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Home My WebLink About1990-1241.Turner, Williams and Janes.93-05-05ON7ARIO EMPLOYCSDELA CO"RONNE -2 7 CROWN EMPLOYEES DE L'ONTAWO GRIEVANCE C$lMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1241/90, 1242/90, 1243/90 IN THE NATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARQAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE OPSEU (Turner/Williams/Janes) Grievor - and - The Crown in Right of Ontario (Ministry of Government SeXViCeS) Employer H. Waisglass Vice-Chairperson T. Browes-Bugden Member D. Montrose Member T. Hadwen Counsel Cavalluzzo, Hayes & Sh.ilton Barristers & Solicitors FOR TEN RESPONDENT R. Little Counsel Hicks, Morley, Hamilton, Stewart, 'Storie Barristers & Solicitors April 21, 1993 BETWEEN: BEFORE’: GSB 1241. 1242. & 1243/90 IN THE MATTEK OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU (TURNER/WILLIAMS/JANES) -AND- GRIEVOR THE CROWN IN RIGHT OF ONTARIO (Ministry of Government Services', EMPLOYER H.J. WAISGLASS Vice-Chairperson D. MONTROSE Member 5. BROWES-BUGDEN Member FOR THE GRIEVOR: TIMOTHY HADWEN. CAVALLUZZO. HAYES. SHILTON FOR THE EMPLOYER: ROBERT LITTLE. HICKS MORLEY ETC HEARING: April 21, 1993 DECISION There are three grievances before us: GSB 1241/90- the grievance of Ken Turner dated Mav 10,. 1990;, 1242/90, the grievance of Gerald F. Williams dated Mav 10;1990; and the grievance of Wellman Janes dated June 5,1990. Althouah one of the grievances is worded slightly differentlv,,thev are essentially the same as the grievance which was decided in OPSEU CMarkakis> & Ministrv of Government wices Fm: GSB 1920/89 [S. Stewart]: “I grieve the emolover is in violation of the Collective Agreement bv not oavina me the G-4 Note." The!, each ask the Employer “to bav me the G-4 Note for the hours that I am entitled". Union's counsel acknowledges that not only are the grievances the same. but that the facts. barties. and issues are also the same as thev are in OPSEU - CMarkakisS & Ministrv of Government Services F19911. He submits that the L Board's decision in that case was a wrong one. which this panel should not countenance because the results of that decision are manifestly unfair and unjust. The alleaed uniust result is that of the five oeoole who are doing the same job. four are not aettina the same oav as the fifth oerson. It is aareed fact that the three arievors 'and Markakis are four of five senior building systems ooerators emoloved at the Oueen's Park comolex. One of the five. a Mr.Smellie. receives the G4 note. but not the'bthers. It is argued that the denial of Markakis's arievan~ce perpetuates a wrona for all four employees which this Board is now asked to correct. We have examined and considered the submissions of the Union and we find that there is nothing to suggest that'the Markakis decision is manifestly in error. In anv event. we acceot the decision of Chairman Shime in Blake et al: “Thus each decision bv a oanel becomes a decision of the Board and in our ooinion the standard of manifest error which is appropriate for the orivate sector is not aooropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on aooeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuaous attemots to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. “We are mindful. however. that there is no provision for appeal and there are limits to judicial review. While it is our view that the ‘manifest error' theorv is too lax a standard. we recoanize that there mav be exceptional circumstances where an earlier decision of this Board might be reviewed. At this ooint we are not prepared to delineate what constitutes exceotional circumstances and the fleshing out of that standard will be determined on a case bv case basis. The onus will be on the oartv seeking review to establish exceptional circumstances." We acceot the submissions made bv Emolover's counsel that we should apolv the Blake decision and not oermit these grievances to proceed because they are - the same as a grievance which has already been litipated. The grievances are the same. the issues and oat-ties are the same. and the facts are the same. The only thina different are the grievor-s. It is acknowledaed that there is no new evidence to submit that was not out oreviouslv to the bane1 in Marka.kis_. 3 Union counsel submits: Ihowever. that he now wishes to oresent a substantinl' and imoortant araument that was not made in the earlier case which would lead this oanel to conclude that the earlier result was unfair. We endorse the delineations made bv,Chairuerson Paula Knopf on the Glake doctrine of,"excebtional circumstances"..inOFSEU (Gould & Field1 6 Ministrv - of Transoortation F19901: GSB 674188 et al LKnoof] at'uo 6-i: "If the discovery c&new evidence could ever amount to 'exce'ptional circumstances' suaaestina the aburopriateness of reviewing an earlier decision: the party seeking such consideration should, at the very lens:: have to demonstrate that the new evidence could not ureviously have been'obtained by ‘reasonable diligence' and .the new evidence is such. that if.it was adduced. it would be practically conclusive of the issue. Or, the party should have to demonstrate that it wishes to make reoresentations that have not already been considered bv the Board that.the party had no ouuortunitv of raisina previously. These tests are consistent with the rules laid down in the Courts to order a new trial and which have been adouted by the Ontario Labour Relations Board as the princinles.aovernina the exercise'of the Board's discretion. While none of those are officially binding upon this Board, thev are well tested rules and provide a fair set of principles to be considered as Guidance." We accept these criteria and we apply them to the issue we are now asked to decide. Has the Union demonstrated that the representations it now wishes to make have not ~alreadv beenconsidered by the Board in the previous case? And further, that it had no ouuortunitv of making these reuresentations ureviouslv? We are not convinced that the Union did not have the opportunity to uresent to the earlier uanel what it now reuresents to us as a new aryment. No doubt the oanel in Markakis, knew that Smellie'was the only one of the five senior ,buildina systems bnerators emploved'at queen's Park who was paid the G4 note. It must have been aware of the uav difference when it decided to deny the grievance. It is not for this panel to sit on auueal on the decision of the urevious uanel and to decide whether the earlier decision was Just or un?ust In Its conseauences. I i 2 i . 3 ,4 \~e wsh ti; obsewe. however. that the ar~evors are not left without ar?y I-eccxirse on their allegations of a oay ineuulty flowing from the Markokis decjslon. If tt1et.e is a wrong. it is men to the uarties to the Collective Aaleement to correct such wronas at the aovrovriate times~when the agreements are *Den for I~eneaotiation. Wee have come to the conclusion that the Union does not have~any reasonable arounds or which ne could oermit these grievances to proceed. involvina, as, thev do. the relitiaation of a grievance which the 6oard has already decided. We conclude that the Union does not satisfy the reauirement of "exceptional circumstances" as set out in -la. We can not allow a oarty to proceed to relitiaate an issue on the basis of a proposed argument simply because it was not uresented oreviously. for the reasons aiven'herein, the EmpIoyer's preliminary objections are upheld and the arievances are dismissed. DATED AT HAMILTON. ONTARIO. THIS.5 DAY PF, May, 1993 HARRY J. WAISGLASS, Vice-Chairperson D. MONTROSE, MEMGER