GSB# 2002-0104, 2002-0387, 2002-0388, 2002-0389, 2002-0617, 2002-0707, 2002-0707, 2002-0707, 2002-0707, 2002-0707, 2002-0707, 2002-0707, 2002-0707, 2002-0796, 2002-0797, 2002-0798
UNION# 2002-0727-0004, 2002-0727-0041, 2002-0727-0001, 2002-0727-0007, 2002-0727-0008, 2002-0727-0002, 2002-0727-0006, 2002-0727-0005, 2002-0727-0003, 2002-0729-0001, 2002-0623-0002, 2002-0605-0003, 2002-0605-0002, 2002-0623-0005, 2002-0713-0008, 2002-0713-0001, 2002-0713-0003, 2002-0713-0004, 2002-0713-0006, 2002-0713-0007, 2002-0713-0005, 2002-0713-0002, 2002-0623-0003, 2002-0623-0004, 2002-0623-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Hymers et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Belinda Kirkwood
Vice-Chair
FOR THE UNION
Esi Codjoe Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
George Parris Counsel Ministry of Government and Consumer Services
HEARING
March 19, 2008.
Decision
Motion
The Employer brought a motion before me to dismiss the Union’s grievances as they relate to compensation for CL415 Pilots and Co-Pilots for being required to call into work prior to their scheduled shift in the period between April 1, 2002 and July 2003, and for the entire 2003 fire season, on the basis that the parties had settled this issue by two agreements which they had entered into in April 2004.
The Union claimed that these agreements did not settle the issue before me.
Background
The grievors are CL415 pilots and co-pilots (“pilots”) who, prior to 2002, were working under a compressed work year agreement as Schedule A employees under the Collective Agreement. The pilots terminated that agreement as they were entitled to do. The Employer was of the view that the pilots‘ working conditions were then determined by Schedule 6 to the Collective Agreement. The pilots grieved claiming that they were governed by the Collective Agreement as amended by a 1995 Float Agreement or alternatively by a 1988 Float Agreement.
The issue which was presented and argued before me, and on which I rendered a decision on January 18, 2005, was to determine what agreement governed the working conditions for the pilots. In my decision of January 18, 2005, I held that the pilots were governed by the Collective Agreement as amended by the 1988 Float Agreement, and I remained seized with any difficulty arising from the implementation of the decision.
As the parties have not been able to resolve how the decision is to be implemented, the matter has been brought back to me to determine the effect of the implementation of the Collective Agreement as amended by the 1988 Float Agreement for the period between April 1, 2002 and July 2003, and for the entire 2003 fire season.
The parties agreed to segment the issues concerning each implementation question, and hear evidence and argument on each one before continuing with the next.
The first issue that I am being asked to resolve in this segment of the hearing, is, what if any compensation should the pilots receive for having to call-in on their last day off work prior to their next scheduled shift. The parties referred to the requirement to call in as call-back although there was no agreement that it ought to be characterized as call-back.
During the course of the evidence, the parties became aware that an agreement may have been entered into which may have an effect on this issue. After an investigation was made, the Employer brought this motion on March 19, 2008, submitting that I have no jurisdiction to hear and decide the issue of call-back pay as the parties had entered into an agreement in April 2004 settling issues concerning various working conditions, one of which was the call-back issue, and accordingly on the basis of issue estoppel there was no jurisdiction to continue to hear and decide the call-back issue.
Union Counsel submitted that while grievances relating to call-back pay were settled, the settlement resolved different call-back issues from that which is before me now and accordingly issue estoppel is not applicable.
Employer Argument
Employer Counsel submitted that there were a number of grievances filed in the period between 2002 and 2004, and, with the exception of some discrimination grievances, the only grievance which proceeded to arbitration was the one before me to determine which agreement would govern the pilots’ working conditions.
Employer Counsel submitted that during the course of the hearing, the parties turned their minds to a number of issues, and, in April 2004, entered into an interim agreement, in the form of a Memorandum of Understanding, which they called the ‘CL415 Pilot/Co-Pilot Agreement’ which settled their working conditions until such time as the parties entered into another plan that better suited their needs. At the same time, the parties also entered into another Memorandum of Understanding, (which to avoid confusion, I will refer to as the April 28, 2004 Agreement), which fully and finally settled a number of issues including that of compensation for call-back pay. Employer Counsel submitted that in the April 28, 2004 Agreement, the parties agreed that the ‘CL415 Pilot/Co-Pilot Agreement’ which was effective from April 1, 2004 represented a full and final settlement of all outstanding grievances. The parties listed a large number of grievances relating to various working conditions as an Appendix to the Agreement, and further stated in the recitals to the Agreement that they believed that the Appendix represented all the outstanding grievances as they related to the listed issues.
Employer Counsel submitted that the Union is asking this Board to determine the compensation for calling in to work, the same issue that was settled in April 2004. The only circumstance which has changed since the settlement, is, by virtue of my decision, the agreement covering the pilots’ working conditions. Employer Counsel submitted that the parties knew at the time that they entered into these agreements that the regime governing their working conditions may change as a result of the arbitration before this Board, and yet, in face of that possibility, chose to settle these grievances.
Employer Counsel submitted that the parties freely negotiated this settlement. A result of reaching a settlement is that the settlement precludes the grievors from relying on it in any other grievance, since the grievors did not reserve the right to revisit the issue pending the result of the Board’s decision. Employer Counsel submitted that once a grievance has been settled, there is no longer a dispute and that issue cannot be brought back to another board of arbitration for determination. Employer Counsel relied on Canadian Union of Public Employees, Local 207 and City of Sudbury 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Gilchrist), OPSEU (Dale) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care) (Dale et al.) (March 11, 2002) (Abramsky), and OPSEU (Patterson) and The Crown in Right of Ontario (Ministry of Children and Youth Services) (December 5, 2006) (Abramsky).
Union Argument
Union Counsel submitted that while the grievances relate broadly to call back pay, the issues are not identical.
Union Counsel submitted that when the Employer began to treat the pilots as Schedule 6 employees in 2002, work practices changed and grievances were filed on discrete issues that arose from breaches in the application of Schedule 6. With respect to the call-back issue, the Employer had denied the grievors call-back pay on the basis that the grievors were not entitled to such pay under Schedule 6. The parties then entered into the CL415 Pilot/Co-Pilot Agreement and the April 28, 2004 Agreement, while the pilots were governed by Schedule 6. These were the grievances which were settled and were referred to, and attached, in the Appendix to the April 28, 2004 Agreement. They were settled while the pilots were under Schedule 6 by transferring them to Schedule A. Union Counsel submitted that after my decision, the situation was different. I had found that neither Schedule 6 nor Schedule A was applicable.
Union Counsel submitted that the remedial claim sought by the pilots in the grievances before me, arises out of the case which has been decided on its merits. As my decision of January 18, 2005 determined that the 1988 Float Agreement applied, the decision triggers a range of issues relating to working conditions, such as call-back, overtime, and hours of work, arising from the application of the 1988 Float Agreement, not from the application of Schedule 6 or Schedule A. To not pursue these claims would invalidate the January 18, 2004 decision. Union Counsel submitted that there may be some overlap in the issues, but the remedial claim arises out of a different agreement.
Union Counsel submitted that the precise point now before me was not determined in the April 28, 2004 Agreement. Where the issue is not identical, the decision in one does not determine the other. Ontario (Ministry of the Attorney-General) and O.P.S.E.. U. (Hunt et al) 154 L.A.C. (4th) 304 (Abramsky) and Winnipeg Regional Health Authority and M.G.E.U. 156 L.A.C. (4th) 142 (Peltz). Union Counsel also relied upon OPSEU (Union Grievance) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Johnston) (September 29, 2005), St. Joseph’s General Hospital and O.N.A. (Glynn) 2005 CanLII 94254 (ON LA), 147 L.A.C. (4th) 207 (Randall), and Re Abitibiti Consolidated Company of Canada and Communications, Energy and Paperworkers Union of Canada, Local 88 2006 CanLII 93313 (NL LA), 151 L.A.C. (4th) 426 (Oakley) in support of its position.
Union Counsel further submitted that the parties entered into the CL415 Pilot/Co-Pilot Agreement, and agreed to transfer the pilots from Schedule 6 to Schedule A until either notifies the other that it wished to alter or terminate the CL415 Pilot/Co-Pilot Agreement as a stop gap measure. The parties entered into the CL415 Pilot/Co-Pilot Agreement on “a without precedent and without prejudice basis”. Knowing that there could be a change in the contracts governing their working conditions, the Union continued to present its case for five days after these agreements were signed. The Union saw its case as something different from the April 28, 2004 Agreement. It would not be logical to conclude that the Union would proceed on with the case, within days of signing the Agreements and continue for almost four years pursuing its rights if it had waived its right to proceed.
Decision
After hearing the submissions of Counsel, reading the jurisprudence and reviewing the exhibits, I find that the motion brought by the Employer is dismissed for the following reasons:
I interpret the CL415 Pilots/Co-Pilots Agreement and the April 28, 2004 Agreement as settling the grievances referred to in the recitals and in the Appendix fully and finally from April 1, 2004 and not extinguishing any rights prior to the effective date of the settlement; and
the issues settled by the CL415 Pilots/Co-Pilots Agreement and the April 28, 2004 Agreement are different from the issues I am being asked to resolve.
The importance of settlements and the necessity to honour the terms of agreement reached by the parties has been succinctly expressed by Vice-Chair Abramsky in OPSEU (Dale) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care) (Dale et al.)(March 11, 2002) (Abramsky) at page 8 of her decision:
The GSB has long recognized the critical importance of settlements and their enforcement. In OPSEU (Union Grievance) and Ministry of Natural Resources/Management Board of Cabinet, GSB No. 1526/91, 1294/92 (Kaplan, Vice-Chair), the Board referred to the “[s]anctity of [s]ettlements”, concluding at p. 31 that “[I]t is absolutely essential that the Board give effect to final settlements reached between the parties.” The Board cited to Landry-King, GSB No. 1593/84 (Knopf, Vice-Chair) at pp. 8-9, quoted at p. 31:
The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the Settlement.
Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. As the Board held in OPSEU (Pitirri) and Ministry of Correctional Services, supra at p. 12: “With respect to those [grievances] covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances have been resolved by their terms will not reappear in some different guise.” Accord, Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville).
Accordingly, it is critical that the agreements entered into by the parties, and then by the parties together with the pilots must be upheld.
The question however, is whether the implementation of my earlier award as it relates to the call-back provisions is precluded by the settlements entered into by the parties and the pilots in April 2004.
In April 2004, the Union and the Ministry reached a Memorandum of Understanding, called the “CL415 Pilots/Co-Pilots Agreement” on the working conditions that was to apply to the pilots, and stated in paragraph 20 of that agreement that:
The effective date of this agreement is April 1, 2004 to March 31, 2005. It shall be renewed automatically for annual periods thereafter unless either party notifies the other in writing prior to December 1st of their desire to alter or terminate the agreement.
In April 2004, the parties, being the Union and the Ministry, together with pilots, also entered into another Memorandum of Understanding, the April 28, 2004 Agreement, which incorporated the CL415 Pilots/Co-Pilots Agreement into the settlement of various grievances filed by the pilots. It states:
Whereas the parties believe that Appendix A represents all of the outstanding grievances filed by classified CL415 Pilots and Co-Pilots related to the issues listed, and
Whereas the parties have entered into a “CL415 Pilot/Co-Pilot Agreement” effective April 1, 2004, now,
The parties agree that the “CL415 Pilot/Co-Pilot Agreement” effective April 1, 2004 represents full and final settlement of all grievances listed in Appendix A.
Appendix A lists numerous grievances and identifies the issue of the grievance by category. A number of issues are identified, such as call-back, compensating time, harassment, hours of work to name a few. Only a relatively few number of those grievances listed are reflected among the grievances that are before me. As an example, among the 24 grievances listed under the call-back category, only two on that list appear in the list of grievances before me.
Interpretation of the CL415 Pilots/Co-Pilots Agreement and the April 28, 2004 Agreement
When the CL415 Pilots/Co-Pilots Agreement and its terms are read into the April 28, 2004 Agreement, I interpret the April 28, 2004 Agreement as resolving the grievances listed in the Appendix fully and finally on a ‘go-forward’ basis, such that “effective April 1, 2004” pinpoints the date from which those grievances are fully and finally settled. Therefore those grievances are resolved by the CL415 Pilot/Co-Pilots Agreement from April 1, 2004 onwards.
I do not interpret the April 28, 2004 Agreement as resolving any issue arising prior to the effective date of the contract, April 1, 2004. The parties in drafting the April 28, 2004 Agreement, did not incorporate any release of any prior existing rights. On the contrary, the parties agreed that the CL415 Pilot/Co-Pilot Agreement was “without precedent and prejudice to any other matter”, and, as the CL415 Pilot/Co-Pilot Agreement is incorporated into the April 28, 2004 Agreement, it too, was also without precedent and prejudice.
Furthermore, the parties were well aware of the issue that I was in the course of hearing. I had heard 15 days of evidence prior to the signature of the CL415 Pilot/Co-Pilot Agreement and the April 28, 2004 Agreement, and 5 days of hearing followed.
Although the wording of the recital was broad, in that it referred to “all of the outstanding grievances filed by classified CL415 Pilots/Co-Pilots related to the issues listed”, the parties went to the effort to identify a large number of grievances, and yet referred to very few grievances which had been placed before me. This would lead me to believe that there were different issues being addressed in the list of grievances listed in the Appendix from those that were before me. They may fall under the same category, but address different issues. If the parties had missed one grievance and the Union attempted to proceed on the outstanding grievance as in the Dale (supra) decision, it would be reasonable interpret the Agreement as intending to include that grievance and therefore barring that grievance as an outstanding grievance. However, when the parties are aware of numerous other grievances, and yet identified some and not others, it leads me to believe that the parties had differentiated the numerous grievances under the umbrella of my hearing, from those referred to in the April 28, 2004 Agreement, and did not intend to include them as outstanding grievances.
I also note that the signatures on the April 28, 2004 Agreement include that of Pat Schillemore, for the Union, who was a witness in the hearing of the merits, and Loretta Aselstine, for the Ministry, who was a witness for the Ministry, and the signatures on the CL415 Pilot/Co-Pilot Agreement include that of Pat Schillemore again, for the Union and Rob Kennedy and Barry O’Brien, advisors and witnesses in the ongoing hearing before me. The individuals who signed the agreements were knowledgeable about the hearing before me. In fact, Mr. Kennedy, who had been acting as an advisor to the Ministry, began his evidence on March 18, 2004 and continued on April 29, 2004, after the agreements had been executed, and without interruption by a motion that the evidence and hearing was no longer necessary.
The parties knew that there were numerous grievances before me which were dependent upon its result. The continuation of the hearing before me, supports my interpretation of the Agreements that the parties intended that the April 2004 Agreements settled some issues, and other issues were left to be resolved.
Issue Estoppel
The jurisprudence put forward by both parties is also consistent in that it supports the principle that once an issue is determined or settled, that the issue cannot be revisited in another form. The issue must be identical, between the same parties, and involving the same or unaltered collective agreement and must be for the same object. As quoted by Vice-Chair Johnston in OPSEU (Union Grievance) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) from Canadian Labour Arbitration, third edition by Donald J.M. Brown and David M. Beatty, at page 5 of her decision:
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.
The grievances filed by Mr. Hymers on August 19, 2002 and May 16, 2003, which were introduced by Union counsel as being representative of the call-back grievances attached to the April 28, 2004 Agreement, illustrate that Mr. Hymers was contesting how Schedule 6 was being applied and was seeking a remedy under that Schedule. These grievances operate on the assumption that Schedule 6, as determined by the Employer was the appropriate agreement to govern the parties. The issue was the operation of Schedule 6. What was not being challenged in those grievances was the inappropriateness of Schedule 6 and a remedy that would ensue with the application of the appropriate agreement.
Therefore there are different issues being presented through different grievances – the challenge as to the appropriate contract governing the parties, which was before me, and the challenge to the application of the contract with the Employer was applying to the pilots’ working conditions.
The issue before me is different. Although the issue, viewed generically, involves call-back pay, the call-back pay issue is different as it is based on two different contracts. As I found that the appropriate contract was the Collective Agreement amended by the 1988 Float Agreement, the implementation issue arising from the merits of my decision, is therefore what compensation if any is due to the pilots for being required to call in, during the period which the parties have determined was relevant, from April 2002 to July 2002 and the 2003 fire season, under the Collective Agreement as modified by the 1988 Float Agreement.
Therefore I find that on my interpretation of the CL415 Pilot/Co-Pilot Agreement and the April 28, 2004 Agreement, that the parties did not settle the grievances before me, and further that the issues before me and the issues underlying the grievances referred to in the April 28, 2004 Agreement are different and rely on different contracts. Therefore I hereby dismiss the Employer’s motion.
Dated at Toronto, this 7th day of April, 2008