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HomeMy WebLinkAbout1991-2551.Harrison & Leach.92-08-19 ON TARIO EMPL 0¥£S DE LA COURONNE CROWN EMPLOYEES O£ L'ONTAR(O GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 190 DUNDAS STREET WEST, SUITE 2.100, TORONTO, ONTARIO M5G '¢Z8 TELEPHONE/TELEPHONE (415] 326-~388 780, RUE DUNDAS OL/EST, BUREAU 2100, TORONTO (ONTARIO). MSG IZ8 FACSIi'.41LE/TEL~cOPiE .. {4 [6) fl28-t396 2551/91, 2656/91 IN THE MATTER OF AN ARBITRATION Under' THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Harrison/Leach) Grie~or - a~d - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: M. Watters Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE Grievors appeared personally. GRIEVORS FOR.THE L. Yearwood GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE J. Zarudny MINISTER OF Law officer ~ORRECTIONAL Crown Law office civil SERVICES ET AL Ministry of the Attorney General ~OR THE T. Rioux ~MP~OYER Grievance Administration officer Ministry of Correctional Services HE~RING July 21, 1992 The two (2) grievances in this proceeding read as follows: (i) Lawrenc~ L, Leach STATEMENT OF GRIEVANCE I grieve that my Employer and agents of my Employer, have contravened the Collective Agreement, by circulating and posting the attached statement. SETTLEMENT DESIRED 1. Monetary compensation of $25,000.00. 2. That my Employer and its agents be ordered to cease and desist the unwelcome vexatious comments and conduct. 3. That my Employer and its agents~ responsible for circulating the statement, circulate an apology to all institutions in the Province and post it for a minimum of 15 days. ' 4.That I receive pages 1, 2 and 3, which were circulated with the statement. (ii) Duane Harrison STATEMENT OF GRIEVANCE The Employer has contravened Article 27.10 of the Collective Agreement (dealing with Sexual Harassment) by authorizing and distributing the "White Ribbon Campaign" Letter. SETTLEMENT DESIRED 1. Letters of Apology to myself and distributed to all Ministry institutions. 2. Disciplinary action against persons responsible for authorization and distribution of said offensive letter. 3. Monetary compensation of $5,000.00. In substance, the grievors complained about the posting of a statement pertaining to the "White Ribbon Campaign." The Statement, itself, was not presented' to the Board. We were told, however, that it focused on the societal problem of violence against women. The grievors, apparently, had concerns as to the tone and content of the statement. At the commencement of the hearing, Mr. Zarudny advised us that he was appearing on behalf of the Minister of Correctional Services and several other officials who had been subpoenaed by the individual grievors. Conduct money was not provided to the persons affected by the subpoenas at the time the documents were served. For that reason, Mr. Zarudny argued that these persons were not compelled to attend at the hearing. He further argued that the grievors were not proper parties to the proceeding and, as a consequehce, were not entitled to obtain a subpoena without first receiving standing from the Board. Mr. Zarudny submitted that the grievances, as reproduced above,· did not address matters contained within section 18(2) of the Crown Employees Collective Barqainin~ Act. (CECBA). He asserted, therefore, that the grievors did not possess a statutory right to grieve. Additionally, he advised that the Union would acknowledge that no dispute existed between it and the Employer in respect of the issue raised. Mr. Zarudny submitted, therefore, that the matter could not be arbitrated under section 19 (1) of CECBA. In this regard, he noted that section 19(1) speaks solely of parties and not of individuals. Reference was also made to section 1(1)(k) which defines the term "party" for purposes of the statute. In ~ummary, Mr. Zarudny asserted that the grievors had no right to · proceed with the grievances on an independent basis and, accordingly, that they were not entitled to the subpoena at first instance. He asked that the subpoenas be quashed. We were informed both parties would be requesting that the grievances be dismissed as inarbitrable. The representative of the Employer made similar submissions. More particularly, Mr. Rioux stated that a dispute did not exist between the parties. He argued that the grievors did not, as a result, have the right to individually arbitrate the matter before the Board. He suggested that the grievors might have to proceed to other forums, such as the'Ontario Human Rights Commission or the Ontario Public Service tabour Relations Tribunal, for redress of their claims. We were referred to the awards in Blake, 1276/87 et al. (Shime) and Ally, 1036/90 (Kaplan) in support of the Employer's'position. Mr. Yearwood confirmed that the Union was not adverse to the Employer's position. He stated that the Union supported the "concept and philosophy" of the White'Ribbon Campaign. He agreed with the Employer that the subpoenas were improperly issued and that there was no arbitrable dispute between the parties. Mr. Leach advised the Board that he felt the Union had not fairly represented the 9rievors' interests. From his perspective, the Union had acted in bad faith and in an arbitrary and discriminatory fashion. He expressed concern as to the lack % of support received from the Union and as to its decision "to withdraw" from his case. Similar sentiments were expressed by Mr. Harrison. The grievors' allegations were denied by Mr. Yearwood. The grievors, through Mr. 'Leach, acknowledged that their concerns did not relate to classification, appraisal or discipline. 3 After receiving,the respective submissions, the Board elected to adjourn the'proceedings pending a written award on the jurisdictional issue. The relevant provisions of CECBA read: l(l)(k) "party" means the employee organization that is the bargaining agent for a bargaining unit, on the one hand, and the employer, on the other hand, and "parties" means the two of them; ("partie", "parties"). 18(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under'such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 19(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to' effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full ~ opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. Article 27.1 of the collective agreement reads: It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration 4 or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. In Blake, the issue for the Board's determination was whether the individual employee or the union controls access to arbitration with respect to those matters where an employee has the right to grieve under section 18(2) of CECBA. At the outset, Mr. Shime set out the "theoretical backdrop" against which the Act must be considered. He stated as follows: "We note that the grievance procedure and arbitration are two separate and distinct processes and while the grievance procedure may lead to arbitration it is preliminary to that process; the right to grieve is not synonymous with the right to arbitrate. The union is responsible for negotiating the collective agreement, and also for its administration including the administration of the arbitration processes. In administering the agreement the union has the responsibility to consider the needs of all the ,employees of the collective, and make decisions for the benefit of the group. Many factors will enter into a union's decision when it considers the competing interests within the bargaining unit and the union will undoubtedly make decisions where the individual interest is subordinated to that of the group, subject only, to the union's duty under Section 30 of the Crown Employees Collective Bar~ainin~ Act that it "not act in a manner that is arbitrary, discriminatory or ~n bad faith". Thus it is important that the union which is responsible for the collective interests of the members of the bargaining unit control access to arbitration." (pages 1-2) ~r. Shime further noted that section.19(1) of CECBA reflected the "theOretical position" that it is the union, and not the individual, that controls access to the arbitration process. After considering the awards in Kealin~, 45/78 (Pritchard) and in Francis, 1528/86 (Brandt), he concluded that "when an employee grieves under Section 18 of the Act that it is for the Union to determine whether such a matter shall proceed to arbitration in accordance with Section 19 of the Act"; (page 9). tn Ally, a number of griev0rs claimed, inter alia, that they were improperly included within the bargaining unit. At the hearing, as here, both the Union and the Employer questioned the arbitrability of the grievance. Ultimately, the Board found it lacked the jurisdiction to hear the dispute. In the course of its ruling the Board stated: " In our view we have no jurisdiction to hear this matter as it is not properly before the Board, While it is true that employees have certain statutory rights with respect to grievances, the Act is clear that the 'arbitration process is one for the determination of disputes between the parties. There is no difference or matter in dispute in the instant case between the parties ......... " (page 15) - and - " Counsel for the employees argued thatlif we did not assume jurisdiction in this case, the employees would not receive a remedy for their right. With respect, we disagree. First of all, we are not persuaded by any of the arguments with respect to recognition of a Collective Agreement right to arbitrate in Article 27. In our view, no such right exists; the provisions in question merely set out the agreement reached by the parties for the grievance process. Moreover, we agree with the interpretations ..... of previous panels of this Board that while there is a limited statutory right of grievance with respect to certain matters, there is no statutory right to arbitrate found in section 19, or anywhere else in the Act, for that matter." (page 17) After considering a~l of the submissions, the Board concludes that there is no dispute between the parties in respect of the issue raised by the grievances. Both parties are in agreement as to the merits of the White Ribbon campaign. They also share the view that there is no difference between them requiring arbitration. This Board fully accepts the reasoning expressed in Blake and Ally, the combined effect of which -is that individuals, in contrast to parties, do not possess a separate right to arbitrate under either the collective agreement or ~ECBA. It naturally follows, therefore, that the present grievers cannot in this proceeding insist on the arbitration of their complaints absent the concurrence of the-Union. If these employees believe they have not been fairly treated by their bargaining agent, they have a statutory right of remedy in section 30 of CECBA. Allegations of that type are clearly beyond the scope of our authority. In summary, the Board finds that we lack the jurisdiction to proceed further in this instance. Given this conclusion, we declare that the subpoenas which were issued and served have no force and effect. For all of the above reasons, the grievances are denied. Dated at Toronto, Ontario this 19th day of August ,1992. ~~~hai rperson M. O' Toole, Member