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HomeMy WebLinkAbout2000-1220.Richard.05-07-12 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2000-1220 UNION# 2000-0154-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (RIchard) Union - and - The Crown In RIght of Ontano (Ontano Clean Water Agency) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb Barnster and SOlICItor FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING June 23 & 24 2005 2 DeCISIon The Employer has moved to stnke eVIdence presented to date and to bar the mtroductIOn of further eVIdence on matters prevIOusly gneved by the gnevor Doug RIchard, whIch were resolved, eIther by wIthdrawal of the gnevances or a memorandum of settlement. The Umon opposes that motIOn. Facts The gnevance before me was filed on November 9 2000 It alleges, m pertment part, that "the Employer allowed a pOIsoned work envIronment to eXIst and allowed harassment and mtImIdatIOn to take place whIch was dIrected at me" m vIOlatIOn of the collectIve agreement and the Ontano Human Rights Code As set forth m the Umon's partIculars, the Umon's posItIOn IS as follows In general terms, It IS the gnevor's posItIOn that between February 1998 and mId 2000 tensIOn developed between the gnevor and management as a result of the gnevor's attempts to address a senes of unsafe practIces that were allowed to occur due to mIsmanagement of the Amhertsburg Water Treatment Plant. The gnevor began to expenence mcreased stress and anxIety and was fearful that hIS employment would be termmated If he spoke out. He was also fearful that he would be held lIable for adverse reactIOn to unsafe water The sItuatIOn became mcreasmgly dIfficult for the gnevor when Tom Graham was hIred as Graham harassed the gnevor whIch caused the gnevor mcreased stress and anxIety Although Graham was removed from the workplace and the gnevor obtamed medIcal treatment he became III and unable to work as a result of the harassment he expenenced ThIS statement was followed by thIrty-three specIfics "that may be relIed upon to establIsh the above " The first ten pertam to the alleged unsafe practIces between 1998 and mId-2000 whIch the Employer contends were raised m earlIer gnevances The first ten partIculars are as follows, 3 1 Wed. February 4 1998 The Amherstburg Water Treatment Plant ("A'burg WTP") Manager Chuck Fiddy ordered the day ShIft operator Craig Hosburgh, to leave the plant unattended for the entIre 12 hour mght ShIft In contraventIOn of "The Safe DnnkIng Water Act" (SDW A) C 32 S 20(1) ThIS was admItted by Mr FIddy to be an expenment related to cost cuttIng ImtIatIves by the ProvIncIal Government of the day 2 Thurs February 5 1998 Plant operator Frank Nissen notIfied the MedIcal Officer of Health, Dr Allan HeImann that plant operatIOns had been compromIsed due to the plant havIng been left unmanned and there were concerns over possIble CryptospondlUm contamInatIOn. 3 Fn February 6 1998 Dr HeImann ordered that the contents of the A'burg WTP reservOIr be emptIed because of the possIbIlIty of CryptospondlUm contamInatIOn. 4 Feb 25 1998 Plant operator Frank Nissen receIved a letter of dIscIplIne for callIng the MedIcal Officer of Health on Feb 5 1998 from Hub Manager Gaston BUIllon. Mr Nissen was threatened wIth dIsmIssal The gnevor was made aware of the letter gIven to Nissen whIch led hIm to belIeve that any attempt to contact the MedIcal Officer of Health regardIng a possIble publIc health threat (as outlIned In the SWDA) would result In possIble dIsmIssal 5 The IncIdents whIch occurred on Feb 4 thru Feb 25 21998 had a profound effect on the gnevor as an operator as It was clear In hIS mInd that he was no longer an "Operator In Charge" as outlIned In the SDW A but was stIll legally lIable for a potentIal dIsaster 6 Mon. Jan. 17 2000 The gnevor reported for work at 2000 Hrs The part-tIme operator on the day ShIft who was Inexpenenced and unlIcensed, had allowed approx. 750000 gal of non-dIsInfected water to enter the plant reservOIr The gnevor took ImmedIate actIOn to attempt to resolve the problem, IncludIng shuttIng down the plant. He dId not call the MedIcal Officer of Health because of the threat of dIsmIssal He dId however Inform hIS ImmedIate supervIsor Chuck FIddy and advIsed hIm to call the MedIcal Officer of Health. He refused to do thIS and ordered the gnevor to resume pumpIng the water In the system ThIS order was refused and an attempt was made to contact Hub Manger Gaston BOUIllon who was "unavaIlable" He finally reached Hub Asst. Mgr Gary Dunmore who assured hIm that the water was safe due to the dIlutIOn factor (contraventIOn of the SDW A C 32 S 20 (3) The gnevor advIsed Mr Dunmore to call the MedIcal officer of Health whIch he refused to do Mr Dunmore then ordered the gnevor to resume pumpIng water Into the system In spIte of the fact that each gallon of water contaIned approx. 34000 E-ColI bactena (Avg. # of bactena calculated from plant test results pnor to and after thIS IncIdent (All recorded In Plant Log) 7 Jan. 18 19 20 2000 The mandatory weekly bactena samples from the dIstnbutIOn system were not taken, neIther were any reservOIr bactena samples taken In response to the Jan. 18 2000 IncIdent. Operator Frank Nissen was ordered by Plant Manager Chuck Fiddy not to sample untIl the folloWIng week and to collect two sets of samples at that tIme In order to fulfill the mandatory plant samplIng quota. (In contraventIOn of the SDWA C 32 S 11 (4) NOTE ThIS course of actIOn would allow the system to flush out any bactena whIch may have entered the system as a result of the IncIdent on Jan. 17 2000 (All recorded In the Plant Log) 4 8 May 18 2000 Another senes of mIstakes were made by the Part Time operator whIch compromIsed the safety of the water supply He was dIscovered by Operator Frank Nissen workIng on hIS LandscapIng BusIness truck In the plant garage Many of the plant functIOns were out of adJustment as well as the all Important chlonne dISInfectIOn system (AgaIn In contraventIOn of the SDW A) 9 The events In Walkerton, Ontano Impacted the gnevor as he became aware of a notIceable change of attItude by the local OCW A managers They became defensIve and menaCIng. 10 June 29 2000 Plant Inspected by Min. of EnvIronment. At the heanng, on examInatIOn-In-chIef, the gnevor testIfied as to the matters set out In the first mne partIculars He further testIfied, generally about the declIne In staffing and the qualIficatIOns of one of the part-tIme operators It IS the Employer's submIssIOn that the Issues raised In these ten partIculars were prevIOusly gneved - the alleged unsafe practIces, Inadequate staffing, Inadequately traIned operators, vIOlatIOns of regulatIOns and placIng the commumty at nsk - and resolved, eIther by wIthdrawIng the gnevances or through a memorandum of settlement. The gnevances to whIch the Employer refers are as follows 1 January 19,2000 - Group Grievance The gnevance alleges FaIlure to post and fill vacanCIes at the Amherstburg Area Water Treatment Plant under ArtIcle 6 1 of the collectIve agreement. Operators and MaIntenance are beIng expected to carry the load of a spare operators not replaced SInce Aug. 1996 Also as of Nov 1/99 a maIntenance mechamc resIgned and was not replaced. Without these posItIOns our proJects cannot be properly operated or maIntaIned due to staff shortage RegulatIOn 435-93 of Ontano Water Resources Act no followed and maIntenance IS severely lackIng. The remedy sought was "that these vacanCIes be posted, competItIOn held and filled AS AP UntIl such tIme as they are filled overtIme allowed to properly operate and maIntaIn our proJ ects " 5 On June 21 2001 the gnevors, IncludIng Doug RIchard, submItted a "gnevance wIthdrawal form" concermng thIS gnevance, whIch Instructed OPSEU to wIthdraw the gnevance and "take no further actIOn In thIS matter" 2. January 24, 2000 - Grievance of Doug Richard The gnevance states I gneve that I was ordered to perform dutIes assocIated wIth the mght ShIft IncludIng back[ ] filters, collectIng plant data and completIng WHMIS sheet and computer entnes ChangIng [ ] and [ ] metal charts and any other dutIes whIch I observed that had not been completed by the operator responsIble for the ShIft pnor to mIne The IndIVIdual that operated the plant pnor to my ShIft does not possess the reqUIred level of certIficatIOn and has not been properly traIned. I gneve that under ArtIcle 9 1 of the collectIve agreement. The remedy requested was for "OCW A ImmedIately provIde a competent Class IV Level certIfied operator to cover all sIck/vacatIOn or spare days so that the remaInder of the operators do not have to carry the extra work load on theIr own respectIve ShIfts of an operator who IS unqualIfied to operate thIS plant." ThIS gnevance was wIthdrawn by the gnevor through a wIthdrawal form, on June 21 2001 3 January 31, 2000 - Group Grievance The gnevance states Under ArtIcle 9 1 of the collectIve agreement OCW A has not provIded enough traInIng to a contract employee ThIS operator has obtaIned an "oper In traInIng" lIcense but very lIttle operatIOnal safety traInIng. He IS not qualIfied to be operator wIth "DIrect ResponsIble Charge" at a Class 4 Water Treatment Plant. His safety as well as Operators that follow hIS ShIft are at nsk along wIth our commumty's water supply and the Treatment Plant. 6 The remedy requested was for "thIS procedure of allowIng an OIT to operator our Class 4 W T Plant to stop ImmedIately Operators wIth proper Class 4 lIcenses are to operate thIS plant, If necessary to obtaIn enough operators at the premIUm rate Refer to Ontano Water Res Act. Reg. 435/93 " ThIS gnevance was also wIthdrawn, through a wIthdrawal form, on June 21 2001 4 January 19,2000 - Group Grievance. The gnevance alleges that "overtIme work IS not beIng fairly dIstnbuted or compensated for at the Amherstburg W T.P among qualIfied operators " It cItes to ArtIcle 31 3 (overtIme) and ArtIcle 10 par 3 It further states "Also note that RegulatIOn 435/93 of the Ontano Water Resources Act IS not followed as Inadequately certIfied operators have been operatIng more than the regulatIOn allows" The remedy sought was that the qualIfied operators "be gIven the first opportumty to work any overtIme at the Amherstburg W T.P wIth compensatIOn to be at the premIUm rate Also that Reg. 435/93 be followed." Two other sImIlar overtIme gnevances were filed by IndIVIdual operators, one on January 19 2000 and one on March 16 2000 The three overtIme gnevances were set for medIatIOn on August 28 2002 The folloWIng day a Memorandum of Settlement was sIgned. It provIded for a "full and final settlement of the above noted gnevances filed by the gnevors on a wIthout preJudIce basIs, and wIth no admIssIOn 7 of lIabIlIty" Further the partIes agreed that "thIS settlement serves as a final wIthdrawal of the above-noted gnevances There was no eVIdence presented concermng the wIthdrawal of the gnevances or the memorandum of settlement. Only the documents were Introduced at the heanng. Decision The Employer seeks an order prohIbItIng the Umon from leadIng further eVIdence and to stnke eVIdence that relates to the wIthdrawn and settled gnevances SpecIfically It seeks to stnke the gnevor's eVIdence of events from February 1998 to mId-2000 concermng the alleged unsafe water practIces, staffing levels, operator traInIng and alleged vIOlatIOns of the regulatIOns and nsk to the commumty In ItS submIssIOn, these matters were raised In the earlIer gnevances and the gnevances were eIther wIthdrawn or settled. It submIts that although the Umon could have wIthdrawn them on a "wIthout preJudIce" basIs, It dId not do so leadIng the Employer to belIeve that the matters raised had been resolved. In ItS submIssIOn, It would be unfair to allow the Umon to re-raIse these Issues In support of the gnevor's current gnevance In support of ItS posItIOn, the Employer cItes to Re Weston Bakeries Ltd and Milk and Bread Drivers, Dimy Employees Caterers and Allied Employees, Local 647 (Giddy) (1990) 76 LAC (4th) 258 (SImmons), and cases cIted thereIn, IncludIng Re Canadian Union of Public Employees, Local 207 and City of Sudbury(1965), 15 LAC 403 (RevIlle) Saint- Gobain Abrasives and c.E.P Local 12 (Gut/and) (2003), 120 LAC (4th) 73 (Burkett) Re Hotel-Dieu Grace Hospital and ONA. (1997), 62 LAC (4th) 164 (M. PIcher) Re OPSEU (Wairich) and Ministry of Labour (2005), GSB No 2003-0187(Watters) OPSEU (Dale et al.) and Ministry of Health and Long- Term Care (2002) GSB No 0783/00 et al (Abramsky) 8 The legal effect of a settlement, wIthdrawal or abandonment of a gnevance on a subsequent gnevance has been the subJect of much lItIgatIOn and comment. In thIS case the Employer relIes on the wIthdrawal of the January 19 January 24 and January 3 1 2000 gnevances and the settlement of the overtIme gnevance dated January 19 2000 AnalytIcally dIfferent consIderatIOns apply when a matter IS settled versus wIthdrawn or abandoned, and I wIll address them separately 1 The Withdrawal of the January 2000 grievances. The startIng pOInt regardIng the legal effect of the wIthdrawal of a gnevance IS Re Canadian Union of Public Employees Local 207 and City of Sudbury supra In that case, the board held at pp 403-404 as follows (cItatIOns omItted) The authontIes are legIOn that a board of arbItratIOn has no JunsdIctIOn to consIder or alternatIvely that the gnevor and hIS or her umon representatIves are barred and estopped from proceSSIng a gnevance whIch IS IdentIcal to a former gnevance filed by the gnevor and eIther wIthdrawn, abandoned or settled, or determIned by a board of arbItratIOn. Some of these cases proceed on the basIs of estoppel and others on the pnncIple of res JudIcata, but regardless of the approach taken, the authontIes are overwhelmIng that a board of arbItratIOn has no JunsdIctIOn to entertaIn such a second gnevance There IS also substantIal authonty to support the proposItIOn that an arbItratIOn board has no JunsdIctIOn to determIne a gnevance whIch, though not IdentIcal In wordIng and form to a former gnevance lodged by the same gnevor IS IdentIcal In substance The ratIOnale behInd thIS "arbItral rule of abandonment" IS the Importance of finalIty and certaInty and preventIng abuse of the gnevance arbItratIOn process As set out by ArbItrator RevIlle In the City of Sudbury case, quotIng from Mueller Ltd (1961), 12 LAC 131 (RevIlle) at p 404 The gnevance procedure IS desIgned to provIde members of the bargaInIng umt and the umon wIth a method of orderly proceSSIng theIr respectIve gnevances In order to aVOId the expense Inherent In the arbItratIOn process the procedure provIdes for bona fide efforts to be made by both the gnevor and management to settle the dIspute at vanous stages and at vanous levels It follows, therefore, that If the gnevor and/or the umon actually or ImplIedly accept the decIsIOn of 9 management they should not be allowed to have second thoughts on the matter and reprocess essentIally the same gnevance at a later date If thIS were to be allowed, management would never know whether In fact, ItS decIsIOn had been accepted by the IndIVIdual gnevor or the umon representIng hIm, and management would be plagued and harassed In what would be a plaIn abuse of the gnevance procedure The Idea IS that a party should not be allowed to have "second thoughts" or a second "kIck of the can." As ArbItrator SchIff stated In Re Humber College of Applied Science and Technology and OPSEU (1999) 80 LAC (4th) 108 111 (SchIff) a party's attempt to retry the same gnevance between the same partIes "mIght well JustIfy arbItrators' stoppIng the party from tryIng to bIte the apple a second tIme" A competIng consIderatIOn IS the enforcement of the "substantIve nghts" of the collectIve agreement. Re Governing Council of University of Toronto and Service Employees Union, Local 204 (1975) 10 LAC (2nd) 417 (Adell) cIted In Saint-Gobain, supra at p 5 (QUIcklaw) DISmISSIng a gnevance - or In thIS case, the preclusIOn of eVIdence In support of a gnevance - negates or at least undermInes the enforcement of substantIve nghts under a collectIve agreement. Consequently both factors - efficIency Interests and substantIve nghts - must be consIdered and balanced. In thIS case, the Issue to be decIded IS whether the wIthdrawal of the January 2000 gnevances precludes the Umon from leadIng eVIdence about those gnevances In support of the November 2000 gnevance In decIdIng that questIOn, the first Issue IS whether or not the earlIer gnevances and the November 2000 gnevance are sufficIently sImIlar or IdentIcal In substance to attract the arbItral rule that a wIthdrawn gnevance acts as a bar to the revIval of the subJect matter In a second, subsequent gnevance For the reasons set forth below I conclude that they are not. 10 It IS clear from the wordIng of the gnevances, that they are not IdentIcal In form. The November 2000 gnevance asserts a pOIsoned work envIronment and harassment contrary to the collectIve agreement and the Ontano Human Rights Code As the Umon explaIned In ItS partIculars and at the heanng, the allegatIOn IS that the gnevor's attempts to address a senes of unsafe practIces led to Increased stress and anxIety for the gnevor whIch was then exacerbated when Tom Graham was hIred and allegedly began to harass hIm. Eventually the Umon claims, these CIrcumstances caused the gnevor to become III and unable to work. The January 2000 gnevances deal wIth (1) an alleged faIlure to post posItIOns,(2) beIng reqUIred to do extra work due to Inadequately traIned operators and (3) health and safety nsks to the operators and the commumty due to the same At that tIme, there was no claim of a pOIsoned work envIronment or harassment, nor any claim that the Employer's actIOns created stress and anxIety for the gnevor or caused hIm to become III AccordIngly I conclude that the November 2000 and the January 2000 gnevances clearly are not IdentIcal or substantIally sImIlar In form I also conclude, although there IS some overlap In the underlYIng facts, that the gnevances are not substantIally sImIlar or IdentIcal In substance The substance of the November 2000 gnevance IS that the Employer's actIOns caused the gnevor to become III and unable to work. The substance of the gnevances In January 2000 IS that the Employer Improperly faIled to fill vacanCIes and traIn the part-tIme operators, In vIOlatIOn of the collectIve agreement and the regulatIOns A gIven set of facts may lead to multIple claims and nghts The wIthdrawal of a gnevance may prevent the re-lItIgatIOn of that gnevance where the Issues are IdentIcal or 11 substantIally sImIlar In substance - the "same gnevor - same gnevance. Re Pharma Plus Drugmarts Ltd and UF C W Local 175 (1991) 20 LAC (4th) 251 (Barton) It may also prevent the partIes from argUIng the same Issue based on new facts, but facts whIch are essentIally the same as those Involved In the pnor gnevance. Re Weston Bakeries supra. But a wIthdrawal, wIthout more, does not prevent a dIfferent claim based on the same set of facts That IS not a sItuatIOn where the Umon IS seekIng "to bIte the apple a second tIme" or abusIng the arbItratIOn process SImply put, In thIS case, the Umon IS lItIgatIng a dIfferent Issue - "same gnevor - dIfferent gnevance " ThIS IS not to suggest that a gnevor may splIt hIS case, i e raise certaIn legal claims, then wIthdraw them only to file a new gnevance raiSIng a dIfferent legal claim on the same events That IS not what occurred here In the cases cIted by the Employer the Umon sought to gneve the same claim that had earlIer been wIthdrawn or abandoned. In Saint Gobain, supra, for example, the gnevance was for premIUm pay based on a provIsIOn In the collectIve agreement. The IdentIcal claim was made several years before, and that gnevance although demed by the employer was never referred to arbItratIOn by the Umon or otherwIse pursued. The relevant collectIve agreement language remaIned the same The arbItrator ruled that the faIlure of the umon to pursue the earlIer IdentIcal gnevance constItuted a representatIOn that the umon accepted the Company's InterpretatIOn of the collectIve agreement and barred the Umon from proceedIng wIth the second gnevance In Re Weston Bakeries. supra, the arbItrator ruled that the umon' s abandonment of a 1996 complaInt that the company was vIOlatIng the collectIve agreement by havIng customers pIck up 12 product from Its KIngston plant barred a subsequent gnevance concermng "the same subJect matter" He noted that the remedIes sought were IdentIcal - both sought to stop the practIce - and held that arbItral rule of abandonment was establIshed to deal precIsely wIth that sItuatIOn. In contrast, the January 2000 and November 2000 gnevances are not the same although some of the underlYIng facts overlap The partIculars concermng the January 2000 events deal, In part, wIth a problem allegedly caused by the part-tIme operator on the day ShIft due to a lack of traInIng and beIng unlIcensed - a fact raised In the January 24 and January 31 health and safety gnevances The sImIlanty however ends there The partIculars - #6 and #7- deal extensIvely wIth the gnevor's dIspute wIth management about what actIOn to take and the faIlure to take samples afterward - dIfferent matters entIrely Further there IS nothIng In the January 2000 gnevances whIch deal wIth the alleged events outlIned In the partIculars regardIng February 1998 LIkewIse events subsequent to the January 2000 gnevances cannot be precluded by the wIthdrawal of the January gnevances Consequently there IS no basIs to conclude that those claims as precluded by the January 2000 gnevances I also conclude that, under the facts here, the Employer could not have reasonably vIewed the wIthdrawal by the Umon of the January 2000 gnevances as acceptance by the Umon of the underlYIng facts for all purposes Instead, the wIthdrawal could be vIewed as acceptance that the Umon would not pursue the claims raised In the gnevances - the faIlure to post the operator and maIntenance posItIOns the allegatIOns that the gnevor was reqUIred to do extra dutIes, the Issue of 0 I. T 's beIng In charge of the plant under ArtIcle 9 1 of the collectIve agreement. But It 13 cannot be vIewed as precludIng the IntroductIOn Into eVIdence of the facts set out In the Umon's partIculars, or raisIng unrelated claims based on those facts Consequently because I conclude that the January 2000 gnevances and the November 2000 are not substantIally sImIlar or IdentIcal In substance, I conclude that the wIthdrawal of the January 2000 gnevances does not preclude the admIssIOn of eVIdence In thIS case 2. The Settlement of the January 19,2000 Grievance The Employer further contends that the matters raised In the overtIme gnevances - IncludIng the alleged vIOlatIOn of RegulatIOn 435/93 and the claim that the Employer used Inadequately certIfied operators more than the regulatIOn allows - whIch were settled, precludes the IntroductIOn of eVIdence to that effect. To permIt that, It submIts, undermInes the "full and final" settlement reached by the partIes and would undermIne the goal of settlements The GSB has held that eVIdence regardIng matters that have been settled may not be used to support sImIlar claims In OPSEU (Warairch) and Ministry of Labour supra, the partIes had settled two gnevances allegIng dISCnmInatIOn In regard to the gnevor's accommodatIOn. Subsequently the gnevor filed another gnevance allegIng that the employer "has and contInues" to dISCnmInate agaInst the gnevor engaged In dIfferentIal treatment and created a pOIsoned work envIronment. In support of thIS gnevance, the Umon sought to rely on the facts of the settled gnevances The Employer moved to preclude such eVIdence on the basIs that the matters had been fully resolved. The Board held at p 15 that the "overndIng consIderatIOn, In thIS Instance, IS the fact that the partIes agreed to a full and final settlement of the gnevances of Apnl17 2001 and October 11 2001 through the Memorandum of Settlement executed on June 7 2002" The Vice-Chair was concerned that he would be asked to make adverse findIngs agaInst the 14 Employer In respect of Its treatment of the gnevor when that very Issue had been the subJ ect of a mutual settlement. He was concerned that to allow that "could serve to undermIne the partIes' confidence In final settlements and theIr legItImate expectatIOn that settled matters wIll not reappear In some dIfferent gUIse" To the same effect IS OPSEU (Dale et al) and Ministry of Health and Long-Term Care supra and Re Hotel-Dieu Grace Hospital and Ontario Nurses Association, supra. In Warairch, supra, as well as In Dale supra, the Umon sought to rely on the same matters (alleged dISCnmInatIOn) that had been resolved to prove a pattern of dISCnmInatIOn. In the Instant matter the Umon IS not relYIng on any overtIme claim to support the gnevor's claim that he suffered harassment and a pOIsoned work envIronment. WhIle the statement of gnevance, In part, "noted" that Inadequately certIfied operators were operatIng more than the regulatIOn allows, the claim Involved the proper dIstnbutIOn of overtIme That was what was settled. The noted Issue was qUIte tangentIal to the gnevance As a result, I do not belIeve that In decIdIng the November 2000 gnevance, I wIll be asked to make adverse findIngs on matters that were "fully and finally" settled earlIer Conclusion F or all of the foregoIng reasons, the Employer's prelImInary motIOn to exclude eVIdence IS demed. Issued at Toronto thIS 11th day of July 2005 RandI H. Abramsky Vice-Chair