GSB#2010-0939
UNION#2009-0526-0043
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Reinhardt et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Attorney General)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Eric del Junco Counsel
FOR THE EMPLOYER
Jamie Kneen Ministry of Government Services Labour Practice Group Counsel
HEARING
July 6, 2011.
Decision
1The grievance (dated October 2, 2009) and settlement requested in this matter are as follows:
I grieve that the Employer has breached specifically, but not limited to, Articles 2.1 (Management Rights), 3.2 (discrimination for my Union membership/activity) and 3.3 (Employment Equity) of the Collective Agreement.
The Employer has decided to use a "lottery system" to allocate the next available "larger" desk within my office, without offering the desk to myself as the next most senior classified employee, which has been the usual practice in the past. Presently, no male employee (Court Reporter or Monitor) has been offered or occupy any of the larger desks within my office.
Full redress:
I request that I occupy the larger desk that was awarded to a less senior classified employee than myself today, and any other remedy deemed appropriate by the Grievance Settlement Board.
2Prior to the hearing in this matter reconvening on July 6, 2010, the union filed the following particulars:
The court reporters' office at Old City Hall (OCH) is a female dominated workplace with a female to male ratio of around 5/1. Since 2003, 13 of 13 new reporters hired in this office have been female.
The lead grievor, Warren Reinhardt, is the oldest and most senior male reporter with a hire date of [19]87 as a fee-for-service reporter and a CSD of 1990 as an FPT. He is 64 years of age.
The larger desks along the north and west walls of the office are desirable relative to other desks and have traditionally been offered to female reporters based on seniority and/or service.
Around 2001, Mr. Reinhardt was passed over for a larger desk when the manager Maureen Bowman re-organized the office. Larger desks were assigned to females [sic] reporters based on their seniority relative to each other. Several younger female reporters with less seniority/service than Mr. Reinhardt were assigned larger desks and his gender and age were factors in his being passed over for a desirable desk.
Around 2005, a senior female reporter retired and vacated her larger desk. Again, Mr. Reinhardt was passed over and this desk was offered to Sandra Richardson as the most senior female reporter without a larger desk.
In late 08/early 09, 2 female reporters with less seniority than Mr. Reinhardt, Tara Brown and Janice Law were offered desirable desks which were not offered to Mr. Reinhardt. Mr. Reinhardt's age and gender were factors in the employer's decision not to offer one of these desks to Mr. Reinhardt.
Around Oct/09, a desk became vacant along the north wall. Rather than offer it to Mr. Reinhardt in accordance with past practice as the most senior reporter without a desirable desk, Mr. Valerio decided to hold a "lottery".
There were no witnesses to verify the lottery process which was concluded privately by Mr. Valerio and the announced "winner" was Elaine Sakorafas who is quite junior to Mr. Reinhardt with a CSD of around 2006-08. She is much younger than Mr. Reinhardt, appearing to be in her mid-20s.
Some reporters, including Mr. Rinehart and Paolo Evangelista, refused to participate in the lottery process because of their view that it was unfair and discriminatory not to offer the vacant desk to Mr. Reinhardt based on his seniority.
Mr. Reinhardt's age and gender were factors in the employer's decision not to offer the vacant desk by seniority. This would have been the first larger desk offered to a male reporter ever.
The only rationale offered by Mr. Valerio for using the lottery rather than seniority was "I don't believe in seniority".
None of the larger desks are currently occupied by male reporters.
The employer has assigned long trials to senior female reporters based on seniority but has not done the same for senior male reporters.
The employer has allowed female reporters to reserve drawers in the office fridge for their food but has not provided the same opportunity to male reporters despite this issue being raised by Mr. Evangelista.
Several senior female reporters have been provided with private computer terminals while all the senior male reporters are required share 2 terminals.
Several senior female reporters have been provided with private phones at their desks while all the senior male reporters are required to share phones.
In a recent training session offered by the employer on a new digital transcription system, a training DVD shown by the employer used exclusively female voices and images of female reporters.
There is a general culture within this office whereby male reporters are made to feel like "second-class" employees relative to female reporters.
The employer's decision not to offer the vacant desk to Mr. Reinhardt caused him and other employees, both male and female, significant stress and embarrassment and has created a poisoned work environment.
The union alleges that the employer's conduct was contrary to the collective agreement including ss 2 and 3, and the Human Rights Code, including s. 5.
3The employer disputed the propriety of a number of aspects of the particulars. First, they were provided late – beyond the time frames to which the parties had agreed. Second, certain portions of the particulars improperly state legal conclusions rather than the asserted facts (which might support such conclusions). Further, the particulars are said to represent an effort to improperly expand the scope of the grievance. And finally, the employer submitted that even if (all of the properly received) particulars are assumed to be true and provable, the union has failed to make out a prima facie case.
4The apparently late provision of particulars is unfortunate, particularly since the parties had agreed to a timetable in that regard. However, there was no asserted prejudice flowing from the late production of the particulars (as distinct from the union's efforts to rely on events dating back up to eight years prior to the filing of the grievance).
5The union conceded that some portions of the particulars include and express the legal conclusions it is urging in the case. It accepts, however, that, at least for the purposes of the instant decision – while I may accept the facts asserted as true and provable – I ought not to make the same assumption with respect to the legal conclusions the union will ultimately urge in the matter (should it proceed to a consideration on its merits). Whether the facts asserted support or lead to the legal conclusions urged is this Board's determination to make. In the context of a hearing on the merits, the Board will typically determine what the facts are (based on the evidence) and whether those facts fit with the legal theories advanced. In the present context – where the employer asserts that the facts alleged cannot possibly form the basis for any finding of liability – the Board assumes the facts asserted to be true and addresses the question of whether those facts could possibly support a finding of liability. In this context the union has acknowledged that I must ignore the legal conclusions set out in paragraphs 4 (the latter portion of the last sentence), 6 (the last sentence) and 10 (the first sentence). Thus, those portions of the paragraphs are hereby struck.
6The employer's concern regarding the expansion of the grievance is not difficult to comprehend. The grievance, on its face, contests the use of a lottery system to assign an available preferred desk. That appears to have occurred in or about October 2009. And the grievance clearly seeks relief in respect of that impugned assignment. Thus, both the subject and the object of the grievance appear to be quite straightforward and contained. The union's particulars, however, include and refer to events dating back to 2001 relating to "desk assignments". They also refer to other impugned employer workplace practices which bear no relation to desk assignments, per se, present or past.
7Arbitrators have, as a general matter, been disinclined to preclude the litigation of the "real issue" raised by a grievance on the basis of technical limitations in its formulation. On the other hand, they have also been reluctant to require employers to meet a case which is formulated for the first time at arbitration and which could not reasonably have been anticipated by the employer to be the essence of the grievance as formulated.
8In the context of resolving that kind of tension, it is sometimes important to distinguish between changes or additions to the facts alleged to give rise to a collective agreement violation and circumstances where the union may seek to advance a new or revised legal theory of liability in relation to the very same facts previously identified by the grievance. The instant case provides illustrations of both.
9With respect to the latter, it is curious that there is no reference in the grievance to either the provisions of the Human Rights Code ( the "Code") or to Article 3.1 of the collective agreement (which, in its prohibition of discrimination on the basis of, inter alia, sex and age, mirrors and refers to the provisions of the Code ). There is no doubt, however, as reflected in the particulars set out and in its submissions before me, that the union's case rests on allegations of a violation of Article 3.1 and the Code. No mention was made of Article 3.2 or 3.3 before me (and, indeed, there are no facts alleged which could support any allegation of a violation of those provisions). The employer, sensibly, made no issue of this. I say "sensibly" because, in my view, a dismissal of the grievance on the basis that it refers to Articles 3.2 and 3.3 rather than 3.1 would be a textbook example of the unfairness to be avoided by an overly technical approach. The grievance clearly challenges the propriety of a recent desk assignment and explicitly identifies gender (though not age) as a factor.
10However, while a technical shortcoming in the formulation of the grievance is thus not fatal to its prosecution, different considerations apply to the expanded facts and further alleged violations formulated in the particulars.
11This Board has considered this type of issue before. In OPSEU (Jones et al) and Ministry of Labour (2010), GSB No. 2006-1204 (Abramsky), the Board, at paragraph 13 and following reviewed a number of leading authorities and summarized its approach as follows:
... in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance or is essentially a new grievance. If the issue was part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration's jurisdiction. Conversely, if the matter is truly a different, new issue, the board will decline jurisdiction. In Re Greater Sudbury Hydro Plus Inc. and CUPE Local 4705 (Armstrong Grievance) (2003), 121 L.A.C. (4th) 193 (Dissanayake), Arbitrator Dissanayake determined that "[t]o include an issue through a 'liberal reading' I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance."
12In applying this approach to the instant case, it appears to me that the impugned portions of the particulars fall into two distinct categories: those that do and those that do not relate or, to use the above cited language, are, or are not, either part of or inherent in the original grievance.
13The references to prior desk assignments (3 instances dating back as far as 2001) clearly bear a thematic connection to the instant grievance. And while their vintage may be such as to preclude the seeking of any relief in relation to those events, I am satisfied that evidence in respect of the manner in which prior desk assignments were effected is arguably relevant to the union's case. I am thus not persuaded (whatever the ultimate proper use of evidence in respect of these events might be) to strike these portions of the particulars at this stage of the proceedings.
14By contrast, the assertions found in paragraphs 13-18 bear no direct relation to the core of the grievance, whose characteristics are discussed further below. (It may well be that these allegations are, in large measure, so devoid of particularity or, like paragraph 18, little more than legal conclusions, as to warrant being struck on that basis alone.) However, even apart from the parenthetical concerns, the subject matter of these paragraphs is so removed from the tidy, concise and identifiable ambit of the grievance that was filed, that I am satisfied that the employer could not reasonably have understood or anticipated that the hearing in this matter would be required to branch out in all of the various directions to which these paragraphs point. To do so would be to unfairly permit the union to expand the scope and nature of the grievance and I decline to do so. Paragraphs 13-18 are hereby struck.
15This brings me, finally, to the heart of the grievance – the grievors assert that the employer, by using a lottery system to assign an available preferred desk, has violated the terms of the Code and Article 3.1 of the collective agreement by engaging in improper discrimination on the basis of age and gender.
16Even accepting the union's factual assertions as true and provable, the road to its legal argument is somewhat curious. It claims that on three or four occasions in the eight years preceding the filing of the grievance, the employer made preferred desk assignments on the basis of gender and seniority – the union challenges the propriety of gender as a factor, but cherishes the consideration of seniority. The pleadings do not indicate whether the three or four prior incidents over eight years represent a comprehensive history of preferred desk assignments or are isolated occurrences. In any event, the grievors now urge that the employer continue to assign preferred desks as it has in the past except that it eliminate any reliance on gender.
17This claim is curious in a number of respects – first it is not at all clear that the articulation of a practice based on seniority and gender is consistent with the implication of paragraph 7 of the particulars and portions of the grievance, which appear to suggest – inconsistent with the current claim and other portions of the particulars – that the practice was based solely on seniority.
18More significantly, it less than apparent to me that the employer, in implementing a lottery system, has preserved any improper reliance said to have previously been placed on gender – the facts, as pleaded, are inconsistent with any such conclusion. The real principal complaint here is that the employer failed to consider seniority in the desk assignment. Nothing in the collective agreement requires it to do so. The use of a lottery is, on its face, a violation of nothing. And the "lead" grievor's ability to contest the results of the lottery is simply not enhanced by his refusal to participate.
19It is also somewhat mystifying that it is the employer's very repudiation (again, on the facts as pleaded by the union) of the improper consideration of gender as a factor which is the grievors' factual springboard for a claim that the resulting assignment constitutes improper discrimination on the basis of gender.
20Finally and perhaps more telling, a simple mathematical reduction (subtract gender from (seniority + gender) and one is left with seniority) of the union's position would transform its urging that the employer ought to be required to continue to assign preferred desks as it has in the past except that it eliminate any reliance on gender into the much simpler assertion that preferred desks ought to be assigned on the basis of seniority. We are left with the curious claim that the failure to assign a desk on the basis of seniority is a human rights violation.
21That mathematical reduction perhaps brings us full circle, returning to the form of the grievance. It may explain why no reliance was placed initially in the grievance on the discrimination provisions (of Article 3.1) of the collective agreement or the Code. Rather, the grievance referred to Article 3.2 which prohibits discrimination on the basis of union activity. I have already indicated that, ultimately, no argument was advanced that would support any specific collective agreement obligation to make these assignments by seniority. But if the essence of the exercise, from the grievors' perspective, is to achieve that result, it is perhaps not surprising that Article 3.2 was initially cited rather that Article 3.1. While neither Article 3.2 nor 3.1 provide any real coherence to the grievors' legal theory, if the true object is to advance seniority rights, it is not surprising that they might have cited a provision relating to union matters rather than one relating to (statutorily based) prohibited forms of discrimination.
22In any event, and having regard to the foregoing, I am satisfied that, even assuming the facts alleged by the union are true and provable, there is no case for the employer to meet.
23The grievance is hereby dismissed.
Dated at Toronto this 4th day of October 2011.