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HomeMy WebLinkAbout1985-0650.Scanlon et al.88-03-08Before For the Grievers For the Employer .: Hearing .650,651,653,654,65j/aj 676, 679, 689, 691 and 724185 = . . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARCAIN~rNG ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: '-. OLBEU (T.Scanlon, G. Lang, P. O'Flynn, P. Gregory, C. Wadsworth, J. Flowers, W. Burtharight,.S. Williamson, D. Thompson, P. Cunna) Grievers I~.. And The C~rown in Right of Ontario (Liquor Control Board of Ontario) Employer ..J.E. Emrich Vice-Chairman I.J. Thomson Member D.C. Montrose Member J. Mosynski COUl7Sel MacLean, Chercover Barristers & Solicitors -.‘R.J. Drmaj Counsel Hicks, Morley, Hamilton, Stewart & Stcrie Barristers & Solicitors January 22, 1988 ,!> i Placed before the Bo&d were ten grievances each claiming that the grievor had been improperly assessed and classified on the relevant class standards. At the outset of the hearing, counsel for the Employer objected that the Board was without jurisdiction to hear the grievances as theyhad been withdrawn pursuant.to a memoranlum dated July 30, 1986. The memorandum reads as follows: RX: GS8650 Grievance of T. Scanlon GSB651 Grievance,of G. Lang GSB653 Grievance of Peter O'Flynn %SB654 Grievance of Paul Gregory GSB655 Grievance of Carl Wadsworth GSB676 Grievance of J.D. Flowers GSB679 Grievance of Bill Burtharight GSB689 Grievance of Scott Williamson GS8691 GSB72? Grievance of Dave Thanpson Grievance of P. Cunna Without prejudice to the rights of an individuals who has not signed this memorandum to pursue his grievance further within reasonable time limits, the Union agrees to withdraw the captioned grievance. "J. Chaykcwsky" Witnessed at Wbitby, Ontario this 30th day of July, 1986 by . !*H. Waisglass" Special Vice Chairman G.S.B. .~ Mr. Hossynski clarified that he was.retained to represent-only the grievors Mr. T. -Scanlon (GS8 #650/85), Mr. G. Lang (GSB X651/85)! Mr.':P. O'Flynn (GSB,#653/85), Mr. P. Gregory (GSE #654/85), and Mr. C. Wadsworth (GSB #655/85). The renaining.grievors, Mr. Flowers (GSB #676/85), Mr. 8. 1 . Burtharight (GSB #679/85), Mr. S. Williamson (GSB #689/85)., Mr. D. Than&on (GSB #691/85) and Mr. P. Cunna (GSB #724/85) did not at&d the hearing nor were they represented, although they were duly notified. No one appeared on behalf .of the Ontario Liquor Board‘s Rqloyees' Union which is the bargaining agent for the bargaining unit of which the.grievors are members. No one having appeared for these grievors and no evidence having been adduced in support of these grievances, the Board hereby dismisses these grievances (File #676/85; 679/85; 689/85; 691/85 and 724/85). Evidence and sulxaissions in argmeht were received by the Board in , respect to the grievances xenaining before it on the question of arbitrability. The provisions of the collective agreement in effect during the relevant time period read as follows:, Article 1 - Recognition 1.1 (a) The Boards ~reccgnize the Union as the exclusive bargaining agent for all mployees in classifications shcm in Schedule "A" appended hereto. (b) Solely for the matters dealt with in Article 32, Part-Time Store Cashiers and Temporary wloyees, the Boards recognize the Union as the exclusive bargaining agent for employees employed as part-time cashiers and tenporary employees. Article 27 - Grievance Procedure .__~~ 27.1 Definitions: (a) "Union" means the Ontario Liquor Boards Pmployees' Union. WI "hrployee representative" means a person who is the naninee of a person who has a grievance, naainated to act on his behalf in respect of the grievance, and the naninee may be a representative of the Union. 27.3 (a) A grievor:my present his grievance personally or may be represented or assisted by a representative of the Union. 2 27.4 .27.5 (a) 03 (a Cd) W “.~.. 27.8 (a) (b) A grievor shall.sign and present his grievance in writing within fourteen (14) days of the circumstances giving rise-to his grievance 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 agreaent 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. _, If the grievor is not satisfied with the reply received' pursuant to the provisions of Article 27.4 or if he does not receive the decision within the seven (7) day time limit, he may present his grievance in writing within seven (7) days of (i) the date he received the decision, or (ii) the date on which the time limit expired as the case may be, to the Chairman of the L.C.B.0. or the Chairman of the L.L.B.O. If the grievor fails to act within the time limit set out in the second step the grievance will be considered abandoned. . The Chairman of the L.C.B.O. or the Chairman of the L.L.B.O. shall canplete an investigation 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 canpletion of the investigation. Where the grievor has not had an opportunity to be heard by the designee of the Chairman of the L.C.B.O. or .the designee of the Chairman of the L.L.B.O. under Article~27.4, the Chairman of the L.C.B.O., or the Chairman of the L.L.B.O. shall hold a hearing and shall give the grievor an opportunity to be heard in an investigation pursuant to the provisions of Article 27.5(a) (ii). Failing settlement of the employee's grievance, the grievance may be sutsnitted to the Crown Rnployees Grievance Settlement Board within seven (7) working days following receipt of the final decision under this provision. No grievance may be suhnitted to the Crown Employees Grievance Seftlenent Board which has not been properly carried through the Grievance Procedure. The Crown Dnployees Grievance Settlement Board shall not be authorized to alter, modify , or maend any part of this 3 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 Bnployees Grievance Settlement Board pursuant to the terms of this Agremaent~ is final and binding upon the parties and mnployees covered by this Agreement. -.~ ..' Relevant excerpts of the Crown Bnployees' Collective Bargaining Act R.S.O. 1980 c.108 cited in argument are the following: s.W'(Z) In addition to any other rights of grievance under a collective agreement, an enployee claiming: a) that his position has been improperly classified. W that he has been appraised contrary to the governing "- 'principles and standards; may process such matter in accordance with the grievance procedure provided in the Collective Agreenent and failing final determination under such procedure, the matter may be ~,~~,~i:; processed in accordance with the procedure for final ".~~ determination applicable under section 19. s.19 Every col+tive agr-nt shall be deemed to provide that in the event the parties are unable.to effect a settlement of any differences between them arising frcm the interpretation . appllcatlon, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after. giving full opportunity.to the parties to present their evidence and to make their submissions, shall decide the matter and its .li;:. decision is final and binding upon the parties and the :: employees covered by the agr-nt. One of the grievors, Mr. Lang; testified that on July 29, 1985 he and his fellow grievors, 'with the assistance of the Union Steward, Mr. Peter Gwynne, filed a grievance claiming improper assessment and classification. The essence of the claims concern the grievors' contention that they ought to have been appointed to permanent positions much sooner than they were so 4 appointed. Mr. Lang and the other grievors were content for the Union to have carriage of the grievances until a letter was received on January 28, 1987 fran MS. J. Chaykcwsky, Classification Officer with the Union, stating that the grievances had been withdrawn pursuant to a memorandum, a copy of which is enclosed. The letter states further "Please do note hesitate to call me regarding any questions or if you would like to pursue with your grievance". .By ietter da&January 30th and sent by courier on February 3rd, 1987, Mr. Lang, Mr. Scanlon, Mr. O'Plynn, Mr. Gregory and Mr. Wadsworth advised Ms. Chaykowsky, that they wished to pursue their grievances. A copy of this instruction to Ms. Chaykowsky was sent to John Miles, the President of the local. When asked whether this notice of intention to pursue their grievances was copied to a member of management, the grievor repliedthat no such copyhad been sent. Indeed* up until February 1988, Mr. Lang stated in cross-examination that neither he nor any of the other grievors dealt directly with members of management regarding their grievances. They had assuned that the Union had been processing their grievances to arbitration before the Grievance Settlement Board. when questioned in cross-examination concerning whether the Union would continue to process their grievances, ., notwithstanding the memorandum of withdrawal, Mr.~ Lang explained that he and the other grievors were told that the Union would not participate further directly, nor would it be responsible for any legal representation of the grievors at arbitration. : : The grievor was questioned closely in cross-examination as to the nature of the enquiries he made concerning the status of the grievances after theywere filed on July 29, 1985. The griever replied that members of the local executive of the Union assured the grievers at the regular Union 5 meetings that the grievances were being processed accordjng to the usual procedures to arbitration before the Board. He added that he was told that since the substance of the grievances did not concern discharge or other urgent matter, they would not be given priority in scheduling. The grievor acknarledged that it was always possible for a settlement to be achieved prior to arbitration. However, the grievor remained unshaken on his testimony that he-was not informed of the withdrawal or of the memorandum until January 28, 1987. Fran March 1986 until January 28, 1987, Mr. Lang and the other grievors did not actively guestion the status of the grievances since they had been assured repeatedly by their Union local ,Y.~<., executive that the grievances were being processed to arbitration. The grievor was asked in re-examination whether, following receipt of notice frczn Ms. Cbaykowsky that the grievances had been withdrawn, he had asked responsible men&&of the local'executive of the Union why the grievances had-been withdrawn. The grievor replied that they had not been told the :; reason for withdrawal and that no such direct enquiry was made. Counsel for the mloyer contended in argument that the Union had been charged by the grievors with carriage.of their grievances such that the mnorandm of withdrawal executed by the Union was binding upon the grievers a&constituted a final determination of their grievances. In support of his argument, co&e1 cited the foll,ouing cases: -.Re T. Cover and Liquor Control Board of Ontario (256/80); Re OPSEU (Len Marino) and Ministry of Laboux (866/84); Re Canadian Red Cross Blood TransfusiohService and ONA (1981), 30L.A.C.(2d)23; Re Health Labour Relations Association of'British Columbia (Grace Hospital) and Hospital Employees' Union, Local.180 (1985), 20 L.A.C.(3d)247. Counsel referred to the provisions of the collective 6 agreement which in Article 1.1 (a) and (b) constitute the Union as the exclusive bargaining agent-for employees, including the grievors. Counsel argued that Article 27.3(a) sets up an election for a grievor to choose whether he wishes to pursue his grievance,personally or whether he wishes to be represented by the Union.' Having elected to be represented by the Union, and the Union having disposed of this grievance by withdrawal, it was no longer open to-the grievor to pursue his grievance personally. Counsel added that even if it were possible for the grievor to pursue a grievance personally there had been no re-sulxaission of an individual grievance for this purpose. 'Counsel urged the Board, to conclude that there had been a final determination of the grievances before it and consequently that it is without jurisdiction to hear then. Counsel for the grievers responded that any individual griever has the right accorded by s.18(2) of the Crown employees' Collective Bargaining Act to grieve the improper classification of his position or an appraisal contrary to government principles and standards, apart fran and in addition to any right to grieve conferred under the collective agreement. Given that the withdrawal Asmade expressly without prejudice to an individual .to pursue his grievance within reasonable time limits, no final determination had resulted with the meaning of s-18(2) of the Crown hrployees' Collective Bargaining Act. Counsel added that accordingly, any grievor who subsequently took reasonable steps to pursue his grievance would beentitled to have the difference determined in arbitration pursuant to s.19(1) of.the Act. Counsel denied that such a griever isput to an election in the grievance procedure of the collective agreement to choose union representation or individual carriage. Consequently, it was contendedthat 7" since the grievance had not been settled by the Union the grievors were entitled to suhnit their grievances to arbitration. The Board canrences by finding that the grievers granted carriage of their grievances to the Union as their representative. The folloAng statement appears on the face of the grievance forms: _ I request that I be assisted by a representative of OBLEU in all matters pertaining to this grievance and such a representative has my permission to have access to my personal file and other docunents pertinent to my grievance. The Board further finds that the grievors were content to.grant carriage to the Union of the grievances through the grievance procedure and following referral of-the matter for arbitration before this Board. The grievors made regular enquiries of their local executive concerning the progress and status of their grievances and were reassured repeatedly that their grievances were progressing accordingto the usual procedures to arbitration. For reasons that remain undisclosed, the Union signed a memorandum of withdrawal of the grievances filed by Messrs. Scanlon, Lang, O'Flynn, Gregory, Wadsworth, Flowers, Burtharight, Williamson, Thompson and Cunna. The Union had been charged with responsibility for processing the grievances and was acting within the scope of its authority when Ms. Chaykowsky executed the menorandlrm of withdrawal. Thus, asmnning, without deciding, that the collective agr cement puts a grievor to an.election between personal carriage or union representation,. the Board finds that the grievors had elected representation by the Union. Consequently, unless the memorandum of withdrawal expressly preserved the rights of the grievors to pursue their, grievances further, the memorandum would be binding upon thti as a final 8 determination.. However , the Board finds that the terms of the memorandum did expressly preserve the right of the individual grievors, none of whan signed the memorandmn, to pursue their grievances personally within reasonable time limits. The question therefore arises concerning whether the grievors pursued their grievances within a reasonable time. Unfortunately, for ieasous that are u&mm, cannunication between Ms. Chaykc~sky, who had been handling the grievahces, and the grievors broke dawn. Therefore the grievors were not informed until the end of January, 1987 of the fact or. contents of the. memorandum of withdrawal. Thus, no actim was taken to revive the grievances until February, 1987 following the withdrawal on July 30tb, 1986. Such a delay without further explanation would seem to be prima facie .~. unreasonable. However, the Board finds that the grievors did make regular -enquiries of the local executive concerning the status of their grievances frqa the time of filing in July.1985, to-March, 1986. During this time the grievors were assured repeatedly that the.grievances were proceeding as usual to arbitration, but did not raise an issue that would give priority in scheduling, At this point, the grievors were lulled into believing that their grievances were proceeding to arbitration and that further enquiries would be fruitless. Furthermore, primary responsibility for keeping the grievors informed rests with the Union. In such circmstances, the Board finds that the grievors ought not to be penalized for the length of delay in bringing these matters to arbitration. It was the Union’s responsibility to .~.. .‘keep ~the grievors inform& as to the progress of their grievances. The Union failed to live up to their responsibility until late January, 1987 when.Ms. Chaykowsky responded to Mr. Lang’s .reguest for<-a status report. 9 . . Once the grievors were apprised of the withdrawal, the grievers notified the Union forthwith that they wished to pursue their grievances in accordance with the terms of the memorandum. Thus, the grievors acted with dispatch to pursue their grievances to arbitration, once they were apprised of the withdrawal. That being the case, the Board does not find that the grievors are disentitlsd by unreasonable delay to pursue their grievances. Furthermore, there was no evidence before the Board suggesting that the grievors were pursuing their grievances with an intention to harass the Bnployer or abuse the procedure with frivolous or vexatious grievances. Furthermore, there was no suggestion in the evidence or in argument that the mloyer would suffer any detriment or prejudice if the grievances were not barred fran proceeding to arbitration. The Board consequently finds that the memorandum of withdrawal did'not constitute a final determination or settlement of the grievances but expressly preserved the right of the grievors to pursue their grievances individually,.as contemplated by s.27(3) of the collective agreenent and s.18(2) of the Crown mloyees Collective Bargaining Act. : In the case of Re Cover and L.C.B.O. (GSB 256/80), the Union had sent a letter to the employer, the L.C.B.O., stating that "The Union is prepared to withdraw the following grievances based on the mediated settlement agreed to before Mr. Harry tiaisglass". The letter had appended to it a list of grievances including the grievances of Mr. Cover. Subsequently, the Registrar of this Board sent a letter to the Deployer confiming that the. request for a hearing in several matters i&uditq the grievance of Mr. Cover bad been withdrawn. The union subsequently w-rote to the Board requesting that the grievance of Mr. Cover be rescheduled fbr arbitration 10 because "certain facts presented to us about the grievor have not be (sic) substantiated nor borne out". At the outset of the,hearing, counsel for the employer objected to the arbitrabilityof the grievances on the grounds that the settlement reached between the employer and the duly authorized bargaining agent constituted a final determination .of the matter. The Board cannenced by reviewing jurisprudence confirming the authority of a Union to enter into a binding settlement on behalf of a grievor and the effect of such a settlement. The Board then canrented upon the inaaning of s.18(2) (c) of the Crown mloyees Collective Bargaining Act at.~p.6: That section has, in the past, been relied upon by this Board to permit a matter to proceed to arbitration at the instance of'an employee where by-reason of time ;.' I. limits on other procedural irregularities, a grievance cannot otherwise proceed. The right under s.18(2) is considered to be in addition to the rights under the collective agreement. Reference may be had tq,Re Keeling 45/78; Re Wood 224/79. We do not conslder.that the principle enunciated in the foregoing cases is ,' relevant to the situation which is before us. The right under s-18 is a right in the employee to proceed to arbitration failing a final determination under the regular arbitration procedure set out ,in the collective agreement. On the facts before us and on the arbitral authorities as to the effect of a settkment reached in the course of the grievance procedure. The grievor, in this case, has had the f~inal determination of the issue under the grievance and arbitration procedure specified in the Collective Agreement. The situation therefore .~ does not fall within the additional rights which may be considered to be conferred by s.18(2) (c). Accordingly, the Board upheld the preliminary objection stating that it had no jurisdiction to proceed to hear the grievance on its merits. In the instant case, if the menorandm of withdrawal executed by the Union had contained no clause expressly preservingthe right of the individual grievors to process their grievances further within reasonable time limits, this Board would have found the result in the Cover case 11 - equally applicable. However, the Board must give effect to the terms of the memorandun itself/the collective agreement provisions of Article 27.3(a) and the statutory provisions of s.18(2) which recognize the right of an individual grievor to present his grievance personally in the absence of a final determination. The Board finds that by its terms, the memorandum of withdrawal did not constitute a final determination of those grievances provided that such grievances were pursued individually within a reasonable time limit. The Board has already found that the grievors Messrs. Lang, Scanlon., O'Flynn, Gregory; and Wa5swo?cth took steps forthwith to process , their grievances to arbitration , once they were apprised of the terms of the memorandum of withdrawal. Consequently; the Board finds that the grievers. pursued their grievances personally within reasonable time limits as contemplated by the menorandum of withdrawal. In the case of Re OPSSlJ (Len Marina) and Ministry of Labour (GSB 866/84) then grievor wrote a letter to the Ceputy Minister of Labour stating "without prejudice to my rights, I hereby withdraw my grievance dated August 28, 1984". Enclosed with this letter was another grievance of the same date, which was of the sama nature, but differently worded than the earlier grievance and initiatedat the first step of the grievance procedure. The Board examined the wording of s.18(2) of the CrM B@oyeas' Collective Bargaining Act and rejected the argument of the Union that an individual .~. ,. grievor cannot canpromise the separate interest of the-Union as a party to the collective agreement. The Board held that if the griever is given the personal right to process a grievance, then the individual has authority to canprcmise it. The Board'noted at p.5, that in other collective agreements which confer no personal right to process a grievance, it has been held that "the Union cannot take the case forward of a recalcitrant grievor who does not wish his individual grievance arbitrated". The Board noted that the grievor did not argue at the hearing that the letter of withdrawal was sent in error and did not reflect his intent. At p.6, the Board held that his letter was clear and unequivocal and constituted an effective withdrawal of the grievance dated August 28, 1984. The Board.found that the grievor was bound by the language in which the withdrawal was cast. In the instant case, the Board finds that the memorandum of withdrawal was clear and unequivocal in preserving the right of the grievors to process their grievances personally within reasonable time limits. As such, its effect was not a final determination binding upon the grievors as in the Cover and Marino cases. In the Red Cross cayse, it was held that a duly authorized bargaining , agent which has effected a withdrawal of a grievance could not be forced to process such grievances to arbitration by the employer. The Health Labour " Relations Association of British Columbia case followed the reasoning in then ~ Red Cross case, holding that the enployer, as the other party to a collective agreement, could not force the union to process to arbitration a grievance which it had withdrawn. The Board does not find these cases to be particularly helpful to deciding the instant case where the question is whether the Union did effect by its withdrawal a final determination of the griever's personal right to process a grievance. The Board has found that the Union did snot effect a withdrawal which by ._ _. .-:... _ ~?-.;~ L':::. :-".m‘;-rmni;ad I_ ,__ ._, ,+.::?w its terms estops the grievors fran pursuing personally their grievances ,.%a-. within reasonable time limits. Thus, the Board concludes that since the _' grievers !-%. Scanlon, Mr. Lang, Mr. O'Flynn, Mr. Gregory and Mr. Wadsworth 'Z. L *' . '13 I . took action to process their grievances personally within the time frame contemplated by the mmorandum, the Board has jurisdiction to hear these grievances on their merits. No such action having been taken with respect to the remaining five grievances referred to in the memorandum of withdrawal dated July 30, 1986, the Board finds that a final determination,has been made of the grievances and that it has no jurisdiction to entertain a hearing on the merits in respect to these grievances,.even if these grievors had attended the hearing. Dates shall be arranged for a hearing on the merits of the grievances of Mr. Scanlon, Mr. Lang, ~Mr. O’Flynn, Mr. Gregory and Mr. Wadsworth in due course. Dated at TORONTO this 8th day of MARCH , 1988. MS. Jhne E. Emrich Vice-Chair Mr. I.J. Thanson M&r Mr. D.C. Mcntrose Member 14