GSB# 2003-3764

UNION# 2003-0999-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Nelson Roland

Barrister and Solicitor

FOR THE EMPLOYER

Fateh Salim

Counsel

Management Board Secretariat

FINAL WRITTEN SUBMISSION

July 7, 2005.

Interim Award

At the hearing scheduled to deal with this matter, the parties informed me that they had been unable to reach agreement on some production requests that had been made by the union. After hearing and considering the submissions of the parties, I dealt with that issue in an interim award dated May 29, 2005. In addition, at the hearing, counsel for the Ministry indicated that he intended to make a motion that I was without jurisdiction to deal with the matters raised in this grievance based on the doctrine of issue estoppel and res judicata. He suggested that the issue before me, involving the same parties, had been dealt with previously by the Grievance Settlement Board (the “GSB”) in OPSEU (Forester) and The Crown in Right of Ontario (Ministry of Correctional Services), GSB Decision 360/83 (the “Forester case”). At the hearing, we agreed that it was appropriate to deal with this motion by way of written submissions and a time frame for these submissions was agreed to. I am now in receipt of and have carefully considered the submissions of the parties and the supporting jurisprudence that was provided.

This matter first came on for mediation/arbitration on June 8, 2004. The grievance, which is dated December 19, 2003, alleges, inter alia, that the Ministry has violated articles 9.5 and 9.6 of the Collective Agreement, which deal with video display terminals (VDT). On June 8, 2004, the parties signed Minutes of Settlement in which they agreed to refer the issues raised in the grievance to the next “MERC” meeting scheduled for later the same month. Unfortunately, these and later efforts to resolve this case have been unsuccessful.

The relevant language, in part, in the collective agreement is:

9.5 After each hour of continuous operation of a VDT, a VDT operator shall be relieved of such duties for a period of ten (10) minutes.

9.6 At the beginning of assignment to a VDT and annually thereafter, a VDT operator who is regularly required to operate a VDT for two (2) hours or more per day shall be required to undergo an eye examination by an optometrist or an ophthalmologist who is qualified to conduct the following tests:

(a) unaided visual acuity (letter chart test)

(b) refractive findings

(c) corrected visual acuity

(d) amplitude accommodation

(e) suppression

(f) muscle balance (near, one metre, distant)

(g) slit lamp biomicroscopy.

The cost of the eye examination, not to exceed the OHIP fee schedule for such examinations, shall be borne by the Employer, and the VDT operator shall authorize release of a copy of the examination report to the Employer.

By letter dated May 9, 2005, the Ministry confirmed its legal position with respect to VDTs located in the control rooms at correctional institutions. Counsel stated:

“To confirm, for the purposes of the present proceeding, the Employer’s position is that the equipment used in central and sub-control rooms of all MCSCS Correctional Institutions, which meet the CSA definition of a VDT, are VDT’s as per the current Article 9 of the Collective Agreement. However, it continues to be the Employer’s position that Correctional Officers are not VDT Operators and that they do not operate the VDT’s in the manner contemplated by the collective agreement. Consequently, the provisions do not apply to Correctional Officers working in the control and sub-control rooms of the institutions”.

Counsel for the Ministry clarified again at the hearing that the Ministry was no longer maintaining the position that it had initially taken, namely that the equipment at issue in the case before me was not a VDT. It was conceded that the equipment was a VDT. It became clear at the hearing that the central issue in dispute pertained to whether or not corrections officers (C.O.‘s) “operate” the VDTs in a “continuous” manner as stated in Article 9.5. It was made clear that the Ministry would no longer be challenging that the equipment in use was a VDT but would be focusing on the meaning of the terms “operate” and “continuous” as used in article 9.5 and whether the work of the C.O.’s met this definition.

This is the fourth interim award I have issued in this case. The three previous awards dealt with issues pertaining to process, the provision of particulars and the exchange of documents.

The Ministry has made a motion requesting that the grievance at present before me should be dismissed on the basis that the union is seeking to re-litigate an issue already decided by the GSB. As I have before me the written submissions of the parties, rather than paraphrasing the overview of the Ministry’s position which was provided, it is appropriate to simply set it out:

This is the Employer’s motion that both the doctrines of issue estoppel and res judicata preclude the Union’s attempt to re-litigate an issue already decided by the Grievance Settlement Board (“GSB”). In the present case, OPSEU (as a party to the collective agreement) filed a grievance alleging that Correctional Officers (CO’s), operating VDT’s on control rooms of Correctional Institutions, are VDT operators in the manner contemplated by the VDT language of the agreement, and are therefore entitled to the benefits (i.e. breaks and eye exams) provided under the VDT provisions of the collective agreement. In addition, OPSEU has filed several individual grievances alleging that individual CO’s working in the control rooms are entitled to the benefits pursuant to the VDT provisions.

The issue presently before the GSB is whether CO’s operate VDT's within the meaning of the collective agreement. This same issue was previously addressed by the GSB in the case of OPSEU (Forester) and Ministry of Correctional Services. In that case (and after hearing full evidence and arguments from the parties) the GSB specifically found that the CO's operating VDT's in control rooms at Correctional Institutions are not VDT operators within the meaning of the agreement and are, therefore, not covered by the provisions of the collective agreement. That decision of the GSB was final and binding upon the parties. OPSEU did not appeal or judicially review that decision. OPSEU has now filed these additional grievances seeking to have the same issue re‑litigated, not only once, but several times, through the litigation of the Union and individual grievances. The Employer submits that both the doctrines of res judicata and issue estoppel bar the Union from advancing the same claim more than once. Appellate Courts, including the Supreme Court of Canada, have strongly cautioned the GSB against allowing parties to re‑litigate issues already decided. Indeed, Courts have indicated that arbitrators risk committing a reviewable error when they allow a party to re‑litigate or collaterally attack a decision that is finally decided and binding on the parties. It is submitted that, in the present case, the GSB should not permit OPSEU's attempt to re‑litigate this issue over and over again.

It is a well-accepted principle in arbitral jurisprudence that in order for the doctrine of res judicata or issue estoppel to apply, certain criteria must be met. In Canadian Labour Arbitration, third edition, by Donald J.M. Brown and David M. Beatty, heading 2:3221, res judicata as the result of a prior award is dealt with. The applicable principles are articulated as follows:

Drawing upon the statutory directive that their awards bind the parties, the doctrine of res judicata has been adopted and applied by arbitrators. As one arbitrator has stated:

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 overwhelmingly 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... (from City of Sudbury (1965) 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville))

It has been held, however, that in order to be a conclusive bar to the second grievance, the first award must meet three conditions. First, it must be between the same parties; second, the matter in dispute must be identical in both proceedings, involving the same or an unaltered collective agreement; and finally, it must have been brought for the same object. Accordingly, to determine whether the doctrine applies, or, indeed, whether an earlier award could be shown to be erroneous, may require evidence to be adduced in addition to argument.

In the circumstances before me, the critical question is whether or not the “matter in dispute” or issue in dispute in the case before me is identical to the matter or issue in dispute in the Forester case. If it is not, then the doctrines of res judicata and issue estoppel do not apply. Simply because I am considering the same collective agreement language which was at issue in the Forester case does not give rise to the applicability of the doctrines of res judicata or issue estoppel. Given the ongoing relationship between the parties, the same collective agreement language can be applied or interpreted in many different factual contexts. In addition, unless the collective agreement specifically prohibits it, successive arbitrators can come to different conclusions with regard to the applicability of, or interpretation of, the same collective agreement language (subject to principles of deference which I will review later in this decision).

The Forester decision is a relatively brief one. The issue or matter to be decided is articulated in the decision as follows:

What is to be decided here is the correct interpretation of Article 18.5 (now 9.5). This poses the question: Does the Grievor operate a VDT (video display terminal) within the meaning of the article? Counsel to the Grievor submits that the television monitors used by the Grievor are VDT’s by definition; that they operate continuously though the Grievor does not look at them full time; and that the Grievor’s ailments - eye strain, headaches and irritability - are those which studies have shown to be associated with the operation of VDT’s. It is argued for the Employer that the television monitors used by the Grievor are comparable to those which receive broadcast television; that VDT’s not only have a screen but a keyboard by means of which they are connected to a computer or a word processor; that the Grievor does not operate the monitors since they are connected to cameras which produce the pictures shown on the screens; and that even if the Grievor could be said to be operating the monitors, he does not do so continuously.

The award provides the following conclusions:

It appears that for the purposes of scientific evaluation and classification and, in particular, in connection with the study of radiation, VDT’s are grouped with television monitors. This is presumable because they are both electronic appliances that utilize cathode ray tubes (CRT’s) to display signals received by one or another means of transmission. We are not persuaded that this methodology should determine the meaning of the term VDT as it appears in Article 18.5. For present purposes, the interpretation properly to be given the acronym VDT is that which best represents the sense in which it is used in Article 18.5. In arriving at that interpretation, we must take into consideration its usage “in the trade”, so to speak, and in common parlance.

We do not believe that Article 18.5 can be said to apply to any employee who, in the course of his or her duties, looks at a television screen. In our opinion, the VDT’s contemplated by the article are the now familiar items of equipment consisting of a television monitor and a device which enables the operator to produce and control images that appear on the monitor. Further, the operators of such VDT’s do not simply “look at” an image on a monitor, they must “read” the characters (letters or figures) their operation of the actuating device has caused to be displayed, These strike us as being crucial distinctions between the two appliances under discussion.

Parenthetically, we note that such attention as the Grievor is required to give to the television monitors is necessarily divided between them. Could it be seriously suggested that he is operating two VDT’s in the sense conveyed by the language of Article 18.5?

In the result, we find that the Grievor does not operate a VDT within the meaning of Article 18.5 of the collective agreement.

Therefore, the Board in the Forester case concluded that the equipment being used by the employees in the case before it was not a VDT within the meaning of what was then article 18.5 of the collective agreement (now Article 9.5 ). It found that the equipment at issue was in essence a television monitor and that “we do not believe that Article 18.5 (now 9.5) can be said to apply to any employee who, in the course of his or her duties, looks at a television screen”.

While it is true that the Board in the Forrester case dealt with the issue “do C.O’s operate VDT’s within the meaning of the collective agreement?” and concluded that they do not, there are many facets to this issue as stated. The conclusion that CO’s do not operate VDT’s was based upon or flowed from the Board’s conclusion that the equipment was not a VDT. As the equipment was not a VDT, that was the basis for the finding that the grievor “does not operate a VDT”.

In the proceedings before me, the Ministry has conceded that the equipment in use in central and sub-control rooms (as long as certain criteria not at issue here is met) at all MCSCS Correctional Institutions are VDT’s as per Article 9 of the collective agreement. As noted earlier in this decision, the focus in the instant proceedings is on the words “operate” and “continuous”. Therefore, to put it another way, in the Forester case the emphasis was on a different word.

In the Forester case, as the equipment was found not to be a VDT within the meaning of the collective agreement, there was no need to continue the analysis any further. If the “appliances” as they were referred to in the Forester decision were not VDT’s, then employees could not be “operating” VDT’s within the meaning of the collective agreement, nor could they be operating VDT’s “continuously”. In a sense, the analysis in the Forester case stops where the analysis starts in our case.

Whether the equipment in use was or was not a VDT was the central issue in the Forester decision. As it is not an issue before me, then it cannot be said that the matter in dispute in the Forester case is identical to the matter in dispute before me. The Ministry in the current case has conceded the “VDT” issue but is asserting that correctional officers are not VDT operators and do not operate the VDT’s in a continuous manner as contemplated by the collective agreement. Therefore, the matter currently in dispute is not even the same, let alone identical, to the matter in dispute in the Forester case. In the Forester case, the Board decided a different issue, one which has been conceded before me.

In the submissions filed with the GSB in reply by the Ministry, it was asserted that the board in the Forestry decision “specifically found that the equipment used by the Grievor were VDT’s (as defined scientifically), but went on to find that the Grievor does not operate the equipment in the manner contemplated by the collective agreement.” With respect, I do not agree with this assertion. Based on a careful review of the GSB’s previous decision in the Forester case, I have concluded that the Board in it decided that the equipment in use was not a VDT but something akin to a television monitor.

I would like to thank both counsel for their detailed and excellent legal analysis of the doctrines of res judicata and issue estoppel. However, given the conclusions set out above, it is not necessary to review them in any more detail in this decision. As the Ministry has not established that the focus of the matter or issue in dispute in the case before me is the same as the matter in dispute which was decided in the Forester case, it has not met the first hurdle set out in the jurisprudence.

In the alternative, Counsel for the Ministry made the following arguments:

Alternatively, if the GSB finds that the doctrines of res judicata and issue estoppel do not apply to the facts of this case, it is respectfully submitted that the Board ought to exercise its discretion and follow the previous GSB award in this matter. The Employer submits that as a matter of good policy (and in accordance with the Blake decision) the GSB should follow the prior award which dealt with a similar dispute between the same parties based on the same language of the collective agreement. To do otherwise will be disruptive to the relationship of the parties and their ability to enforce and live up to their obligations under the agreement.

In Brewers' Warehousing Co. and Brewery, Flour, Cereal, Malt, Yeast, Soft Drink and Distillery Workers of America, Local 278C, Arbitrator Laskin (as he then was) made the following persuasive comments [at p. 1798]:

It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement, where the dispute involves the interpretation of the Agreement. Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is the duty to determine the case before it on principles that it believes are applicable.

Employer's Book of Authorities: Brewers' Warehousing Co. and Brewery, Flour, Cereal, Malt, Yeast, Soft Drink and Distillery Workers of America, Local 278C(1954), 5 L.A.C. 1797

Similarly, in Blake et al. and Amalgamated Transit Union and Toronto Area Transit Operating Authority, the GSB made the following comments [at p. 7‑8]:

In the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error.

But the Grievance Settlement Board is one entity ‑ it is not a series of separately constituted boards of arbitration. Under section 20(1) of the Crown Employees Collective Bargaining Act, there is “a Grievance Settlement Board” ‑ that is, one Board. Under section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is “the decision” of the Grievance Settlement Board.

Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.

Employer's Book of Authorities: Blake et al. and Amalgamated Transit Union and Toronto Area Transit Operating Authority GSB No.: 1276/87

The Employer submits that the Forester award is “the decision” of the GSB and OPSEU should not be given the opportunity to continuously attempt to persuade the Board that OPSEU’s “view of the world” is the correct view. As noted by the panel in the Blake decision, the GSB (as presently constituted) has no authority to overrule another panel of this Board.

It is submitted that confusion and unpredictability will be created if the GSB (in this case) departs from its practice of following previous decisions. This is because, first there is no certainty that re‑litigation will yield a more accurate result than the one in the Forester proceeding. Second, if the same result is reached in the present case, the re‑litigation will prove to have been a waste of scarce resources as well as an unnecessary expense for the parties and, certainly, an additional hardship for the Employer. Third, if the result in the present proceeding is different from the conclusion reached in the Forester case, the inconsistency will help undermine the credibility of the entire GSB process, thereby diminishing its authority, its credibility and its aim of finality. Indeed, such a result will likely result in bad labour relations between the parties.

The question of deference arises when the issue to be decided is the same. The issue decided by the Board in the Forester case - was the equipment a VDT? - is not the issue before me. In the current case, based on different facts, the Ministry has conceded that the equipment in use is a VDT. The decision in the Forester case turned completely on the Board’s assessment of the facts as they existed in 1983. The facts which are critical to the conclusions and decision in the Forester case are likely to be completely different from the facts before me. It is almost trite to point out that the equipment in use today is not the same as the equipment in use in 1983 which was the subject of the ruling in the Forester decision. Accordingly, this alternative argument is also dismissed.

This matter will continue on previously scheduled hearing dates.

Dated at Toronto this 27^th^ day of September, 2005.