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HomeMy WebLinkAbout1988-0674.Gould & Field.90-02-08I ' ' ' ON.RIO EMPLOYES DE ~ COURONNE · ' CROWN EMP~ 0 YEES DE L'ON ~RtO ' GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WESL TORONTO, ON.RIO, MSG 1Z$-SUI~2100 ~£EPHONE/T~L~PHONE 180, RUE DUNDAS OUES~ TORONT~ (ON~RI~ M5G 1Z8 - BUR~U 2100 (41~ 5~-0~8 674/88, 817/88 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD · BETWEEN: 0PSEU (Gould & Field) Grievor - and - The Crown in Right of. Ontario (Ministry of Transportation) Employer BEFORE: P. Knopf Vice-Chairperson I. Thomson Member H. Roberts ~ember FOR THE P. Chapman GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE D. Wakely EMPLOYER: Counsel Winkler, Filion and Wakle¥ Barristers & Solicitors ~EARING: November 20, 1989 AWARD At the r:equest of the parties, we have consolidated Board Files 817/85 and 674./88. This case involves claims for travelling expenses, parking expenses, and meal allowances incurred by the grievors while in attendance for t~e processin§ of the second stage of grievances. The claim is filed under Sections 17, 22 and 27 of the collective agreement. At the o,~tset, the Employer raised a preliminary objection to the case Proceeding to its merits. The Employer argued that the same case has been dealt with by this Board between the same parties 'and it is therefore inappropriate to allow the Union to attempt to relitigate the same issue. After hearing extensive submissions from the parties, this panel issued an oral ruling to the parties at the hearing. This award confirms and'expands upon the ruling and the reasons given to the parties at the time. For purposes of determining the preliminary issue, we have accepted as true all the evidence that the Union advised us that it would be able and prepared to call if the case proceeded to a full hearing. Thus, we have taken the Union's case at its best. The grievor Gould, at the time of the grievance was President of Local 536 of the Union. The grievor Field, was Prssident of Local 510. They both attended second stage grievance meetings either as the representative of the grievor or as the ~rievor personally. The second staDe meetings were held at locations "remote" from thei~ re§ular places of work. They have claimed for the expenses they incurred as a result of having to travel and attend at the second stage meetiags. Employer's acgument on the preliminary point was that these grievors are in exactly the same factual situation as the grievors in the case of Berlin~h_o_f_f__a_~nd_Ea_t. qq__a.n__d_~h_~. ~Q_i~s~_t[~_ of Trans~o~r__tg~ti_o_n_, GSB File No. 1878/~7 [Berl[nqhoff a_n~d_Eg~_to__n] and are claiming the same relief under the same collective agreement. In the Berling?~f[_a_n_d___Ea__to_~ decision, the grievances were denied. Therefore, the Employer argues that this is a classic case of res judicata or issue estoppel an~ is governed by the requirement in this Board's decision of' _A~_a_l_~_amaned Transit Union (E. Blake) and Toronto'Area Transit Operating[ Authority[, GSB File 1276/87 etc. w~ich dictated that a party must show "exce?tional circumstances" before the Board would consider rehearing the same issue. Union counsel explained that the reason this case was being brought forward at this time was that certain information had come to the attention of the Union that was not within its knowledge when the Berlin~hoff and Eaton case had been heard. This evidence came to light When these two grievances were filed as a result of the grievors being advised in April 1988 that the Ministry would not re'imburse them for expenses claimed or for any similar expenses in the future. In a nutshell, it seems tha~ the Central Region o~ the Ministry had a consistent practice in place to pay Qrievors and union representatives for "mileage" and expenses at .stages 1 and 2 of the grievance meetings in remo[e locations. This practice was recorded in a 1982 memorandum and was reconfirmed in writing in late 1987. It is also conSisten~ with a "Guide to Supervisors" which was issued by this Ministrf in 1979. However, this practice was not consistent throughout the rest of the Province where the Union conceded that the "practice" should be described as "spo[~y". Indeed, we were told tha~ there would be evidence f~om the Employer of a 1985 an~ 1988 document warnin~ people w~thin the M~'nistry not to follow the 1979 GuideDook. However, it is clear from the Union's best case that it.would be intending to prove that the practice was consistent at least for the Central Region. But the consistency of the practice in the Central Region and the fact that it was confirmed in writing was not known %o the personnel of the Union who were direc%ing the processing of the B.e_r~li_.n~hoff and Eaton grievances. Those grievances involved a different region. Although that~case did involve evidence of practice, an~ was heard in March 1988, that practice consisted only of two other similar situations. Thus, the Board quite predictably noted "two isolated incidents do not a past pr;actice make" [page 6]. In the~case at hand, the Union tells us that it is coming before the. Board now to say that it has strong documentary evidence and consistent evidence of a _practice to offer in support of its interpretation'of the collective agreement that would allow us to find differently than was found in the Berlinqhoff and F. aton'decision. It was said that this evidence would assist us with the interpretation of the collective agreement by revealing and explaining the ambigui'ty in Article 26.6.2 an.d resolving the amb'iguity through references to the Employer's own practice and previous pu. blica~ion~. This was said to amount to a situation o~ "exceptional circumstances" that would justify', and indeed compel this panel to hear the case on its merits and ultimately reconsider the Berlin~hoff and Eaton decision. We were p~omised that a consideration of the evidence as a whole would convince us that exceptional circumstances did exist. We were referred to the cases o~ Re 152 (Hope) and C_a_na__d. ian Pacific Airlines LimitecJ. (1956), 23 L.A.C. (3,3) 216 {Munroe). We were reminded that the parries enjoy no ri§hr of appeal and aFe quite limited i~] their rioht to judicial review. Thus, we were urged to be willing ko remedy an injustice by agreeing, to hear the Union's evidence and reconsidering the merits of the issue. We w~re also urged to hear the evidence of the Union before determining whether exceptional circumstances existed. The Employer's response to this was to concede, for purposes of this motion, that a consistent practice did exist in the Central Region as the Union alleges. But the Employer rhetorically asks why this evidence was not brought forward when the B_e_r_.l._in_.9. hoff and Eaton case was argued and also asks what exceptional circumstances were demonstrated to' allow the Union to come forward now. It was pointed out that ali the evidence the Union wishes to call was within its grasp during the argument and processing of the Be_rl_i.n_.~hoff and Eaton case. We were urged to refuse to alltow a concept that would result in the merits being determined differently on the same legal issue on tt~e basis of where the grievance arose. We -- were told that the Board has accepted Article 27 as being clear and unambiguous in the c'ases of 'Berlinqhoff and Eaton and Sinacori and the Ministry. of Correctional Services, GSB File No. 768/88 and W. R. McKie and Ministry of _T_r~_a. ns_portat~on and Communication, GSB File 80/80. Also, it was pointed out to us that the Union had agreed that there was no ambiguity in Article 27.6.1 in the case of Roberts, RaD!_~y...,._H__u.9o and Bain and the Ministry_ of Correctional Services, GSB File 2545/87. Further we were reminded that the Union had not pointed to any flaw in the B_e_~r_li99hoff and .E_a__~n reasoning that had not already been argued to that very panel and rejected by it. We were reminded of the policy considerations in Blake aad asked to dismiss the grievance at the outset rather, than to allow the case to p~oceed to a hearing on its merits. The Decision In a situation like this we must start our consideration with the often-quoted and consistently followed thoughts expressed by Chairman Shime ia ~_l.a_.k.e_, But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under Section 20(1) of The Crown ........ Em~lo~[ees Collective Bar~ainin~ Act ther~--~'-~-- Grievance Settlement Board" - that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is "the decision" of the. Grievance Settlement Board. Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the .private sector is not appropriate for the Grievance- Settlement Board. The Act does not give one panel the right to overrule anot~%er panel or to sit on appeal on the decisions of an earlier panel. .Also, §iven the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn Creates undue administrativ,~= difficulties in handling the case load · We are mindful, however, that there is no provision for appeal and ~here are limits to judicial review. While it is our view that the "manifest error" theory is too .lax a standard, we recognize tha~ there may be exceptional circumstances where an earlier decision.of this board might be reviewed, At this point we are not prepared, to delineate what constitutes excep~_i_on_9~!- circumsta~%ces and the fleshing out of that standard will be determined on a case by case basis, The onus will be on the party seeking review to essablish exceptional circumstances [emphasis added] Thus, we should not ~ngage in a review o~ an earlier decision unless and until it cas be demonstrated that exceptional circumstances coat)el or allow us to do so. Most'often an enquiry into the existence of "exceptional circumstances" may well involve a consideranion of the merits of the case as a whole. In the case at hand, ~iven the Employer's preliminary objection, we sought an indication from the Union of the "~xceptional circumstances" by askin§ the Union to state its best case and accepting its submissions and allegations of being true and capable of proof under scrutiny. But that enquiry leaves us wfth a number of problems that the Union cannot overcome. First, this cass ·involves the very same parties that litigated the B_e~r~l_i_·n~hoff and Eaton case. The difference in the grievors is irrelevant because the parties to the collective agreement and the grievances a~e the very same Union and Employer. It is the same collective agreement which is asked to be applied and interpreted under these proceedings. Further, the same basic facts apply in this arguments were made in Berlin~hoff and Eaton as were recited to us here. No new argument was offered. The only difference 'offered is the evidence of the consistent practice in the Central~Region a~d Ministry of Transportation documents confirmin9 that practice which is consistent with the Union's interpretation of the collective a~reement. But nowhere wera we offered any explanation as to why the evidence was not brought forward earlier other than the practical difficulty of a Union as large as this making itseli] knowled~eabl~ of the practices throughout the Province. Nor were we offered any authority that could establish tha~ a practice in one o~ the ~ive re~ions of the Province~ even if long-standing and consistent, could be used to create and/or resolve an ambiguity in a province-wide collective agreement. If the discovery of new evidence could ever amount to "exceptional circumstances" suggesting the appropriateness o~ reviewing an earlier decision, the party seeking such considerar, ion should, at the very ]east, have to demonstrate that the new evidence could not previously have been obtained by "reasonable diligence" and the new evidence is such, that if it was adduded, it would be practically conclusive of the issue. Or, the party should have to demonstrate that it wishes .to make representations that have not already been considered Dy the Board that the party had no opportunity of raising previously. These tests are consistent with the rules laid down in the Courts to order a new trial and which have been adopted by the Ontario Labour Relations Board as the pr'inciptes governing the exercise of the Board's discretion. While none of those are officially binding upon this Board, they are well tested rules and provide a fair set of principles to be considered as guidance. The evidence offered by the Union comes far short of the principles cite~-above. There is nothing t'~ 'suggest that the evidence could not have been previously obtained by reasonable diligence. While we appreciate the practical problems a union as large as this one faces, it cannot be said that the evidence was· unknown to the Union nor that it could not have obtained the evidence if it wished to rely upon the concept of practice in the Berlincl~.o_f_f___a_qd__~a__.t..o_n- case. Further, it cannot be said that even if the evidence were adduced it would be "practically conclusive" because, as raised earlier, it is difficult to imagine a situation where the Board would find a consistent practice in one region only as "conclusive" evidence of a practice which should act as an aid in intespretation of a co'llective agreement negotiated on a province-wide basis. Indeed, if the pa. tries intend to rely upon a p~actice .as evidence to assist in contract interpretation, there must be a responsibility upon the party to thoroughly research the issue and present it accurately to the Board. We would no sooner let an employer try to reli~igate an issue such as this if ~t lost the first time around and came back offering new evidence on practice that it had inadvertently not marshalled the first time. Nor would we allow any party to proceed to relitigate an issue on the basis of a newly conceived argument simply because it has sot been pressed forward earlier. 'Once a party raises an issue, such as practice, it cannot do so on a piecemeal basis aa.~ expect the Board to keep hearin9 identical cases until enough evidence is found to tip the scales. Therefore, we have concluded that the discovery of additional evidence on the issue of .practice, which was a'~point argued in the B_e_ri.i_n_~hoff and Eaton case by the Union on an identical issue, does not amount to the "exceptional circumstances" required as sec out in Blake. That, coupled with the fact that there was nothing in the Union's argument to reveal or suggest any fundamental flaw in the Berlinqhoff and Eaton decision, makes us conclude there would be no point in proceeding to a hearinG on 'the merits. 'All that proceeding on the merits.would accompl'ish would be that the Board would have the benefit of hearing witnesses for the Union advise of the facts which we have already accepted as being determinative for purposes of the preliminary issue. These conclusions 'are reinforced when we remind · ourselves of the purpose of evidence of practice. Evidence of practice is accepted as an aid to the interprecatio~ of collective agreement language where there is latent or patent ambiguity. (See John Bertram & Sons Co. Ltd. (1967) 15 L.A.C. 362 {W~iler).) The Union spec'i~_ically indicated that i c did not intend to argue estoppel here because the facts did not support an estoppel. Thus, we do not have'a si guation where the conduct of the Employer is said to found a ~oundacion for the case. Instead, we simply have the Union claiming thac the practice ought to aid in the interpretation of the collective a§reement. But, in order for that evidence to be relevent, we have. to be convinced that there is a latent or patent ambiguity in the collective agreement that that practice could help to resolve. But the decisions of ttlis Boara such as .M_c_K_!e~, B~Lr_~_i_n_g_h..o_f_[_-._~._q~___E..a_to_n_ and Sinacori, ..s_u_~?_a, confirm that not only is there no ambiguity in the relevant languag=., but also that the Union has acknowledged this earlier (see M__c.K_i~e_). Therefore, absent a situation of any ambiguity, evidence of past practice is i~relevant. Thus, the circumstances of this case amount to the Un,on asking us to review a previous decision on the basis of new evidence which it has discovered but that would not be relevant to the issue in any ev~-nt because there is no ambiguity fo~ the evidence to resolve. We reach this conclusion without.even having regard to the difficulty the Union admitted it would have in persua~]in9 us that the practice in one region of the Ministry could impact upon an interpretation of language negotiated between the Union and the Crown on a province-wide basis. Accordingly, under all the circumstances, we did not feel it would be appropriate to proceed with a hearing on the merits of the case. Accordingly, we issued an oral ruling which was base~ .on these reasons, upholding the preliminary objection an'~ dismissing these grievances. This award hereby confirms that ruling. DATED at Toronto, Ontario this 8th day of ~ebruary, ]990.