GSB#2003-3101, 2003-3914, 2004-2011, 2004-2012, 2004-2013, 2004-2014, 2004-2015, 2004-2016, 2005-0085

UNION# OLB531/03, OLB016/04, OLB504/04, OLB505/04, OLB506/04, OLB507/04, OLB508/04, OLB509/04, OLB083/05

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Koonings)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Ernest A. Schirru Koskie Minskie LLP Barristers and Solicitors

FOR THE EMPLOYER

Richard J. Charney Ogilvy Renault LLP Barristers and Solicitors

HEARING

September 21, 2005.

Order

1Of these nine grievances, only the one dated February 23, 2005 (GSB File 2005-0085) concerns management action acknowledged or alleged to be disciplinary in nature. That grievance concerns a four week suspension, which is acknowledged to be disciplinary, and a transfer, which the union characterizes as a disciplinary demotion and the employer characterizes as non-disciplinary. That grievance will be referred to in this order as "the suspension/transfer" grievance, and the others will be referred to as "the other grievances." One of the other grievances concerns an alleged failure by the employer to follow the posting procedure in filing a vacancy. The remainder allege (among other things) discrimination and harassment and/or intimidation contrary to Article 2.1 of the parties' collective agreement.

2Having agreed that all these grievances shall be heard together in some fashion, the parties were in dispute about the order of proceeding. After discussion, they agreed that the employer would proceed first with respect to the suspension/transfer grievance and that the union would proceed first with respect to the others in the following manner:

a) First, the employer will present its case-in-chief on the suspension/transfer grievance;

b) Second, the union will present both its response to the employer case-in-chief on the suspension/transfer grievance and its own case in chief on the other grievances;

c) Third, the employer will presents its response to the union's case in chief on the other grievances and its reply, if any, to issues of fact first raised in the union's response to the employer case-in-chief on the suspension/transfer grievance; and,

d) Fourth, the union may present its reply, if any, to issues of fact first raised in the employer's response to the union's case-in-chief on the other grievances.

This order of proceeding does not reflect any concession about or determination of who bears the burden of proof with respect to the propriety of the transfer complained of in the suspension/transfer grievance.

3Employer counsel sought particulars of the grievor's allegations, particularly the allegations of discrimination, harassment and/or intimidation. I advised counsel that it is my usual practice in matters of this kind to direct that both parties provide particulars of all allegations of fact on which they rely, and to produce copies of all documents in their possession, custody or power on which they may wish to rely. This was not opposed.

4Accordingly, each of the parties shall provide the other with full written particulars of the facts on which it relies in these matters. Each party shall also provide the other with copies of any documents in its possession, custody or power (and, in the case of the union, any document in the possession, custody or power of the grievor) on which that party may wish to rely in these proceedings. This direction does not require that a party deliver copies if documents which it has already copied to the other in the course of and expressly for purposes of these proceedings: in that case it will be sufficient to unambiguously identify the previously delivered documents on which the party intends to rely.

5With respect to each act or omission alleged, each party's particulars shall indicate what was done or not done, when, where, by what means and by whom. The allegations of fact set out in a party's particulars should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit that all of the allegations of fact therein were true. It is not necessary for a party to include in its particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out. It is not necessary for a party to identify in its particulars any witnesses to events in question unless the presence of those persons is a material fact on which the party relies.

6Particulars and productions shall be delivered in accordance with the following agreed-upon timetable:

a) On or before 5:00 p.m., Tuesday, October 11, 2005, the employer shall deliver to union counsel and file with this board particulars of the facts on which it will rely in its case-in-chief on the suspension/transfer grievance, and copies of any (additional) documents upon which it may wish to rely in that respect.

b) On or before 5:00 p.m., Friday, October 28, 2005, the union shall deliver to employer counsel and file with this board particulars that

i. with respect to the allegations in the particulars delivered by the employer pursuant to paragraph a), identify the allegations with which the union agrees, if any, and the allegations with which it disagrees and, as to the allegations with which it disagrees, the version of the facts on which it relies in that connection, and set out its allegations of fact with respect to any other issue it proposes to raise with respect to the suspension/transfer grievance; and,

ii. set out the allegations of fact on which the union will rely in its own case-in-chief on the other grievances,

together with copies of any (additional) documents upon which the union may wish to rely in those respects.

c) On or before 5:00 p.m., Thursday, November 17, 2005, the employer shall deliver to union counsel and file with this board particulars that

i. with respect to issues first raised by the union in response to the employer's particulars of its case-in-chief on the suspension/transfer grievance, set out any additional allegations of fact on which it may wish to rely in reply in respect of those issues, and

ii. with respect to the allegations in the particulars delivered by the union with respect to its case-in-chief on the other grievances, identify the allegations with which it agrees, if any, and the allegations with which it disagrees and, as to the allegations with which it disagrees, the version of the facts on which it relies in that connection, and set out its allegations of fact with respect to any other issue it proposes to raise with respect to the other grievances,

together with copies of any (additional) documents upon which the employer may wish to rely in those respects.

d) On or before 5:00 p.m., Monday, November 28, 2005, the union shall deliver to employer counsel and file with this board particulars setting out any additional allegations of fact on which it may wish to rely in reply on issues first raised by the employer in response to the union's particulars of its case-in-chief on the other grievances, together with copies of any (additional) documents upon which the union may wish to rely in that respect.

7The 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 not introduce that document or present evidence about that allegation in these proceedings without leave.

8The provisions of this order with respect to production of documents do not preclude an application by either party for an order requiring the production of additional documents.

9I note that as originally framed, the grievances asked for apologies from certain individuals, including bargaining unit employees. Apart altogether from what may have been said in the grievances, on or before 5:00 p.m., Friday, October 28, 2005, the union shall advise the employer what remedies it will be asking me to grant in these proceedings, so that both it and the employer can determine whether any third party should be given notice.

10As I understand it, one of the grievor's allegations is that some or all of the conduct of which she complains in these grievances was motivated by her having given certain testimony in September 2003 in proceedings before the Alcohol and Gaming Commission of Ontario ("AGCO"). In the course of those proceedings, the AGCO apparently gave her an oral direction not to discuss her testimony with anyone. Those proceedings are ongoing, and the grievor, and consequently the union, are both concerned that this has affected and affects the grievor's ability to advance these grievances and participate in the hearing of them. Counsel understand that the AGCO proceedings will reconvene in early October, and that the grievor is being advised by her own counsel with respect to those proceedings. In the circumstances, the grievor (personally or through her counsel) should seek clarification of its order from the AGCO at the earliest opportunity, to determine whether the order remains in effect and, if it does, whether it purports to require anything more of the grievor than that she not discuss what she testified about in September 2003 with or in the presence of anyone who may yet testify in those proceedings. The grievor should promptly inform union counsel of the results of her efforts in that regard, and union counsel should so inform employer counsel.