreement. Since the grievor has not established this pre-condition to our jurisdiction then this Board has no jurisdiction at this time and the application must be dismissed". In this case the grievor has not established that he was unable to resolve the matter under the grievance procedure because he, by his refusal to attend the hearing of June 6th or to agree to an adjournment, negated any attempt to resolve the matter and so he cannot say he was unable to resolve the matter. Therefore following the Connelly case this Board has no juris- disction in this matter and the application must be dismissed. DATED this 16th day of January, 1990. Member