GSB# 2000-1220

UNION# 2000-0154-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Richard)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

June 23 & 24, 2005.

Decision

The Employer has moved to strike evidence presented to date and to bar the introduction of further evidence on matters previously grieved by the grievor, Doug Richard, which were resolved, either by withdrawal of the grievances or a memorandum of settlement. The Union opposes that motion.

Facts

The grievance before me was filed on November 9, 2000. It alleges, in pertinent part, that “the Employer allowed a poisoned work environment to exist and allowed harassment and intimidation to take place which was directed at me” in violation of the collective agreement and the Ontario Human Rights Code. As set forth in the Union’s particulars, the Union’s position is as follows:

In general terms, it is the grievor’s position that between February, 1998 and mid 2000, tension developed between the grievor and management as a result of the grievor’s attempts to address a series of unsafe practices that were allowed to occur due to mismanagement of the Amhertsburg Water Treatment Plant. The grievor began to experience increased stress and anxiety and was fearful that his employment would be terminated if he spoke out. He was also fearful that he would be held liable for adverse reaction to unsafe water. The situation became increasingly difficult for the grievor when Tom Graham was hired as Graham harassed the grievor which caused the grievor increased stress and anxiety. …. Although Graham was removed from the workplace and the grievor obtained medical treatment he became ill and unable to work as a result of the harassment he experienced….

This statement was followed by thirty-three specifics “that may be relied upon to establish the above….” The first ten pertain to the alleged unsafe practices between 1998 and mid-2000, which the Employer contends were raised in earlier grievances. The first ten particulars are as follows;

1. Wed. February 4, 1998: The Amherstburg Water Treatment Plant (“A’burg WTP”) Manager Chuck Fiddy ordered the day shift operator Craig Hosburgh, to leave the plant unattended for the entire 12 hour night shift in contravention of “The Safe Drinking Water Act” (SDWA)., C.32 S. 20(1). This was admitted by Mr. Fiddy to be an experiment related to cost cutting initiatives by the Provincial Government of the day.

2. Thurs. February 5, 1998: Plant operator Frank Nissen notified the Medical Officer of Health, Dr. Allan Heimann that plant operations had been compromised due to the plant having been left unmanned and there were concerns over possible Cryptosporidium contamination.

3. Fri., February 6, 1998: Dr. Heimann ordered that the contents of the A’burg WTP reservoir be emptied because of the possibility of Cryptosporidium contamination.

4. Feb. 25, 1998: Plant operator Frank Nissen received a letter of discipline for calling the Medical Officer of Health on Feb. 5, 1998 from Hub Manager Gaston Buillon. Mr. Nissen was threatened with dismissal. The grievor was made aware of the letter given to Nissen which led him to believe that any attempt to contact the Medical Officer of Health regarding a possible public health threat (as outlined in the SWDA) would result in possible dismissal.

5. The incidents which occurred on Feb. 4 thru Feb. 25, 21998 had a profound effect on the grievor as an operator, as it was clear in his mind that he was no longer an “Operator in Charge” as outlined in the SDWA but was still legally liable for a potential disaster.

6. Mon. Jan. 17, 2000: The grievor reported for work at 20:00 Hrs. The part-time operator on the day shift who was inexperienced and unlicensed, had allowed approx. 750,000 gal of non-disinfected water to enter the plant reservoir. The grievor took immediate action to attempt to resolve the problem, including shutting down the plant. He did not call the Medical Officer of Health because of the threat of dismissal. He did however, inform his immediate supervisor Chuck Fiddy and advised him to call the Medical Officer of Health. He refused to do this and ordered the grievor to resume pumping the water in the system. This order was refused and an attempt was made to contact Hub Manger Gaston Bouillon who was “unavailable.” He finally reached Hub Asst. Mgr. Gary Dunmore who assured him that the water was safe due to the dilution factor. (contravention of the SDWA C. 32 S. 20 (3). The grievor advised Mr. Dunmore to call the Medical officer of Health which he refused to do. Mr. Dunmore then ordered the grievor to resume pumping water into the system in spite of the fact that each gallon of water contained approx. 34000 E-Coli bacteria (Avg. # of bacteria calculated from plant test results prior to and after this incident (All recorded in Plant Log).

7. Jan. 18, 19, 20, 2000: The mandatory weekly bacteria samples from the distribution system were not taken, neither were any reservoir bacteria samples taken in response to the Jan. 18, 2000 incident. Operator Frank Nissen was ordered by Plant Manager Chuck Fiddy not to sample until the following week and to collect two sets of samples at that time in order to fulfill the mandatory plant sampling quota. (In contravention of the SDWA C. 32 S. 11 (4). NOTE: This course of action would allow the system to flush out any bacteria which may have entered the system as a result of the incident on Jan. 17, 2000. (All recorded in the Plant Log).

8. May 18, 2000: Another series of mistakes were made by the Part Time operator which compromised the safety of the water supply. He was discovered by Operator Frank Nissen working on his Landscaping Business truck in the plant garage. Many of the plant functions were out of adjustment as well as the all important chlorine disinfection system. (Again in contravention of the SDWA).

9. The events in Walkerton, Ontario impacted the grievor as he became aware of a noticeable change of attitude by the local OCWA managers. They became defensive and menacing.

10. June 29, 2000: Plant inspected by Min. of Environment.

At the hearing, on examination-in-chief, the grievor testified as to the matters set out in the first nine particulars. He further testified, generally, about the decline in staffing and the qualifications of one of the part-time operators.

It is the Employer’s submission that the issues raised in these ten particulars were previously grieved – the alleged unsafe practices, inadequate staffing, inadequately trained operators, violations of regulations and placing the community at risk – and resolved, either by withdrawing the grievances or through a memorandum of settlement. The grievances to which the Employer refers are as follows:

1. January 19, 2000 – Group Grievance

The grievance alleges:

Failure to post and fill vacancies at the Amherstburg Area Water Treatment Plant under Article 6.1 of the collective agreement. Operators and Maintenance are being expected to carry the load of a spare operators not replaced since Aug. 1996. Also as of Nov. 1/99 a maintenance mechanic resigned and was not replaced. Without these positions our projects cannot be properly operated or maintained due to staff shortage. Regulation 435-93 of Ontario Water Resources Act no followed and maintenance is severely lacking.

The remedy sought was “that these vacancies be posted, competition held and filled A.S.A.P. Until such time as they are filled overtime allowed to properly operate and maintain our projects.”

On June 21, 2001, the grievors, including Doug Richard, submitted a “grievance withdrawal form” concerning this grievance, which instructed OPSEU to withdraw the grievance and “take no further action in this matter.”

2. January 24, 2000 – Grievance of Doug Richard

The grievance states:

I grieve that I was ordered to perform duties associated with the night shift including back[ ] filters, collecting plant data and completing WHMIS sheet and computer entries. Changing [ ] and [ ] metal charts and any other duties which I observed that had not been completed by the operator responsible for the shift prior to mine. The individual that operated the plant prior to my shift does not possess the required level of certification and has not been properly trained. I grieve that under Article 9.1 of the collective agreement.

The remedy requested was for “OCWA immediately provide a competent Class IV Level certified operator to cover all sick/vacation or spare days so that the remainder of the operators do not have to carry the extra work load on their own respective shifts of an operator who is unqualified to operate this plant.”

This grievance was withdrawn by the grievor, through a withdrawal form, on June 21, 2001.

3. January 31, 2000 – Group Grievance

The grievance states:

Under Article 9.1 of the collective agreement OCWA has not provided enough training to a contract employee. This operator has obtained an “oper. in training” license but very little operational safety training. He is not qualified to be operator with “Direct Responsible Charge” at a Class 4 Water Treatment Plant. His safety as well as Operators that follow his shift are at risk along with our community’s water supply and the Treatment Plant.

The remedy requested was for “this procedure of allowing an OIT to operator our Class 4 W.T. Plant to stop immediately. Operators with proper Class 4 licenses are to operate this plant, if necessary to obtain enough operators at the premium rate. Refer to Ontario Water Res. Act., Reg. 435/93.”

This grievance was also withdrawn, through a withdrawal form, on June 21, 2001.

4. January 19, 2000 – Group Grievance.

The grievance alleges that “overtime work is not being fairly distributed or compensated for at the Amherstburg W.T.P. among qualified operators...” It cites to Article 31.3 (overtime) and Article 10, par. 3. It further states: “Also note that Regulation 435/93 of the Ontario Water Resources Act is not followed as inadequately certified operators have been operating more than the regulation allows.”

The remedy sought was that the qualified operators “be given the first opportunity to work any overtime at the Amherstburg W.T.P. with compensation to be at the premium rate. Also that Reg. 435/93 be followed.”

Two other similar overtime grievances were filed by individual operators, one on January 19, 2000, and one on March 16, 2000.

The three overtime grievances were set for mediation on August 28, 2002. The following day, a Memorandum of Settlement was signed. It provided for a “full and final settlement of the above noted grievances filed by the grievors on a without prejudice basis, and with no admission of liability.” Further, the parties agreed that “this settlement serves as a final withdrawal of the above-noted grievances.

There was no evidence presented concerning the withdrawal of the grievances or the memorandum of settlement. Only the documents were introduced at the hearing.

Decision

The Employer seeks an order prohibiting the Union from leading further evidence and to strike evidence that relates to the withdrawn and settled grievances. Specifically, it seeks to strike the grievor’s evidence of events from February 1998 to mid-2000, concerning the alleged unsafe water practices, staffing levels, operator training and alleged violations of the regulations and risk to the community. In its submission, these matters were raised in the earlier grievances and the grievances were either withdrawn or settled. It submits that although the Union could have withdrawn them on a “without prejudice” basis, it did not do so, leading the Employer to believe that the matters raised had been resolved. In its submission, it would be unfair to allow the Union to re-raise these issues in support of the grievor’s current grievance. In support of its position, the Employer cites to Re Weston Bakeries Ltd. and Milk and Bread Drivers, Diary Employees, Caterers and Allied Employees, Local 647 (Giddy) (1990), 1998 CanLII 30035 (ON LA), 76 L.A.C. (4th) 258 (Simmons), and cases cited therein, including Re Canadian Union of Public Employees, Local 207 and City of Sudbury(1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville); Saint- Gobain Abrasives and C.E.P., Local 12 (Gutland) (2003), 2003 CanLII 89556 (ON LA), 120 LA.C. (4th) 73 (Burkett); Re Hotel-Dieu Grace Hospital and O.N.A. (1997), 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (M. Picher); Re OPSEU (Wairich) and Ministry of Labour (2005), GSB No. 2003-0187(Watters); OPSEU (Dale et al.) and Ministry of Health and Long-Term Care (2002), GSB No. 0783/00 et al. (Abramsky).

The legal effect of a settlement, withdrawal or abandonment of a grievance on a subsequent grievance has been the subject of much litigation and comment. In this case, the Employer relies on the withdrawal of the January 19, January 24 and January 31, 2000 grievances and the settlement of the overtime grievance dated January 19, 2000. Analytically, different considerations apply when a matter is settled versus withdrawn or abandoned, and I will address them separately.

1. The Withdrawal of the January 2000 grievances.

The starting point regarding the legal effect of the withdrawal of a grievance is Re Canadian Union of Public Employees, Local 207 and City of Sudbury, supra. In that case, the board held at pp. 403-404, 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 entertain such a second grievance…. There is also substantial authority to support the proposition that an arbitration board 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 rationale behind this “arbitral rule of abandonment” is the importance of finality and certainty, and preventing abuse of the grievance 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.

The idea is that a party should not be allowed to have “second thoughts” or a second “kick of the can.” As Arbitrator Schiff stated in Re Humber College of Applied Science and Technology and OPSEU (1999), 1999 CanLII 35900 (ON LA), 80 L.A.C. (4th) 108, 111 (Schiff), a party’s attempt to retry the same grievance between the same parties “might well justify arbitrators’ stopping the party from trying to bite the apple a second time.”

A competing consideration is the enforcement of the “substantive rights” of the collective agreement. Re Governing Council of University of Toronto and Service Employees Union, Local 204 (1975), 1975 CanLII 2079 (ON LA), 10 L.A.C. (2nd) 417 (Adell), cited in Saint-Gobain, supra at p. 5 (Quicklaw). Dismissing a grievance – or, in this case, the preclusion of evidence in support of a grievance – negates or at least undermines the enforcement of substantive rights under a collective agreement. Consequently, both factors – efficiency interests and substantive rights – must be considered and balanced.

In this case, the issue to be decided is whether the withdrawal of the January 2000 grievances precludes the Union from leading evidence about those grievances in support of the November 2000 grievance. In deciding that question, the first issue is whether or not the earlier grievances and the November 2000 grievance are sufficiently similar or identical in substance to attract the arbitral rule that a withdrawn grievance acts as a bar to the revival of the subject matter in a second, subsequent grievance. For the reasons set forth below, I conclude that they are not.

It is clear, from the wording of the grievances, that they are not identical in form. The November 2000 grievance asserts a poisoned work environment and harassment contrary to the collective agreement and the Ontario Human Rights Code. As the Union explained in its particulars and at the hearing, the allegation is that the grievor’s attempts to address a series of unsafe practices led to increased stress and anxiety for the grievor, which was then exacerbated when Tom Graham was hired and allegedly began to harass him. Eventually, the Union claims, these circumstances caused the grievor to become ill and unable to work.

The January 2000 grievances deal with (1) an alleged failure to post positions,(2) being required to do extra work due to inadequately trained operators and (3) health and safety risks to the operators and the community due to the same. At that time, there was no claim of a poisoned work environment or harassment, nor any claim that the Employer’s actions created stress and anxiety for the grievor or caused him to become ill. Accordingly, I conclude that the November 2000 and the January 2000 grievances clearly are not identical or substantially similar in form .

I also conclude, although there is some overlap in the underlying facts, that the grievances are not substantially similar or identical in substance. The substance of the November 2000 grievance is that the Employer’s actions caused the grievor to become ill and unable to work. The substance of the grievances in January 2000 is that the Employer improperly failed to fill vacancies and train the part-time operators, in violation of the collective agreement and the regulations.

A given set of facts may lead to multiple claims and rights. The withdrawal of a grievance may prevent the re-litigation of that grievance where the issues are identical or substantially similar in substance – the “same grievor – same grievance.” Re Pharma Plus Drugmarts Ltd. and U.F.C.W., Local 175 (1991), 1991 CanLII 13429 (ON LA), 20 L.A.C. (4th) 251 (Barton). It may also prevent the parties from arguing the same issue based on new facts, but facts which are essentially the same as those involved in the prior grievance. Re Weston Bakeries, supra. But a withdrawal, without more, does not prevent a different claim based on the same set of facts. That is not a situation where the Union is seeking “to bite the apple a second time” or abusing the arbitration process. Simply put, in this case, the Union is litigating a different issue – “same grievor – different grievance.”

This is not to suggest that a grievor may split his case, i.e., raise certain legal claims, then withdraw them only to file a new grievance raising a different legal claim on the same events. That is not what occurred here.

In the cases cited by the Employer, the Union sought to grieve the same claim that had earlier been withdrawn or abandoned. In Saint Gobain, supra, for example, the grievance was for premium pay based on a provision in the collective agreement. The identical claim was made several years before, and that grievance, although denied by the employer, was never referred to arbitration by the Union or otherwise pursued. The relevant collective agreement language remained the same. The arbitrator ruled that the failure of the union to pursue the earlier identical grievance constituted a representation that the union accepted the Company’s interpretation of the collective agreement and barred the Union from proceeding with the second grievance.

In Re Weston Bakeries. supra, the arbitrator ruled that the union’s abandonment of a 1996 complaint that the company was violating the collective agreement by having customers pick up product from its Kingston plant barred a subsequent grievance concerning “the same subject matter.” He noted that the remedies sought were identical – both sought to stop the practice – and held that arbitral rule of abandonment was established to deal precisely with that situation.

In contrast, the January 2000 and November 2000 grievances are not the same, although some of the underlying facts overlap. The particulars concerning the January 2000 events deal, in part, with a problem allegedly caused by the part-time operator on the day shift due to a lack of training and being unlicensed – a fact raised in the January 24 and January 31 health and safety grievances. The similarity, however, ends there. The particulars - #6 and #7- deal extensively with the grievor’s dispute with management about what action to take and the failure to take samples afterward – different matters entirely.

Further, there is nothing in the January 2000 grievances which deal with the alleged events outlined in the particulars regarding February 1998. Likewise, events subsequent to the January 2000 grievances cannot be precluded by the withdrawal of the January grievances. Consequently, there is no basis to conclude that those claims as precluded by the January 2000 grievances.

I also conclude that, under the facts here, the Employer could not have reasonably viewed the withdrawal by the Union of the January 2000 grievances as acceptance by the Union of the underlying facts for all purposes. Instead, the withdrawal could be viewed as acceptance that the Union would not pursue the claims raised in the grievances - the failure to post the operator and maintenance positions; the allegations that the grievor was required to do extra duties; the issue of O.I.T.’s being in charge of the plant under Article 9.1 of the collective agreement. But it cannot be viewed as precluding the introduction into evidence of the facts set out in the Union’s particulars, or raising unrelated claims based on those facts.

Consequently, because I conclude that the January 2000 grievances and the November 2000 are not substantially similar or identical in substance, I conclude that the withdrawal of the January 2000 grievances does not preclude the admission of evidence in this case.

2. The Settlement of the January 19, 2000 Grievance

The Employer further contends that the matters raised in the overtime grievances – including the alleged violation of Regulation 435/93 and the claim that the Employer used inadequately certified operators more than the regulation allows - which were settled, precludes the introduction of evidence to that effect. To permit that, it submits, undermines the “full and final” settlement reached by the parties and would undermine the goal of settlements.

The GSB has held that evidence regarding matters that have been settled may not be used to support similar claims. In OPSEU (Warairch) and Ministry of Labour, supra, the parties had settled two grievances alleging discrimination in regard to the grievor’s accommodation. Subsequently, the grievor filed another grievance alleging that the employer “has and continues” to discriminate against the grievor, engaged in differential treatment and created a poisoned work environment. In support of this grievance, the Union sought to rely on the facts of the settled grievances. The Employer moved to preclude such evidence on the basis that the matters had been fully resolved. The Board held at p. 15 that the “overriding consideration, in this instance, is the fact that the parties agreed to a full and final settlement of the grievances of April 17, 2001 and October 11, 2001 through the Memorandum of Settlement executed on June 7, 2002.” The Vice-Chair was concerned that he would be asked to make adverse findings against the Employer in respect of its treatment of the grievor when that very issue had been the subject of a mutual settlement. He was concerned that to allow that “could serve to undermine the parties’ confidence in final settlements and their legitimate expectation that settled matters will not reappear in some different guise.” To the same effect is OPSEU (Dale et al) and Ministry of Health and Long-Term Care, supra and Re Hotel-Dieu Grace Hospital and Ontario Nurses’ Association, supra.

In Warairch, supra, as well as in Dale, supra, the Union sought to rely on the same matters (alleged discrimination) that had been resolved to prove a pattern of discrimination. In the instant matter, the Union is not relying on any overtime claim to support the grievor’s claim that he suffered harassment and a poisoned work environment. While the statement of grievance, in part, “noted” that inadequately certified operators were operating more than the regulation allows, the claim involved the proper distribution of overtime. That was what was settled. The noted issue was quite tangential to the grievance. As a result, I do not believe that in deciding the November 2000 grievance, I will be asked to make adverse findings on matters that were “fully and finally” settled earlier.

Conclusion

For all of the foregoing reasons, the Employer’s preliminary motion to exclude evidence is denied.

Issued at Toronto this 12th day of July, 2005.