GSB# 2003-0844, 2004-2943

UNION# 2003-0713-0001, 2004-0713-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Karas)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Mary MacKinnon Raven, Cameron, Ballantyne & Yazbeck Barristers and Solicitors

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

HEARING

May 11, 2006.

Decision

The grievor, Jason Karas, has filed two grievances, one alleging that the Ministry has violated articles 3 and 9 of the collective agreement as well as the Workplace Harassment and Discrimination Policy, the other alleging that he has been unjustly and excessively disciplined as a reprisal. He has asked for a formal apology from the Minister of Natural Resources, an order that the Chief Pilot receive W.D. H. P. training and an order that the Chief Pilot not be involved in any employment interviews and/or flight tests involving him and reimbursement for all lost wages, benefits and credits. As well, the grievor has asked for full redress and that he be made whole.

At the first day of hearing the Employer asked for an order that the scope of the grievance be limited to the grounds stated in the grievance itself. The Union asked for an interim ruling regarding the disclosure of certain notes and reports the Employer has refused to provide to date.

With respect to the Employer’s motion, Mr. Parris, counsel for the Employer, submitted that it was the Employer’s position that the scope of the grievance has been expanded significantly and is being used to embarrass the Ministry and its officials and to force production of documents that the Union has been unable to obtain through other means.

The Employer points to the grievances themselves as support for its position. The grievances were filed in June of 2003 and November of 2004. The first one alleges a violation of article 3, No Discrimination, and article 9, Health and Safety. While the grievances appear to be broad in scope, one need only look, it was said, at the remedies requested to understand the facts giving rise to the grievances. The grievance arose during May and June of 2003 and involved the Chief Pilot, Mr. Jim Bennett. The grievor was specifically seeking an apology and a bar to Mr. Bennett’s future involvement in employment matters concerning him. On April 10, 2003 the grievor wrote a letter to Mr. Barry O’Brien, Manager of Aviation, in which he outlined the facts giving rise to his concerns about Mr. Bennett. In it he described events following the death of his father in March of 2003, specifically Mr. Bennett’s conduct towards him during this difficult time. Even the Union’s statement of particulars described events that took place in 2003 and clearly referred to the incidents that occurred between the grievor and Mr. Bennett during that time.

The second grievance is dated November 4, 2004 and involves discipline for an alleged violation by the grievor of the Ministry policy regarding the Travel Management and General Expenses Directive when he rented a luxury car, contrary to the policy. That grievance is about lost wages and unjust discipline and is specific to the facts giving rise to the discipline.

The Employer asked this Board to limit the scope of these grievances to the time frame and the events described by the grievor and the Union. It referred the Board to the case of Re Fanshawe College and OPSEU, Local 110 (2002), 2002 CanLII 79073 (ON LA), 113 L.A.C. (4^th) 328 (Burkett) in which the Board stated, at page 334 as follows:

In deciding whether the issue that is framed at arbitration is the same issue raised in the grievance as filed, an arbitrator must compare the grievance as written, including the remedy sought, to the issue raised at arbitration, including the remedy sought.

It went on at page 336 to say:

…The Union is not to be permitted at a later date, just prior to arbitration, to completely change horses in midstream and raise issues not contemplated by the grievance which are not consistent with the language of the grievance, which cannot be reasonably be included in the grievance and with the language of the collective agreement and which are entirely separate and distinct from the subject of the original grievance.

Ms. Mackinnon, counsel for the Union, asked the Board to consider the background of the grievances in deciding whether to grant the Employer’s motion. Mr. Karas has been a water bomber pilot since 1998. There are about 20 of them situated in Northern Ontario. In 2001/2002 a conflict arose between the pilots and the management over the existing work arrangements. The parties had entered into a Memorandum of Understanding that allowed the pilots to work long hours in the summer without overtime payment of wages in return for time off in the winter months. In 2002, when the Union signified its intention to renegotiate this understanding, the Employer imposed a twelve month schedule which the pilots found unacceptable. The grievor was one of the Union representatives who took an active role in the conflict that followed. It is his belief that the Employer’s response to his participation between 2002 and 2004 was to engage in a series of acts that constituted reprisal, including the incidents that gave rise to the two grievances before this Board. The Employer would have this Board limit the scope of the grievance to the events that transpired around the time of the grievor’s bereavement but the grievance alleges harassment on the grounds of family status and anti-union animus. The grievance is of a continuing nature and covers a two year period from 2002 to 2004. It involves a pattern of conduct that this Board must hear before it can determine whether the allegations are true. The grievor has asked for full redress and that redress must include remedies for the ongoing harassment the grievor alleges he has suffered during the time in question.

With respect to the Union’s request for particulars, Ms. Mackinnon referred to a letter sent by Mr. Gilbert, the District Grievance Officer in Thunder Bay to Ms. Aselstine, who was the Staff Relations Officer for the Ministry at the time, dated May 13, 2004 which asked for the following:

The noted of Graham Gordon concerning his investigation report of May 27, 2003 and any documents he relied upon including witness statements.

A copy of the report completed by Mike O’Brien in February 2004 and his notes as well as any documents he relied upon including witness statements.

It was the Union’s position that these notes and reports deal with the pilot’s complaints concerning the poisoned work environment, the health and safety issues raised by the pilots and the reprisals the Employer had engaged in as a result of the above. The report requested was the result of the complaints of the pilot’s as expressed in a group letter to the then Minister of Natural Resources, dated January 5, 2004 in which it was stated that pilots were actively seeking employment elsewhere because of concerns about their inability to focus on their job duties, which in turn created a fear for their health and safety. It was stated in that letter that “…the Ontario Provincial Air Services has become the worst employer they have ever worked for.” Attached to that letter was a 5 page document entitled Safety and Increased Expenditure Concerns within the Ontario Provincial Air Service. The issue discussed in the document was described as “unsafe and costly working conditions within the Ontario Provincial Air Service.

As a result of that communication with the Minister, Mr. Jack McFadden, Aviation and Forest Fire Management Branch Director, was directed by the Minister’s office to look into the matter. By letter dated January 5, 2004 he advised the pilots that he would be assigning a senior staff member to conduct interviews with them and asked for their full cooperation. Mr. Mike O’Brien, Executive Assistant to the Assistant Deputy Minister, conducted these interviews over a two week period and the results of his investigation were given verbally to many staff members and followed by a letter dated June 3, 2004 and addressed to the CL415 pilots. In that letter Mr. McFadden reported that Mr. O’Brien had concluded that the January pilot’s letter to the Minister was not the submission of the group and that very few pilots had actually seen the letter and did not agree with its content. He also found that there were no unsafe working conditions as alleged in the letter to the Minister and concluded that the underlying problem was the inability of the parties to reach an agreement on the compressed work schedule.

It is this report and the notes taken during the interviews that the Union is seeking. There is nothing special or privileged about the documents requested. The employees were directed to cooperate and the grievor has a right to see whether his comments were fairly presented and whether the interviews supported his allegations of a poisoned work environment. The issues that were the subject matter of the investigation occurred during the relevant time frame the grievor alleges he was subject to the unfair treatment and reprisals and is clearly relevant. The summary of Mr. O’Brien’s findings is inconsistent to what the grievor was told personally by Mr. O’Brien. The grievor is entitled to examine those differences.

Mr. Parris took the position that the full report should not be disclosed to the grievor or the Union. The Union has failed to provide any nexus between the grievance before you and the report and notes being sought. There is no connection between the allegations of harassment and the general interviews done with the staff is response to the group’s letter to the Minister. In addition, the staff members were divided on the comments purportedly made by the group and releasing the report will cause dissension and divisiveness within the workplace. Even if this Board should find it arguably relevant, its prejudicial value outweighs its probative value.

The Employer submitted that the Union has an ulterior motive for requesting the report of Mr.O’Brien and the accompanying notes. It and the group of pilots who initiated the January letter to Mr. Ramsay want to know who said what to Mr. O’Brien and are using this forum to get what it wants.

REASONS FOR DECISION

Dealing first with the issue of the scope of the grievance, there are two grievances before me, one alleging a violation of the No Discrimination provision of the collective agreement, the other alleging excessive and unjust discipline and reprisals. While each grievance asks for specific remedies in respect of specific alleged conduct of the Employer, there can be no doubt that the grievor intended to include broader allegations of discrimination, reprisal and W.D.H.P. violations.

The first grievance is dated June 27, 2003 but even before that grievance was filed, the grievor had sent a letter to Mr. Barry O’Brien, the Manager of Aviation Services, outlining his concerns about the unprofessional manner Mr. Bennett had shown towards him. He referred to the events of March and April during the death of his father but also stated he had made previous attempts to have Mr. Bennett address “my concerns regarding the reduction of stress in the workplace|” and “the harassment by Mr. Bennett” and stated that “time and time again Mr. Bennett’s unprofessional conduct has caused me undue stress in the workplace”. At a meeting on May 27^th to discuss these concerns, additional issues arose concerning Mr. Bennett’s under the general complaint of harassment. This is not a matter of changing horses midstream or raising issues not contemplated by the grievance. The grievances filed by the grievor were intended to address what he feels is harassment and discrimination that has resulted in a disciplinary reprisal. The scope of these grievances is sufficiently broad to encompass these concerns and form part of the grievor’s case.

With respect to the second motion, that is the disclosure of the report completed by Mr. Mike O’Brien in February of 2004 and his notes of the interviews conducted in preparing that report and the notes of Mr. Gordon concerning his investigation of May 27, 2003, the test is whether these documents are arguably relevant to the issues raised in the grievances. Clearly the genesis for the investigation done by Mr. Gordon was the complaint by the grievor about Mr. Bennett. The report generated by his investigation is relevant to the issues before no and so are the notes that were the basis for his report.

The second request for the report and notes of Mr. O’Brien are the direct result of the letter to the Minister purportedly written by the pilots about their dissatisfaction with the Employer and its workplace. The grievor’s participation in that communication and his involvement in the disagreement over the scheduling of the pilots’ hours of work, he alleges, resulted in the discipline he characterizes as a reprisal. The report has never been released in its entirety to the pilots but in a memo to the pilots dated June 3, 2004, it was said that the letter to the Minister did not represent the views of the majority and that many of the pilots had not even seen the letter, did not agree with the tactics and did not support the statements contained within it. Similar comments were made about the health and safety issues raised in the letter and the charge that Aviation Services was the “worst employer to work for”.

At this stage of the proceedings, I accept the Union’s submission that these documents are arguably relevant to the issues before me. They are the result of actions the grievor claims formed the basis of his complaints and what he said in those interviews and what it was reported he said might be relevant as the case proceeds. There is no privilege claimed in respect of these documents and no compelling reason not to order their disclosure.

However, I accept the Employer’s concerns about the divisiveness these notes and reports might generate in the workplace. There is no doubt that at the time tension was high and the pilots were extremely upset about the manner in which they were being treated. As said before, the letter to Mr. Ramsay was purported to be the consensus of the pilots. Mr. O’Brien’s investigation, it is claimed, suggested otherwise. The Employer has concerns that those who did not necessarily support the writers of the letter might suffer if their comments became known.

For that reason the documents shall be disclosed subject to the conditions set out below.

DECISION

The Employer’s motion to limit the scope of the grievance to the events surrounding the specific events described in the grievances is dismissed. The grievances are broad enough to include the allegations of discrimination and harassment set out in the Union’s letter of April 21, 2006.

The notes of Mr. Gordon’s interviews for the May 27, 2003 mediation are to be provided to the Union.

The notes of Mr. O’Brien’s interviews and his final report are to be provided to the Union subject to the following conditions:

1. The documents disclosed in accordance with this Order may only be viewed as provided herein and may not otherwise be viewed, distributed or disclosed.

2. Counsel for the Union will be and remain the only one in possession of the disclosed documents.

3. Copies will only be made for the sole purpose of the hearing.

4. All persons who view the disclosed documents are required to keep the information contained in these documents confidential.

Dated at Toronto this 7^th day of July, 2006.