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HomeMy WebLinkAbout1984-0401.Leach.85-11-05Between: IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Ei Leach) and Crievor The Crown in Right of Ontario (Ministry of Correctiatal Services) I Employer Befae: J. W. Samuels i Vice-Chairman J. McManus Member A. M. McCuaig ~ Member Fa the Griever: P. A. Sheppard j Grievance Officer Ontario Public Service Employees Union Fa the Employer: D. Dalgleish : Regicnal Personnel Administrator Kingston Ministry of Correctional Services Hearing July 23, 1985 / 2 JNTRODUCTlON This case goes back to December 1979, when for three days (from’ the 3rd t0 the 5th) apprOXlmately three thousand emplOyeeS Of the MlniStty participated in an admittedly unlawful strike, contraq tp section 25 of the Crown Employees Co//ective BargaingAcC, 1972 (now section 27, R.S.O. 1980, ch. 108). The grlevor, a Correctional Off leer at the Perth Jail, received the followlng letter, which is identical to the letters sent to all the participants: I am writing to you in relation to the recent illegal strike by certain employcez of the Minintry of Correctional Services which occurred between Dcccmber 3 to 5, 1979. In accordance with Articles 5 and 7 of the Me~randum of Agreement signed by the Management E0arcl 0f'Cabinet ard the Ontario Public Service Dnployces Union on December 5, 1979, this letter is to advise you that the CMlcrlxWnt does not condone illegal wxk stoppages, and that any repetition of such conduct by employees, irxlividua&ly or collectively, will not be tolcrXxfl. With rcqnrd to hour own a&on in this matter, I have revL-w& the cvidcncc! anI. m :wt.isFirul tIh3t You d.icl, in fact, mir,rorduct yoursc.lE and participate in an illeqal work stoppage. Your misconduct was highly irrcqzonsiblc, not only jeopardizing the security of the institution, but also endangering the safety of inmates and other staff. This illegal strike createa a pAcnti.al hazard to the community. It is also evident that by your misconduct, you, as a me&r of the classified staff of the Ministry, lhave breached your Oath of Office and Secrecy in which you s+.ore that you would “faithfully discharge your duties as a civil servant and observe and comply with the laws of Canada and Ontario”. As you know, one of the laws oE Ont,ario set out in the Crow ?nnpFoyccs Collcctivc Pdrgoinings i.:,; that stri kcs in the OntZOLlc S~XVLCC are pcohll-,l tx~l. ‘In vi~c:w of tllc: Cocr5~oi1yj. you tire horrhy ol?ficially repriltwnclr~ iltx1 th i:; Lcttcr of rqx i.lluncl wil.1 f%rm IxIrt of your permanent txtxml and p~sonrwl C i~b!. t3~rt!wrmx~, yr~u arc wsrncd tllst any I’urI:I 1c-r ~i:;cx~rvl~~clz on y0ur p2r t., i nc:‘Ilurli.rvJ in:;llt.nctlin.7ti~)n, ~~l~:~~rl~mr~mt of ~o::t rx: Inrt icil,xlL ion in :~ny otllc!r j 1 I.c.:~sl. wxk ::I:~~>LxKJc will r~:;uI 1; in III)C~~ :;~?v<:ccs rlixi~2l.i.n;~ry action, wl~idl why i ~cl.utlc (I is;mis:;;ll.. 3 He grieves that there was no just cause for the letter.in his case. The grievor was scheduled off duty for the three days of the strike. Mr. Stewart, Superintendent of the Perth Jail, gave orders that all Officers be asked to report for duty, but there .is no evidence that in fact this, was done in the grievor’s case. For our purposes, he was simply off duty. However, during the’strike, on several occasions, he was on the picket line around the jail. His home is in Smlths Fails, so it is clear that he had to travel some way to Join his colleagues on the picket Ilne. The grievor argues that, because he was off duty, he did not ‘participate’ in the unlawful strike, and therefore does not merit any dlsclpllne. PRELIMINARY OBJECTIONS The employer raised several preliminary objections at our hearing, on which we ruled, and which rulings we now record in writing. Firstly, that there was a group grievance filed in 1980, known as GSB 79/80, the grievor was one of the group, the grievance raised this very issue, and it has not been dealt with--therefore this grievance, GSB 401184, should not proceed. The answer to this is Simple. All the Other grieVOIS withdrew their grievances in 1981 or thereabouts. ‘This grievor’s complaint remained, but was never scheduled by this Board When the Union wrote to the Board in May 1984 to ask that the grievance be scheduled for hearing, the Board logged it as a new file, without realizing that this was in fact the remnant of GSB 79/80. The grievor cannot be faulted for the new number, and it Is no impediment to the Board now dealing with the grievor’s matter. Secondly, that this Board has already dealt with the letter of reprimand, In a Unlon grievance (GSB 33/80), and denled the grievance, thereby upholding the validity of the letter. It is true that there is already an award concerning the letter, but the Board in its award made it clear that this did not preclude an Indlvldual grlevlng that there was no just cause for 4 the letter in the particular case (at page 3). The Board’s award was confined to deciding that the letter did not violate a memorandum of settlement reached by the parties to end the illegal strike. The memorandum of settlement contemplated a UnlfOiTn letter to the participating employees, and the Board decided that this letter was consistent with the memorandum. But the grievor retained the right to argue that the letter did not apply to him. The letter 1s disciplinary. By its :. very terms, particularly in the last paragraph, it was intended to be part of an employee’s record, and to have an impact on future dlscipljne. And this Board has acknowledged that it can have that effect in -on et a( GS6 J&et a/ (at the bottom of page 25 to the top of page 26). This Board has the authority to deal with a grievance alleging that certain dlsci~llne is without just cause (under section 18(2) of the OownEm~JoyeesCoJJectJve BaqwJningActl. Thlrdly, it was suggested that the Ministry was not adequately made aware that this hearing would deal with the grievance before us. We found that adequate notice had been g&en. The UnlOn had written to the Deputy Minister in March 1984, clearly identifying the issues raised by this. grievance, and Mr. J. F. Benedict, the Manager of Staff Relations,.had responded in May 1984. Furthermore, Mr. Dalglelsh lndlcated before we gave our ruling that he was ready to argue the merits, with full documentation and witnesses. DN THF tlFR= Section25 01 the CrownEmpfoyeesCoJJectJveBafgaJnningAct, 1972 prohibited strikes. Section I( I I(q) (now section I (1 I(o), RS.0. 1980, ch. 108) defined ‘strike* as including ‘a cessation of work, a refusal to work or to continue to woti by employees In comblnatlon or In Concert or In accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or interfere with work or services’. There really is no doubt that a ‘strike’ occurred, -5 and lt was illegal. This was agreed before this Board in GSB 33180, and acknowledged by ‘the Board (at page 1). The grievor must be taken to have ,‘participated’ in the strike. While he was scheduled off duty, he was part of the ‘concerted activity on the Part of employees designed to restrict or interfere with work or services’: He joined his colleagues in the overall activity which restricted or interfered with the work or services of the Perth Jail. The Perth Jail, with a nWI?Ial complement of 30 staff, was run over the three days by 9 people. The situation was obviously strained and the instltution’s ability to discharge its obligation of safe custody was somewhat impaired. At least some deliveries were not made as scheduled because drivers refused to cross the picket line--on one occasion, It was a line manned by the grleVOr and one other employee. Furthermore,‘by picketing, the yievor was indicating publicly his support for an lliegal strike. He Is a peace officer, sworn to uphold the law, and his conduct brought the law into disrespect. It was suggested that the law ViolateS the Canadim CWMof R&h& and that ail the grievor did was exercise his normal democratic rights under section 2 of the Charter, But even if this were so, the grievor’s conduct must be judged aCCO?dlng to preCharter law, because the Charter was not In force in December 1979. His conduct cannot become legal retroactively. A fundamental principle of statutory interpretation is that legislation does not operate retrospectively to change substantive rights, unless It is clear in the legislation that it is intended to have this effect (Laurl y: Renaq [ 189213 Ch. 402 (C.A), at 42 I; and Pardo y: ff/ngham (1869). 4 Ch. App. 735 (H.L.), at 739-40). The Ontario High Court has already decided that the Charter does not operate retrospectively (see Re Potma ( 19821, 67 C.C.C.(2d) 19). In McLeod, Takach, Morton and Segal, lise Canadian Cnarcer of R&Ws ( 1983). the authors consider the retrospective operation of sectlons 2 to 23 of the Charter, and say It would seem clear then that ‘. I 6 the presumption agalnst retrospectlvlty would apply’ (in volume 1. at page 2-36). In our view, the Charter has nothing to do with our case. Then it was suggested that the grlevor was merely exercising his common law right to picket. If there 1s such a rlght, it was abrogated to some extent by.the CrownEmpioyees Calrectve6af~jnfningAct, which prohibited the grievor from striking as defined in the Act. In our view, the grievor did ‘participate’ in the illegal strike and his conduct Is deserving of discipline. However, we agree that the common letter of reprimand must be read in context in the individual case. The grievor was off duty, and he did not disobey an order to work on those days. He partlclpated fn the illegal strike by jolnlng the picket line. And apparently by and large the line at the Perth Jall was friendly--management had no difficulty passing through the line In elther direction - . . I .- 7 We wfll confine our order to having thls award placed in the griever’s file along with the letter of reprimand, so that hfs special situation will be part of his record along with the letter. Done at London, Ontario, this 5 th day of November , 1985 muels, Vice-Chairman J. McManus, Member (see attached addendum) ‘> LyLy A f-l. Hduaigvember OPSEU (E.LEACH) and THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES1 ADDENDUM OF UNION NOMINEE I see no way to avoid the conclusion that the other Board members have reached. However, while the strike was certainly illegal, its cause was equally just. After years of a head in the sand approach, the Government was embarressed by the strike into giving Correctional Officers their own wage category. The penalty was letter of reprimand. Given the great victory, that slight scar should not matter. Indeed, it should be shown with pride. Frame the letter and hang it at home! Had Mr. Leach won this grievance, the letter of reprimand would have been removed from his file and only his file; hence, he would have seperated himself from those very brothers with whom he walked the picket line.