GSB# 2001-0534, 2003-2944
UNION# 01F476, 2003-0999-0023
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 Abramsky
Vice-Chair
FOR THE UNION
Gavin Leeb Barrister and Solicitor
FOR THE EMPLOYER
Kelly Burke Senior Counsel Management Board Secretariat
HEARING
January 14, 2004.
Decision
The Union has moved to consolidate a grievance filed on August 20, 2003, with the case currently before this Board. The Employer has opposed that motion. This Order addresses the issue of consolidation.
The grievance currently before the Board is a group grievance filed on May 4, 2001 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.
At the first day of hearing, July 10, 2003, the Employer raised a preliminary objection to the grievance on the basis that it was untimely filed under the collective agreement. In a decision dated July 18, 2003, I dismissed that motion, ruling that the grievance was a “continuing” grievance and therefore timely under the collective agreement.
On August 20, 2003, the Union filed a policy grievance which states as follows:
The work associated with the preparation and production of typed transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies.
The settlement desired was:
A declaration that the work associated with the preparation and production of typed transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies.
That the Union and all affected persons be made whole including interest.
Any other remedy the Board deems appropriate.
The Union has now moved to consolidate the two grievances. It argues that under the Board’s rules regarding consolidation, there is a common question of law and fact to be decided in the two cases. It notes that the Employer has taken the position, in the first grievance, that preparing transcripts is not “bargaining unit” work and the Union has taken the contrary position. In its view, in order to determine whether the individual grievors are entitled to receive overtime pay for preparing transcripts, I must first determine whether such work is bargaining unit work – the precise issue raised in the Union grievance.
The Union further submits that the relief claimed – overtime pay – arises in both grievances and that consolidation would most efficiently utilize the Board’s and the parties’ resources.
The Employer opposes the motion to consolidate. It asserts that the two grievances are quite different and do not raise a common question of law or fact. It submits that the first grievance is about an alleged inconsistent practice regarding time for preparing transcripts at 80 The East Mall compared to other courts, and does not involve a need to determine whether or not the preparation of transcripts is bargaining unit work. It further contends that the relief sought is different and argues that the Union is attempting to broaden the scope of the grievance. It further notes that the policy grievance was filed two years after the group grievance.
Decision
The GSB’s standard for consolidation is found in both the case law, and the Board’s Rules, at Appendix A, regarding “Consolidation of Cases”, dated January 2003. The rule states:
Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the Grievance Settlement Board that,
(a) They have a question of law or fact in common;
(b) The relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) For any other reason an order ought to be made under this rule, the Grievance Settlement Board may order that:
(1) the proceedings be consolidates, or heard at the same time or one immediately after the other; or
(2) any of the proceedings be,
(i) stayed until after the determination of any other of them,
(ii) abridge the time for placing a grievance on the hearing list.
As set forth in OPSEU (Ferraro) and Ministry of Community, Family and Children’s Services, GSB No. 1200/00 (Mikus), citing Smith and Ministry of Correctional Services, GSB No. 545/94, other factors include efficiency of resources, cost savings, and avoiding conflicting findings of fact.
Applying all of these factors to the case before me, I am persuaded that an order to consolidate the two grievances is appropriate in this matter. In my view, there is a common question of law and fact involved in the two matters. In my earlier Award, at p. 11, I determined that “the grievance involves an alleged ongoing failure to comply with the overtime requirements set forth in the collective agreement.” The grievance is not about an alleged inconsistent practice regarding the preparation of transcripts on work time, although that was a matter raised by the Union. The grievance claims that the grievors were “forced to perform authorized duties [preparation of transcripts] on overtime hours with no overtime pay.” The policy grievance involves whether the preparation and certification of transcripts is bargaining unit work to which the collective agreement applies – including the overtime provisions. In my view, the two grievances raise common questions of law and fact which render an order to consolidate them appropriate. Other factors such as the avoidance of conflicting decisions and efficiency of resources also apply in this matter.
Accordingly, the motion to consolidate is granted.
Issued at Toronto this 23rd day of January, 2004.