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HomeMy WebLinkAbout1991-2884.Bennett et al.95-10-12 ONTARIO EMPL OYeS DE LA COURONNE · CROWN EMP~ 0 YEES DE L 'ON ~A RtO ~ GRIEVANCE C~MMISSION DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 180 ~UNDAS:~TREET WEST. SUITE 2~, TORONTO, ONTAR~. MSS ~Ze TE~P~NE/T~LEP~ONE: ~4~6~ 326- ~80; ~OE ~UNDAS ouEST, BUREAU 21~, TORONTO {ONTARtOJ, MSS lZ8 FACSIMI~/T~L~COPtE ~ (416) 326-~3~ ' OPS~U ~ 92BSi4-92B524 GRIE'~ANC~ SE~LEMENT ~e~oge THE G~IEV~CE SETTLEMENT ~OA~D BETWEEN OPSEU (~ennett et al) Gr~evor The Crown in Right of Ontario (Ministry of Tourism & Recreation) St. Lawrence Parks Co~ission Employer BEFOR~ H. Finley Vice-Chairperson T. Browes-Bugden Member F. Collict Me, er FOR THE K. Waddington GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & solicitors FOR THE D. Costen EMPLOYER Counsel Legal Services Branch- Management Board Secretariat HEARING November 16, 1994 GSB # 2844/91 DECISION On November 26, 1991, Mark Bennett, who is employed by the St. Lawrence Parks Commission, Ministry of Culture, Tourism and Recreation, at Fort Henry, Kingston, grieved that the Employer has been and is continuing to violate the collective agreement by . designating me improperly as a seasonal employee. Mr. Bennett asked for the following settlement: That he be designated properly as a classified employee (i.e., Civil Servant) and that he be reimbursed for any and all losses which have resulted from the violation, (including but not necessarily restricted to differences in benefits, vacations, seniority, paid holidays, etc.). During the same month, ten other grievors filed grievances which, although differently Worded, are substantively the same; this group of grievances was consolidated. All were received at OPSEU's Kingston office in November 1991. On March 9, 1992, Mr.,Nick Luczay, Grievance Officer at OPSEU's Head Office wrole to the Registrar of the Grievance Settlement Board for a hearing date. On November 16, 1992, the matter was adjourned, and on August 16, 1994, Ron Davidson, Coordinator, Odevances at OPSEU's Head Office in Toronto, wrote to the Registrar of the Grievance Settlement Board "to request scheduling of the above grievance at the earliest convenience of the Board." A hearing was held on November 16, 1994. At the hearing, David Costen, Counsel for the Employer, raised a preliminary objection with respect to the Board's jurisdiction on the basis that the grievances had been removed from the Grievance Settlement Board's Adjournment/Inactive List and, "closed and terminated", and that the Employer had been so informed on May 2, 1994, by the Grievance Settlement Board, only to learn in September 1994, that the grievances had been scheduled for hearing in November 1994. The procedure referred to by the Employer was developed by the Grievance Settlement Board in 1989, and a memorandum was sent out to all the clients which the Board services on July 5, 1989. (The original of this memorandum was not presented in evidence, due to lack of availability.) On November 19, 1990, Owen B. Sbime, Chairperson of the Grievance Settlement Board, wrote to clients of the Board, among them the Ontario Public Service Employees' Union and the Ministry of Tourism and Recreation, concerning the Adjournment/Inactive List: On July 5, 1989, we wrote you concerning a new procedure involving an adjournment/inactive list. At that time it was noted that unless either party to the proceedings requests that the cases remain open, cases that have not proceeded within a year from the date of their adjournment will be terminated and the fides will be closed without further communication to the parties. On December 5, 1989, the first Inactive List, which was for the period September 1, 1989 to November 30, 1989, was sent to you. Please be advised that all cases adjourned from September 1, 1989 to November 30, 1989 and still remaining on the attached Inactive list will be terminated on December 5, 1990 and the files will be closed. If a party wishes to have a ease remain open, the Board should receive before December 5, 1990 an individual letter requesting such for each ease and explaining the reasons. Please be advised that it is the parties' responsibility to advise their respective counsel of the cases that appear on this list. [Emphasis added] On March 12, 1992, the Registrar of Re Grievance Settlement Board wrote to a number of its employer orients, among them the Ministry of Tourism and Recreation, as follows: RE: Acknowledgement File Notice is hereby given that the Grievance Settlement Board has received the following applications on the attached list for a hearing before the board. Further notice will be given as to the time and place of the hearing. Attached to this was a list, by ministry, and under the Ministry of Tourism and Recreation was 2884/9 t 92B5 ! 4-524 Bennett et al Seasonal Employees. On August 6, 1992, the Union wrote to the Registrar of the Grievance Settlement Board as follows: Re: BENNETT ET AL, Local 464 SHAVER, MCELHERAN, BERIAULT ET AL & KELLY, Local 404 Ministry of Tourism & Recreation Issue: Classified/Unclassified Grievance (s) Date: Various Dates We would ask that you please re-schedule a pre-hearing date on the above captioned grievances as' soon as possible, in order for the parties to meet prior to the Arbitration Hearing. If further information is required please contact Rose Phillips in the Brockville Regional Office. Thank you for your attention to this matter. Yours truly, (Signed) Rose Phillips, Grievance Officer cc. M. Hart, Mgr. Human Resources, MTR N. Luczay, grievance Officer J. Reid, Admin. Assist., Grievance Dept. There was no evidence as to whether or not prehearings were held in these matters. In February 1994, Mr. Shime sent a memorandum to clients of the Grievance Settlement Board, among them, the Ontario Public Service Employees' Union, the Ministry of Culture Tourism & Recreation, and the St. Lawrence Parks Commission, concerning the Adjournment/Inactive List. it stated Attached is the latest copy of the Adjournment/Inactive list. This is to advise that all cases appearing on this list for more than one year, up to and including February 15, 1993, will be closed by the hoard on March 15, 1994 without further communication to the parties. It is the responsibility of the parties to advise the Board in writing to re-activate a ease, [Emphasis added] Attached to the memorandum was the Adjournment/Inactive List, as of. September 1, 1989, with the following explanatory note: Notice: This list ¢omains'cases that have been. scheduled for heating and have been adjourned at the request of the parties. The list will be published every six months. Where a case appears on the list for more than a year the Board's file will be closed and the proceedings in that case will be deemed to be terminated. It is the responsibility of the parties to have eases removed from the inactive list and either party may do so by advising the Board in writing of their desire to activate the file for either pre-heating or hearing as the case may be, or to have the ease remain on the list pending the outcome of another matter. Requests tO activate must be made within a year from the date that the case appears on the Inactive List. Legend: ADJ. - Adjourned 'S' - Settlement 'W' - Withdrawn N/A - Not available O/C - Outcome 4 SD Sine Die PEND Pending The page showing Items 480 to 495 was submitted in evidence. It showed that on November 16, 1992 Item 491, GSB # 2884, OPSEU (Bennett et al) and MTR was' adjourned pending "JR OF LAVOIE". This particular page showed three other items and six other grievances adjourned that same day for the same reason. The Lavoie matter was initially to be heard on February 4, 1993. It was adjourned by the Court on that day to February I I, 1993, and the decision was handed down by the Ontario Court of Justice on that day. On May 2, 1994, a memorandum went out from the Registrar of the Grievance Settlement Board to a number of the clients of the Board. Among these was the Ministry of Tourism and Recreation. The Ontario Public Service Employees' Union was not included in the distribution list and a review of the list shows that this distribution was limited to employers. The memorandum - advised as follows: In accordance with Mr. Shime's letter of September t3, 1991, please be advised that the following cases from the Inactive List have been terminated. Attached was a TERM!ISIATEr} I*II,Es IISTiN~, and under the heading, Ministry of To~rism & Recreation, was 2884/91 92B514-524 Bennett et al Seasonal Employees Excerpts were submitted from two further Adjoummentffnactive Lists, these from August 1994, the second being a reissue of August 25, 1994, which at the time of the hearing on November 16, 1994, was the most recent Adjournment/Inactive List put out by the Grievance Settlement Board. Mr. Costen informed the Registrar of the Grievance Settlement Board that he was not at all aware of the new date of adjournment. On September 8, 1994, Mr. Michael Hart, Manager of Human Resources for the St. 5 Lawrence Parks Commission, faxed a memorandum to the Registrar of the Grievance Settlement Board stating Please note that Bennett et al (2884/91) scheduled for Nov 16, 1994 hearing is a terminated case. Attached to this was a copy ora hearing schedule noting five cases which are scheduled for 10:00 a.m. on November 16, 1994, one of these being Bennett et al. Of the five cases scheduled two were highlighted as from "Cases from the Inactive List." They both show that the instant case has a new item number - 1856, and give the following identical information: 1856 2884/91 OPSEU(BENNETr ET AL)MCTR Original Date of Heating: Not listed Date of Adjournment: August 17, 1994 [not the original adjournment date] Reason for Adjournment: Reschedule Hearing Per R. Davidson On September 13, 1994, Ms. Nicole Swinscoe from the Human Resources Office at the St. Lawrence Parks Commission, sent a copy of the May 2, 1994 memorandum to the Registrar of the Grievance Settlement Board with the following note: Please note that GSB 2884/91 Bennett et al was terminated as per this notice from .you. A copy of this note was sent to Mr. Ron Davidson, Coordinator of Grievances at the Ontario Public Service Employees' Union, by the Registrar of the Grievance Settlement Board on September 23, 1994, with a copy to Ms. Swinscoe. As well, on September 13, 1994, the Registrar of the Grievance Settlement Board sent a letter to Mr. Gavin Leeb, a Grievance Officer with OPSEU located at the Head Office with a copy to Michael Hart. It said: 6 RE: 2884/91 OPSEU (Bennett et at) and the Crown in Right of Ontario (Ministry Of Tourism & Recreation) We have received a letter dated September 08, 1994, from Michael Hart, St. Lawrence Parks Commission, regarding the above noted matter. The Board would like to have your comments as soon as possible. It enclosed a copy of the September 8, 1994 fax of Mr. Hart (see above) in which he commented: Please note that Bennett et al (2884/91) scheduled fc~r Nov 16, 1994 hearing is a terminated case. On September 30, 1994, Nick Luczay, a Grievance Officer with OPSEU at its Head Office in Toronto, sent the following letter to the Registrar of the Grievance Settlement Board and copied Ron Davidson, Coordinator, Grievance: Re: Terminated File I,istings We noted today that on the same list of terminated files where "Bennett et al" GSB #2884191, is listed, there are a number of other cases which should have remained on your Inactive File. These cases are: GSB #2946/91 D. Shaver GSB #2947/91 A. McElheran GSB #2948 Beriault et al GSB #2949/91 E. Kelly Please note also that we wrote to you recently regarding the scheduIing of OSB #2948/91 Beriault et al. A copy of this letter was forwarded to Ms. Melanie Goldhar, Director, Human Resources Branch, Ministry of Culture, Tourism and Recreation, by the Registrar of the Grievance Settlement Board on September 30, I994, and copied to MesSrs. Luczay and. Davidson and to Ms. Swinscoe. '~ [See condensed chronology at Appendix A] Argument on Jurisdictional Issue Mr. Costen, for the Employer submitted that the matter should be dismissed for want of jurisdiction since the grievances have been dismissed by the Grievance Settlement Board's own procedures, in this case, a procedure and practice which had been in place for a year at the time the grievances were filed. He emphasized the importance of procedural certainty for the parties. He noted that the reason for the adjournment in 1993 was the awaiting of the judicial review decision in the Lavoie matter and that the Union had until March 15, 1994, to bring the matter on, which it failed to do. He submitted that the grievance remained on the Grievance Settlement Board's Adjournment/Inactive List for more than twelve months with no correspondence from the Union to the Board, even when notice of the proceeding's termination was sent from the Board to the Union. The Employer, which had also received notice of the termination, in September 1994, received notice oft. he t~ear/ng date and when it asked for an explanation on two occasions, none was given, neither from the Union,'nor from the Board. The G-rievanee Settlement Board has the power under s. 2 0 of the "old" Crown Employees' Collective Bargaining Act to terminate proceedings and in this instance more than adequate notice was given. The Board, Mr. Costen maintained, should enforce its practice and procedures. All that is let't to be done is for the Panel to confirm and uphold the procedures and practices of the Board. Should these not be upheld, then all cases which have been terminated due to their placement on the Adjoumment~naetive List, for the designated period of time, could resurface several years in the future. Mr. Costen acknowledged that there may be exceptional circumstances in which a Panel might find it appropriate to take jurisdiction over a case previously terminated as part of the Board's procedure, however, in the instant case, none is forthcoming. Kelly Waddingharn, for the Union, argued that the Crown Employees Collective Bargaining Act demands that the Grievance Settlement Board allows the parties to make submissions and hears the evidence. Section 19 (1) ofthisAct reads as follows: 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 8 matter may be referred for arbitration to thc Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidencc and to make their submissions, shall decide thc matter and i~s decision is and binding upon the parties and thc employees covered by thc agreement. [Emphasis added] While the policy may be in place for the purposes of administrative efficiency, it should not, Waddingham maintained, be applied in every case, and if a grievance is withdrawn, thc Union should be able to rebut this presumption. Counsel for the Union submitted further that the arbitral jurisprudence demands that there is an intention to withdraw and that, in this instance, there was no intention to withdraw. The investigation of the process of the instant case, showed that during the 1994 period, Mr. Luczay was the Grievance Officer who was temporarily assigned to act as Coordinator of Grievances during a change of coordinator and that the Grievance Officer responsible for the Ministry of Culture, Tourism and Recreation was also changed. Ms. Waddingham cited two cases in support of the Union's argument: OPSEU ( E. £oweth) and The Crown in Right of Ontario (Ministry of Labour), GSB # 1668/87 and OPSEU (Williams) and The Crown in Right of Ontario (Mini,try of Culture & Communication), GSB # 1607/86. The first of these addressed the issue of "wl~ether an erroneous communication of this kind constitutes an effective and irrevocable withdrawal of the grievance". [This case took place prim: to the establishment of the Adjournment/Inactive List procedure.] In this case, the grievance was adjourned sine die on the agreement of both parties shortly'before the hearing scheduled for January 29, I988, due to the unavailability of the grievor. On May 17, 1988, the Coordinator of Grievances advised the Grievance Settlement Board's Registrar that "a hearing in this matter is no longer required, your file may be closed." The letter was received by both the Board and a copy by the Deputy Minister on May 24, 1988. Within a few days, the Union discovered that this letter had been 9 sent out in error and informed the Board of its error. However, neither the Union nor the Board intbrmed the Employer. The Board rejected the Union's first argument that the letter was not written to the Employer and was not couched in the language of withdrawal. With respect to the issue of intent, the Board wrote as follows: In our view, the accidental and erroneous nature of the communication substantially complicates its effectiveness as a notice of withdrawal. In resolving this issue, we begin with the assumption that withdrawals should generally be considered effective and irrevocable. In a case where the Union has formulated an intention to withdraw the grievance and then does so, policy considerations weigh in favour of refusing to allow the union to revive the grievance. Although the Union may come to regret its decision to withdraw the grievance, there are good reasons for holding the Union to such decisions as a matter of general principle. In the ordinary course of events, an employer should be entitled to act on the assumption that such communications are binding and conduct its affairs on that basis. A general rule that permitted revival and therefore required the Employer to assume that withdrawn grievances might be revived would constitute an unattractive impediment to effective dispute resolution and stable relations between the parties. Further, finality in dispute resolution is, of course, a two-way street. It is in the Union's interest that the Employer is unable to resile fi.om binding commitments which are advantageous from the Union's point of view. As a general matter then, we believe that there are sound reasons for the · general principle that withdrawals are binding and irrevocable, notwithstanding the fact that this requires frustrating any second thoughts that the Union may have about a grievance it has withdrawn. In our view, however, somewhat different considerations are brought to bear when, as in the present case, the Union has not formulated an intention to withdraw a grievance but has accidentally communicated an apparent intention to do so to the Employer. In such a ease, the Union is not attempting to act upon its second thoughts with respect to the legitimacy ora grievance it has withdrawn. Rather, it is attempting to peruse the merits of the grievance which it has not intended to withdraw. If the accidental communication resulted from typographical or other clerical error it would no doubt seem unjust both to the grievor and to the Union that the mere making of a mistake of that kind should result in the suppression of what they view as a legitimate grievance. We would emphasize that the Employer is urging upon us that an erroneous communication of the kind in issue here is, upon receipt, effeetiv~ to irrevocably. withdraw the grievance. It is no part of the Employer's argument on this objection that the Employer has relied in some detrimental way on the receipt of a copy of Mr. Pratt's May 17th letter. The Employer argues, in effect, that if it had received notice of the error within minutes of its receipt of the copy of the letter, the grievance would I0 ,2 nonetheless have been effectively withdrawn. In our view, the policy favouring finality in dispute resolution does not reach this far and accordingly, we hold that the receipt of the May l Tth letter does not have the effect contended for by the Employer. For a withdrawal to be effective, the Union must formulate an intention to withdraw the grievance and communicate that intention to the Employer. In the present case, the first element is not present, i four ruling has the effect of requiring the Employer to confirm with the Union that a grievance has, in fact, been withdrawn in doubtful cases, we do not view this as too great a price to be paid to ensure that potentially legitimate grievances are not suppressed on the basis of clerical, typographical or other similar administrative errors. In summary then, the preliminary objection of the Employer to the effect that its receipt of a copy of Mr. Pratt's May 17th letter to the Grievance Settlement Board constitutes, per_se, an effective and irrevocable withdrawal of the grievance is hereby dismissed. In the Williams case, supra, the Panel also dealt with intent to withdraw a grievance and the Union's contention that the supposed withdrawal was an error. The Union relied on the above case among others and took the position that the "withdrawal" was a mistake and that there was no intention to withdraw. The Employer submitted that the grievance was in fact withdrawn and that the Employer had relied on the documents. Counsel for the Employer argued that the law'is clear that when a grievance has been settled, withdrawn or abandoned it is not open for the union to later seek adjudication. Second, and in the alternative, counsel argued that even if the Board found that the grievance had not been withdrawn or settled, that it should be dismissed on its merits as a result of prejudice to the employer caused by delay. Counsel for the Employer in that case went on to argue that the Loweth ease supra was wrong in law. The Board arrived at the following conclusion: the grievance ~ in this case was never effectively withdrawn. In reaching this conclusion we adopt and apply the reasoning of the Board in the l.oweth case. In our view, the I,ow_eth decision is correct and is applicable to the instant case. Simply put, the withdrawal of the grievance was a mistake. 11 In reaching this result, we agree with counsel for the employer, and tbr that matter the Board in the Loweth case, that the general rule is that a withdrawn grievance cannot later be brought to arbitration. This is a good rule, and it makes good industrial relations sense. But tike many rules, there are exceptions to it. And the exception in this case is where a grievance was mistakenly and incorrectly withdrawn, and where that error was discovered and brought to the attention of the Board and the employer. Had the union not acted expeditiously upon discovering its mistake, or had the grievor not demonstrated a continuing interest in his grievance, we may have reached a different result. Neither circumstance, however, applies to the inslant case. And finally, in the instant case, Mr. Waddingham submitted that the Ministry has failed to show that it would be prejudiced by the Panel hearing the grievance. The delay of five months, from May 1994, has not, she maintained been prejudicial to the Employer; a further delay itself is not sufficient ground for dismissing the grievance on the merits. Nor, MS. Waddingham submitted has so much time passed as to establish constructive abandonment rather, the matter was brought to the attention of the Grievance Settlement Board shortly after it was discovered. In summary, Counsel for the Union stated that the Union had met the test set out in the Grievance Settlement Board cases: · No intention to withdraw · An unfortunate mistake · Immediate correction. Further, she stated that Counsel for the Employer acknowledged that the Employer has not suffered prejudice. She asked that the Board continue to hear the merits of the case.. Mr. Costen, for the Employer submitted that the Grievance Settlement Board under the .Crown Employees Collective Bargaining,4ct s. 20 (9), has 'the power to determine its own practices and procedures and that ifOPSEU had concerns with the procedure in question, that it has had since I989 to raise an objection to it. Section 20 (9) reads as follows: (9) The Grievance Settlement Board shall determine its own practice and procedure but shall give full oppommity to the parties to any proceedings to present · their evidence and to make their submissions, and the Grievance Settlement Board 12 may, subject to the approval of the Lieutenant Governor in Council, make regulations governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable. Under the procedure, full opportunity is given to the parties, and there is no termination without notice and the procedure was no different in this case. He submitted that it was difficult to understand how a change of coordinator would relieve the Union of its responsibility of corresponding with the Grievance Settlement Board to inform the Board of a problem or of providing the Employer with an explanation, when ask~ in September 1994. He submitted that the cases put in by the Union [Loweth and Williams] are in advance of the establishment of the practice. and that therefore those cases should be read in light of there being no practice at the time. A grievance should not be continued "forever and a day," especially when there has been, up to the day of the hearing, no explanation from the Union. The r~asons given at the hearing are not, in Mr. Costen's opinion, sufficiently compelling for the Board to abrogate its procedure and it urged that the procedure be enforced. At the time of the hearing, it was drawn to the ~tion of the parties by the Panel that a case on the same issue was heard recently and that the Board in that case reserved its decision. The Panel determined that it would await the decision in that case and invited the parties to make written submissions with respect to the case following its release. The decision in OLBEU (Thompson) and the Liquor Control Board of Ontario, (1994) GSB 1721/92 was issued on January 24, I995. The parties responded positively to the Panel's invitation. The facts of this situation were that in April 1994 the Union (OLBEU) identified in a written communication to the Registrar of the Grievance Settlement Board that there was a number of cases on the Adjournment/Inactive List that it wished to have remain active. The case which was being considered was not amongst them. In May, the Registrar wrote'to the Union among others, advising that a number of cases from the Adjournment/Inactive List had been terminated. The case being considered, was among them.' The Union requested a copy of the authority for the termination and while it did not receive the Specific memorandum of Mr. Owen Shime, the Chairperson of the 13 Grievance Settlement Board, it received an earlier one and was informed it was similar in nature. In June 1994 the Union sent two letters to the Grievance Sectlement Board attempting to reactivate the case in question, while the Employer sent one noting the earlier termination. Then in August, the Registrar. sent a letter to the Union advising that the case could not be reactivated because it was "already terminated on May 2, 1994." The Employer, in a September letter, confirmed its position. The following month, Mr. Shime sent a letter to John Coones, the President of the OLBEU, "agreeing to hold on the Adjournment/Inactive List "all Ontario Liquor Boards Employees Union files on the August 25, 1994 ... List." The list was appended to the letter and included in it was the case under consideration, with an indication that it had been adjourned on the same day that the Registrar had informed the Union that the case could not be activated because it was terminated. At the hearing, the Employer argued that because the case was terminated pursuant to a policy of the Grievance Settlement Board that the Panel did not have discretion to reinstate the case, or, in the alternative, that if the Panel concluded it did have discretion that the discretion should only be exercised where there were compelling reasons to do so and such masons did not exist in the case under consideration. The Union maintained that the Panel did have discretion to reinstate, and its failure to do so would be unfair to the Grievor and a windfall to the Employer. The Union also submitted that the case had already been reinstated by the. Chairperson of the Grievance Settlement Board. Tl~e Board found that the ease had indeed been reinstated by Mr. Shime with no limitations indicated and, on that basis, dismissed the preliminary objection. The 'written submissions of Counsel on the Thompson decision are valuable to an appreciation of the issue and for that reason the relevant sections are included in full. Counsel for the Union made the following submission with respect to the Thompson decision: The ease of OI,BEUd~Thomp$on)_and_theJ~iquox_Con~l_Board_of~nlario (1994), G.S.B., No. 1721/92 (Roberts), has built upon arbitral jurisprudence that the Board retains the discretion to reinstate cases. Vice Chair Roberts recognized that the Grievance Settlement Board's inactive list is a procedure which the Board developed as an administrative process to determine if a grievance has been withdrawn. In I4 Thompson, the Board recognized that while such a policy may be administratively efficient, it should not be applied in every case. Thompson stands for the principle that if a grievance has been withdrawn, the union is permitted to rebut this presumption. The basis for this argument is found in s. 19 of the Cro.wnEmployees Collective Bargaining Act R.S.O. 1990, c. 50, si 9 (hereinafter CECBA) which states: 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. The Board in Thompson recognized that while the Board may determine its own procedure, it must allow the parties to present their evidence and make their submissions. The basis for this argument is found in s. 20 (9) of CECBA, which creates the Grievance Settlement Board and sets out its powers: Tl~e Cn'ievance Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions..., Thompson also stands for the principle that discretion will be ex~rcised where there are compelling reasons. The Union in its submissions of November 1994 before the Board, presented a compelling reason of why the present case should be reactivated. During the calendar year 1994, there were many persormel changes at OPSEU, including a change in the Co-ordinator of Grievances and a change of grievance officers. It. was in the midst of this change in staff that this grievance was terminated. An oversight on the part of the union does not form an intention to withdraw a grievance. The arbitral jurisprudence is clear that the Union must form an intention to withdraw the grievance. I would refer the panel to two cases on this point, OP,qEU (Wjlliam.~) and.the Ministry of Cnlture._and~ommunications GSB # 1607/86 (I990) (Kaplan), and OPSEU_(Lo_w~th) ancl the_Ministry of !.abonr GSB # 1668/87 (I 989) (McCamus). The Union and or the gfievors never formulated an intention to withdraw and in that the withdrawal was a mistake, it would be a denial of natural justice to the Union to not allow grievors, some of whom have a service history of nineteen years, to reactivate the case. It is the Union's submission that these are compelling reasons to reactivate the case. Finally, it is the Union's position that as in the Thompson case, the Ministry has not presented a compelling reason ~o deny the Union and the grievors a reactivation of the case. The Ministry has not presented any evidence that the delay has had a prejudicial effect and has undermined the ability of a party to present its case. The 15 case before the board was terminated in May 1994. As.soon as the Union's oversight was discovered, it was brought to the attention of the GSB, as evidenced in Mr. Davidson's letter of August 16, 1994 to the GSB. It is the Union's submission that a delay is not a sufficient ground for dismissing a grievance on the merits. Counsel for lhe Employer, took the position that the "ratio of the Board in that decision serves to confirm our objection that the matter ought to be dismissed." He made the following submission with regard to the Thompson decision: To illustrate, a comparison of the facts of both cases is in order. But for one fundamental point, the facts of the Thompson case are remarkably similar to those of Benne~. Both cases involved matters which had been deemed dismissed by the Grievance Settlement Board's "one year.rule." In both cases, the Union was notified of the Board's intention to dismiss the matter, according to the Board's practice if a timely response was not heard. In both cases that window of Opportunity passed without explanation. In both cases, the Union attempted to later resurrect the grievances. In both cases, the Employer referred the Board to its own policy in this regard. What is different about the facts of Thompson is with respect to the actions of the Board itself. In 'I~hompaon, the Board by letter of the Chair dated October 25, 1994, takes the fresh step or'actually reactivating the case. In effect, it reversed its earlier decision to dismiss the matter according to its practice. Those are not, with respect, the facts of the present matter. There is no evidence that the Chair took any steps to resurrect this grievance. On several occasions (see letters of officials of the St. Lawrence Parks Commission or my letter of November 8, 1994) the position of the Board was, in fact, requested, and none was received. At no time did the Board give any indication that it was going to waive its own procedures, other than to schedule the matter. Nobody from the Board or the Union has offered to explain why this matter is being heard at all. In the Thompson decision, the Union, at page 5, asked that the Board take jurisdiction for two reasons: (1) the Board has jurisdiction to reinstate and it would be "unfair" not to hear the matter; and I6 (2) the case was, in fact, reinstated by Mr. Shime in his letter of October 25, 1994. It was for the second reason that the Board took jurisdiction, not for the first re.on. Since the reasons present in Thompson are not present here, it is our view you have no alternative but to dismiss the matter as the Board, by exercising its own procedures, has already done so. To take jurisdiction, in the situation would render the Board practice a sham. What parties require in a labour relations setting is "certainty" so that all included know the rules of the game. When the parties receive a notice that a matter is dismissed by the Board, where they were previously given an opportunity to resurrect the matter in a timely fashion, the requirements of section 20(9) of the old Crown Employees Collective Bargaining Act have been more than met. Moreover, it should be noted, the only recognized parties before the Board are OPSEU and the Crown. OPSEU has been given an opportunity to be heard. Other labour relations tribunals, adhere to their procedures. All we are asking is that this Board do the same. Otherwise, at what point does a party actually know when a matter is over. A party should assume that when it receives notice from a tribunal that a matter has been dismissed, in accordance with a well known practice, that the matter is at an end. I have reviewed the submissions of Ms. Waddingham and the references to the g/JJliams and l_.oweth cases. It would be our position that they deal firstly with withdrawal of grievances, as opposed .to deemed dismissals by the Grievance Settlement Board. More importantly, they deal with whether a grievance was withdrawn by mistake or not. There is no evidence of a mistake in this matter. We are still waiting for a Union explanation in this regard. Moreover, in both cases cited, when the Union found out about the problem, the Board found that they acted expeditiously. Here th, Board put the Union on notice that it would dismiss the matter within a prescribed time frame, in accordance with its usual practice. The Union did not act to resurrect the gri&vance within that time period. It cannot be said on the evidence before the parties that the Union acted expeditiously at all in this matter. It is further our submission that the fortuitous circumstance that we are not prejudiced in this particular instance, should not be used as an argument for the Board to take jurisdiction over a matter it has dismissed. 17 Decision The case management termination procedure which was introduced by the Grievance Selflement Board in July 1989, which applies to a number of unions and a number of employers. was in place and functioning for more than four years when the, problem arose with the instant case. There was no evidence before this Panel that either party had objected to the existence of such a procedure, nor to the procedural details. There are three parties to this process: the Grievance Settlement Board, the Union and the Employer. The Grievance Settlement Board receives its procedural authority from the Crown Employees Collective Bargaining Act. The Board has used the current version of tiffs Act since it was in place at the time the objection was brougt. The Board is empowered by Section 48 (2) to make rules governing its practice and procedure and the exercise of its powers and prescribing such forms aa it considers advisable. The Chair of the Grievance Settlement Board has special responsibilities and decisi~on-making powers not granted to other members of the Board. These deal with the functioning of the Board itself. It is the understanding of this Panel that it is the practice of the Chair to seek the agreement of parties to procedural changes wh/ch will affect them. However, there was no evidence before the Panel that this had been done prior to the implementation of this particular case management procedure. In most cases, the Union is the/3rievor and has ownership of the grlevanees, while the Employer is in the position of respondent. It is usually the Union which initiates grievances and brings them to the Board. Having ownership of the grievances it may withdraw them as weil. The Union takes the position that in the Thompson case, the panel characterized this procedure as "an administrative process to determine ifa grievance has been withdrawn" and that the case established the principle that if a grievance has been withdrawn, the union is permitted to 18 rebut this presumption. This Panel does not accept that Thompson deals either with the withdrawal of grievances, or with the Union's right to rebut this presumption. The term withdrawal is not found in this decision. Rather the word termination is consistently used. This is an important distinction. Withdrawal means to take back or retract { Concise Oxford] and only the party which has put a grievance forward can take it back or withdraw it; whereas termination means to bring or come to an end [Concise Oxford]. When there is no tribunal, the parties communicate directly with each other and if the party which has brought a grievance wishes to withdraw it or take it back then that party does so by informing the other, normally in writing. The result is that the grievance is terminated; but this has only happened through withdrawal, not by one party or another agency putting an end to the other's grievance. When a tribunal is part of the arbitral procedural structure within which the parties function, the Employer and the Union still initiate and withdraw grievances, usually informing both the other party and the tribunal. However, the Grievance Settlement Board cannot and does not withdraw a grievance as it does not have ownership of it. This conforms to the arbitral jurisprudence which refers to the intent to withdraw a grievance. The question which this case has brought to the fore, is whether or not the Chair of the Grievance Settlement Board, in carrying out his or her administrative functions, can institute a procedure which terminates a grievance to the point that it cannot be resucitated. The Labour Relations Act, of which the Crown Employees Collective Bargaining Act is a part, charges arbitrators and arbitration boards with making "a final and conclusive settlement of the differences between the parties" Is. 45 (8)]. The power to terminate or extinguish grievances prior to hearing them is not granted to arbitrators or boards. A reading of Part v of the Crown Employees Collective Bargaining Act demonstrates that the making of the procedures and rules whleh allow the process to function in a reasonable manner resides with the Chair. as opposed to the Vice-chairs, members or other persons making up the administrative structure. Section 47 of the Crown Employees Collective Bargaining Act, addresses the Composition and administration of Board and the Exercise of powers by chair: 47 (1) Composition and administration of Board-Subject to the specific requirements in this section, the composition and administration of the Grievance 19 Settlement Board shall be determined by thc agreement of the Crown in right of Ontario and the trade unions representing Crown employees or, failing such agreement by the chair of the Grievance Settlement Board. (I I) Exercise of powers by chair. - Before the chair of the Grievance Settlement Board exercises any power under this section following a failure to agree, the chair must request and consider the views of those who failed to agree. While Section 47 deals with requirements relating specifically to the "Composition, Appointments to Boards, Terms of appointments, Powers following resignation, etc., Remuneration and expenses of appointees, Limits on remuneration and expenses, and the Costs of Board, it is not limited to these items, given that 47 (I) refers to "the composition and administration of the Grievance Settlement Board". One of the distinctions between Sections 47 and 48 is that Section 47 refers to "the exercise of powers", while Section 48 refers to "rules governing its practice and procedure" and rules governing "the exercise of its powers". The requirement to request and consider views of those who failed to agree only applies to Section 47 in which "powers" are exercised. It is not a requirement of Section 48 which addresses the Board's determination of "its own practice and procedure" IS. 1 ] while at the same time giving the"full opportunity to the parties to any proceeding to present their evidence and to make their submissions" IS. 1 ] and the making of"rules governing its practice and procedure and the exercise of its power" IS. 2] 48 (1) Practice and procedure. Subject to the specific requirements in this Part and to any requirements in the Labour Relations Act, the Grievance Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions. 48 (2) Rules. - The Grievance Settlement Board may make rules governing its practice and procedure and the exercise of its poWer and prescribing such forms as its considers advisable. The Panel considered the question of whether the administrative termination of a grievance by the Chair of the Grievance Settlement Board, to the. point where the grievance cannot be 20 resuscitated, is a "power" requiring a process which first seeks "the agreement of ~he Crown in right of Ontario and the trade unions representing Crown employees" before a delerminafion by the Chair of the Grievance Settlement Board [ 47 (11)], or, whether the administrative termination of a grievance to the point it cannot be rescucitated, is a rule or procedure as contemplated' in Section 48. The Panel has concluded that it is a power. It is of the opinion that the irrevocable termination of grievances deals with a fundamental right of the.grieving party and as such its application would be a "power" under Section 47 of the Crown Employees Collective Bargaining Act, one which would require a consensual process prior to the Chair's making any determination. For this Panel to find that the Chair of the Grievance Settlement Board possessed the power to irrevocably terminate grievances which the parties have filed with the Board, would require, clear and · unambiguous language in the governing statutes, the Collective Agreement, or in a written Agreement to which both panics were committed. From the evidence presented at the hearing it apl~ars that cases which the parties have filed with the Grievance Settlement Board are in one of several procedural categories: ' · Active - that is, awaiting a hearing, ongoing, awaiting a decision, adjourned for fewer than 6 months; · Adjourned/Inactive - that is, cases that have been scheduled for a.hearing and adjourned at the request of the parties for at least 6 months · Terminated or dosed, that is, cases which have remained on the "Adjoumed/Inactive" list for more than a year and for which there has not been a request to remain on the list. The terminology used by the Grievance Settlement Board in its correspondence with the parties is. ambiguous in that it is not clear whether th.is is a termination and closure for administrative purposes only, or whether it is the final and irrevocable termination of the grievances. This Panel is of the view that under Section 48 the Chair of the Grievance Settlement Board has the authority to terminate or close grievances for administrative purposes, but not to terminate or close them irrevocably. It is important, in the opinion of the Panel, that administrative processes established to 21 manage the very large case load which the Board handles must have a structure and form which does not produce a proliferation of hearings resulting from the administrative processes themselves. If a case is terminated or closed for administrative purposes, it is not logical or reasonable for the Grievance Settlement Board to set the case down for hearing until there has been · a request for reactivation, · a formal reactivation confirmed in writing, and · a notice of reactivation sent to the other party. If a ease is terminated, closed and not reactivated, then, there is nothing to schedule. On the other hand, if the case has been reactivated by the Chair, and notice has been given to the other party, then it is appropriate to schedule the case for hearing and the ease should then come befm'e a Panel and its earlier closure should be of no import except that the party which has been notified of the reactivation may wish, depending on the circumstances, to argue that the case has been abandoned. In conclusion, this Panel has determined that · the Chair of the Grievance Settlement Board does not have the power to terminate grievances irrevocably, that is to the point that they are not capable of resuscitation; * the Chair of the Grievance Settlement Board does have the authority to close cases for administrative purposes; · the route to reactivate a case is through the administrative structure of the Grievance Settlement Board; · it is essential that the other party receive notice of reactivation from the Board; · for closed cases to be rescheduled, they must first be reactivated according to the process established by the Chair of the Grievance Settlement Board; · the instant case was terminated, closed and was therefore no longer an active case. It should not, therefore, havre been scheduled for hearing; o this Panel does not have jurisdiction to hear the merits of this case given that the case has been terminated, closed and not reactivated; 22 · nothing precludes the Union from submitting a request to the Chair of the Grievance Settlement Board to have the case reactivated. If that is done, the case is reactivated, and notice of reactivation is given to the Employer, then the case may be brought on as any other ease, and the jurisdictional question of whether or not the case is alive and properly before this Panel should not be an issue. fi.he Panel also recommends that the Board clarify and refine its procedure with the parties and define its terminology to them in order to avoid this problem in future. , this 12t:h day o.f Oc.t'ober,~_l. 995 ~..__..._' ~~'-chai~_ff~ / ~ T. B~owes-Bugden, Memjosr ~' ~~ Addendum at:tached. F. Co]]ict, Member 23 Appendix A Condensed Chronology [ AD J/IL = Adjournment Inactive/List] 1989 05 Jul 89 Original correspondence from GSB to clients re AD J/IL 05 Dec 89 GSB sent 1st ADJ/IL list (01 Sep 89 to 30 Nov 89) 1990 05 Dec 90 Termination date for cases still on AD J/IL from 01 Sep 89 to 30 Nov 89 1991 18 Nov 91 First grievance filed 28 Nov 91 Last grievance filed 30 Nov 91 All grievances received in OPSEU Kingston office by this date 1992 09 Mar 92' Union requested hearing date 06 Aug 92 Letter from OPSEU to GSB re Bennett et al (and others) requesting a pre- hearing 16 Nov 92 Matter adjourned pending Lavoie judicial review 1993 04 Feb 93 Lavoie JR adjourned to 11 Feb 93 11 Feb 93 Lavoie JR decision There is no evidence of any activity on this case during this period of 12 months 24 1994 i 5 Feb 94 GSB notice re closing of cases on list for one year or more ,up to and including Feb 93 15 Mar 94 Date of case closing of cases one year on list up to and including 15 Feb 93 02 May 94 Memo from GSB to Employers advising of termination of cases including Bennett et al 16 Aug 94 OPSEU requested scheduling of Bennett et al 08 Sep 94 Note from HR St Lawrence Parks Commission to GSB that Bennett et al is a terminated case. Fax from Mgr Hr St Lawrence Parks Commission to GSB that Bennett et al is a terminated case. 13 Sep 94 Letter from GSB to (3. Leeb, G.O. at OPSEU enclosing Employer Fax of 08 Sep 94 and asking for comment 30 Sep 94 Letter fi'om OPSEU re cases remaining on inactive file with reference to Bennett et al. 30 Sep 94 Letter fi'om GSB to Director HR, MCTR enclosing Union 30 8ep 94 letter 16 Nov 94 Hearing took place. 25 ADI)EN DU M G.$,B., #2~84/'~1 .(B F,.I,:I. N F. TT F,T A! 0. This Member is in basic agreement with the conclusion reached in this case. in particular, it is agreed that, as stated at page 22 of this award, "o the instant case was terminated, closed and was therefore no longer an active case. It should not, therefore, have been scheduled for heating; * this Panel does not have jurisdiction to hear the merits of ~is case given that the case has been terminated, closed and not reactivated;" it should be noted, however, that the award deals with sections 47 and 48 .of the New CECBA, whereas the procedure that resulted in the termination of this case was established under section 20 of Old CECBA. The new statute came into effect February 1, 1994. Under the old CECBA, it is clear that for several years there was a practice to apply the grievance termination administrative policy as initiated by the Board and that this policy had at the very least, tacit approval of both parties. Certainly many grievances were terminated through the exercise of this administrative policy. In the event that either party had an objection to this policy, it could have been brought to the attention of the Chair of the Grievance Settlement Board for review. Apparently we have na evidence that this ever lmppened. With respect to the subject administrative policy of thc Board, the following excerpt from GSB #2372/91 (DALTON), issued recently on July 31, 1995, approximately 7 ¼ months iff~ the heating in this case (November 16, t994), warrants consideration, Discussion ;u~l Dccisiojl "We agree with the statement of the Board at pp. 4-5 of Kip, g-Marsh'Ail (G.S.B. # 1249/90) set out at p. 36 of this Decision. Treating the Chairperson's note as representing the Board's adl~finistrative policy, that policy is *'an eminently fair mechanism for disposing of slumbering cases which might linger for years in a state of suspended animation." It is consistent with the Board's power to determine its own practice and procedure to establish means of dealing with such abuses of process as would result from an inability to exert some control over the progress of cases referred to arbitration." "It only requires a simple, request to the Board to keep a grievance on the list from being terminated .................. The Board clarified its policy to exclude the possibility of its creating a mere rebuttable presumption when it provided that a case caught by it would be "deemed to be terminated" and not "withdrawn." "The Union and not the Grievor is a party before us. There Was no lack of adequate notice or other unfairness to it. Exhibits 9 and I0 were received by the Union and represented clear warnings that the cases represented by the grievances would be terminated by the Board unless a written request was received to reactivate them." "The Board's statutory power to regulate its practice and procedure under sec. 20 (8) of CECR.A allows it to insure that the arbitration process will be an expeditious means of determining disputes and is not inconsistent with statutory right of the Union to "present [its] evidence and make [its] submissions"before the Board decides the matter(s) before it under s.'l 9(1) of the ~. The Board can create fair mechanisms to "expedite the determination of grievances to the extent that [its] resources aIlow." Placing a limit on how long a case can remain on the inactive list without some indication that a party wishes to proceed with it does not prevent the Union from exercising its rights under s. 19(1), when a simple letter would prevent the case from being deemed "terminated." If the Board's policy violates the right of the Union to present its evidence and to make its submissions, then so would the application of the doctrine of laches." "We do not regard the principle in Yonl/-l~larshal) to have been incorrect. The conclusion of the Board in that case, although indirectly premised on Stleller-Glob~, can stand on its own. The Board in King-Marshall relied on its power to determine its own practice and procedure and fully explained its reasons for following the administrative policy on the facts before it. We follow the policy for the same reasons. Even' if we had concluded that King-Marshall was wrongly decided, we would not regard the error to have been so egregious as to cause us to refuse to follow it - as we are obliged to do pursuant to Blake, which, incidentally, is another example of the Board determining its own practice, in that Ip~cs )7 ~o 4(1. G.S.B. #2372/g I-DALTON Clearly, the issue associated with the Board's administrative policy in DALTON, as decided above, is equally applicable to the subject case in Benn~:tt et al. With reference to this award's interpretation of sections 47 and 48 of the new CECBA, this Member would comment that it tends to clarify the process for the establishment of the Board's procedures and practices. However, it does not appear to change the procedure that was tacitly agreed to by the parties under section 20 of old CECBA.