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HomeMy WebLinkAbout1989-1888.Jansson et al.91-09-20 ON~RtO EMPLOYES DE ~ cOURONNE CROWN EMPLOYEES DE L 'ON~ RIO GRIEVANCE COMMISSION DE SETTLEMENT R GLEMENT BOARD DES GRIEFS 180 OUNOA~ STREET wES~ SUITE 21~, TORONTO, ONTAR~. MSG tZ8 TELEPHONE/TELePHONE: [416j 32~I38E ~80, RUE OU~DA$ ouST, auREAU 21~, TORONTO ~ONTA~J. MSG 1Za FACSIM~LE/~L~COP~E : f~6) 326-1296 1888/89, 1905/89, 1938/89, 1940/89, 1986/89, 74/90, 80/90, 203/90, 227/90, 266/90, 278/90, 282/90, 283/90, 284/90, 285/90, 286/90, 287/90,. 288/90, 289/90,309/90, 310/90, 311/90, 312/90, 313/90, 314/90, 315/90, 316/90, 325/90, 326/90, 327/90, 342/90, 343/90, 387/90, 390/90, 405/90, 406/90, 461/90, 462/90, 463/90, 464/90, 465/90, 466/90, 467/90, 468/90, 516/90, 578/90, 956/90, 957/90, 1189/90, 1223/90, 1333/90, 56/91, (MCSS) 1904/89, 1945/89, 1964/89, 20~7/89, 132/90, 178/90, 180/90, 261/90, 268/90, 269/90, 270/90, 271/90, 272/90, 290/90, 292/90, 293/90, 317/90, 318/90, 319/90, 320/90, 321/90, 322/90, 324/90, 350/90, 388/90, 389/90, 391/90, 393/90, 394/90, 395/90, 396/90, 397/90, 398/90, 399/90, 400/90, 401/90, 402/90, 404/90, 407/90, 503/90, 510/90, 517/90, 522/90, 523/90, 544/90, 545/90, 546/90, 547/90, 54~/90, 649/90, 802/90, 827/90, 851/90, 864/90, 888/90, 913/90, 914/90, 915/90, 916/90, 917/90, 1012/90, 1013/90, 1014/90, 1015/90, 1016/90, 1017/90, 10T8/90, 1019/90, 1020/90, 1023/90, 1024/90, 1025/90, 1039/90, 1057/90, 1174/90, 1361/90, 2144/90 (MCS) IN TH~ MATTER OF AN ~RBITRATION Under THB CROWN EMPLOYEES COLLECTIVE B~%RGAINING ~CT. Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Janssqn etal) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) '(Ministry of Community & Social. Services) Employer BEFORE: M. Gorsky vice-Chairperson J. Carruthers Member D. Daugharty Member FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE C. Peter~on EMPLOYER counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING June 18, 1991 DECISION There are three hundred and eight grievors involved in this case, some of whom are employed in the Ministry of Community and Social Services and others in the Ministry of Correctional Services. The chronology leading to the filing of the grievances before us is set out in a document which the parties agreed was accurate: CHRONOLOGY December 1983 - 100 Probation Officer II's with the Ministry.'of Correctional Services filed grievances claiming they were improperly classified. August 1984 - October 21, 1985 - Hearing before the Grievance Settlement Board {Brandt Panel) concerning 6 grievances of the 100 grievances filed in December, 1983. October 1986 - Brandt Award issued. The Panel held tha~ the 6 grievors were improperly classified and issued a remedy requesting the employer to classify the employees properly. July 1987 - A new P.O. II Class Standard is created. July 29, 1987 - Civil Service Commission ap, proves the revised Class Standard for the probation officer series. January 1988 - Union agrees to revised Class Standard. March 18, 1988 - The employer issued the agreed to Class Standard for the P.O. series. Ail P.O. iI's are reclassified in accordance with the new revised Class Standard for P.O. II's. FebrDary~28, 1989 - Saltman Award is issued. The Saltman Panel issues an ~nterest Arbitration Award. concerning the wage rate of the new Class Standard for the P.O. series. The Saltman Panel decides that the increase was effective July 29, 1987 when the Civil Service Commission approved the new Class Standard. February 28, 1989 - Saltman Award - on p. 14 the Saltman Panel notes that the Union requested additional retroactivity for those employee~ whose grievances were consolidated under Angus case (Brandt Award). June 8, 1989 - Employer issues cheques to employees classified as P.O. II's back to July 29, 1987 in accordance. with the Saltman Award. November 29, 1989 - Sloan [sic] Award issued. The Sloan [sic] Panel decides that all 100 grievors, who filed their grievances, in December, 1983, ought to receive the rate of pay established by the Saltman Award retroactive to'November 13~ 1983~ which is 20 days before the earliest of the~ 100 grievances originally filed in December of 1983. February 2, 1990 - Mr. Jansson files a grievance which states: "I grieve that I was improperly classified as a Probationary [sic] Officer II in the period between November, 1983 and July, 28, 1987." We have not read all three hundred and eight of the grievances filed, however counsel have informed us that they are, in all material respects, the same in form. That is, the claim is not for re-classification, all of the Grievors having been re- 3 classified as stated in the chronology opposite the entry for March 18, 1988, but is for "full retroactivity and interest for the period November 13, 1983 to July 28, 1987," and the Grievors rely upon the decisions of the Boards chaired by Professor Brandt and by Mr. Slone referred to in the chronology. The immediate issue before this panel of the Board relates to an objection raised on behalf of the Employers: that all of the grievances are inarbitrable on the grounds of a lack of timeliness. The parties entered into negotiations with a view to arriving at an agreement to consolidate all of the three hundred and eight grievances. In addition, the parties discussed the possibility of their agreeing to have the preliminary objection with respect to timeliness decided using representative grievors, one from the Ministry of Community and Social Services and the other from the Ministry of Correctional Services, each representative grievor to serve as the representative of the employees from his or her Ministry. The ~nion, the various ministries, and the Board have, in many cases, recognized the good sense in consolidating cases or hearing them together where there were .a significant number of common facts involved in a number of grievances and where the questions of law were the same. The effect of such agreement is 'the avoidance of an unnecessary multiplicity of proceedings and, possibly, inconsistent decisions. There being but one panel of 4 the Board hearinc the issues, the facts common to all cases, once heard, would not be re-litigated. The finding on such facts would bind all of the grievances in the consolidated case, or in the cases heard together, insofar as the material facts were the same. Where the questions of law were the same, the decision in the case would be' binding on all the seperate grievances. Indeed, where the facts and issues in two seperate cases before the Board are the same (that is,. they cannot be distinguished), the jur'isprudence of the Board would require that th~'~esult in a case first aecided govern the result in a subsequent seperate case. Where consolidation takes place without an additional agreement: that the first case heard will be representative of the others that have been consolidated, so that no other grievances will be heard and that all grievors subject to the- agreement will be bound b~ the decision in the representative case, it would be open to either of the parties to demonstrate that one or more of the remaining grievances ought to be heard by the Board, as some of the facts or. questions of law there involved are suffic%ently different so as to require that the evidence with respect to it or them be heard. In such a case, the findings in the.first case heard may not be binding on the later cases, to the extent that the facts and questions of law in the cases are sufficiently different in material respects,.so that the results may be different. It is open to the parties to go beyond a mere agreement to consolidate a number of cases, before a single panel of the Board; they can also agree, as they appear to have done in the case before us, that the findings in a representative case will bind the remainder of the consolidated cases. In such case, the parties will be precluded from re-opening individual grievances bound by the agreement to employ representative cases. Thus7 a disappointed party, being dissatisfied with the decision in a representative case, cannot argue that:the represented case ought to be. permitted to proceed because the. facts or questions of law are different. This is as a result of the parties having gone beyond merely agreeing to a consolidation of the cases, or to their being heard together; they have agreed that a particular case will represent other cases so that the decision in that case will bind the represented cases and preclude the matter from being re-opened on the basis of an argument that the facts or questions of law in the representative and represented cases were not the same. After the agreement has been entered into, and acted upon, in that the hearing is convened and a representative case is commenced to be heard, a party who wishes to alter its position because it now believes the facts and questions of law in the representative and represented cases are not the same cannot resile from its prior agreement ~any more than it could after having entered into an agreement to settle a grievance, which agreement it subsequently regrets for whatever reason. 6 When the parties appeared before us, we were informed that there was a difference between them as to-whether an agreement exists whereby two representative cases would represent all of the other cases within their respective ministries, it was the position of the Employers that in the case of grievors employed in the Ministry of Community and Social Services, the qrievance of Allan Jansson would be the representative case and that in the case of g~ievors employed in the Ministry of Correctional Services, the grievance of Raymond Auger would be the representative case, It was the position of the Employers that the only cases that would be heard on the subject of timeliness- would be the representative, cases and all other cases would be bound by the decisions in those cases: employees.in the Ministry of Community and Social Services by the decision in Jansson and employees in the Ministry 0'f Correctional Services by the Auger decision. It was the position of the Union that' it had never agreed to such an arrangement whereby the Jansson and Auger grievances would be the representative cases. Rather, ail that the Union was said to have agreed to in identifying "two representative Grievors" was to specify which cases would proceed first, it being understood that it was ~nlikely that more %hen two of the cases could be heard.on the day scheduled for the hearing of the preliminary objection base~ on the timeliness issue. ? It was the alternative position of the Union that even if the agreement of the parties is as was submitted by the Employers, which it did not admit, then the Union was £ree to resile from it should it conclude that it had agreed to the representative grievances proceeding through error, and, as well, because it would be contrary to the Union's policy to bind grievors to the decision in a representative grievance without first obtaining individual consents from the remaining three hundred and six grievors. The Union also took the position that the facts in some of the cases were not the same and that it could not have been intended that representative grievances proceed in the manner suggested by the Employers. The representatives of the parties were involved in negotiating an agreement with respeet to consolidation and representation, with Linda Szorady, a Senior Personnel Administrator in charge of classification and compensation on behalf of the Ministry of Correctional Services, and her counterpart, Carol Legedza, on behalf of the Ministry of Community and Social Services, representing the Employers, and Lester Yearwood, a Grievance Officer representing the Union. The document that contains the alleged agreement of.the parties with respect to consolidation and the use of, "representative Grievors," is found in a letter of April 11, 1991 to the Registrar of the Board from Mr. Yearwood, with copies being sent to Ms. Szorady and Ms. Legedza and to the Grievors, Jansson and 8 Auger (Exhibit~ 1) which is as follows: Re: OPSEU and Ministry of Correctional Services and Ministry of Community and Social Services Probation and Parole Officer'II Classification Grievances Correspondence dated November 9, 1990 from Union Counsel, Ms. Mary Hart of the law firm Cavaluzzo, Haves & Lennon, advised you that the parties had agreed to adjourn the above noted matter. At that time, the parties were in the process of working out and consolidating a rather large number of related grievances. At this time, with o~nly a few union discrepancies to be worked out, the parties have agreed to proceed with this matter. A hearing date in this matter has been scheduled for May 30, 1991, at which time the parties hav~ agreed, to argue a preliminary objection of the time'liness of these grievances. To date, the parties are in concert with a total of 308 related grievances, 192 from the Ministry of Correctional Services and 115 from the Ministry of Community and Social Services. '~ For the purpose of proceeding on the issue of timeliness, the parties have agreed to identify two representative grievors. For the Ministry of Correctional Services, AUGER, Raymond et al, OPSEU = ~ 90A981-90A988, GSB # 1945/89 and for the Ministry of Community and Social Services', JANSSON, Allan~ OPSEU~ ~ 90A905, GSB ~ 1888/89. Thank you for your cooperation in this matter. Yours very truly, (Signed) Lester Yearwood Grievance Officer cc.: Linde Szorady, Ministry of Correctional Services Carol Legedza, Ministry of community and Social Services 9 Raymond Auger Allan Jansson Ms, Szorady, who testified on behalf of the Employers, stated that Mr. Yearwood had suggested that the timeliness issue proceed on the basis of there being two representative grievors, which suggestion was agreed to by the Employers representatives. Mr. Yearwood proposed that Mr. Auger represent grievors employed by the Ministry of Correctional Services and Mr. Jansson represent grievors employed by the Ministry of Community and Social Services. Ms. Szorady testified that the first matter discussed between the representatives of th~ pa~ties.concerned the administrative difficulty of permitting several hundred grievances relating to the same subject matter to be dealt with by different panels of the Board. She stated that considerations of time and cost were reviewed by the parties and it was agreed to consolidate the three hundred and eight grievances before a single panel of the Board. During the.discussions leading to the agreement to consolidate the three hundred and eight cases, the parties agreed that they would exchange lists of Grievors whose cases would be subject to the consolidation agreement. Ms. Szorady testified about a subsequent telephone conversation which took place in March'of 1991. Mr. Yearwood called her when she was in North Bay with respect to an unrelated matter and asked her if she had any objections to the matter proceeding using two representative Grievors: Mr. Auger for the Ministry of Correctional Services grievances and Mr. Jansson for the Ministry of community a~d Social Services grievances. Ms. Szorady asked Mr. Yearwood why those two names were chosen and he indicated that they were the first names on the respective lists of grievances for the Ministry of Correctional Services and Ministry of Community and Social Services, respectively. She testified further that the parties had agreed to the use of the representative Grievors because they concluded that the issues of fact and law were the same in all cases within each Ministry and the parties wished to avoid unnecessary expenditures of money and time, and the possibility, of inconsistent decisions, that could be the'result if no such agreement were reached. At the conclusion of the last mentioned telephone communication, Ms.Szorady asked Mr. Yearwood to confirm their agreement which he did in the form of Exhibit 1, reproduced above, which Ms. Szorady stated was an accurate reflection of their agreement. Mr. Yearwood testified on behalf of the Union. Although it was his evidence that he has had little experience with classification cases, we a~e 'satisfied that he is aware of the not infrequent practice before this Boabrd of consolidating cases and of using representative grievors in the manner above described. Mr. Yearwood was candid,in acknowledging that he never indicated to Ms. Szorady Ghat he was using the term 11~ "representative grievors" in a manner ~nconsistent with its usual meaning. There was some suggestion that the Union's position is supported by the way in which the final paragraph of Mr. Yearwood's letter refers to Mr. Auger: "AUGER, Raymond et al, OPSEU ~ 90A981 -90A988~." It was suggested that such a reference, being to eight grievances, was inconsistent with Mr. Auger being the representative of all Ministry of Correctional Services grievors. We are satisfied that it was intended that Mr. Auger be the representative grievor for that Ministry, and this conclusion is consistent with the fact.that the letter was copied to Mr. Auger as the representative Grievor for the grievors employed in the Ministry of Correctional Services, as well as to · Mr. Jansson as the representative Grievor for the grievors employed in the Ministry of Community and Social Services. There was no suggestion to the representatives of the Employers that Exhibit 1 was only a provisional agreement subject to the consent of all remaining three hundred and six grievors, We are satisfied that it was Mr. Yearwood's intention, as the Union's representative in this matter, to do what is frequently done in these kinds of cases. Even though Mr. Yearwood did not have extensive experience in the area, it was clear that he was quite familiar with the reason for the consolidation of cases and the choice of representative grievors, how the procedure was 12 administered upon such an agreement being entered into, and what the result of such decision would be when cases were heard subject to such agreement. At some time before the commencement of the hearing, the Union concluded that Messrs. Auger and Jansson ought not to be representative grievors and it now wishes to proceed with the cases of other representative grievors. In those circumstances, if we acceded to the Union's position and permitted it to resile from its agreement, in the absence of a further agreement as to the hearing of representative grievances, the grievances heard would not be representative ones and the result in the first case heard f~om each.MiDistry would not, automatically, bind all the other grievors. This would not mean that each of the remaining three hundred and six cases could then be heard without a consideration of what had been decided in the first cases heard from each Ministry, as the cases would still be consolidated. As was stated above, where cases are consolidated or heard together, but without an agreement that there will be representative cases, the parties are not afforded up to three hundred and eight kicks at the can should they be dissatisfied with a p~ior decision. Where the facts are in all material respects the same, and where the questions of law are the same, the decision in a prior case will have the same effect as if the parties had agreed to representative cases which would bind all other cases agreed to ~be consolidated. 13 The difference between consolidation of cases with and without the designation of representative cases is that in the latter situation it may be possible to show that some of the consolidated cases have significantly different issues of fact and law and, therefore, the evidence with respect to those facts has to be heard in order to be able to.render a decision. In the former case, the parties have by their agreement deemed the issues of fact and law in the representative case to be the same as that in the represented cases. Once the hearing of a representative case has commenced it is too late for one of the parties to withdraw from its agreement and attempt to proceed aK if it had not agreed to the hearing of a representative case which would bind the represented cases. In the case before us, the Union, along with other arguments, submitted that as it withdrew its agreement with respect to employing representative cases prior to the commencement of the hearing, it was no longer bound by its undertaking. The Employer tal<es the position that to allow the Union to withdraw from its agreement would not only be unfair because of the time expended in preparing to deal With the Auger and Jansson cases as representative cases for the grievors employed in their respective Ministries, but because of the detrimental impact on labour relations in the public service if such agreements, freely 14 arrived at, could be withdrawn on the assertion tha.t~one of the parties subsequently concluded that it had made a mistake. If the parties are not bound by their agreements relating to matters of practice and'procedure, then a necessary element of trust will be removed from their relationship. We are of the view that if the Union's position prevailsTthere is a very real potential for the harm envisaged by the Employer. We are satisfied that Mr. Yearwood intended what he wrote: that the "three hundred and eight related grievances" be consolidated and that: "for the purposes of proceeding on the issue of timeliness, the parties have agreed to identify two representative grievors." In so agreeing, he intended to have the decisions in the two representative grievances bind tie remain'lng three hundred and Six grievors, with the Ministry of Correctional Services grievors being bound by the decision in the Auger case and with the Ministry of Community and Social ServicEs.. grievors being bound by the decision in the Jansson case. The Employers argued at the hearing, and in. its subsequent submissions requested by t'he Chairperson, that the situation is not. unlike the case of the settlement of a grievance. Once the Board concludes hhat a substantive issue has been settled, one of the parties cannot resurrect a grievance because it now views the matter in a differen6 light and regrets its earlier agreement. This result was said to apply even if the party, subsequent to 15 the.entering into of the settlement, discovered that it was mistaken either as to the facts or the law. Here, the Board has been invited to find, and has found, that there was an agreement as submitted by the Empl6yers. That, it is submitted by counsel for the Employers, ought to end the matter and the Union should be required to proceed with the cases of the representative grievors; the decision in each representative case to bind the grievors within the same Ministry. In the first example, being the alleged settlement of a grievance, there is no difference between the parties to be heard save that relating to the issue of whether a settlement had been arrived at. Once it is decided that a 'settlement had been freely arrived at, there would be no further difference between the parties, and the Board would have no authority to resurrect the original grievance. In the case before us, the situation, is different in that the issue of whether the grievances are timely remains whatever our decision on the question of whether there has been an agreement to proceed with two representative grievances. The issue here is whether the Board is bound to honour, in all cases, an agreement freely arrived at between the parties relating to a matter of practice and procedure. As stated above, if we uphold the right of a party to withdraw from agreements on matters of practice and procedure, the potential for harm, not only to the parties in this case, but 16 to their ongoing relationship, is great. There may be occasions when there is only an apparent agreement between the parties on a matter of practice and procedure; that is, the agreement was entered into on the basis of a mistaken belief with respect to the facts which the Other party was aware of, This is not the case here. Although it was argued that Mr. Yearwood could not have intended the result argued for by the Employers because, as was acknowledged by Ms. Szorady, he appeared to take two names from the top of the list without any apparent forethought as to whether they were representative grievors for' the groups ~.hey were intended to represent, Ms. Szorady's uncontested evidence was that Mr. Yearwood and she b6th regarded the facts in the three hundred and eight grievances as being so uniform and the. issues of law to be the same, so .as to make any of the cases representative of the other cases arising in the same Ministry. This conclusion is supported by the acknowledgement contained in the fourth paragraph of the first page of the written submissions of the Union, dated June 27, 1991, submitted to the Board after the hearing. The Union did not deny that the parties agreed that the two Grievors, Jansson and Auger represented "the fact situation in all 308 Grievances"; what it'now submits is' that it wishes to withdraw from this agreement because, subsequent to entering into the agreement, it concluded that it was mistaken, and the "agreement does not accurately reflect the 308 grievors, 17 since there are different facts in some cases," and that "for the Board to enter into this inaccuracy [sic] will would [sic] not allow for a proper adjudication of the statutory rights of many of the grievors." The Union apparently now wishes to proceed with cases other than those of Mr. Jansson and Mr. Auger as the representative cases. If the Union is unable to obtain agreement from the Employers that those cases would now represent the remaining cases, then the matter would proceed a~ above described: as a case where a number of grievances were, consolidated without a further agreement as to which cases would represent the others. While facts found in one case would bind all other like cases; if it could be shown that the facts in some cases are sufficiently different.from those found in the earlier cases decided, the evidence in those subsequent cases would have to be heard and a decision rendered which might not be the same as in cases heard earlier under the consolidation agreement. As noted above, counsel for the Employers made additional representations in support of their Positions, submitting to the Chairperson, on June'24, i991, certain icases being relied upon. In the letter, counsel stated: ... please find enclosed copies of four decisions which touch upon the preliminary issue before the panel concerning the Board's jurisdiction. Although none of the cases are directly on point, they do establish that an a~bitration board such as the Grievance Settlement Board has the jurisdiction Go give effect to a settlement or arrangements similar to the one in ~his case. The cases submitted by counsel for the Employers all deal with the subject of whether a paJty to a settlement of substantive issues in a grievance can further pursue the matter at arbitration notwithstanding the settlement. Counsel for the Employers endeavoured to persuade us that there is a sufficient" analogy between the settlement of the grievance, or an issue forming part of the grievance, and the settlement of a matter of practice and pro'cedure, so that the well-established law in the first line of cases should be applied in the seco'nd situation. As'far as we are able to determine, there are no cases deali~ with the jurisdiction of a board of arbitration to enforcea an agreement between' ~arties Jettling matters of practice and procedure. In Jansen 888'/89 (Watters), the only issue was whether a representative of the employer had made a aounter-offer of settlement which was later accepted by the union. The board considered that if a settlement had been effected by the parties, the Board would lack jurisdiction to proceed with a hearinq on the merits. · Counsel for the employer, in Jansen, submitted that the Board lacked jurisdiction to consider whether a settlement had been concluded. Counsel for the employer in the Jansen case and 19 the representative of the Union in this case argued that our jurisdiction under the Crown Employees Collective Bargaining Act R.S.O. 1980, chapter 108, as amended, did not extend to the interpretation of a memorandum of settlement. In the Jansen case, the Board concluded that it possessed jurisdiction to determine whether the parties had effected a settlement of the issues in dispute. The Board distinguished the case of Sim and Bain, 1387,1388/86 (Draper), which had been relied upon by counsel for the employer in the Jansen case. The Board in Sim and Bain were asked by both parties to interpret terms of settlement which had been reduced to written form. Referring to the latter case, the Board in Jansen stated at p.2: The Board concluded that it lacked the necessary authority to embark on an interpretation of the agreement. In this instance, we are being asked a more fundamental question, this being, whether a settlement actually exists between these parties. In our minds, this is a significantly different issue. Indeed, the Board considers that this case is much closer to the factual situation found in Cover, 256/90 (Kennedy) whiGh was relied on by the Union. It is apparent from a reading of the award that the Board there was prepared to interpret Written communications in an effort to find whether a settlement had been reached. After examining these communications, it held that a settlement did exist. The Board, therefore, concluded that it would be improper to entertain the merits of the dispute, in this regard, the award states at page four (4): "There are numerous arbitral authorities to the effect that a grievance that is settled, withdrawn or abandoned cannot be the subject matter of a subsequent submission to arbitration." We are inclined to adopt an ~pproach similar to that employed in Cover. More specifically, we conclude that our jurisdiction to proceed is found within section 19 (1} of the Crown Employees Collective Bargaining Act. Under that section, the Board is empowered to determine, inter alia, whether a matter is arbitrable. In our assessment, it is necessary for us to examine the facts in order to properly consider whether these parties arrived at a binding agreement following the pre-hearing meeting. If this question were to be answered in the affirmative,, this Board would be deprived of the right to hear th~ grievance. Conversely, if the parties were not ad idem, the grievance could go forward. The Employer would then be required to commence its case and to show just cause for the.discipline. A contrary finding would, in our judgement, undermine the sanctity of settlements freely concluded as it would permit parties to withdraw from such agreements with impunity. For reasons which are obvious, that result would not provide for good labour relations. We are consequently disinclined to adopt reasoning which would have that effect. In Jansen, the Board found.its authority, in section 19(1) of the Crown Employees Collective Bargaining Act, which embowers it to determine' whether a matter is arbitrable. There is a considerable difference between the settlement of a substantive issue for decision under the grievance and the settlement of a matter of practice and procedure which has no effect on the ultimate resolution of any substantive issue, although it would, if honoured, affect how the case would be heard and would have some effect on how much evidence would be heard. The cases referred to dealin~g with settlement are uniformly concerned with an agreement to settle a grievance that has been' filed, which settlement agree.mCnt is 'binding if entered into by the parties throUgh their' designated officers, with no ratification being necessary. The cases do not discuss the effect of settlement in the sa~e terms where what has been 21 settled is not the gievance itself, or a substantive issue included in it, but a matter relating to practice and procedure at the arbitration stage: see Continental Can Co. of Canada Ltd. (1975), 10 L.A.C. (2d) 35 (Weatherill), at p.37, where the rule with respect to the binding nature of settlements of grievances is discussed. At pp.37-8 of the latter case, the board stated: ... the union has as agent of t~e employees concerned, the right to process grievances on behalf of its members and in so doing, to meet with the employer in order to resolve the differences which arise as a result of the grievance and may dispose of such grievances on behalf of the grievors. It is recognized that the union as party to the collective agreement, is in control of this process and has the carriage of the grievance throughout. During the grievance procedure then it is fully open to the parties to the collective agreement to settle a grievance between them without resort to arbitration. (Quoting from Automatic Sprinkler Lt~. (May 1, 1974) unreported (H.D. Brown) at pp.5-6.) In Air Canada (1980), 27 L.A.C. (2d) 405 (Weatherii1), dealing with the arbitrability of a grievance that had been settled, the arbitrator stated, at p.408, that: "Parties may settle some of the issues in a grievance leaving others to be determined at arbitration, so too, in the grievance procedure set out in this collective agreement, some issues in a grievance may be decided leaving others to be arbitrated." What is there being discussed is the arbitration of issues in the grievance which are substantive in nature and nothing in the case concerns 22 settlements relating to adjectival matters. In Stelco Inc% (1989), 5 L.A.C. (4th) 284 (Haefling), the authority given to the union to settle disputes is referable to the settlement of issues raised by the grievance. The thrust of the decision relates to the resolution of earlier grievances and not to the procedure whereby those grievances will be adjudicated. In the Stelco case, at pp.288, the arbitrator referred' to: ... the majority view among arbitrators, and the approach most commonly taken in this kind of case ... that with grievances which have been finally dealt with prior to arbitration,.whether they are settled, ~ithdrawn or abandoned, there is an end to the matter. Once finally dealt with in such a fashion, the same grievance may not be brought, back to arbitration: see generally Brown and Beatty. Canadian Labour Arbitration, 2d Ed, (1984) para. 2:3230, p.105 and Cases referred to there. What is being referred to is a settlement, withdrawal or abandonment of some or all of the issues involved in a grievance but not of'a position relating to practice or procedure. What is being discussed is the intention of the parties t'hat disputes be resolved where possible without resort to arbitration: "If that were not so, it would defeat the entire purpose of the grievance 'process. There would never be an end, and no conclusion would ever be reached if attempts could be made to undo a negotiated 'and concluded settlemen.t. There could never be any certainty that a final' disposition bad occurred." See Stelco Inc. at p.290. It is part of the statutory obligation of a board of arbitration 23 to determine whether a grievance has been settled, but it is not part of its 3urisdiction to rule on settlements unrelated to the settlement of the substantive elements of the grievance. We cannot read the provisions of section 20(8) of the Crown Employees Collective Bargaining Act, which provides that the Board "shall determine its own practice and procedure" as contemplating an adjudication with respect to an agreement entered into by the parties relating to practice and procedure. We have not been asked, in this case, to do anything more than determine if there has been an agreement between the parties establishing representative cases, and, if there is such an agreement, to enforce it. We have not been asked, apart from such agreement, to order that the parties choose representative cases to bind the remaining cases. Apart from an agreement to employ representative cases which neither party wished to withdraw from~ it is unlikely that the Board would or could order the parties to agree to a representative case which would bind other grievances unless they were in agreement that all cases had the same issues of fact and law and that the facts were identical in all cases. As will be shown below, where consolidation is agreed to the result may be the same as if representative cases were heard. If we regarded the Board as having jurisdiction to enforce an 9greement of the parties with respect to practice and procedure, we would have done so in this case. The agreement in 24 this case was entered into by representatives of tke parties because they accei~ted that the two representative cases, did, indeed, represent all three hundred and eight grievances for the purposes of the preliminary objection. The position of the Union is that is could arbitrarily withdraw its agreement because the Board has a statutory duty which is limited to the adjudication of rights under the collec, tive agreement, the Crown Employees Collective Bargaining Act and, in' this respect, it has jurisdiction to enforce (1) the collective agreement, (2) settlements, (3) withdrawals and (4) statutory rights. The agreement before us being none of those things referred to, we are said to lack jurisdiction. The Union added that the document (E×~ibit 1) could not be construed as a settlement as the Employer was not a signatory to. it. If we had jurisdiction to deal with the agreemeQt, it would not matter that the Employer was not a signatory to it, any mcre than is it necessary for the E~p~oyer to be signatory to the settlement or withdrawal of a gri%vance. All that is necessary is that the Employer was represented by someone with apparent authority. The basis for our conclusion that this is not a case such as where ~here is an allegation that a grievance has been settled, where,the settlement can be enforced by the Board~ is as a result of the nature of the Board's jurisdiction under s. 19(1) of the 25 Crown Employees Collective Bargaining Act. Under tkat subsection, the Board has jurisdiction to declare a grievance inarbitrable. Whether the parties have been able "to effect a settlament of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement" goes to the question of whether the "matter is arbitrable." The settlement of a matter of practice and procedure is not the kind of settlement envisaged in s. 19(1) and, thus, the jurisdiction in the Board in the case of a settlement there described in not present in a case such as the one before us. One of the other arguments made by the Union was that the Board, pursuant to s. 11(11) of the Crown Employees Collective B~rgainin~ Act, has the power to ekclude the agreement and that it should do so because the document is "inaccurate." Again, if' we had jurisdiction to treat the agreement as we could in the case of a settlement of a grievance, it would not matter whether a party entered into it as a result of a misa.prehension of the facts or the law, as long as the other party was not responsible for such misaprehension. We believe that what the representative of the Union means is not that Exhibit 1 is inaccurate but that the two "representative" grievances differ in some way, factually, from certain of ~he remaining grievances. At page 2 of its written submissions, the Union states, in the fourth full paragraph, that the Board should: "hear evidence 26 regarding the improper classification of the Grievors, whether or not the parties are able to identify one or more representative Grievors." As we understand the position of the parties, this submission ca,not be correct. The issue of improper classification, we were told, is no longer before us. The remaining issue relates to a claim for retroactive payment, and it is only evidence relating to the timeliness of the grievances that is before us at this time. We are satisfied that there may be little difference in the way in which the eases are heard and their effect when compared- to the way they would be heard and their effect if the Union had not withdrawn its agreement to.utilize two representative cases~ In order to explain why the denial of the Employers' application to enforce the representation agreement is not likely to effect a result different from the one that would have obtained if the agreement 5ad been honoured, it is necessary to discuss the effect of what the parties have agreed to: that the three hundred and eight cases be consolidated. The term "consolidation" has been frequently applied in cases before the Board, especially classification cases. Where the parties have either agreed to consolidation, or where consolidation has been ordered, it.has been. unnecessary to explain exactly what was meant by the term, and this failure does not appear to have created difficulties. The term consolidation 27 is taken from the practice that exists under the rules of practice in conventional civil litigation before the courts. Ontario Rule 6 gives the court power to order consolidation of actions. This w&ll usually be done when the court decides that joinder would have been proper. Where more than one action in a civil case is consolidated, the consolidated actions are converted into one action and proceed, thereafter, as if the several claims had been brought as a single claim: that is, as if there had been initial joinder. In court proceedings this means that there would be only one set of pleadings, one set of discoveries, one judgement and one bill of costs. In proceedings before the Board the concept of consolidation requires some adaptation in order tha~ it can be made to apply, there beiqg no pleadings, discoveries etc. There is another concept which has almost the same effect as consolidation but which fits more comfortably into the structure of hearings before the Board. That is the concept whereby actions are tried together in such manner as the court directs. In such case, the trial judge will order that t'he evidence in one action is to be taken as evidence in the other action or actions. The purpose of having actions tried together is the same as in consolidation: the saving of time, expense and avoidance of inconsistent decisions. The difference between consolidation and an order directing the trial of actionsltogether is largely technical. 28 An order directing consolidation or the trial together of. two or more proceedings will be made where they have common questions of fact or law, where the relief claimed arises out of the same transaction or occurrence or series of transactions or occurrences, or for other sufficient reasons. It appears that in the case before us the only reason why the Union withdrew its agreement to proceed with two representative cases is because~it now concludes that some of the eases may not have facts in common. To the extent that they do, the Board will not permit the adducing of evidence relating to what are common facts to more than one case.. To the extent that the cases have material-~ facts which are in common, there will be one decision covering all of the cases or, more likely, one decision covering cases in the Ministry of Correctional Services and one decision, coverihg the cases in. the Ministry of Community and Social Services. As neither of the parties is in a position to dictate to the other that one case represent all of the cases in each Ministry, the Board will hear the cases originally agreed to as 'representative cases, but now only representing the first cases to be heard from each Ministry. As indicated, to the extent that subsequent cases cannot be demonstrated to possess different material facts, .the Board will not permit evidence to be adduced with respect to the facts in those cases. Orders for consolidation and the trigt of actions together 29 are made by the courts, in part, to avoid what would amount to an abuse of process. Decisions with respect to common questions of fact and law should not be subject to re-litigation. The same rationale applies where there is the counterpart of those proceedings before the Board. It appears that the same essential question will be resolved in ail of the grievances: are the grievances timely. It appears that the same question of law is applicable to all of the grievances and that is why the parties agreed to consolidation in the first place. ' In order that the hearing of all of the three hundred and eight cases together can achieve the purpose of disposing of common questions of fact and law without the necessity of hearing up to three hundred and eight separate cases, the Union shall, within three weeks from the date of this decision, furnish counsel for the Employers with a list of those grievances which it believes have common questions of fact, setting out what it believes the common facts are. The Employer, within two weeks of the receipt of the aforementioned document, will indicate how much of the statement of the Union is agreed to and where agreement is not forthcoming, what it believes are the common facts. It may be that the Union will be submitting that there are 3O common fadts' to certain groupings of~ grievances~ and, if that is so, the direction of the Board will allow for a statement of facts common to groupings of grievances. .What this Board is endeavouring to do is avoid having the common questions of fact and law ~ei~g considered more than once, unless the facts in subsequent cases are really different. Once it is established which cases have facts in common, the determination of the Board in the first case will bind all other Nike cases. In this way, the result, will be th~ same as if the parties had agreed to a representative case. in order to avoid the evil which the procedure chosen was intended to address, the first cases heard from.each Ministry will be decided before proceeding With any other cases allegedly having different material facts. If the Board concludes that the material facts are not different, then the subsequent cases heard will be subject to the same result as in the prior cases decided. The Union did not object to the cases of Jansson and Auger proceeding first, and there is no reason, under our order, why this cannot continue to be the case and w~ will so inform the Registrar. In summary: 1. The Board does not have jurisdiction to order the 31 enforcement of the above agreement between the parties relating to the naming of two representative cases. The cases submitted by counsel for the Employers, dealing with the settlement of all or some of the substantive issues in a grievance, which the Board may enforce, have a significant difference from the case before us. The difference between the parties relating to the enforcememt of their agreement to proceed by first deciding two representative cases is not within our jurisdiction by virtue of s. 19(1) of the Crown Employees Collective Bargaining Act. Section 19(1> o~ that Act requires the Board to decide "the matter" representing "differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable." The authority of the Board arises only "in the event the parties are unable to effect a settlement" of the differences referred to. The settlement:of a substantive issue represents a settlement as is envisaged under section 19(1) of the Act; a settlement between them as to how matters of practice and procedure will be dealt with at the hearing does not fall within the matter to be decided under that subsection. 2. Notwithstanding our inability to enforce the agreement relating to the hearing of two'representative casesf one from each Ministry, we have found that much the same effec5 may be achieved as a result of the cases being heard together by one panel of the~Board. T0 the extent that a number of cases have conunon questions of fact and law, which is very likely the case here, the decision in the first case heard from each Ministry will effectively dispose of many, and perhaps all, other cases. As'noted above, the deci~ion in t~'~ first case heard from each Ministry will be del'ivered before any'further cases are heard. 3. The Union has'~greed that the Jansson and Auger cases will be heard f{rst, and the Registrar will be requested to ~stablish dates for the hearing of those two cases. 4. The parties will comply with our directions, above set out, with a view to achieving the goals of consolidation.' We have confidence that the good sense that has characterized the relationship between the parties, in the past, when simi!air agreements have been entered into, will .prevail. Dated at Toronto this 20th day of september, lqql. M. Gors~y, Vice-Ct~airperson "l Partfal [y O~ssent" (partial dissever' at~ached) J. Carruthers~ Member ~'1 Dissent,' (without written reason) D. Daughart!f, Member August 21, 1991 PARTIAL DISSENT Professor M. R. Gorsky 90 Kippend~vie Avenue, Unit 3, Toronto, Ontario M4L 3R5. Dear Mr. Gorsky: RE: GRIEVANCE OF JANSEN ET AL GSB # 0056/91 - 188/89, 1905/89 ET AL I agree with the award in this case, in that this Board has no jurisdiction to require the parties to proceed as per the letter, dated April 11, 1991, but I must disagree with them ordering the parties t° 'proceed with the named grievors first. If indeed we do not have the ability to enforce the "agreement- between the parties, then surely we cannot then go ahead and tell the parties who must proceed first. The. Union objected to the letter in its' entirety, and therefore we should not impose part of that letter, after finding this Board is withoUt jurisdiction regarding that same letter. The practices and procedures of the G.S.B. are sound ones and make good sense, but to force the Union to proceed with the named grievors will only invite the Union to have more hearings, since it has said that these two are not representative of the other grievors. · -~;'~' Yours Truly,