Loading...
HomeMy WebLinkAbout2016-1388.Union.21-01-21 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# 2016-1388 UNION# 2016-0411-0014 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 the Solicitor General) Employer BEFORE Daniel Harris Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING December 15, 2020 -2- DECISION The Issue [1] I have before me a number of disputes relating to escort duties performed, or arguably to be performed, by Correctional Officers. Many of these disputes appear to have been ongoing. One such dispute is described in OPSEU File No. 2016-411-0014 (GSB File No. 2016-1388), in the statement of grievance as follows: STATEMENT OF GRIEVANCE The Employer has violated specifically, but not exclusively, Articles 2 and 9 of the Collective Agreement, various Ministry Policies, and/or any other legislation by failing to provide staff with mandatory training (Community Escort, Use of Force/Defensive Tactics, MSA, CPR, PPSE, etc…), therefore allowing all certifications to expire. This breach prohibits members from performing their duties safely and increases the possibility of being exposed to discipline, up to/and including, dismissal. [2] This grievance is dated August 31, 2016 and arises out of the Ottawa-Carleton Detention Centre (hereafter, OCDC). I understand from the submissions of the parties that this same issue also arises out of other correctional institutions in the Province of Ontario. The instant decision relates to the Union having withdrawn this grievance at OCDC. The germane facts are set out in an email, dated November 5, 2020, from Scott Forde, Local 411 Union President to Christian Richer, the Deputy Superintendent, Admin at OCDC, and others, and in an Occurrence Report completed by Mr. Richer dated November 12, 2020 to the Superintendent. Those two documents read as follows: The Email of November 5, 2020 Hello, I was approached by deputy Christian Richer today in regards to union grievance 2016-0411-0014. He gave me a copy asking if I was willing to withdraw it. After reading it over I signed a withdrawal form. This -3- happened around noon today. Shortly afterwards Greg Gray (opseu grievance officer) called me and asked why I had signed off on such an important grievance, I explained because I was satisfied about current improvements to training. It was explained to me the grievance was about much more then 2016 training #’s. Mr. Gray explained what the grievance was about and I felt terrible for signing off on it. I should have made some calls to better understand the extent of what full redress meant on the grievance form. To be clear I did not initiate this grievance in 2016, my knowledge of it is small to nil, when it was explained to me by Greg Gray it rang the memory bell of the struggles we had in 2016 and the risks it brought to officer safety both on the floor and with respect to increased odds at discipline with training being so far behind. I am asking officially to retract my grievance withdrawal form. I should not have signed off on something I didn’t initiate and I should have made more phone calls, I did not and cant change this. I do not feel deputy Richer was malicious, I feel he, like me didn’t have enough information. I am only mentioning this because I am not placing any blame on him, I signed the sheet without enough knowledge. I hope this request is granted in haste, ty in advance for the understanding. Scott Forde 411 union president The Occurrence Report dated November 12, 2020 Sir, On November 5, 2020 I spoke with Union President Scott Forde about a possible withdrawal of grievance #2016-0411-0014 regarding training issues in 2016. I asked him since our training was all up do date and that we are actually amongst the highest percentage for training across the province if he would like to withdrawal. He indicated that he was not sure what Denis Collin the former Union President wanted or meant by “made whole”. I asked him if he could call him to see what outcome he was looking for. He indicated to me that the last conversation he had with Mr. Collin he was informed to never talk about work related matters. I then asked him since he won’t reply to you and that our training is up to date if he wanted to withdraw the grievance. He agreed that since he would not get an answer from Mr. Collin to withdraw the grievance. OPSEU grievance withdrawal form was completed by Scott Forde and I forwarded it to Ms. Fowler. Respectfully submitted, -4- [3] The only potential difference of fact between the parties, at this juncture, is whether Mr. Forde and Mr. Richer were aware that hearing dates had been set to deal with the grievance. It is not necessary to dilate on which participant had what knowledge of the scheduled proceedings. It is sufficient that they both knew that the hearing was alive and Mr. Richer was asking if the grievance could be withdrawn because escort training was up to date at OCDC. [4] The grievance was formally withdrawn by the local Union President on November 5, 2020. Within an hour, counsel for the Ministry contacted counsel for the Union to ask if the upcoming scheduled date could be cancelled in view of the withdrawal. It was quickly communicated by the email set out above, sent at 3.29 pm on November 5, 2020, that the Union sought to retract the withdrawal. [5] At the hearing on December 15, 2020, the Ministry asked that the Union be held to the withdrawal of the grievance. It relied on the well understood principles relating to the sanctity of contracts and related those principles to the importance of upholding settlements between parties to a contract. It submitted that the Local Union President was in a position of authority with the ability to compromise the Union’s claim by withdrawing the grievance. It said that this situation was nothing more than buyer’s remorse. It submitted that the Local Union President withdrew the grievance with a properly completed and executed “Grievance Withdrawal Form”. The Ministry submitted that the Local President was satisfied with withdrawing the grievance and that he could and did withdraw the grievance. The Ministry said that it was of no moment that Corporate OPSEU had had carriage of the grievance. It said that if a local employer had -5- offered a settlement that was accepted by a union, then the employer would be bound, and the same is true here as it relates to the Union. It said that there was no bad faith by the Employer, no mutual mistake, and no coercion of any kind. It submitted that on the facts there were both objective and subjective indicia of the intention to withdraw the grievance. [6] The Ministry relied upon the following authorities: OPSEU (Hawkes) and Ministry of Community and Correctional Services (2009) GSB 2007-2388 et al (Leighton); OPSEU (Coelho) and Ministry of Children and Youth Services (2013) GSB 2011- 2422 et al (Lynk); Essar Steel Algoma Inc. and United Steelworkers, Local 2251 2013 CanLii 104267 (ON LA) (Pollard); OPSEU (Abick) and Ministry of Municipal Affairs and Housing 2014 CanLii 74770 (ON GSB). [7] The Union submitted that the cases relied upon by the Employer are not of assistance in this matter because this matter does not involve settlements or the jurisdiction of an arbitrator to dismiss a grievance in circumstances where the matter has been settled after a process of full negotiation. The Union said that the situation here is different in that it involves the negation of the withdrawal of a grievance. It said that every such case will turn on its specific facts. It said that the analysis as to whether such a grievance should be revived rests on whether the withdrawal was genuinely intended to compromise the party’s position with respect to the consideration of the merits of the issue. [8] The Union relied upon the following authorities: University of Toronto v. S.E.I.U., Local 204 (1995), 10 L.A.C. (2d) 417 (Adell); Canadian Red Cross Blood -6- Transfusion Service v. O.N.A. (1984), 30 L.A.C. (2d) 23 (Shime); Hyatt Regency Hotel and Hotel, Restaurant & Culinary Employees and Bartenders Union, Local 40 (Adame), (2004) 76 C.L.A.S. 226 (Lanyon); Toronto (City) and C.U.P.E. Local 79 (T.(S.)), Re (2014), 118 C.L.A.S. 266 (Stout). Analysis and Decision [9] As previously noted, the germane facts are agreed to be as set out in the email and Occurrence Report above. It is apparent that Mr. Forde and Mr. Richer both focussed on the state of staff training that was contemporaneous with the dates of those documents. The agreement to withdraw the grievance was not based on consideration by either of them of the state of training or the consequences of the lack of training alleged by the Union at the time that the grievance was advanced in 2016. [10] As Arbitrator Lanyon observed in Hyatt Regency, supra, at paragraph 6: The general and well accepted rule is that once a grievance has been withdrawn it cannot be “… revived or resubmitted to arbitration”. Canada Post Corp. and CUPW, [1998] C.L.A.D. No 850 (Kelleher). [11] This general rule was recognized and applied by Arbitrator Stout in City of Toronto, supra, at paragraph 14: It is well accepted that once a grievance is withdrawn, the grievance cannot later be revived or resubmitted to arbitration. There are rare exceptions, but none have been raised in this matter. [12] Here the Union seeks to revive or resubmit the grievance to arbitration; it argues that this is an exception that proves the rule. -7- [13] In University of Toronto, supra, Professor Adell drew a distinction between “efficiency” and “substantive rights” considerations in deciding whether a grievance may be revived or resubmitted to arbitration. The efficiency considerations militate against such revival or resubmission for policy reasons such as are represented in the cases submitted here by the Employer. [14] Against the efficiency consideration, Professor Adell placed “substantive rights” in the following terms at paragraph 47: 47 No Canadian or American arbitral precedents purport to decide, or could rationally decide, that either the “efficiency” end or the “substantive rights” end must prevail every time the two ends come into conflict. Both are intrinsically valid, and the choice of one over the other in a particular case must depend upon the circumstances of the case. In our view, however, the vindication of the substantive rights created by the collective agreement must be accorded a prima facia dominance – a dominance which can be overcome be a demonstration that the fears of substantial abuse of process which underlie the “efficiency” end have a factual basis in the particular case. Was the withdrawal or abandonment of the grievance, and its subsequent revival, done in such a way as to indicate that the grieving party was intent (in the words of the Mueller award, quoted above) on plaguing or harassing the other party? Did the grieving party say or do anything between the time of abandonment and the time of revival to indicate any such intent? Or, even if no such intent is shown, is there any evidence that the withdrawal or abandonment in fact caused any detriment to the respondent party? [15] On the facts before me there is no basis upon which to suggest that the Union seeks to put the grievance back on foot in order to “plague” the Employer, nor that the withdrawal of the grievance caused any detriment to the Employer. [16] In Canadian Red Cross, supra the Association’s withdrawal of the grievance was disputed by the Employer, necessitating argument on that point before Arbitrator Shime. Its arguments were dealt with by Arbitrator Shime in paragraph 18 as follows: -8- 18 Also, it is our view that as a matter of labour relations policy we ought not to propel the parties into a proceeding of an adversarial nature unless there is a more substantial reason advanced. The arbitration of this case in the merits may involve a hearing where individuals are examined and cross-examined, where witnesses may contradict each other and where relationships might be harmed rather than helped by proceeding in that fashion. Also, we are concerned about the expense to the parties in proceeding. In the result we would require greater reasons than have been expressed to require that this matter proceed on the merits. (emphasis added) [17] Two points flow from Arbitrator Shime’s observations. The first is that labour relations policy considerations feed such a decision and, second, sufficient reasons might exist to revive a withdrawn grievance to permit a hearing on the merits, although sufficient reasons did not exist in that case. Both speak to the existence of the general rule and that exceptions exist to the general rule. [18] Arbitrator Lanyon in Hyatt Regency, supra, dealt with the exceptions to the rule in paragraphs 8 and 9 as follows: 8 Several different lines of authority have carved out exceptions to this general rule. In Canada Post Corporation, supra, Arbitrator Kelleher cites Canada Post Corporation and Canadian Union of Postal Workers (Eng.), unreported, April 23, 1990 where Arbitrator Swan affirms the general rule but applies “a relatively flexible test” to the issue of withdrawal. In reference to a provision of the Collective Agreement that directed an arbitrator to provide a final resolution to a grievance, (and further stated that “a grievance shall not be defeated because of any irregularities occurring in the application of this procedure”), Arbitrator Swan decided that where it could be demonstrated that the withdrawal of a grievance was the result of either “inadvertence or mistake” then such a withdrawal may not have been a “real withdrawal of the grievance”. The Union in that case had been under the impression that the Grievor was not prepared to proceed with the grievance. However, they were mistaken about this and notified the Employer promptly that they were reconsidering their position. 9 Arbitrator Kelleher followed Arbitrator Swan stating that he found his “reasoning persuasive”. He therefore adopted this rule of inadvertence or mistake as an exception to the general rule of not permitting a withdrawn grievance to be revived. In the circumstances of the matter before Arbitrator Kelleher, two different Business Agents had written the Employer on the same day; one withdrawing the grievance the other stating that the grievance was under review. When the error -9- was discovered the Employer was advised promptly. Under these circumstances Arbitrator Kelleher concluded that there was not “a real withdrawal of the grievance”. (emphasis added) [19] Arbitrator Lanyon goes on to speak to the need to consider labour relations policy rationales in making determinations such as that here. In paragraph 18 he says in part as follows: It would make little policy or labour relations sense to prevent a union from being able to correct an error in the grievance procedure. [20] In the excerpt set out and emphasized above, Arbitrator Lanyon characterized situations such as that before me as: … this rule of inadvertence or mistake as an exception to the general rule of not permitting a withdrawn grievance to be revived. [21] I agree with this characterization. In Essar Steel, supra, there was manifestly no inadvertence or mistake in the Union’s withdrawal of the grievance. In paragraph 6 it is set out that the grievance at issue was a “general nature grievance”. The named grievor was the president of the Local Union who was the same person that withdrew the grievance. The grievance was withdrawn at the hearing after a considerable to and fro between the parties and the intervenor. That case is very unlike that before me. [22] Having concluded that an exception to the rule is inadvertence or mistake, I find as a fact that Mr. Forde made such a mistake in this case. He immediately communicated that mistake to the Employer and explicitly sought to revive the grievance. There also is no evidence of any detriment to the Employer. In all of the circumstances, there was not a real withdrawal of the grievance. -10- Decision [23] It would make little policy or labour relations sense to prevent the Union from being able to correct its inadvertent error. Accordingly, the Union’s withdrawal of this grievance is hereby rescinded and the matter is to be relisted for hearing before me. Dated at Toronto, Ontario this 21st day of January, 2021. “Daniel Harris” ______________________ Daniel Harris, Arbitrator