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HomeMy WebLinkAbout1980-0586.Glenny.81-05-26Betiveetr:: Under The CFCWN EklPL,GYEES '?.ZLiECT.IVE XAP.GAINING ACT Before THE GRIEVAKZ SETT~AX?Nl' BOARD E&fore: --. For the C-rie,Jor: _--- Mr. J. Glenny - And - The Crown In Right of Ontario (Ministry of Government Services) Emglcyer. / Prof. K. Swi.nton Vice ~Chairxan Mr. E. ).!cLean Sfember Us. hf. Perrin Zember Mrs. $3. Xercer-DeSantis Gnxario Public Service Employees C'nion For the Emulo~~er: ~- 111, R. Shepherd Ministry of Government Services Hearing: April 3rd. 1981 -2- This is a grievance involving the interpreta- tion of Article 27.5 of the collective agreement dated January 1, 1980 to December 31, 1981 (Exhibit 1). That section is part of the grievance procedure article and reads: The employee, at his option, may be accompanied and represented by an employee representative at each stage of the grievance procedure. Mr. Glenny, who is president of Local 508 of the Ontario Public Service Employees' Union, grieves on behalf of the employees in that local because of a memo- randum dated September 9, 1980 which the Assistant Director of Personnel, Ray Shepherd, circulated to Assistant Deputy Ministers, Executive Directors ,. Branch Directors, and Regional Managers. That memorandum reads as follows: We are in. receipt of an up-to-date list of union stewards, a copy of which is attached. Would you please ask your tine supervisors to identify the stewards within their section and aLso have the union stewards identify their area of authority. (We are currently attempting to obtain this information from the Union. However, this may take some time before they are abZe to respond. There fore, your co-operation in this matter would be most appreciated.) This procedure is particularly important since it coincides with an agreement reached by the Ministry local Negotiation Committee. The purpbse of this agreement is to establish cZear lines of communica- tion between the tine supervisors and union 1 -3- I stewards, reinforce the role of the union steward and hopefully facizitate manage- ment/union reZation.9. It is also the intention of the agreement to have the union stewards identify their precise area of responsibility and within this area of responsibizity the supervisor wilt recognize the steward as the communica- tion contact regarding union disputes and empZoyee concerns. During the discussions, the Ministry Local Negotiation Committee agreed that the ZocaZ ,presidents, 1ocaZ vice-presidents and 1ocaZ secretary-treasurers do not have the author- ity of a union steward. Their authority and responsibitCty is internal to the union organization, and has no direct influence on management's administration. These officers, however, may be released from duty from time to time to attend union business under ArticZe 35, LocaZ and Ministry Negotiations. It is emphasized that these officers may not leave their work place to attend these meetings without specific permission of the Personn61 Branch., i; In the case of the union stewards, they aZso may not leave their work pZace without the permission of their supervisor nor may em- pZoyees seeking counseZ from union stewards leave their work pZace without prior approvaZ from their supervisor. It is aZso emphasized that union stewards may. not cross the bound- aries of their stewardship without the con- sent of the Personnel Branch. Supervisors, however, should use their dis- cretion carefully when granting time off to stewards since it is oup intention to c'reate a more responsive, communicative relationship rather than an adversary one. Shoutd you require any further information regarding the foregoing, pZecse do not hesitate to contact me direct. To understand the sources of conflict, it is necessary to describe the collective agreement provisions dealing with the grievance procedure and the manner in -4- which the Ministry of Government Services implements these procedures. The grievance procedure is found in Article 27 of the collective agreement. It reads in part: 27.1 27.2.1 27.2.2 It is the intent of this Agreement. to adjust as quickly as possible any compZaints or differences bet- ween the parties arising from the . interpretation, application, admin- istration or alleged contravention of this Agreement, including any question as to whether a’matter is arbitrable. An employee who believes he has a compzaint OF a difference shaZ1 first discuss the complaint or dif- ference with his supervisor within twenty (201 days of first becoming aware of the complaint or difference. If any complaint or difference is not satisfactorily settled by the super- visor within seven (7) days of the discussion, it may be processed witkin cn additionaz ten (10) days in the following manner: STAGE ONE The employee may file a grievance in writing with his supervisor. The supervisor shaZ1 give the qrievor his decision in writing within seven 17) days of the sub- mission of the grievance. STAGE TWO If the grievance is not resozved 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. In the event that no deciqion in writing is received in accordance with the specified time Limits in Stage One, the griever ma3 submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the super- visor was reouired to give his deci- sion in writing in accordcnce with Stao~ One. 27.3.3 27.4 27.5 27.6.1 27.6.2 27.7.1 27.7.2 27.7.3 -5- The Deputy Minister or his designee skaZZ koZd a meeting with the em- pZoyee within fifteen 1151 days of the receipt of the grievance and shaZ1 give the griever his decision in writing wzthin seven (7) days of the meeting. If the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the spectfied time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen 1151 days of the specified time Emit for receiving the decision. The empzoyee, at his option, may be accompanied and represente’d by an empzoyee representative at each stage of the grievance procedure: DISMISSAL Any probat<onary employee who is dis- ‘missed or released shall not be en- titled to fiZe a grievance. Any empzoyee other than a probationary employee who is dismissed shall be en- titZed to file a grievance at the second stage of the grievance procedure provided he does so within twenty (201 days ofthe date of the dismissa2. An empZoyee who is a grievor or com- plainant and who makes ,appZication for a hearing before the Grievance Settlement Board or the PubZic Service Labour ReZations Tribunal shaZZ be aZlowed leave-of-absence with no loss oj.Fay an2 with no Zoss of credits, if requzred to be in attendance by the Board or Tribunal. An empzoyee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Trocedure skaZZ be given time o.ff with no loss of pay and with no Zoss of credits to attend such meetings. This section siall also apply to the Union Steward who is autkorized tp represent the grievor. ._ c -6- 27.7.4 The Union shaZZ advise the Directors of Personnel of the affected minis- tries with copies to the Executive Director, Staff F?eZations Division, of t;Le Union Stewards together with the areas they are authorized to represent, which list skaZZ be up- dated at Zeast every six 161 months. Pursuant to Article 27.7.4, the Union provides a list of union stewards to Directors of Personnel in each Ministry, with the area which they are authorized to re- present. Such a list has been provided to the $!inistry of Government Services (Exhibit 9). It shows the names of all stewards, their local, and their "area of respons- ibility". Local 508, which is involved in the present dispute, is a composite local, taking in employees from the Ministries of Government Services, Transportation, Natural Resources, and Housing working at 77 Wellesley Street in Toronto. The area of responsibility for each steward for Local 508 is stated to be "77 Wellesley Street" on the stewards' list. No precise floor or geographic area within 77 Wellesley Street is specified. The dispute in this case revolves around Xr. Shepherd's memorandum quoted above, as well as Ministry practice with regard to steward involvement in grievance handling and personnel matters. ,Xr. Shepherd testified that he feels it is important to have steward involvement at in- formal discussions between management and employees before discipline is imposed or before a grievance is filed. This - 7 - ( involvement, he feels, can facilitate resolution, as a steward may well play a mediative function between em- ployee and supervisor. He feels, however, that the steward involved should be one from'the immediate work area, as such a person would likely have knowledge of the background of the dispute and of the personalities involved. Therefore, he offers stewards the opportunity for involve- ment at informal meetings in their immediate work area. He has, however, on at least one occasion, refused Mr. Glenny ! access to such a meeting on the grounds that Mr. Glenny was not the steward for that particular work area. This is one source of controversy with Mr.Glenny, who feels that an employee should be able to choose the person to represent him at any stage, including these in- formal'discussions. Furthermore, he does not feel that stewards are limited to a particular work area. Although it was stated in argument that an em- ployee has no right under Article 27.5 to choose a represent- ative until the formal stages of the grievance procedure, i the union argued that the article rvas violated because Sir. Shepherd's actions and memorandum indicate that the Ministry would likely interfere with representative selection at the formal stages as well as the informal meetings. The other sources of objection arise from the memorandum quoted earlier. First, the union is upset about the reference to union table officers, particularly the statement that officers do not have the authority of a union steward. In fact, according to the evidence of ( -8- Jim Spence, Regional Supervisor with OPSEU, every table officer is elected from the ranks of union stewards and has steward status. This is a requirement of the OPSEU constitution. Second, the union is concerned about the refer- ences to having the union stewards identify their area of authority. It is submitted that the area of responsibility of the stewards has already been designated by the union in compliance with Article 27.7.4 and nothing more need be !~ done - nor can be done by individual stewards. Finally, the union objects to the statement that "union stewards may not cross the boundaries of their stewardship without the consent of the Personnel Branch". Again, this is regarded as an infringement of Article 27.5, "_ . although there was no evidence of permission having been denied at the formal stages of the grievance procedure. The union has requested, in the way of relief, that Mr. Shepherd be required ,to rescind the memorandum. c. In resolving this grievance, the Grievance Settle- ment Board is faced with a very difficult task. The griev- ance seems somewhat premature, as both parties have argued on the assumption that an employee has no collective agree- ment right to representation at the informal meetings with management. Yet these~meetings seem to have been the source of the current dispute. Furthermore, no proof was offered to show any denial of representation by a representative of the employee's choice at Stages One and Two bf the grievance i ~- 9 - procedure, nor of consent denied to stewards who wished to cross the boundaries of their stewardship. The union argues in anticipation of what might occur in light of what they see as Mr. Shepherd's interpretation of the grievance pro- cedure. However, on the facts, the Board can find no basis for upholding the grievance, for Article 27.5 has not been contravened. ! c. Normally, such a finding would put, an end to the Board'stask. However, it was clear, from what occurred at the hearing that there is a serious communication problem between the parties which needs to be addressed in order to avoid additional grievances. For example, the debate over the status of union officers seems to be unnecessary. Xr. Shepherd appears to have misunderstood the dual nature of these offices, and his memorandum is misleading with regard to the officers' role as stewards. His continued insistence that union officers are irrelevant to management and internal to the union may be strictly accurate (in'that the authority to handle grievances flows from the steward's office), but it creates unnecessary friction with the,union to no apparent advantage. While mediation would have been a more suitable method of resolving theoparties' misunderstanding, that solution was not tried. The parties appear to want a declaratory ruling about the scope of Article 27. We are reluctant to discuss Article 27 in detail in the abstract, as that article has an impact throughout the system, yet it is important in this case to try to clarify certain - 10 - f issues for the parties. One source of dispute is with regard to the area which stewards are authorized to represent. Article 27.7.4 makes it clear that OPSEU has the power to designate stewards' areas of responsibility, not the stewards them- selves nor management. If management is concerned about the breadth of discretion conferred on the union, it must seek to restrict the discretion in negotiation. Further- more, Nabi and Ministry of Community and SociaL Services, 114176 indicates that employee representatives may "cross" Ministry boundaries in dealing with grievances at the formal stages (at p. 3). A major source of dispute is with regard to employee representation at informal meetings. .Mr.Shepherd's objedtive in insisting on employee representation by some- one from the immediate work area makes sense in terms of personnel concerns, because of the familiarity of such employees with the circumstances. No doubt, it would also save time to restrict participation to those in the c immediate area, as the giving of notice to those in other areas and obtaining leave from supervisors outside the area of the dispute might be avoided. From the union's perspective, this practice of restricted participation is perceived as interference in union affairs. No doubt some employees would also prefer to choose their own repretientative. However, the collective agreement does not guarantee any right to representation until Stages - 11 - One and Two. If the union is concerned about the present practice, again,this is a subject for negotiation. Overall, there has been no violation of the collective agreement and the grievance must be dismissed. DATED at Toronto this 26th day of May 1981. Prof. S. Swinton Vice-Chairman "I concur" - M. E. McLean M. E. McLean Member I (See attached) - M. M. Perrin Ms. M. Perrin Member I . ~ . . : CONCURRENCE J. Glenny - And The Crown in Right of Ontario (Ministry of Government Services) I agree with the Vice-Chairperson on the following points: (1) Mr. Shepherd's memorandum dated September 9, 1980 is misleading, and his insistence on union personnel identifying themselves as "union steward" rather than as "local president" is a foolish technicality which obviously has led to unnecessary friction. Good labour relations are not built on such technicalities (particularly when Mr. Shepherd had been advised at least twice that in order to be a union president, the person must first have been elected as a'steward). (2) Mediation should have been attempted in this dispute - especially in view of the fact that the main solution the union sought was the withdrawal of the September 9, 1980 memorandum. The withdrawal of the September 9 memorandum would avoid repetition of erroneous statements by manage- ment personnel in receipt of Mr. Shepherd's memo. The grievor, for example, received a memorandum dated. September 29, 1980, from J. Falconer, Chief, Parkway Belt West Area, part of which reads as follows: i . i ‘,- -2- ( 2. Paragraph 4 of a Zetter dated September 9, 1980, from Mr. R. Shepherd, . . . indicates that the local union presidents, as such, do not have the authority of’s union steward. !The paragraph states that the local union president’s authority and responsibility is internal to the union organization and has no direct infZuence on management's administration. This is not to suggest, however, that Local pre- sidents cannot be union stewards, but it does suggest that line managers wilt only dea2 uith the employee designated as a union steward. ( (3) Article 27.7.4 states that OPSEU alone has the power to designate areas of a steward's respons- ibilities, and as indicated in the September 9, 1980, memorandum, Mr. Shepherd was in receipt of the "up-to- date list of union stewards" - a list which~ clearly designated the stewards' areas of responsibility. It is therefore not within the Personnel Branch's purview to state I'... union stewards may not cross the boundaries c of their stewardship without the consent of the Personnel Branch." As noted by the Vice-Chairperson; a major source of dispute is with respect to stewards attending with the employee at informal stages/meetings in the grievance procedure. It appears Mr. Shepherd desires to choose the employee's representative. The union's posi- tion is that the employee has the right to choose who will attend with them - a view to which I agree. Article 27.5 gives the option to the griever, not to management person- nel. Article 27.5 reads as follows: -3- ! 27.5 The empZogee, at his o?~tion, may be accompanied.and represented by an employee representative at each stage of the grievance procedure. At page 10, the Vice-Chairperson states "the collective agreement does not guarantee any right to representation until Stages One and Two". In the future, it might be argued (depending upon the "character" of the meeting - e.g. disciplinary in nature) that the grievance procedure includes the preliminary stage (i.e. C' discussion of complaint with supervisor prior to written grievance). Article 27 is entitled "GRIEVANCE PROCEDURES", and Article 27.5 speaks to employee representation during the "grievance procedure". The work "stage" in this article is not limited to Stages One or Two. If a sus- pended employee proceeded directly to Stage One or Two in the grievance procedure, the grievance would certainly be denied by management on the basis that the preliminary stage (Articles 27.2.1, 27.2.2) had not been followed. If the parties to this collective agreement had intended ,(' employee representation to be applicable only at Stages One and Two (and not to the informal/preliminary stage) surely the language of Article 27.5 would so state. While the above was not argued, it appears to this member that this is the way the grievance procedure section should be interpreted. As the character .of the meeting to which Mr. Glenny was denied access was not clarified at the hearing, I concur with the Chairperson as to the outcome. -4- Before concluding, a further observation: while Mr. Shepherd relied on technicalities which led to friction, the grievor must also accept some respons- ibility for problems which have resulted between them. It was obvious on hearing the evidence that a personality conflict exists between the two men and this conflict (and the resulting power-plays) led to the present grievance.