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HomeMy WebLinkAbout1982-0510.Alarcon et al.85-09-27GRIEVANCE 510182 IN THE MATTER OF AN ARBITRATION Under THE CRO- EMPLOYEES COLLECTIVE BARGAINiNG -ACT Before ~.. THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (E. Alarcon, et al) and Grievors Before: For the Griever: For the Employer: Hearing: The Crown in Right of bntario (Ministry of Correcticnal Services) Employer R. J. Roberts Vice-Chairman J. McManus Member W. A. Lobraico .Member I. Roland Counsel Gowling & Henderson Barristers & Solicitors J. F. Benedict, Manager Staff Relations Personnel Branch Ministry of Correcticnal Services March 25, 1985 I GECrSION At the cutset of the hearing in this matter the parties . raised two preliminary issues which they requested the Board to. - determine prior to commencing any hearing on the merits. The first issue was whether the prior determination oft this Board in ,~ , Re Burns and Einistry of Correctional Services, G.S.B. C365/82 (1983), ought to bar the Ministry from re-litigating .in the present cad what was said to be the same issue as was resolved in Burns. The second issue was whether the Board, at this stage of the pro- ceedings, would order the consolidation in some form of 76 grievances which, it was said, all raised the identical issue and which the ~. Registrar had already seen fit to assign to this panel. For reasons which will become apparent later on in the text of this award, we reach the following conclusions: First, the prior determination of the Board in ~Burns does not bar the Ministry from re-litigating the same issue that was decided in this'case; it merely places the Ministry,in the position of shouldering the heavy burdenof showing that the determination in Burns .was "manifestly wrong". ~.'. Secondly, the Board does not see any need to order the ..; consolidation of the grievances at this point. From the present vantage point of the Board, it seems that, as a practical matter, the parties might choose to resolve all remaining grievances upon the basis of o,r determination in the fir'st to be heard ; otherwise the disappointed.. party.would, in the second go-round, face the unenviable task of demon- strating to this panel that it was "manifestly wrong" in its prior award. Accordingly, we are content at this point to hear and determine the m~erits of only one qrievance, and thereafter await the plebsure of the parties. 3 .- By way of background, counsel for the Union indicated that the present matter'developed out of a series of-events which began in December, 1981. At that time, he stated, there was an escape ,from the Don Jail of four inmates. This resulted in an inspection report that was critical of the then current practice regarding shift changeover. As a result, in the fir& half of 1982, the Standing Orders regarding shift changeover were more strictly applied. .This gave rise to a controversy between Union and Nanage- ment because the result was that employees were being required to stay at the Institution for one-half hour longer than what they had come to regard as th,e end of their shift. Kanaqement- indicated tha,t this extra one-half hour reflected the fact that 'employees were not to receive a paid lunch period. -The position of the &ion was that by virtue of the practice o f the .Employer'at the time of the Collective Agreement, which, in,effeft, was to give employees a paid meal period, the Ministry was obligated under Articie 12 of the Collective Agreement to maintain this practice. By its terms, Article 12 required the maintenance of "the present practice for rest periods in each shift." It.was at this point that Mr. P. Burns, one of~the affected employees, lodqed the grievance which was determined by-this Board in February, 1983. The 76 grievances which were referred to this panel were not filed until August 20, 1982 Apparently, they were : filed in response. to the issuance by the ~then Superintendent of the Zail, Plr. I. St6rke!:, 'of a memo dztel? July 20, 1983 in which it was * 4. essentially indicated that there would be no paid lunch for any Correctional Officers. The memo was to come into effect bn August 2, 1982. All of these grievances were identically or similarly worded to the grievance filed by Mr. Burns. The Burns decision was issued on Februas 29, 1.983. The Ministry applied for judicial review. Thereafter, eon May It, 1983, Mr. C. D:DeGrandis, the new Superintendent, issued.a memo changing the~hours of work so as to include the claimed paid lunch. On July 12, 1984, the Divisional Court dismissed the 14inistry's- application for review. In due course,. the remaining 76 grievances advanced to arbitration. In Burns, it was decided that the meal period which was the subject of the grievance qualified as a "rest period" tinder Article 12 of the Collective Agreement, and therefore the Ministry was obligated under this Article to maintain the practice of paying for this meal period. See Id. at 10-il. Counsel for the Union submitted that because the same basic issue,. i.e.., whether a. meal period qualifies as a rest period within the meaning of Artic~le 12 of the Collective Agreement, is raised in all 76 grievances that have been assigned to this panel, . ~. this panel ought to bar the Ministry from re-litigating the issue. The Ministry should not, it was submitted, be permitted t.o "take a seccnd bite at the apple", so to speak, by submitting perhaps improved evidence and/or argtient in an attempt to convince this panel to rule differently from the panel in Burns. It was stressed that the issue was the same and that, in a bfcad sense, t .? e Farties -- (:-ion and flansgement -- wezc . 5. the same. In such circumstances, it was submitted, the principle of finality required this panel to deny to the tinistry any opportunity to attack the conclusions reached in Burns. The main foundation for this submission was the decision of this Board in Re Battams and Ministry of Transportation & Communi- cations (1982), G.S.B. #SSS/Sl (Delislel. In that case, the grievor, who was classified as a Draftsman.1, sought to be reclassified as a Draftsman 2 by showing that he performed the identical duties to Mr. D. Stewart, who, in a previous award of the Grievance Settlement Board was found to be entitled to that classificatiofi. The Ministry indicated that it intended to re-litigate the question whether a person performing the same duties as Mr. Stewart.deserved the classification of Draftsman 2. Reference'~was made to certain alleged mistakes which may have been made in the presen&tion of the Stewart case. A unanimous Board denied this opportunity to the Ministry. The Board said, in pertinent part: But the principle of finality must apply to these hearings just as it applies in civil and criminal litigation. The employer here seeks to resist the grievance on the basis that the earlier award is inaccurate, that Stewart does not deserve to be classified as a Draftsman II. That is&has :been __ litigated once between these parties and the employer must be foreclosed from re -opening to ensure that the ,parties can bring some certainty to the ordering of their affairs. The principle which underlies this award may be likened to the doctrine of issue estoppel recognized by our courts civil and criminai. ~...In this case the employer is estopped from raisinc the issue c: how the ~in55 6. performed by both Stewart and.Battams deserved to be classified. As presented to us in the instant case, that is the very issue which was decided between the parties in the Stewart case. .Id. at pp. 406. - Because the Bat&% award relied upon decisions from the courts applying the doctrine of issue estoppel; it was possible to interpret it as approving wholesale application of this doctrine in arbitration cases to bar the re-litigation of an issue such as that already decided in Burns. If that were, in fact, the case, the position that counsel for the Union took upon this matter would have been well-founded. However, when Battams was judicially reviewed, the Divisional Court made it clear that the doctrine of issue estoppel could not be imported into arbitral jurisprudence on this kind of a whole.sale basis. The main reason why this was so, the court indicated, wa$ that, st'rictly speaking, the parties in the subsequent arbitration usually are not identical. Speaking for the court, Osler, J. said: The Board's refusal to permit the employer to demonstrate that Stewart was incorrectly classified is based upon the principle that an issue once litigated to final decision between the same parties may not be re-opened, a principle likened to the doctrine of issue estoppel. Stri'ctly speaking, the parties are not identical. True, the Ontario Public Service Employees' Unicn, which processed!th~e grievance and resisted this appiicaticn for judicial review, has a vital part to play and an interest in al~l~the grievances carried forward to the Board under the statute. In processing each individual arievance, however, apart from any that nioht be described as policy grievances, there are one or more grievers and. tne Departmentof Goverrument who are bsfore the board and who are 'set o,ut in the style of cause adopted by the board‘~as the parties, grievkr and employer respectively. . 7 Although the application of the doctrine in criminal matters may not be free from doubt, issue estoppel in civil-disputes has application to the parties to the dispute in which the issue was resolved, or their privies. Its strict application, therefore, would not prevent the re-opening of the question of the Stewart classification for the purposes of the grievance arbitration presently under review . Id. at pp. 6-7; (latter emphasis in original.) The Divisional Court nevertheless upheld the Battams award on the ground that it was for the Board to. adopt the view, as a matter of policy, "that employees in the Same Ministry doing identical work should be treated identically in the matter of c'lassificatibn." g. at p. 8. Subsequent decisions of the Grievance Settlement Board might be construed as indicating a degree of inconsistency with respect to application of the doctrine of issue estoppel. For example, in Re Tkach.and Ministry of Correctional Serv.ices (1984), G.S.B. !$479/82, (Verity), there was some indication of approval of application of.. this doctrine: however, in Re Vig and Ministry of Energy (1985), G.S.B. #684/83 (Samuels), the .Board rejected application of the doctrine of issue estoppel and reaffirmed its usual v-i&w that.it possessed the power to overturn a previous award "if we found the decision to be 'manifestly wrong'." Id. at p. 4. - There seems to be little doubt that the better view is' that <aken by the Divisional Court in Burns and ?rcfesscz Samueis view is underlined by the fact that-in Re Canada Safeway Ltd. and Manitoba Food and Commercial Workers Union, Locdl 832 (ISal), 2 S. C. R. 180 Laskin. C.J., for a unanimous court, allowed an'appeal from a judgment of t+e Court of Appeal for Manitoba by substantially embracing the reasons of Monnin, J. A., the dissenting Judge in that Court, which went to,the question whe,ther the doctrine of res iudicata and the principle of issue estoppel ought to apply - in arbitration cases. Monnin, J.A. stated, in pertinent part: I have not found nor have I been referred to a case where, in a labour dispute before a board of arbitration, the doctrine of res judicata has been- held to apply.... Parliament and theprml legislators have devised methods to solve labour disputes mainly in order to avoid the rigidity and the time-consuming features of the court-rooms. The legislators thought that they had pushed these disputes out of the court-rooms. How wrong they were, since we are still too frequently dealing with them. Yet it would be adding salt to the wound if we were to-bring into labour arbitration, all-the rigid procedures of the 'court-rooms and the comulex iudoe-made laws.,- . . . Professor Laskin (as he then Gasi, in Re Brewers' Warehousing Co. Ltd'.~ (1954), 5 L.A.C. 1797 at p. 1798, had this to say: 'It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement where the dispute involves the ,interpretation of the Agreement. Nonethelss, if the second Board has a clear conviction that the first award is wronc, it is its duty to determine the case before it on principles that it believes are applicable.' I therefore conclude that res judicata and estoppel have no place in the settlement of labour disputes by private tribunals or by board of arbitration. It is a principle to be reserved for the court-rooms. . . . (1981), 120 D.L.R. (3d) 43, at pp. 47-48. The proper approach is to honor a previous determination uniess - : . 5. it is shown to be manifestly wrong. In this sense, the prior deter- mination does not bar the re-litigation of an ishe; it-merely places upon the party who contests the previous determination a heavy burden. Accordingly, in the present case, the Ministry is not barred from raising and re-litigating the question whether the lunchbreak which i&aid to be the subj.ect of all 76 grievances qualifies as a"rest period" within the meaning of Article 12 of the Collective Agreement. The burden upon the Ministry, however, will be the heavy one of showing that the prior detennination in Burns was manifestly wrong. If the Ministry were successfully to raise _: in this panel the clear conviction that the Burns award i-s manifestly wrong, it would be the duty of this panel to determine the matter on :' 2.. the principles thatit believes.to have been shown to be applicable. . . . Turning to the issue of consolidation, we do not consider it to be necessary at this point to take any further steps beyond that .$ Ty.T~..*! which already has been taken by the Registrar, i.e., t&assignment of ,. all 76 cases to this single panel. We agree with the conclusion reached in Re OPSEU and the Ministry o f Health (1984),.G.S.B. #240/84 iverity), that the Grievance Settlement Board has the power under Section 20 (8) of the Crown Emplovees Collective Bargaininc Act to adopt Procedural -- ' as opposed to substantive -- devices tc facilitate the expeditious determination of grievances. Id. at p. 7. The - consolidation 0, ail 'F 76 cases before this panel constitutes just such a ?rc.cedural de:rice, and does not trench upon any perceived substa~ntlve r1cnt.c rf the parties. . No further procedural rulings need be m&de at the moment, it would seem, because of what we perceive to be the ccnsiderable likelihood of the parties reaching some accomnodatioil with respect to the remaining grievances after the first grievance is determined on its merits. Otherwise, given our previous determination, the dis- appointed litigant would be put to the unenviable burden of.attempting to show to the same panel that its previous decision in another of the same group of cases.was manifestly wrong.. DATED at London, Ontario, this 27th Lay of September, 1935. . . ~“fli W. A. Lobraico. !lembeF