Loading...
HomeMy WebLinkAbout2003-3764.Union Grievance.05-09-29 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 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3764 UNION# 2003-0999-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Jamce Johnston Vice-Chair FOR THE UNION Nelson Roland BarrIster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat FINAL WRITTEN July 7 2005 SUBMISSION 2 Intenm Award At the heanng scheduled to deal wIth thIS matter the partIes Informed me that they had been unable to reach agreement on some productIOn requests that had been made by the umon. After heanng and consIdenng the submIssIOns of the partIes, I dealt wIth that Issue In an Intenm award dated May 29 2005 In addItIOn, at the heanng, counsel for the Mimstry IndIcated that he Intended to make a motIOn that I was wIthout JunsdIctIOn to deal wIth the matters raised In thIS gnevance based on the doctnne of Issue estoppel and res judicata He suggested that the Issue before me, InvolvIng the same partIes, had been dealt wIth prevIOusly by the Gnevance Settlement Board (the "GSB") In OPSEU (Forester) and The Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 360/83 (the "Forester case") At the heanng, we agreed that It was appropnate to deal wIth thIS motIOn by way ofwntten submIssIOns and a tIme frame for these submIssIOns was agreed to I am now In receIpt of and have carefully consIdered the submIssIOns of the partIes and the supportIng Junsprudence that was provIded. ThIS matter first came on for medIatIOn/arbItratIOn on June 8 2004 The gnevance, whIch IS dated December 19 2003 alleges, Inter alIa, that the Mimstry has vIOlated artIcles 9 5 and 9 6 of the CollectIve Agreement, whIch deal wIth vIdeo dIsplay termInals (VDT) On June 8 2004 the partIes sIgned Minutes of Settlement In whIch they agreed to refer the Issues raised In the gnevance to the next "MERC" meetIng scheduled for later the same month. Unfortunately these and later efforts to resolve thIS case have been unsuccessful The relevant language, In part, In the collectIve agreement IS 9 5 After each hour of contInUOUS operatIOn of a VDT a VDT operator shall be relIeved of such dutIes for a penod of ten (10) mInutes 9 6 At the begInmng of assIgnment to a VDT and annually thereafter a VDT operator who IS regularly reqUIred to operate a VDT for two (2) hours or more per day shall be reqUIred to undergo an eye eXamInatIOn by an optometnst or an ophthalmologIst who IS qualIfied to conduct the folloWIng tests (a) unaided vIsual aCUIty (letter chart test) (b) refractIve findIngs (c) corrected vIsual aCUIty 3 (d) amplItude accommodatIOn (e) suppreSSIOn (0 muscle balance (near one metre, dIstant) (g) slIt lamp bIOmIcroscopy The cost of the eye eXamInatIOn, not to exceed the OHIP fee schedule for such eXamInatIOns, shall be borne by the Employer and the VDT operator shall authonze release of a copy of the eXamInatIOn report to the Employer By letter dated May 9 2005 the Mimstry confirmed ItS legal posItIOn WIth respect to VDTs located In the control rooms at correctIOnal InstItutIOns Counsel stated "To confirm, for the purposes of the present proceedIng, the Employer's posItIOn IS that the eqUIpment used In central and sub-control rooms of all MCSCS CorrectIOnal InstItutIOns, whIch meet the CSA defimtIOn of a VDT are VDT's as per the current ArtIcle 9 of the CollectIve Agreement. However It contInues to be the Employer's posItIOn that CorrectIOnal Officers are not VDT Operators and that they do not operate the VDT's In the manner contemplated by the collectIve agreement. Consequently the provIsIOns do not apply to CorrectIOnal Officers workIng In the control and sub-control rooms of the InstItutIOns" Counsel for the Mimstry clanfied agaIn at the heanng that the Mimstry was no longer maIntaInIng the posItIOn that It had ImtIally taken, namely that the eqUIpment at Issue In the case before me was not a VDT It was conceded that the eqUIpment was a VDT It became clear at the heanng that the central Issue In dIspute pertaIned to whether or not correctIOns officers (C 0 's) "operate" the VDTs In a "contInUOUS" manner as stated In ArtIcle 9 5 It was made clear that the Mimstry would no longer be challengIng that the eqUIpment In use was a VDT but would be fOCUSIng on the meamng of the terms "operate" and "contInUOUS" as used In artIcle 9 5 and whether the work of the CO's met thIS defimtIOn. ThIS IS the fourth Intenm award I have Issued In thIS case The three prevIOUS awards dealt wIth Issues pertaInIng to process, the provIsIOn of partIculars and the exchange of documents The Mimstry has made a motIOn requestIng that the gnevance at present before me should be dIsmIssed on the basIs that the umon IS seekIng to re-lItIgate an Issue already decIded 4 by the GSB As I have before me the wntten submIssIOns of the partIes, rather than paraphrasIng the overvIew of the Mimstry's posItIOn whIch was provIded, It IS appropnate to sImply set It out: ThIS IS the Employer's motIOn that both the doctnnes of Issue estoppel and res judicata preclude the Umon's attempt to re-lItIgate an Issue already decIded by the Gnevance Settlement Board ("GSB") In the present case, OPSEU (as a party to the collectIve agreement) filed a gnevance allegIng that CorrectIOnal Officers (CO's) operatIng VDT's on control rooms of CorrectIOnal InstItutIOns, are VDT operators In the manner contemplated by the VDT language of the agreement, and are therefore entItled to the benefits (i e breaks and eye exams) provIded under the VDT provIsIOns of the collectIve agreement. In addItIOn, OPSEU has filed several IndIVIdual gnevances allegIng that IndIVIdual CO's workIng In the control rooms are entItled to the benefits pursuant to the VDT provIsIOns The Issue presently before the GSB IS whether CO's operate VDT's wIthIn the meamng of the collectIve agreement. ThIS same Issue was prevIOusly addressed by the GSB In the case of OPSEU (Forester) and Ministry of Correctional Services In that case (and after heanng full eVIdence and arguments from the partIes) the GSB specIfically found that the CO's operatIng VDT's In control rooms at CorrectIOnal InstItutIOns are not VDT operators wIthIn the meamng of the agreement and are, therefore, not covered by the provIsIOns of the collectIve agreement. That decIsIOn of the GSB was final and bIndIng upon the partIes OPSEU dId not appeal or JudIcIally reVIew that decIsIOn. OPSEU has now filed these addItIOnal gnevances seekIng to have the same Issue re-lItIgated, not only once but several tImes, through the lItIgatIOn of the Umon and IndIVIdual gnevances The Employer submIts that both the doctnnes of res judicata and Issue estoppel bar the Umon from advancIng the same claim more than once Appellate Courts, IncludIng the Supreme Court of Canada, have strongly cautIOned the GSB agaInst allowIng partIes to re-lItIgate Issues already decIded. Indeed, Courts have IndIcated that arbItrators nsk commIttIng a revIewable error when they allow a party to re-lItIgate or collaterally attack a decIsIOn that IS finally decIded and bIndIng on the partIes It IS submItted that, In the present case the GSB should not permIt OPSEU's attempt to re-lItIgate thIS Issue over and over agaIn. It IS a well-accepted pnncIple In arbItral Junsprudence that In order for the doctnne of res judicata or Issue estoppel to apply certaIn cntena must be met. In Canadian Labour Arbitration thIrd edItIOn, by Donald lM. Brown and DavId M. Beatty headIng 23221 res judicata as the result of a pnor award IS dealt wIth. The applIcable pnncIples are artIculated as follows DrawIng upon the statutory dIrectIve that theIr awards bInd the partIes, the doctnne of res judicata has been adopted and applIed by arbItrators As one arbItrator has stated 5 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 overwhelmIngly 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 (from City of Sudbury (1965) 15 L.A.C. 403 (Revill e ) ) It has been held, however that In order to be a conclusIve bar to the second gnevance the first award must meet three condItIOns FIrst, It must be between the same partIes, second, the matter In dIspute must be IdentIcal In both proceedIngs, InvolvIng the same or an unaltered collectIve agreement; and finally It must have been brought for the same obJect. AccordIngly to determIne whether the doctnne applIes, or Indeed, whether an earlIer award could be shown to be erroneous, may reqUIre eVIdence to be adduced In addItIOn to argument. In the CIrcumstances before me, the cntIcal questIOn IS whether or not the "matter In dIspute" or Issue In dIspute In the case before me IS identical to the matter or Issue In dIspute In the Forester case If It IS not, then the doctnnes of res judicata and Issue estoppel do not apply SImply because I am consIdenng the same collectIve agreement language whIch was at Issue In the Forester case does not gIve nse to the applIcabIlIty of the doctnnes of res judicata or Issue estoppel GIven the ongOIng relatIOnshIp between the partIes, the same collectIve agreement language can be applIed or Interpreted In many dIfferent factual contexts In addItIOn, unless the collectIve agreement specIfically prohIbIts It, successIve arbItrators can come to dIfferent conclusIOns wIth regard to the applIcabIlIty of, or InterpretatIOn of, the same collectIve agreement language (subJect to pnncIples of deference whIch I wIll reVIew later In thIS decIsIOn) The Forester decIsIOn IS a relatIvely bnef one The Issue or matter to be decIded IS artIculated In the decIsIOn as follows What IS to be decIded here IS the correct InterpretatIOn of ArtIcle 185 (now 95) ThIS poses the questIOn Does the Gnevor operate a VDT (vIdeo dIsplay termInal) 6 wIthIn the meamng of the artIcle? Counsel to the Gnevor submIts that the teleVIsIOn momtors used by the Gnevor are VDT's by defimtIOn, that they operate contInuously though the Gnevor does not look at them full tIme and that the Gnevor's aIlments - eye straIn, headaches and IrrItabIlIty - are those whIch studIes have shown to be assocIated wIth the operatIOn ofVDT's It IS argued for the Employer that the televIsIOn momtors used by the Gnevor are comparable to those whIch receIve broadcast televIsIOn, that VDT's not only have a screen but a keyboard by means of whIch they are connected to a computer or a word processor that the Gnevor does not operate the mom tors SInce they are connected to cameras whIch produce the pIctures shown on the screens, and that even If the Gnevor could be said to be operatIng the mom tors, he does not do so contInuously The award provIdes the folloWIng conclusIOns It appears that for the purposes of sCIentIfic evaluatIOn and classIficatIOn and, In partIcular In connectIOn wIth the study of radIatIOn, VDT's are grouped wIth televIsIOn mom tors ThIS IS presumable because they are both electromc applIances that utIlIze cathode ray tubes (CRT's) to dIsplay sIgnals receIved by one or another means of transmISSIOn. Weare not persuaded that thIS methodology should determIne the meamng of the term VDT as It appears In ArtIcle 185 For present purposes, the InterpretatIOn properly to be gIven the acronym VDT IS that whIch best represents the sense In whIch It IS used In ArtIcle 18 5 In arrIvIng at that InterpretatIOn, we must take Into consIderatIOn ItS usage "In the trade" so to speak, and In common parlance We do not belIeve that ArtIcle 18 5 can be said to apply to any employee who In the course of hIS or her dutIes, looks at a teleVISIOn screen. In our OpInIOn, the VDT's contemplated by the artIcle are the now famIlIar Items of eqUIpment consIstIng of a teleVISIOn momtor and a devIce whIch enables the operator to produce and control Images that appear on the momtor Further the operators of such VDT's do not sImply "look at" an Image on a momtor they must "read" the characters (letters or figures) theIr operatIOn of the actuatIng devIce has caused to be dIsplayed, These stnke us as beIng cruCIal dIstInctIOns between the two applIances under dIscussIOn. ParenthetIcally we note that such attentIOn as the Gnevor IS reqUIred to gIve to the teleVISIOn mom tors IS necessanly dIvIded between them Could It be senously suggested that he IS operatIng two VDT's In the sense conveyed by the language of ArtIcle 18 5? In the result, we find that the Gnevor does not operate a VDT wIthIn the meamng of ArtIcle 18 5 of the collectIve agreement. 7 Therefore, the Board In the Forester case concluded that the eqUIpment beIng used by the employees In the case before It was not a VDT WIthIn the meamng of what was then artIcle 18 5 of the collectIve agreement (now ArtIcle 9 5 ) It found that the eqUIpment at Issue was In essence a teleVIsIOn momtor and that "we do not belIeve that ArtIcle 18 5 (now 9 5) can be said to apply to any employee who In the course of hIS or her dutIes, looks at a televIsIOn screen" WhIle It IS true that the Board In the Forrester case dealt wIth the Issue "do CO's operate VDT's wIthIn the meamng of the collectIve agreement?" and concluded that they do not, there are many facets to thIS Issue as stated. The conclusIOn that CO's do not operate VDT's was based upon or flowed from the Board's conclusIOn that the eqUIpment was not a VDT As the eqUIpment was not a VDT that was the basIs for the findIng that the gnevor "does not operate a VDT" In the proceedIngs before me, the Mimstry has conceded that the eqUIpment In use In central and sub-control rooms (as long as certaIn cntena not at Issue here IS met) at all MCSCS CorrectIOnal InstItutIOns are VDT's as per ArtIcle 9 of the collectIve agreement. As noted earlIer In thIS decIsIOn, the focus In the Instant proceedIngs IS on the words "operate" and "contInUOUS" Therefore, to put It another way In the Forester case the emphasIs was on a dIfferent word. In the Forester case as the eqUIpment was found not to be a VDT wIthIn the meamng of the collectIve agreement, there was no need to contInue the analysIs any further If the "applIances" as they were referred to In the Forester decIsIOn were not VDT's, then employees could not be "operatIng" VDT's wIthIn the meamng of the collectIve agreement, nor could they be operatIng VDT's "contInuously" In a sense, the analysIs In the Forester case stops where the analysIs starts In our case Whether the eqUIpment In use was or was not a VDT was the central Issue In the Forester decIsIOn. As It IS not an Issue before me then It cannot be said that the matter In dIspute In the Forester case IS IdentIcal to the matter In dIspute before me The Mimstry In the current case has conceded the "VDT" Issue but IS assertIng that correctIOnal officers are not VDT operators and do not operate the VDT's In a contInUOUS manner as contemplated by the collectIve agreement. Therefore, the matter currently In dIspute IS not even the same let alone IdentIcal, to the matter 8 In dIspute In the Forester case In the Forester case, the Board decIded a dIfferent Issue one whIch has been conceded before me In the submIssIOns filed wIth the GSB In reply by the Mimstry It was asserted that the board In the Forestry decIsIOn "specIfically found that the eqUIpment used by the Gnevor were VDT's (as defined sCIentIfically) but went on to find that the Gnevor does not operate the eqUIpment In the manner contemplated by the collectIve agreement." With respect, I do not agree wIth thIS assertIOn. Based on a careful reVIew of the GSB's prevIOus decIsIOn In the Forester case, I have concluded that the Board In It decIded that the eqUIpment In use was not a VDT but somethIng akIn to a televIsIOn momtor I would lIke to thank both counsel for theIr detaIled and excellent legal analysIs of the doctnnes of res judicata and Issue estoppel However gIven the conclusIOns set out above, It IS not necessary to reVIew them In any more detaIl In thIS decIsIOn. As the Mimstry has not establIshed that the focus of the matter or Issue In dIspute In the case before me IS the same as the matter In dIspute whIch was decIded In the Forester case, It has not met the first hurdle set out In the Junsprudence In the alternatIve, Counsel for the Mimstry made the folloWIng arguments AlternatIvely If the GSB finds that the doctnnes of res judicata and Issue estoppel do not apply to the facts of thIS case, It IS respectfully submItted that the Board ought to exerCIse ItS dIscretIOn and follow the prevIOUS GSB award In thIS matter The Employer submIts that as a matter of good polIcy (and In accordance wIth the Blake decIsIOn) the GSB should follow the pnor award whIch dealt wIth a sImIlar dIspute between the same partIes based on the same language of the collectIve agreement. To do otherwIse wIll be dIsruptIve to the relatIOnshIp of the partIes and theIr abIlIty to enforce and lIve up to theIr oblIgatIOns under the agreement. In Brewers' WarehousIng Co and Brewery Flour Cereal, Malt, Yeast, Soft Dnnk and DIstIllery Workers of Amenca, Local 278C ArbItrator LaskIn (as he then was) made the folloWIng persuaSIve comments [at p 1798] It IS not good polIcy for one Board of ArbItratIOn to refuse to follow the award of another Board In a sImIlar dIspute between the same partIes ansIng out of the same Agreement, where the dIspute Involves the InterpretatIOn of the Agreement. Nonetheless, If the second Board has the 9 clear convIctIOn that the first award IS wrong, It IS the duty to determIne the case before It on pnncIples that It belIeves are applIcable Employer's Book of AuthontIes Brewers' WarehousIng Co and Brewery Flour Cereal, Malt, Yeast, Soft Dnnk and DIstIllery Workers of Amenca, Local 278C(1954) 5 L.A.C 1797 SImIlarly In Blake et al and Amalgamated TransIt Umon and Toronto Area TransIt OperatIng Authonty the GSB made the folloWIng comments [at p 7-8] In the pnvate sector ad hoc boards of arbItratIOn have a separate and dIStInct capacIty to decIde each case on ItS own ments RecogmzIng that IndIVIdual, but dIfferent, decIsIOns on the same pOInt or Issue may create confusIOn, arbItrators have balanced the Interests of IndIVIdual decIsIOn makIng wIth predIctabIlIty by generally adoptIng a polIcy that they wIll not depart from earlIer decIsIOns unless such decIsIOns are mamfestly In error But the Gnevance Settlement Board IS one entIty - It IS not a senes of separately constItuted boards of arbItratIOn. Under sectIOn 20(1) of the Crown Employees CollectIve BargaInIng Act, there IS "a Gnevance Settlement Board" - that IS, one Board. Under sectIOn 20(4) the Gnevance Settlement Board may SIt In two panels and under SectIOn 20(6) a decIsIOn of the maJ onty of a panel IS "the decIsIOn" of the Gnevance Settlement Board. Thus each decIsIOn by a panel becomes a decIsIOn of the Board and In our OpInIOn the standard of mamfest error IS appropnate for the pnvate sector IS not appropnate for the Gnevance Settlement Board. The Act does not gIve one panel the nght to overrule another panel or to SIt on appeal on the decIsIOns of an earlIer panel Also gIven the volume of cases that are currently admInIstered by thIS Board, the contInUOUS attempts to persuade one panel that another panel was In error only encourages a multIplIcIty of proceedIngs and arbItrator shoppIng whIch In turn creates undue admInIstratIve dIfficultIes In handlIng the case load. Employer's Book of AuthontIes Blake et al and Amalgamated TransIt Umon and Toronto Area TransIt OperatIng Authonty GSB No 1276/87 The Employer submIts that the Forester award IS "the decIsIOn" of the GSB and OPSEU should not be gIven the opportumty to contInuously attempt to persuade the Board that OPSEU's "VIew of the world" IS the correct VIew As noted by the panel In the Blake decIsIOn, the GSB (as presently constItuted) has no authonty to overrule another panel of thIS Board. It IS submItted that confusIOn and unpredIctabIlIty wIll be created If the GSB (in thIS case) departs from ItS practIce of folloWIng prevIOUS decIsIOns ThIS IS because, first there IS no certaInty that re-lItIgatIOn wIll YIeld a more accurate result than the one In the Forester proceedIng. Second, If the same result IS reached In the present case, the re-lItIgatIOn wIll prove to have been a waste of 10 scarce resources as well as an unnecessary expense for the partIes and, certaInly an addItIOnal hardshIp for the Employer ThIrd, If the result In the present proceedIng IS dIfferent from the conclusIOn reached In the Forester case, the InCOnSI stency wIll help undermIne the credI bIlI ty of the entIre GSB process, thereby dImImshIng ItS authonty ItS credIbIlIty and ItS aim of finalIty Indeed, such a result wIll lIkely result In bad labour relatIOns between the partIes The questIOn of deference anses when the Issue to be decIded IS the same The Issue decIded by the Board In the Forester case - was the eqUIpment a VDT? - IS not the Issue before me In the current case, based on dIfferent facts, the Mimstry has conceded that the eqUIpment In use IS a VDT The decIsIOn In the Forester case turned completely on the Board's assessment of the facts as they eXIsted In 1983 The facts whIch are cntIcal to the conclusIOns and decIsIOn In the Forester case are lIkely to be completely dIfferent from the facts before me It IS almost tnte to pOInt out that the eqUIpment In use today IS not the same as the eqUIpment In use In 1983 whIch was the subJect of the rulIng In the Forester decIsIOn. AccordIngly thIS alternatIve argument IS also dIsmIssed. ThIS matter wIll contInue on prevIOusly scheduled heanng dates Dated at Toronto thIS 29th day of September 2005 ..