GSB#1995-1694
UNION#1995-0255-0001
Additional File numbers listed in Schedules “A” and “B”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Monk et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Jennifer Richards Ministry of Government Services Labour Practice Group Counsel
HEARING
January 26, 2012.
DECISION
1The parties have agreed that the matters to be addressed in this decision are as follows:
The Employer raised a preliminary objection to the timeliness of all grievances in the Monk et al group which were filed after all institutions had gone smoke free in 2001.
The Union conceded that the grievances had been filed outside the time permitted in the collective agreement for the filing of grievances but asserted that these were appropriate cases for the exercise of the Board’s discretion to extend time [limits].
The parties held discussions and agreed to bring forward a single case, that of Greg [sic] Gray (2005-2888), as a test case and presented an agreed statement of facts as to the reasons why Mr. Gray had filed his grievance at the time he did.
The Board issued a decision on June 28, 2010 dismissing the grievance of Greg Gray as untimely and determining that this was not an appropriate case for the exercise of the discretion to extend time limits.
The Parties consulted with one another to determine whether agreement could be reached on a process for the disposition of the remaining timeliness objections in the other grievances before VC Gray in these proceedings.
The Union sent a letter to every grievor captured by the Employer’s timeliness objection forwarding a copy of the Greg Gray decision and asking that the grievors provide the Union with answers to specific questions about the timing of the filing of their grievances, and asking them to provide details as to why their case should be treated differently than Greg Gray’s. Grievors were specifically advised that if they did not respond within a fixed time the Union would “assume that you have no facts which distinguish your case from that of Mr. Gray” and that the Union would then proceed on that basis.
The Union received a response from 12 grievors and has provided the Employer with further particulars for each of those 12 grievors based on such responses.
For the 12 grievors who responded and for whom additional particulars have been provided, the Employer will bring a prima facie case motion arguing that, even if the particulars provided for each of the 12 grievors (original plus response to the letter) were proven to be true, such particulars do not provide a sufficient basis for the Board to exercise its discretion to extend time limits.
If the motion is granted the grievances will be dismissed.
If the Board rules that the Union has made out a prima facie case to grant an extension, the Employer maintains the right to continue with its timeliness motion and, in that continued motion, to challenge the particulars provided and to present and rely on its own evidence, as necessary.
For the 200+ grievors who did not provide any additional information in response to the Union’s letter, the Employer will bring motion asking the Board to rule that, as the Union has provided no facts to distinguish the situation of each of those grievors from the facts and conclusions in the Greg Gray decision, there is no prima facie case for an exercise of the discretion to extend time limits for any of these grievances and that therefore the grievances must be dismissed.
In arguing such motion the parties will not reference the original particulars provided for these grievors. Instead, the Employer will simply rely on their lack of response as evidence that the Union cannot offer different facts to distinguish them from Greg Gray. The Union will not dispute this assertion.
Again, if the motion is granted, the grievances will be dismissed.
Again, if the Board rules that the Union has made out a prima facie case to grant an extension, the Employer maintains the right to continue with the timeliness motion and, in that continued motion challenge the particulars provided and present and rely on its own evidence, as necessary.
I should say that the process adopted parties as described in this agreement, including particularly the approach taken by the union in assessing the implications for other grievances of the results in the test case, seems entirely sensible in the circumstances.
2The grievances in question here are those listed in Schedule “B.” During argument, union counsel clarified that all of those grievances concern exposure to second hand smoke that occurred before the use of tobacco in institutions was banned in or about 2001. Some of the grievors may have been exposed to second hand smoke occasionally thereafter, despite the ban, but the parties have agreed that complaints about such exposure will not be addressed in these proceedings.
3The union concedes that the additional information provided by N. Baxter (2005-2982) and R. Williams (2005-3326) contains no facts that would distinguish their circumstances from those of Gregg Gray in any material respect. Union counsel argued vigorously that the time limit should nevertheless be extended for those two, and for all the grievors who provided no additional information, for the reasons advanced by the union in argument in the Gregg Gray case.
4For the reasons given in my earlier decision concerning the Gregg Gray grievance (hereafter, “the Gregg Gray decision”), I am not persuaded that there is a prima facie case for extension of the time for filing the grievances in respect of which the grounds on which the extension is sought are not materially different from those addressed in that earlier decision.
5This leaves 10 grievances filed in or after 2005 concerning alleged exposure to tobacco smoke in and before 2001, for which the union seeks multi-year extensions of the applicable time limit on the basis of circumstances said to be distinguishable from those addressed in the Gregg Gray decision.
General Observations
6Article 22 of the collective agreement in force in when these grievances were filed provided, in part, as follows:
22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.
STAGE ONE
22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner:
STAGE TWO
22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative for the ministry or his or her designee.
22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.
7The union concedes, as it did in the Gregg Gray case, that in each of the 10 cases the grievors knew or should have known in or before 2001 of the circumstances on which their grievances are based. In each case the grievance was filed in or after 2005. The union concedes that this was beyond the time limit specified in Article 22.
8The Board has a statutory discretion to extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the Board “is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.” In exercising that discretion the Board considers the factors identified by Arbitrator Burkett in Becker Milk Co.1 and by Arbitrator Schiff in Greater Niagara General Hospital.2 Arbitrator Burkett identified three factors that should be considered: the reason for the delay given by the “offending party” (that is, the party who has failed to comply with the time limit), the length of the delay and the nature of the grievance. He explained that
If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. … The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time-limits.
In Greater Niagara General Hospital, Arbitrator Schiff identified three further factors: whether the delay occurred in initially launching the grievance or at some later stage, whether the grievor was responsible for the delay and whether the employer could reasonably have assumed the grievance had been abandoned.
9Those factors were considered in the Gregg Gray decision:
14The delay here was in initiating the grievance, rather than later in the grievance process. He did not file a grievance after he raised concerns in 1996 that he says were ignored, nor after it accommodated him in 2000, so the employer would have had no reason to suppose that the grievor had an ongoing complaint that it was not making reasonable provisions for his safety and health. The grievor is solely responsible for the delay.
15The reason given for the grievor’s delay is that until shortly before he filed the grievance he did not know or believe that he had a right to do so. It is not suggested that the grievor’s ignorance of his rights was due to a disability that arose from, or existed independently of, the employer conduct alleged in the grievance.
16The combined effect of Article 22.14.1 and the objective test in Article 22.2.1 is that an employee must be diligent in deciding whether or not to grieve about an adverse workplace experience, and in resolving any questions or doubts she or he may have about whether the complaint can be the subject of a grievance.
17The grievor knew he had been exposed to second hand smoke, and that this might have (and, indeed, had had) an adverse effect on him, at the time of the exposure. There is no suggestion that the grievor tried to find out whether those matters could be the subject of a grievance at any time prior to learning that exposure to second hand smoke had led to financial awards in legal proceedings of other sorts. Nor is it suggested that anything prevented him from doing so. The grievor was simply not diligent. In those circumstances, the nature of the grievance and the length of the delay must be considered, to assess whether those factors favour granting an extension despite the grievor’s lack of diligence.
19The delay itself is very lengthy, much longer even than the delays in discharge cases in which this Board has refused to extend time limits.
Although the nature of Gregg Gray’s grievance was not expressly addressed in this passage, the thrust of the observation in paragraph [19] was that in considering this factor the greatest weight is given to discharge grievances, and even if that had been the nature of Gregg Gray’s grievance that factor would not have prevailed over the length of delay factor when the unexplained delay was as lengthy as his had been.
10The question posed in each of these 10 cases is whether I can conclude that the particulars provided by the grievor, assuming them to be true, raise a prima facie case for extension of the time for filing the grievance. It is not suggested with anything in those particulars distinguishes any of the 10 from the Gregg Gray case, other than the explanation offered for the delay.
11In some cases it is alleged that when the grievor raised concerns about cigarette smoke, members of management did not take the concerns seriously, “laughed off” the concerns, said no provision of the collective agreement was being violated, or otherwise said or implied that a complaint or grievance about exposure to tobacco smoke would have no merit. In other words, the employer took a position with the grievor that is contrary to the one that the grievor now seeks to advance in her or his grievance.
12When a grievance concerns a complaint that has been raised orally with the employer, the next time limit that must be met by the grievor and her or his union is the time limit for filing a written grievance if the employer fails to resolve the compliant to the employee’s satisfaction within the time prescribed. The fact that the employer has dismissed, disagreed with or failed to act on the oral complaint, or denied that the collective agreement requires that it do what the employee asks, is an inherent part of the context in which the employee is required to act diligently if she or he wishes to pursue the complaint further. An allegation that the employer dismissed the complaint when it was presented orally cannot provide reasonable grounds for failure to comply with the time limit for responding to the dismissal by filing a written grievance.
13In some of these cases, the circumstances said to be distinguishable include an allegation that the employer told the grievor, or “led” her or him “to believe,” that exposure to second hand cigarette smoke was “just a fact of life” or a “term of employment” when working in a correctional institution. Again, the fact that the employer expressed an opinion about its obligation that is at odds with the position eventually taken in the grievance is the very context in which the collective agreement requires expedition in filing such a grievance through the union. In the grievance process each side attempts to persuade the other of the merit of its position. If the explanation for delay in filing a grievance is essentially that the grievor was initially persuaded by the employer and chose not to grieve, then changed her or his mind years later, there is no basis for extending the time limit for filing the grievance.
14Union counsel referred in argument to the award in Re Health Employer’s Association of British Columbia and British Columbia Nurses’ Union 2008, 180 L.A.C. (4th) 266 (Taylor), which he characterized as a case in which an arbitrator had extended the time for grieving by 8 years, albeit one in which the employer had contributed to the delay. The grievance in that case arose out of an employer’s failure to provide the grievor with information that, as the arbitrator found, the employer had been under a legal obligation to provide to her. When the grievor became aware of the information several years later she grieved. The arbitrator concluded (at page 277) that “the Grievor did not become aware (in the sense of discovering the material facts) of the matter giving rise to the difference, until shortly before filing the grievance.” On that basis he concluded that the grievance was timely. He then added “In the alternative, I would exercise my discretionary jurisdiction … to relieve against the breaches of the time limits, there being a satisfactory explanation and no evidence of prejudice to the Employer.” He did not go on describe the alternate view of the facts on which it could be said there was a breach of the time limits for which there was nevertheless a satisfactory explanation for the delay.
15In any event, it is not alleged in any of these cases that some material circumstance giving rise to any of the grievance was not known to the grievor until shortly before the grievance was filed. Nor do the material circumstances on which any of these grievances are based include an alleged failure of the employer to provide the grievor with information that it was legally obliged to provide. Again, the union concedes that these grievors knew or should have known in or before 2001 of the circumstances on which their grievances are based.
16In some of these cases it is alleged that members of management not only said that exposure to smoke was a “fact of life” or “term of employment” in correctional institutions, but added that if the employee did not like that she or he should find different work. This can be interpreted in more than one way. It may be nothing more than a rhetorical device: identifying a logical consequence of the supposed “fact of life” or “term of employment” and the grievor’s apparent dissatisfaction with it. On that view, the statement is no different from the examples already mentioned of the employer’s having disagreed with the grievor’s oral complaint.
17On the other hand, such a statement might be interpreted as a veiled threat that any grievance about exposure to smoke would result in the employee’s having to find work elsewhere, regardless of the merits or outcome of the grievance. If the employee interprets it that way, as a threat of reprisal, and there is an objective basis for that interpretation, would that provide reasonable grounds for extension?
18I pause to observe that although some of the grievors refer vaguely to their having been threatened by management, it is not apparent to me from union counsel’s submissions that the union is prepared to characterize those allegations in quite the stark terms used in the previous paragraph. I will address the stark hypothetical, however, in case I have misunderstood the union’s position in this regard.
19Put more generally, then, the question is whether an allegation that the employer threatened reprisal if the grievor filed a grievance would, if true, provide reasonable grounds for an extension of the time for filing that grievance. Answering the question involves expanding the delay analysis to include the delay in raising the explanatory allegation of employer misconduct.
20An allegation that the employer threatened or intimidated an employee into not filing a grievance could itself be raised as a grievance (discrimination on the basis of union activity contrary to Article 3.2), which would be subject to the very time limits in issue here. Extending the time for filing a grievance because of such employer misconduct is analogous to providing a remedy for that misconduct. Should a request for a remedy for employer misconduct be entertained despite the delay in complaining of it? That question has to be addressed in accordance with the considerations already described. It cannot be said that an explanation for a grievor’s multi-year delay in complaining of such gross employer misconduct is self evident, not when it would be well known to the grievor that her or his trade union stands ready, willing and able to challenge any perceived threat to its members’ rights. While an allegation that the employer threatened reprisal if a grievance was filed might, if true, afford reasonable grounds for some modest extension of the time for filing the grievance, it must be otherwise when years unexplainedly pass before the complaint about alleged threats of reprisal is raised.
File #2006-0466 – Steven A. Bailie
21Union counsel argues that the following allegations distinguish this grievor’s request for an extension of time limits from the request considered in the Gregg Gray case:
The Grievor raised concerns about exposure to second hand smoke with managers [names omitted] and other managers in [the workplace] on many occasions starting in the early 1990’s.
The Grievor’s concerns were never taken seriously and were laughed off. He was led to believe that exposure to smoke was a term of employment and that no provision of the collective agreement was being violated.
It is not clear what “concerns” were allegedly raised with the employer and “never taken seriously” and “laughed off.” The particulars originally delivered with respect to this grievance alleged that the grievor had never raised concerns with the employer about second hand smoke. But the focus here is not on the merits of the grievance – it is on whether the time limit for filing a grievance with respect to these alleged concerns should be extended if these allegations are true, bearing in mind that the circumstances on which the grievance is based became known to the grievor in and before 2001. I assume for these purposes that the concerns raised were about exposure to second hand smoke, and that it was the employer’s response to expression of those concerns that allegedly led the grievor to believe that exposure to smoke was a term of employment.
22For reasons provided earlier in this decision, these facts do not provide a reasonable explanation for the multi-year delay in filing a written grievance through the union with respect to a complaint that arose in or before 2001. As the other pertinent considerations are not materially different from those addressed in the Gregg Gray decision, I conclude that there is no prima facie case for extending the time limit for filing this grievance.
File # 2005-2752 – Lois Dickson
23The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor was one of only five women working at the Guelph Correctional Centre when she was hired in 1975. Smoking was accepted as normal behaviour through the 1990’s for CO’s, managers and inmates and inmates were encouraged to smoke. Cigarettes were used as a “tool” to pay inmates for doing extra jobs.
The Grievor, as a women [sic] in a male dominated workplace, felt very intimidated by management and felt like if she raised concerns about smoking within the institution that she would lose her job.
The Grievor raised concerns about exposure to second hand smoke with several supervisors, including the then Superintendant of Metro West Detention Centre, [R. B.]. [R. B.] did not treat the Grievor’s concerns seriously and he indicated to the Grievor that exposure to smoke in the workplace was not a concern to the Ministry.
24The union does not allege that there is any objective basis for the fear alleged in paragraph 2. Even if it had, for the reasons given earlier these facts would not have been sufficient to establish a prima facie case for a multi-year extension of the time for filing the grievance through the union.
File # 2005-2836 – Irene Gowan
25The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor was one of very few women working at the Guelph Detention Centre when she was hired in 1980. The Grievor felt intimidated by management and felt that if she made waves by filing a grievance she would lose her job. There was no protection for human rights in the collective agreement during the early years of the Grievor’s employment.
In 1986, the Grievor was hospitalized due to serious difficulties breathing. Following discharge from a week in the hospital, the Grievor was on sick leave and was unable to return to work for twenty-two months. She was prescribed Prednisone which had several side effects.
During her leave from work, the Grievor was examined by Dr. House, a doctor employed by the Ministry. Dr. House sent a letter to the Grievor’s employer at the Wellington Detention Centre which stated that the Grievor was to stay as far away from cigarette smoke as possible.
When the Grievor returned to work, Dr. House’s instruction was not honoured by the employer and the Grievor was consistently placed in areas where she was exposed to second hand smoke.
Management was aware that many others in the workplace suffered from second hand smoke but took no steps to remedy this. Many managers were smokers as well.
26An earlier grievance by this grievor, filed under the name Irene England, is one of the grievances listed in Schedule “A” that are not affected by this preliminary objection. That grievance, which was filed in February 1992, alleged that the employer had breached Article 18.1 (now 9.1) by exposing workers to second hand cigarette smoke. Neither counsel made any submission about whether the matters referred to in paragraphs 2, 3 and 4 fall within the scope of the 1992 grievance. Paragraph 4 seems to suggest that the employer conduct complained of in that grievance continued, or similar conduct occurred, after it was filed. It is not apparent whether the 2005 grievance is concerned with anything other than conduct that is the same as or similar to the conduct complained of in the earlier grievance.
27It is often the case that the conduct complained of in a grievance continues, or similar conduct occurs, after the grievance is filed. It may or may not be understood that such post-filing conduct will be addressed in the arbitration of the grievance if the underlying issue is not settled in the meantime. There may or may not be a debate about the scope of the grievance, including debates about what post-filing conduct, if any, can be remedied when the dispute is later arbitrated.
28The parties agree, however, that I should determine whether there is a prima facie case for extending the time for filing this grievance without first determining the scope of the earlier one or addressing any of the sorts of issues that might arise concerning whether conduct that occurred after the earlier grievance was filed can be dealt with in the arbitration of that earlier grievance. They agree that no outcome of this preliminary issue can affect the scope of the earlier grievance, whatever that scope may be.
29Assuming, without deciding, that this grievance raises claims that are not within the scope of the earlier grievance, the question is whether there are reasonable grounds to extend to November 2005 (when this grievance was filed) the time limit for initiating a grievance with respect to those claims, when the circumstances giving rise to them occurred and were known the grievor years earlier, in and before 2001.
30As in the Dickson case, the union is not prepared to allege that there is any objective basis, in employer conduct or otherwise, for the alleged fear that if the grievor filed a grievance about smoking in the workplace she would lose her job. In any event, if there were a basis in the employer’s conduct for fear of retribution, for the reasons set out earlier that conduct cannot provide reasonable grounds for a multi-year delay without a reasonable explanation for the delay in complaining about the conduct. Accordingly, if and to the extent that this grievance raises claims that are not or will not be within the scope of the earlier grievance, there is no reasonable explanation for the delay and no prima facie case for extension of the time for filing this grievance.
2005-2679 – John Heathcote
31The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
In addition to the grievance filed by the Grievor on October 31, 2005, which is the subject matter of the timeliness objection raised by the Ministry, the Grievor had also filed 2 grievances on July 3, 1996 respecting the issue of smoking in the workplace.
As noted in the earlier particulars filed on behalf of the Grievor, the Grievor had been extremely active in raising the issue of smoking in the workplace, and the harm he was suffering as a result, from 1988 until the time of filing his grievances. The Grievor continued to raise issues respecting smoking in the workplace through to May 2000.
The Grievor was transferred within the Ministry to the Burtch Correctional Centre when the Wellington Detention Centre closed in July 2001 and was not harassed or experience other problems respecting smoking in the workplace while at Burtch.
When co-workers began to file grievances respecting concerns about the effects of smoking in the workplace in 2005, the Grievor also filed a grievance as he had been fighting this issue for so many years and did not want management to feel he was no longer concerned with the issue.
32As in the Gowan case, this grievor filed earlier grievances with respect to exposure to cigarette smoke. The particulars originally filed with respect to this 2005 grievance refer to events that occurred both before and after the filing of the grievor’s earlier 1996 grievances, including exposure to smoke that occurred after the earlier grievances were filed. Neither counsel made any submission about whether the allegations in those particulars fall within the scope of those earlier grievances. The observations I made in paragraphs [27] and [28] apply equally here.
33Assuming, without deciding, that this grievance raises claims that are not within the scope of the earlier grievances, the question is whether there are reasonable grounds to extend to October 2005 (when this grievance was filed) the time limit for initiating a grievance with respect to such claims, when the circumstances giving rise to the claims occurred and were know to the grievor in and before 2001.
34If and to the extent that this grievance raises claims that are not within the scope of the earlier grievances, there is no reasonable explanation for the delay in filing it, and no prima facie case for extension of the time for doing so.
File #2005-2751 – Steve Measham
35The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor raised concerns with several supervisors about smoking in the workplace. He complained to [names omitted].
Long before 2001, the Grievor had a meeting with [manager names omitted]. The employer listened to the Grievor’s concerns and undertook to enforce no smoking in unauthorized areas. Following the meeting, however, this promise was never honoured.
The Grievor was threatened by management after filing his complaint with the employer. One manager called the Grievor “a rat” and suggested that he leave corrections to find a new job.
The Grievor was lead to believe that smoking was part of the corrections “culture” and that if he did not like it, he should get out.
The Grievor did not file a grievance before 2001 because of the continual effort of the union to address the concern of smoking in provincial Correctional Institutions and the promise from the employer to address the issue.
36The allegation that the grievor was threatened is vague, but troubling. For reasons given earlier, however, it cannot provide a reasonable explanation for a multi-year delay in filing this grievance, in the absence of a reasonable explanation for the delay in complaining about the threats. Nor can the other allegations. I find that there is no reasonable explanation for the delay and no prima facie case for extension of the time for filing this grievance.
File # 2007-0581 – Anthony Nelli
37The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
In the early 1990s, the Grievor raised concerns with the employer about smoking in the workplace. At this time, the Grievor spearheaded an initiative for a smoke-free workplace with his fellow employees at Sault Ste. Marie Jail.
The Grievor filed a grievance in the 1990s about exposure to second hand smoke. The grievance was never settled. He chose to file a second grievance to keep the issue alive.
The Grievor filed a complaint under the Ontario Health and Safety Act in the early 1990s. The result of this complaint led to Sault Ste. Marie Jail being the first non-smoking institution in Ontario.
38I note that the particulars provided with respect to the merits of the grievance allege that the Sault Ste. Marie Jail was ordered to go “smoke free” in 1997. They also allege that
- The Grievor raised concerns with his Superintendent … about the poor air quality and having to work in a “blue haze.” The only response from [the Superintendent], who smokes was, “its part of your job.”
The particulars do not indicate when this conversation allegedly took place.
39Notwithstanding what the grievor says in paragraph 2, union counsel was not aware of any previous grievance under the collective agreement by this grievor. There is no suggestion that any such grievance remains outstanding.
40I note again the union’s position that, like the others, this grievance is concerned with exposure to smoke prior to the grievor’s workplace becoming “smoke free” in (or perhaps in this case, before) 2001. The allegations relied upon do not provide a reasonable explanation for the delay from that time to April 2007, when the grievance was filed. I find that there is no prima facie case for extension of the time for filing this grievance.
File # 2007-0423 – Richard Prestage
41The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
In 2006, the Grievor was the worker chair of the Joint Occupational Health and Safety Committee [JOH&SC].
Prior to filing the present grievance, the JOH&SC made a recommendation to the employer to enforce nonsmoking at the institution by charging offending inmates under the city’s smoke-free by-laws. The employer refused to act on this recommendation.
As a result of the employer refusing to take the issue seriously, the Grievor filed his grievance.
Despite the removal of tobacco from the institution in 2002, there continues to be a problem of inmates smuggling tobacco and smoking in non designated areas at Elgin Middlesex Detention Centre.
Again, the union has made it clear that the grievances before me, including this one, are concerned with exposure to second hand smoke in correctional institutions prior to the institutions’ going smoke free in or around 2001, and not with occasional (by comparison) exposure thereafter to smoke from, for example, contraband tobacco. The particulars that the union originally provided with respect to the merits of this grievance alleged that the grievor was exposed to second hand smoke between July 1985 and “2002 when tobacco was removed from the institutions.”
42The grievance was filed April 2006 with respect to events that occurred and were know to the grievor in and before 2002. The allegations relied upon in support of an extension to the time limit do not provide a reasonable explanation for the delay. I find that there is no prima facie case for extension of the time for filing this grievance.
File #2006-3116 – Frank Renda
43The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor continually raised concerns with Deputy Superintendant [name omitted] about second hand smoke. The employer’s response was that smoking was an inherent part of the job and that if employees are not satisfied, they should look for another job.
The Grievor complained to his supervisors about smoking in the workplace. One supervisor’s response was, “you don’t have a leg to stand on and [your complaint] will never be heard”.
In essence, these are allegations that the employer expressly or impliedly denied that it had any obligation to protect the grievor from exposure to second hand smoke and told the grievor that a complaint to that effect would be without merit. Union counsel says the union does not characterize the statement attributed to the supervisor as a threat that the employer would interfere with the grievor’s right to grieve or engage in retribution if he exercised it. This is simply a case in which the grievor’s complaint was dismissed by the employer at stage one.
44The allegations relied upon in support of an extension to the time limit for moving to stage two by filing a written grievance do not provide a reasonable explanation for the delay in doing so. I find that there is no prima facie case for extension of the time for filing this grievance.
File # 2005-3332 – Marilynn Schrader
45The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor felt intimidated by the employer and felt that if she raised concerns about second hand smoke she would face a reprisal and would be encouraged to find work elsewhere.
The Grievor was led to believe that second hand smoke was “just a fact of life” when working in a jail.
When the Grievor heard about a group of employees grieving the issue she felt safe to raise her complaints and felt that as part of a group her concerns were more likely to be heard.
46Union counsel says the union does not allege that there is any objective basis for the alleged fear that if the grievor raised concerns about second hand smoke she would face a reprisal by management or that she would otherwise be unsafe if she had complained before others did.
47Assuming that it was a member of management who made the remark quoted in paragraph 2, the fact that management took a position contrary to the one that the grievor now takes in her grievance does not satisfactorily explain the delay until December 2005 in initiating a grievance with respect to things that occurred in and before 2001.
48The allegations relied upon in support of an extension to the time limit do not provide a reasonable explanation for the delay in filing. I find that there is no prima facie case for extension of the time for filing this grievance.
File # 2007-0013 – David Sproat
49The facts said to distinguish the request for extension of the time for filing this grievance from the request in the Gregg Gray case are these:
The Grievor raised concerns about exposure to second hand smoke with Superintendant [name omitted] and Shift Supervisor [name omitted], both of whom were smokers and who had distributed free tobacco to inmates many times.
The Grievor also requested that the employer increase ventilation within the institution.
The employer’s response was that inmates had the right to smoke and that exposure to second hand smoke was an inherent part of the job. The employer also threatened the Grievor and told him that if he did not like it, he should consider another occupation.
50My assessment here is the same as in Mr. Measham’s case. While the allegation that the grievor was threatened in some manner at some time in or before 2001 is troubling, for reasons given earlier it cannot, without more, provide a reasonable explanation for a multi-year delay in filing the grievance.
51The allegations relied upon in support of an extension to the time limit, assuming them to be true, do not provide a reasonable explanation for the delay in filing. I find that there is no prima facie case for extension of the time for filing this grievance.
Conclusion
52In the result, all of the grievances listed in Schedule “B” are dismissed as untimely. In the cases of Ms. Gowan (formerly England) and Mr. Heathcote, this is entirely without prejudice to any issue that may arise concerning the scope of their earlier grievances.
Dated this 15th day of February, 2012.
Schedule “A”
| GSB Number | Grievor Name | OPSEU # | Old OPSEU # |
|---|---|---|---|
| 1990-2758 | Balazic, Mathias | 1991-0301-0001 | 91B272 |
| 1992-0731 | England, Irene | 1992-0255-0003 | 92D187 |
| 1992-0731 | Marcotte, Robert | 1992-0255-0001 | 92D190 |
| 1992-0731 | Moreau, Paul | 1992-0255-0004 | 92D188 |
| 1992-0731 | Mutter, Blaine | 1992-0255-0002 | 92D189 |
| 1994-1436 | Arnold, Ross | 1994-0608-0020 | 94E455 |
| 1994-1436 | Gulli, Rina | 1994-0608-0022 | 94E457 |
| 1994-1436 | Maccarone, Katherine | 1994-0608-0017 | 94E451 |
| 1994-1436 | Pandzic, Jerry | 1994-0608-0013 | 94E452 |
| 1994-1436 | Reid, Randy J. | 1994-0608-0019 | 94E458 |
| 1994-1436 | Sullivan, Robert | 1994-0608-0018 | 94E453 |
| 1994-1436 | Wysynski, Stephen | 1994-0608-0014 | 94E454 |
| 1995-0233 | Fraser, Dan | 1995-0521-0026 | 95A546 |
| 1995-0267 | Cook, Thomas | 1995-0521-0023 | 95A556 |
| 1995-1556 | Hosegrove, John | 1995-0252-0002 | 95F313 |
| 1995-1694 | Monk, Randall | 1995-0255-0001 | 95F376 |
| 1996-1143 | Heathcote, John | 1996-0255-0001 | 96A052 |
| 1996-1191 | Gordon, Lorne | 1996-0255-0008 | 96A085 |
| 1996-1814 | Monk, Randall | 1996-0255-0005 | 96A469 |
| 1996-1814 | Monk, Randall | 1996-0255-0006 | 96A470 |
| 1996-1814 | Monk, Randall | 1996-0255-0007 | 96A471 |
| 2000-0416 | Whissell, Alain | 1999-0411-0031 | 00E252 |
Schedule “B”
| GSB Number | Grievor Name | OPSEU # |
|---|---|---|
| 2004-1443 | Gordon, Lorne | 2004-0234-0393 |
| 2005-2428 | Howell, John | 2005-0234-0278 |
| 2005-2430 | Gordon, Lorne | 2005-0234-0280 |
| 2005-2433 | Cassidy, Brian | 2005-0234-0283 |
| 2005-2441 | Liddie, Justin | 2005-0234-0291 |
| 2005-2676 | Lantz, Sharon | 2005-0234-0356 |
| 2005-2677 | Dickson, Steve | 2005-0234-0357 |
| 2005-2678 | Black, William | 2005-0234-0358 |
| 2005-2679 | Heathcote, John | 2005-0234-0359 |
| 2005-2750 | King, Lawrence | 2005-0234-0482 |
| 2005-2751 | Measham, Steve | 2005-0234-0483 |
| 2005-2752 | Dickson, Lois | 2005-0234-0484 |
| 2005-2767 | Adams, Ian | 2005-0234-0490 |
| 2005-2819 | Allan, Renetta | 2005-0234-0492 |
| 2005-2820 | Barbora, Diana | 2005-0234-0494 |
| 2005-2821 | Bartnicki, Andrew | 2005-0234-0495 |
| 2005-2822 | Bithell, Robert | 2005-0234-0496 |
| 2005-2823 | Campbell, Wayne | 2005-0234-0497 |
| 2005-2824 | Clarke, Andrea | 2005-0234-0498 |
| 2005-2825 | Curran, Tammy | 2005-0234-0499 |
| 2005-2826 | Archdekin, Shari | 2005-0234-0500 |
| 2005-2827 | Coker, David | 2005-0234-0501 |
| 2005-2828 | Denbak, David | 2005-0234-0502 |
| 2005-2829 | Dooley, Irene | 2005-0234-0503 |
| 2005-2830 | Duff, John | 2005-0234-0504 |
| 2005-2831 | Dusome, Eva | 2005-0234-0505 |
| 2005-2832 | Gerber-Johnston, Karen | 2005-0234-0506 |
| 2005-2833 | Giancola, Elizabeth | 2005-0234-0507 |
| 2005-2834 | Good, Brian | 2005-0234-0508 |
| 2005-2835 | Goodhew, John | 2005-0234-0509 |
| 2005-2836 | Gowan, Irene | 2005-0234-0510 |
| 2005-2837 | Hagen, Paula | 2005-0234-0511 |
| 2005-2838 | Hannigan, Ann | 2005-0234-0512 |
| 2005-2839 | Hart, Nancy | 2005-0234-0513 |
| 2005-2840 | Holwell, Pauline | 2005-0234-0514 |
| 2005-2841 | Hulley, Don | 2005-0234-0515 |
| 2005-2842 | Keenan, David John | 2005-0234-0516 |
| 2005-2843 | Klacik, Don | 2005-0234-0517 |
| 2005-2844 | Kurczak, Robert | 2005-0234-0518 |
| 2005-2845 | Leonard, Blake | 2005-0234-0519 |
| 2005-2846 | Blanda, Josie | 2005-0234-0520 |
| 2005-2847 | Lovell, Pamela G | 2005-0234-0521 |
| 2005-2848 | Lowry, Anisia | 2005-0234-0522 |
| 2005-2849 | Marshall, Debbie | 2005-0234-0523 |
| 2005-2850 | Martin, Dawn | 2005-0234-0524 |
| 2005-2852 | Misurka, Michael | 2005-0234-0526 |
| 2005-2853 | Niemann, Michael | 2005-0234-0527 |
| 2005-2854 | Noble, John | 2005-0234-0528 |
| 2005-2855 | Poole, Joyce | 2005-0234-0529 |
| 2005-2856 | Psenicka, Paula | 2005-0234-0530 |
| 2005-2857 | Raffin, Tony | 2005-0234-0531 |
| 2005-2858 | Raffin, Gloria | 2005-0234-0532 |
| 2005-2859 | Rucko, Mark | 2005-0234-0533 |
| 2005-2860 | Rudden, Lee | 2005-0234-0534 |
| 2005-2861 | Selkirk, Russell | 2005-0234-0535 |
| 2005-2862 | Simpson, John | 2005-0234-0536 |
| 2005-2863 | Sinclair, Bob | 2005-0234-0537 |
| 2005-2864 | Smith, Margaret | 2005-0234-0538 |
| 2005-2865 | Smith, Philip | 2005-0234-0539 |
| 2005-2866 | Solomon, Nancy | 2005-0234-0540 |
| 2005-2867 | Tobis, Nancy | 2005-0234-0541 |
| 2005-2868 | Tyrrell, Lynda | 2005-0234-0542 |
| 2005-2869 | Vanderyt, William | 2005-0234-0543 |
| 2005-2870 | Williams, Susan | 2005-0234-0544 |
| 2005-2871 | Wilson, Angela | 2005-0234-0545 |
| 2005-2947 | Marcotte, Robert | 2005-0234-0563 |
| 2005-2948 | Kerr, Mike | 2005-0234-0564 |
| 2005-2949 | Campbell, Rob | 2005-0234-0565 |
| 2005-2950 | Favaro, Joe | 2005-0234-0566 |
| 2005-2951 | Mutter, Blaine | 2005-0234-0567 |
| 2005-2982 | Baxter, Neil | 2005-0234-0584 |
| 2005-2983 | Kappler, Wayne | 2005-0234-0585 |
| 2005-2984 | Ranck, Kelly | 2005-0234-0586 |
| 2005-2985 | Reis, Carlos | 2005-0234-0587 |
| 2005-2986 | George, Alexander | 2005-0234-0588 |
| 2005-3024 | Clark, Pearl | 2005-0234-0596 |
| 2005-3025 | Lowe, Michael | 2005-0234-0597 |
| 2005-3026 | Toiviainen, Mervi | 2005-0234-0598 |
| 2005-3229 | Cameron, Mark | 2005-0234-0667 |
| 2005-3234 | McQueen, Mark | 2005-0234-0672 |
| 2005-3309 | Miller, Linda | 2005-0234-0680 |
| 2005-3310 | Mcculloch, Jeff | 2005-0234-0681 |
| 2005-3311 | Essery, Earl | 2005-0234-0682 |
| 2005-3312 | Chisholm, Susan | 2005-0234-0683 |
| 2005-3313 | Dwyer, Sean | 2005-0234-0684 |
| 2005-3314 | Millet, Everett | 2005-0234-0685 |
| 2005-3315 | Degan, Peter | 2005-0234-0686 |
| 2005-3316 | Moco, Denis | 2005-0234-0687 |
| 2005-3317 | Bell, Graeme | 2005-0234-0688 |
| 2005-3318 | Fairley, Gregory | 2005-0234-0689 |
| 2005-3319 | Robertson, Colin | 2005-0234-0690 |
| 2005-3320 | Robertson, Michelle | 2005-0234-0691 |
| 2005-3321 | Berg, Dennis | 2005-0234-0692 |
| 2005-3322 | Smith, Stephen | 2005-0234-0693 |
| 2005-3323 | Kurpieweit, Vic | 2005-0234-0694 |
| 2005-3324 | Young, David | 2005-0234-0695 |
| 2005-3325 | Wyse, Robert | 2005-0234-0696 |
| 2005-3326 | Williams, Ron | 2005-0234-0697 |
| 2005-3327 | McArthur, Doug | 2005-0234-0698 |
| 2005-3328 | Hugo, Peter | 2005-0234-0699 |
| 2005-3329 | Suka, Jovan | 2005-0234-0700 |
| 2005-3330 | Faler, Danny | 2005-0234-0701 |
| 2005-3331 | Whelan, Grant | 2005-0234-0702 |
| 2005-3332 | Schrader, Marilynn | 2005-0234-0703 |
| 2005-3333 | Cartwright, Robert | 2005-0234-0704 |
| 2005-3334 | Gendron, Clarence | 2005-0234-0705 |
| 2005-3335 | Moreau, Paul | 2005-0234-0706 |
| 2005-3336 | Linck, Micah | 2005-0234-0707 |
| 2005-3337 | Gallagher, Joanna | 2005-0234-0708 |
| 2005-3338 | Haines, Don | 2005-0234-0709 |
| 2005-3339 | Drew, Stephen | 2006-0234-0012 |
| 2005-3340 | Baxter, Robert | 2006-0234-0013 |
| 2005-3341 | Lyons, David | 2006-0234-0014 |
| 2005-3342 | Villeneuve, Dennis | 2006-0234-0015 |
| 2005-3343 | Longstreet, Fred | 2006-0234-0016 |
| 2005-3344 | Sheppard, Ken | 2006-0234-0017 |
| 2005-3345 | Oosterwyk, John | 2006-0234-0018 |
| 2005-3346 | Marcotte, Robert | 2006-0234-0019 |
| 2005-3371 | Given, Alice | 2006-0234-0001 |
| 2005-3372 | D’Angelo, Tony | 2006-0234-0002 |
| 2005-3373 | Guillou, Martine | 2006-0234-0003 |
| 2005-3395 | Holton, Greg | 2006-0234-0004 |
| 2005-3396 | Jamieson, Dennis | 2006-0234-0005 |
| 2005-3397 | Knott, Cathy | 2006-0234-0007 |
| 2005-3398 | Oswald, Vicki | 2006-0234-0008 |
| 2005-3399 | Reinhart, Jim | 2006-0234-0009 |
| 2005-3400 | Smith, Scott | 2006-0234-0010 |
| 2005-3481 | Ranck, Kelly | 2006-0234-0023 |
| 2005-3482 | Swan, Mike | 2006-0234-0024 |
| 2005-3483 | Brookfield, Kimberly | 2006-0234-0025 |
| 2005-3484 | Dakroub, Mike | 2006-0234-0026 |
| 2005-3485 | Picard, David | 2006-0234-0027 |
| 2005-3486 | Terrey, Paul | 2006-0234-0028 |
| 2005-3487 | Matthews, Mike | 2006-0234-0029 |
| 2005-3488 | Penson, Colin | 2006-0234-0030 |
| 2005-3489 | Hope, Leighton | 2006-0234-0031 |
| 2005-3490 | White, Cathy | 2006-0234-0032 |
| 2005-3491 | Harnden, David | 2006-0234-0034 |
| 2005-3539 | Swan, Colleen | 2006-0234-0046 |
| 2005-3702 | Brown, Linda | 2005-0234-0713 |
| 2005-3703 | Hunter, Michael | 2006-0234-0040 |
| 2005-3730 | Krzywonos, John | 2006-0234-0053 |
| 2006-0005 | McMillan, Wayne | 2006-0234-0086 |
| 2006-0009 | Ormond, Richard | 2006-0234-0096 |
| 2006-0010 | Abbott, Chris | 2006-0234-0097 |
| 2006-0031 | Quinn, Robert | 2006-0234-0093 |
| 2006-0139 | Wint-Inglis, Carmen | 2006-0234-0104 |
| 2006-0249 | Reinhardt, Glenn | 2006-0234-0107 |
| 2006-0465 | Highley, David | 2006-0234-0134 |
| 2006-0466 | Bailie, Steven | 2006-0234-0135 |
| 2006-0467 | Davidson, Raymond | 2006-0234-0136 |
| 2006-0468 | Dennique, Robert | 2006-0234-0137 |
| 2006-0469 | Chroust, John | 2006-0234-0138 |
| 2006-0866 | Lehman, Gary | 2006-0234-0186 |
| 2006-0867 | Bartlett, Wendy | 2006-0234-0187 |
| 2006-0868 | Patterson, Paul | 2006-0234-0188 |
| 2006-0874 | Chmurzynski, Paul | 2006-0234-0194 |
| 2006-0951 | Stoker, Michael | 2006-0234-0220 |
| 2006-0995 | Koster, Mike | 2006-0119-0013 |
| 2006-0996 | Boer, Richard | 2006-0119-0014 |
| 2006-0997 | Lavereau, Raymond | 2006-0119-0015 |
| 2006-0998 | Snow, Laurie | 2006-0119-0016 |
| 2006-0999 | Langille, Linda | 2006-0119-0017 |
| 2006-1000 | Tilley, Raymond | 2006-0119-0018 |
| 2006-1001 | Gobin, Tim | 2006-0119-0019 |
| 2006-1002 | Graham, Robert | 2006-0119-0020 |
| 2006-1003 | Gilham, Sheila | 2006-0119-0021 |
| 2006-1004 | Snider, Todd | 2006-0119-0022 |
| 2006-1005 | Pierce, Don | 2006-0119-0023 |
| 2006-1006 | Hyde, Mary Lou | 2006-0119-0024 |
| 2006-1051 | Oates, James | 2006-0234-0233 |
| 2006-1132 | Power, Thomas | 2006-0119-0029 |
| 2006-1166 | Power, Thomas | 2006-0119-0031 |
| 2006-1391 | Briese, Robert | 2006-0234-0280 |
| 2006-1393 | Perusello, Rick | 2006-0234-0282 |
| 2006-1394 | Mandar, Howard | 2006-0234-0283 |
| 2006-1395 | Courville, Barry | 2006-0234-0284 |
| 2006-1431 | Janes, Rob | 2006-0229-0011 |
| 2006-1629 | Marshall, Paul | 2006-0234-0292 |
| 2006-1637 | Bridge, David | 2006-0234-0300 |
| 2006-1638 | Martinoni, Gord | 2006-0234-0301 |
| 2006-1639 | Holmberg, David | 2006-0234-0302 |
| 2006-1640 | Fusco, Tom | 2006-0234-0303 |
| 2006-1641 | Anderson, Michael | 2006-0234-0304 |
| 2006-1642 | Yole, William | 2006-0234-0305 |
| 2006-1679 | Harris, Daniel | 2006-0234-0314 |
| 2006-1712 | Koster, Hans | 2006-0234-0315 |
| 2006-2689 | Fisher, John | 2006-0234-0349 |
| 2006-2691 | Carberry, Peter | 2006-0234-0351 |
| 2006-2692 | Hall, John | 2006-0234-0352 |
| 2006-2693 | Bozzelli, Dominic | 2006-0234-0353 |
| 2006-2694 | Vandal, Dave | 2006-0234-0354 |
| 2006-2695 | Szymanski, Stephen | 2006-0234-0355 |
| 2006-2927 | Branch, Susan | 2006-0234-0457 |
| 2006-3116 | Renda, Frank | 2006-0234-0458 |
| 2006-3124 | Cowan, Brenda | 2007-0234-0003 |
| 2006-3125 | Atkinson, LeeAnne | 2007-0234-0004 |
| 2007-0013 | Sproat, Dave | 2006-0234-0459 |
| 2007-0020 | Cordeiro, Emanuel | 2007-0234-0006 |
| 2007-0021 | Drummond, Carole | 2007-0234-0007 |
| 2007-0268 | Armour, Stewart | 2007-0234-0045 |
| 2007-0423 | Prestage, Richard | 2006-0108-0077 |
| 2007-0577 | Reville, Joanne | 2007-0678-0005 |
| 2007-0578 | Tomchak, Frank | 2007-0678-0006 |
| 2007-0579 | McCorriston, Ian | 2007-0678-0007 |
| 2007-0580 | DiRenzo, Angela | 2007-0678-0008 |
| 2007-0581 | Nelli, Anthony | 2007-0678-0009 |
| 2007-0582 | Thibodeau, Maria | 2007-0678-0010 |
| 2007-0583 | Boulet, Vance | 2007-0678-0011 |
| 2008-1928 | Tooke, Grace | 2008-0218-0001 |
Footnotes
- Becker Milk Company and Teamsters Union, Local 647 (1978), , 19 L.A.C. (2d) 217 (Burkett).
- Greater Niagara General Hospital and O.N.A. (1981), , 1 L.A.C. (3d) 1 (Schiff).