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HomeMy WebLinkAbout2001-0534.Hunt et al.03-07-18 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# 0534/01 UNION# 01F476 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Hunt et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING July 10 2003 2 AWARD At the outset of the heanng, the Employer raised a prelImInary obJectIOn regardIng the tImelIness of the gnevance The Employer asserts that the change In practIce whIch the gnevance contests took place years ago and IS therefore untImely under the collectIve agreement. The Umon takes the posItIOn that the gnevance IS a "contInuIng" gnevance and IS therefore tImely under the collectIve agreement. ThIS Award addresses that Issue All other prelImInary Issues, and the Issue of retroactIvIty were reserved. Facts On May 4 2001 a group gnevance was filed by three full-tIme Court Reporters The gnevance states We gneve on the basIs that by changIng the work polIcy for classIfied court reporters at 80 The East Mall we have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to ArtIcle OAD 8 31 [and 8 4] of the collectIve agreement. The settlement desIred was Full redress to Include overtIme pay OWIng for the last ten years calculated on government T4's for thIS penod, based on the Mimstry's standard of seven pages per hour ArtIcle 83 1 of the OAD umt agreement provIdes Employees In Schedules 3 7 and 4 7 who perform authonzed work In excess of seven and one-quarter (71J4) hours or eIght (8) hours as applIcable, shall be paid at the overtIme rate 3 ArtIcle 4 of the OAD umt agreement provIdes as follows Employees In Schedules 3 and 4 who perform authonzed work In excess of seven and one-quarter (71J4 ) hours or eIght (8) hours as applIcable shall receIve compensatIng leave of one and one-half (1I1z) hours for each hour of overtIme worked, at a tIme mutually agreed upon. FaIlIng agreement, the mImstry shall reasonably determIne the tIme of the compensatIng leave Although the partIes dIspute exactly when the practIce changed, there IS no dIspute that for a substantIal number of years the Mimstry had a practIce of schedulIng full-tIme clasSIfied court reporters for a "day out of court" to type and prepare transcnpts In addItIOn, court reporters were allowed to use "down tIme" when the court was not In seSSIOn, to type transcnpts AccordIng to one of the gnevors, Florence Clark, from the penod 1979 to 1991 she was regularly scheduled one day per week out of court to type transcnpts, and could also use her "down tIme" to type transcnpts as well She testIfied that these practIces changed In 1991 when her manager Carol Adams, advIsed the court reporters that they would no longer be permItted to type transcnpts on work tIme Manager for Court OperatIOns, Toronto RegIOn, Rosa MartellI testIfied that the practIce, when she started her posItIOn In 1998 was that full-tIme court reporters were allowed to prepare transcnpts dunng down tIme and were scheduled, eIther one day per week or one day every two weeks, out of court to type transcn pts She testIfied that through management dIscuSSIOns at meetIngs, the need to change thIS practIce was IdentIfied due to budgetary and efficIency concerns In late 1998 or early 1999 she was advIsed by her dIrector that the practIce of schedulIng full-tIme court reporters for a day out of court to type transcnpts was no longer feaSIble and could not contInue She then advIsed her local managers of thIS change for ImplementatIOn. She testIfied, however that the practIce of allowIng court reporters to use down tIme to type transcnpts contInued and contInues to thIS date 4 AccordIngly based on the Umon's eVIdence, the practIce regardIng both schedulIng and use of down tIme changed In 1991 Based on the Employer's eVIdence the practIce regardIng schedulIng changed In eIther 1998 or 1999 and there has been no change In regard to the practIce regardIng down tIme Ms Clark testIfied that the change In polIcy regardIng the preparatIOn of transcnpts greatly concerned her because she was not sure how she would be able to complete her transcnpts In a tImely fashIOn. She consulted wIth the Umon but dId not file a gnevance It was her belIef, at the tIme, that there was no basIs upon whIch a gnevance could be filed, and It was her understandIng that thIS change In practIce was mImstry-wIde She acknowledged on cross-eXamInatIOn that she had the nght to gneve an alleged vIOlatIOn of the collectIve agreement and that SImIlar overtIme proVISIOns eXIsted In the 1991 collectIve agreement. She could not recall whether or not she revIewed the collectIve agreement at the tIme She also testIfied that she dId not pursue a gnevance at the tIme because she was afraid for her Job In lIght of va no us pIlot proJects and ImtIatIves takIng place In the courts at the tIme Ms Clark explaIned that she became a umon steward In January 2001 She subsequently learned that court reporters In other locatIOns stIll had regularly scheduled days off to prepare transcnpts and were allowed to type transcnpts dunng down tIme She also learned that unclassIfied court reporters were allowed days out of court to do office work and type transcn pts She complaIned about thIS to her supervISor and when no change was forthcomIng, she filed three gnevances One gnevance alleged unequal treatment. That gnevance IS not before me and ItS status IS not clear In the record. Nor IS the status of the second gnevance The thIrd gnevance, the one at Issue In thIS matter alleged a vIOlatIOn of the 5 overtIme provIsIOns Ms Clark testIfied that she had become more famIlIar wIth the collectIve agreement, revIewed It thoroughly and "found a sectIOn I can gneve " Ms Clark testIfied that she has not prepared transcnpts dunng her down tIme from 1991 to the present, although she acknowledged that she has reVIewed her transcnpts and performed related work such as InVOICIng. She further acknowledged that one of the other gnevors, Margery DeCosta, dId type transcnpts at work dunng the work day although she was not aware If she dId thIS on her lunch tIme or recess or down tIme The posItIOn specIficatIOn for classIfied Court Reporter lIsts "provIdIng transcnpts of court proceedIngs on request; certIfYIng accuracy of transcnpts as Court Reporter (NOTE Transcnpts normally prepared on Incumbent's own tIme)" as one of the dutIes of a Court Reporter Ms MartellI testIfied that she was shocked by the gnevance gIven the passage of so much tIme sInce the change In practIce In terms of preJudIce, Ms MartellI testIfied that there has been a sIgmficant change In management at the East Mall court SInce 1991 and a number of managers have left the Mimstry She further testIfied that mInutes of management meetIngs are kept only for two years, and no longer eXIst for 1991 1998 or 1999 LIkeWIse any memos about dIrectIves and changes made In 1991 would no longer eXISt. Positions of the Parties The Employer The Employer asserts that the eVIdence establIshed that the May 4 2001 gnevance was filed well beyond the thIrty (30) day tIme lImIt set out In the partIes' collectIve agreement. Under the Umon's eVIdence, the Employer submIts that the gnevance was filed ten years too 6 late Under Its eVIdence, the delay was approxImately two to three years EIther way the Employer submIts that the gnevance was excessIvely late The Employer contends that the gnevance allegIng a vIOlatIOn of the overtIme provIsIOns could have been brought In 1991 Ms Clark, the Employer notes, was fully aware of her nght to file a gnevance and even consulted wIth the Umon. But she dId not file a gnevance Instead, the Employer submIts that there was no challenge to the change In practIce over many years, or through the negotIatIOn of numerous collectIve agreements The Employer submIts that for an extensIOn of the tIme lImIts to be permItted under SectIOn 48(16) of the Labour Relations Act there must be good reason for the delay and no preJudIce to the OppOSIng party In thIS case, the Employer contends that neIther standard has been met. It submIts that the Umon has not establIshed a reasonable explanatIOn for the delay and the Employer has demonstrated preJudIce, gIven that certaIn documents would no longer eXIsts and relevant wItnesses are no longer wIth the Mimstry In ItS VIew thIS would undermIne the Employer's abIlIty to defend ItS actIOns should the matter be allowed to proceed. In support of ItS posItIOn, the Employer cItes to the folloWIng cases. OBLEU (Wicken) and Liquor Control Board of Ontario (1998), GSB No 2216/97 (Knopf) OBLEU (Gamble) and Liquor Control Board of Ontario (1998), GSB No 1635/96 (Gray) OPSEU (Szabo) and Ontario Realty COlporation (2001) GSB No 1811/95 (HerlIch) Gordon Campbell and Ontario Realty Corporation (2001), PSGB No P/0032/99 (LeIghton) In these cases, delays of between 16 month to 2 1Iz years were found to be "very lengthy" "extreme" and "enormous" and the arbItrators refused to exerCIse theIr statutory dIscretIOn to extend the tIme lImIts for filIng a gnevance 7 For the Union The Umon submIts that the gnevance alleges that the gnevors "have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to ArtIcle OAD 8 3 1 [and 84] of the collectIve agreement." The Umon submIts that thIS sItuatIOn has been ongOIng SInce 1991 and that each tIme the gnevors are reqUIred to produce a transcnpt on theIr own tIme, It vIOlates the overtIme provIsIOns of the collectIve agreement. It claims that the vIOlatIOns started In 1991 and contInue untIl the present. It submIts that It IS not gneVIng an event whIch occurred years ago but the resultIng contInuIng breaches of the overtIme provIsIOns of the collectIve agreement. It asserts that because the gnevance IS a contInuIng gnevance, It IS tImely under the collectIve agreement. The Umon asserts that the Issue of retroactIvIty of the remedy IS separate and dIStInct from the questIOn of tImelIness of the gnevance The retroactIvIty Issue, It contends, Involves how far back before May 4 2001 the remedy may go But In ItS VIew that Issue does not Impact whether or not the gnevance IS tImely The Umon submIts that the gnevance clearly meets the standard for a "contInuIng gnevance" as set out In the case law In support It cItes to Re National Paper Goods and Graphic Communications International Union, Local lOO-M (2001) 102 L.AC (4th) 32 (Abramsky) OPSEU (Union Grievance) and Seneca College of Applied Arts and Technology unreported decIsIOn of McDowell, October 29 1998 OPSEU (Redmond) and Ministry of Health (1989) GSB No 0928/88 (Roberts) 8 The Umon further submIts that It IS not askIng thIS Board to exerCIse ItS dIscretIOn to extend the tIme lImIts under SectIOn 48(16) of the Labour Relations Act Instead, It argues that the gnevance asserts a contInuIng vIOlatIOn of the collectIve agreement. It submIts that the eVIdence establIshes that the practIce contInues and the gnevors are regularly and routInely reqUIred to prepare transcnpts on theIr own tIme Employer Reply The Employer contends that there IS no eVIdence to establIsh that there IS any breach of the collectIve agreement nor a contInuIng breach. In ItS submIsSIOn, the Employer had provIded a gratUItous benefit to ItS court reporters, allowIng them to prepare transcnpts on work tIme and then be paid, separately for that work. The practIce ItS submIts ended In eIther 1991 or 1998 and was neIther challenged nor contested. Decision The May 4 2001 gnevance alleges as follows We gneve on the baSIS that by changIng the work polIcy for classIfied court reporters at 80 The East Mall we have been forced to perform authonzed dutIes on overtIme hours WIth no overtIme pay contrary to ArtIcle OAD 83 1 [and 84] of the collectIve agreement. There are two ways to VIew thIS gnevance FIrst, It can be VIewed as a challenge to the reVISIOn of a practIce that, on the Umon's eVIdence took place In 1991 and on the Employer's eVIdence, took place In eIther 1998 or 1999 Under thIS VIew the gnevance would clearly be untImely It would be eIther ten years or two to three years too late The second way to VIew the gnevance IS as a challenge to the ongOIng Impact of the change In practIce In relatIOn to the overtIme proVISIOns In the collectIve agreement. Under thIS 9 VIew the gnevance would be a "contInuIng gnevance" and the tIme for filIng It would run from the latest breach. In Re National Paper Goods and Graphic Communications International Union, Local lOO-M, supra, the gnevance claimed that the employer Improperly demed Saturday overtIme opportumtIes to full-tIme bargaInIng umt employees by USIng part-tIme employees Instead. For years there had been a consIstent practIce to offer scheduled Saturday overtIme work to full- tIme bargaInIng umt employees when there was no weekend shIft, rather than assIgn It to part- tIme employees That practIce changed and the employer argued that the gnevance was untImely because the alleged breach - the alleged change In ItS schedulIng practIce - first took place on a date more than 30 days before the gnevance was filed. The Umon argued that each tIme a part-tIme employee was assIgned such work, a separate breach of the collectIve agreement occurred. Based on the facts of that case and the case law supplIed by the partIes, I concluded that the gnevance Involved In that case was In the nature of a "contInuIng" gnevance and was tImely filed. Of partIcular aSSIstance were the defimtIOns of a "contInuIng" gnevance outlIned In Re Parking Authority of Toronto and C UP.E. Local 48(1974), 4 L.AC (2d) ISO (Adell) Re Port Colborne General Hospital and Ontario Nurses Association (1986) 23 LAC (3d) 323 (Burkett) and Re British Columbia and B C.N U (1982) S L.AC (3d) 404 (Getz) In Re Parking Authority of Toronto and C UP.E. Local 48 supra, ArbItrator Adell determIned that a gnevance allegIng that the company was Improperly schedulIng part-tIme employees, pursuant to a practIce whIch had contInued for more than thIrteen years, was tImely filed even though the gnevance procedure stated that "no gnevance shall be conSIdered, the 10 alleged CIrcumstances of whIch ongInated or occurred more than five (S) workIng days pnor to Its presentatIOn as a wntten gnevance " The Board stated at p IS2-S3 Many CanadIan arbItratIOn awards have dealt wIth what are known as "contInuIng gnevances" - that IS, gnevances whIch do not relate to a sIngle act posseSSIng substantIal finalIty such as a dIscharge or a promotIOn, but relate Instead to a contInuIng course of conduct - conduct whIch IS renewed at regular Intervals and IS capable of beIng consIdered as a senes of separate actIOns rather than as one actIOn whIch may Just happen to have contInuIng consequences In the Board's VIew at p IS3 "The case before us clearly Involves a contInuIng gnevance as It concerns repeated acts of schedulIng of employee workIng hours, each such act beIng an alleged breach of the collectIve agreement." In Re Port Colbourne General Hospital and ONA. supra at p 327-28 ArbItrator KevIn Burkett set forth the follOWIng defimtIOn of a "contInuIng" gnevance It IS clear from a readIng of the cases that the questIOn that must be asked IS whether or not the conduct that IS complaIned of gIves nse to a senes of separate IdentIfiable breaches, each one capable of supportIng ItS own cause of actIOn. AllegatIOns concermng the unJust ImposItIOn of dIsCIplIne, the Improper awardIng of a promotIOn, or the faIlure to proVIde any premIUm or payment reqUIred on a sIngle occaSIOn, whIle they may have ongOIng consequences, constItute allegatIOns of dIscrete non-contInuIng VIOlatIOns of the collectIve agreement. In contrast, an allegatIOn of an ongOIng faIlure to pay the wage rate or a benefit under the collectIve agreement or an ongoIng concerted work stoppage constItute allegatIOns of contInuIng breaches of the collectIve agreement. In these cases the party agaInst whom the gnevance IS filed takes a senes of fresh steps each one gIVIng nse to a separate breach. In thIS latter type of case the tIme-lImIts for the filIng of a gnevance apart altogether from any questIOn as to when damages commence to run, must be found to be tnggered by the breach closest In tIme to the filIng of the gnevance FInally In Re British Columbia and B C.NA. supra, the arbItrator adopted the defimtIOn of a "contInuIng" gnevance proposed by Professor Gorsky In Evidence and Procedure in Canadian Labour Arbitration (1981), at p 3 S The appropnate rule for deCIdIng the Isolated or contInuIng nature of the gnevance IS the rule developed In contract law The recurrence of damage wIll not make a gnevance a contInuIng gnevance It IS necessary that the party be In 11 breach vIOlate a recurnng duty When a duty anses at Intervals and IS breached each tIme, a "contInUIng' vIOlatIOn occurs, and the agreement's lImItatIOn penod does not run untIl the final breach. When no regular duty eXIsts and the harm merely contInues or Increases wIthout any further breach, the gnevance IS Isolated, and the penod runs from the breach, IrrespectIve of damage The GSB has adopted a sImIlar standard for defimng a "contInuIng gnevance" In OPSEU (Redmond) and Ministry of Health, supra the Board stated that at p 5 "We accept as authontatIve the propOSItIOn that for a contInuIng gnevance to eXIst, the gnevance must complaIn of the breach of a contInuIng duty The gnevance must not merely complaIn that the collectIve agreement was beached In a sIngle transactIOn." The Board at p 6 held that It had JunsdIctIOn to treat as a contInuIng gnevance "those portIOns of the gnevance whIch allege that the Mimstry IS In breach of a contInuIng duty under the CollectIve Agreement." The questIOn presented here, therefore, IS whether the gnevance Involves an alleged breach of a contInuIng duty or an ongOIng faIlure to pay a benefit under the collectIve agreement, or does It relate to sIngle transactIOn - the 1991 or 1998 change In practIce? Does It Involve a contInuIng course of conduct rather than one actIOn whIch happens to have contInuIng consequences? Upon careful conSIderatIOn, I conclude that the gnevance Involves an alleged ongOIng faIlure to comply wIth the overtIme reqUIrements set forth In the collectIve agreement. The gnevance alleges that by changIng the practIce, "we have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to the collectIve agreement. " It IS not the change In practIce, per se, that IS beIng gneved. It IS the alleged consequence of that change In practIce - the alleged breach of the overtIme provISIOns - and that alleged breach IS ongoIng. 12 The testImony of Ms Clark establIshed that the reqUIrement to prepare transcnpts on her own tIme remaIns a part of the dutIes of a Court Reporter That IS also eVIdent from the posItIOn specIficatIOn. The sItuatIOn IS sImIlar to that In Re Parking Authority of Toronto supra, where the schedulIng practIce had been ongOIng for many years, but each repeated act of schedulIng was held to be a separate alleged breach of the collectIve agreement. It IS also sImIlar to Re National Paper Goods, supra, where even though It was the employer's change In practIce that led to the gnevances, that dId not change the nature of the gnevances Into a sIngle actIOn. Instead, "[e]ach act of schedulIng led to an Independent alleged breach of the overtIme provISIOns of the collectIve agreement." (102 LAC (3d) at p 42) In thIS case the Umon submIts that each act of requmng Court Reporters to prepare transcnpts on theIr own tIme, after regular workIng hours, IS In vIOlatIOn of the overtIme provISIOns of the collectIve agreement. Most assuredly thIS gnevance could have (and should have) been filed In 1991 SImIlar overtIme provISIOns eXIsted at the tIme, and the fact that the gnevors dId not realIze that they had a potentIal gnevance does not excuse theIr faIlure to do so Because of the ongOIng nature of the gnevance, however these arguments pertaIn to the Issue of remedy not the Issue of tImelIness of the gnevance SImIlarly relevant to the Issue of remedy IS the concern noted by ArbItrator Adell In Re Parking Authority of Toronto supra at p 153 regardIng aVOIdIng the bUIldIng up of heavy back pay lIabIlIty The eVIdence of preJudIce presented by the Employer wIll also be relevant to the Issue of remedy If documents or wItnesses pnor to 2001 are not avaIlable and preJudIce would 13 result, that would be relevant to the determInIng how far back any remedy could go Further If there IS eVIdence of preJudIce to the Employer's abIlIty to defend ItS actIOns, that Issue may be dealt wIth dunng the heanng. At thIS Juncture, however the eVIdence does not establIsh that and does not negate the Umon' s nght to proceed wIth thIS matter AccordIngly for all of the foregoIng reasons, I conclude that the May 4 2001 gnevance IS a "contInuIng" gnevance, and as such, It IS tImely under the collectIve agreement. The Employer's prelImInary obJectIOn based on tImelIness IS dIsmIssed. Issued at Toronto thIS 18th day of July 2003 :hr-u?tE:JCv~ ~ Ran(h H. Abramsky Vice-Chair