GSB# 1989-1546, 1990-2140, 2003-1588, 2004-1041, 2004-1552, 2004-1553, 2004-3489, 2004-3490, 2004-3491, 2004-3492

UNION# 88C497, 90A142, 90E212, 2003-0608-0018, 2004-0618-0006, 2004-0618-0010, 2004-0618-0011, 2004-0618-0018, 2004-0618-0019, 2004-0618-0020, 2004-0618-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Patterson)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Elizabeth Nurse Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

HEARING

December 1, 2005; July 4, September 28, November 17, 2006.

Decision

The Employer has moved to dismiss a number of the grievances before the Board and to limit the evidence presented in this case so as to preclude the introduction of evidence regarding matters that were settled, withdrawn, abandoned or simply too old. The Union opposes that motion.

The parties presented an agreed statement of facts for the purposes of this motion only. Those agreed facts, in relevant part, are as follows:

1. Juli Patterson (the Grievor) began her employment at the Sault Ste Marie Jail (“SSM Jail”) as a Casual Corrections Officer (CO) in or about June or July 1982, after completing her diploma in Law & Security Administration at Cambrian College. For the last 5 weeks of her diploma program she had completed an unpaid placement at the Jail. In addition, she was then hired for a 5-week temporary assignment as a Librarian at the Jail prior to beginning as a Casual CO.

2. She became a full-time Classified CO as of January 2, 1984. Her continuous service date (seniority) is March 1983.

3. In 2003 the Jail was closed and approximately 50 beds were moved to a remand centre attached to the Northern Treatment Centre. The Jail also uses part of the treatment centre for jail inmates – approximately 50 beds for a total of 100 jail beds.

4. The Grievor became a union steward in or about 1986 and in 1988 she became the Local Vice-President.

5. Throughout the Union’s particulars, the Grievor alleges that a combination of her Union involvement and being female led to her being subjected to discriminatory treatment and harassment during her employment with the Ministry of Community Safety and Correctional Services.

6. At approximately the same time as she assumed her duties as the Local VP, the Grievor began applying for a permanent or temporary position as a Provincial Bailiff in Toronto, ON. She was interviewed for a permanent Bailiff position in June 1988 and again the following year. In both instances she was advised that she was not the successful candidate.

7. The Grievor filed grievances with respect to both job competitions, dated September 16, 1988 [CI-0021-88 OPSEU 88C497 (no GSB #) and September 17, 1989 [CI-0049-89, OPSEU 90A142, GSB 1989-1546]. The September 16, 1988 grievance was withdrawn, according to the Union’s records. The Grievor disputes this.

8. The Grievor seeks to be awarded the position, or, alternatively, that a re-run of the competition be ordered, and to be made whole for any losses.

9. In 2001, OPSEU was advised by the Employer that it believed the September 17, 1989 grievance to have been withdrawn on February 21, 2000. The Employer received a grievance withdrawal form dated February 21, 2000 and signed by Daryl Pitfield on behalf of the Union. The form references a grievance dated September 17, 1989 (OPSEU File #90A142 and GSB 1989-1546).

10. The Union disputes this and asserts that this grievance has not been withdrawn and remains outstanding.

11. In 1990 the Grievor applied for a permanent position as a Provincial Bailiff out of Sudbury, ON. She was denied an interview as applications were only considered from persons living in the Sudbury area, while the Grievor resided in Sault Ste Marie.

12. Applications for the position were restricted to persons residing in or near Sudbury, ON. The Grievor worked and resided in Sault Ste Marie, ON at the time of her application for the position. The Grievor’s application was not considered and she was not interviewed for the position because she did not reside within the restricted geographic scope of the posting.

13. The Grievor alleges that she was unjustly denied the opportunity to apply for and be given an interview for the position because of “discriminatory job posting’ and further that she is being discriminated against because of where she lived and worked in Northern Ontario. The Grievor asserts that the imposition of the geographic restriction on job applicants is arbitrary, discriminatory and unreasonable and/or unfair exercise of management rights. The Grievor filed a grievance regarding the refusal to grant her an interview dated September 26, 1990 (Grievance dated September 16, 1990, OPSEU #90E1212; GSB 1990-2140)

14. A hearing date was scheduled for April 2, 1991, however by letter dated March 12, 1991 OPSEU confirmed that the matter was adjourned sine die pending settlement negotiations.

15. The Grievor seeks to be awarded the job or alternatively that a new competition be directed in which she receives an interview.

16. In or about April 1991 the Grievor filed a grievance regarding unfair work assignments based on gender. As a result of her grievance the practice was changed.

17. The Grievor continued in her role of VP until 1994 when she went on maternity leave following the birth of her daughter.

18. In the summer of 1994, just prior to going on maternity leave, the Grievor filed grievances relating to the Ministry’s alleged refusal to pay for all her maternity clothing (GSB 1994-0763, OPSEU #94E036). The grievance was settled by minutes of settlement dated September 25, 2001.

19. In or about November 1994, the Grievor filed a grievance regarding equal time off for female Correctional Officers. The grievance was settled in or about January 23, 1995.

20. The Grievor returned to work from her maternity leave in 1995. She was no longer active in the Union. The Grievor alleges that the Bailiff grievances remain outstanding.

21. In or about June 1996 the Employer assigned unclassified COs to the Highway Enhancement Program. The Grievor, who had expressed an interest to management in the position, filed a grievance alleging failure to post. The Employer agreed to post the assignment.

22. In 1998 the Grievor filed a grievance about accommodation for parental reasons. These matters were settled in 2001.

23. In 2001, 10 -12 female staff at SSM Jail signed a group grievance alleging wide spread discrimination and harassment of female staff at SSM Jail.

24. Also in 2001, Mr. Mike Wasyluk became the new Superintendent of SSM Jail. He allegedly singled out the Grievor. The Grievor filed harassment grievances against him.

25. Other than a health and safety grievance regarding humidity levels, the only other grievances filed by the Grievor in 2001 were the grievances cited in paragraphs 23 and 24 of this Agreed Statement of Fact.

26. In 2002, the staff were advised of the relocation of the SSM Jail and possible job losses. The Grievor indicated an interest in transferring to Cecil Facer Youth Centre (CFYC) in Sudbury, ON.

27. In April/May 2002 OPSEU went on strike and then was locked out for approximately eight weeks.

28. The Grievor did not return to work at the end of the strike/lockout. She was suspended with pay for a few weeks pending investigation, then suspended without pay. This was the subject of a grievance for which a decision was recently issued under the med-arb process for strike-related grievances (Decision dated December 15, 2005, GSB 2002-1052). The penalty was reduced to ten eight hour shifts. The penalty should no longer appear on the Grievor’s disciplinary record in accordance with Article 22.15.1 of the collective agreement.

29. At the end of her suspension the Grievor remained off on sick leave under the care of her physician from September 2002 onwards.

30. In or about April 30, 2003 the Grievor provided the Office Manager with a note from her doctor advising she could return to work as of May 2, 2003.

31. The Grievor was not returned to work to SSM Jail until her scheduled transfer to Cecil Facer Youth Centre as of August 5, 2003. During this time she attended some short training courses and two weeks training at CFYC. The Grievor grieved the alleged failure to return to her to SSM (Grievance dated July 10, 2003, OPSEU 2003-0608-0009; GSB 2003-1588).

32. On October 7, 2004, the group grievances filed by female COs at SSM Jail about discrimination and harassment were settled by OPSEU, as was the Grievance against Superintendent Wasyluk. …

33. On June 27, 2005, the Grievor grieved against the Ministry of Correctional Services (specifically Mike Wasyluk of the SSM Jail) that she was not informed, or sent, nor received her twenty year service award, as did others. She requested a letter of apology form Mr. Wasyluk, full redress and compensation for discrimination. The Grievor has spoken to Barry Sullivan about the 20 year service award, however he had advised her he could not help her- it was the responsibility of the Superintendent she had at the time she achieved 20 years. That Superintendent was Mike Wasyluk therefore she named Mr. Wasyluk in the grievance.

34. By letter dated May 27, 2003, Superintendent Wasyluk wrote to the Grievor congratulating her on her 20 years of service with the Ministry. The Grievor’s 20^th year of service occurred in 2003.

The particulars presented by the Union include events from the start of the grievor’s employment in 1982. More specifically, it cites to a number of complaints she raised after she became a Union steward in 1986. It is the Union’s submission that these actions led her to become known as a “trouble-maker” and led to discrimination and harassment against her at Cecil Facer Youth Centre.

Some of the matters recited in the particulars were grieved. Some were not, until the group and individual grievances in 2001. The group grievances, filed by female correctional officers and the individual grievances filed by the Grievor, alleged gender discrimination and harassment. They were settled in October 2004.

At the hearing in that case, before Vice-Chair Leighton, the Union sought to introduce evidence going back to 1987. The Employer sought to limit the scope of the evidence to matters occurring one year before the grievances.

Vice-Chair Leighton, in a decision issued on December 1, 2003, ruled that “the allegations relating back to 1987 through 1996 are simply too old” and she would not allow such evidence to be introduced. OPSEU (Patterson) and Ministry of Public Safety and Security, GSB No. 2001-0925 et al. (Leighton), at p. 5. In terms of the period from 1996 to 2000, Vice-Chair Leighton balanced the interests of the parties – the Union’s interest in establishing a pattern of discrimination and the Employer’s interest in defending itself – and limited the scope of the evidence to a three-year period before the grievances were filed.

1. The Withdrawn Grievances

The Grievor filed two job competition grievances, one in 1988 and one in 1989 which she now seeks to litigate before the Board. The evidence shows, however, that both grievances were withdrawn by the Union. According to the agreed facts, the September 16, 1988 grievance “was withdrawn, according to the Union’s records.” In regard to the September 17, 1989 grievance, there is a Union withdrawal form which was sent to Grievance Officer Jim Paul, dated February 21, 2000, withdrawing the grievance and directing the Union “to take no further action in this matter.” According to the Agreed Facts, the Union was advised about this withdrawal in 2001. Although the Union now disputes that this grievance was withdrawn, there is no evidence that any objection was raised at the time of this notification by the Grievor or the Union. Nor is there any evidence or suggestion that the withdrawal form is not authentic or was made without proper authority by the person who signed it. Under these circumstances, the withdrawal form must be accepted as genuine.

The Employer asserts that the Board should dismiss these two grievances in light of their withdrawal. To allow these grievances to proceed, it asserts, would undermine the finality of the withdrawal and constitute an abuse of the grievance arbitration process which relies on settlements and withdrawals. In support of its position, the Employer cites to OPSEU (Richard) and Ontario Clean Water Agency (2005), GSB No. 2000-1220 (Abramsky), at pp. 8-9.

The Union accepts that the grievances were withdrawn, but argues that the grievor was not aware of the withdrawals and asserts that the grievances are still outstanding.

Considering the facts and the case law, I conclude that the withdrawal of these grievances precludes the Board from considering them on their merits. This is not a situation where there is a new grievance alleging the same facts or issues as a settled or withdrawn grievance, as in OPSEU (Richard), supra. Instead, the Grievor is seeking to litigate the grievances that were withdrawn. The fact that she asserts that she was not aware of the withdrawals is unfortunate, but not relevant legally. It is the Union that has carriage of these grievances and the Union withdrew them. That ends the matter. The grievor, if she disagrees with the Union’s decision to withdraw, may have a claim before the Ontario Labour Relations Board, but her disagreement does not permit a board of arbitration to proceed on a withdrawn grievance. Because of the withdrawals, this Board simply has no jurisdiction to proceed to the merits. Accordingly, the two grievances (OPSEU 88C497 [No GSB #] and GSB No. 1989-1546) are dismissed.

2. The abandoned grievance.

The evidence shows that the grievor filed another job competition grievance on September 26, 1990, GSB No. 1990-2140. That matter was scheduled for a hearing before the GSB in April 1991, along with another case, GSB No. 1990-2141, but they were adjourned sine die pending settlement negotiations. No evidence was presented regarding whether those negotiations took place. In September 2001, the parties settled the companion case, GSB No. 1990-2141, along with several other matters – from 1989, 1990, 1993 and 1994 - but there is no mention of GSB No. 1990-2140. There is no evidence that the Grievor or the Union made any effort to advance that matter since it was adjourned sine die in 1991.

The Employer contends that, with the passage of so many years, the grievor and Union must be deemed to have abandoned this grievance. It asserts that the Union cannot allow a case to linger for so many years and then seek to litigate it before the Board. It submits that the Union has an obligation to proceed expeditiously and that to litigate this matter now would cause serious labour relations difficulties. In support of its position, the Union cites to Metropolitan Separate School Board [2000] O.L.RD. No. 12 (McKee Vice-Chair).

The Union submits that the time period should not be measured from 1991, but from 2001 when the companion case was settled. It asserts that the time period is not excessive. Further, the Union argues that the 2001 settlement shows that the parties did not consider the 1990 issues to be moribund and that the matter is still alive.

Under the facts, I conclude that the 1990 grievance has been abandoned by the Union and the Grievor. Since the matter was adjourned sine die in 1991, there is no evidence that any action has been taken in regard to this case. There is no evidence that the Grievor has made any effort to move the case forward. Indeed, there is no explanation at all for this delay of sixteen years! As stated by the OLRB in Re Metropolitan Separate School Board, supra at para. 13, involving a delay of seven years:

In the circumstances of this case, the usual prejudicial effect on any litigation of delay is present. Witnesses will be asked to remember events and their motivation in a decision-making process which tool place seven years ago. Memories decay, witnesses and documents may not be available. In addition …if the applicant were ordered reinstated (presumably with full seniority) this would have a significant effect on both the other parties to this litigation and to the seniority rights held by employees which have been created by years of employment and through successive collective agreements.

The same is true here, only more so. Simply put, the Grievor has sat on her rights for so long that she cannot, in all fairness, expect to assert them. This grievance was clearly abandoned and this Board declines to exercise its discretion to hear this matter. Accordingly, GSB No. 1990-2040 is dismissed.

3. The settled grievances.

There are numerous matters that the Grievor seeks to raise in this proceeding that were settled. The Union acknowledges that it cannot litigate settled matters. Instead, it seeks to introduce evidence about them in order to establish that the Grievor was regarded as a frequent grievor/complainer on gender and discrimination issues and that this reputation followed her when she transferred to Cecil Facer Youth Centre, and led to discrimination against her there. The Union seeks to introduce evidence of this history to support her latest grievances – not to establish a pattern and practice of discrimination, but to establish that she had a reputation as a Union activist in relation to gender discrimination issues. The Union asserts that the purpose of this evidence is not to establish the truth of her assertions about discrimination and harassment, but as background, so that the Board can fully appreciate the environment and the perception that the grievor faced in 2003 and 2005. In its view, it is not enough to simply assert that grievances were filed and settled, but the substance of the grievances must be explained so that the full picture and history can be ascertained.

The Employer’s position is that these matters were settled and cannot be relied upon to support another grievance. To allow that, it contends, would undermine the finality of the settlement. In support the Employer cites to OPSEU (Dale et al.) and Ministry of Health and Long Term Care (2002), GSB No. 2000-0783 et al. (Abramsky) and OPSEU (Waraich) and Ministry of Labour (2005), GSB No. 2003-0187 (Watters).

Based on the facts and case law, I conclude that the Union may not rely on the settled matters in the manner proposed. The conclusion is based on the critical importance of settlements. In OPSEU (Waraich), supra at p. 15, the Board refused to admit evidence regarding settled matters because to do so “could serve to undermine the parties’ confidence in final settlement and their legitimate expectations that settled matters will not reappear in some different guise.” Similarly, in OPSEU (Dale), supra at p. 8, the Board stated that “once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise.”

This reasoning applies even though the Union is seeking to rely on the settled matters solely to provide the Board with the nature and extent of her earlier grievances and history. In my view, this is a back door approach to introducing evidence which might then prejudice the Employer or require the Employer to defend its actions. If the Union is allowed to lead evidence on the details of these settled matters, there is a real risk that the Employer will be prejudiced by leaving such claims unanswered, or it will have to defend itself. This would significantly prolong the hearing, and, even more importantly, negate the benefit of the settlement for the Employer. Although the Union is not relying on these settled matters to establish a pattern and practice of discrimination, it is seeking to rely on them to establish that the grievor regularly and consistently raised grievances against the discrimination and harassment that she contends she faced. It is, in my view, a back door approach to the introduction of contentious evidence which the settlement of these matters precludes.

It is also significant that the group grievance in 2001, which alleged systemic discrimination based on gender as well as specific claims by the grievor of discrimination and harassment was settled in October 2004, more than a year after the July 2003 grievance was filed which is now before me. As is OPSEU (Dale et al.), supra, the Union cannot rely on settled matters to support a grievance that existed at the time the matters were settled. If it wished to be able to do so, it could have negotiated that into the settlement.

Certainly, the fact that grievances were filed by the Grievor and settled can be placed into the record, but to allow the grievor to elaborate on these settled matters would be inappropriate and potentially prejudicial. Accordingly, the Employer’s motion to limit the evidence to preclude evidence concerning the settled matters is allowed.

4. The Old Claims

The Union, in its particulars, raises claims of alleged discrimination and harassment that date from 1991, 1994, 1995, 1996 and 1998. The Employer contends, as found in the decision by Vice-Chair Leighton concerning the 2001 group and individual grievances, that these claims are simply “too old” and should not be admitted into evidence.

In OPSEU (Patterson) and Ministry of Public Safety and Security, supra, Vice- Chair Leighton was faced with a similar, if not identical, situation in which the Union sought to introduce evidence concerning events which long pre-dated the grievances before her. She ruled that “the allegations relating back to 1987 through to 1996 are simply too old” and she would not allow the Union to introduce evidence about them.

In this case, the grievor is the same person, and although I do not have the particulars that were filed in that case, the issues appear to be of a similar nature – alleged discrimination based on gender and harassment. I am persuaded that the same conclusion as reached by Vice-Chair Leighton applies in this case – such matters are “simply too old” to be raised in connection with a 2003 and 2005 grievance. The balance struck by Vice-Chair Leighton which allowed evidence concerning a three-year period before the grievance is a fair balance, and I conclude it should apply in this case. The one exception, however, involves matters raised in the 2001 group and individual grievances that were settled by the parties. For the reasons set out earlier in this decision, such settled matters cannot be raised in this proceeding.

Conclusion:

1. OPSEU No. 88C497 (no GSB #) and GSB No. 1989-1546 are dismissed because the grievances were withdrawn by the Union.

2. GSB No. 1990-2140 is dismissed because it was abandoned by the Union and the Grievor.

3. The Employer’s motion to exclude evidence concerning matters that were settled is allowed.

4. The Employer’s motion to exclude evidence of events earlier than three years before the grievance is allowed.

Issued at Toronto this 5th day of December, 2006.