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HomeMy WebLinkAbout1989-1978.Marinelli.90-10-11 .. '. ONTA,qlO EMPLOYES DE LA COURONNE ~ : CROWN EMPLOYEES DE L'ONTARIO ....... GRIEYANCE C,OMMISSlON DE SE'I-I'LEMENT REGLEMENT BOARD DES GRIEFS ?,~0, ;RUE DUNDAS OUEST, ~UREAU 2 lO0, TO~IOhlTO (ONTARIOJ. MS~ tZ8 FACS.~t~4'~E/T~-LECOP~E · 14 ~6) 3£6- ~396 1978/89 IN THE MATTER OF ~%N ARBITRATION Un,er THE C~OWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Marinelli) ~rievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: B.-.Kirkwood Vice-Chairperson J. C. Laniel Member D. Montrose Member FOR THE R. Blair ~RIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors - FOR THE M. Farson EMPLOYER- .. Counsel Fraser &'Beatty Barristers & Solicitors HEARIN~ June 27, 1990 Page 2 INTERIM DECISION The Grievance Form stated the'grievance as follows: I grieve that the employer is violating the collective agreement by its negative treatment of me. The settlement desired was stated as: That I be treated in the same manner as any other employee and be allowed to Perform the full range of duties of my position. During the course of the grievance procedure the Union and the grievor reviewed 18 incidents which formed the grievor's allegations of his negative treatment. The basis of the Union's position during the grievance procedure, as presented by the Ministry and not disputed by the Union, was that the grievor was being discriminated against by the incidents, which included, allegations of improper work assignment. During the grievance procedure, the Ministry took the position that many of the incidents were inarbitrable and asked the Union for the particulars upon which it would be relying. The Union informed the Ministry of its position, on Friday June 22, 1990, three working days prior to the hearing, by letter stating: Further to your request for particulars in this matter, we can inform you that the position of the union will be that the assignment to Mr. Marinelli to his current duties, which was announced on December 4, 1989, constitutes a disciDlinary demotion for which there was no just cause. Mr. Marinelli was informed on December I1, 1989, that the assignment was the result of his alleged inability to work with other people. In the Page 3 alternative, should the matter not be considered disciplinary, it is our position that in any event the reorganization resulting in the assignment and the assignment itself were not a bona fide exercise of a management right, and were improper and discriminatory treatment of the grievor. At the outset of the hearing, the Ministry's counsel objected to the scope of the grievance set out in the Union's letter of June 22, 1990. She alleged that the ~Union was attempting to alter the grounds of the grievance from discrimination ih the 'Ministry's assignment of duties to unjust demotion.' The Ministry's counsel argued that although the assignment of dut'ies was one of the 18 incidents referred to above., both parties had proceeded through the gri~vanc~ procedure discussing changes to the ggievor"s duties, but not changes to his position. The Minis~rY's counsel submitted that the new grounds ought not to form part o~ the grievance and the grievance ought to be restricted to the ground's set out in the grievance form. -In'support of her position, she relied- on the cases of Q.P.S.E.U, (MacPherson) and The Crown in R{ght of Ontario (Ministry of Community And Social Se'r¥~ces) G.S.B. #83/84 (Brandt) and O.T..g.~:U.{Gwi~) and ThD Crown JiB' R~ht o~ D~tar{o ~.i~uor Control Ro~rd of Ontarib) G.S.B. 27/83 (DraPer). " The Union'~ counsel also 'c~aracterized the dispute as a dispute over whether the employer~acted properly in. the assignment of duties to the grievor. He stated that the grievor perceived that the assignment of duties had a negative impact upon him. He argued however, .that the groun~ of discipline was included in the original grievance and was not an Page 4 enlargement of the grievance. He submitted that that the circumstances relied on are the same, and the remedy, bo get back the grievor's duties is substantially the same. The Union's counsel argued that whether discipline ca~ be raised is a procedural and not a substantive matter. He submitted that it is merely a difference in the characterization of the facts. The Union relied on the Re B]ou~n ~rywai] ContractOrs ?.t~= and Uqited Brot~herhoop O~ Carpenters and Joiners. Local 2{~6 8 0.R. (2d) 104, R~. United Steelworkers, T.o~ 3998 and Dunh~~Bush (Canada~ Ltd. 15 L.A.C. 270 (Lang), Re International ~or~ers Qf America and Canadian GyDsum Co. Ltd. 19 L.A.C. 341 (Weiler), Be El~ctrohome Ltd. and Internat~°~a] Bro~erhoo~ of Electrical. Workers, I.o'ca] ~ 16 L.A.C. (3d) 78 (Rayner), Be ~arvey Woods Tran~or% ~d~ and Teamsters Union. Local 141 15 L.A.C. (2d) 140 (Weatheritl), O.~.S.~.U. (Price. JohDs, !.eigh) and The Crow~ ~n R~ght of Ontario {~nis. try of Community ~nd Social Serv4c~) G.S.B. 25/81 (Verity), O.P~S.K.U. (Thadan~) and ~ CrQwn in R~ght of Ontario (Ministry of Revenue) G.S.B. 1686/87, 1688/87, 1689/87 (Saltman), O.P.S.~.U. CRoxborough) and The Crqwn 4n R~ght of Ontario (M~nistry of Community ~n~ Social Servicesl G.S.B. 1289/87 (Samuel), O.P~S.E.U~ (T~lor- R~tiste) and T.he Crown ].n Righ~ of Ontario (Ministry o~ ~orrection~] Services) G.S.B. 0163/87 (Kennedy) cases. The Court of Appeal in the Blouin (supra) decision articulated the Court's perspective of the approach to be taken by boards of arbitration. Mr. Justice Brooke stated at page 108: ...No doubt it is the practice that grievances be submitted in writing and. that the dispute be clearly stated, but these cases should not be won Page 5 or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved. When a board of arbitration ks satisfied on the evidence, that a party to a collective agreement is in breach thereof, it is the board's obligation to -render its decision accordingly. However, that decision is~ not simply a statement of the finding of the board with respect to the allegation made in the grievance.,' but is a consequential order or award, if.any, that is required to give effect to the agreement. Certainly the board is bound by the grievance before it but the' grievance should be liberally construed §o that the real complaint is dealt with and the appropriate remedy provided 'to give affect to the agreement.provisions, and this whether by way of declaration of rights or duties, in Order to provide benefits or performance of obligation or a monetary 'award required to restore one to the proper position he would have been in had the agreement been performed. The Canadian Gypsum (supra) case applied the same approach as the Court in the Blouin (supra) 'de~ision, and allowed the company tO argue at the arbitration that it had just cause.to discharge the grievor, when a{'~he'first "~tage of the grievance procedure the company had characterized'the circumstances as a "quit" by' the employee. However, Mr. Weiler emphasized the importance that the parties be made aware of the issues that are before them as early as possible. He stated at page 34'6: ...there must be a duty .imposed on each party to disclose the factual grouqds, and legal bases, on which it proposes to rely as soon as they can reasonably be discovered and advanced. ~ · Arbitrator Rayner-in the ~lectrohome (supra). decision adopted the ~Qui~ appro.ach, but pointed out that the parties' rights to resolve issues between them through the grievance procedure is endangered by expanding a grievance to' include new grounds to be heard at the. hearing. Page 6 ~ o Arbitrator Rayner stated at page 82 of the decision: ...If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would be to deny the value of flexibility and would be to compel the parties to draft their grievances with the nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the. board to permit the party to raise that i~sue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance. The principle espoused in the Blouin decision has not been interpreted and applied so that any issue that may involve the same facts is to be heard by the board of arbitration formed to resolve the original issue. Although boards of arbitration have adopted a flexible approach to the subject matter before them in order that the real dispute between the parties can be resolved, as in the Du~ham-~ush (supra) case, many boards have limited the scope of the hearing to the subject matter outlined in the grievance. (M~cPherson, (supra) ~in (supra), Electrohome (supra) decisions.) In other words, as Arbitrator Saltman stated the issue in the Th~d~[ (supra) case, are there new grounds raised. The Board is of the opinion that we should not apply an overly technical approach to the arbitration process in order tha't the issues between the parties can be dealt with. However, at the same time: we must honour the collective agreement that the parties have entered into and not allow that parties to circumvent the grievance procedure, which is allows the parties to resolve fssues between Page 7 themselves without third party intervention. As a result, we must consider whether the characterization_of the issues as suggested by the Union,. is inherent in the grievance or do~s it raise a new ground. The original ~rievance indicated that the grievor was receiving allegedly negative treatment. The relief sought was the return of duties which the grievor had previously performed. The allegation 'which flows from the ~ statement of the grievance and from the relief sought is that' the Ministry was not assigning duties to the grievor properly. Both the Ministry and the Union agreed that was an issue. The Union claimed that the facts also support the claim that the grievor was unjustly demoted. We find that the' claim of unjust demotion is not inherent in a claim of improper work assignment which constituted alleged negative treatment. Discipline suggests that the grievor had done something wrong for which he was being, penalized. There was no allegation made by the Union at any time that the Ministry had unjUstly found the grievor committing a wrong for which he was being sanctioned. The Union's present .claim is contradictory to the remedy sought in the grievance form. 'A demotion goes beyond the reassignment to prior duties, as it involves a return to a prior position which includes ~the return to prior duties. In this grievance, the grievor sought to ~egain the ability to do the full range of duties of his Position, but there was no suggestion in the grievance form, nor ~ven in argument that the grievor lost his position. The Union is therefore seeking- not only a procedural change in the process, but a substantive change to Page the grounds. The grievance on its face places the onus on the union to prove that the grievor suffered discrimination and the employer acted improperly. The affect of presenting a claim for unjust discipline is to shift the onus to the employer to prove that the Ministry did not unjustly demote the grievor. If the board was to find that unjust demotion was incorporated within the claim of negative treatment, the. Board would in effect be changing the onus from the Union to the Ministry. In our view, although the grievance is not to be technically construed as would a pleading in a civil litigation, in order that the real issue between the parties can be resolved, the grievance still must determine the scope of the issues that are to be brought before the Board. Therefore, a matter which is inherent to the original grievance can be raised at the hearing, but not a new issue. We find that the claim now presented that the grievor was unjustly demoted is a separate claim from the original claim of negative treatment. The converse situation arose in the MacPherson case. The grievance had proceeded on the basis that the work assigned was disciplinary and the Union sought to raise an alternative position at the hearing that the assignment was improper. The Board did not allow the alternative argument to be raised, but limited the Union to the grounds set out in the original grievance. Similarly, in the Gwin (supra) decision, the Union abandoned its claim that the grievor had been disciplined without just cause and wished to proceed on the dispute between the parties on attendance credits, which it said was the basis of the grievance, although 'it was not referred to in the grievance. The Board did not allow this argument on the basis that the grievance as initially stated and " · . Page 9 ~- proceeded upon through the~ grievance procedure defined the nature and the scope of the grievance, and held that the request 'by the union ~fundamentally altered the original grievance, as it raised different issues. Furthermore, unlike the Canadian GyPsum case and the glectrohome case, the Union did not make the Ministry aware of its position until shortly before the hearing. Some matters can be accommodated by granting an adjournment in order that the parties can be prepared to meet an unexpected matter, but in this case, an adjournment will not allow the' parties to use the grievance procedure to attempt to resolve a substantive issue. Therefore the Board holds that the preliminary objection is uph'eld. The arbitration on the merits of the grievance shall be continued on dates to be set by the Registrar. Dated at Toronto, this ilch day of 0c~ober , 1990. B. A. Kirkwood, Vicechairperson J , Member D. Montrose, ~4ember