HomeMy WebLinkAbout1984-0516.Neamtz et al.85-04-30IN THE MATTER OF AN ARBITRATION ,'
UNDER
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN: OPSEU (J. Neamtz, K. Anderson, P. Savoie)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFORE: M. R. Gorsky Vice Chairman
H. Simon Member
G. Milley Member
FOR THE UNION:
I. 3. Roland
Counsel Gowling & Henderson
Barristers & Solicitors
FOR THE EMPLOYER:
A. P. Tarasuk
Counsel
Central Ontario Industrial Relations Institute
HEARINGS:
December 7, 1985 and
December 14, 1985
INTERIM AWARD
This Interim Award is concerned with an issue that arose
in the course of a hearing convened to deal with the grievances to
be referred to. The preliminary.issue,with respect to which my
colleagues and I must rule,concerns our jurisdiction to allow an
application made to us, in this case by counsel for the Union
(I4r. Roland),which application was opposed by counsel for the
Employer (Mr. Tarasuk), to order the consolidation of a number of
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individual grievances brought by three Grievors in the following
circumstances:
(1) There are, in all, nine separate, individual grievances, which
may be divided into three groups:
(Group 1) Each of the Grievors filed separate, individual grievances
which claim the same breach and request the same relief: File Numbers:
516/84, 517/84, 518/84. The Statement of Grievance, in each case,
is that the Grievors, who were classified as Environmental Techn-
icians 3, and were employed by the Ministry of the Environment,were
II . . . being assigned duties of. a position in a classification with
i L a higher salary maximum as outlined in Article 6.1 of the collective
agreement." The settlement required, in all cases,was that the
Grievo.rs receive, "the pay of the position as stipulated in Article
1.1, retroactive to September 1, 1982."
(Group 2) File Number 541/84, consists of three, separate, individ-
ual grievances, filed by the same Grievors, as in Group 1 above. In
each grieva.nce, the statement of grievance is the same: that each
of the Grievors is "improperly classified as Environmental Techn-
ician". Each of them required,by way of.settlement, that they
I.. be "classified as an Environmental Technician 4" and that each of
(that of J. A. Neamtz) is dated April
January 1, 1980."
(21 Grievance 5~16/84
4, 1984.
Grievance 517/84
6, 1984.
Grievance 518/84
1984.
3. them deceive “salary and benefits . . . retroactive to the date of
[the; grievance."
(Group 3) File number 542/84, consists of three, separate, indiv-
idual grievances, filed by the same Grievors, as in Group 1 and
Group 2 above. In each grievance, the Statement of Grievance is the
same as in Group 2 above. The settlement required is the same in all
three grievances: that the Grievors be reclassified "to an Investi-
gator I, Ontario Securities Commission, with full retroactivity to
(of X. D. Anderson) is dated April
(of P. N. Savoie) is dated April 6,
(3) In the case of File number 541/84, the grievance of
K. D. Anderson is dated March 29, 1984, the grievance of J. A. Neamtz,
is dated April 4, 1984, and the grievance of Pete.r N. Savoie,is dated
March 20, 1984.
(4) In the case of File,number 542/84, the grievance of K. D.
Anderson,is dated April 12, 1984, the grievance of 5. A. Neamtz,is
dated April 4, 1984, and the grievance of P.~ N. Savoie,is dated
April 12, 1984.
(5) Mr. Tarasuk, Counsel for the Employer, indicated that
on any hearing on the merits, his position would be that under'the
relevant statute and under,the provisions of the collective agreement,
employees could snot make alternative claims for relief but must-
restrict their claim to the classification which they claim they
belong to. He also indicated that other objections to jurisdiction
would be raised by him.
c-
4.
it was the subject of agreement that prior to this
panel of the Board be'ing convened, Mr. Roland, Counsel for the Union,
had indicated to Mr. Tarasuk,, Counsel for the Employer, that he
intended to make an application to the Board that all of the .grievances
listed above be consolidated. We were informed that Mr. Tarasuk
indicated to Mr. Roland that such an application would be opposed.
Both counsel agreed that the only basis for all of the grievances
being treated as being properly before us.was for the purpose of
ruling on the motion for consolidation and that, by appearing, the
Employer was not to be taken as having agreed that those grievances.
were properly before us for any other purpose. Therefore, the only
issue properly before us relates to whether this panel of the Board
has jurisdiction to grant an order consolidating grievances.
Because of the way in which this matter has proceeded,
it cannot be found that any grievance is presently before us for a
decision on the merits. To reiterate, we are being asked, at this
time, to decide whether this panel of the Grievance Settlement Board
/ \- possesses the jurisdiction to consolidate a number of grievances.
Because the grievances referred to are only before us for the limited
purpose, above referred to, we are also being requested to order
that the grievances be placed before this panel and that we then
order that the grievances be consolidated.
The formal consolidation of two or more grievances would,
in a technical sense, result in the melding of several grievances
into one, for the purpose of being heard together. Cf. Williston and
Rolls, The Law of Civil Procedure, at p.411, where two,types of
orders are compared, upon an application being made under the then
\ Rules of Practice for an order consolidatins actions. BY analosv
,
:
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to proceedings' consolidated in the case of actions brought in the
Supreme Court, where the consolidated actions would proceed as one
action and there would be but one set of pleadings, one set of dis-
coveries and one judgment, here there would be one grievance for the
purpose of the collective agreement rather than nine.
The second type of order, referred to by Williston and
Rolls, at pp.411-412,is one where the actions retain their separate
identity but are tried together. Such latter order is not one of
consolidation, however, some of the purposes of consolidation are
realized: the reduction of the chance of disparate findings of fact,
where the same incidents are involved;'reduction in the number of
times the same evidence will have to be heard and the chance of
disparate decisions involving the same evidence, where the issues
are the same.
It follows that, evPn where an order for consolidation,
in its technically correct sense,is rejected, or is unavailable, then
the several proceedings may be ordered to be tried together or one
after the other, before the same trier, with an order that the
evidence heard in one action will be taken to be evidence in the
other actton or actions. Such latter order is often, incorrectly,
thought of asconsolidation. That this is not so is made clear by
Williston and Rolls, ibid.
The provisions of the collective agreement between the
parties relating to "Grievance Procedure" do not envisage several
complaints or differences which are not resolved being placed in,a
single grievance. (See Article 27). I am satisfied that there is
nothing in the collective agreement or the Crown Emnloyees Collective
Bargaining which can be interpreted as permitting COnSOlidatiOn,
1
6.
In the case of the grievances under file numbers 516/84,
517/84 and 518/84, they were filed separately and proceeded through
the steps of the grievance procedure separately and requests for
hearings 'before the Grievance Settlement Board were filed separately.
In the case of file no. 541/84, the three grievances
in that file, which are above referred to, were filed as separate
grievances. We did not hear whether the grievances under file
/.
number 541/84 proceeded together or separately through the stages
of the grievance procedure. We do know, however, that the Union
requested a single hearing with respect to the three grievances.
In the case of file no. 542/84,,the three grievances
in that file, which are above referred to, were.filed as separate
grievances. We did not hear whether the grievances under file no.
542/84 proceeded together or separately through the stages of the
grievance procedure. We do know, however, that the Union'requested
a single hearing with respect to the three grievances.
Unlike the grievances in file nos. 516/84, 517/84 and
L 518/84, where the Notice of the Registrar indicated that a notice
would be given as to the time and place of hearing with respect
to the single grievances referred to;the grievances in file nos.
541/84 were treated as subject to a single hearing as were the
grievances in file no. 542/84. I, however, emphasize that the
parties have agreed that the nine grievances referred to have not
yet been assigned to this panel for adjudication on the merits.
The language of the letters to the Deputy ?liniSter of
the Environment from the Registrar indicates that a single hearing
would be scheduled with respect to the grievances in file no. 541/84 I
and that a single hearing would also be scheduled with respect to
.J.
In these proceedings, Section 20(4) the Crown Employees
co llective Barqaining *Act provides for the Board sitting in panels -
"as decided and assigned by the chairman." A panel is not perman-
ently appointed, but sits as a panel to deal with the matters referred
to it. In.the matter before us, we have not yet been assigned any -
of the nine grievances referred to, except for the purpose of hearing
the application with respect to this panel's jurisdiction to consol-
idate,yrievances. It has been agreed that the Registrar, in remitting
(' the nine grievances to US, did so for the limited purpose referred to.
On the facts before us, consolidation, in itstechnically correct
sense ought not be granted, even if we were empowered to order con-
solidation. Reasons for such a conclusion will be found infra.
That, however, does not end the matter. Should the
Chairman appoint this panel as a panel of the Board, and if the
Registrar should assign the ni,ne grievances to us, for a hearing on
the merits, then we can rule on any application to hear the grievances
together or one after the other; a procedure, as noted above, some-
times confused with consolidation. In such event, should the appli-
cation be granted, the evidence common to all casqs would be taken
as evidence in the other cases. ,This would assure that the evidence
common to all cases would not have to be repeated~or that it.,would not
lea? to possibly disparate findings by different panels.
I interpret s.20(4) of the Act as limiting a panel of the -
Board to dealing only with those grievances included in the Notice
of Hearing with respect to which a panel has been appointed.
Article 27.4 of the collective agreement provides:
8.
Mr. Roland suggested that, in conjunction with s.20(5). of the Act, .
it ought to be found that a panel of the Board may summon before
it any grievance for which an application has been made under Article
27.4. Section 20(S) is as follows:
The chairman or a vice-chairman, one member iepre-
sentative of employeeinterestand one member representative / of employer interest constitute a quorum and are sufficient
for the exercise of all the jurisdiction and powers of the
Grievance Settlement Board.
When s.20(5) and Article 27.4 are read along with ss.20(4) and'(g),
it is seen that it is the Chairman who controls assignment of a panel
and it is the Chairman who assigns powers to the Registrar. I cannot
interpret s-20(9) of the Act as furnishing every Vice-Chairman and
Member of the Board as having all of the jurisdi:tion powers ~of the
Grievance Settlement Board. I believe that section tobe subject
to certain limitations one of which would be that the panel's powers
are restricted to cases and iSSueS properly placed before the members
by the Registrar. Such an.interpretation as was urged upon US by Union
Counsel could lead,to absurd results. If Mr. Roland is correct,
it woulh mean that any currently constituted panel could be asked
for an order of consolidation or in the alternative that cases
,be tried together or one after another, even if those cases were not
before such panel. That is, the panel could order the cxses be
brought before that panel and either consolidated or heard together
or one after another.. If unsuccessful, the application could be
renewed before another panel. Pursuant to such assignment, a panel
(such as this one) becomes seized of the case or cases with respect
to which it had jurisdiction. It is up t-o the Registrar, to create
a panel of the Board and assign the matters to be heard by that panel,
subject to the powers to do so being conferred by the Chairman.
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9.
Although s.20(8) of the Act refers to the Board.making -
regulations: The Grievance Settlement Board shall determin(i%: own practi5.c and procedure b,ut shall give full opportunity to the partles 10 any proceedmgs to present their evidence and to make their submissions. and the Grievance Settlement Board may. subject lo the approval of the Lieutenant Gover-
nor in Council, make regulations governing its practice and
procedure and the exercise of its powers and prescribing
such forms as are considered advisable,
I am satisfied that in the context of the other provisibns of s.20
of the' 'Act, - such regulation making power is conferred on the Board
as a whole and that no single panel of the Board can do so. In deter-
mining the practice and.procedure to be followed by it, a panel cannot
treat the assignment to it of grievances as a mere matter of practice
and procedure. The right to bring a grievance, and the form of doing
so is a substantive right created by the' Act. - If 1 am wrong in this
conclusion, I would also find that such power would not be capable
of being exercised by a panel of the Board until it was seized of
a mattei.
I would also nqte that there is an absence of common issues
in the three groups~ of grievances. Mr. Roland indicated that the
claims were in the alternative. Cf. Ktiula v. Moose Mountain Limited
(19121, 26 O.L.R. 322, where consolidation was refused as the issues
in the separate claims were distinct. Here, it appears that the
three groups of grievances are distinct, although it may be that
many of the”same facts will arise in hearing each group.
In the recent award in'the case of OPSEU (Clerks 3 General
and the Crown in right of Ontario (Ministry of Health) (R-L. Verity,
Q.C.), file No.240/84, the Board dealt with the subject of the jur-
isdiction of the Board to consolidate individual grievances so that
they would be treated as group grievances. The Clerks 3 General case,
although it dealt with (in part) the subject of cbnsolidation, did I
I
so in a different context from that affecting the case before us. I
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There, the Union sought to have the Board fashion a pro-
cedure with respect to some 147 individual classification grievances
which were filed by Ministry employees in the positions of "Employee
Information and Assistance Clerks." Each Grievor was classified as
Clerk 3 General, and each individual grievance sought reclass-
ification to Clerk 4 General. The Union wished the Board to order
that evidence be adduced "from a single major witness from each of
the districts involved, with the requirement of the additional
(' evidence from those districts with satellite offices. The Employer
would be free to enter evidence showing that the Union's witness was
not representative of the grievors in the district. In the event
that the Board found that the Union's witness was improperly class-
ified as Clerk 3 General, and would be more properly.classified as
Clerk 4 General, and was representative of the grievors in the district,
it would proceed to issue an award reclassifying all of the grievors
in the district from Clerk 3 General to Clerk 4 General." (Clerks 3
General case, at p.3).
The Employer, in the latter case, argued that such an
order was beyond the jurisdiction of the Board, relying'on Article 27
of the Collective Agreement which contemplates only Individual and
Union (or policy) grievances. Specifically, "[tlhe Employer argued
that the Collective Agreement does not contemplate [a] 'representative'
or 'test case' grievances or 'group grievances' in the absence of
agreement between the parties." (ibid at pp.3-4).
We are not, here, faced with a request to treat a single
grievance as representative of other individual grievances. In the
Clerk3 General case, it is clear that the Board, in considering the
11.
possess the "jurisdiction to require the parties to deal with these
grievances on a representative basis, or to impose criteria for the
selection of representative cases from among the multiplicity of
grievances before the.Board? (Ibid at p.5). In fact, such a request,
as was made by the Union in the Clerks 3 General’case, was not for
an order of consolidation, even though .it Was framed in such terns.
See, Williston and Rolls op. cit. at p.415:
‘“In certain instances, many actions have been commenced by
diierent plaint.Bs against the same defendant based eon similar
allegations of fact, and one action is selected as a test action. In
these cases,. on the plaint& application orders have been made
that the proceedings in all actions be stayed until after the trial
of the ‘test’ action, nohvithstandmg that there might be tiercnces
of proof in each action.~ .‘. Where the issues in several actions
are not the same, however, the actions cannot be consoiidated
against the will of the plaintiffs. Thus where four .actions had
been broughht against a muqicipal corporation for damages arising
out of tbe negligent construction of several drains without pro- . . . . . . . viding a proper outlet for waters brought down by suc5 orams,
the court refused either to consolidate the actions or lo stav one
or more of the actions, becaux,..each plair@ ~..?‘ould to
prciV.F@at ‘XliS’&lig&ti’al.l~gcd resulted ia injury to E ~“9
@iic,ulax lands.~ i ‘. ‘1
Notwithstanding the obvious differences between the instant
and the Clerks 3 General case, the grievances in both cases were
! / endeavored to be pursued, by the Union, as group grievances: I
treating the individual grievances as a group grievance, alleging I
that all the grievors have been prejudiced by the same (single or I
repeated violation), in the instant case leading to alternative 1
claims b&ing made in separate grievances. I
In the Clerks 3 General case (at pp.5-6) it was stated
that:
"Articles 27.2.1 and 27.8.1. of the Collective
Agreement establish procedures for processing
individual and union grievances. There is no
Drovision in either the Collective Aqreement or
i the Crown Employees Collective Bargaining Act
which provides for the processing of group grievances. Article 27.14 provides that an arbitration board has no
i 12.
"The Board concludes that the language agreed upon by
the Parties in their Collective Agreement reguires that
grievances (qther than Union qrievances) proceed on an
individual basis through the grievance procedure. If the Parties desire to permit the filing and processing of
group grievances or representative grievances or test
cases, then the Collective Agreement must be amended to
so provide."
In the Clerks 3 General case, it was further stated, at
- pp.6-7:
"However, having said that, the Board is of the opinion
that the Crown Employees Collective Bargaining Act confers
upon the Grievance Settlement Board the power to determine
its own practice and procedures, while at the same time
giving full opportunity to the Parties to present their
evidence and make their submissions. It must be recogn- ized that the Grievance Settlement Board has "consolidated"
Similar individual grievances in at least the following
respects:
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1. It has placed several individual grievances under a single file number.
2. It has scheduled the gxievances so consolidated to be
heard together by a panel of the Board on a single
hearing date.
3. Panels of the Grievance Settlement Board
have commonly given effect to procedural
agreements of the Parties in the determination
of multiple grievances.
/
4. Panels of the Grievance Settlement Board hearing
such grievances have considered it unnecessary
to hear repetitive evidence during the course of
consolidated hearings.
"In our view, the authority for these practicesis to be
found in Section 20(8.) of the Crown Employees Collective
Bargaining Act. These procedures have been adopted by
the Board to facilitate the expeditious determination of
grievances, which is also a mutual objective of the Parties
as expressed in Article 27.1 of their Collective Agreement.
These practices are procedural rather than substantive
in nature."
It will be up to the Registrar, as explained above, to
decide whether one or more panels of the Board will hear the nine
grievances involved in the matter before us. In the Clerks 3 General
i case,it is further stated at pp.8-9:
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! 13.
"The Board cannot accept the Employer's submission that
the multiple grievances or, where agreement is reached,
representative grievances, should be heard by different
panels of the Board. The grouping of grievances for
hearing and the selection of a panel to determine those
grievances is a procedural matter which is clearly within
the Board's jurisdiction. Accordingly, and in order to
expedite the determination of these grievances, and to
ensure consistency in results, all of the grievances
outstanding will be determined by one panel of the
Grievance Settlement Board."
While it is there stated that the "grouping'of grievances for hearing
and the selection of a panel to determine those grievances is a pro-
I .i
cedural matter which is clearly within the Board's jurisdiction, II
we do not believe a panel of the Board, even though it has the powers
of the Board, should make this decision. It is up to the Registrar
to do so in the manner described above, subject to the supervision
of the Chairman. If it were otherwise, several different panels
could make a conflicting determination with respect to the same
grievances being determined by one panel. In this case I would
recommend to the Chairman and the Registrar that the determination
of these grievances be made by one panel of the Grievance Settlement
Board so as to enhance the chance of consistency of results and the
i.~ avoidance of unnecessary repetition of evidence.
In summary:
(1) The attempt to consolidate, the nine grievances, in a technical
sense, would fail even if we had jurisdiction to so order.
(2) The consolidation of grievances, in a technical sense, is
beyond our jurisdiction, as it represents the creation of a
group grievance not permitted by the agreement or the Act. Cf.
Clerks 3 General case.
(3) Should the cases be referred to this panel, we may, as a pro-
! cedural matter, where necessary, to avoid repetitive evidence,
+r-=+ n~irlnnr~ in nn~ case as aoolicable to another. Such a
5 .
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procedure has long been followed in arbitration where several
grievances involving common questions of fact were properly
before a board of arbitration. Such an order is not for consol-
idation, although two of the purposes of consolidation would be
fulfilled - the avoidance of repetitive evidence and possibly
inconsistent decisions. In the Supreme Court of Ontario, the
order is to have separate actions heard one after the other or
at the same time, as an alternative to formal consolidation.
.c .
Under the new rules of the Ontario Supreme and District Court
Practice (R.6.01(l)(d)), hearing separate actions at the same
time, or one after the other, has been provided for. Formerly,
the same practice was treated as part of the inherent'power of
the court. In cases before ~the Board, such a power has been
treated as part of the inherent power of,panels of the Board,
where the separate matters were properly before such panels.
DATED AT London, Ontario, this 30th day of April, 1985.
smfs?++
M. R. Gorsky, Vice Chairman
(Dissent attached)
H. Simon, Member
G. Milley, Member
516/M 517Jt37 541/04
DISSENT
I fail to agree that the Board has no authority to consolidate 2 or more
grievances coming before us depending on the nature and the circumstances
of the cases.
In my view this is a procedural matter and the courts have ruled on a
number of occasions that the Labor Board has the right to make its own
rules and set its own procedure provided.the principal of natural justice
is observed.
In the case before us we have 2 sets of individual grievances by the 3
grievers: 1) relates to a request for reclassification;
2) relates to a request by the grievors.for retroactive pay
for the performance of duties in a higher paying classification.
I would consolidate these grievances into 2 separate categories and deal
with them seperately.
I agree with the Chairman’s.recomendation that the determination of these
grievances be made by one panel of the Board.
Harry Simon
Board i’lember