GSB# 2005-3003, 2005-3625, 2005-3628, 2005-3629, 2005-3630

UNION# 2005-0331-0077, 2006-0331-0002, 2006-0331-0005, 2006-0331-0007, 2006-0331-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gates et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

WRITTEN SUBMISSIONS

December 4, 2006.

Decision

The Board is seized with five grievances. For convenience of reference I adopt the union’s categorization of the grievances, which is as follows:

1. The “Joan Gates” Group Grievance – (2005-3003)

2. The “Paul Wilson” Group Grievance – (2005-3625)

3. The “Meal Breaks” Union Grievance – (2005-3628)

4. The “Job Posting/Temporary Assignment” Union grievance – (2005-3629)

5. The “Overtime Payments” Union Grievance - (2005-3630)

This decision pertains to a motion by the employer that the grievances be dismissed on the grounds that the union had failed to provide particulars in compliance with a Board order dated May 12, 2006. Submissions on the motion were made in writing, supplemented by briefs containing documents and legal authorities.

Contrary to the position taken by union counsel, I am of the view that in assessing the adequacy of the particulars provided, the background and history between the parties in relation to the grievances in question are very relevant. See Re Singh, 2001-1070, (Abramsky) at p. 7.

The collective agreement provides:

22.1.4. The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution process.

22.1.5. The parties agree that at the earliest stage of the grievance procedure either party upon request is entitled to receive from the other, full disclosure.

It is trite to say that the obligation to exchange information by way of particularization continues following the referral of a grievance to arbitration. This is particularly so where the Board has issued an order that particulars be provided. What constitutes adequate particulars has been considered in numerous decisions of the Board. In Re Damani, 1581/95 (Gray) the Board described the obligation of a union as “to provide employer counsel with written particulars of the facts that it and the grievor say demonstrate the discrimination alleged. With respect to each act or omission alleged, the union particulars shall indicate what was done or not done, when, where, by what means and by whom”. In Re Ross, 2690/96 (Herlich), the Board ordered that the “written particulars are to include not merely legal conclusions, but in addition, the facts which the union and the grievor assert support any such conclusion and demonstrate the discrimination or breach of the collective agreement alleged. With respect to each act or omission alleged, the particulars shall indicate what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant fact, with what motivation”.

In Simon et al, 1390/00 (Mikus) at p. 4, the Board held:

This preliminary issue has been the subject of much litigation. The question of what a party must provide to the other party before a case can proceed is of critical importance to a party in determining how the case is to be presented or, whether it ought to proceed at all.

This collective agreement recognizes the importance of each party knowing in advance the case it must meet and has addressed that mutual need in Article 22.14.5 of the collective agreement. There is a reciprocal duty to provide that information. The collective agreement does not, however, define what must be disclosed to the other, for obvious reasons. It depends entirely on the pleadings. If specific facts are provided in the grievance, the collective agreement requires the Employer to respond to those facts. There is no dispute between the parties on that issue. The dispute lies in each party’s interpretation of the meaning of the word “particulars”.

The test for disclosure of information during the grievance procedure has been set out in previous decisions and approved and applied consistently. That test is set out in Children’s Aid Society supra) at page 262 as follows:

…Those criteria are that the requested information must be arguably relevant, must be particularized clearly to avoid later disputes, cannot be a “fishing expedition”, and must be clearly connected to the dispute at hand. Finally, the production of the information requested should not cause undue prejudice.

The issue in the instant case is whether the allegations have been particularized sufficiently to put the Employer on notice of the facts giving rise to the grievance. The Union has made a sweeping allegation that overcrowding at the Hamilton-Wentworth Detention Centre is a violation of the Management Rights and Health and Safety and Video Display Terminals provision of the collective agreement. It now asks the Employer to provide information concerning the decision making process that established the capacity of the facility and the steps it took to alleviate the overcrowding.

It seems to me that before the Union can expect that information, it must provide the Employer with more particulars concerning its allegations. The Employer is entitled to know when the alleged overcrowding took place, where it took place, who was involved and how it relates to Articles 2 and 9 of the collective agreement. Once the Employer knows those elements of the Union’s case, it can determine what information it should provide the Union.

For these reasons the union’s request for disclosure is denied at this time. The Employer’s request for particulars is allowed. The Employer conceded its duty to provide disclosure and had agreed to do so after it receives the particulars from the Union. If the parties have further difficulty in determining what particulars or disclosure is appropriate, I remain seized.

With those principles established by the Board jurisprudence, I turn to the specific issue of a motion to dismiss a grievance for failure to provide particulars. In Re Singh (supra) at p. 6, the Board observed:

The GSB jurisprudence is clear that the failure to provide particulars, particularly after an Order of the Board requiring them, may lead to dismissal of the grievance. OPSEU (Klonowski), supra; OPSEU (Giannou), supra; OPSEU (Ross), supra. In my view, however, dismissal of a grievance for failing to provide sufficient particulars is an extraordinary remedy. I agree with Arbitrator Davie in Re Budget Car Rentals Toronto Ltd., supra at p. 4 (Quicklaw) where she states that “an arbitrator should not lightly dismiss a grievance by reason of any “abuse of process’, and outright dismissal of a grievance by reason of an alleged abuse of process should only occur in the clearest of cases.” Depending on the facts, however, dismissal of a grievance may be an appropriate remedy.

I agree that the outright dismissal of a grievance for lack of particulars is to be treated as an extra-ordinary remedy and may appear to be harsh on the particular grievor. However, that must be balanced with the broader interests of the parties, who by agreeing to articles 22.14.4 and 22.14.5, have clearly recognized that the full and timely exchange of information relied upon by the respective parties in relation to a grievance is critical to the efficacy of the grievance and arbitration procedure. Moreover, where the failure to provide particulars occurs in the face of a Board order, the integrity of the Board’s authority also becomes a significant consideration.

The employer set out the background of the instant grievances in its written submissions. The union, while questioning the relevance of that background, did not dispute the factual assertions. The grievances were initially scheduled for mediation on March 15, 2006, but cancelled due to the lack of particulars by the union. The matter was rescheduled for mediation-arbitration on May 9, 2006. On March 23, 2006 employer counsel wrote to the union requesting that “all materials relating to this matter” along with “full particulars” be forwarded at the union’s earliest convenience “to allow adequate time to prepare for the mediation/arbitration dates scheduled for May 9, 2006 and June 12, 2006.”

By letter dated April 25, 2006 to the union, employer counsel referred to his earlier letter, and reiterated the request for “full particulars and disclosure”. The letter went on to state, “As you are aware, this matter is scheduled for mediation on May 9, 2006. If we do not receive the above by May 1, 2006, we will not be in a position to participate in mediation and therefore the date will need to be cancelled.”

Despite the foregoing requests, the union failed to provide any particulars in advance of the scheduled mediation. At the mediation scheduled for May 9, 2006 the employer sought an order for particulars, and took the position that it was unable to engage in any mediation process due to the failure of the union to provide particulars. By decision dated May 12, 2006, the Board ordered as follows: “In the circumstances, the union is hereby ordered to provide to the employer full particulars with respect to each and every allegation forming part of the grievances. These particulars are to be provided no later than June 7^th, 2006”. It was also ordered that the matter will continue on June 12^th, 2006 as scheduled. Prior to June 7, 2006 the union requested from the employer, an extension of the time period allowed by the Board order. By letter dated June 1, 2006, employer counsel agreed to extend the time period from June 7 to July 5, 2006. This resulted in the cancellation of the mediation date of June 12, 2006. By way of letter dated July 5, 2006 and attachments, the union provided its particulars. It is the adequacy of those particulars that is at issue in the present motion by the employer.

The union’s statement of particulars dealt with grievances 1, 2, 3 and 5 together as a group, and grievance 4 separately. The submissions of the employer in support of its motion are very brief. It is convenient to reproduce the material submissions in full.

It is the Employer’s position that the Union’s particulars are wholly insufficient and do not respond appropriately to the Board’s May 12, 2006 order.

The need for particulars is aptly illustrated in the Barillari case (GSB #2390/02) wherein it states:

It is a fundamental rule of equity and fairness that a party is entitled to know what it is accused of in order to have an opportunity of defending itself. It is trite to say that one cannot defend oneself, if it is not made aware of what exactly it is accused of. In order to prepare its defense, - and I might add even to consider admitting the allegations – it is imperative that particulars of the allegations be provided well in advance of any litigation.

Furthermore, the case law regarding the production of particulars in proceedings at the GSB is well settled and summarized in the recent decision of VC Briggs in OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services, GSB #3766/03. Additionally, Orders have been made by the GSB in the context of group grievances indicating that particulars are required for each grievor with respect to the issue of who, what, when, where and how (eg. Jan. 13, 2005 decision of VC Petryshen, GSB # 1999-0258).

The GSB has also dismissed grievances in the past that failed to comply with the Board’s order to provide full particulars (see attached decisions).

The Grievances are not simple and involve a number of Grievors and an unknown number of events over an unknown period of time. The Union has failed to provide the “who, what, where, when and how” of the allegations on which it intends to rely. As cited within VC Briggs’ earlier cited decision (at p. 20), “The allegations of fact 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 the truth of all the allegations of fact therein.”

With respect to Grievances 1, 2, 3 and 5 (as indicated in the Union’s July 5, 2006 correspondence), the Union has failed to provide full particulars regarding each Grievor and each breach that is being complained of. The Union has suggested that the Employer can in essence “check its records”. This is tantamount to a fishing expedition and provides the Employer with no more guidance in responding to the grievances than it did in the absence of particulars.

With respect to grievance 4 (as indicated in the Union’s July 5, 2006 correspondence), again, the particulars are vague, repetitive and contradictory. Additionally, no particulars are provided with respect to any alleged breach of the Collective Agreement. The particulars provided do not enable the Employer to fairly respond to the grievances.

It is not for the Employer to guess the specifics of the Grievors’ allegations. The Employer would have to do extensive research in order to respond to the vagueness of these particulars. Similar to the Singh decision, “It is not up to the Employer to guess, or comb its records to determine when these individuals were working, for an unspecified period”.

Union counsel in response submits that while the employer asserts that the union’s particulars fails to comply with the Board’s order, it has not made a “detailed argument” to establish how the particulars provided do not comply.

Union counsel asserts that the union, through the statements in the grievances themselves, its statement of particulars and attached “annotated records”, has fully apprised the employer of the “how, what, where and when” with respect to each grievance. He views the employer’s position as a request for a statement of the union’s “theory of the case” and submits that “particulars are normally assertions of factual states-of-affairs and would not include the theoretical structure of a party’s argument”. Counsel submits that, nevertheless, the union had set out in detail its “theory” for the employer.

Union counsel submits that grievances 1 and 2 are group grievances, that grievances 3 and 5 are policy grievances and further that grievance 4 is “essentially a policy grievance”. He submits that in both types of grievances (policy and group) the central issue is “a fundamental interpretation of an element of the collective agreement that potentially affects some or all employees in the bargaining unit.” Citing case law, counsel urges the Board to recognize that the grievances before it are “hybrid” grievances, “that is to say, the core legal issue regards interpretation in these grievances; facts serve as the occasion giving rise to the breach and serve as a concrete backdrop to the issues raised”. Counsel submits that “in order to decide the interpretational issue, one really needs only one illustrative, concrete instance” and that “once the interpretational issues have been resolved, individual remedy can then be addressed on an empirical basis, assuming of course that the union is successful, in whole or in part, on the interpretational issues”.

Union counsel submits that the employer is fully aware of the theory of the group and policy grievances and that therefore, that information is “entirely sufficient to litigate the interpretational issues involved and provide some remedies”. He states that “For the rest of it, i.e. complete remedy, the employer is in exclusive care and control of the documentation that would reveal the full breadth of its breaches against individuals as they occurred from time to time”.

As part of the response to the employer’s motion, union counsel submits that “there are other documents exclusively in the possession of the employer, which will demonstrate further additional breaches of the same sort already demonstrated by the union’s particulars and documents.” He submits that further disclosure by the employer “may be necessary, at most, for the discrete issue of remedy for some individuals” and that “the interpretational issue and some individual remedies can be dealt with the particulars so far provided”. On that basis the union seeks an order for production against the employer.

Citing Re Sidhu, (supra) counsel submits in the alternative, that should the Board find “that the particulars are not complete and that something results from this”, rather than dismiss the grievances, the Board should restrict the evidence that may be adduced by the union.

In reply, employer counsel reiterated that the particulars provided by the union do not meet the test established by the Board. Counsel submits that even in a group grievance, the individuals grieving must at a minimum indicate what they themselves are grieving. With regard to union grievances, counsel claims that the union has not provided particulars as to what facts gives rise to an “interpretational” issue. Nor has the union indicated what provisions of the collective agreement requires interpretation. Counsel wrote:

The Union has essentially provided no particulars that indicate how there were “systematic breaches” of the Collective Agreement. The Union has clearly indicated that it has revealed all the instances of which it is aware. The union is essentially stating: “we think you breached the Collective Agreement – we do not know when or with respect to whom, but we know it and you know it, so please provide us with all the possible documents we need to determine whether we have a case and how many alleged breaches there may have been”.

Finally, employer counsel objected to the union’s request for disclosure at this stage. One of the difficulties I have in determining the instant motion is this. The Board has before it five distinct grievances, each filed separately and involving different allegations and different provisions of the collective agreement. Yet the parties, for some unexplained reason, have dealt with the grievances as a group, (particularly grievances 1, 2, 3, and 5) in relation to their dispute as to disclosure and particularization. The union’s particulars are very difficult to comprehend because they lump together four grievances, without indicating which particulars pertain to which grievance. In their written submissions neither counsel deals with each grievance separately. For most part submissions of counsel are made in general. As a result, I have had to go through the union’s particulars very closely and attempt to sort out, as best as I could, if it includes particulars that relate to each of the grievances and to consider the respective submissions based on my findings on the particulars on each grievance.

With respect to union counsel’s argument that the policy and group grievances involve interpretational issues, I make the following observation. Every grievance that comes before an arbitrator in a sense involves the interpretation and application of some provision(s) of the collective agreement and/or statute. The difference is that in some cases the parties have no disagreement with regard to the appropriate interpretation of the relevant provision(s). Then the dispute is limited to the facts. In other cases the parties may disagree on the proper meaning of the relevant provisions. However, even in these circumstances, the interpretation issue does not arise in a vacuum. It arises, whether the grievance is an individual, group or union grievance, from certain alleged facts. This would be so except, perhaps in a case where the parties by agreement puts a stated case of interpretation to the Board. In every other case, what a provision means and whether it has application in the particular circumstances depends on the facts of each case. Therefore, the requirement for particularization applies in every grievance whether it be an individual, group or union grievance, although the nature and the extent of those particulars may vary depending on the type of grievance.

Having regard to the legal principles and my consideration of the submissions of the parties, I find as follows:

(1) The Joan Gates grievance (2005-3003)

This is titled as a group grievance filed on behalf of and signed by seven individuals. The statement of grievance reads:

“We grieve that management of WMHC is in violation of articles 2 and 3 of the OPS collective agreement, and is in violation of the Ministry (Government of Ontario) conflict of Interest Policy and Guidelines in that the practice of hiring unclassified staff is flawed and improper. This type of management practice has led to a hostile, poisoned and unhealthy work environment”.

The articles alleged to have been violated, articles 2 and 3, provide as follows:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

ARTICLE 3 – NO DISCRIMINAITON/ EMPLOYMENT EQUITY

3.1 there shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

3.2 There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the Union.

3.3 It is recognized that in accordance with section 14 of the OHRC, the Employer’s employment equity program shall not be considered a contravention of this article.

In the union’s statement of particulars, grievances 1, 2, 3 and 5 are dealt with together. The totality of its statement in regard to those four grievances is as follows:

Grievances 1, 2, 3 and 5

What we are providing are copies of various scheduling and payroll documents, with annotations (all of which form part of the particulars). These documents illustrate both unpaid overtime (for time worked, i.e. worked as overtime but not paid as such) and deductions of “unpaid” lunch breaks that were not taken, but were “deemed” (wrongly) by the Employer (and hence deducted). These breaches occurred where, for example, employees work two consecutive 8 hour shifts, but were not paid time and one-half for the second shift. The “meal-break-deeming” breach typically occurred where an employee worked a 12 hour shift (in which an actual lunch break is taken [and, correctly, is not paid] but then the employee accepts a second shift. This time, it is a four-hour shift in which the employer, falsely, deems a lunch break to have been taken by the employee thereby deducting one-half hour’s pay, although during that half-hour the employee worked and did not take lunch. To add to the problem, the employer not only deducts the 5 hours in the 4 hour shift, it also fails to pay at the overtime rate, treating the 4 hours (really 3.5 hours with the deemed lunch break) as straight time.

As mentioned elsewhere in this letter, we have documentation (supplied herewith ) that illustrates the various categories of breaches; however, the employer is the only repository of the entire documentary record (if any party is at all) and we request that such similar documentation be supplied in full and, therefore, reserve the right to provide such further instances of breach as may, from time to time, be revealed upon full disclosure.

The Union provides the following examples derived from the documents we happen to have available. For example, Ruth Wiley had .5 hours deducted from her pay, hence her “Reg. Pay” for the pay issued on 01/23/2006 states “67.50” hours versus 68.00 that should have been paid. (A similar set of facts occurred on January 29, 2006). Additionally, and arising from the same pay period, Ruth Wiley was not paid at the 1.5 overtime rate for a shift she worked on February 11, 2006. This example is verified by the schedule respecting Ms. Wiley for the relevant day and week, which contains other examples of the same (all of which are attached hereto).

Similar breaches are illustrated from the other documents dealing with yet other grievors in the group, e.g. Kathy Harvey, C. Ross, Valerie Conversano (who, for example, was paid straight time on January 5, 2006, when she should have been paid overtime for double shift for that shift and similarly so for January 22 and January 25, January 30, February 6, February 23, March 9, March 10, March 20 2006); David L. Clarke (who was paid straight time when he should have been paid overtime and whose pay was docked .5 hours for a meal break not taken (again on the dates as indicated on the documents provided]); Michelle T. Williams (whose pay had .5 hours deducted for a meal break [not taken] on a 4 hour shift [March 9, 2006] and who was paid straight time for overtime work done on March 14, 2006); Kim Swain who was not paid overtime on January 3, January 23, January 31, March 13, March 28, April 6 and whose pay for April 1 suffered a .5 hour deductions for a meal break not taken.

There are many other examples even in the documents provided. The Union expects further examples in the documents to be disclosed by the Employer.

The gist of the allegation in the Joan Gates grievance is that the employer had violated articles 2 and 3 as well as the Government’s own Conflict of Interest Policy and Guidelines by its practice of hiring unclassified staff. It is clear that the statement of the grievance, while alleging that the employer’s practice of hiring unclassified staff violated the management rights and no discrimination provisions of the collective agreement, does not specify when such hirings occurred, who was hired, or how such hirings violated the collective agreement or any policy. Similarly, the particulars reproduced above do not even address the issue of the employer’s practice of hiring unclassified staff, let alone provide the who, what, when and where. Attached to the particulars were two documents, Conflict of Interest and Post-Service Directive consisting of 32 pages, and a copy of Regulation 435/97 amended to 270/05 on Rules of Conduct for public servants enacted under the Ontario Public Service Act. There is not even a reference to these documents in the particulars, let alone an assertion of what provisions of these documents were contravened, when, how or by whom. Even if I treat this grievance as a hybrid policy/group grievance as the union urges me to, the union has failed to provide any particulars in relation to grievance 1, which even comes close to satisfying its obligation pursuant to the Board order. In the circumstances, the employer’s motion is allowed and grievance no. 1, being the group grievance in GSB file 2005-3003 is hereby dismissed.

(2) The Paul Wilson grievance (2005-3625)

This is also formally designated as a group grievance and is signed by 63 individuals. The statement of grievance reads:

We grieve that the employer is not applying in a just manner Article 31.A.8.1. in relation to credit amounts earned toward attendance and is unjustly calculating hours worked towards progression through Steps of Salary Schedules in relation to Part-Time Unclassified employees as per the Collective Agreement and as per past practice of the Centre.

Article 31.A.8.1 reads:

Employees who work thirty-six and one-quarter (36-1/4) or forty (40) hours per week shall earn attendance credits of one and one-quarter (1-1/4) days for each calendar month of full attendance or for each calendar month of leave of absence granted under Article 31A.9 (Pregnancy and Parental Leave). Attendance credits may be used for protection purposes only in the event that an employee is unable to attend to his or her official duties by reason of illness or injury. However, accumulated attendance credits earned prior to April 1, 1978 may be transferred to the Classified Service when the appointment to the Classified Service is made from continuous, unbroken, full-time Unclassified Service.

The grievance refers to article 31.A.8.1 and the “past practice’ of the centre. It does not set out what “manner” the employer followed contravened the collective agreement, nor when and how that violated the rights of any of the grievors who are signatory to the grievance. It is clear that the grievance itself provides the employer with no particulars.

As with grievance 1, the union’s statement of particulars fails to even address the alleged violation in grievance 2. Specifically, there is no indication of what “practice” or “manner” the employer followed in applying article 31.A.8.1, or how and when that violated the rights of the individuals who have grieved. The union has attached to its statement of particulars, employee work schedules for various pay periods (43 pages), a group of attendance forms for various employees (58 pages), a group of pay stubs for various employees (30 pages) and a group of premium payment reports (13 pages). No reference is made to any of these documents in the particulars to indicate how, if at all, the documents relate to the grievance 2. Despite my best efforts, I could not make a connection between any of the documents and the alleged violation of article 31.A.8.1. Similarly, while the grievance refers to a “past practice”, no particulars have been provided as to what that past practice allegedly was.

In the circumstances, I find that the union has not complied with the Board’s order for particulars. Grievance 2 is also hereby dismissed.

(3) The meal breaks grievance (2005-3628)

This is designated as a union grievance and states:

The Ministry, Whitby Psychiatric Hospital, has violated the collective agreement by deducting employees’ pay for unpaid meal breaks that were never scheduled or taken.

Clearly the grievance itself contains no particulars as to what deductions were made, from which employee(s) or when such deductions took place.

In this instance, the union does attempt to address the meal break grievance in its statement of particulars. It is asserted that the documents attached illustrate “deductions of unpaid lunch breaks that were not taken, but were deemed (wrongly) by the employer (and hence deducted)”. The particulars provide “examples” of how the breaches occurred. Again it provides circumstances as to when “typically” the breaches occurred. The particulars name certain employees who allegedly were docked time for meal breaks not taken, namely, David l. Clarke, Michelle T. Williams and Kim Swain. The number of hours lost by each of the three employees, as well as the date(s) on which that occurred is particularized. Union counsel then states “There are many other examples even in the documents provided. The union expects further examples in the documents to be disclosed.”

Considering that we have here a union grievance alleging that the employer had wrongly interpreted and applied the collective agreement in relation to meal breaks, I agree with union counsel that the particulars it has provided with respect to 3 employees, as illustrating the alleged violation, sufficiently apprises the employer of the case it has to meet. The lack of detailed particulars with regard to all employees will not prejudice the employer’s preparation of its defence. A union grievance can cover a large number of employees in the bargaining unit or indeed every employee in the bargaining unit. It will be wasteful to require that the union provide detailed particulars with respect to each and every employee who may be covered by the union grievance. As suggested by the union, in the circumstances it is appropriate that the interpretational issue be determined on the basis of the employer’s treatment of the named grievors. If the union is successful, the parties can determine whether the decision confers any entitlement to any other employees in the bargaining unit and failing agreement return to the Board.

Therefore, the employer’s motion fails as far as the meal break grievance is concerned.

(4) The job posting/temporary assignment grievance (2005-3629)

This is also a union grievance and reads:

The Ministry, Whitby Psychiatric Hospital, has violated Articles 8 and 6 of the Collective Agreement by not posting temporary bargaining unit positions six (6) months duration or longer, or less than six (6) months when recruiting from outside the bargaining unit. The Ministry has violated its own Conflict of Interest Guidelines by condoning what appears to be actual, potential or perceived conflicts of interest in the hiring of management’s family members to fill temporary vacancies.

The grievance on its face makes two allegations. First, that the employer has violated articles 8 and 6 of the collective agreement by not posting temporary bargaining unit positions for six months or longer, or for less than six months when recruiting from outside the bargaining unit.

Second, there is an allegation of a violation of the conflict of Interest Guidelines in relation to the hiring of management’s family members to fill temporary vacancies. The union’s statement of particulars provides a number of “examples’, identifying names and dates when the alleged violations occurred. While I find that this information is not clear and detailed as one may expect, I find that it is sufficient as far as the particular alleged violations are concerned. However, the union should not be entitled to pursue the grievance in regard to any instance not particularized. Unlike the meal break and overtime grievances, the present grievance, while framed as a union grievance, is not about the employer’s general interpretation and application of the collective agreement. The grievance is about specific hirings of particular individuals, the circumstances of which would be different in each case. Any situations not particularized will not be amenable to resolution on the basis of an interpretation of the collective agreement. The unique facts of each case would be central to any determination. The employer will not be able to prepare its defence without particulars as to a particular hiring the union is taking issue with. Therefore, the employer would be prejudiced by the lack of particulars.

Therefore, while this grievance may proceed, the evidence will be restricted to the instances which have been particularized.

(5) The overtime payments grievance (2005-3630)

This is also a union grievance and reads:

The Ministry, Whitby Psychiatric Hospital, is violating the collective agreement, specifically, but not exclusively, by not paying the proper overtime wages to classified and unclassified employees for all hours worked beyond regular shifts.

The particulars provided by the union with regard to this grievance are of the same nature as that in the meal break grievance, except that details including the dates of the alleged breach are provided with regard to six employees, as “examples”. For the same reasons as with the meal breaks grievance, I find that in this union grievance also, the employer has been provided with sufficient particulars, so as to be in a position to prepare its defence. The motion fails in this instance also.

As noted before, union counsel sought an order for production as part of his response to the employer’s motion. The union is entitled to disclosure with regard to the grievances that have been found to be sufficiently particularized. However, its request is vague in the extreme. Besides seeking “disclosure”, no indication is made as to what it is that the union wishes disclosed. Therefore, at this point its request for an order is denied. That does not preclude the union from making a further request with some specificity for disclosure from the employer.

Dated this 22^nd day of January 2007 at Toronto, Ontario.