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HomeMy WebLinkAbout2018-1629.Union.19-10-28 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2018-1629; 2018-1630; 2019-0322; 2019-0495; 2019-0496; 2019-0497 UNION# 2018-0130-0011; 2018-0130-0015; 2019-0130-0001; 2019-0130-0002; 2019-0130-0003; 2019-0130-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Alex Zamfir Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING September 6, 2019 -2- DECISION [1] This decision deals with a motion by the Union to consolidate two sets of grievances. The factual context for the motion is based on the particulars filed by the Union. The particulars refer in considerable detail to the circumstances that gave rise to each grievance. [2] There are two grievances dated July 9, 2018 in Board File #2018-1629. One is a Union grievance and the other a group grievance signed by a number of bargaining unit employees. These similarly worded grievances challenge the Employer’s decision to “surreptitiously” install video cameras at the workplace that were active between July 2017 and October 2017. As a part of its challenge to the installation of the video cameras, the Union alleges that they were installed in part to improperly target and gather evidence against the Local Union President, Mr. K. Sprague. The remedy the Union seeks for both grievances includes a declaration that the use of hidden video cameras in the workplace is a violation of employee privacy rights and an order that impacted members be made whole, including damages. The Employer advised that the decision to install the cameras was made by management in the Fish & Wildlife Branch. [3] The Union claims that the Employer relied on the surveillance footage in its subsequent treatment of Mr. Sprague. On November 8, 2017, Mr. Sprague was informed that he would be placed on a non-disciplinary suspension with pay, effective that day, pending an investigation regarding workplace harassment and behaviour contrary to the Employer’s policies. Mr. Sprague remained on suspension for 516 days until April 9, 2019. He was then placed on a paid leave of absence for an additional 115 days from April 9 to August 1, 2019, pending a workplace restoration. Mr. Sprague returned to the workplace on August 2, 2019, after an absence of 631 days. Mr. Sprague was informed by letter dated March 26, 2019 that the harassment allegations against him were unsubstantiated. [4] During his suspension with pay, the Union filed four grievances on behalf of -3- Mr. Sprague. Two of the grievances are dated February 26, 2019. One of them alleges that the suspension was “a disguised discipline, without just cause” and that there was unreasonable delay in conducting the investigation. The other grievance alleges that the Employer’s decision to suspend him was motivated by anti-union animus and that the suspension “was arbitrary, discriminatory and made in bad faith”. The other two grievances dated March 22, 2019 and April 8, 2019 contain the same allegations that were made in the February 26, 2019 grievances as well as alleging that the Employer “has violated and continues to violate the timeframes of the employer’s Respectful Workplace Policy”. Mr. Sprague seeks damages for loss of reputation, dignity and respect, interest, and “extensive sensitization to harassment issues training for all managers and supervisors causing this unreasonably delayed investigation and disguised discipline.” The Employer advised that the decisions challenged by these four grievances were made by management in the Enforcement Branch. The four grievances are scheduled to be heard by me on December 17, 2019, as part of Board File #2019-0322. [5] In its motion, the Union requested that the 4 grievances in Board File #2019- 0322 be consolidated with the two grievances in Board File #2018-1629. Counsel made their submissions on the Union’s motion having regard to Rule 3 of the GSB’s Rules of Procedure, which provides as follows: 3. Consolidation of Cases Where two or more proceedings are pending before the GSB and it appears to the GSB that, a. they have a question of law or fact in common; b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or c. for any other reason an order ought to be made under this rule, the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: d. the proceeding be consolidated, or heard at the same time or one immediately after the other; and/or e. any of the proceedings be stayed until after the determination of any of them. -4- [6] In addition to the criteria referred to in Rule 3, the GSB decisions on consolidation indicate that the efficient use of resources, the orderly and efficient disposition of grievances, avoiding conflicting findings of fact and cost savings are also relevant considerations. [7] Union counsel argued that the relevant factors considered by the GSB on a consolidation motion favoured the consolidation of the grievances in the circumstances of this case. Counsel submitted that suspension grievances filed by Mr. Sprague were linked to the two privacy grievances. In particular, counsel noted the Union’s contention that the Employer’s conduct giving rise to the privacy grievances and the suspension grievances were based on an anti-union animus against Mr. Sprague. He also emphasized that the suspension grievances dealt with events that had their origin with the improper installation of the video cameras at the workplace. Counsel submitted that the consolidation of the grievances would result in a more efficient and less costly process since the Union would be calling common evidence and witnesses on both sets of grievances. In support if its motion, Union counsel relied on the following decisions: OPSEU (Kennett) and Ministry of Community Safety and Correctional Services, 2014 CanLll 64819 (ON GSB) (Misra); OPSEU (Scott) and Ministry of Community Safety and Correctional Services, 2004 CanLll 55383 (ON GSB) (Mikus); and, OPSEU (Hunt et al.) and Ministry of the Attorney General, 2004 CanLII 55310 (ON GSB) (Abramsky). [8] In opposing the motion, Employer counsel argued that the core events giving rise to the grievances did not sufficiently overlap to justify the consolidation of the two sets of grievances. He noted that two grievances filed on July 9, 2018 raised a privacy breach due to the installation of the video cameras that were removed in October of 2017. He also noted that the four suspension grievances were not filed until 2019, that they concerned events that began with Mr. Sprague’s paid suspension on November 8, 2017 and that they primarily raised issues concerning the delay in the workplace harassment investigation. Employer counsel submitted that the two sets of grievances are based on different facts and raise different legal issues. In addition to the temporal divide of the events giving rise to the two sets of grievances, counsel emphasized that the distinct events involved different managers. Counsel raised two other points which -5- he argued favoured hearing the two sets of grievances separately. He submitted that confidentiality was a priority in workplace harassment investigations and that confidentially would be compromised if Mr. Sprague’s individual grievances were heard with the privacy grievances. Counsel also argued that the Employer would be prejudiced if the two sets of grievances were consolidated because such a process would confuse the issues and facts concerning decision making that involved different managers that were privy to different information. Employer counsel referred me to the following decisions: OPSEU (Samsone) and Ministry of Community Safety and Correctional Services, (2006) GSB No. 2004-2855 et al. (Harris) and OPSEU (McClelland/Ward) and Ministry of Community Safety and Correctional Services, (2013) GSB No. 2006-2524 (Briggs). [9] Employer counsel effectively referred to a number of considerations that militated against the consolidation of the two sets of grievances. However, after considering the submissions of counsel and the facts presumed to be true for purposes of the motion, I am satisfied that there is a sufficient overlap in the circumstances of the grievances and related legal issues that warrant the consolidation of the grievances. I am also satisfied that the grievances can be heard more efficiently if an order for consolidation is granted. [10] I agree with Union counsel’s assessment that OPSEU (Kennett) and Ministry of Community Safety and Correctional Services is helpful when considering whether to consolidate the two sets of grievances. In that case, there were two grievances by Mr. Kennett. The first grievance challenged a 20-day suspension which had been issued because Mr. Kennett had allegedly thrown a ‘wet floor’ sign at an inmate who was being escorted. The Union took the position that some discipline was justified, but that the level of discipline was excessive, in part because of the Employer’s anti-union animus against Mr. Kennett, a union activist. The second grievance, filed about 4 months later, concerned the publication of Mr. Kennett’s discipline on the Public Corrections Computer drive, thereby allegedly creating a privacy breach. The Union intended to argue that the publication of the discipline was also motivated by the Employer’s anti-union animus against Mr. Kennett. Although she recognized that the -6- two grievances were different in character, Arbitrator Misra nonetheless found that it was appropriate to consolidate them. She concluded that the two grievances appeared to arise out of the same occurrence and were connected by the disciplinary suspension of Mr. Kennett. She also concluded that the grievances were connected because of the allegation of anti-union animus as a motivating factor in both cases. [11] In my view, the two sets of grievances before me are sufficiently connected to justify their consolidation. The paid suspension of Mr. Sprague, which the Union will argue is disciplinary, is connected to the privacy issue that arises due to the installation of the video cameras. As I understand its position, the Union intends to argue that the improper installation of the video cameras is relevant to the validity of the paid suspension. The temporal divide between the removal of the video cameras in October 2017 and the suspension of Mr. Sprague on November 8, 2017 is not very great. Of particular significance is the Union’s claim in both sets of grievances that the Employer was motivated by an anti-union animus against Mr. Sprague. These connections support the conclusion that there are sufficient issues of fact and law in common between the two sets of grievances. I was not satisfied that the factors of different management decision makers, the impact on confidentiality and any prejudicial effect on the Employer outweighed the factors that supported the consolidation of the two sets of grievances. [12] For the above reasons, the Union’s motion is allowed. Accordingly, the four grievances in Board File #2019-0322 will be consolidated with the two grievances in Board File #2018-1629. The hearing of these grievances will commence on November 13, 2019, as scheduled. Dated at Toronto, Ontario this 28th day of October, 2019. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator