Ontario Public Service Employees Union (Dale et al) v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2001 CanLII 25802

GSB#0783/00, 1314/00 UNION# 00A454, 00A516

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Dale et al)

Grievor

-and-

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care)

Employer

BEFORE Randi H. Abramsky Vice-Chair

FOR THE GRIEVOR Nelson Roland Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors

FOR THE EMPLOYER Fateh Salim Counsel Legal Service Branch Management Board Secretariat

HEARING Oct. 22, 2001.

AWARD

On November 2, 2000, two grievances were filed with the Ministry of Health & Long Term Care, one from Gary Dale and one from Gary Lawrence. Both contained the same attachment entitled “Group Grievance.” At issue is whether six additional grievances filed by Mr. Dale should be consolidated with this “Group Grievance.”

Facts

The November 2, 2000 grievances of Mr. Dale and Mr. Lawrence read as follows:

Statement of Grievance

We grieve that we have been or are in the process of being:

1. Constructively dismissed from our jobs; Discriminated against contrary to but no exclusive to Article 3 (No Discrimination) of the Collective Agreement; Unfairly disciplined, contrary to Article 2 (Management Rights) and Article 21 (Discipline and Dismissal) of the Collective Agreement; and Subjected to defamation of character by management.

(see below)

Settlement Desired

We ask that management:

1. Stop trying to dismiss us;

2. Stop discriminating against us;

3. Retract the unfair discipline;

4. Publicly retract negative comments made against us; and

5. Compensate us for the pain, suffering and emotional distress cause by our treatment.

Amendment to “statement of Grievance”

6. We also grieve that management has breached the terms of our econdment agreement. Added Dec. 1, 2000

The six grievances which the Union seeks to consolidate are as follows:

1. July 3, 1998 grievance – alleges that Mr. Dale has been “harassed & discriminated against contrary to but not exclusive to Article 3 of the collective agreement. I further grieve that I have been unfairly disciplined contrary to Article 21 of the Collective Agreement.”

Mr. Dale explained at the hearing that this grievance involves an e-mail sent to him by his manager admonishing him for an e-mail he sent to all division staff concerning an e-mail virus hoax. This grievance was referred by the Union to arbitration on September 8, 1998, and was scheduled for hearing some time in late 1998 or early 1999. At that time, a number of other outstanding grievances relating to the March 1996 strike were settled, but, according to Mr. Dale, this one was not settled. Thereafter, the Union tried to have this matter heard as part of the med-arbitration process, but the Employer declined on the basis that it had been settled, or in any event, was not an active grievance. No additional attempts were made to schedule the matter for arbitration because the grievor had filed the November 2, 2000 grievance and the grievor felt that it would be appropriate to join this one to that proceeding.

2. January 11, 2001 grievance – alleges that Mr. Dale “was unfairly denied the position in competition HL-47-6400.”

The grievor alleges that he was denied an interview and was scored low for a position of Project Manager because of his union activities. He asserts that shortly before this competition he had been offered this position on a temporary basis as part of a settlement of an earlier grievance, but that offer was rescinded and the manager allegedly stated that there was “no way in hell” that the grievor would get the job.

3. January 11, 2001 grievance – alleges that Mr. Dale was “being paid incorrectly for the work I am doing, contrary to Article 7 of the Collective Agreement.”

The grievor explained that even though the work he was doing was that of an S.O. 4, he was being paid at the S.O. 3 level. He had been “red-circled” from the S.O. 4 level, but there was still a salary differential. He acknowledged, however, that the reclassification of the S.O. series resolved most of the pay dispute because it was retroactive to January 1, 1999, but he asserts that there is still compensation owed to him from November and December 1998.

4. June 27, 2001 grievance – alleges that “the employer has acted in an arbitrary, unfair, discriminatory and unreasonable manner, and in bad faith and in contravention of their own rules, by knowingly submitting the wrong description for my position to the Systems Officer Reclassification” and that it was “done in retaliation for my Union activity, contrary to Article A of the collective agreement.”

The grievor alleges that instead of his actual job description being sent for purposes of reclassification, the employer submitted a generic one which did not address the type of work he did, resulting in an improper reclassification, and that this was done in retaliation for his union activity.

5. August 16, 2001 grievance – alleges that the employer has “harassed and discriminated against me and treated me in a demeaning and insulting fashion in public and that management have attempted to undermine my role as an employee and as a union steward, contrary to but not exclusively to Articles 1,2,3 and 21 of the Collective Agreement.

6. September 24, 2001 grievance – alleges that “management have harassed & discriminated against me and treated me in a demeaning and insulting fashion in public and that management have attempted to undermine my role as an employee and as a union steward contrary, but not exclusively, to Articles 1,2,3, & 21 of the Collective Agreement.

It appears that neither the August 16, 2001 grievance nor the September 24, 2001 grievance went through the Stage 2 meeting step of the grievance procedure, but they were referred to arbitration this very day by the Union.

Arguments of the Parties

1. The Union

The Union contends that the six additional grievances filed by Mr. Dale are part and parcel of his November 2, 2000 grievance and are further examples of the employer’s mistreatment of the grievor because of his union activities. The Union asserts that the employer’s animus against Mr. Dale and Mr. Lawrence began after the 1996 strike and continues to the present. All of these matters, it asserts, should be heard together to get the “big picture” of the employer’s actions, and should not be fragmented off.

In terms of the July 1998 grievance, the Union submits that it was timely referred to arbitration and that it has not simply sat dormant in the interim. It submits that the Employer has not argued or demonstrated actual prejudice, and because the matters involve the same subject matter as the November 2000 grievance, it should be consolidated.

The remaining grievances, it asserts, also allege actions taken against the grievor because of his union activities – the job competition, the pay issue, the documents regarding reclassification and the specific incidents which led to the last two grievances. Each situation, in its submission, was another attempt by the employer to discriminate against Mr. Dale and are simply variations of the same theme. It submits all of them should be heard as a whole.

Further, the Union contends that nothing turns on the fact that the attachment to the November 2, 2000 grievance is entitled “Group Grievance”. It notes that both Mr. Dale and Mr. Lawrence filed identical grievances and submits that it does not matter, in terms of consolidation whether they are, in reality, two individual grievances, or a group grievance alleging similar issues.

2. The Employer

The Employer contends that none of the six additional grievances should be consolidated with the November 2, 2000 grievance. It asserts that the November 2, 2000 grievance is a “Group Grievance”, not an individual grievance, and yet all of the matters sought to be added involve individual grievances of Mr. Dale.

The Employer contends that the July 1998 grievance is untimely in that the Union has not moved the matter forward since it was referred to arbitration in September 1998, more than three years ago. It submits that the Employer had believed that the grievance had been abandoned and the passage of three years is prejudicial to the Employer. It submits that it should not only not be consolidated, but should be dismissed as well.

In terms of the improper pay and reclassification grievances, the Employer submits that the “pith and substance” of those grievances involve the grievor’s classification over which this board no longer has jurisdiction. It contends that under Appendix 7, “all complaints and differences involving allegations of improper job classification” must go to the Joint System Subcommittee (JSCC), and that if there is a dispute about the position specification sent to that body, a complaint should be brought before it, not here. It further submits that these grievances do not meet the standard for consolidation under the GSB’s rule and the case law.

In terms of the competition grievance, the Employer asserts that it would be best to deal with that matter separately, as a competition grievance. It also asserts that the grievance does not meet the test for consolidation under the GSB’s rules and the case law.

Finally, in terms of the last two grievances, the Employer submits that the grievor should not be allowed to bypass the Stage 2 level. To allow consolidation, it argues would be to reward the grievor for bypassing the agreed-upon procedure.

Decision

A. Consolidation

Except for the January 11, 2001 (incorrect pay grievance), I conclude that the additional grievances of Mr. Dale should be consolidated with the November 2, 2000 grievance.

The GSB’s consolidation rule provides, in pertinent part, as follows:

WHERE ORDER MAY BE MADE

Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the Grievance Settlement Board that,

(1) (a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence; or

(c) for any reasons an order ought to be made under this rule,

the Grievance Settlement Board may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other, or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them.

Under this rule, there is broad discretion to consolidate cases, not only when there are questions of law or fact in common or the relief claimed arises out of the same transaction or occurrence, but “for any reasons an order ought to be made under this rule.”

Based on the submissions made, it appears that the grievances sought to be added by the Union involve the question of whether the employer’s actions toward Mr. Dale were the result of the grievor’s union activities. The allegation is that they are all “part and parcel” of the same course of conduct. As such, although the grievances allege discreet matters, the issue of the employer’s motive is the same in each case. Thus there is a “question of law or fact” in common, which satisfies the GSB’s rule regarding consolidation.

Given the nature of the allegations, failure to consolidate might well result in much of the same evidence having to be repeated in each case. For this reason as well consolidation is appropriate.

In terms of the timeliness of the July 1998 grievance, the submissions of Mr. Dale were that the matter was scheduled for hearing in either late 1998 or early 1999 at which time attempts were made to resolve it. Although that grievance was not resolved others were, and the Union then attempted to have the matter proceed through the med-arb process without success. These submissions indicate that the grievance did not simply lie dormant for the last three years, even though the Employer believed that the grievance had been abandoned. There was also was no specific assertion of prejudice by the Employer.

Given the direct relationship between the issues raised in the July 1998 grievance and the November 2, 2000 grievance, I find that the July 1998 grievance should be consolidated. The Employer, at the hearing, however, may raise its latches argument and provide evidence as to why it believed that the grievance had been abandoned by the Union as well as evidence regarding actual prejudice. There may also be issue regarding remedy, should the grievance succeed, because of the delay.

In terms of the January 11, 2001 (competition) grievance, I find that the grievor’s submissions concerning this grievance – that he was denied an interview and scored low because of his union activities – renders it directly related to the allegations raised in the November 2000 grievance. Although, normally, a job competition grievance stands alone, the nature of the allegations raised here render it appropriate to consolidate with the November 2, 2000 grievance.

In terms of the January 11, 2001 (incorrect pay) grievance, I conclude that this matter should not be consolidated and should, in fact, be dismissed. The reason for that conclusion is that the grievor acknowledged that the S.O. reclassification resolved the pay issue except as it pertains to pay dating from November and December 1998. I conclude, therefore, that even if this grievance were to succeed, the Board would have no jurisdiction to provide a monetary remedy dating back to 1998 given that the grievance was filed in January 2001. Accordingly, the matter has been resolved by the S.O. reclassification. It is therefore moot and should be dismissed.

In terms of the grievance concerning the documents submitted by the employer for the S.O. reclassification, I conclude that this matter is, in essence, a claim regarding Article 3 of the collective agreement, and is not a reclassification issue that should be before the JSSC. The grievance does not seek the grievor’s reclassification; it seeks an order requiring the employer to submit his correct job description to the JSSC. Accordingly, it raises the same issue raised in the November 2, 2000 grievance.

Finally, in terms of the last two grievances, I conclude that they should be consolidated even though no Stage 2 has been held. The Union, as of today, has referred the matters to the GSB, as the Union is entitled to do under Article 22.4 of the collective agreement. Although this approach - proceeding directly to the board without a Stage 2 meeting or response - is not a desirable one, it is a permissible one under the parties’ collective agreement. Given the similarity of the issues raised in these two grievances and the November 2, 2000 grievance, I conclude that consolidation is appropriate.

In so ruling, I note that the two November 2, 2000 grievances currently before this board are entitled “Group Grievance.” In my view, the issue of consolidation does not turn on that fact. Rather, consolidation turns on the nature and substance of the matters in dispute, and for the reasons stated above, I conclude that the additional grievances, except for the January 11, 2001 (incorrect pay) grievance, should be consolidated.

B. Particulars

The Employer has requested written particulars from the Union concerning the November 2, 2000 grievance as well as any grievances which are consolidated with it, along with all supporting documents. The Employer is entitled to written particulars and supporting documents, and I order counsel for the Union to comply no later than December 31, 2001. This should provide ample time for the Employer for review prior to our next day of hearing.

Conclusion

Accordingly, for the reasons set forth above, I order as follows:

1. All of the grievances, except for the January 11, 2001 (incorrect pay) grievance, are hereby consolidated with the November 2, 2000 grievances.

2. The January 11, 2001 (incorrect pay) grievance is dismissed.

3. Counsel for the Union is ordered to provide written particulars as to the November 2, 2000 grievances and the other grievances which have been consolidated with it, along with copies of supporting documents, to counsel for the Employer by December 31, 2001.

Dated at Toronto, this 14th day of November, 2001.