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HomeMy WebLinkAbout1991-1526.Union.93-07-20'~" · ,. :',, '.~- · ONTARIO EMPLOYES DE LA COURONNE '~' ?-./ .. · =... CROWNEMPLOYEES DEL'ONTARIO SETTLEMENT REGLEMENT BOARD ' DES GRIEFS 180 OUNDAS STREET WEST, SUITE 21~, TORONTO, ONTAR~, M5G IZE TELEPHONE/~LEPHONE: (4~6) 326-~388 180, RUE DUNDAS OUEST, BUREAU 2tOOj TORONTO ~ONTARIO). M5G ~Z8 FACSSMILE/~L~COPiE : (4 ;6) 326-~396 1526/91, 1294/92 IN THE MATTER OF AN~RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor The Crown in Right of Ontario (Management Board of Cabinet/ Ministry of Natural Resources) Employer BEFORE W. Kaplan Vice-Chairperson M.. Vorster Member F. Collict Member FoR THE H. Law GRIEVOR Negotiator Ontario Public Service Employees Union POR THE P. Toop RESPONDENT. Staff Relations Officer Management Board of Cabinet FOR THE' THIRD PARTY Pat Baker Sharon Clemens Michelle Craigen R.R. Davidson Sandra Dosser Lee Ann Downey Wendy Glubushkin David Guest Louis Knack Joe McCambridge Wilma Miyasaki RobertJ. Potter Joe Reid WaYne Reid L. Mark Reynolds Hank Van Luit Margaret Wakefield Mike Walker Margaret White Micheal White Bruce Zavitz I. Kleiner HEARING July 8, 1992 February 4, 1993 May 14, 1993 Introduction In our decision released on March 18, ] 993, we set. out in some detail the dispute between the parties, as well as the reasons for our ruling ordering the consolidation of two grievances before the Board. The merits of the two grievances before us, both alleging a violation of the seniority calculation provisions of two successive, collective agreements, were · addressed at a hearing held on May 14, 1993. At that time, the Board hea'rd argument from' the parties, as well as from two of the third parties' present at the hearing. Subsequent to the.hearing._of this case, the Registrar forwarded to the Board correspondence dated May ] 9, 1993 received from two of the third parties: Mr. Bruce Zavitz and ~lr. Joseph Reid. In their letters, Mr. Zavitz an'd Mr.. Reid outlined their views about the correct interpretation of the , Collective Agreement provisions in dispute. On June 1, 1993, the Registrar forwarded to the Board a letter received and dated that day from Mr. Irv Kleiner, who had been retained as counsel by one of the third parties, Mr. Mark Reynolds. Mr. Kleiner raised a number of concerns about the conduct of this case, Those concerns need not, given the decision we have reached, be enumerated here. Suffice it to say that Nlr. Kleiner.requested that the proceedings be reopened in order to provide Mr. Reynolds, and other roll-oVer employees, with a "_real and meaningful' opportunity to participate in the process." One of the principal concerns raised on behalf of Mr. Reynolds was that while he and the other roll-over employees received notice of the hearing held on May 14, 1 993, they did not receive sufficient information in advance of the hearing about the issues in dispute; nor were they specifically notified about their right to be represented by counsel. When the third parties appeared at the hearing, they were provided by the Union with a package of materials dated May 5, 1993 containing, among other things, the Board's preliminary decision in this case, as Well as correspondence and other documents setting out the Union's view of the issues in dispute. The Board's preliminary decision directed the consolidation of two outstanding grievances and ordered that all of the roll-over employees be notified of this case and of the fact that their seniority rights 'might be adversely affected by these proceedings. The Board also ordered that the roll-over employees be no.tified of their right to attend and participate in, the hearing scheduled to proceed on May 14, 19931 The notice did not specifically advise the roll-over employees of their right to retain counseF. The roll-°yet'employees were not notified of the hearing held on eit'her July 8, 1992 or February 4, 1993. No evidence or argument was tendered on July 8, 1992, as the parties endeavoured to settle the issues in dispute. The February 4, 1993 hearing dealt only'with the procedural issues referred to above, and it was during the Course of that hearing that the Board directed that notice be given, None of the merits of the case were addressed on either'of these occasions. When the 'hearing convened on May 14, 1993, the parties.and roll-over · employees were provided with the opportunity to present their evidence and arguments. As already noted, a number of roll-over'employees did attend the hearing, and all of them were specificallY advised about how to exercise their right to participate fully in it. After receiving Mr.-Kleiner's letter, the Board met in executive session to discuss his' request and the case more generally. The Board decided to request the views of the parties, and by letter dated June 16, 1993, the Registrar wrote union and employer counsel .and requested their submissions, if any, on the question of whether the case should be reopened for the benefit of Mr. Reynolds and other,third parties. Both Mr. ¥oop, on behalf of Management Board, and Mr. Law, on behalf of the Union, contacted the Registrar and indicated that they would not.oppose, for different reasons, granting Mr. Kleiner's request. It should be noted that the Union agreed to the Board_doing so on a without prejudice basis, and also set out a suggested order of proceeding for the rehearing. The Board has also received a letter dated June 25,'1993 from Mr. Peter Straszynski, an associate of Mr. Kleiner. All of these submissions have received our careful consideration. After considering Mr. Kleiner's initiat request, the submissions of Mr. Toe, p,' Mr. Law and Mrl Straszynski, the Board is of the view that the request should be granted. As indicated in our preliminary award, it is our view that the roll-over employees are entitled to notice of these proceedings. We are satisfied that they received' timely notice of the hearing held on May 14, 1993, and we are also satisfied that the substance of that notice alerted them to the significance of the matter in dispute, and of their right, to participate fully in this case. In our view, the. hearing on May 14, 1993 was conducted in complete compliance with all of the requirements of natural justice.. Moreover, the issues before us were carefully and comprehensively addressed. However, and with some serious reservations, we are willing, in the unique circumstances of this' case, to accede to Mr. Kleiner's request and to direct that the case be recOnvened for a rehearing. The fact that neither Management Board nor the Union has objected to us doing so has figured prominently in our deliberations. Th'at being the case, we direct that the Registrar reschedule this case for an early rehearing. The employer is directed to generate a list of all roll-over employees who should, upon the rescheduling of the case, receive the following notice: Take notice that a proceeding has been commenced before the Grievance Settlement Board. This proceeding may result in your seniority rights being adversely affected. ' As an interested party, you are entitled to attend and participate in these proceedings. You are also entitled, if you v~ish, to be represented by legal counsel. In our view, this notice will more than satisfactorily alert the roll~over employees to the legal issue before us and to the fact that the disposition of this case may negatively affect their seniority. This notice also cures the defect, if in fact it was a defect, in the original notice of not specifically advising the recipients of their right to obtain legal representation. Given the fact that this case was already argued once before the Board, it may be useful for Management Board and the Union to appendix a copy of this decision with the legal notice in order to explain to the roll-over employees why the case has been reconvened. Once the hearing reconvenes, the case will proceed in the usual manner. ? DA'-ED at Toronto this 2o~h day of ~,,~y, 1993. William Kaplan ,~ Vice-Chairperson M. Vorster ' ~. ~-~-~' Member-