HomeMy WebLinkAbout2001-0534.Hunt et al.09-10-21 Decision
Commission de Commission de
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Grievance Settlement Grievance Settlement
règlement des griefs règlement des griefs
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GSB#2001-0534, 2003-2944, 2008-3397 GSB#2001-0534, 2003-2944, 2008-3397
UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018 UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018
IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION
UUnnddeerr
THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT
BBeeffoorree
THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD
BETWEENBETWEEN
Ontario Public Service Employees Union
èÏÔÎÏ
(Hunt et al)
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The Crown in Right of Ontario
(Ministry of Attorney General)
Employer
BEFOREVice-Chair
Randi H. Abramsky
FOR THE UNION
Tim Hannigan
Ryder Wright Blair & Holmes, LLP
Barristers and Solicitors
FOR THE EMPLOYERLen Hatzis
Ministry of Government Services
Counsel
HEARING
October 15, 2009.
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DECISION
[1]On July 27, 2006, the Board issued a decision in regard to two grievances, one filed by a group
of Court Reporters alleging denial of overtime pay, and a policy grievance filed by OPSEU, alleging
that ?[t]he work associated with the preparation and production of transcripts and certifying them as
accurate is bargaining unit work to which the collective agreement applies.? The decision determined
?that the preparation and certification of transcripts is bargaining unit work of the Court Reporters??
and further stated that ?[a]ll issues regarding the implications of this finding are referred back to the
parties, and I will remain seized.?
[2]After approximately three years of discussion between the parties, the remedial issues are now
before the Board. On September 22, 2009, counsel for the Coalition of Concerned Court Reporters of
Ontario (the ?Coalition?) sought leave to intervene in this proceeding. The motion was opposed by
both the Ministry of the Attorney General (the ?Ministry) and the Ontario Public Service Employees?
Union (?OPSEU?). A hearing on this issue was held on October 15, 2009, at which time both written
documents were received and oral submissions were heard.
[3]Having carefully considered the matter and the case law submitted by the parties, the motion to
intervene is denied. My reasons are set out below.
[4]At the hearing, the Coalition identified three Court Reporters on whose behalf counsel sought to
intervene. In its written submission, the Coalition was described as ?a growing organization which
represents the work-related interests of approximately 100 Court Reporters.? It was formed because of
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its ?members? shared concerns related to the particular labour relations issues to be resolved in these
proceedings?? Its ?mission statement? states:
The Coalition of Concerned Court Reporters of Ontario seeks to promote and protect the
integrity of the record and to preserve the public interest in the administration of justice.
The Coalition will fight for the rights of dedicated Court Reporters whose professional
responsibility in the justice system is to take, preserve, and transcribe the written record
for the people of this Province. Audi alteram partem.
[5]In Ontario, there are approximately 600 Court Reporters who are represented, under the Crown
Employees Collective Bargaining Act, R.S.O. 1990, (?CECBA?), by OPSEU. Court Reporters have
been represented by OPSEU since 1994, although until the filing of the two grievances in this matter,
the work associated with the preparation and typing of transcripts was governed by regulation. Due to
the delay in the determination of the remedial issues, it still is.
[6]As recognized in the July 2006 decision, however, OPSEU is the exclusive representative of the
Court Reporters under both CECBA and the parties? collective agreement. It has a statutory right to
represent Court Reporters in regard to their terms and conditions of employment for the work they
perform, which includes the preparation and certification of transcripts. As the decision states at p. 42:
?To not recognize the Union as the exclusive representative of the Court Reporters for that second part
of the job violates the Union?s statutory and collective agreement rights. This is true even though the
Ministry has not bargained individually with the Court Reporters but has set their terms and conditions
of employment through regulation.?
[7]In Ontario and Canada, and indeed, all of North America, once a union is recognized or
certified to represent employees in an appropriate bargaining unit, it is the exclusive representative of
those employees. The collective agreement and the arbitration process are between the employer and
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the union. They are the ?parties? to the collective agreement and the arbitration proceeding. All others
? whether they are employees in the unit, other employees of the employer or other employers or
unions ? are not ?parties? and may not participate in the proceedings, except in ?exceptional? cases.
Re Ontario (Ministry of Transportation) and OPSEU (Fournier) (1994), GSB No. 1530/93, 43 L.A.C.
th
(4)1 (Kaplan). As stated by Vice-Chair Kaplan, at p. 4: ?[I]n general, employee interests are
represented by the trade union and employer interests are represented by the employer, and ? only in
exceptional cases should a third party be accorded status in a rights arbitration.?
th
[8]In Re Thunder Bay Regional Hospital and Ontario Nurses? Association (2004), 129 L.A.C. (4)
106 (Davie), the board of arbitration quotes a decision by arbitrator Pam Picher in Re Toronto Hospital
and O.N.A., unreported, November 29, 1996, concerning the applicable principles in regard to
standing, at pp. 109-110:
As a general rule, the only parties to an arbitration are the union and the employer as
those are the two parties to the collective agreement, the alleged violation of which is
the subject of the arbitration. Exceptions to this general rule are made in limited
circumstances, such as where the union and employee each take a position which is
adverse to the employee whose very right to employment is at issue in the arbitration
(See, Hoogedoorn v. Greening Metal Products and Screening Equipment Company
(1967), 65 D.L.R. (2d) 6 41 (S.C.C.) ; or where two groups of employees are competing
for the same substantive employee benefits (e.g., a promotion) and the Union can
support only one or one group of employees, with the other or others thereby being left
without representation (See Bradley et al. v. Corporation of the City of Ottawa (1967),
63 D.L.$. (2d) 376 (Ont. C.A.)); or where the dispute is essentially a jurisdictional
dispute between two unions and it makes practical sense to bring the two unions
together in a single forum to obtain a single decision regarding which union holds the
representation rights for the given group of employees (See CUPE and CBD and
th
NABET Intervener (1970), 70 D.L.R. (4) 175 (Ont. C.A.) and International Alliance of
th
Theatrical Stage Employees and CUPE et al. (1992), 92 D.L.R. (4) 767 (S.C.C.). ?
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My review of the case law provided establishes that these are the generally recognized ?exceptional?
circumstances that the principles of natural justice require that notice and potentially a right to be heard
apply.
[9]In this case, none of these exceptional circumstances are present. The Coalition asserts that it
has a ?distinct legal interest that is directly and necessarily affected by the outcome of these
proceedings.? With respect, how the interests of the three Court Reporters it represents are ?distinct?
from the interests of any other Court Reporter is not clear.All of the Court Reporters have a substantial
and direct interest in the outcome of these proceedings. The preparation and certification of transcripts
is a very significant part of their job and compensation. But there is no indication how their interest is
different from the interest of any other Court Reporter, all of whom are represented by OPSEU.
[10]There is nothing in the record to indicate the three Coalition members? views on the remedial
issues and/or if they differ from OPSEU?s views. But even if they did differ, that would not be
sufficient to provide them standing to assert those views. Having a different approach or view than the
Union does not result in standing, even though the individual will clearly be affected by the decision.
InRe Toronto Hospital, supra, the views of individuals who might be included in the bargaining unit if
the Union were successful were deemed irrelevant to the legal issues before the board. The same
conclusion was reached in Re Thunder Bay Regional Hospital, supra at p. 111, and Re Royal Victoria
Hospital and O.N.A.(1993), 30 C.L.A.S. 355, 1992 CLB 13190 (Starkman).
[11]InRe OPSEU (Ross) and Ontario (Ministry of Municipal Affairs and Housing) (2009), GSB
No. 1981-0407 (Gray), a grievor sought standing to bring forward a number of remedial issues from
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two decisions that had been issued in 1983 ? an astonishing twenty-six years earlier. The Board did
not allow it, stating at par. 14 that ?a grievor does not have the right to participate as a party in the
arbitration of his or her grievance, either in substitution for or addition to the union, merely because the
dispute concerns the grievor?s claim that his or her rights under the collective agreement have been
violated, and ? granting such standing would be inconsistent with the union?s rights as exclusive
bargaining agent.? Further, the Board concluded at par. 33 that ?the possibility that the union may
present the grievance in a manner different from what the grievor would prefer? was irrelevant. The
individual?s recourse, if appropriate, rests in the Union?s duty of fair representation ? not in being
granted standing before the GSB. Vice-Chair Gray concluded at par. 30: ?[T]he existence of a dispute
between the Union and grievor over the scope of and presentation of the grievance is a matter for the
appropriate labour relations board and not for the arbitrator.?
[12]I recognize that the Coalition Court Reporters here are not ?grievors? in the sense of their
having filed a grievance in this matter, as in Re OPSEU (Ross), supra. But the Union filed a policy
grievance on behalf of the entire bargaining unit in this case. That policy grievance puts them in a
similar position to that of a grievor and, in this case, similar considerations apply.
[13]The Board in OPSEU (Ross), supra, relied on the decision of the Supreme Court of Canada in
Noel v. Societe d?energie de la Bai James [2001] 2 S.C.R. 207. In that case, a grievor had his
discharge grievance taken to arbitration by the Union but was unsuccessful and the grievance was
dismissed. The Union then refused the grievor?s request to seek judicial review of the arbitrator?s
award and the grievor sought leave to appeal it. The courts ruled that the grievor did not have the
requisite interest to appeal as he was not a party to the arbitration. The Supreme Court agreed, based
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largely on the principle of exclusive representation.The Court stated that employees in a bargaining
unit are bound by a collective agreement and have to abide by it, ?[h]owever reluctant the members of
a dissenting or minority group of employees may be?? (par. 44) The Court continued at par. 45:
In administering collective agreements, the same rule will apply to the processing and
disposition of grievances. Administering the collective agreement is one of the union?s
essential roles, and in this it acts as the employer?s mandatory interlocutory? [T]he rule
is that the grievance and arbitration process is controlled by the union, to which that
control belongs [citation omitted]. The union?s power to control the process includes the
power to settle cases or bring cases to a conclusion in the course of the arbitration
process, or to work out a solution with the employer, subject to compliance with the
parameters of the legal duty of representation.
[14]A union is often required to make difficult and hard choices in regard to both collective
bargaining and arbitration. The Supreme Court of Canada recognized this basic fact in Noel, supra at
par. 55:
The concurrent interests of other employees in the bargaining unit is an important factor
is assessing the union?s conduct. This element reflects the collective nature of labour
relations, which include the administration of the collective agreement. The interests of
the unit as a whole may justify conduct on the part of the union that is otherwise
detrimental to certain specific employees. A union may decide to make concessions or
to develop a policy for the administration of the agreement in order not to adversely
affect other employees, or to maintain good relations with the employer with a view to
future negotiations.
As Vice-Chair Gray recognized in Re OPSEU(Ross), supra at par. 33, ?[d]isputes between the
Union and bargaining unit employees it represents about whether and how their grievances
should be advanced are less rare than one might hope.?
[15]An affected employee or group of employees may not like the decisions made by the Union ? a
decision to proceed with a grievance or a decision on issues of remedy ? but that does not give a
member of the bargaining unit a ?distinct legal interest? which justifies standing.
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[16]The ramifications of a contrary approach were set out by the arbitrator in Re Royal Victoria
Hospital and O.N.A. (1993) 30 C.L.A.S. 355, 1993 CLB 13190 at par. 23:
If the rights of individual employees who are directly or indirectly affected by the
outcome of arbitration proceedings were granted standing in all cases where their
individual rights were affected, the number of potentially affected employees would be
quite large, arbitration hearings would become lengthy and more expensive, and
employees would come to feel some obligation to be separately represented. This
scenario would undermine the scheme of labour relations in the province of Ontario
which grants certified bargaining agents, who enjoy majority support, the right to
represent all employees in the bargaining unit and which makes the certified bargaining
agent and the employer the parties to disputes concerning the interpretation of the
collective agreement.
[17]The same conclusion was reached in Re Queen Elizabeth Hospital and CUPE, Local 1156
th
(1988), 2 L.A.C. (4) 281 (Craven). Acceptance of the Coalition?s motion to intervene would, in my
view, effectively allow a member of a bargaining unit to intervene whenever they disagreed with the
position of the Union and wished to present a different position.
[18]The Coalition asserts that the Board has recognized that ?where a prospective remedy to a
grievance would directly affect an existing contractual relationship to which a third party is bound,
including employment relationships, fairness and natural justice dictate that third-party standing should
be granted. In support it cites to Re CUPE 1750 (Policy Grievance) and Workers? Compensation
th
Board(1995), GSB No. 1029 (Kaufman) and Re Fanshaw College and OPSEU (1991), 19 L.A.C. (4)
162 (Brent).
[19]It is true that in Re CUPE 1750, supra, the Board permitted employees to intervene when their
inclusion in the bargaining unit was put into issue through a grievance. In Re Fanshawe,supra,
similarly, employees potentially included in the bargaining unit were allowed to intervene, as was their
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employer. These cases, in my view, are not particularly relevant because the Court Reporters are
already represented by OPSEU. Their ?status? or inclusion in the bargaining unit is not in question.
[20]What the Board has not held, however, is that the existence of a third-party contract gives rise
to standing ? even when that contractual relationship may be significantly impacted by the arbitration.
Re OPSEU (Union Grievance) and Ontario (Ministry of Government Services)(2006), GSB No. 2002-
2441 (Petryshen); Re OPSEU (Union Grievance) and Ontario (Ministry of Health & Long-Term Care)
(2001), GSB No. 1495/00 (Brown).
[21]In this regard, the Coalition asserts that despite the decision in this matter that the preparation
and certification of transcripts is bargaining unit work over which OPSEU has representation rights, the
Court Reporters have continued to function as independent contractors when performing transcript
work and ?the parties have not yet reached an agreement that would activate this right.? It asserts that
the Court Reporters ?current work-related interests are represented by OPSEU only in respect of their
in-court duties.? It then states at par. 15:
In the instant proceedings, there is no doubt that Coalition members? interests are
uniquely impacted by the remedial outcome, which will fundamentally re-structure
Court Reporters? existing contractual and employment relationships. While the parties
have preserved the status quo, these distinct interests have survived intact and are no
less worthy of the Board?s protection at this stage of the proceedings that they were
prior to its determination on the merits.
It continues at par. 19: ?Since OPSEU?s representational capacity in respect of Coalition members?
transcription work exists solely on a prospective basis, it would be a patently unfair result if the finding
of the Board in Hunt were to give rise to a situation in which Court Reporters are pre-emptively
silenced by membership in a collective from which they have yet to derive any tangible benefits?.?
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[22]With respect, this argument misconstrues the earlier decision in this matter. In that decision,
the Board rejected the Employer?s argument that Court Reporters were independent contractors in
relation to transcription preparation and certification. It was determined that transcription work was
the work of Court Reporters in the bargaining unit, represented by OPSEU. The lack of any agreement
between the parties following the decision does not mean that the Court Reporters were, or continue to
be, independent contractors. The decision held that OPSEU does not just represent Court Reporters for
their in-court work, but for the preparation and certification of transcripts as well. The Coalition may
be correct that as a practical matter, things have continued as in the past. But as a legal matter, after the
Board?s decision of July 2006, it can no longer be asserted that the Court Reporters are independent
contractors in relation to transcript work. Further, OPSEU?s representational rights are not prospective
only; they are retroactive to the grievances.
[23]The Coalition also asserts that standing is appropriate because its members have no other
recourse available to protect their interests in the proceedings. OPSEU vigorously disputes this, and
suggests that it welcomes the views of its members internally, and if the members do not agree with the
Union?s approach, they have a remedy through a duty of fair representation claim with the Ontario
Labour Relations Board. This was the conclusion of the Board in Re OPSEU (Ross), supra, and Re
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Ontario and OPSEU (Therrien) (2008), 173 L.A.C. (4) 193 (Lynk), as quoted in Re OPSEU (Ross),
supra at par. 17. As stated by Vice-Chair Lynk: ?For dissatisfied union members, the law provides a
check against sloppy, indifferent, discriminatory or bad faith behaviour by unions in their grievance
determinations through the fair representation duty in labour law and through human rights statutory
obligations.?
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[24]The Coalition also asserts that its members? participation in this proceeding will be of benefit to
the parties? labour relations and is in the public interest. It asserts that its members have significant and
unique expertise which will be of benefit to the hearing process.
[25]I have no doubt that the Coalition Court Reporters have a wealth of experience and expertise,
but it is not apparent how they may contribute in a manner that differs from any other court reporter
that the Union could call as a witness. It is not apparent how their participation would aid the process.
[26]Finally, inclusion of the Coalition as a party may further delay the resolution of these issues.
Although I agree with counsel for the Coalition that after the passage of so many years without action,
the need for urgency, particularly as claimed by the Ministry, seems disingenuous, there is still a risk
that granting standing here may cause delay. The potential for delay does not come predominantly
from the participation of the Coalition itself, but from the fact that, if allowed to intervene, many other
groups of Court Reporters or individual Court Reporters could equally seek and be entitled to standing.
Although counsel for the Coalition suggested that the Board could easily administratively handle that
situation, I am not so sure of that.
[27]In light of these conclusions, I need not address the Employer?s contention that the Coalition
waived any right it may have had to intervene in this matter by waiting until the remedial stage to seek
to intervene.
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Conclusion
[28] For all of the above-stated reasons, the Coalition motion to intervene is denied.
st
Dated at Toronto this 21 day of October 2009.
Randi H. Abramsky, Vice-Chair