GSB# 2001-0534, 2003-2944

UNION# 2001-0551-0001 [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 H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

March 1 & 10; May 3; June 11 & 21; July 22, 2004.

AWARD

This Award addresses three motions submitted by the Ministry. The first motion asserts that the original grievance (the group grievance) and the Union policy grievance, which was consolidated with it, should be dismissed on the basis that the same issues were grieved in 1990 and then were either withdrawn, deemed withdrawn, terminated by the Grievance Settlement Board and/or abandoned by the Union. The second motion asserts that the grievances should be dismissed on the basis of delay and prejudice. Finally, the Ministry has moved to strike from the record substantial portions of the testimony of a witness for the Union, as well as a number of documents, on the basis that the testimony and documents relate to grievance settlement discussions held on a “without prejudice or precedent” basis, and are therefore privileged and not admissible into evidence. The Union opposes all of these motions.

Background

On May 4, 2001, a group grievance was filed by three full-time classified Court Reporters, alleging that due to a 1991 change in policy, “we have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to ….the collective agreement.” At the outset of the hearing on July 10, 2003, the Employer moved to dismiss the grievance as untimely, since the change in policy occurred years before the grievance was filed. The Union took the position that the grievance alleged a “continuing violation” of the overtime provisions of the collective agreement. In an Award dated July 18, 2003, I agreed with the Union and ruled that the May 4, 2001 grievance was a “continuing” grievance and therefore timely under the collective agreement. I ruled, at p. 8-9, as follows:

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 or 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.

Thereafter, on August 20, 2003, the Union filed a policy grievance, alleging that “[t]he 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.” At the next day of hearing on January 14, 2004, the Union moved to consolidate that grievance with the group grievance. The Employer opposed that motion. In a decision dated January 17, 2004, I granted the Union’s motion to consolidate based on my determination that the two grievances involve common questions of law and fact – specifically, whether the preparation and certification of transcripts is bargaining unit work to which the collective agreement, including the overtime provisions, applies.

At the hearing on March 1, 2004, counsel for the Union stated, in discussions related to various issues in the case, that the issue of court reporter preparation of transcripts and overtime had been the subject of discussions and grievances, including a policy grievance, 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 bring a motion to that effect. After caucusing, it was agreed that the Union’s first witness, Mr. Terry Moore, would testify about his knowledge about these earlier grievances. Counsel for the Employer had first sought particulars about these earlier grievances, but in the interest of expedition, the parties agreed to have Mr. Moore testify on examination-in-chief. During that testimony, quite a number of documents were introduced which counsel for the Employer had not previously seen. The parties also contacted the Registrar of the Grievance Settlement Board to determine the status of the earlier grievances.

At the start of the next day of hearing, March 10, 2004, counsel for the Employer took the position, among others, that much of Mr. 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 Ministry then proceeded with its evidence, the testimony Mr. Mike Uhlmann, then Manager, Employee Relations for the Ministry, concerning the earlier grievances 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 concerning court reporters came to his attention, including a number of grievances. Quite a number of grievances 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 writing further to recent discussions concerning 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 primary function is to act as a court reporter, court reporters' secondary functions (i.e., secretarial 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 principle that fees should not be paid to salaried employees for work performed during their normal office hours. Transcripts should be routinely prepared on classified court reporters’ own time. As a result, their receipt of transcript fees will be primarily for work prepared outside of office hours. In an exceptional situation, when a transcript must be prepared during office hours, prior approval should be received from the court reporter’s supervisor. In those exceptional situations, it is recognized that at this time the transcript fee will be paid to the court reporter.

Please ensure that the above practice is in place throughout your region by July 15, 1990.

According to Mr. Moore, this memo was viewed as a “shot across the bow” and generated “a ton of grievances across the province.” The practice whereby court reporters were allowed to use breaks or down time from court to prepare transcripts was stopped. Now, if there was a break, they were to perform clerical, but not transcript-related work. The memo, he stated, was “received with alarm by the classified court reporters” and grievances were filed. According to Mr. Moore, there was pressure on the Union 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 “principles” 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 grievances, including one specific option. Mr. Moore was assigned by OPSEU to play a lead role in “trying to find resolution to a number of problems”, including the grievances resulting from the Gourley memo. Other issues included classification issues among the various types of court reporters, workload issues, training issues, posting of vacancies and implementation of a Tribunal 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.

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 during the negotiations, although he stated “we may have talked about the existence of it.” He could not recall.

In addition to numerous individual grievances concerning the Gourley memo and the failure to pay overtime for transcript work, the Union filed two policy grievances. On August 3, 1990, Union grievance ATG-U312 was filed. It states:

The Union grieves the directive implemented July 15, 1990 prohibiting Court Reporters from preparing transcripts on the employer’s time. The Union submits that the employer is estopped from altering its long standing conditions of employment with respect to the preparation of and compensation for transcripts.

In terms of remedy, the Union 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 of transcripts to be raised in collective bargaining, and that “the employer abandon its plans to assign Court Reporters various clerical duties during time previously used for the preparation of transcripts.”

On August 28, 1990, the Union filed a second policy grievance, ATG-U321, which states:

The union grieves that the Ministry 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 transcripts and any other work required outside regular working hours or on scheduled day(s) off.

In terms of remedy, the Union 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 15, 1990 with interest.”

These grievances had been referred to the GSB and were scheduled for hearing on December 20, 1990. Shortly before that date, however, in light of the number of grievances 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 grievances on hold pending settlement discussions as well as temporarily 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 Union on December 21, 1990 and by the Ministry 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 during negotiations which will be undertaken in an attempt to resolve all grievances relating to Court Reporters.

1. As a demonstration of good faith, effective January 1^st, 1991, the Ministry will temporarily rescind the directive dated May 29^th, 1990 regarding the preparation of transcripts and will revert to the prior practice in pace in each work location for the period of up to 6 months. In the event that the parties are unable to effect a settlement in these matters during that timeframe, the Ministry will revert to the current, post July 15^th, 1990 practice. This timelimit may be extended by mutual agreement of the parties.

2. The Union agrees that individual and policy grievance proceedings regarding Court Reporters with respect to the preparation of transcripts, overtime, change of work assignments and classification, will be suspended or put on hold and any grievances currently or subsequently scheduled for arbitration will be adjourned during negotiations.

3. The Ministry agrees to provide time off with no loss of pay or credits including reasonable travel time for up to 5 Union members for the purpose of attending negotiations.

4. Notwithstanding point #1 above, either party may upon 3 days written notice terminate negotiations and reactivate any actions temporarily 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 Union’s team were representatives of the various 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 “grievance committee.” None of the individual grievors were part of the committee. He agreed, however, that the goal was to resolve all outstanding matters, including the grievances 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 Ministry wanted the discussions to be as confidential as possible, while the Union wanted to be able to relay as broadly as possible what was happening to its members. They agreed that the Union would undertake to be responsible and the Employer would let the Union 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 surprised if he had asked for confidentiality and that Mr. Moore needed a mechanism to discuss what was happening with the membership, but he could not recall what they agreed to.

The evidence showed that the Union, periodically, sent “negotiations updates” to its members, outlining the various proposals and positions of the parties. There is no evidence that Ministry officials were sent copies of these updates, but they were widely distributed 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 during the three years of discussions.” They were not sent to him.

The negotiations/discussions continued significantly beyond the original six-month period, 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 initiative, the Ministry wanted to take a serious look at utilizing audio recording to record evidence given in court, instead of traditional transcripts. According to Mr. Moore, this caused the court reporter negotiations to grind 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 Ministry’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 recognizing that some matters will have to be placed on-hold pending the outcome of the ECP [Expenditure Control Pilot] pilot projects.

A. Tribunal Implementation…..

B. Union Grievance on Vacancies ….

C. ECP Pilot Projects …

D. Court Reporter Negotiations

The Ministry has committed itself to testing the ECP initiative 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, transcript 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 Ministry has decided what to do with the test site experience. In this context, we believe that the status quo with respect to the assignment of clerical 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, transcript fees, assignment of duties etc. is to continue until after the test site experience has been evaluated and the Ministry 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., Transcript 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 Ministry proceeds from there.

2. All individual and policy grievances regarding transcript 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 of transcripts will be maintained in the interim, with the exception of the first test sites.

4. ….

By letter dated October 25, 1993, Mr. Moore confirmed the Union’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 project and a decision was made by the Ministry regarding audio recording. Alternatively, according to Mr. Moore, the parties could decide to terminate the discussions formally. Nevertheless, as Mr. Moore testified, “both sides were still interested in arriving 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 grievances and implementation of the Gourley memo were put on hold indefinitely. Mr. Uhlmann further testified that until the filing of the current Union policy grievance on August 20, 2003, he was not aware that the Union was challenging the Employer’s actions in relation to transcript work. He had not been advised of the earlier group grievance 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 left 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 Ministry deciding not to pursue audio recording. Shortly thereafter, in 1997, Mr. Uhlmann left the government. He held a number of positions in the private sector, and returned to the Ministry of the Attorney General in 2001.

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 grievances appear to have gone into what counsel for the Union described 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 surprisingly, he was unaware of things that happened while he was not employed by the Ministry. There is no evidence in the record, however, regarding whether or not the Gourley memo has been generally implemented by the Ministry. Evidence from the first day of hearing, 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 transcripts 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 ministry-wide. She testified, however, that court reporters were still allowed to prepare transcripts 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 transcripts, 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 grievors, Florence Clark, testified on the first day that the practice of using down time to type transcripts was changed around 1991, and that the practice of scheduling days out of court to type transcripts ceased shortly thereafter.

The subsequent evidence of Mr. Moore and Mr. Uhlmann, and the documents introduced at the hearing, 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 tried to resolve their differences. Whatever practice existed before that memo would continue in effect, and the evidence showed that the practice was not uniform. It varied throughout the province, although, according to Mr. Moore, a significant majority of employees were allowed to use work time to prepare transcripts. 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 primarily on the documents supplied by the Union at this hearing, and the testimony of Mr. Moore. He had no independent recollection of the specifics of the parties’ discussions.

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 grievance settlement discussions which are confidential and privileged, but were akin to collective bargaining. On cross-examination, he acknowledged that grievances were discussed as well as non-grievance issues, and that there was a “resemblance” to discussions to resolve grievances, “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 grievances 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 Union 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 authority to negotiate on behalf of management board. Instead, he was trying to resolve grievances. In his view, the discussions were grievance settlement negotiations. He stated that the Union 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.

Periodically, the GSB sent the parties a number of letters concerning the two policy grievances, among others. On February 6, 1991, Registrar Joan Shirlow wrote to the Ministry that the Union had withdrawn Union Grievance ATG-321 (GSB NO. 1350/90). This was based on correspondence from Union counsel to Ms. Shirlow dated November 23, 1990, which stated that the Union grievance scheduled for December 17, 1990 “has been withdrawn without prejudice.” Subsequent correspondence, however, shows that the Union grievance actually withdrawn was dated April 30, 1990 and dealt with classification issues. Nevertheless, the Board’s records still showed that the Union had withdrawn ATG-U321 (GSB No. 1350/90). This was clearly in error.

On July 26, 1991, Grievance Officer Bebe Ahad wrote to Ms. Shirlow regarding a large number of court reporter grievances, 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 grievances.” 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 Grievance Settlement Board’s inactive list for another year. …

Thereafter, on May 2, 1994, Registrar Shirlow sent all the Ministries, including the Ministry 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 written while the ECP pilot project was still continuing.

At all material 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 grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

Under the collective agreement, a grievor has fifteen (15) days from the time the Stage Two decision is received or due to apply, through the Union, to the Grievance Settlement Board for a hearing of the grievance. There is no time frame specified in the collective agreement for referral to arbitration in regard to Union grievances.

In Article 22.1, however, the parties recognized the need for promptness in grievance 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 arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

Originally, the Employer sought only to dismiss the Union policy grievance on this basis. After questions posed by me, the Employer sought to amend its motion to dismiss both the group and the Union policy grievance. The Union objected to that expansion of the motion. Thereafter, the parties argued whether or not the Employer could expand its motion in this manner.

The Employer’s Motions to Dismiss

Positions of the Parties

The Employer contends that the grievances should be dismissed due to the fact that the same issue was grieved in 1990 and was either withdrawn, deemed withdrawn, terminated by the GSB or abandoned by the Union. It asserts that the Union should be estopped from raising the same issue again, and that it is barred from proceeding due to its failure to pursue the earlier grievances, delay and laches.

The Employer argues that the evidence establishes that the parties agreed to hold the 1990 grievances in abeyance until the completion of the ECP pilot project, not indefinitely. At that point, if not before, it asserts that it was incumbent upon the Union to do one of three things: (1) resurrect the 1990 grievances; (2) alert the Employer to the issue; or (3) file another grievance. None of those things, it asserts, happened. Instead, Mr. Moore left. Mr. Uhlmann left, and from 1996 to 2003, there was no grievance activity from a policy perspective. It asserts that the 2001 group grievance did not indicate a broader, central issue regarding transcript work. Consequently, the Employer asserts that for seven years, the Union failed to raise this issue, lulling the Employer into a false sense of security and the view that the Union was no longer asserting that transcript work was bargaining unit work subject to the overtime provisions of the collective agreement.

The Employer contends that the Union had withdrawn one of the policy grievances, and the Ministry was so notified by the GSB. It asserts that the Board terminated the other policy grievance, and the Ministry was advised of that. It also relies on Article 22.14 under which, it asserts, the grievances must be deemed to have been withdrawn when they were not pursued after the completion of the pilot project. Those facts, it asserts, plus the passage of seven years, clearly indicates that the Union abandoned the issue and cannot now proceed with the issue by filing a new grievance.

In the Employer’s view, the Union dropped the ball after Mr. Moore moved on, and no one picked it up again. It submits that the Union 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 indefinitely, but only until the completion of the pilot project. It asserts that there is no evidence that the Union alerted the Employer to the fact that the issue would be resurrected in the future. Under these circumstances, the Ministry asserts that the Union is estopped or precluded from proceeding with the instant grievances. To allow it to do so, it claims, violates the principle of finality and is an abuse of the grievance 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), 1998 CanLII 30035 (ON LA), 76 L.A.C. (4^th) 258 (Simmons); Re Saint-Gobain Abrasives and Communications, Energy and Paperworkers’ Union of Canada, Local 12 (2003), 120 L.A.C. (4^th) 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), 1999 CanLII 35890 (ON LA), 83 L.A.C. (4^th) 330 (Ellis).

The Employer also contends that allowing these grievances to proceed would deprive the Employer of its right to a fair hearing since, due to the passage of time, its ability to defend its actions has been prejudiced. The Union, the Employer asserts, is relying on discussions and positions taken in 1991-1993 to support its argument in 2004 that transcript preparation is bargaining unit 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 hearing, and requires dismissal of the grievance because of delay, laches and prejudice. In support it cites to Re Kroeger and Ministry of the Solicitor General and Correctional Services (1999), P/0060/98 (Willes); OPSEU (Alexander) and Ministry of Transportation (1999), GSB No. 2231/97 et al. (Gray)

The Union contends that it is not, at this juncture, seeking to revive the 1990 grievances. Instead, it submits that the earlier grievances do not and should not preclude the issue from being decided now.

The Union argues that the 1990 grievances 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 grievances on hold pending settlement discussions and that the Union so notified the Board, correcting the Board’s initial error. Under these facts, the Union 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 Union 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. 1249/90 et al. (Barrett). It asserts that, under the facts, the Board’s administrative termination was incorrect and should not control the issue.

The Union further asserts that there is no basis to conclude that the grievances 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 grievances, and that both sides held to that status quo until 1999, which led to the group grievance in May of 2001. Under these facts, it submits that the Union did not improperly fail to pursue or abandon the issue. The Union 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 Union argues that, under the facts, there is no basis to conclude that the Union shared the Employer’s interpretation of the collective agreement. It asserts that there was no agreement on the issues surrounding transcript work. In support, it cites to Re North American Lumber Ltd. and International Woodworkers of America, Local 2693 (1992), 1992 CanLII 14636 (ON LA), 25 L.A.C. (4^th) 402 (Marcotte); Aventis and Communications, Energy and Paperworkers Union of Canada, Local 1701 (2003), unreported decision of R. Abramsky.

In the alternative, the Union argues that even if the 1990 grievances were abandoned by the Union, that does not preclude the Union from raising the issue in a new grievance since there was never any determination made on the merits of those earlier grievances. Accordingly, the principle of res judicata does not apply. In support, it cites to Re Humber College of Applied Science and Technology and OPSEU (1999), 1999 CanLII 35900 (ON LA), 80 L.A.C. (4^th) 108 (Schiff); Re Pharma Plus Drugmarts Ltd. and U.F.C.W., Local 175 (1991), 1991 CanLII 13429 (ON LA), 20 L.A.C. (4^th) 251 (Barton); Re Khirkanan v. Khirkhanan (1983), 1983 CanLII 1741 (ON HCJ), 44 O.R. (2^d) 476 (H.C. Justice).

The Union also argues that the Board’s earlier ruling regarding consolidation is res judicata regarding any other issues which could have been raised concerning the Board’s jurisdiction over the policy grievance, and that the Board has no authority 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 (Howe/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 Union’s motion to consolidate was made, it had no knowledge about the 1990 grievances. 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 indefinite 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 Union 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 transcript work was terminated by the Board, or otherwise abandoned and withdrawn.

Decision on Motions to Dismiss

The evidence clearly establishes that the August 20, 2003 policy grievance and the August 3, 1990 grievance – ATG-U321 – raise the same issue. Although worded differently, both assert that preparing transcripts are bargaining unit 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 grievance – ATG-U312 – dealt with the implementation of the Gourley memo, which precluded court reporters from preparing transcripts during downtime from court. That same issue was raised, in part, in the May 2001 group grievance.

The evidence shows that the parties agreed, in December 1990, to put the two 1990 policy grievances, and all similar individual grievances, 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 original agreement (i.e., the Gourley memo and the grievances 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 original agreement was indefinite. 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 Ministry has decided what to do with the test site experience.” It continues “that the status quo … is to continue until after the test site experience has been evaluated and the Ministry 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 Ministry proceeds from there. …” and “that the status quo with respect to the production of transcripts will be maintained in the interim, with the exception of the first test sites.”

By the terms of this correspondence, the parties’ agreement was not for an indefinite period of time. There was no agreement to keep the grievances on hold as long as the Gourley memo was not implemented. Instead, the parties agreed to keep everything on hold – the negotiations, the grievances 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 Ministry’s decision on audio recording – nothing happened in regard to the negotiations or the grievances. The negotiations did not resume. The grievances were not pursued. There was no formal termination of the negotiations, as provided for in paragraph 4 of the original Memorandum of Understanding. There was no explanation, by either side, of why nothing occurred after 1996.

The Union contends that nothing happened because the Employer kept its end of the bargain not to implement the Gourley memo, and that the group grievance was filed after they did implement it at the 80 East Mall location. It asserts that the Employer and Union 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 quo beyond the audio pilot project. The agreement was to maintain the status quo until the completion of the pilot project, not indefinitely.

There is also no evidence that the group grievance was filed in response to a change in the status quo concerning the Gourley memo that took place in 1999, as the Union asserts. First, it was the Union’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 transcripts ceased in 1998 or 1999. She further testified, however, that employees’ were still allowed to use down time to type transcripts. The use of down time to prepare transcripts 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 transcripts 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 grievance. 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 uniformity among the courthouses was a result of the differing practices, not a change in practice by the Ministry.

It is my view that the grievances 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 February 6, 1991 letter that the Union withdrew ATG-U321. That letter was clearly in error. The grievance that had been withdrawn was a different policy grievance dated April 30, 1990 and involved classification issues, and the Board was effectively advised of this error. Further, on July 26, 1991, Grievance 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 grievance.

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 grievance ATG-U312. Further, under these facts, the Employer should not have been misled into believing that the grievance was, in fact, terminated.

Nevertheless, I find that the 1990 grievances were abandoned and “deemed withdrawn” under Article 22.14. After the completion of the audio recording pilot project, the grievances appear to have gone into a “black hole.” The Union 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 grievances must be “deemed withdrawn” under Article 22.14. Although there is no specific time set out in the collective agreement for having a grievance, once referred to arbitration, be scheduled by the Union for hearing, a reasonable period of time 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 Union policy grievance 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 grievance, the period 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 arising from the interpretation, application, administration or alleged contravention of this Agreement…” In the absence of a reasonable explanation, the time frame for scheduling a grievance for arbitration should be measured in months, not years.

The question, then, is what is the legal affect of the Union’s abandonment and/or “deemed withdrawal” of the 1990 policy grievances? Does it preclude the Union from raising the same issue in the August 2003 policy grievance, or the 2001 group grievance?

There is a line of arbitral authority that the settlement, withdrawal or abandonment of a grievance precludes the filing of a subsequent grievance that raises the same issue. In Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 at 403-404 (Reville), cited in Saint-Gobain Abrasives and Communications, Energy and Paperworkers Union of Canada, Local 12, supra, the Board stated as follows (citations omitted):

The authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor 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 principle of res judicata, but regardless of the approach taken the authorities are overwhelming that a board of arbitration has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance lodged by the same grievor, is identical in substance. ….

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.A.C. 131 (Reville), at p. 404:

The grievance procedure is designed to provide members of the bargaining unit and the union with a method of orderly processing their respective grievances. In order to avoid the expense inherent in the arbitration process the procedure provides for bona fide efforts to be made by both the grievor and management to settle the dispute at various stages and at various levels. It follows, therefore, that if the grievor and or the union 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 grievance 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 grievor or the union representing him, and management would be plagued and harassed in what would be a plain abuse of the grievance procedure.

A countervailing consideration to finality and the prevention of abuse of the grievance process was recognized by Arbitrator Adell in Re Governing Council of the University of Toronto and Service Employees Union, Local 204 (1975), 1975 CanLII 2079 (ON LA), 10 L.A.C. (2d) 417, at 431- 432 (Adell), also cited in Saint-Gobain, supra. He recognized that consideration of a union’s failure to pursue a filed grievance involved “a weighing of two different ends of the contractual grievance 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 primary concern is to prevent abuse of the grievance procedure. …. The competing end is at least as important. We will call it the ‘substantive rights’ end, for it consists of the vindication of rights created by the collective agreement, and it comes most clearly to view when one is primarily concerned with giving substantive effect to the terms of a collective agreement.

Neither end, in his view, should always prevail. Both were “intrinsically valid and the choice of one over the other in a particular case must depend upon the circumstances of the case.” (10 L.A.C. (2d) at 434) In his view, however, “the vindication of the substantive rights created by the collective agreement must be accorded a prima facie dominance – a dominance which can be 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.A.C. (2d) at 434)

In Saint-Gobain Abrasives and Communications, Energy and Paperworkers Union of Canada, Local 12, supra, Arbitrator Kevin Burkett agreed that there must be a balancing between the competing “substantive rights” 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 prior withdrawal of an identical grievance 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 prior grievance 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 prior grievance automatically bars the filing of a subsequent grievance that raises the same issue.” Nevertheless, when “the withdrawal constitutes a representation by the party withdrawing the grievance that it is content to be governed by the other side’s interpretation”, it “gives rise to a rebuttable presumption that the withdrawing party has accepted the other side’s interpretation of the collective agreement.” (120 L.A.C. (4^th) at 81-82).

This view is fully consistent with what Arbitrator Reville stated in the original City of Sudbury case, supra at p. 404, that “if the grievor and/or the union 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 grievance at a later date.”

The same analysis was adopted by Arbitrator Marcotte in Re North American Lumber Ltd. and International Woodworkers of America, Local 2693, supra at p. 419 when he concluded, under the facts there, that the union’s withdrawal could not, in any way, be “viewed as an actual or implied acceptance of the company’s decision on the grievance…” Nor could it “have provided the company with any reasonable opportunity to conclude that the union had, either actually or impliedly, accepted its pre-arbitration decision on the subject matter of the grievance.” Likewise, in Aventis and Communications, Energy and Paperworkers Union of Canada, Local 1701, supra, I ruled that where the union withdrew an earlier grievance on a “without prejudice” basis, without objection by the employer, “it is not at all clear that the Union intended to bind itself to the Employer’s interpretation [of the collective agreement] by its withdrawal of the grievance. In my view, far more evidence of intent would be required to bind the Union to such an interpretation.”

In this case, the question of whether the Union’s failure to pursue the 1990 policy grievances may reasonably be viewed as an actual or implied acceptance of the Employer’s position on the issue of transcript work, is a very difficult one. A strong argument may be made that the Union’s failure to pursue the grievances 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 grievances, it would not be unreasonable for the Employer to have viewed the Union’s inaction as acquiescence.

The Union’s assertion that it did not need to file a grievance 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 transcripts 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, that could only explain why the Union did not pursue ATG-U312 which dealt with the Gourley memo until that time. It cannot explain why the Union did not pursue ATG-U321, the overtime grievance. As I ruled in an earlier decision, the alleged denial of overtime is a continuing violation. In light of these facts, the failure of the Union 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 transcript issue. The Union 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 Union’s earlier, explicit rejection of the Employer’s position - significantly undermines the inference that the Union’s later inaction may be viewed as acquiescence. In light of the parties’ continued disagreement, the “withdrawal of a prior grievance [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 period of non-action by the Union precludes it from raising the issue anew. But under the specific facts of this case, the Union’s inaction does not constitute a clear representation that it was content to be governed by the Employer’s interpretation. In my view, the Union 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.

The Employer asserts that to allow the Union the right to raise these issue amounts to an abuse of grievance process. I cannot agree. There is no evidence to suggest that the Union failed to act on the 1990 grievances, and then refiled it in 2003 in order to harass the Employer, or to circumvent the time limits in the collective agreement. As stated by Arbitrator Adell in 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 intended or that detriment resulted. If intention to harass is alleged, it must be supported by evidence; and if detriment is alleged, it too must be supported by evidence, as in the case of estoppel or laches.”

In terms of detriment, the Employer relies on its inability 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 in 1997. These facts have relevance, in my view, to whether the evidence concerning the 1990-1993 negotiations should be admitted or whether the Union 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 Union’s failure to pursue the 1990 grievances has caused it detriment. There is no evidence that the Employer changed anything or refrained from changing anything based on the Union’s failure to pursue these earlier grievances. The Ministry continued to treat transcript work as it had always done. There is no evidence that the Employer suffered any detriment by the Union’s failure to pursue the overtime issue earlier.

In denying the Employer’s motions to dismiss, I wish to clarify that I am not relying on the Union’s argument that this Board’s consolidation order is res judicata on all issues concerning the Board’s jurisdiction. The motion to consolidate did not address the Board’s jurisdiction in a general sense. It addressed whether there were grounds to consolidate the policy and group grievances. It was a limited ruling. Further, at the time, the Employer was unaware of the earlier grievances. While in some respects it does seem surprising that Mr. Uhlmann did not earlier recall or alert counsel for the Ministry about the earlier grievances on the same issue, those grievances 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 Ministry was aware of these earlier grievances at the time that the Union 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 during the hearing.” That is precisely what occurred.

Further, in denying the Employer’s motions to dismiss, I do not wish to condone the Union’s inaction. The Union’s failure to pursue those grievances, in my view, precludes any remedy for the time period preceding the grievances. What I have decided is that under the specific – and quite unusual – facts of this case, the Union’s failure to pursue those grievances does not forever bar the issue from being raised under the “arbitral rule of abandonment.”

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.U.P.E., Local 43 (1974), 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2d) 150 (Adell), the board stated as follows regarding laches, at p. 423 (emphasis in original):

[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 rights. Rather, the specific prerequisites developed by the Courts of equity have to be shown to be present – i.e., the acquiescence in the violation of the legal right, and some “change of position” by the party guilty of the violation. The tribunal’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 University moved to dismiss the grievance on a number of bases, including laches. A grievance had been filed alleging that faculty stores employees were part of the bargaining unit. The board found that the Union had known for some time that the employees should have been part of the bargaining unit but did not act on it. Then, in 1972, it filed a policy grievance that was later abandoned and then submitted a new grievance on the issue in 1975. The board found that the “union had know for at least 28 months, and perhaps for several years before that, that its rights 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 prior grievance had been lodged, demonstrating that the Union was aware of its legal rights. It ruled, however, that the evidence did not show that the University incurred some detriment through the union’s failure to process the grievance earlier. It ruled that “it was impossible for us to hold that the university would suffer any detriment from being required to include the faculty storekeepers in the bargaining now rather than three years ago or 10 years ago or 25 years ago.”

Similarly, in this case, there clearly was acquiescence by the Union during the period from 1996 to August 2003. Although aware of its claim regarding overtime, as evidenced by the 1990 policy grievance, the Union failed to pursue the matter. But as in Re Governing Council of University of Toronto, there is no detriment to the Ministry from that delay. The Ministry did not change or alter its practices regarding transcript work. If the Union is correct in its view that transcript preparation is bargaining unit work, then the Ministry has not suffered detriment by the Union’s failure to pursue the issue earlier. Accordingly, one of the prerequisites for the doctrine 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 strike 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 grievances. It asserts that the fact that these discussions were settlement discussions is clear from the December 1990 Memorandum of Understanding itself as well as subsequent correspondence by the Union 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 privileged.

In support of its position, the Ministry cites to Re Regional Municipality of Ottawa-Carleton and Canadian Union of Public Employees, Local 503 (1984), 1984 CanLII 5226 (ON LA), 14 L.A.C. (3d) 445 (P.C. Picher); OPSEU (Union Grievance) and Ministry of Transportation (1999), GSB No. 0320/98 (Mikus).

The Union contends that the discussions were not settlement discussions but discussions more akin to collective bargaining. It points out that the issues involved more than grievances and included a wide range of court reporter issues. It asserts that bargaining teams, which did not include the grievors, were created and that the Union periodically sent out “negotiation updates” to the membership. It asserts that these facts demonstrate that the discussions were not privileged settlement discussions, as that term is generally understood. It asserts that the rationale behind that privilege – to foster and protect candid settlement discussions – does not apply.

The Union further contends that the Employer waived any privilege 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 privilege, the Union cites to Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Knight) (1994), 1994 CanLII 18662 (ON GSB), 39 L.A.C. (4^th) 205 (Kirkwood); Re GDX Automotive and United Steelworkers of America, Local 455 (2003), 2003 CanLII 89547 (ON LA), 116 L.A.C. (4^th) 265 (Surdkowski).

The Union further argues that the fact that the discussions were without prejudice or precedent did not mean that the discussions were privileged 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 privileged.

The Union asserts that a fundamental principle is that all relevant evidence is admissible at a hearing. Counsel for the Union stated that the Union 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 Union regarding compensation for transcript work is evidence that it is bargaining unit work. He asserts that the Employer cannot now say that such a position is absurd, illegal or untenable because it did negotiate with the Union

In the alternative, the Union 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 Union’s “negotiations updates” are internal Union 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 Union 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 Ministry, and is “with prejudice.”

In reply, the Employer argues that it never waived the “without prejudice or precedent” nature of the discussions. It waived confidentiality, but not the privilege. 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 stricken 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 strike 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 detrimental way. Yet that is exactly what the Union 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 Union about transcript work, to establish that transcript preparation is bargaining unit work and that the Employer recognized 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.

The fact that the parties’ discussions were not confidential – and were disseminated by the Union 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 Union, 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 privilege. Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU (Knight), supra; Re GDX Automotive and United Steelworkers 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 hybrid of the two. Consequently, my ruling is not based on the fact that the discussions were privileged in the sense that they were settlement negotiations, even though that was the overriding purpose of the discussions. My ruling is based on the parties’ agreement that their discussions were “without prejudice or precedent.”

Accordingly, I will strike 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 Ministry’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 Union 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 Ministry 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 grievances, 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 Union would now bind the Employer to Exhibit 6 to support its position in this case that transcript work is bargaining unit work and that the Employer, in the past, agreed to negotiate over it with the Union. 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 Union. Although it preceded the Memorandum of Understanding, to allow the Union to bind the Employer to the positions taken in those negotiations through Exhibit 6 runs completely 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 striking 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 grievances, 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 concerning 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 denied. I find that the Union’s failure to pursue the 1990 policy grievances after the completion of the audio pilot project, for between five to seven years, creates a rebuttable inference that the Union implicitly accepted the Employer’s interpretation of the collective agreement in regard to transcript 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 grievance process, or detriment to the Employer by the Union’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 strike 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.

4. The hearing will continue on the dates previously scheduled.

Issued at Toronto this 11^th day of August, 2004.