GSB#0507/02
UNION#OLB182/02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(East)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Belinda Kirkwood Vice-Chair
FOR THE UNION Julia Noble
Counsel
Ontario Liquor Board Employees’ Union
FOR THE EMPLOYER Myfanwy Marshall
Counsel
Liquor Control Board of Ontario
HEARING October 16, 2002.
INTERIM DECISION
The grievor was terminated by the Board by letter dated May 13, 2002. The first day of hearing was October 16, 2002. The merits of the decision were not heard on the first day of hearing. The first day dealt only with opening statements setting out the basis for the Union’s preliminary objection to the validity of the grievor’s termination, and with the Board’s request for production, and with an issue in the presentation of the issues. I made an Order relating to the presentation of the issues and I issued an Order orally relating to the production issues at the hearing. On October 24, 2002, I was asked by Union counsel to provide a written decision on the production issue, and then by Board counsel on the procedure to be followed as it relates to the issue of past practice. Today I was advised by Union counsel that Union counsel intends to rely on my decision in another case before the Grievance Settlement Board which is being heard tomorrow.
As this Order and decision is intended to be relied upon in another case and is not solely for use in the case before me, I have provided the background to the case as presented by counsel and the submissions of the parties.
Prior to hearing the merits of the case, the Union brought a preliminary motion requesting that the discipline be declared null and void, as a result of the alleged Board’s breach of article 26.3 of the collective agreement, for failing to provide notice of the purpose of a meeting which could lead to discipline, for failing to provide notice in advance of an employee’s right to union representation at that meeting, and particularly that the right to union representation is provided unless there was to be undue delay.
The Board submitted that the provisions of article 26.3 of the collective agreement have not been breached as the meeting in issue was not for the purpose of discussing a matter, which may result in discipline, but was for the purpose of delivering management’s decision to terminate the grievor. There was a union representative present as directed by management. Board’s counsel submitted that this was in accordance with the parties’ practice. Where there is no zone representative available, which was Mr. Sousa, the Union has directed the Board to use Ms. Davis.
Background
I am advised by the Union that the Board terminated the grievor when it concluded that the grievor was competing in body building competitions when he was on sick leave or while receiving workers’ compensation payments.
The grievor received a Notice of Intended Discipline “NOID” dated April 17, 2002. The grievor responded with an undated written statement, which was marked received by the Board on April 22, 2002. The Board held a meeting with the grievor and his union representative, Joe Sousa on or about April 24, 2002. The grievor provided a further written response dated April 29, 2002. The Board held a further meeting with the grievor and his union representative, Joe Sousa on May 3, 2002. The Union states that the evidence will show that the Board asked the grievor to provide medical confirmation that his doctor had cleared the grievor to participate in body building events. The Union states that the Union’s evidence will be that the grievor was asked to report to the front office on May 13, 2002, and that he was not given advance notice of the purpose of the meeting nor that he had the right to have union representation at this meeting. The Union states that the evidence will be that the Board directed a union steward, Ms. Denise Davis to attend the May 13, 2002 meeting, which she did. Although Ms. Davis and the grievor asked that the meeting be postponed in order that Mr. Sousa represent him, the request was denied and the meeting continued and the grievor was questioned. Mr. Sousa was off work on May 13, 2002 on a pre-approved vacation day. The Union’s evidence will be that the grievor stayed for a while, answered some questions, was upset and left the meeting despite the Board asking him to sit down and to stay.
The Board stated that the Board’s evidence will be that the Board became aware that the grievor was participating in body building competitions at both the National and North American level, at times when he was off work due to back injury or from other physical injuries that prevented him from performing his regular duties or even modified work. Based on this information, the NOID was issued on April 17, 2002. Based on the grievor’s response that he did not understand the allegations, a meeting was held on April 24, 2002 with the grievor and his union representative. It will be the Board’s evidence that at the meeting the grievor denied participating in the competitions, but subsequently admitted to doing so, but with his doctor’s approval. The Board again met on May 3, 2002 with the grievor and his union representative. The Board stated that its evidence will be that the grievor stated that his doctor had given him approval to compete. Further, when he has injuries he does not do any training, but relies on “good genes” and on nutrition. When he was asked at the meeting to obtain medical verification, he refused to do so after he had asked his representative if he was required to do so. It will be the Board’s evidence that the Board did not receive any information from the grievor, and that management’s investigation revealed that it was not possible to rank in the top ten relying on good genes and nutrition, management decided to terminate the grievor. The decision was made on either May 9, 2002 or May 10, 2002. The letter was drafted on May 13, 2002. The grievor was then called to the front office and the union representative was present. The Board’s evidence will be that when Ms. Davis advised the Board that she was not prepared to represent the grievor as she did nor know the facts, the management left the room in order that the grievor could speak to his representative. On management’s return, Ms. Davis advised the Board that the grievor wished to provide a doctor’s note. They were advised that that was not the purpose of the meeting. It will be the Board’s evidence that the grievor did get up from the table and begin to leave and would not return as asked by management. He left the room. While leaving he was asked for his current address and then management left the area. When Ms. Davis came to the Human Resources office, she was advised that the decision to terminate had already been made and the letter, which had been prepared and signed, would be changed to show that it would be hand delivered.
The facts of the May 13, 2002 meeting are in dispute between the parties.
It was the Board’s position that there is no requirement to issue an NOID, or to have pre-disciplinary meetings, although it is generally, but not always, the practice to issue a NOID and to have meetings to discuss the contents. Board’s counsel further submitted that the meeting on May 13, 2002 does not fall within the ambit of article. 26.3. The decision to terminate had already been made and it was not a meeting to collect any information from the grievor or to ask him any questions. It will be the Board’s evidence that the practice is, that when a person is terminated, the Board will choose the union representative to be present at the termination. It is the Board’s position that the parties have already agreed that the procedure as followed does not violate article 26.3. It is the Board’s position that article 26.3 is applicable only to meetings, which may result in discipline.
Alternatively it is the Board’s position that there was no meeting, as the grievor left the room. Alternatively, if it were found that the meeting of May 13, 2002 was a meeting that fell within the confines of article 26.3, by means of the NOID, the grievor had advance notice of the right to union representation and was aware of the purpose of management’s purpose.
Procedure
The Union wished to bring evidence on the practice issue only in Reply. On the other hand, the Board submitted that it was incumbent on the Union to present and prove its case, and that the Board was there to defend its position.
As I was advised that the case law relates only to procedure at the NOID level, it appears from the information that I was given that the parties’ practice may very well be an issue, I advised the parties that the Union should present its case fully in its Direct examinations and not leave the issue of practice to Reply to the Board’s defense. In this way it will allow the issue to be fully canvassed and will prevent splitting the case.
If the Union chooses not to bring evidence on practice as part of its case, and the Board does so as its defense, the Union can of course respond in its Reply, but I will allow the Board the right to respond in Reply on this issue.
Production
On the issue of production, the Board’s counsel was seeking:
the original notes relating to the meeting of May 13, 2002, and the original doctor’s note;
all documentation relating to any training given to union representatives on their roles in meetings on how the collective agreement is to be applied, and information whether the union representatives have to attend with employees where there is an alleged violation of the collective agreement, including all material handed to the union representatives at their annual meetings, their policies and guidelines;
production of notes of the grievor and his representative, Joe Sousa, on the meetings of April 24, 2002 and May 3, 2002;
information on the grievor’s receipt of Employment Insurance for the purpose of mitigation.
Board’s counsel submitted that this is not a fishing expedition. Board’s counsel argued that the Union had advised the Board that where Mr. Sousa was not available, the Board was to call Ms. Davis. In support of this assertion, the Board was seeking the training and information given to the union stewards and the zone representatives on when they were to attend meetings, and what role they were to play.
The Board argues that the request for information for all training manuals, policies and guidelines, relates to the past practice of the Board and the Union on the interpretation and application of article 26.3. Board’s counsel submitted that it was similar to the requests made by the Union of the Board’s practices or guidelines. The request goes to the issue of timeliness and the practice of the parties. Board counsel also submitted that the training manuals also went to the roles that union representatives were to assume in meetings. The Board understood that the Union had an annual meeting and training material was handed out at that meeting.
The Union agreed to the production of the original notes of the union representative and the grievor as requested, and the original doctor’s note.
The Union objected to producing the training manuals as not being relevant. Union’s counsel was unaware if such materials existed, but submitted that even if the materials did exist that they were privileged, as the Union must be able to privately train and consult with their representatives as they see fit. They were different from Employer Manuals and Guidelines which are published in Employer Manuals, a copy of which are then given to the Union with continuous updates. They are available to the Union and its members. Union counsel submitted that the documents sought were analogous to training manuals, which are provided to the human resource personnel, which are confidential and are not provided to the Union.
The Union asked the Board to bring the grievor’s personnel file to the next day of hearing. The Board had no difficulty with this request.
The Union submitted that with respect to any issue surrounding the Board’s objection that the Union’s claim that article 26.3 had been breached was untimely, the Union was conceding that compensation would flow from September 3, 2002, the date which the Union gave notice to the Board that it was making such a claim.
The Union objected to producing the information on the Employment Insurance received as being premature. Union counsel submitted that it is a waste of time at this juncture, as I am seised with the issue of compensation.
After hearing the brief submissions on the issue of production by the parties, I made the following Order, that:
each party provide the other particulars on its view of its practice in order that each party will know the issues that they have to meet;
the parties exchange notes on the meetings, and provide the other party the originals;
the Union provide the original of the doctor’s notes either at the end of the day’s hearing on October 16, 2002 or when the parties meet to produce the original notes.
At this time I do not see the relevance for the production of training manuals in general on the roles that union representatives should take at meetings, or at meetings that may result in discipline. The matter of training manuals might relate to the expertise of the representatives, but does not provide evidence on how they represented themselves to the Board. Therefore, I decline to make this Order. The issue as I see it is the practice as constituted by conduct that goes to the interpretation of the collective agreement. However, I am reserving my decision on the production of any policy, guidelines or manuals relating to the interpretation of article 26.3 to such time as it becomes an issue arising from the presentation of the Union’s case. I will then leave it to the parties to argue their position at that time.
Finally, I am not making an order for production of the evidence relating to the grievor’s receipt of Employment Insurance at this time. The issue of mitigation is relevant should the Union be successful, as the grievor has an obligation to mitigate his damages. As I am seised on the issue of compensation, this issue can be raised again if it is necessary should the Union be successful. Nevertheless I do encourage counsel to discuss settlement of the issues before them when they meet to exchange productions, and that as a part of those discussions, the Union should be prepared to provide the Board with the total Employment Insurance received and documentation as required.
Dated at Toronto, this 29th day of October, 2002.