GSB# 1996-0717, 1999-0878, 2001-0295, 2001-1069, 2002-0591, 2003-3321, 2004-0745

UNION# 1996-0517-0005, 1999-0517-0008, 2000-0517-0010, 2001-0517-0238, 2001-0517-0261, 2001-0517-0260, 2001-0517-0259, 2001-0517-0239, 2001-0517-0240, 2001-0517-0242, 2001-0517-0241, 2002-0517-0011, 2003-0517-0061, 2004-0517-0038

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sidhu)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Sean Kearney Senior Counsel Ministry of Government Services

HEARING

February 27, August 3, September 25, 2006.

Decision

The Employer has moved to dismiss a number of the grievances presently before the Board in this matter, asserting that it still has insufficient particulars to proceed and that a number of the grievances should be dismissed on various other legal grounds. This decision addresses the Employer’s motion.

Facts

The grievor, Mr. Harbir Sidhu, has filed numerous grievances before the Board, dating from May 22, 1996. In general, the grievor alleges discriminatory treatment and discipline as a result of his religion, specifically his religious practices as Sikh.

There were several attempts at mediation in this matter, beginning on January 19, 2004. At that mediation, counsel for the Employer, Mr. Sean Kearney, requested particulars of the grievor’s allegations. This was followed by correspondence from Mr. Kearney to Mr. Nelson Roland, counsel for the Union, dated June 9, 2004, again requesting particulars and supporting documents. When no documents or particulars were provided, three scheduled hearing dates were lost.

On July 28, 2004, the Board issued an Order which, among other things, ordered the Union to provide, by August 13, 2004, “the particulars and documents requested in Mr. Kearney’s letter of June 9, 2004.” The Employer was also to provide particulars in relation to matters in which it bore the onus. The Order also stated that if compliance was not forthcoming, “the parties are free to make any motions they deem appropriate, including a motion to dismiss the grievances.” The next hearing date was scheduled for September 13, 2004.

On January 30, 2004, the Employer provided the Union with its particulars and documents, adding to particulars and documents already provided. On August 13, 2004, Mr. Roland responded to the Employer’s request for particulars.

On September 13, 2004, another attempt at mediation proved unsuccessful and a number of additional grievances were identified. At that time, Mr. Roland had not yet been retained by the Union as counsel for the new matters, but indicated that he would seek instructions. Subsequently, the Union did retain Mr. Roland on these additional matters and the parties agreed to consolidate them with the existing grievances.

On September 14, 2004, Mr. Kearney wrote to Mr. Roland concerning the Employer’s position on a number of matters, seeking clarification and medical documentation supporting the grievor’s claim for mental distress. He also requested particulars for the new grievances.

The matter was set for hearing again, in April and May 2005. On January 31, 2005, in anticipation of those hearing dates, Mr. Kearney wrote to Mr. Roland, again requesting particulars for the new grievances and the medical documentation.

The four hearing dates set for April and May 2005 were adjourned by the parties. On May 20, 2005, Mr. Kearney wrote to Mr. Roland that he was still awaiting particulars for a number of the grievances as well as the receipt of medical and related documentation.

A hearing date for February 27, 2006 was scheduled by the Board. On January 5, 2006, Mr. Kearney wrote to Mr. Roland again requesting particulars on the three new matters and advising that it would otherwise be seeking to dismiss them. The letter also outlines the Employer’s concerns about the adequacy of the particulars in regard to a number of the original grievances as well as legal positions that the Employer would be taking to dismiss the grievances.

On January 17, 2006, Mr. Roland sent some medical documentation to Mr. Kearney. On January 30, 2006, Mr. Roland responded to the Employer’s request for particulars in regard to the new grievances. Once again, the hearing date of February 27, 2006 was used as a mediation date by the parties.

At the next hearing date on August 3, 2006, the Employer moved to dismiss a number of the grievances. On September 25, 2006, the Union responded to the Employer’s motion. Each grievance will be considered separately below.

Grievance #1 May 22, 1996 – alleged harassment [GSB# 1996-0717, OPSEU# 1996-0517-0005 (96F261)].

The grievance states: “I grieve that Mr. Kitzul (OM 16 Supervisor) has harassed me on a continuous basis, in violation of the collective agreement, not limited to Articles A.1.1 and A.1.2.” The remedy requested states: “The harassment must stop immediately, once and for all, monetary compensation and time off for mental anguish.”

In its particulars dated August 13, 2004, the Union alleges that on May 22, 1996 “the grievor was sent at or about 2:32 a.m. to his vehicle to retrieve his name tag” whereas the usual procedure when a name tag was lost, at the time, was “simply to submit a memo requesting the replacement of a name tag.” It asserts that “[p]rior to this OM16 Kitzul had been harassing the grievor on a continued basis.” The only prior incident alleged, however, is an unspecified racial comment about the grievor which he had complained about in a September 29, 1994 Occurrence Report. The Employer was unable to locate any such Occurrence Report and none was provided by the Union.

The Union also referred to three incidents after the grievance – on June 4, 1996, June 10, 1996 and June 29, 1996 when allegedly other Correctional Officers (identified in the particulars) did not have on their name tags and no action was taken against them. It also refers to a letter of counsel dated June 19, 1996 which, the Union claims, is the “culminating example of the continuing harassment and discrimination which is complained of in the grievance.”

The June 19, 1996 letter was first noted by the Employer in its June 9, 2004 letter to the Union. It stems from the grievor’s failure to submit an Occurrence Report on April 30, 1994, as directed by OM16 Kitzul concerning his lost name tag. What allegedly occurred is outlined in a May 1, 1994 Occurrence Report by Mr. Kitzul. The Employer also provided a copy of the June 19, 1996 letter of counsel issued to the grievor for failing to follow his supervisor’s instructions. Neither this letter of counsel nor the June 1996 events were grieved.

The Employer contends that all that is alleged is a single incident on May 22, 1996 which does not and cannot constitute “harassment.” It submits that “harassment” is a course of conduct, not a single incident. In support, it cites to Re Toronto Board of Education and CUPE, Local 63 (Young)(1997), 1997 CanLII 24978 (ON LA), 65 L.A.C. (4th) 174 (Howe). In addition, it asserts that the Union cannot rely on events which took place after the grievance was filed. It also asserts that the claim of an unspecified racial comment made two years before should not be considered.

The issue of whether a single incident may establish a claim of “harassment” is currently an open one before the GSB and I do not believe that a preliminary motion is the appropriate avenue to address that important issue. Further, the Union, at this juncture, is not relying on a single incident. It has also raised a number of incidents that arose very shortly after the grievance was filed relating to the issue of name tags and one – the letter of counsel – which directly relates to the name tag issue and involves events which arose within 30 days of the grievance. Accordingly, at this point in the proceeding, the grievance cannot be dismissed on this basis.

The Employer also claims that the medical documentation supplied by the Union is insufficient to support a claim for damages for mental distress, citing Re Banach and Bank of Nova Scotia [1995] O.J. 1255 (Ont. Ct. Justice); Jardine v. City of Gloucester [1999] O.J. No. 424 (Ont. Ct. Justice); OPSEU Latimer) and Ministry of Community Safety and Correctional Services (2004), GSB No. 1995-0313 (Kaufman); OPSEU (Reid) and Ministry of Health (1999), GSB No. 1771/93 (Fisher). Accordingly, it submits that the claim for damages should be dismissed by the Board.

In response, the Union submits that the Employer’s demand for medical documentation was not made until June 9, 2004 and that it therefore cannot claim, so long after the fact, that the grievor lacks such documentation. Further, it submits that the grievor will testify concerning the mental anguish and distress he suffered at the time.

In my view, the Employer’s motion to strike the grievor’s claim for mental distress is premature. It is a remedy issue which must be decided at the appropriate stage, not as a preliminary matter. The OPSEU (Reid), supra, case took place under the mediation/arbitration backlog process and is of limited value in deciding this issue. In OPSEU (Latimer) and Ministry of Health, supra, the Board awarded damages for pain and suffering, loss of dignity and mental anguish – apart from mental stress in a medical sense. Further, in the court cases cited by the Employer, the court rejected the claim of damages for mental distress – after the evidence was presented, not as a preliminary matter.

Accordingly, the Employer’s motion to dismiss the May 22, 1996 grievance and/or the claim for mental distress is denied.

Grievance #2 - June 5, 1999 grievance.[GSB# 1999-0878, OPSEU# 1999-0517-0008 (99C862)]

This grievance alleges: “I grieve that the Employer has engaged in discriminatory treatment of me, contrary to Article 3 in the collective agreement, but not limited to that article.” The remedy seeks “full redress.”

In its particulars of August 14, 2004, the Union asserts that “[t]he discriminatory treatment visited upon the grievor is well known to the Employer and includes but is not restricted to inconsistent orders respecting where the grievor may be posted given his facial hair.” The grievor’s facial hair is a result of his practice of the Sikh religion. The growth of facial hair, however, impacts the ability of a Correctional Officer to wear an MSA mask. The letter states that “during a certain period the grievor was restricted to the front desk and the visit desk. Another time he was allowed to work in all areas. Another time the grievor was restricted to ‘general duties’ only” and “95% of the time the grievor was assigned to the so-called ‘Fresh Air’ program” and lost overtime opportunities.

The particulars also refer to a chronology supplied by the grievor. The only entry dealing with assignments during this time period is June 2, 1999 which states:

Mr. Bell [Deputy Superintendent] put out a memo to the managers, outlining that CO’s Singh and Sidhu were to be posted to positions least likely to encounter the MSA equipment. He gave examples of posts as being lobby officer, recreation visit control and outside escorts. Managers interpreted this memo differently, and the job postings of the officers varied from day to day.

In the Employer’s view, these particulars are inadequate under the GSB’s jurisprudence because they do not reveal the who, what, where or when of the allegations.

The GSB case law is clear on these matters and need not be repeated here. The jurisprudence was recently thoroughly reviewed by Vice-Chair Felicity Briggs in OPSEU (Union) and Ministry of Community Safety and Correctional Services (2006), GSB No. 2003-5766. Essentially, a party must provide the “who, what, where, when and how” of the allegations on which it intends to rely.

In my view, the particulars are sufficient as to the who (the grievor), the what (inconsistent assignments), the where (the grievor’s institution) and the why (alleged discrimination based on religion/race) but fall short on the when. They merely state “during a certain period” and twice refer to “another time.” In OPSEU (Singh) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2005-1070 (Abramsky), the failure to provide dates of contested assignments was deemed problematic because it “would require the Ministry to do extensive research to determine, for an unspecified period of time, the assignments given to the named individuals compared to the assignments of the grievor” which was “the work that the grievor and the Union should have done in response to the October 6, 2004 Order [for particulars].”

In this case, it is my view that the “when” should be limited in time to a three-month period preceding the grievance. In this grievance, there is no comparison to be made between the grievor and other Correctional Officers. Instead, the claim is inconsistent assignments in relation to the grievor alone. I do not believe that this would require the Employer to do extensive research. Indeed, the assignment records could be provided to the Union for its review.

Accordingly, the Employer’s motion to dismiss is denied but the grievance is time-limited to the three-month period preceding the grievance.

Grievance #3 - June 14, 2000 [GSB# 2001-0295, OPSEU# 2000-0517-0010 (01C251)]

This grievance states: “I grieve that I have been subjected to unjust discipline.” The remedy requested is “That the letter of reprimand dated January 20, 2000, be removed from all files. …”

The Employer moves to dismiss this grievance on the basis of timeliness, since it was filed almost six months after the letter of reprimand was issued. In support, the Employer cites to Coccia and Ministry of Community Safety and Correctional Services (2005), P-2003-3552 (Leighton); OPSEU(St. Jean et al.) and Ministry of Community Safety and Correctional Services (2004), GSB No. 2001-1122 (Leighton); OPSEU (Smith) and Ministry of Northern Development and Mines (2005), GSB No. 2002-0243 (Mikus).

The Union urges the Board to exercise its discretion to extend the time limits and hear this grievance. In its submission, the grievor was disciplined, in part, based on his assertion of his rights under the Occupational Health and Safety Act and therefore, given the nature of the grievance, the Board should exercise its discretion to hear this matter.

There is no question that the grievance is untimely. It is, at least, five months late. In similar circumstances, the Board has dismissed a grievance as untimely.

In my view, there is no basis upon which the Board should exercise its equitable discretion to extend the time limits. It is a minor disciplinary issue – not a discharge or an alleged violation of Human Rights. Further, this was not the grievor’s first experience with the grievance procedure. He was well aware of the time limits for filing grievances under the collective agreement. He provided no explanation as to the reason for the delay, or why the grievance was not filed on time.

Accordingly, the Employer’s motion to dismiss is granted.

Grievances #4 through #11 - October 11, 2001 Grievances [GSB# 2001-1069]

There are eight grievances filed on October 11, 2001. Four of them relate to discipline imposed on the grievor on September 26, 2001.

OPSEU No. 01C693 [GSB# 2001-1069, OPSEU# 2001-0517-0238] alleges: “I grieve that management, in particular Mr. J. Rutherford violated but not limited to the collective agreement by exercising differential and extreme discipline towards me for supposed lateness.”

The Employer asserts that the Union has not identified how the discipline is “differential.”

OPSEU No. 01C694 [GSB# 2001-1069, OPSEU# 2001-0517-0239], alleges: “I grieve both the letter of September 26, 2001 and its content as unjust and unfair.”

The Employer concedes that this is grievance is properly before the Board.

OPSEU No. 01C696 [GSB# 2001-1069, OPSEU# 2001-0517-0241], alleges: “I grieve that management, in particular Mr. J. Rutherford violated but not limited to Article 2 of the collective [agreement] by issuing a 16 hour suspension for an unsubstantiated allegation.”

The Employer submits that this is the same as the second grievance and is therefore redundant.

OPSEU No. 01C698 [GSB# 2001-1069, OPSEU# 2001-0517-0259], alleges: “I grieve that management, in particular Mr. J. Rutherford violated but not limited to Article 2 of the collective agreement by making a finding of guilt not on evidence but on what he said was the lack of witnesses.”

The Employer submits that this grievance is also repetitive and redundant.

The Union submits that that all of the October 11, 2001 grievances should be construed together as a whole and should be treated as a single grievance, with multiple aspects.

In my view, these four grievances relate to whether or not the Employer had just cause to impose the suspension on the grievor of September 26, 2001. The one aspect of the grievances which has not been particularized sufficiently, however, is the Union’s claim that the discipline was “differential”. In this regard, the Union’s particulars state as follows:

On any given date, around the time of the discipline, there were about 5 officers per shift who would arrive during or after muster and nothing was said to them or they would simply be asked to provide a written “late report.” Suspension would never be given. …

There are no names or dates provided in terms of this differential treatment. The Employer is left to guess. It cannot investigate the claim or defends its actions, and that is inadequate.

Accordingly, the Employer’s motion to dismiss is granted as to OPSEU No. 01C693 insofar as it deals with “differential” discipline. The claim regarding “extreme discipline” (which I interpret to mean excessive discipline) and the other grievances, although redundant, are properly before the Board.

The four other October 11, 2001 grievances state as follows:

OPSEU No. 01C695 [GSB# 2001-1069, OPSEU# 2001-0517-0240] alleges: “I grieve that management, in particular Mr. J. Rutherford violated but not limited to the collective agreement, Ontario Human Rights Code, Employment Standards Act, Ministry of Correctional Services Act by not providing for me, or my representative with proper disclosure.

The Employer, in its June 9, 2004 letter, requested particulars as to “the information that should have been provided, the specific sections of the aforementioned statutes and the collective agreement which were supposedly violated, and the detriment sustained by the grievor as a result.” It also wrote that “all relevant documentation was disclosed.”

The Union, in its response, disputed that all relevant documentation was disclosed and noted that “[i]t is not clear what this entails” and sought a listing from the Employer. It cited to Article 22.14.4 and 22.14.5, and stated that any failure to give full disclosure is a violation of the collective agreement and, in this case, was motivated by discrimination.

It is my view that the Union must assert in a grievance of this nature, at least in general terms, the information that was not provided. Clearly, information and documents about the suspension were disclosed and provided to the Union. The Union had that information and could identify, at least in general terms, what is believed had been disclosed. Its failure to do so leaves the Employer to guess how it allegedly violated the collective agreement. This grievance is therefore dismissed.

OPSEU No. 01C697 [GSB# 2001-1069, OPSEU# 2001-0517-0242] alleges: “I grieve that management, in particular Mr. J. Rutherford violated the collective agreement particularly Art. 2 & 3 by using matters that are currently in dispute at the GSB as a basis to escalate punishment.”

The Employer submits that this grievance appears to allege that the Employer cannot rely on matters which are grieved and pending before the GSB in order to determine the appropriate level of discipline. It asserts that the PSGB has determined that issue, deciding that an Employer may rely on contested matters, citing G. Morrison and Human Rights Commission (1996), P/0037/94 (Lynk)

Further, the Employer submits that, as a practical matter, a ruling that the Employer cannot rely on disputed matters would encourage grievances and tie-up the system intolerably, if the Employer could not rely on discipline pending before the GSB.

The Union, in its particulars, submits that it is only relying on the “sunset” clause of the collective agreement, Article 22.15, and the doctrine of progressive discipline and its appropriate use.

This explanation by the Union, in my view, is quite different than what is alleged in the grievance. Specifically, there is no mention of matters pending before the GSB. Rather, it asserts that the discipline imposed violated the “sunset” clause and the principles of progressive discipline. As modified by the particulars, the grievance is properly before the GSB.

OPSEU No. 01C700 [GSB# 2001-1069, OPSEU# 2001-0517-0260] alleges: “I grieve that management violated but not limited to Article 3 of the collective agreement.”

The Employer sought particulars about this allegation. The Union, in response, stated that “[t]he grievor has been discriminated against contrary to Article 3.1 based on race, colour, ethnic origin, religion and creed. Please note that all of the October 11, 2001 grievances interact in their allegations and are mutually relied upon for their full effect.”

What I take from this response is that the Union is alleging that the discipline imposed on the grievor on September 26, 2001 was motivated by the grievor’s race, colour, ethnic origin and creed, and that the Union is relying on all of the grievances and allegations to support that assertion. As limited in this manner, the Employer’s motion to dismiss the grievance is denied. Although it is a general allegation, the claim is limited to the September 26, 2001 discipline. This ruling, however, does not mean that the grievances which have been dismissed may be relied upon.

OPSEU No. 01C699 [GSB# 2001-1069, OPSEU# 2001-0517-0261] alleges: “I grieve that management violated but not limited to the collective agreement by failing to provide me with (OTIS) training, thereby limiting career advancement opportunities and overtime.”

The Employer sought particulars, “including the names of those who breached any employer obligations in this regard” and the sections of the collective agreement on which the grievor relies and the detriment caused to the grievor.

The Union’s particulars state that “[t]he grievor requested OTIS training from Roger McArthur (OM) and Robert Ewing, Senior Assistant Supervisor”, and he was never allowed such training, while others have been given OTIS training. Six Correctional Officers are listed as having been trained. The particulars do not provide dates when training was requested and denied, nor does it assert the collective agreement provision allegedly violated. They further state that “[s]ome COs in similar circumstances to the grievor were trained in OTIS” and that “[m]en who were trained benefited from it…” whereas the grievor’s lack of training interfered with his ability to compete for positions and obtain advancement and his ability to obtain overtime.”

In OPSEU (Singh) and Ministry of Community Safety and Correctional Services, supra, an identical grievance was filed and the Union provided similar particulars. I ruled in that case that the particulars were inadequate because they did not provide the dates when training was requested and denied. The problem when that happens is that it is not possible to tell whether the grievance is timely or not. From the particulars provided, it is not possible to know whether the grievor was denied OTIS training in October 2001 or October 2000 or 1999 or even earlier.

Further, no provision in the collective agreement is cited. This, as noted in the Singh case, is significant because there is no right to training, per se, under the collective agreement. It is only a derivative claim. The Union asserts that the grievor was disadvantaged in relation to job advancement, the ability to compete and overtime – but there are no specifics alleged, only general assertions. The Employer is left to guess and speculate, which is inadequate.

Accordingly, this grievance is dismissed.

Grievance #12 - May 30, 2002 [GSB# 2002-0591, OPSEU# 2002-0517-0011]

The grievance states: “I grieve that management has violated but not limited to Art.3 of the collective agreement, the OHR Code, Statement of Ethical Principles, Canadian Charter of Rights & Freedoms by inflicting differential treatment on me by assigning non-Sikh officers with similar facial hair to the breathing apparatus required areas.”

The Employer sought particulars as “to the names of the individuals assigned, location of the assignments, [who] assigned them and the explanations provided for the alleged assignments.”

In response, the Union provided the names of several Correctional Officers who “were regularly assigned to ‘breathing apparatus required areas’ despite facial hair.” No dates or specific assignments were provided.

Once again, the identical situation arose in OPSEU (Singh), supra. The Union provided names but no dates or specific assignments or areas. Nor were the supervisors who made the assignments listed. The Board held that such particulars were inadequate, ruling as follows at p. 9:

By providing names but not dates or assignments, it would require the Ministry to do extensive research to determine, for an unspecified period of time, the assignments given to the named individuals compared to the assignments of the grievor. This is the work that the grievor and the Union should have done in response to the October 6, 2004 Order….The grievor had more than ample time to provide the required particulars. Under the circumstances, I conclude that the grievance should be dismissed.

What is particularly distressing is that the Singh decision was issued on July 5, 2005. From that date, the Union and the grievor knew exactly what kind of information was required and yet they still did not provide it. There was still time to do so, but no additional information was provided. This allegation is a key aspect of the grievor’s case of discriminatory treatment based on the Sikh religion, yet it lacks the basic information needed, both for the Union to support the claim and the Employer to defend against it.

Accordingly, the Employer’s motion to dismiss the grievance is granted.

Grievance #13 – December 18, 2003 [GSB# 2003-3321, OPSEU# 2003-0517-0061]

The grievance alleges: “I grieve that management has violated, but not limited to, Articles 2.1, 3, and 21 of the collective agreement.

This grievance involves an allegation of unjust discipline in regard to a two day suspension imposed on the grievor for allegedly abandoning his post. In particulars dated January 30, 2006, the Union outlined the basis of its allegations, including alleged differential treatment. The Employer has argued that the alleged differential treatment is an improper expansion of the original grievance, especially in the absence of particulars regarding the differential treatment.

The grievance, with its inclusion of Article 3, is broad enough to include alleged differential treatment. The particulars in that regard, however, are inadequate with the exception of the incident “around” January 1, 2004. Otherwise, no names are provided and no dates are provided. Without this information, the Employer is unable to investigate the Union’s assertions or defend its actions. The Union’s assertion that “for example, C.O.s have been caught sleeping while posted along [sic] on unit (#5) and were not disciplined at all” does not provide the employer with sufficient information. Nor does its assertion that the grievor has “observed managers talking to C.O.s assigned to “Fresh Air” in locations where those assigned C.O.s are unable to observe the activities transpiring in the Recreation area” and no discipline has been issued. There is no indication of who was involved or when these alleged incidents took place. Without that basic information, the Employer cannot investigate the assertions or defend its actions.

In regard to the incident around January 1, 2004, the Employer has enough information to investigate it. The manager is identified, as is the unit, and the approximate date. I make no ruling on the admissibility of such evidence, however, since it arose after the discipline was imposed and the incident took place. At this point, I am only deciding that the Union has provided sufficient particulars to advance that specific claim.

Accordingly, the grievance may proceed on the basis of unjust discipline. The claim for differential discipline is limited to the January 1, 2004 incident.

Grievance #14 – April 28, 2004 [GSB# 2004-0745, OPSEU# 2004-0517-0038]

The grievance alleges: “The Employer has violated specifically, but not exclusively Article 3, 3.1 and 3.2 of the collective agreement in regards to constant posting of this individual to Fresh Air Yard.”

The Employer asserts that this grievance does not allege a breach of the collective agreement, in that management has the right to assign employees. It further asserts that there is a lack of particulars regarding dates and specifics, leaving it to guess about the Union’s allegations.

In response, the Union asserts that it has alleged specific violations of the collective agreement – specifically, Article 3, 3.1 and 3.2 – by constantly posting the grievor to the Fresh Air Yard, a less desirable post. It asserts that the Employer has acted discriminatorily in regard to its posting of the grievor, on a regular basis, whereas others are more equitably rotated among various posts.

In my view, the grievance alleges a violation of the collective agreement – discriminatory assignment of the grievor. It also alleges specific conduct – 95% posting to the Fresh Air yard. It does not provide specific dates, but instead, alleges an ongoing situation – “constant posting…” The time period, however, must be limited. As with Grievance # 2, the time period is limited to three months before the grievance. Here, as well, the Employer need not do extensive research about assignments. The assignment information may be provided to the Union for its review. The Employer is in a position to be able to defend its assignments during that period.

The Employer’s motion to dismiss this grievance is denied.

Conclusion:

For all of the foregoing reasons, I conclude as follows:

1. The Employer’s motion to dismiss is denied as to Grievance #1 – May 22, 1996 [GSB# 1996-0717, OPSEU# 1996-0517-0005 (96F261)].

2. The Employer’s motion to dismiss Grievance #2, June 5, 1999 is denied. The claim, however, is limited to the three-month period preceding the grievance. [GSB# 1999-0878, OPSEU# 1999-0517-0008 (99C862)]

3. The Employer’s motion to dismiss Grievance #3 – June 14, 2000 is granted [GSB# 2001-0295, OPSEU# 2000-0517-0010 (01C251)].

4. The Employer’s motion to dismiss the four grievances, dated October 11, 2001, pertaining to the discipline of September 26, 2001 is denied [GSB# 2001-1069, OPSEU# 2001-0517-0238, 2001-0517-0239, 2001-0517-0241, 2001-0517-0259], except for the Union’s claim for “differential” discipline in OPSEU 01C693 [OPSEU# 2001-0517-0238].

5. The Employer’s motion to dismiss OPSEU No. 01C695 [GSB# 2001-1069, OPSEU# 2001-0517-0240] is granted.

6. OPSEU No. 01C697 [GSB# 2001-1069, OPSEU# 2001-0517-0242] is amended, as per the Union’s particulars, to involve a claim that the Employer violated the “sunset” clause and the principles of progressive discipline in regard to the September 26, 2001 discipline. On that basis, the Employer’s motion to dismiss is denied.

7. OPSEU No. 01C700 [GSB# 2001-1069, OPSEU# 2001-0517-0260] is limited to a claim that the September 26, 2001 discipline violated Article 3, as set out in the particulars.

8. The Employer’s motion to dismiss OPSEU No. 01C699 [GSB# 2001-1069, OPSEU# 2001-0517-0261] is granted.

9. The Employer’s motion to dismiss the May 30, 2002 grievance [GSB# 2002-0591, OPSEU# 2002-0517-0011] is granted.

10. The Employer’s motion to dismiss the December 18, 2003 grievance [GSB# 2003-3321, OPSEU# 2003-0517-0061] is denied, except as to allegations of “differential” discipline as set forth in the decision.

11. The Employer’s motion to dismiss the April 28, 2004 grievance [GSB# 2004-0745, OPSEU# 2004-0517-0038] is denied. The claim, however, is limited to the three-month period preceding the grievance.

Issued at Toronto this 19th day of October, 2006.