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HomeMy WebLinkAbout2001-0534.Hunt et al.04-08-11 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# 2001-0534 2003-2944 UNION# 2001-0551-0001 [0IF476], 2003-0999-0023 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 March 1& 10 May 3 June 11& 21 July 22, 2004 2 AWARD ThIS Award addresses three motIOns submItted by the Mimstry The first motIOn asserts that the ongInal gnevance (the group gnevance) and the Umon polIcy gnevance whIch was consolIdated wIth It, should be dIsmIssed on the basIs that the same Issues were gneved In 1990 and then were eIther wIthdrawn, deemed wIthdrawn, termInated by the Gnevance Settlement Board andlor abandoned by the Umon. The second motIOn asserts that the gnevances should be dIsmIssed on the basIs of delay and preJudIce Finally the Mimstry has moved to stnke from the record substantIal portIOns of the testImony of a wItness for the Umon, as well as a number of documents, on the basIs that the testImony and documents relate to gnevance settlement dIscussIOns held on a "wIthout preJudIce or precedent" basIs, and are therefore pnvIleged and not admIssIble Into eVIdence The Umon opposes all of these motIOns Background On May 4 2001 a group gnevance was filed by three full-tIme clasSIfied Court Reporters, allegIng that due to a 1991 change In polIcy "we have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to the collectIve agreement." At the outset of the heanng on July 10 2003 the Employer moved to dIsmIss the gnevance as untImely SInce the change In polIcy occurred years before the gnevance was filed. The Umon took the posItIOn that the gnevance alleged a "contInuIng VIOlatIOn" of the overtIme provISIOns of the collectIve agreement. In an Award dated July 18 2003 I agreed wIth the Umon and ruled that the May 4 2001 gnevance was a "contInuIng" gnevance and therefore tImely under the collectIve agreement. I ruled, at p 8-9 as follows 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 3 the gnevance would clearly be untImely It would be eIther ten years or two or 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 VIew the gnevance would be a "contInuIng gnevance" and the tIme for filIng It would run from the latest breach. Thereafter on August 20 2003 the Umon filed a polIcy gnevance, allegIng that "[t]he work assocIated wIth the preparatIOn and productIOn of typed transcnpts and certIfYIng them as accurate IS bargaInIng umt work to whIch the collectIve agreement applIes" At the next day of heanng on January 14 2004 the Umon moved to consolIdate that gnevance wIth the group gnevance The Employer opposed that motIOn. In a decIsIOn dated January 17 2004 I granted the Umon's motIOn to consolIdate based on my determInatIOn that the two gnevances Involve common questIOns of law and fact - specIfically whether the preparatIOn and certIficatIOn of transcnpts IS bargaInIng umt work to whIch the collectIve agreement, IncludIng the overtIme provIsIOns, applIes At the heanng on March 1 2004 counsel for the Umon stated, In dIscussIOns related to vanous Issues In the case, that the Issue of court reporter preparatIOn of transcnpts and overtIme had been the subJect of dIscussIOns and gnevances, IncludIng a polIcy gnevance, between the partIes In the early 1990's Counsel for the Employer then raised concerns that, If that were so then the Issue had been abandoned and could not now be resurrected, and she stated that the Employer would bnng a motIOn to that effect. After caucusIng, It was agreed that the Umon's first wItness, Mr Terry Moore, would testIfy about hIS knowledge about these earlIer gnevances Counsel for the Employer had first sought partIculars about these earlIer gnevances, but In the Interest of expedItIOn, the partIes agreed to have Mr Moore testIfy on examInatIOn-In-chIef Dunng that testImony qUIte a number of documents were Introduced whIch counsel for the 4 Employer had not prevIOusly seen. The partIes also contacted the RegIstrar of the Gnevance Settlement Board to determIne the status of the earlIer gnevances At the start of the next day of heanng, March 10 2004 counsel for the Employer took the posItIOn, among others, that much ofMr Moore's eVIdence related to "off the record" settlement dIscuSSIOns whIch were made on a "wIthout preJudIce or precedent" basIs Counsel IndIcated that the Employer would seek a rulIng on the admIsSIbIlIty of hIS eVIdence The cross- eXamInatIOn and re-eXamInatIOn of Mr Moore then proceeded. The Mimstry then proceeded wIth ItS eVIdence, the testImony Mr Mike Uhlmann, then Manager Employee RelatIOns for the Mimstry concermng the earlIer gnevances and dIscuSSIOns Facts Mr Moore has worked wIth OPSEU SInce October 1983 In 1989 he was a local Staff RepresentatIve In the Guelph office At around that tIme, a number of Issues concermng court reporters came to hIS attentIOn, IncludIng a number of gnevances QUIte a number of gnevances were filed as a result of a May 29 1990 memo from AssIstant Deputy Attorney General, Courts AdmInIstratIOn, Michael Gourley (the "Gourley memo") That memo Issued to "All RegIOnal DIrectors, Courts AdmInIstratIOn DIvIsIOn" states, In relevant part, as follows I am wntIng further to recent dIscuSSIOns concermng the utIlIzatIOn of clasSIfied court reporters when they are not reqUIred In court. As you are aware It IS Important to achIeve full-tIme use of all clasSIfied employees, IncludIng clasSIfied court reporters Although theIr pnmary functIOn IS to act as a court reporter court reporters' secondary functIOns (i e secretanal or general office responsIbIlItIes) must be clearly defined In theIr pOSItIOn speCIficatIOns Office managers should reVIew current pOSItIOn speCIficatIOns to ensure the InclUSIOn of these addItIOnal dutIes It IS also Important that we commence to apply to clasSIfied court reporters the general government pnncIple that fees should not be paid to salaned employees for work performed dunng theIr normal office hours Transcnpts should be S routInely prepared on classIfied court reporters' own tIme As a result, theIr receIpt of transcnpt fees wIll be pnmanly for work prepared outSIde of office hours In an exceptIOnal sItuatIOn, when a transcnpt must be prepared dunng office hours, pnor approval should be receIved from the court reporter's supervISor In those exceptIOnal sItuatIOns, It IS recogmzed that at thIS tIme the transcnpt fee wIll be paid to the court reporter Please ensure that the above practIce IS In place throughout your regIOn by July IS 1990 AccordIng to Mr Moore, thIS memo was VIewed as a "shot across the bow" and generated "a ton of gnevances across the provInce" The practIce whereby court reporters were allowed to use breaks or down tIme from court to prepare transcnpts was stopped. Now If there was a break, they were to perform clencal, but not transcnpt-related work. The memo he stated, was "receIved wIth alarm by the clasSIfied court reporters" and gnevances were filed. AccordIng to Mr Moore, there was pressure on the Umon to deal wIth the Issue Another "flash pOInt" was the Issuance of a "Report of WorkIng Group on Court ReportIng ServIces" dated November 1990 The report lIsted a number of "pnncIples" regardIng court reporters and outlIned potentIal future dIrectIOns In relevant part, the Report dIrects Mr Uhlmann to negotIate WIth OPSEU optIOns to settle the 1990 polIcy and IndIVIdual gnevances, IncludIng one speCIfic optIOn. Mr Moore was assIgned by OPSEU to playa lead role In "tryIng to find resolutIOn to a number of problems" IncludIng the gnevances resultIng from the Gourley memo Other Issues Included claSSIficatIOn Issues among the vanous types of court reporters, workload Issues, traInIng Issues, postIng of vacanCIes and ImplementatIOn of a Tnbunal deCISIOn concernIng fee-for-servIce court reporters Mr Moore could not recall how he came to be In posseSSIOn of thIS Report, but he testIfied that It had been wIdely CIrculated and dIscussed among the court reporters 6 Mr Uhlmann testIfied that the Report was an Internal document dealIng wIth court reporter Issues He "would not have cIrculated It." He "suspected" that It was not shared wIth OPSEU because It contaIned controversIal matters He dId not belIeve that It was tabled dunng the negotIatIOns, although he stated "we may have talked about the eXIstence of It." He could not recall In addItIOn to numerous IndIVIdual gnevances concermng the Gourley memo and the faIlure to pay overtIme for transcnpt work, the Umon filed two polIcy gnevances On August 3 1990 Umon gnevance ATG-U312 was filed. It states The Umon gneves the dIrectIve Implemented July IS 1990 prohIbItIng Court Reporters from prepanng transcnpts on the employer's tIme The Umon submIts that the employer IS estopped from altenng ItS long standIng condItIOns of employment WIth respect to the preparatIOn of and compensatIOn for transcnpts In terms of remedy the Umon sought reSCISSIOn of the Gourley dIrectIve untIl the expIry of the collectIve agreement, December 31 1991 It also wanted the Issue of compensatIOn for productIOn oftranscnpts to be raised In collectIve bargaInIng, and that "the employer abandon ItS plans to aSSIgn Court Reporters vanous clencal dutIes dunng tIme prevIOusly used for the preparatIOn of transcnpts " On August 28 1990 the Umon filed a second polIcy gnevance ATG-U321 whIch states The umon gneves that the Mimstry of the Attorney General IS In vIOlatIOn of artIcle 13 of the collectIve agreement by faIlIng to compensate Court Reporters WIth overtIme payment for productIOn of transcnpts and any other work reqUIred outsIde regular workIng hours or on scheduled day(s) off 7 In terms of remedy the Umon sought complIance wIth ArtIcle 13 of the collectIve agreement and that the Employer "compensate Court Reporters for all assIgned work performed outsIde regular workIng hours, retroactIve to July IS 1990 wIth Interest." These gnevances had been referred to the GSB and were scheduled for heanng on December 20 1990 Shortly before that date however In lIght of the number of gnevances filed and the scope of Issues that faced the partIes, the partIes agreed to explore potentIal resolutIOn. To that end, they agreed to put all of the outstandIng gnevances on hold pendIng settlement dIscussIOns as well as temporanly return to the status quo before ImplementatIOn of the Gourley dIrectIve A Memorandum of UnderstandIng was executed concernIng thIS agreement and process It was sIgned by the Umon on December 21 1990 and by the Mimstry on January 8 1991 The Memorandum of UnderstandIng states, In pertInent part, as follows The partIes agree on a WIthout preJudIce or precedent baSIS to the folloWIng terms dunng negotIatIOns whIch wIll be undertaken In an attempt to resolve all gnevances relatIng to Court Reporters 1 As a demonstratIOn of good faith, effectIve January 1st 1991 the Mimstry wIll temporanly rescInd the dIrectIve dated May 29th 1990 regardIng the preparatIOn of transcnpts and wIll revert to the pnor practIce In pace In each work locatIOn for the penod of up to 6 months In the event that the partIes are unable to effect a settlement In these matters dunng that tImeframe, the Mimstry wIll revert to the current, post July ISth 1990 practIce ThIS tImelImIt may be extended by mutual agreement of the partIes 2 The Umon agrees that IndIVIdual and polIcy gnevance proceedIngs regardIng Court Reporters WIth respect to the preparatIOn of transcnpts, overtIme, change of work aSSIgnments and claSSIficatIOn, wIll be suspended or put on hold and any gnevances currently or subsequently scheduled for arbItratIOn wIll be adJ ourned dunng negotIatIOns 3 The Mimstry agrees to proVIde tIme off WIth no loss of payor credIts IncludIng reasonable travel tIme for up to S Umon members for the purpose of attendIng negotIatIOns 8 4 NotwIthstandIng pOInt #1 above, eIther party may upon 3 days wntten notIce termInate negotIatIOns and reactIvate any actIOns temporanly set aSIde under pOInt #2 of thIS Memorandum of UnderstandIng. AccordIng to Mr Moore, the partIes agreed to "create a table" to negotIate a resolutIOn of the outstandIng court reporter Issues Each sIde put together a "negotIatIOn team" On the Umon's team were representatIves of the vanous types of court reporters and the two professIOnal court reporter aSSOCIatIOns, WIth Mr Moore as the lead spokesperson. He was adamant that what he formed was a "negotIatIOn commIttee" not a "gnevance commIttee" None of the IndIVIdual gnevors were part of the commIttee He agreed, however that the goal was to resolve all outstandIng matters, IncludIng the gnevances that had been filed. Mr Moore testIfied that the partIes dIscussed the release of InformatIOn about matters dIscussed at the table He stated that the Mimstry wanted the dIscussIOns to be as confidentIal as pOSSIble, whIle the Umon wanted to be able to relay as broadly as pOSSIble what was happemng to ItS members They agreed that the Umon would undertake to be responSIble and the Employer would let the Umon know If they thought It was not. No complaInts from the Employer were receIved Mr Uhlmann testIfied that he had no speCIfic recollectIOn of thIS agreement. He stated that he would not be surpnsed If he had asked for confidentIalIty and that Mr Moore needed a mechamsm to dISCUSS what was happemng wIth the membershIp but he could not recall what they agreed to The eVIdence showed that the Umon, penodIcally sent "negotIatIOns updates" to ItS members, outlImng the vanous proposals and posItIOns of the partIes There IS no eVIdence that 9 Mimstry officIals were sent copIes of these updates, but they were wIdely dIstnbuted and posted at the workplace Mr Uhlmann testIfied that he could not say whether he saw these updates or not, although he "may well have seen them dunng the three years of dIscussIOns" They were not sent to hIm. The negotIatIOnsldIscussIOns contInued sIgmficantly beyond the ongInal sIx-month penod, and the status quo as set out In the Memorandum of UnderstandIng, was contInued In effect. In August 1993 however as part of a cost-cuttIng ImtIatIve the Mimstry wanted to take a senous look at utIlIZIng audIO recordIng to record eVIdence gIven In court, Instead of tradItIOnal transcnpts AccordIng to Mr Moore, thIS caused the court reporter negotIatIOns to gnnd to a halt SInce mOVIng to an audIO system would result In substantIal layoffs, In the range of 40 to 50 percent. Consequently "untIl the Mimstry's plans could be firmed up there was lIttle pOInt In dISCUSSIng other Issues" On October 8 1993 Mr Moore wrote a letter to Mr Uhlmann, regardIng "OutstandIng Court Reporter Issues" Mr Moore testIfied that he was "about to pass the baton" and wanted to make sure that there were no mIsunderstandIngs, and he took care to "naIl It down." The letter states, In pertInent part, as follows As I IndIcated to you when we spoke on the telephone last week, we are Interested In tryIng to tIe up as many loose ends concernIng court reporter Issues as pOSSIble whIle recogmZIng that some matters wIll have to be placed on-hold pendIng the outcome of the ECP [ExpendIture Control PIlot] pIlot proJects A Tnbunal ImplementatIOn B Umon Gnevance on VacanCIes C ECP PIlot Prolects D Court Reporter NegotIatIOns 10 The Mimstry has commItted Itself to testIng the ECP ImtIatIve at a lImIted number of sItes before attemptIng to Implement across the system GIven thIS fact, It makes lIttle sense to attempt to negotIate a solutIOn to our dIfferences on the maJor Items such as claSSIficatIOn, transcnpt productIOn and related matters WhIle we are In "test mode" It IS our VIew that we should put regular negotIatIOns on hold wIth the understandIng that the partIes wIll reconvene when the Mimstry has deCIded what to do wIth the test sIte expenence In thIS context, we belIeve that the status quo wIth respect to the assIgnment of clencal or other dutIes should be maIntaIned. If thIS way of proceedIng IS acceptable to you, I thInk that we should put negotIatIOns on hold WIth the understandIng that the status quo on claSSIficatIOn, transcnpt fees, aSSIgnment of dutIes etc IS to contInue untIl after the test sIte expenence has been evaluated and the Mimstry has determIned the dIrectIOn It wants to head In. Mr Uhlmann responded to Mr Moore on October 14 1993 acknowledgIng receIpt of hIS letter of October 8 1993 and then confirmIng "what I belIeve we have reached agreement on." In pertInent part, the letter contInues 1 NegotIatIOns regardIng outstandIng court reporter matters (i e Transcnpt productIOn, claSSIficatIOn and related matters) are on hold untIl the evaluatIOn process for the first "test" sItes has been completed and a deCISIOn IS reached on where the Mimstry proceeds from there 2 All IndIVIdual and polIcy gnevances regardIng transcnpt preparatIOn, overtIme change of work aSSIgnments, claSSIficatIOn and related Issues are on hold pendIng resumptIOn and conclusIOn of negotIatIOns 3 The status quo WIth respect to the productIOn oftranscnpts wIll be maIntaIned In the Intenm, WIth the exceptIOn of the first test sItes 4 By letter dated October 25 1993 Mr Moore confirmed the Umon's agreement to pOInts one (1) through five (5) In the letter of October 14 1993 Both Mr Moore and Mr Uhlmann testIfied that they belIeved, at the tIme, that negotIatIOns would resume after the completIOn of the pIlot proJ ect and a deCISIOn was made 11 by the Mimstry regardIng audIO recordIng. AlternatI vel y accordIng to Mr Moore, the partIes could deCIde to termInate the dIscussIOns formally Nevertheless, as Mr Moore testIfied, "both sIdes were stIll Interested In arnvIng at common ground." It was hIS understandIng that the status quo would remaIn In place untIl "negotIatIOns concluded and an agreement was reached or ended wIthout agreement." Mr Uhlmann testIfied that It was hIS expectatIOn that after the pIlot proJect, the partIes were free to reactIvate the dIscussIOns or pursue the matter In whatever forum was avaIlable, but that dId not happen. He dIsagreed that the gnevances and ImplementatIOn of the Gourley memo were put on hold Indefimtely Mr Uhlmann further testIfied that untIl the filIng of the current Umon polIcy gnevance on August 20 2003 he was not aware that the Umon was challengIng the Employer's actIOns In relatIOn to transcnpt work. He had not been advIsed of the earlIer group gnevance SInce It was sIte-speCIfic With the ImplementatIOn of the ECP pIlot proJect and cessatIOn of the court reporter negotIatIOns, Mr Moore went onto other assIgnments and dId not have any dIrect responSIbIlIty for court reporter Issues after that tIme He dId not know what occurred after the completIOn of the pIlot proJect, or what happened wIth the negotIatIOns It was I eft wIth Head Office to assIgn someone to the negotIatIOns Mr Uhlmann was dIrectly Involved In the ECP pIlot proJect as ProJect Manager That proJect ended In late 1996 wIth the Mimstry deCIdIng not to pursue audIO recordIng. Shortly thereafter In 1997 Mr Uhlmann left the government. He held a number of posItIOns In the pnvate sector and returned to the Mimstry of the Attorney General In 2001 12 There IS no eVIdence In the record that negotIatIOns ever resumed, or that the status of these Issues was further dIscussed by the partIes after the completIOn of the ECP pIlot proJect. The gnevances appear to have gone Into what counsel for the Umon descnbed as a "black hole" Mr Uhlmann testIfied that he was not aware of any POlICY-WIde change ImplementIng the Gourley memo eIther before he left In 1997 or after hIS return In 2001 Not surpnsIngly he was unaware of thIngs that happened whIle he was not employed by the Mimstry There IS no eVIdence In the record, however regardIng whether or not the Gourley memo has been generally Implemented by the Mimstry EVIdence from the first day of heanng, from Ms Rosa MartellI, Manager of Court OperatIOns, Toronto RegIOn, IndIcated that at the East Mall Court Houses, the practIce of schedulIng court reporters out of court to prepare transcnpts ceased In 1998 or 1999 due to budgetary constraInts She testIfied that her InstructIOns came from her regIOnal head office, but was not aware If the change was mImstry-wIde She testIfied, however that court reporters were stIll allowed to prepare transcnpts on down tIme from court. AccordIng to Mr Moore's eVIdence In examInatIOn-In-chIef, thIS was the practIce that the May 29 1990 Gourley memo sought to change, and whIch the partIes' placed on hold pendIng attempts to resolve a number of court reporter Issues The Gourley memo does not appear to Involve the schedulIng of court reporters out of court to prepare transcnpts, but even If It dId, there IS no eVIdence that the Gourley memo has been Implemented beyond the East Mall Court Houses One of the gnevors, Florence Clark, testIfied on the first day that the practIce of USIng down tIme to type transcnpts was changed around 1991 and that the practIce of schedulIng days out of court to type transcnpts ceased shortly thereafter 13 The subsequent eVIdence of Mr Moore and Mr Uhlmann, and the documents Introduced at the heanng, however IndIcates that It IS unlIkely that anythIng changed In 1991 There was a clear central agreement that the Gourley memo would not be Implemented whIle the partIes tned to resolve theIr dIfferences Whatever practIce eXIsted before that memo would contInue In effect, and the eVIdence showed that the practIce was not umform It vaned throughout the proVInce, although, accordIng to Mr Moore, a sIgmficant maJonty of employees were allowed to use work tIme to prepare transcnpts That agreement to maIntaIn the status quo contInued whIle the negotiatIOns were In progress untIl late 1993 and thereafter by further agreement, through the completIOn of the pIlot proJects In 1996 In lIght of thIS agreement, It seems very unlIkely that anythIng changed In 1991 Mr Moore testIfied that he had a complete file wIth detaIled bargaInIng notes regardIng the negotIatIOns but It was destroyed "sometIme In mId-2002 " Mr Uhlmann also testIfied that he had a complete file, but that he has no knowledge of ItS whereabouts SInce he left the government In 1997 He testIfied that he was the lead In the negotIatIOns and keeper of the records, not the other members of the management team who have SInce left the government or retIred. He dId not InqUIre If they had any records of these negotIatIOns but felt It was unlIkely that they would. Mr Uhlmann testIfied that hIS Independent recollectIOn of the 1990-1993 negotIatIOns was "very very lImIted." His recollectIOn was based pnmanly on the documents supplIed by the Umon at thIS heanng, and the testImony of Mr Moore He had no Independent recollectIOn of the specIfics of the partIes' dIscuSSIOns 14 Mr Moore was extensIvely cross-examIned regardIng the term of the Memorandum of UnderstandIng that the dIscussIOns were "wIthout preJudIce or precedent." It was hIS VIew consIstently that the posItIOns that the partIes' took In the negotIatIOns were to be "wIthout preJudIce and wIthout precedent" to any later posItIOn or matter but that nothIng was to be kept secret or could not be shared wIth the members In thIS manner Mr Moore felt that the dIscussIOns were not gnevance settlement dIscussIOns whIch are confidentIal and pnvIleged, but were akIn to collectIve bargaInIng. On cross-eXamInatIOn, he acknowledged that gnevances were dIscussed as well as non-gnevance Issues, and that there was a "resemblance" to dIscussIOns to resolve gnevances, "but they were not the same" He agreed that the dIscussIOns surroundIng the partIes' proposals were on a "wIthout preJudIce or precedent" basIs What was bIndIng and enforceable - that IS, "WIth preJudIce" - were the substantIve terms of the Memorandum. ThIS Included placIng all the gnevances on hold, revertIng to the status quo ante In terms of the Gourley memo creatIng a bargaInIng table and proVIdIng tIme off wIthout loss of pay to the Umon commIttee members whIle the negotIatIOns contInued. Mr Uhlmann testIfied that the dIscussIOns and proposals were all on a "WIthout preJudIce or precedent" basIs In hIS VIew he was not "negotIatIng" and stated that he had no authonty to negotIate on behalf of management board. Instead, he was tryIng to resolve gnevances In hIS VIew the dIscuSSIOns were gnevance settlement negotIatIOns He stated that the Umon never advIsed hIm that the partIes' dISCUSSIOns, proposals or documents could be used as eVIdence In future proceedIngs It was hIS VIew that the agreement that all dIscuSSIOns and proposals would be "WIthout preJudIce or precedent" was never changed, nor Waived. 15 PenodIcally the GSB sent the partIes a number of letters concernIng the two polIcy gnevances, among others On February 6 1991 RegIstrar Joan ShIrlOW wrote to the Mimstry that the Umon had wIthdrawn Umon Gnevance ATG-321 (GSB NO 1350190) ThIS was based on correspondence from Umon counsel to Ms ShIrlOW dated November 23 1990 whIch stated that the Umon gnevance scheduled for December 17 1990 "has been wIthdrawn wIthout preJudIce" Subsequent correspondence however shows that the Umon gnevance actually wIthdrawn was dated Apnl 30 1990 and dealt wIth classIficatIOn Issues Nevertheless, the Board's records stIll showed that the Umon had wIthdrawn ATG-U321 (GSB No 1350190) ThIS was clearly In error On July 26 1991 Gnevance Officer Bebe Ahad wrote to Ms ShIrlOW regardIng a large number of court reporter gnevances, IncludIng ATG-U312 and ATG-U321 statIng "that the partIes have agreed to keep all matters adJourned whIle we attempt to negotIate a settlement that wIll resolve all Issues raised In the above-captIOned gnevances" It contInues WhIle negotiatIOns commenced In December 1990 we have not reached a settlement to date However we are engaged In ongOIng dIscussIOns In an attempt to reach a settlement. In these cIrcumstances, we ask that the mater remaIn on the Gnevance Settlement Board's InactIve lIst for another year Thereafter on May 2, 1994 RegIstrar ShIrlOW sent all the Mimstnes, IncludIng the Mimstry of the Attorney General, a letter regardIng "TermInatIOn of Cases" IncludIng, among many others, ATG-U312 (GSB No 1397/90) The letter states "In accordance wIth Mr ShIme's [the Chair of the GSB] letter of September 13 1991 please be adVIsed that the folloWIng cases from the InactIve LISt have been termInated." It should be noted that thIS letter of termInatIOn was wntten whIle the ECP pIlot proJect was stIll contInuIng. 16 At all matenal tImes, although Its IdentIfYIng number has changed over tIme the collectIve agreement between the partIes provIded as follows ArtIcle 22 14 General 22 14 1 Where a gnevance IS not processed wIthIn the tIme allowed or has not been processed by the employee or the Umon wIthIn the tIme prescnbed It shall be deemed to have been wIthdrawn. Under the collectIve agreement, a gnevor has fifteen (15) days from the tIme the Stage Two decIsIOn IS receIved or due to apply through the Umon, to the Gnevance Settlement Board for a heanng of the gnevance There IS no tIme frame speCIfied In the collectIve agreement for referral to arbItratIOn In regard to Umon gnevances In ArtIcle 22 1 however the partIes recogmzed the need for promptness In gnevance matters That provISIOn reads 22 1 It IS the Intent of thIS Agreement to adJust as qUIckly as pOSSIble any complaInts or dIfferences between the partIes ansIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of thIS Agreement, IncludIng any questIOn as to whether a matter IS arbItrable OngInally the Employer sought only to dIsmIss the Umon polIcy gnevance on thIS basIs After questIOns posed by me, the Employer sought to amend ItS motIOn to dIsmISS both the group and the Umon polIcy gnevance The Umon obJected to that expanSIOn of the motIOn. Thereafter the partIes argued whether or not the Employer could expand ItS motIOn In thIS manner 17 The Employer's Motions to Dismiss Positions of the Parties The Employer contends that the gnevances should be dIsmIssed due to the fact that the same Issue was gneved In 1990 and was eIther wIthdrawn, deemed wIthdrawn, termInated by the GSB or abandoned by the Umon. It asserts that the Umon should be estopped from raiSIng the same Issue agaIn, and that It IS barred from proceedIng due to ItS faIlure to pursue the earlIer gnevances, delay and laches The Employer argues that the eVIdence establIshes that the partIes agreed to hold the 1990 gnevances In abeyance untIl the completIOn of the ECP pIlot proJect, not Indefimtely At that pOInt, If not before, It asserts that It was Incumbent upon the Umon to do one of three thIngs (1) resurrect the 1990 gnevances (2) alert the Employer to the Issue or (3) file another gnevance None of those thIngs, It asserts, happened. Instead, Mr Moore left. Mr Uhlmann left, and from 1996 to 2003 there was no gnevance actIVIty from a polIcy perspectIve It asserts that the 2001 group gnevance dId not IndIcate a broader central Issue regardIng transcn pt work. Consequently the Employer asserts that for seven years, the Umon faIled to raise thIS Issue, lullIng the Employer Into a false sense of secunty and the VIew that the Umon was no longer assertIng that transcnpt work was bargaInIng umt work subJect to the overtIme proVISIOns of the collectIve agreement. The Employer contends that the Umon had WIthdrawn one of the polIcy gnevances, and the Mimstry was so notIfied by the GSB It asserts that the Board termInated the other polIcy gnevance and the Mimstry was advIsed of that. It also relIes on ArtIcle 22 14 under whIch, It asserts, the gnevances must be deemed to have been WIthdrawn when they were not pursued 18 after the completIOn of the pIlot proJect. Those facts, It asserts, plus the passage of seven years, clearly IndIcates that the Umon abandoned the Issue and cannot now proceed wIth the Issue by filIng a new gnevance In the Employer's VIew the Umon dropped the ball after Mr Moore moved on, and no one pIcked It up agaIn. It submIts that the Umon provIded no JustIficatIOn, or explanatIOn, for lettIng the Issue lapse for so long. It submIts that there was no agreement that the Issues remaIn on hold Indefimtely but only untIl the completIOn of the pIlot proJ ect. It asserts that there IS no eVIdence that the Umon alerted the Employer to the fact that the Issue would be resurrected In the future Under these cIrcumstances, the Mimstry asserts that the Umon IS estopped or precluded from proceedIng wIth the Instant gnevances To allow It to do so It claims, VIOlates the pnncIple of finalIty and IS an abuse of the gnevance arbItratIOn process In support of ItS posItIOn, the Employer cItes to Re Weston Bakeries Ltd (Kingston) and Milk and Bread Drivers Dairy Employees Caterers and Allied Employees Local Union 647 (1998) 76 L.AC (4th) 258 (SImmons) Re Saint-Gobain Abrasives and Communications, Energy and Paper", orkers Union of Canada, Local 12 (2003) 120 L AC (4th) 72 (Burkett) OPSEU (Cherry) and Ministry of Finance (2003) GSB No 0626/01 (Gray) Re Dominion Colour Corp and Teamsters Chemical, Energy and Allied Workers, Local 1880 (1999) 83 LAC (4th) 330 (EllIs) The Employer also contends that allowIng these gnevances to proceed would depnve the Employer of ItS nght to a fair heanng SInce, due to the passage of tIme, ItS abIlIty to defend ItS actIOns has been preJudIced. The Umon, the Employer asserts, IS relYIng on dIscuSSIOns and posItIOns taken In 1991-1993 to support ItS argument In 2004 that transcnpt preparatIOn IS 19 bargaInIng umt work. The Employer asserts that Its abIlIty to defend Itself has been compromIsed by the passage of so much tIme It has no negotIatIOn notes or files, and Mr Uhlmann has only a vague recollectIOn of the dIscussIOns that took place at that tIme It asserts that thIS constItutes preJudIce whIch precludes a fair heanng, and reqUIres dIsmIssal of the gnevance because of delay laches and preJudIce In support It cItes to Re Kroeger and MinistlY of the Solicitor General and Correctional Services (1999) P/0060198 (Willes) OPSEU (Alexandel) andMinistlY of Transportation (1999), GSB No 2231/97 et al (Gray) The Umon contends that It IS not, at thIS Juncture, seekIng to reVIve the 1990 gnevances Instead, It submIts that the earlIer gnevances do not and should not preclude the Issue from beIng decIded now The Umon argues that the 1990 gnevances were not settled, WIthdrawn or abandoned. It submIts that the Board's February 1991 letter that ATG-U321 was WIthdrawn IS clearly Incorrect, based upon subsequent correspondence It asserts that the partIes, after that date, agreed to put all of the gnevances on hold pendIng settlement dIscuSSIOns and that the Umon so notIfied the Board, correctIng the Board's ImtIal error Under these facts, the Umon asserts that there can be no questIOn that the partIes dId not conSIder ATG-U321 to have been WIthdrawn, and the Employer was not mIsled Into thInkIng that It had been WIthdrawn. SImIlarly the Umon argues that the GSB's "termInatIOn" of ATG-U312 was not a valId termInatIOn and IS non-bIndIng, CItIng OPSEU (King-Marshall) and Ministry of Correctional Services (1992) GSB No 1249190 et al (Barrett) It asserts that, under the facts, the Board's admInIstratIve termInatIOn was Incorrect and should not control the Issue 20 The Umon further asserts that there IS no basIs to conclude that the gnevances were "deemed wIthdrawn" or abandoned. It submIts that the partIes agreed to maIntaIn the status quo as to both the ImplementatIOn of the Gourley memo and the gnevances, and that both sIdes held to that status quo untIl 1999 whIch led to the group gnevance In May of 2001 Under these facts, It submIts that the Umon dId not Improperly fall to pursue or abandon the Issue The Umon was sImply satIsfied wIth the status quo - untIl that status quo was changed by the Employer It asserts that both partIes operated on thIS understandIng, and the Employer was not mIsled otherwIse The Umon argues that, under the facts, there IS no basIs to conclude that the Umon shared the Employer's InterpretatIOn of the collectIve agreement. It asserts that there was no agreement on the Issues surroundIng transcnpt work. In support, It cItes to Re North American Lumber Ltd and International Woocfu,orkers of America, Local 2693 (1992) 25 LAC (4th) 402 (Marcotte) Aventis and Communications Energy and Papeffiorkers Union of Canada, Local 1701 (2003) unreported decIsIOn of R. Abramsky In the alternatIve, the Umon argues that even If the 1990 gnevances were abandoned by the Umon, that does not preclude the Umon from raiSIng the Issue In a new gnevance sInce there was never any determInatIOn made on the ments of those earlIer gnevances AccordIngly the pnncIple of res judicata does not apply In support, It cItes to Re Humber College of Applied Science and Technology and OP SEU (1999) 80 L.A C (4th) 108 (SchIff) Re P harma Plus Drugmarts Ltd and UF C W Local 175 (1991) 20 L.AC (4th) 251 (Barton) Re Khirkanan v Khirkhanan (1983) 44 O.R. (2d) 476 (H.C JustIce) 21 The Umon also argues that the Board's earlIer rulIng regardIng consolIdatIOn IS res judicata regardIng any other Issues whIch could have been raised concermng the Board's JunsdIctIOn over the polIcy gnevance, and that the Board has no authonty to reconsIder ItS decIsIOn. It also submIts that the first decIsIOn In thIS matter IS res judicata on the Issue of preJudIce In support, It cItes to OPSEU (Fox et al.) and Ontario Human Rights Commission (2001), GSB No 0507/01 et al (Stewart) OPSEU (HolJ,e Dalton Loach) and Ministry of Correctional Services (1995) GSB No 3155/02 et al (DIssanayake) In reply the Employer asserts that It IS not seekIng to relItIgate the consolIdatIOn order It asserts that, at the tIme the Umon's motIOn to consolIdate was made, It had no knowledge about the 1990 gnevances That was only learned later and It ImmedIately raised the Issue of abandonment. The earlIer rulIng, the Employer submIts, does not preclude the Employer from raiSIng the Issue once It was dIscovered. The Employer contends that there IS no eVIdence In the record that the partIes had an Indefimte agreement to maIntaIn the status quo or eVIdence that the Employer kept ItS end of that "bargaIn" untIl 1999 There IS SImply no eVIdence about what transpIred at other locatIOns The Employer submIts that the Board's admInIstratIve termInatIOn of ATG-U312 IS very relevant and places the onus on the Umon to explaIn ItS faIlure to act. It submIts that the onus was not met In thIS case, and that the Employer was led to belIeve that the Issue of transcnpt work was termInated by the Board, or otherwIse abandoned and wIthdrawn. 22 Decision on Motions to Dismiss The eVIdence clearly establIshes that the August 20 2003 polIcy gnevance and the August 3 1990 gnevance - ATG-U321 - raise the same Issue Although worded dIfferently both assert that prepanng transcnpts are bargaInIng umt work subJect to the collectIve agreement, IncludIng the overtIme provIsIOns The Issue IS the same The partIes are the same The relevant collectIve agreement language IS the same The other August 1990 polIcy gnevance - ATG-U312 - dealt wIth the ImplementatIOn of the Gourley memo whIch precluded court reporters from prepanng transcnpts dunng downtIme from court. That same Issue was raised, In part, In the May 2001 group gnevance The eVIdence shows that the partIes agreed, In December 1990 to put the two 1990 polIcy gnevances, and all SImIlar IndIVIdual gnevances, on hold pendIng settlement dIscussIOns In exchange the Employer agreed to return to the status quo (whatever practIce eXIsted at the local level) before the ImplementatIOn of the Gourley memo In November 1993 the partIes agreed to adJourn theIr dIscussIOns but maIntaIn theIr ongInal agreement (i e the Gourley memo and the gnevances would remaIn on hold) untIl the completIOn of the audIO recordIng pIlot proJect and a deCISIOn beIng made about that by the Employer The eVIdence does not support a determInatIOn that the partIes' agreement to maIntaIn the ongInal agreement was Indefimte It was only untIl the completIOn of the pIlot proJect. Mr Moore's letter of October 8 1993 states, In part, "[w]hIle we are In 'test mode' It IS our VIew that we should put regular negotIatIOns on hold WIth the understandIng that the partIes wIll reconvene when the Mimstry has decIded what to do WIth the test sIte expenence" It contInues "that the status quo IS to contInue untIl after the test sIte expenence has been 23 evaluated and the Mimstry has determIned the dIrectIOn It wants to head In " Mr Uhlmann's response confirms that "negotIatIOns are on hold untIl the evaluatIOn process for the first 'test' sItes has been completed and a decIsIOn IS reached on where the Mimstry proceeds from there " and "that the status quo wIth respect to the productIOn oftranscnpts wIll be maIntaIned In the Intenm, wIth the exceptIOn of the first test sItes" By the terms of thIS correspondence the partIes' agreement was not for an Indefimte penod of tIme There was no agreement to keep the gnevances on hold as long as the Gourley memo was not Implemented. Instead, the partIes agreed to keep everythIng on hold - the negotIatIOns, the gnevances and the Gourley memo - untIl the completIOn of the pIlot proJect and a decIsIOn on audIO recordIng. The eVIdence shows that after the completIOn of the pIlot proJect In 1996 and the Mimstry's decIsIOn on audIO recordIng - nothIng happened In regard to the negotIatIOns or the gnevances The negotIatIOns dId not resume The gnevances were not pursued. There was no formal termInatIOn of the negotIatIOns, as provIded for In paragraph 4 of the ongInal Memorandum of UnderstandIng. There was no explanatIOn, by eIther sIde, of why nothIng occurred after 1996 The Umon contends that nothIng happened because the Employer kept ItS end of the bargaIn not to Implement the Gourley memo and that the group gnevance was filed after they dId Implement It at the 80 East Mall locatIOn. It asserts that the Employer and Umon acted on a common understandIng to maIntaIn the status quo With respect, the eVIdence does not support thIS contentIOn. There was no common understandIng that both sIdes would maIntaIn the status 24 quo beyond the audIO pIlot proJect. The agreement was to maIntaIn the status quo untIl the completIOn of the pIlot proJect, not Indefimtely There IS also no eVIdence that the group gnevance was filed In response to a change In the status quo concermng the Gourley memo that took place In 1999 as the Umon asserts FIrst, It was the Umon's eVIdence that the change In practIce took place In 1991 not 1998 or 1999 The 1998 or 1999 dates come from the Employer's eVIdence through Rosa MartellI, that the practIce of schedulIng clasSIfied court reporters to tIme out-of-court to type transcnpts ceased In 1998 or 1999 She further testIfied, however that employees' were stIll allowed to use down tIme to type transcn pts The use of down tIme to prepare transcnpts was what the Gourley memo sought to change Ms MartellI's eVIdence, therefore, was that the Gourley memo had stIll not been Implemented. Ms Clark testIfied that the practIce of USIng downtIme to prepare transcnpts changed In 1991 but she dId not learn that others were not sImIlarly affected untIl many years later whIch led to the filIng of the group gnevance I find, however that the subsequent eVIdence does not support the conclUSIOn that the practIce changed In 1991 The eVIdence of both Mr Moore and Mr Uhlmann, and the documentary eVIdence, clearly IndIcates that the partIes' agreed to place the Gourley memo on hold. Whatever the status quo was at the local level, before the Gourley memo was contInued. Consequently It seems very unlIkely that anythIng changed In 1991 and the fact that Ms Clark learned that there was no umformIty among the courthouses was a result of the dIffenng practIces, not a change In practIce by the Mimstry It IS my VIew that the gnevances were, In effect, abandoned and "deemed WIthdrawn" under ArtIcle 22 14 of the collectIve agreement. In so rulIng, I do not rely on the RegIstrar's 25 February 6 1991 letter that the Umon wIthdrew ATG-U321 That letter was clearly In error The gnevance that had been wIthdrawn was a dIfferent polIcy gnevance dated Apnl 30 1990 and Involved classIficatIOn Issues, and the Board was effectIvely advIsed of thIS error Further on July 26 1991 Gnevance Officer Bebe Ahad advIsed the Board that ATG-U321 was on hold pendIng settlement dIscussIOns The Employer had agreed to thIS approach In the December 1990 Memorandum of UnderstandIng. It could not have been mIsled by the Board's February 6 1991 letter regardIng wIthdrawal of the gnevance I also do not rely on the Board's admInIstratIve termInatIOn of ATG-U312 In May 1994 In late 1993 the partIes agreed to put everythIng on hold untIl completIOn of the audIO recordIng pIlot proJect. The Board's termInatIOn letter came whIle the pIlot proJect was ongOIng. In my VIew the partIes' agreement to place all matters on hold supersedes the Board's admInIstratIve termInatIOn of gnevance ATG-U312 Further under these facts, the Employer should not have been mIsled Into belIevIng that the gnevance was, In fact, termInated. Nevertheless, I find that the 1990 gnevances were abandoned and "deemed WIthdrawn" under ArtIcle 22 14 After the completIOn of the audIO recordIng pIlot proJect, the gnevances appear to have gone Into a "black hole" The Umon dId not pursue them, and no explanatIOn was proVIded for thIS NeIther sIde reactIvated the negotIatIOns, nor were they formally termInated. Instead, nothIng happened. It appears that WIth Mr Moore's departure, the ball was dropped and no one pIcked It up agaIn. Under these facts, the 1990 gnevances must be "deemed WIthdrawn" under ArtIcle 22 14 Although there IS no speCIfic tIme set out In the collectIve agreement for havIng a gnevance once referred to arbItratIOn, be scheduled by the Umon for heanng, a reasonable penod of tIme 26 must be Inferred. In thIS case, the tIme clock to measure what was "reasonable" started from the completIOn of the pIlot proJect near the end of 1996 The Umon polIcy gnevance was not filed untIl August 2003 almost seven years later That IS clearly unreasonable by any measure LIkewIse If measured from the May 2001 group gnevance the penod IS five years, also an unreasonable delay In purSUIng the matter The partIes, In ArtIcle 22 1 have agreed to the Importance of "adJust[ing] as qUIckly as pOSSIble any complaInts or dIfferences between the partIes ansIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of thIS Agreement " In the absence of a reasonable explanatIOn, the tIme frame for schedulIng a gnevance for arbItratIOn should be measured In months, not years The questIOn, then, IS what IS the legal affect of the Umon's abandonment andlor "deemed wIthdrawal" of the 1990 polIcy gnevances? Does It preclude the Umon from raiSIng the same Issue In the August 2003 polIcy gnevance or the 2001 group gnevance? There IS a lIne of arbItral authonty that the settlement, wIthdrawal or abandonment of a gnevance precludes the filIng of a subsequent gnevance that raises the same Issue In Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965) 15 L.AC 403 at 403-404 (RevIlle) CIted In Saint-Gobain Abrasives and Communications, Energy and PaperJ1,orkers Union of Canada, Local 12 supra, the Board stated 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 determIne a gnevance whIch, though not IdentIcal In wordIng and form to a former gnevance lodged by the same gnevor IS IdentIcal In substance 27 The purpose of thIS "arbItral rule of abandonment" IS to provIde finalIty and prevent abuse of the arbItratIOn process As set out by ArbItrator RevIlle In the City of Sudbury case, quotIng from Mueller Ltd (1961) 12 L AC 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 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 A countervaIlIng consIderatIOn to finalIty and the preventIOn of abuse of the gnevance process was recogmzed by ArbItrator Adell In Re Governing Council of the University of Toronto and Service Employees Union, Local 204 (1975) 10 LAC (2d) 417 at 431- 432 (Adell) also CIted In Saint-Gobain, supra He recogmzed that consIderatIOn of a umon's faIlure to pursue a filed gnevance Involved "a weIghIng of two dIfferent ends of the contractual gnevance procedure" The board contInued The first of those ends embodIes elements of certaInty repose and economy of effort and expense It IS the end that comes most clearly Into VIew when one's pnmary concern IS to prevent abuse of the gnevance procedure The competIng end IS at least as Important. We wIll call It the' substantIve nghts' end, for It conSIsts of the VIndIcatIOn of nghts created by the collectIve agreement, and It comes most clearly to VIew when one IS pnmanly concerned WIth gIVIng substantIve effect to the terms of a collectIve agreement. NeIther end, In hIS VIew should always prevaIl Both were "IntnnsIcally valId and the chOIce of one over the other In a partIcular case must depend upon the CIrcumstances of the case" (10 L.AC (2d) at 434) In hIS VIew however "the VIndIcatIOn of the substantIve nghts created by the collectIve agreement must be accorded a pnma faCIe domInance - a domInance whIch can be 28 overcome by a demonstratIOn that the fears of substantIal abuse of process whIch underlIe the 'efficIency' end have a factual basIs In the partIcular case" (10 L.AC (2d) at 434) In Saint-Gobain Abrasives and Communications, Energy and PapelYf,orkers Union of Canada, Local 12 supra, ArbItrator KevIn Burkett agreed that there must be a balancIng between the competIng "substantIve nghts" and "efficIency" ends, but he added to ArbItrator Adell's VIew of the "efficIency" consIderatIOn. ArbItrator Burkett stated at p 80 WhIle I agree wIth Prof Adell that a determInatIOn wIth respect to the effect of the pnor wIthdrawal of an IdentIcal gnevance Involves a balancIng of those competIng Interests or ends, I am of the VIew that the efficIency end Involves more than Just an aVOIdance of abuse of process It must also be applIed to lImIt the scope for conflIct where the wIthdrawal of a pnor gnevance clearly eVIdences an acceptance of the other partIes' posItIOn. In ArbItrator Burkett's VIew there "ought not to be a blanket rule that the wIthdrawal of any pnor gnevance automatIcally bars the filIng of a subsequent gnevance that raises the same Issue" Nevertheless, when "the wIthdrawal constItutes a representatIOn by the party wIthdrawIng the gnevance that It IS content to be governed by the other sIde's InterpretatIOn" It "gIves nse to a rebuttable presumptIOn that the wIthdrawIng party has accepted the other sIde's InterpretatIOn of the collectIve agreement." (120 L.AC (4th) at 81-82) ThIS VIew IS fully consIstent WIth what ArbItrator RevIlle stated In the ongInal City of Sudbury case, supra at p 404 that "If the gnevor and/or the umon actually or ImplIedly accept the decIsIOn of management they should not be allowed to have second thoughts on the matter and reprocess essentIally the same gnevance at a later date" The same analysIs was adopted by ArbItrator Marcotte In Re North American Lumber Ltd and International Woocfu,orkers of America, Local 2693 supra at p 419 when he 29 concluded, under the facts there, that the umon's wIthdrawal could not, In any way be "vIewed as an actual or ImplIed acceptance of the company's decIsIOn on the gnevance " Nor could It "have provIded the company wIth any reasonable opportumty to conclude that the umon had, eIther actually or ImplIedly accepted ItS pre-arbItratIOn decIsIOn on the subJect matter of the gnevance" LIkewIse, In Aventis and Communications, Energy and PaperJ1,orkers Union of Canada, Local 1701 supra, I ruled that where the umon wIthdrew an earlIer gnevance on a "wIthout preJudIce" basIs, wIthout obJectIOn by the employer "It IS not at all clear that the Umon Intended to bInd Itself to the Employer's InterpretatIOn [of the collectIve agreement] by ItS wIthdrawal of the gnevance In my VIew far more eVIdence of Intent would be reqUIred to bInd the Umon to such an InterpretatIOn." In thIS case, the questIOn of whether the Umon's faIlure to pursue the 1990 polIcy gnevances may reasonably be vIewed as an actual or ImplIed acceptance of the Employer's posItIOn on the Issue of transcnpt work, IS a very dIfficult one A strong argument may be made that the Umon's faIlure to pursue the gnevances from 1996 to eIther 2001 or 2003 constItutes an ImplIcIt acceptance of the Employer's posItIOn. After the passage of so many years wIth no purSUIt of the gnevances, It would not be unreasonable for the Employer to have vIewed the Umon's InactIOn as acqUIescence The Umon's assertIOn that It dId not need to file a gnevance whIle the Gourley memo had yet to be Implemented IS not supported by the eVIdence There IS no eVIdence that the Gourley memo has ever been Implemented. The eVIdence about 80 East Mall IS, at best, conflIctIng. WhIle Ms MartellI testIfied that the practIce of schedulIng court reporters tIme out of court to type transcnpts changed In 1998 or 1999 that practIce was not part of the Gourley memo But even assumIng that It was part of It, and the practIce changed at that locatIOn In 1998 or 1999 30 that could only explaIn why the Umon dId not pursue ATG-U312 whIch dealt wIth the Gourley memo untIl that tIme It cannot explaIn why the Umon dId not pursue ATG-U321 the overtIme gnevance As I ruled In an earlIer decIsIOn, the alleged demal of overtIme IS a contInuIng vIOlatIOn. In lIght of these facts, the faIlure of the Umon to pursue ATG-U321 for so many years could reasonably be vIewed by the Employer as an ImplIcIt acceptance of ItS posItIOn. It creates a rebuttal Inference to that effect. I find, however that consIderatIOn of all of the facts, IncludIng the earlIer negotIatIOns that preceded 1996 rebuts that Inference It IS clear that the negotiatIOns ended wIthout any resolutIOn of the key Issues There was no meetIng of the mInds on the transcnpt Issue The Umon never agreed or acqUIesced to the Employer's posItIOn or VIce versa. The partIes' contInued to dIsagree Both expected negotIatIOns to resume after the pIlot proJect and both partIes faIled to act after that pOInt. EIther sIde could have renewed the matter or raised the Issue In my VIew thIS hIStOry - partIcularly the Umon's earlIer explIcIt reJectIOn of the Employer's posItIOn - sIgmficantly undermInes the Inference that the Umon' s later InactIOn may be vIewed as acqUIescence In lIght of the partIes' contInued dIsagreement, the "wIthdrawal of a pnor gnevance [does not] clearly eVIdence an acceptance of the other partIes' posItIOn." ( emphasIs added, Saint Gobain, supra at p 80) But for the negotIatIOn hIStory In thIS matter I would conclude that the five to seven year penod of non-actIOn by the Umon precludes It from raiSIng the Issue anew But under the specIfic facts of thIS case, the Umon' s InactIOn does not constItute a clear representatIOn that It was content to be governed by the Employer's InterpretatIOn. In my VIew the Umon dropped the ball, but I cannot conclude, In lIght of the hIStOry concernIng the court reporter Issues, that ItS InactIOn constItutes an ImplIcIt acceptance of the Employer's InterpretatIOn of the collectIve agreement. 31 The Employer asserts that to allow the Umon the nght to raise these Issue amounts to an abuse of gnevance process I cannot agree There IS no eVIdence to suggest that the Umon faIled to act on the 1990 gnevances, and then refiled It m 2003 m order to harass the Employer or to CIrcumvent the tIme lImIts m the collectIve agreement. As stated by ArbItrator Adell m Re Governing Council of the University of Toronto supra at p 434 "It IS not sufficIent to assume, from the mere fact of wIthdrawal or abandonment, that harassment was mtended or that detnment resulted. If mtentIOn to harass IS alleged, It must be supported by eVIdence and If detnment IS alleged, It too must be supported by eVIdence as m the case of estoppel or laches" In terms of detnment, the Employer relIes on ItS mabIlIty to defend assertIOns based on the 1990 negotIatIOns Mr Uhlmann's eVIdence was that he only had a vague recollectIOn of the specIfics of the dIscussIOns and had no knowledge of where hIS negotIatIOn file mIght be after he left the government m 1997 These facts have relevance m my VIew to whether the eVIdence concernmg the 1990-1993 negotIatIOns should be admItted or whether the Umon should be allowed to rely on such eVIdence They do not demonstrate preJudIce to the Employer's abIlIty to defend the broader Issue SImIlarly the Employer has not demonstrated that the Umon's faIlure to pursue the 1990 gnevances has caused It detnment. There IS no eVIdence that the Employer changed anythmg or reframed from changmg anythmg based on the Umon's faIlure to pursue these earlIer gnevances The Mimstry contmued to treat transcnpt work as It had always done There IS no eVIdence that the Employer suffered any detnment by the Umon's faIlure to pursue the overtIme Issue earlIer In denymg the Employer's motIOns to dIsmIss, I wIsh to clanfy that I am not relymg on the Umon's argument that thIS Board's consolIdatIOn order IS res judicata on all Issues 32 concermng the Board's JunsdIctIOn. The motIOn to consolIdate dId not address the Board's JunsdIctIOn In a general sense It addressed whether there were grounds to consolIdate the polIcy and group gnevances It was a lImIted rulIng. Further at the tIme the Employer was unaware of the earlIer gnevances WhIle In some respects It does seem surpnSIng that Mr Uhlmann dId not earlIer recall or alert counsel for the Mimstry about the earlIer gnevances on the same Issue, those gnevances took place qUIte a number of years ago and It IS qUIte possIble that he dId not recall them I can find no basIs In the eVIdence to conclude that the Mimstry was aware of these earlIer gnevances at the tIme that the Umon filed ItS motIOn to consolIdate The eVIdence IS to the contrary AccordIngly I cannot conclude that the earlIer consolIdatIOn order precludes the Employer's motIOns Nor In my VIew may the Employer's motIOns to dIsmIss be vIewed as a request to reconsIder the consolIdatIOn order The Employer does not oppose the consolIdatIOn, and does not seek to have that determInatIOn reconsIdered. It also does not seek to reconsIder the rulIng In regard to preJudIce The earlIer rulIng specIfically stated that "If there IS eVIdence of preJudIce to the Employer's abIlIty to defend ItS actIOns, that Issue may be dealt wIth dunng the heanng." That IS precIsely what occurred. Further In denYIng the Employer's motIOns to dIsmIss, I do not wIsh to condone the Umon's InactIOn. The Umon's faIlure to pursue those gnevances, In my VIew precludes any remedy for the tIme penod precedIng the gnevances What I have decIded IS that under the specIfic - and qUIte unusual - facts of thIS case, the Umon's faIlure to pursue those gnevances does not forever bar the Issue from beIng raised under the "arbItral rule of abandonment." 33 For the same reasons, the Employer's motIOn to dIsmIss because of laches cannot succeed. In Re Governing Council of the University of Toronto supra, the board of arbItratIOn outlIned the reqUIrements for laches RelYIng on Re Parking Authority of Toronto and C Up.E. Local 43 (1974) 5 L.A.C (2d) 150 (Adell) the board stated as follows regardIng laches, at p 423 (emphasIs In ongInal) [A] party does not make a case for laches merely by shoWIng that 'It would be unfair or In the commonly used sense of the term, 'IneqUItable' to allow the other party to enforce ItS legal nghts Rather the specIfic prereqUIsItes developed by the Courts of eqUIty have to be shown to be present - 1 e the acqUIescence In the vIOlatIOn of the legal nght, and some "change of posItIOn" by the party gUIlty of the vIOlatIOn. The tnbunal's sense of JustIce "IS permItted to come Into play only after those specIfic prereqUIsItes are found to be satIsfied, not before" In Re Governing Council of University of Toronto the UmversIty moved to dIsmIss the gnevance on a number of bases, IncludIng laches A gnevance had been filed allegIng that faculty stores employees were part of the bargaInIng umt. The board found that the Umon had known for some tIme that the employees should have been part of the bargaInIng umt but dId not act on It. Then, In 1972, It filed a polIcy gnevance that was later abandoned and then submItted a new gnevance on the Issue In 1975 The board found that the "umon had know for at least 28 months, and perhaps for several years before that, that ItS nghts under the relevant provIsIOn of a chaIn of collectIve agreements were beIng vIOlated." The Board found "acqUIescence" based on the fact that the collectIve agreement was clear and a pnor gnevance had been lodged, demonstratIng that the Umon was aware of ItS legal nghts It ruled, however that the eVIdence dId not show that the UmversIty Incurred some detnment through the umon's faIlure to process the gnevance earlIer It ruled that "It was ImpossIble for us to hold that the umversIty would suffer any detnment from beIng reqUIred to 34 Include the faculty storekeepers In the bargaInIng nolt rather than three years ago or 10 years ago or 25 years ago" SImIlarly In thIS case, there clearly was acqUIescence by the Umon dunng the penod from 1996 to August 2003 Although aware of ItS claim regardIng overtIme, as eVIdenced by the 1990 polIcy gnevance, the Umon faIled to pursue the matter But as In Re Governing Council of University of Toronto there IS no detnment to the Mimstry from that delay The Mimstry dId not change or alter ItS practIces regardIng transcnpt work. If the Umon IS correct In ItS VIew that transcnpt preparatIOn IS bargaInIng umt work, then the Mimstry has not suffered detnment by the Umon's faIlure to pursue the Issue earlIer AccordIngly one of the prereqUIsItes for the doctnne of laches has not been establIshed. FInally In lIght of these rulIngs, I find It unnecessary to determIne whether or not the Employer may expand ItS motIOn to dIsmIss That rulIng would only be necessary If I were to have allowed the Employer's motIOns The Employer's Motion to Strike Positions of the Parties The Employer asserts that those portIOns of Mr Moore's eVIdence that relate to the partIes wIthout precedent or preJudIce dIscussIOns and documents whIch reflect those dIscussIOns should be struck from the record. In terms of the documents, the motIOn to stnke Includes ExhibIts 6 15 17 18 19 20 21 23 and 26 The Employer contends that the 1990-1993 dIscussIOns were "settlement dIscussIOns" to resolve the polIcy and IndIVIdual court reporter gnevances It asserts that the fact that these 35 dIscussIOns were settlement dIscussIOns IS clear from the December 1990 Memorandum of UnderstandIng Itself as well as subsequent correspondence by the Umon and ItS lawyers and the testImony of both Mr Moore and Mr Uhlmann. It asserts that the dIscussIOns were not "collectIve bargaInIng" but settlement dIscussIOns and therefore pnvIleged. In support of ItS posItIOn, the Mimstry cItes to Re Regional Municipality of Ottalta- Carleton and Canadian Union of Public Employees Local 503 (1984), 14 L.AC (3d) 445 (P C PIcher) OPSEU (Union Grievance) and Ministry of Transportation (1999), GSB No 0320/98 (Mikus) The Umon contends that the dIscussIOns were not settlement dIscussIOns but dIscussIOns more akIn to collectIve bargaInIng. It pOInts out that the Issues Involved more than gnevances and Included a wIde range of court reporter Issues It asserts that bargaInIng teams, whIch dId not Include the gnevors, were created and that the Umon penodIcally sent out "negotIatIOn updates" to the membershIp It asserts that these facts demonstrate that the dIscuSSIOns were not pnvIleged settlement dIscuSSIOns, as that term IS generally understood. It asserts that the ratIOnale behInd that pnvIlege - to foster and protect candId settlement dIscuSSIOns - does not apply The Umon further contends that the Employer waived any pnvIlege when It permItted "negotIatIOn updates" about the dIscuSSIOns to be dIssemInated. It submIts that the Employer had to have known about these updates, and In fact, agreed that the dIscuSSIOns would be not confidentIal In support of that contentIOn that dIsclosure Waives the pnvIlege, the Umon cItes to Re The Croltn in Right of Ontario (Ministry of Correctional Services) and OPSEU (Knight) 36 (1994), 39 L.AC (4th) 205 (KIrkwood) Re GDX Automotive and United Steelltorkers of America, Local 455 (2003) 116 L.AC (4th) 265 (SurdkowskI) The Umon further argues that the fact that the dIscussIOns were wIthout preJudIce or precedent dId not mean that the dIscussIOns were pnvIleged and confidentIal It asserts that these are all dIStInCt concepts In ItS VIew all that wIthout preJudIce or precedent means IS that the partIes were free to alter amend or change theIr posItIOn at any tIme - that they were not bound by It. But It does not mean, In ItS VIew that the dIscussIOns were "off the record" confidentIal or pnvIleged. The Umon asserts that a fundamental pnncIple IS that all relevant eVIdence IS admIssIble at a heanng. Counsel for the Umon stated that the Umon wIll not rely on what was said at the bargaInIng table to urge the Board to find agaInst the Employer but asserts that the fact that the Employer was wIllIng to bargaIn wIth the Umon regardIng compensatIOn for transcnpt work IS eVIdence that It IS bargaInIng umt work. He asserts that the Employer cannot now say that such a posItIOn IS absurd, Illegal or untenable because It dId negotIate WIth the Umon In the alternatIve the Umon argues that the only document that should be struck from the record IS ExhIbIt 18 whIch sets out one of the Employer's proposals It asserts that the Umon's "negotIatIOns updates" are Internal Umon documents and cannot be excluded. Nor In ItS submISSIOn should correspondence between the partIes, such as ExhIbIt 21 be excluded. FInally and most strenuously It argues that ExhIbIt 6 the "Report of WorkIng Group on Court ReportIng ServIces" should not be excluded. That document, the Umon notes, predates the December 1990 Memorandum of UnderstandIng. It submIts that It IS properly before the Board, IS not confidentIal because of ItS wIde dIstributIOn wIthIn the Mimstry and IS "WIth preJudIce" 37 In reply the Employer argues that It never waived the "wIthout preJudIce or precedent" nature of the dIscussIOns It waived confidentIalIty but not the pnvIlege It submIts that the eVIdence of these dIscussIOns should not be before the Board. The Employer further submIts that ExhIbIt 6 even though It predates the Memorandum of UnderstandIng, should be stncken SInce It was a prelude to the dIscussIOns and reveals the Employer's posItIOn In those settlement dIscussIOns Decision on Motion to Strike I conclude that the Employer's motIOn to stnke should be granted. The eVIdence IS clear that the dIscussIOns that took place under the Memorandum of UnderstandIng were on a "wIthout preJudIce or precedent basIs" That means more than that the partIes were free to change or amend theIr posItIOn. It also means that the dIscussIOns cannot be used as eVIdence agaInst eIther sIde In a subsequent proceedIng. The dIscussIOns cannot be used agaInst eIther party In a detnmental way Yet that IS exactly what the Umon IS tryIng to do here It seeks to use the eVIdence concernIng the posItIOns taken by the Employer In the 1991-1993 dIscussIOns, when It negotIated wIth the Umon about transcnpt work, to establIsh that transcnpt preparatIOn IS bargaInIng umt work and that the Employer recogmzed It as such. To allow that eVIdence In thIS proceedIng would be contrary to the partIes' explIcIt agreement. It would also create a dangerous precedent, whIch would have a chIllIng Impact on "wIthout preJudIce or precedent" dIscussIOns and agreements Such dIscussIOns and agreements are both common and crucIal to effectIve labour relatIOns ThIS Board, In my VIew should honour and foster such dIscussIOns and agreements, not negate them. 38 The fact that the partIes' dISCUSSIOns were not confidentIal - and were dIssemInated by the Umon to the membershIp - does not change or undermIne the partIes' agreement that they were "wIthout preJudIce or precedent." That agreement was never waived or changed. ConfidentIalIty If It ever eXIsted, was clearly waived, but not the "wIthout preJudIce or precedent" basIs of the dIscussIOns The cases cIted by the Umon, whIch deal wIth Waiver by dIsclosure, refer to documents protected because they were made "In antIcIpatIOn of lItIgatIOn." DIsclosure of such documents, In whole or part, Waives that pnvIlege Re The Crolt n in Right of Ontario (Ministry of Correctional Services and OPSEU (Knight) supra' Re GDX Automotive and United Steelltorkers of America, Local 455 supra. Those cases are dIstIngUIshable because they dId not deal wIth settlement dIscussIOns that were made on a "wIthout preJudIce or precedent" basIs The exact status of the 1990-1993 negotIatIOns - whether they were true "settlement dIscussIOns" or akIn to collectIve bargaInIng - IS not determInatIve What matters IS that the partIes agreed that theIr dIscussIOns were "wIthout preJudIce or precedent." The eVIdence shows that the partIes' dIscuSSIOns were neIther pure "collectIve bargaInIng negotIatIOns" nor pure "settlement" dIscuSSIOns They were a hybnd of the two Consequently my rulIng IS not based on the fact that the dIscussIOns were pnvIleged In the sense that they were settlement negotIatIOns, even though that was the overndIng purpose of the dIscussIOns My rulIng IS based on the partIes' agreement that theIr dIscussIOns were "wIthout preJudIce or precedent. " 39 AccordIngly I wIll stnke from the record the portIOns of Mr Moore's testImony whIch deal wIth the content of the partIes' dIscUSSIOns as well as documents whIch reflect the content of those dIscussIOns ThIS Includes the "negotIatIOn updates" because they reflect the partIes' posItIOns In those "wIthout preJudIce or precedent" dIscuSSIOns Whether ExhIbIt 6 the Mimstry's "Report of WorkIng Group on Court ReportIng ServIces" should also be struck from the record IS a more dIfficult questIOn. ExhIbIt 6 as the Umon pOInted out, predates the partIes' Memorandum of UnderstandIng that the partIes' dIscuSSIOns would be "wIthout preJudIce or precedent" and IS therefore not covered by that agreement. It IS clear however that ExhIbIt 6 was the prelude and catalyst for the Mimstry to engage In the court reporter dIscuSSIOns whIch followed. ExhIbIt 6 In relevant part, dIrects Mr Uhlmann to negotIate WIth OPSEU optIOns to settle the 1990 polIcy and IndIVIdual gnevances, IncludIng one specIfic optIOn. ExhIbIt 6 dIrectly led Mr Uhlmann to negotIate the December 1990 Memorandum of UnderstandIng, and enter Into the dIscuSSIOns that followed. The Umon would now bInd the Employer to ExhIbIt 6 to support ItS posItIOn In thIS case that transcnpt work IS bargaInIng umt work and that the Employer In the past, agreed to negotIate over It WIth the Umon. It submIts that the document stands - wIth preJudIce Although the Issue IS close I conclude that ExhIbIt 6 should be struck from the record. ExhIbIt 6 outlInes one of the posItIOns taken by the Employer In ItS subsequent dIscuSSIOns wIth the Umon. Although It preceded the Memorandum of UnderstandIng, to allow the Umon to bInd the Employer to the posItIOns taken In those negotIatIOns through ExhIbIt 6 runs completely 40 counter to the agreed upon basIs of those dIscussIOns It appears to be a back-door approach to bIndIng the Employer to a posItIOn taken In the "wIthout preJudIce or precedent" dIscussIOns In my VIew the ratIOnale for stnkIng the testImony and documents that reveal the substance of the partIes' posItIOns In those negotIatIOns applIes wIth equal force to ExhIbIt 6 ExhIbIt 6 was a dIrectIOn to attempt to resolve the 1990 gnevances, IncludIng a specIfic proposal LIke any other settlement dIrectIOn or proposal, It should not be used agaInst one of the partIes To be clear It IS only eVIdence concermng the content/substance of the 1990-1993 dIscussIOns that IS beIng struck. The fact that settlement negotIatIOns took place IS not In dIspute Conclusion AccordIngly for all of the reasons set forth above, I conclude as follows 1 The motIOns to dIsmIss are demed. I find that the Umon's faIlure to pursue the 1990 polIcy gnevances after the completIOn of the audIO pIlot proJect, for between five to seven years, creates a rebuttable Inference that the Umon ImplIcItly accepted the Employer's InterpretatIOn of the collectIve agreement In regard to transcnpt work. I find, however under the specIfic facts of thIS case, that the Inference IS rebutted. Further there IS no eVIdence of abuse of the gnevance process, or detnment to the Employer by the Umon's faIlure to pursue thIS Issue earlIer AccordIngly I conclude that the "arbItral rule of abandonment" does not apply In thIS case Nor have the reqUIrements for laches been establIshed. 2 In lIght of thIS rulIng, I find It unnecessary to decIde whether the Employer may expand ItS motIOn to dIsmIss 3 The motIOn to stnke those portIOns of Mr Moore's eVIdence as It relates to "wIthout preJudIce or precedent" dIscussIOns and all documents that relate to the content of those dIscussIOns IS allowed. SpecIfically ExhIbIts 6 15 16 17 18 19 20 21 (last paragraph only) 23 and 26 are hereby struck from the record. 41 4 The heanng wIll contInue on the dates prevIOusly scheduled. Issued at Toronto thIS 11th day of August, 2004 Ranch H. Abramsky Vice-Chair