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HomeMy WebLinkAbout1977-0006.Nabi.79-03-08- GRIEVANCE ;;DTbEMENT Between: IN THE MATTER OF AN ARBITRATION. Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Richard Nabi and (Griever) The Ministry of Community & Social Services !Employer) Before: Professor K. P. Swan Vice-Chairman .Mr. P. H. Coupey Member Mr. R. Cochrane Member For the Grievor: Mr. George Richards, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. A. R. Rae, Personnel Representative Personnel Services Branch Ministry of Community and Social Services Hearing: Suite 2100, 180 Oundas Street West Toronto, Ontario October 13th, 1978 -2- The two grievances now before us are identical in subject matter; each alleges that the Employer was in breach of Article 30.5 of their current collective agreement in refusing to allow the grievor to be accompanied by a Union representative at the first ("complaint") stage of the grievance procedure. A number of other grievances (7/77; 9/77, 93/77) which viere originally scheduled to be heard were reported by the parties to have been settled prior to the hearing date. The problem before us is a narrow issue of contract inter- pretation. The applicable collective agreement provided for a grievance procedure in the following terms: ARTICLE 30 - GRIEVANCE PROCEDURE 30.1 It is the intent of this Agreement to adjust as quickly as possible any com- plaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, includ- ing any question as to whether a matter is arbitrsble. 30.2 An employee who believes he has a complaint or a difference with the Employer shall first discuss the complaint or difference with his or her supervisor within twenty (20) days of first becom- ing awere of the complaint or difference. If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days it nny be processed in the following manner: 30.3.1 STAGE ONE The employee may file a grievance in wfit- ing with his or her supervisor. The supervisor shall give the griever his decision in writing within seven (7) days of the submission of the grievance. 30.3.2 STAGE TWO If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One or in the event that no decision in writing is received in -3- accordance with the specified time limits in Stage one. The griever nay submit the grievance to the Deputy Mini- ster 01 his designee within seven (7) days of the date that the supervisor was required to yive his decision in writing in accordance with Stage One. 30.3.3 The Deputy Minister 01‘ his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shell give the griever his decision in writing within seven (7) days of the meeting. 30.4.1 If the grievoz:is not satisfied with the decision of the Deputy Minister oz his designee or if he does not receive the decision within the specified time the griever may apply to the Grievance Settlement Board for a hearing of the grievance: 30.4.2 within fifteen (15) days of the date he received the decision; 01 30.4.3 within fifteen (15) days of the specified time limit for receiving the decision. 30.5 The employee may be accompanied and represent- ed by an employee representative at each stage of the grievance procedure. The arguments of the parties relate to the right of a grievor to be "accompanied and represented by an employee representa- tive" at the discussion of a "complaint 01 difference" as described in clause 30.2. The Union argues that, as Article 30 is generally entitled "GRIEVANCE PROC.ELVRE~*, the right to representation set out in clause 30.5 arises at any time when a disagreement (to choose a neutral word) is being discussed. The Employer argues that only the procedures described in clauses 30.3.1 and 30.3.2 are described as "Stages", and that the first mention of the word "grievance" is in clause 30.3.1, the parties having carefully chosen the words "complaint or difference" (which formula is repeated four times in.clause 30.2) to describe what exists before the formality of clause 30.3.1 is invoked. Therefore, the argument goes, a right to representation -4- at each "stage" of a "grievance" procedure cannot arise until the formal grievance is presented under clause 30.3.1. In our view, on a'matter of contractual interpretation, the Employer's interpretation is self-evidently correct. Moreover, there are, sound labour relations reasons for not formalizing the process under clause 30.2, which the parties have chosen to character- ize with the word "discuss". The grievance must, therefore, be dis- missed. Certain other issues were discussed in argument, however, and we feel justified in a few brief comments, even if they are unnecessary to our decision. The Union has suggested that it has an interest at a very early stage in disputes relating to the interpretation of the collective agreement, and also has a right to be present from the first. Given this Board's invariable practice of not admitting evidence of disclosures during attempts to settle a dispute, it seems impossible that the Union could be prejudiced by informal discussions to which it was not Privy. Moreover, the Union has suggested that "stage One" will be merely a sham at which written manifestations of positions taken at the "complaint or difference" stage are formally exchanged. We note, however, that Article 25 appears to contemplate meetings at Stage One as well as at Stage Two: 25.4.2 An employee who has a grievance and is required to attend meetings arranged at kteps 1 and 2 of the Grievance Procedu-e shell be given time off without loss of pay or credits to attend such meetings. 25.4.3 This section shall also apply to the local employee representatives who qe authorized to represent the qrievor. .- 5- Whether such meetings actually take place will depend upon the perceptions of the parties.as to whether they would serve a useful function. If they do take place, there is no doubt that the right of representation under clause 30.5 would apply. Dated at Toronto this 5th day of March 1979. K. P. Swan Vice-Chairman I concur P. H. Coupey Member I concur R. Cochrane Member