GSB# 0534/01

UNION# 01F476

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hunt et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

July 10, 2003.

AWARD

At the outset of the hearing, the Employer raised a preliminary objection regarding the timeliness of the grievance. The Employer asserts that the change in practice which the grievance contests took place years ago, and is therefore untimely under the collective agreement. The Union takes the position that the grievance is a "continuing" grievance and is therefore timely under the collective agreement. This Award addresses that issue. All other preliminary issues, and the issue of retroactivity, were reserved.

Facts

On May 4, 2001, a group grievance was filed by three full-time Court Reporters. The grievance states:

We grieve on the basis that by changing the work policy for classified court reporters at 80 The East Mall we have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to Article OAD 8.31 [and 8.4] of the collective agreement.

The settlement desired was:

Full redress to include overtime pay owing for the last ten years calculated on government T4's for this period, based on the Ministry's standard of seven pages per hour.

Article 8.3.1 of the OAD unit agreement provides:

Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

Article 4 of the OAD unit agreement provides as follows:

Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7¼ ) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (1½) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave.

Although the parties dispute exactly when the practice changed, there is no dispute that for a substantial number of years the Ministry had a practice of scheduling full-time classified court reporters for a "day out of court" to type and prepare transcripts. In addition, court reporters were allowed to use "down time", when the court was not in session, to type transcripts. According to one of the grievors, Florence Clark, from the period 1979 to 1991 she was regularly scheduled one day per week out of court to type transcripts, and could also use her "down time" to type transcripts as well. She testified that these practices changed in 1991 when her manager, Carol Adams, advised the court reporters that they would no longer be permitted to type transcripts on work time.

Manager for Court Operations, Toronto Region, Rosa Martelli testified that the practice, when she started her position in 1998, was that full-time court reporters were allowed to prepare transcripts during down time and were scheduled, either one day per week or one day every two weeks, out of court to type transcripts. She testified that through management discussions at meetings, the need to change this practice was identified due to budgetary and efficiency concerns. In late 1998 or early 1999, she was advised by her director that the practice of scheduling full-time court reporters for a day out of court to type transcripts was no longer feasible and could not continue. She then advised her local managers of this change for implementation. She testified, however, that the practice of allowing court reporters to use down time to type transcripts continued and continues to this date.

Accordingly, based on the Union's evidence, the practice regarding both scheduling and use of down time changed in 1991. Based on the Employer's evidence the practice regarding scheduling changed in either 1998 or 1999, and there has been no change in regard to the practice regarding down time.

Ms. Clark testified that the change in policy regarding the preparation of transcripts greatly concerned her because she was not sure how she would be able to complete her transcripts in a timely fashion. She consulted with the Union but did not file a grievance. It was her belief, at the time, that there was no basis upon which a grievance could be filed, and it was her understanding that this change in practice was ministry-wide. She acknowledged on cross-examination that she had the right to grieve an alleged violation of the collective agreement and that similar overtime provisions existed in the 1991 collective agreement. She could not recall whether or not she reviewed the collective agreement at the time. She also testified that she did not pursue a grievance at the time because she was afraid for her job in light of various pilot projects and initiatives taking place in the courts at the time.

Ms. Clark explained that she became a union steward in January 2001. She subsequently learned that court reporters in other locations still had regularly scheduled days off to prepare transcripts and were allowed to type transcripts during down time. She also learned that unclassified court reporters were allowed days out of court to do office work and type transcripts. She complained about this to her supervisor, and when no change was forthcoming, she filed three grievances. One grievance alleged unequal treatment. That grievance is not before me, and its status is not clear in the record. Nor is the status of the second grievance. The third grievance, the one at issue in this matter, alleged a violation of the overtime provisions. Ms. Clark testified that she had become more familiar with the collective agreement, reviewed it thoroughly and "found a section I can grieve."

Ms. Clark testified that she has not prepared transcripts during her down time from 1991 to the present, although she acknowledged that she has reviewed her transcripts and performed related work such as invoicing. She further acknowledged that one of the other grievors, Margery DeCosta, did type transcripts at work during the work day, although she was not aware if she did this on her lunch time or recess or down time. The position specification for classified Court Reporter lists "providing transcripts of court proceedings on request; certifying accuracy of transcripts as Court Reporter (NOTE: Transcripts normally prepared on incumbent's own time)" as one of the duties of a Court Reporter.

Ms. Martelli testified that she was shocked by the grievance, given the passage of so much time since the change in practice. In terms of prejudice, Ms. Martelli testified that there has been a significant change in management at the East Mall court since 1991, and a number of managers have left the Ministry. She further testified that minutes of management meetings are kept only for two years, and no longer exist for 1991, 1998 or 1999. Likewise, any memos about directives and changes made in 1991 would no longer exist.

Positions of the Parties

The Employer

The Employer asserts that the evidence established that the May 4, 2001 grievance was filed well beyond the thirty (30) day time limit set out in the parties' collective agreement. Under the Union's evidence, the Employer submits that the grievance was filed ten years too late. Under its evidence, the delay was approximately two to three years. Either way, the Employer submits that the grievance was excessively late.

The Employer contends that the grievance alleging a violation of the overtime provisions could have been brought in 1991. Ms. Clark, the Employer notes, was fully aware of her right to file a grievance and even consulted with the Union. But she did not file a grievance. Instead, the Employer submits that there was no challenge to the change in practice over many years, or through the negotiation of numerous collective agreements.

The Employer submits that for an extension of the time limits to be permitted under Section 48(16) of the Labour Relations Act, there must be good reason for the delay and no prejudice to the opposing party. In this case, the Employer contends that neither standard has been met. It submits that the Union has not established a reasonable explanation for the delay and the Employer has demonstrated prejudice, given that certain documents would no longer exists and relevant witnesses are no longer with the Ministry. In its view, this would undermine the Employer's ability to defend its actions should the matter be allowed to proceed.

In support of its position, the Employer cites to the following cases: OBLEU (Wicken) and Liquor Control Board of Ontario (1998), GSB No. 2216/97 (Knopf); OBLEU (Gamble) and Liquor Control Board of Ontario (1998), GSB No. 1635/96 (Gray); OPSEU (Szabo) and Ontario Realty Corporation (2001), GSB No. 1811/95 (Herlich); Gordon Campbell and Ontario Realty Corporation (2001), PSGB No. P/0032/99 (Leighton). In these cases, delays of between 16 month to 2 ½ years were found to be "very lengthy", "extreme" and "enormous" and the arbitrators refused to exercise their statutory discretion to extend the time limits for filing a grievance.

For the Union

The Union submits that the grievance alleges that the grievors "have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to Article OAD 8.3.1 [and 8.4] of the collective agreement." The Union submits that this situation has been ongoing since 1991, and that each time the grievors are required to produce a transcript on their own time, it violates the overtime provisions of the collective agreement. It claims that the violations started in 1991 and continue until the present. It submits that it is not grieving an event which occurred years ago, but the resulting continuing breaches of the overtime provisions of the collective agreement. It asserts that because the grievance is a continuing grievance, it is timely under the collective agreement.

The Union asserts that the issue of retroactivity of the remedy is separate and distinct from the question of timeliness of the grievance. The retroactivity issue, it contends, involves how far back before May 4, 2001 the remedy may go. But in its view, that issue does not impact whether or not the grievance is timely.

The Union submits that the grievance clearly meets the standard for a "continuing grievance" as set out in the case law. In support it cites to Re National Paper Goods and Graphic Communications International Union, Local 100-M (2001), 2001 CanLII 62116 (ON LA), 102 L.A.C. (4th) 32 (Abramsky); OPSEU (Union Grievance) and Seneca College of Applied Arts and Technology, unreported decision of McDowell, October 29, 1998; OPSEU (Redmond) and Ministry of Health (1989), GSB No. 0928/88 (Roberts).

The Union further submits that it is not asking this Board to exercise its discretion to extend the time limits under Section 48(16) of the Labour Relations Act. Instead, it argues that the grievance asserts a continuing violation of the collective agreement. It submits that the evidence establishes that the practice continues and the grievors are regularly and routinely required to prepare transcripts on their own time.

Employer Reply

The Employer contends that there is no evidence to establish that there is any breach of the collective agreement nor a continuing breach. In its submission, the Employer had provided a gratuitous benefit to its court reporters, allowing them to prepare transcripts on work time and then be paid, separately for that work. The practice, its submits ended in either 1991 or 1998 and was neither challenged nor contested.

Decision

The May 4, 2001 grievance alleges as follows:

We grieve on the basis that by changing the work policy for classified court reporters at 80 The East Mall we have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to Article OAD 8.3.1 [and 8.4] of the collective agreement.

There are two ways to view this grievance. First, it can be viewed as a challenge to the revision of a practice that, on the Union's evidence, took place in 1991, and on the Employer's evidence, took place in either 1998 or 1999. Under this view, the grievance would clearly be untimely. It would be either ten years or two to three years too late.

The second way to view the grievance 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 grievance would be a "continuing grievance" and the time for filing it would run from the latest breach.

In Re National Paper Goods and Graphic Communications International Union, Local 100-M, supra, the grievance claimed that the employer improperly denied Saturday overtime opportunities to full-time bargaining unit employees by using part-time employees instead. For years there had been a consistent practice to offer scheduled Saturday overtime work to full-time bargaining unit employees when there was no weekend shift, rather than assign it to part-time employees. That practice changed and the employer argued that the grievance was untimely because the alleged breach – the alleged change in its scheduling practice – first took place on a date more than 30 days before the grievance was filed. The Union argued that each time a part-time employee was assigned such work, a separate breach of the collective agreement occurred.

Based on the facts of that case and the case law supplied by the parties, I concluded that the grievance involved in that case was in the nature of a "continuing" grievance and was timely filed. Of particular assistance were the definitions of a "continuing" grievance outlined in Re Parking Authority of Toronto and C.U.P.E., Local 48(1974), 4. L.A.C. (2d) 150 (Adell), Re Port Colborne General Hospital and Ontario Nurses Association (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett) and Re British Columbia and B.C.N.U. (1982), 1982 CanLII 5128 (BC LA), 5 L.A.C. (3d) 404 (Getz).

In Re Parking Authority of Toronto and C.U.P.E., Local 48, supra, Arbitrator Adell determined that a grievance alleging that the company was improperly scheduling part-time employees, pursuant to a practice which had continued for more than thirteen years, was timely filed even though the grievance procedure stated that "no grievance shall be considered, the alleged circumstances of which originated or occurred more than five (5) working days prior to its presentation as a written grievance…" The Board stated at p. 152-53:

Many Canadian arbitration awards have dealt with what are known as "continuing grievances" – that is, grievances which do not relate to a single act possessing substantial finality, such as a discharge or a promotion, but relate instead to a continuing course of conduct – conduct which is renewed at regular intervals and is capable of being considered as a series of separate actions rather than as one action which may just happen to have continuing consequences.

In the Board's view, at p 153: "The case before us clearly involves a continuing grievance, as it concerns repeated acts of scheduling of employee working hours, each such act being an alleged breach of the collective agreement."

In Re Port Colbourne General Hospital and O.N.A., supra at p. 327-28, Arbitrator Kevin Burkett set forth the following definition of a "continuing" grievance:

It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separate identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion, or the failure to provide any premium or payment required on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or a benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance.

Finally, in Re British Columbia and B.C.N.A., supra, the arbitrator adopted the definition of a "continuing" grievance proposed by Professor Gorsky in Evidence and Procedure in Canadian Labour Arbitration (1981), at p. 35:

The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the party be in breach violate a recurring duty. When a duty arises at intervals and is breached each time, a "continuing' violation occurs, and the agreement's limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of damage.

The GSB has adopted a similar standard for defining a "continuing grievance." In OPSEU (Redmond) and Ministry of Health, supra, the Board stated that at p. 5: "We accept as authoritative the proposition that for a continuing grievance to exist, the grievance must complain of the breach of a continuing duty. The grievance must not merely complain that the collective agreement was beached in a single transaction." The Board at p. 6 held that it had jurisdiction to treat as a continuing grievance "those portions of the grievance … which allege that the Ministry is in breach of a continuing duty under the Collective Agreement."

The question presented here, therefore, is whether the grievance involves an alleged breach of a continuing duty or an ongoing failure to pay a benefit under the collective agreement, or does it relate to single transaction – the 1991 or 1998 change in practice? Does it involve a continuing course of conduct rather than one action which happens to have continuing consequences? Upon careful consideration, I conclude that the grievance involves an alleged ongoing failure to comply with the overtime requirements set forth in the collective agreement. The grievance alleges that by changing the practice, "we have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to …the collective agreement." It is not the change in practice, per se, that is being grieved. It is the alleged consequence of that change in practice – the alleged breach of the overtime provisions – and that alleged breach is ongoing.

The testimony of Ms. Clark established that the requirement to prepare transcripts on her own time remains a part of the duties of a Court Reporter. That is also evident from the position specification.

The situation is similar to that in Re Parking Authority of Toronto, supra, where the scheduling practice had been ongoing for many years, but each repeated act of scheduling was held to be a separate alleged breach of the collective agreement. It is also similar to Re National Paper Goods, supra, where even though it was the employer's change in practice that led to the grievances, that did not change the nature of the grievances into a single action. Instead, "[e]ach act of scheduling … led to an independent alleged breach of the overtime provisions of the collective agreement." (102 L.A.C.(3d) at p. 42). In this case, the Union submits that each act of requiring Court Reporters to prepare transcripts on their own time, after regular working hours, is in violation of the overtime provisions of the collective agreement.

Most assuredly, this grievance could have (and should have) been filed in 1991. Similar overtime provisions existed at the time, and the fact that the grievors did not realize that they had a potential grievance does not excuse their failure to do so. Because of the ongoing nature of the grievance, however, these arguments pertain to the issue of remedy, not the issue of timeliness of the grievance. Similarly relevant to the issue of remedy is the concern noted by Arbitrator Adell in Re Parking Authority of Toronto, supra at p. 153, regarding avoiding the building up of heavy back pay liability.

The evidence of prejudice presented by the Employer will also be relevant to the issue of remedy. If documents or witnesses prior to 2001 are not available and prejudice would result, that would be relevant to the determining how far back any remedy could go. Further, if there is evidence of prejudice to the Employer's ability to defend its actions, that issue may be dealt with during the hearing. At this juncture, however, the evidence does not establish that and does not negate the Union's right to proceed with this matter.

Accordingly, for all of the foregoing reasons, I conclude that the May 4, 2001 grievance is a "continuing" grievance, and as such, it is timely under the collective agreement. The Employer's preliminary objection based on timeliness is dismissed.

Issued at Toronto this 18th day of July, 2003.