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HomeMy WebLinkAbout2023-00590.McConomy.23-11-22 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2023-00590 UNION# 2023-0719-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McConomy) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Richard Dionne Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O'Gorman Treasury Board Secretariat Employee Relations Advisor CONFERENCE CALL November 17, 2023 -2 - Decision [1] The Employer and the Union at the Kenora District Jail agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation- arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Dave McConomy is the Local Union President and a Correctional Officer at the Kenora District Jail. On May 15, 2023 Mr. McConomy filed a grievance alleging various breaches of the collective agreement, including a breach of Article 30. In respect of Art. 30 the grievor claimed that the Employer had failed to inform the Union of disciplinary meetings with employees, which he asserted was required pursuant to the collective agreement. He stated that the Employer was leaving to the employee the decision of whether they wanted to be represented by the Union, and for the Local Union to then arrange to attend a meeting should such representation be requested. [3] At the September 20 and 21, 2023 Road Show mediation-arbitration session held for the Kenora District Jail, the parties reached a resolution of Mr. McConomy’s grievance. Pursuant to the Memorandum of Settlement (“MOS”) executed on September 21, 2023, the parties agreed in part as follows: 1. The Employer agrees to adhere to Article 30 of the Collective Agreement. 2. … 3. The Union will advise the Employer of a general Local 719 email address by September 29, 2023, to which notifications under Article 30 will be sent. 4. The Union agrees that only officials of Local 719 Executive will have access to the email to receive notifications. 5. The Grievor and the Union agree that the above-noted grievance filed by the grievor is withdrawn. 6. The parties agree that Arbitrator Misra will remain seized to any issue arising from the interpretation and/or implementation of this Memorandum of Settlement. -3 - [4] As the Union believed that contrary to the understanding and intention of the parties, the Employer has not been complying with the terms of the MOS, it sought a teleconference hearing to address its concerns. The Union asserts that while Local 719 provided the Employer with the email address at which it was to receive notifications from the Employer of meetings it was scheduling with bargaining unit employees, and while the Employer had been providing the Union with information about the dates and times of scheduled meetings with employees, it was not providing the Union with the names of the employees. As such, the Union has been unable to contact a particular employee to ask whether they want union representation at their meeting, thus nullifying the point of Art. 30 and the MOS. [5] The Employer asserted in its defence that it was not possible to comply with the terms of the MOS because to do so would be contrary to a decision of the GSB which addresses the Union’s right to information about meetings with employees in the context of Art. 30. It became aware of the Board decision after the parties had executed the MOS. Notwithstanding becoming aware of the decision, the Kenora District Jail had been trying to comply with the MOS to the extent that it could while this issue is resolved here. It had done so by providing the Union with notice of the time, date and place of any meeting that fell under the aegis of Art. 30, but was not providing the employee’s name. [6] In Ontario Public Service Employees Union v. the Crown in Right of Ontario (Treasury Board Secretariat), 2017 CanLII 30341 (ON GSB)(N. Dissanayake)(the “2017 decision”), the Board addressed the question of whether the Union was entitled to participate in every accommodation and return to work process pursuant to Art. 30 (e) of the collective agreement. [7] Article 30 of the collective agreement addresses the “Employee Right to Representation” and states as follows: 30.1 Where a supervisor or other Employer representative intends to meet with an employee: (a) for disciplinary purposes; (b) to investigate matters which may result in disciplinary action; (c) for a formal counselling session with regard to unsatisfactory performance or behaviour; (d) for termination of employment; (e) for matters related to the development, implementation and administration of an accommodation or return to work plan; -4 - (f) to discuss attendance management issues under the Employer’s attendance management program; (g) for layoff/surplus; (h) any other provision in the collective agreement where the right to representation is referenced; the employee shall have the right to be accompanied by and represented by a Union representative. The Employer shall notify the employee in writing of this right and advise the employee and the Union of the date, time and place for the meeting. The Employer will endeavour to provide this notice as soon as is practicable. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next forty-eight (48) hours taking into consideration, to the extent possible, the union’s availability. [8] The Board found in the 2017 decision referenced above that Article 30(e) read as a whole with the rest of the article did not confer on the Union the right to be notified of every such meeting or the right to attend such meeting and represent the employee unless the employee requested union representation (at para. 86). [9] In that case the Union had also argued that even if it had no right to attend and represent an employee who had waived the right to union representation, it had the right to be informed of the date, time and place of every such meeting so that it would be aware of what was going on with its members (para. 87). However, the Board did not agree with the Union’s alternate position either, and while noting that the language of the article could have been clearer, it went on at para. 89 to state that the provision required the Employer to advise the employee of the right to union representation, if the employee made their election before the meeting, then the Union had to be notified and involved in the meeting, and it had the right to be advised of further meetings and to participate thereafter unless the employee revoked their request for union representation. [10] In light of the 2017 Board decision the Employer stated that it found itself in an impossible position as it had agreed to adhere to Art. 30 in the MOS, and to advise the Union of every meeting scheduled with an employee pursuant to Art. 30. It had in fact been providing the Union with the information required in the last paragraph of Art. 30, that is the date, time and place of any meeting with employees. However, when it became aware of Arbitrator Dissanayake’s decision, it realized that this issue had been litigated and decided, and that the Employer was not required to share any information with the Union before an employee had elected to have Union representation. -5 - [11] The Union made a number of arguments in response to the Employer, with the main ones being that the Dissanayake decision did not involve Corrections, and that the Employer and Union have in fact addressed union involvement in accommodation issues in “Appendix COR 10 and Appendix COR 14”. Furthermore, the Union pointed out that the focus of the MOS was not on accommodation meetings but on the rest of the types of Art. 30 meetings. [12] The Employer noted that the provision that the Board addressed in the 2017 decision was not simply about accommodation: it was about the general language that applies to all of Art. 30. Since it is not possible for the Employer to live up to the terms of the MOS, it suggested that the MOS be found null and void, and that the parties be put back in the position they were in before the settlement was reached. In this way, the grievor would not be prejudiced by having his grievance be without any resolution. The Union vehemently disagreed with this suggestion. [13] Having considered the submissions of the parties, and in light of the Board’s jurisprudence on Art. 30 in the 2017 decision, it is clear that the Employer has been put in an untenable position since it is of the view that it cannot comply with the MOS reached at a time when it was unaware of the Dissanayake decision. The 2017 decision is the prevailing GSB precedent, and in the context of an Article 22.16 file, now that it is known to everyone, the decision cannot be ignored unless both parties agree. The Employer does not agree that the Board decision can be ignored. As such, I declare the MOS null and void. In the interest of fairness and so that the grievor is not prejudiced, I direct that Mr. McConomy’s grievance be considered as remaining outstanding between the parties. [14] I am not seized. Dated at Toronto, Ontario this 22nd day of November 2023. “Gail Misra” Gail Misra, Arbitrator