GSB# 0270/03. 0303/03

UNION# 2003-0526-0009, 2003-0526-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Myers)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Randy Holloway Human Resources Consultant Ministry of the Attorney General

HEARING

September 8, 2003.

AWARD

On March 13, 2003, the grievor, Paul Myers, filed two grievances. The grievor’s complaint before the Board centres on the fact that he was denied union representation at a meeting held with his supervisor. At issue, therefore, is whether an employee, upon request, has the right to union representation when meeting with management.

Facts

On either February 26 or 28, 2003, Manager of Court Operations, Data Entry, Janice DeHart asked the grievor to meet with her. She did not explain the purpose of the meeting to him at the time, since he works in an open area. The grievor accompanied her to her office. The purpose of the meeting was to discuss the grievor’s late arrival at work. The parties’ agreed that this was not a disciplinary meeting, that no discipline was contemplated and that no discipline took place as a result of the matter discussed at this meeting.

The grievor explained that he requested a union steward be present during the meeting because the meeting followed a day of hearing before the Grievance Settlement Board. That hearing involved a group health and safety grievance against the manager. He grievor stated that he was concerned about possible retaliation. Ms. DeHart denied the grievor’s request for a union steward.

The collective agreement contains two provisions regarding union representation at meetings with management. One is Article 22.5 which provides, as part of the grievance procedure: “The employee, at his or her option, may be accompanied and represented by a Union representative at Stage Two of the grievance procedure.” The other is Article 44.13 which provides for union representation during Attendance Review Meetings.

Positions of the Parties

For the Union

The Union asserts that the grievor’s request for a union representative during his meeting with management should not have been unreasonably denied. It contends that the fact that the collective agreement provides for union representation in two specific instances does not preclude the right arising in other situations. It asserts that while management may have the right to meet with its employees, it cannot unreasonably deny the employee the opportunity to have a union steward present, if he or she so requests.

For the Employer

The Employer asserts that there is no right under the collective agreement to union representation, other than as specified in Articles 22.5 and 44.13. It submits that the right to union representation should not be expanded by this Board in arbitration. The Employer further submits that there is no statutory right to union representation in the circumstances of this case and that to allow one would result in chaos in the workplace.

In support of its position, the Employer cites to OPSEU (Zarolia) and Ministry of Health and Long-Term Care (2003), GSB No. 1636/01 (Mikus) and OPSEU (Liouba Tanevsky) and Ministry of Consumer & Commercial Relations) (1989), GSB No. 0783/88 (Dissanayake).

Decision

There is no general right under the collective agreement or the Labour Relations Act to union representation when an employee meets with management to discuss a work-related issue. The two entitlements contained in the parties’ collective agreement regarding union representation are not applicable to the meeting which took place in this case. The February meeting was not a Stage 2 meeting, nor an Attendance Review Meeting.

In my view, it would be improper to expand the right to union representation in this proceeding. OPSEU (Zarolia) and Ministry of Health and Long-Term Care, supra. To do so would not only improperly expand the right to union representation beyond the parties’ bargain, but it would also create an unworkable situation for management. If an employee had the right to union representation any time his or her supervisor requested a meeting, it would be chaotic and disruptive to the efficient operation of the public service. Management has the right to meet with its employees to discuss work-related matters. There is no corresponding general right to union representation.

Further, even though the Employer acknowledged that there is a practice to allow union representation when the meeting may lead to discipline, the parties’ agreed that the meeting was not a disciplinary meeting and did not lead to discipline. In OPSEU (Liouba Tanevsky) and Ministry of Consumer & Commercial Relations, supra, the Board held that there was no right to union representation even for a meeting during which a serious allegation was to be discussed which could have (and did) lead to the grievor’s discharge. The Board held at p. 9: “The grievor has been unable to point to any legal right, under the collective agreement or any legislation, to union representation at a meeting as that held on August 3, 1988.” Although the Human Resources manager had recommended that the meeting take place in the presence of a union steward, the Board noted that “he did so not with any legal obligation in mind, but as a matter of common sense.” In this case, however, the meeting was non-disciplinary and no right to union representation would attach.

Accordingly, under the facts of this case, I conclude that the manager’s denial of the grievor’s request for union representation did not violate the collective agreement. The grievances must therefore be dismissed.

Issued at Toronto this 17^th day of September, 2003.