GSB# 0994/02; 0995/02; 1328/02; 2973/02
UNION# 02A737; 02A738; 02F038; 2003-0230-0001
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## IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
# BETWEEN
Ontario Public Service Employees Union
(Cherwonogrodzky et al.)
## Grievor
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Gavin Leeb
Barrister and Solicitor
FOR THE EMPLOYER
Fateh Salim
Counsel
Management Board Secretariat
HEARING
March 28, 2003.
# ORDER
[1] The parties have agreed to join a number of recent grievances with the above-styled grievances for hearing together before me, on the basis that the decision in these proceedings shall have “precedential value” within the meaning of Article 22.16.7 of their collective agreement. The parties are to consult with the administrative staff of the GSB to ascertain the GSB File number of each of the grievances to be included in these proceedings, and provide me with a list in electronic form setting out the grievor’s name, OPSEU grievance number and GSB file number for each such grievance.
[2] To the extent its counsel has not already done so at the hearing of March 28, 2003 or in prior written correspondence with counsel for the employer, the union is hereby ordered to provide the employer with particulars of the facts on which it relies in support of its allegations in these proceedings, including, without limiting the foregoing, any particulars not already provided in answer to paragraphs numbered 1, 3 and 7 through 11 of employer counsel’s letter of March 14, 2003.
[3] As to the union’s allegation that the employer benefits from the grievors’ possessing a current professional designation, any previously undisclosed particulars of the facts relied upon in support of that allegation shall be provided as soon as possible, and in any event prior to Thursday, April 3, 2003.
[4] As to the union’s allegation that in the application to the grievors of its policy on reimbursement of professional dues the employer has acted in an arbitrary, discriminatory or bad faith manner, any previously undisclosed particulars of facts relied upon in support of that allegation shall be provided as soon as possible, and in any event prior to Thursday, April 10, 2003.
[5] The union asked for particulars of the names and positions of individuals for whom the Ministry and/or the Employer provides reimbursement for maintenance of the professional designations in issue, namely CA, CMA and CGA. The response of employer counsel is that the Ministry does not provide reimbursement to anyone for the maintenance of any of those designations, except when it was necessary for the employee to have that designation in order to take courses the Ministry wished them to take or having the designation was otherwise a condition of employment. The union asserts that in a document currently available on its intranet setting out “Frequently Asked Questions” about taxable benefits (the “Taxable Benefits FAQ”), the employer includes the following Question and Answer:
The ministry pays my fees to belong to the Certified General Accountants Association of Ontario. Is this a taxable benefit?
Yes. Since membership is not a condition of employment, this is a taxable benefit.
On the face of it, this appears to indicate that the fees required to maintain membership in at least one of the designations in issue are being reimbursed or have in the recent past been reimbursed by a ministry or ministries for employees for whom such membership is not or was not a condition of employment, in numbers sufficient for this question to have been “frequently asked” by such employees.
[6] At the hearing of March 28, 2003 in this matter, the union has asked that the employer (i.e., the Crown in Right of Ontario) be directed to produce all documents in its possession evidencing the posing of questions that led to the aforementioned entry in the Taxable Benefits FAQ (including, to the extent that the questions posed reveal them, the names, ministries and circumstances of the questioners). I so directed orally at that hearing. In view of the lateness of the union’s request, however, I noted that this direction required only that the employer make reasonable efforts to locate and produce the subject documents. I hereby confirm that direction and observation. If those documents are not provided prior to the close of the union’s case, the lateness of the union’s request and the reasonableness of the employer’s efforts up to that point to locate the documents will be factors to be considered if the union requests and the employer opposes an adjournment of the hearing pending production of those documents.
[7] The deadlines specified in this order may be varied by written agreement of the union and employer. A party who fails to produce a document or to provide particulars of an allegation in accordance with this order may be precluded from introducing that document or presenting evidence about that allegation in these proceedings.
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Dated at Toronto this 31<sup>st</sup> day of March, 2003.
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minicounsel