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HomeMy WebLinkAbout1980-0439.Gigliozzi.81-09-01439/80 155/81 IN THE HATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE SARGAINING ACT Before T9E GRIEVANCE SETTLEMENT BOARD Between: -- Before: -- For the Griever: - Griever xr. 9. Gigliozzi - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) EnplCJyer Prof. J. w. samue1s Vice Chairman Mr. S. R. Hennessy Nember MS. H. J. Laing Member Xc. J. !.I. Rosen, Counsel Rosen s. Fleming For the Emplover: 1 Mr. - M. P. NOran, Counsel Hicks, Morley, Hamiltcn, Stewart & Storie Hearings: - June 25 & August 21. 1981 CONTENTS 2. ?ace Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Facts Relating to the Issue of Timeliness....... 2 The Collective Agreement........................ 7 Arqanent of the Parties..........;.............. 14 1. F&r the Employer ...................... 14 2. For the Griever ....................... 17 Conclusion.......:.............................. 18 List of Exhijits.....~........................... 21 DECISION ON R PRELIXINARY OB;ZCT.IOPl RELATING TO TIMELINZSS Introduction 3. The Grievor complains against his suspension (439/80) and ultimate discharge (LSS/81) by t:?e Employer. We met first on June 25, 1981, at which time this Board was made up of 3.W. Samuels (Vice-Chairman), B.J. Laing (IYember) and S. Schachter (Member). Upon the opening of the hearing, Nr. Everett Baker, General Secretary of the Ontario Liquor Boards Employees' Union, rose to say that the Union was withdrawing from the discharge case. -3Lr . Xoran, on behalf of the Employer, said that he objected to the timeliness of the grievance .against the discharge, and asked for an immediate ruling from the Board denying the griev- ance. The Grievor said that he wished to continue on his own, with counsel, and asked for a new date when his counsel could appear. The Board then decided that there-were ques- tions cdncerning the delay in filing the grievance, which had to be answered before a proper decision could be‘made on the preliminary object,ion, and the wisest course was to schedule a further day, at which time the grievor could make proper <representations through counsel. Thus, we met again on August 21. Yr. Schachter I could not continue as Member, and his place was taken by .M,-. S. Hennessy. The parties had no objection ta this change In our membership. At the outset of our day on August 21, ?lr. Baker again appeared to say that the Union had also withdrawn 4. from the suspension case. So we proceeded with Mr. Gigliozzi represented by his own counsel. On August 21, we spent the whole day hearing argument on the Employer's preliminary objection related to timeliness. Facts Relating to the Issue of Timeliness On May 20,-1980, an incident occurred as a result of which an investigation was made by the Metro Police and LCBO internal security. On June 23, the Grievor was ar- rested and charged with a criminal offense. .The next day, he went to work, but wis told.to go home because he was suspended as a result of the investigation and arrest. On June 27, he received a letter advising 'him that he was suspended indefinitely "for breaches of Board regulations of which you are aware" (Exhibit 2). On July 3, the Informa- tion was laid by the Metro.Police (Exhibit 3). On July'4, the grievor received a letter from Xr. Jennings, Director of Store\Operations (Exhibit 4): "This supersedes our letter to you dated 27 June, 1980 and is to inform you that you are s'us- pended without pay effective June 27, 1980 pending disposition of the criminal charges which have bee~n laid against you at which time you will be advised the, status of your employment." The Grievor has not worked for the LCBO since he was sent home on June 24, 1980. 5. , ’ On July 17, 1980, the grievance concerning the suspension was filed (Exhibit 5). It is a letter which appears to have been drafted and typed by the Union and resulted from discussions between Xr. Baker and the Crie-Jar. It reads in part: "In accordance with article 21.4 of the collective agreement be,tween the LC90 and the Employees '1 Union, I do hereby grieve that contrary to article 3.2, I have been disciplined without just and sufficient cause. Be advised that in accordance with article 21.3 of ,the agreement, I have elected to be assisted in ' this grievance by a representative of the Employees' Union and any action pertaining to this grievance should involve such a representative. I further request that a meeting be held between myself and my representative, and the representa- tive of the LCBO so that I may have the oppor- tunity.to explain the events leading up to my discipline. Please consider this my authority for a representa- tive of the Employees' Union to have access to my personal file and to examine all documents pertinent to my grievance." This grievance was not filed within the 14 days contemplated in Article 21.4 of the Collective Agreement, but XC. Yaker told the grievor he would try to "squeeze it through". .L?d , . ,. in fact, the Employer made no objection to the timeliness of this grievance. On July 24, 1980, the Union referred the grievance for a hearing (Exhibit 6). At this point, it should be said that the evidence of Mr. Baker and Mr. MacDougal made it clear that the Union' and Employer were faced at the time with an overwhelming number of grievances. As a result of this, much of the grievance procedure set down in the Collective Agreement was simply ignored. Article 21.4 contemplates a written reply~ to the grievance within seven days. This was rarely done and no such reply was ever made to Nr. Gigliozzi. Article 21.5(c) contemplates a written decision from the Chairman of the LCBO after completion of his investigation. This was rarely done and no such document was ever given to :?r. Giglioz.z,i.' A further point to be'made before we continue with the chronology of this case is that the Grievor had never gone through.the grievance procedure before. 1%. Baker testified that it was his usual practice to advise grievors that a suspension may be followed by a discharge, and that the discharge must be separately grieved, but he could not say for sure whether he told this to Nr. Gigliozzi. The Grievor testified that Mr. Baker told him to inform the Union if he received any further communication from the LCBO. Be was never referred to the Collective Agreement and never looked at it. 7 : On Augu.st 12, 980, the Grievor received the letter of discharge (Exhibit 7). I accept that he informed , Mr. Baker of this. Two points are significant here. Firstly, while the second letter of suspension said that the LCBO would await the disposition of the criminal charges, the charge had not yet been heard. In fact, it would be with- drawn on January~6, 1981.' Secondly, the Grievor had not yet heard anything about his grievance of the suspens\ion. 3e testified that he thought the Union was taking care of his problems for him, and all he had to do was inform the Union of communications he received. In my view, this was a perfectly reasonable assumption to make. Indeed, had he known the way the parties had abandoned the grievance ?ro- cedure set out in the Collective Agreement and substituted a rough working relationship to attempt to cope with the deluge of grievances, the Grievor would have been even more justified in thinking that he should just leave it all to the Union. But let us proceed. On August 14, 1980, the Un ion appl ied t.o the Grievance Settlement Board for a hearing on the susnension grievance (Exhibit 8). A short while after this, .Xr. MacDougal (for the Employer) scheduled a meeting with the Union to deal with a number of grievances, including XL-. Gigliozzi's suspension grievance. Because the Grievor was no longer at work, Mr. XacDouyal relied on the Union to inform Hr. Gigliozzi of this meeting. The Grievor was not at that meeting and we don't know whether he was even in- formed of it. After the criminal charge was withdrawn on Januar;l 6, the Grievor called on Xr. 3aker to say he wanted his job back. This meeting led to "the discharge grievance", which was a handwritten letter to the Grievance Settlement 3oard from the Grievor (Exhibit 1): "In June of 1980, I was suspended by the LC30 pending criminal proceedings against me. I was charged with theft under $200.00. I went to trial with my lawyer on September 26, 1980 but the crown remanded the date to January 6, 1981. ,On that day I reappeared and all charges were dismissed. The Constables said they had nothing on it. My Union has informed me that my grievance on .discipline is before your 3oard at present however the LCBO has dismissed me ‘and I was unaware that I had to put in a grievance on that within a certain period. iMy Union has informed me that because of this technicality they cannot put in a grievance on my behalf but I could appeal to ypu to have a hearing established to settle my case. The LCBO did not wait to find out if I was innocent. The criminal charges were dismissed (copy enclosed) and yet I am still dismissed with no where else to go to have this matter resolved. Anticipating a favourable reply, I remain:" i In these circumstances, Hr. Noran argues that "the discharge grievance" is out of time and, for that reason, should be denied. The Collective Agreement The Agreement between the L.C.3.0. & L.L.3.0. and the Ontario Liquor Boards Employees' Union does not provide. for the formal two stage discharge procedure which is the practice of the Employer -- a foi-al suspension, followed by an investigation and finding by a discipline committee, and then formal discharge. dures: Articles 21. and 22 set out the grievance proce--. * "ARTICLE XXI GRIEVANCE PROCEDURE 21.1 Definitions: (a) 'Union' means the Ontario Liquor Boards Employees' Union (b) 'employee representative' means a person who is the nominee of a person who has a griev- ance, nominated to act on his/her behalf in respect of the grievance, and the nominee may be a representative, of the Union. (cl 'grievance' means a difference arising from the interpretation, application, administia- tion, or alleged contravention of the Fro- visons of this Agreement. i . . . 17.. 21.2 An employee, upon his/her request, may be accompanied by a member of the Union's Griev- ance Committee when attending an investigati,re ' hearing involving more than one(l) member of management. The employee shall be made aware of the reason for the'interview in advance. 21.3(a) A grievor may present his/her griev- ance personally or may be represented or assisted by a representative of the Union. (b) The grievor shall be entitled to examine documents pertinent to his/her personal grievance. 21.4 A grievor shall sign and present his/her grievance in writing within fourteen (14) days of the circumstances giving rise to his/her gxievance to a person designated by the Chairman , of the L.C.B.O. or the Chairman of the L.L.B.O. The grievance shall. specify the clause or clauses in this Agreement alleged to have been violated. The designee shall give a written reply to the grievance to the grievor within seven (7) days of its receipt. 21.5(a) If the grievor is not satisfied with the reply received pursuant to the provisi0n.s of Article 21.4 or if he/she does not receive the decision within the seven (7) day time limit, he/she may present his/her grievance in writing / within seven (7) days .of / il. (i) the date he/she received the de- cision, or (ii) the date on which the time limit expired as the case may be, to the Chairman of the L.C.B.O. or the Chairman of the L,.L.B.O'. (b) If the grievor fails to act within the i time limit set out in the second step the grievance will'be considered abandoned. (.y 1 The.Chairman of the L.C.S.O. or the Chairman of the L.L.B.0. shall complete an in- vestigation into the grievance within fourteen (14) days of the date of its receipt by him and shall give the grievor his decision in writing within seven (7) days of the completion of the investigation. (d) Where the grievor has not had an oppor- tunity to be heard by the designee of the CSairman of the L.C.B.O. or the designee of the Chairman of , the L.L.B.O. under Article 21.4 the Chairman of the L.C.B.O. or the Chairman of the ~L.L.B.0. shall hold a hearing and shall give the grievor an opportunity to be heard in an investigation pursu- ant to the provisions of Article 21.5(a) (ii). (e) Failing settlement of the employee's grievance, the grievance may be submitted to the Crown Employees Grievance Settlement Board within seven (7) working days following receipt of the final decision under this provision. 12. 21.6 The Union shall have the right to lodge a grievance based on a difference arising directly with the Boards. However, such a grievance shall not include any matter upon which an employee is personally entitled to grieve. Such grievance shall first be presented, in writing, to the Boards, within fourteen (14) days of the dir- cumstances giving rise to the grievance and a meeting will be held within five. (5) working days between representatives of the Union and the Boards-and the grievance shall be answered, in writing, by the Boards within five (5) working days of such meeting, following which or failing settlement of the grievance, the Union may submit the grievan'ce to the Crown Employees Grievance Settlement Bgard within a further period of ten (10) working days. i 21.7 The Boards shall have the right to lodge a grievance as defined above or relating to the conduct of the Union or any officer or repre- sentative of the Union or the conduct of the employee. Such grievance shall first be pre- , sented, in writing, to the Union within fourteen (14) days of the circumstances giving rise to the \ grievance, and a meeting will be held within five (5) working days between representatives of the Union and the Boards and the grievance shall be answered in writing, by the Union within five (5) 21.9. At any stage of the Grievance Proce- dure,' the time limits imposed upon either party 13. working days of such meeting, following which or failing settlement of the grievance, the Boards may submit the grievance to the Crown Employees Grievance Settlement Board within a further period of ten 110) working days. i. 21.8(a) No grievance may be submitted to the Crown Employees Grievance Settlement Board which has not been properly carried through the Grievance Procedure. (b) The Crown Employees Grievance Settiement Board shall not be authorized to alter, modify, or amend.any part of this Agreement nor shall the Crown Employees Grievance Settlement Board give any decision, inconsistent with the provisions .of this Agreement. (c) The determination of a grievance by the Crown Employees Grievance Settlement Board pursu- ant to the terms of this Agreement is final and binding upon the parties and employees covered by , this Agreement. may be extended,-in writing, by mutual agreement. 14. ARTICLE XXII DISCHARGE CASES ~22.1 A claim by an employee who has com- pleted,his/her probationary period that he/she has been unjustly discharged shall be treated as a grievance if a written statement of such grievance is filed by the employee commencing at the second step of the Grievance Procedure (Article 21.5(a)) with the Chairman of the L.C.B.O..or the Chai:man of the L.L.B.O. within ten (10) days after the employee ceases to block. '22.2 Such special grievance may be settled I under the Grievance Procedure by: (:a) confirming the Board's action in dismissing the employee; (b) reinstating the employee with full compensa- tion for time lost; or Cc) by any other arrangement which may be deemed just in the opinion of the conferring parties of the Crown Employees Grievance Settlement Board." I have already commented on the failure of the parties to the agreement to comply with several significant, steps in the procedure. NOW, it is necessary to make some comment on the language itself. Firstly, one sees that Article 21 makes clear a difference in the effect of a failure to observe time limits Article 21.5(b) speaks of the abandonment of the grievance if the time limit set out in the second step is not ob- served. Long-standing jurisprudence indicates that this language usually shows that the time limit is mandatory and not merely directory. This attention to a distinction in the agreement, seems to indicate that the other time limits in Article 21 are only directory. Indeed, the mandatory nature of the time limit in the second step provided for in Article 21.5(a) makes good sense. Sere the grievance is in process, a written reply has been received by the grievor, and he should have to make up his mind about proceeding or not with some dispatch. Thus, I conclude that there are two kinds of time limit in Article 21. One is mandatory, as indicated by Article 21.5(b), the rest are directory. Secondly, the relationship between Article 21 and 22 is not immediately clear. Does Article 22 cover all - discharge grievances? Article 22.1 is a very curious pro- , vision. It says that a "claim" by a discharged employee "shall be treated as a grievance if . ..'I. It does not sav that all discharge grievances are governed by the provision. Rather, it says that certain "claims" shall be treated as grievances if they meet certain requirements. This is confirmed in Article 22.2 which speaks of "such special grievance". While it may-be the case that the parties - intended to establish one grievance procedure for discharge i r cases and one for, other grievances, in my view, the language of the Collective Agreement, which must govern, does not do \- this. #Instead, it establishes a different two grievance procedures -- a general grievance procedure and an expedited procedures for some discharges where a claim is made in writing at the outset directly to the Chairman. This view is confirmed by the definition of "grievance" in Article 21.1(c), which makes it clear that Article 21 applies to all - grievances, including one related to discharge. Argument of the Parties 1. For the Employer lows: IvlI. Moran makes his case for untimeliness as fol- a. Article 121.5(b) makes the time limit on the Grievor in the second step mandatory. I agree with him. , b. Article 22.1 'makes clear that a discharge grievance commences at the second step in Article 21, therefore the initial lo-day limit in Article 22.1 is mandatory. I might agree with him here, but only for those "claims" which satisfy the conditions set out in Article 22.1. The "discharge grievance" in our case is not such a "claim" and, there- fore, does not fall within Article 22.1. , 17. C. There is no statutory Fewer to waive this mandatory time limit: (i) Section 37(5) (a) of The Labour Relations Gr does not apply because the Act does not provide expressly for its application to the Crown. Without such express applica- tion, hit cannot apply to the Crown (sec- tion 11 of The Interpretation Act, (ii), Sections 17(2) and 18(l) of The Crown Emoloyees Collective Bargaining Act, do not give a statutory right to come to - the Grievance Settlement Board, which right could circumvent the tiime limits in the Collective Agreement. In Keeling (45/78), this Board ruled that Sections 17(2) and 18(l) give a statutory right to come tom the Board. Upon an applica- tion for judicial review, the Ontario Divisional Court upheld the award, deciding that it was not patently unrea- , sonable, and that only if it was patently unreasonable would the Court overturn the award (unreported.). This is not to say that the Court found the award all- but-totally unreasonable. -Xy reading of la. the decision does not disclose how the Court would have decided if it had to look at the issue de novo. The Di- visional Court's decision was then upheld by the Ontario Court of Appeal (unreported), for the same reasons. Keeling has been reaffixed in Clenents (112/80) and Williamson (107/80). in the latter case, Vice-Chairman Carter commented (at page 7) : "A reading of the reasons given in Keeling can leave no doubt as to the fact that this Board has al- ready given careful and thorouqh consideration to this difficult issue, and in these circumstances it.would be inappropriate for this panel to set sail on a ccmpletely different tack." I have already said that, in my view, we are not faced with a mandatory tise limit in this case. However, if I had to decide upon this issue. raised by ?I=. , Moran, I couldn't find a better way of concluding than did Mr. Carter. Keelinc is too firmly in this aoard's juris?ru- dence to be unseated by another panel. , 9. d. In any event, if the time limit here is not mandatory, Sir. Giqliozzi's delay is too long and it would Prejudice the Employer to hear the grievance. I shall deal with this arqu- ment in a moment. 2. For the Grievor Mr. Rosen argued that all we have here.is one grievance arising out of discipline in response to one inci- dent. The suspension grievance referred to "discipline", and there should be no fine distinction between the two ~ stages of discipline imposed here. Indeed, he suggested that it was unnecessary to file two grievances in cases such as this,, where an initial suspension for an indefinite period turns into a discharge. The one grievance makes clear to the Employer that the grievor complains aqainst the discipline imposed on him as a result of an incident. In the alternative, insofar as the Grievor's delay in filing. "the discharge grievance" is concerned, it is excusable. The suspension grievance is still being'pro- _ cessed and the Employer's case is the same in both, there- , fore there is no prejudice to the Employer. Furthermore, the Grievor rightly expected that the Union was protectinq his interests. Conclusion I have no hesitation in denyinq the preliminary objection for a number of reasons. Firstly, I have already said that, in my view, no mandatory time limit binds the Grievor here. This is so because of the language o- f the Collective Agreement itself. In the alte.rnative, I would be willing to accept the Keeling decision and allow the Grievor to ccntinue under The Crown Employees Collective Bargaining Act. . Secondly, in my view, not only is the Grievor's delay excusable, it would be patently unfair to the GiiPVOK to hold him to a contract time limit in these circumstances when the Empioyer and Linion did not abide by the terms of the grievance procedure, the Grievor has never received the written replies he is entitled to on his suspension qriev- ante, the Grievor had good reason to rely on the Union to represent him, .it was reasonable for him to expect that one grievance would suffice to indicate he grieved discipline arising out of the May 20 incident, and he acted with rea- sonable dispatch followinq each "event" he experienced. Thirdly, I see no prejudice whatsoever to the Em- ployer in permitting the Grievor to proceed. The same eqi- dence and argument applies to the suspension grievance as to the discharge. It is only a matter of argument as to whethe~r 21. . the facts justify a discharge as well as a suspension. The Employer's case is ready. No further evidence or E)repara- tion. whatsoever is necessa-y to argue the discharge as well as the suspension. Fourthly, while I am not prepared to accept Xx. Rosen's suggestion that no grievance of the discharge was even necessary once the suspension was grieved, I must com- ment that the suggestion seems very compelling. The Grievor had to grieve the suspension. If he grieved only the dis- charge and succeeded, he might be reinstated only as of the date of discharge and might lose the right to reinstatement as of the date of suspension. Zut having grieved the inde- finite suspension, I don't see the need to grieve the dis- charge. It seems to me that we are faced here with a two- stage disciplinary process in response to one incident, with one final disciplinary decision‘by the Employer. If the grievor says at the outset "I don't think I should be made to cease work as a result of the incident", he is saying "I grieve the suspension and I grieve a discharge, if that is the final result of the two-stage disciplinary process". The disciplinary process is one continuum. This is not the case of a premature grievance before discipline is imposed. Once the suspension'comes, the discipline has been imposed and the discharge is simply the conclusibn to the suspension itself. 22. We shall resume our hearing on September 1 to hear evidence concerning the discharge. justification for the suspension and Done at Toronto, Ontario, this 1st c?ay of September, 1981 1~. c \..I~ I. J.W. Samuels, Vice-Chairman 3 s. R.’ Hf?IlIlC?SSY Member H. J. Laing Nember I. dissent wits respec't to the interpretation of the Collective Agreement. but agree in the continuation of the hearing. 2:. LIST OF EXHIBITS 1. 2. 3, 4. 5. 6. 7. a. 9. Letter from grievor to Grievance Settlement Board, February 1, 1981 Letter of Suspension, June 27, 1980 Information, July 3, 1980 Reconfirmation of Suspension, July 4, 1980 Grievance of Suspension, July 17, 1980 " , Referral of Grievance, July 24, 1980 Discharge Letter, August 12, i980 Referral to Grievance Settlement Board, August 14, 1980 Letter, Grievance Settlement Board to LCBO; February 11. 1981