GSB#2002-2441

UNION#2002-0999-0018

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

November 5, 2010.

Decision

1The employer in this case has moved a preliminary motion asking that the Board decline to entertain aspects of the union’s grievance insofar as it seeks certain “post and fill” remedies in relation to certain work.

2This grievance is part of a series, generally referred to as “bargaining unit integrity” (“BUI”) grievances stemming from an initial grievance filed in 2002. Pursuant to a written protocol initially directed by the Board and subsequently revised by the parties in August 2006, resulting grievances have, as required, been referred to one of four Vice-Chairs identified by the parties in a revised written procedural protocol entered into in August of 2006. The parties have been dealing with (and in large measure, resolving) cases arising in various Ministries across the public service. The success which has been typical of their experience has escaped them in the instant case which arises out of the Ministry of the Attorney General and relates to work the grievance asserts is bargaining unit work of court reporters being performed by non-ministry employees (agency staff).

3While this is the first BUI grievance relating to court reporters that has made its way to this Board, it is not the first time that this Board has been asked to consider the manner in which work of court reporters is organized. A number of decisions have issued from this Board in relation to a matter heard and now (with respect to remedial issues) continuing to be heard before Vice-Chair Abramsky. That was not a BUI matter, but relates to the treatment of bargaining unit court employees who were also engaged to perform transcription work, purportedly as independent contractors and not as employees. (There was no issue in the case that these individuals were employees when performing what may be described as “taking the record” in court proceedings; the employer asserted, however, that these same individuals were independent contractors when they were engaged to later prepare transcriptions of proceedings). After some 2 dozen hearing dates spanning a period of some three years, the Board issued a decision dated July 27, 2006, (OPSEU (Hunt) v Ministry of the Attorney General, GSB File No. 2001-0534) concluding that the preparation and certification of transcripts is bargaining unit work and that the court reporters performing such work were doing so as employees and not as independent contractors.

4Counsel advise that the Hunt matters continue to be heard with respect to remedial issues. Two subsequent decisions in that matter were filed before me. In one of those (for our purposes, I will refer to this decision as “Hunt #2”, dated December 4, 2009), the Board rejected (what the employer had characterized as) the union’s claim for prospective relief. It is this latter decision which the employer points to as the primary basis for the motion that is the subject of this decision.

5In Hunt #2, the employer was successful in its motion with respect to the proper scope of the Board’s remedial jurisdiction. The union had sought, as a remedial matter, to challenge the propriety of a proposed re-organization of the delivery of certain work proposed by the employer. Most importantly for our current purposes, the union sought further remedial relief, which included asking that the Board direct the employer to post and fill full-time Court Reporter positions. The union’s request for “prospective” relief was rejected by this Board in Hunt #2. The primary relief sought on the face of the instant grievance (both the initial 2002 BUI grievance and the resulting 2010 grievance which is the subject of the instant proceedings) is that the employer “post and fill” as a remedy for the bargaining unit work asserted to have been improperly performed by non-employees, potentially including agency staff.

6In its simplest form, the employer has moved a motion before me seeking a determination that the union’s remedial request, at least insofar as it pertains to “transcription” work is not properly before me. The employer asserts that the matter is subject to the doctrines of res judicata, issue estoppel and/or abuse of process.

7For the reasons that follow, I am satisfied that the employer’s motion must be dismissed.

8A little further background to identify the similarities and differences as between the Hunt proceedings and the instant one is in order. The Hunt proceedings involved grievors, i.e. court reporters, who were bargaining unit employees. These same individuals were assigned work of preparation and certification of transcripts. When performing that work, the employer purported to engage them as independent contractors; the union asserted that they continued to be bargaining unit employees performing bargaining unit work even when preparing and certifying transcripts. And the Board, in the first of the Hunt decisions referred to earlier, ruled that the Court Reporters are employees even when preparing transcripts, not independent contractors. The Board also determined and declared that the preparation and certification of transcripts is bargaining unit work of the Court Reporters.

9The instant case, while involving much of the same work (at least in respect of transcripts) relates to work being performed by individuals who have no employment connection whatsoever to the bargaining unit. The union complains with respect to work being performed by non-employees (such as independent contractors, agency personnel or others with no direct employment relationship with the Crown).

10I am told that the work of Court reporters falls broadly into 2 categories: (i) “taking the record” – i.e. sitting in the court room and insuring that an accurate record of the proceedings is captured and (ii) “transcribing the record” – i.e. typing, proofreading and certifying an accurate written record of a court proceeding. The Hunt proceeding was concerned largely if not exclusively with the second function; the instant proceeding involves both aspects of the court reporters functions.

11As the first function, i.e. “taking the record” did not form part of the grievance in Hunt, the employer raises no jurisdictional objection to the union seeking remedies in respect of that work in the event the instant grievance is successful. However, it asserts that with respect to transcribing functions, this Board has already rejected the propriety of “post and fill” remedies in the Hunt case and as a result of the application of any of the invoked doctrines, the union ought to be precluded from advancing such a remedy in the instant case.

12The employer reviewed some of the leading authorities related to the doctrines it sought to invoke. I have not found it necessary to review these in detail here. As will be seen, they are of little application in the instant circumstances.

13To explain their lack of application, it is necessary to very briefly review what this Board determined in Hunt #2. I have already indicated that the major focus of the Hunt matter was on the treatment of bargaining unit employees doing transcription work. The Board remained seized and hearings aimed at establishing appropriate remedies and quantifying damages are continuing. Some time after the Board’s initial award on the merits of the case, the employer indicated an intention to reorganize the manner in which certain work would be done in the future. This generated its own flurry of legal issues for the Hunt panel to deal with. It is not necessary to review those decisions in detail. It is sufficient for our current purposes to note that one of the union’s responses in this new skirmish was to seek additional remedies from the Board. It was then, well after the Board’s determination on the merits of the claim, that the union, for the very first time, sought a “post and fill” remedy which had never been an explicit part of the grievance. The Board dismissed the union’s claim for “prospective” relief, including the claim for “post and fill” remedies on the basis that these claims, these remedies were never previously raised or contemplated in the proceedings.

14The claim to apply the principals of res judicata in the present context is troubling. First, the Board has made a determination and declaration that transcription work is bargaining unit work. It may well be that determination will ultimately give rise to the application of issue estoppel. But I needn’t rule on that point since it is not the object of the current employer motion. The employer seeks to apply the various doctrines invoked as a result of the Board’s prior determination in Hunt with respect to the propriety of seeking a particular remedy.

15None of the authorities relied upon, as counsel candidly conceded, touch on issues of res judicata, issue estoppel or abuse of process emerging as a result of the prior treatment of remedial issues in cases which may otherwise, in their inquiries into legal liability, deal with similar legal issues.

16In any event, the Hunt decision did not dismiss the possibility of any post and fill remedy on the basis of its propriety per se – rather its ruling was rooted in the fact that this particular remedy was never previously sought and had not previously been identified by the union during the dozens of hearing days devoted to the merits.

17A finding that a particular remedy is not proper in particular circumstances simply does not effectively banish it from the remedial arsenal in all instances of similar violations or violations that otherwise engage similar legal issues.

18Indeed, the present circumstances provide just such an illustration. The matters in the Hunt grievance involved the treatment of bargaining unit employees; it should not be surprising that the resulting remedies would focus on compensating individuals, as required, who may not have had the terms and conditions of the collective agreement properly applied to them.

19By contrast, the instant case involves allegations that outside personnel are performing work which should be done by bargaining unit employees. Both cases may share some common legal terrain in respect of what constitutes bargaining unit work. That does not mean, however, that all remedial findings in one will determine the remedial landscape of the other. Indeed, it is not surprising that the union would be much more likely to seek “post and fill” remedies in the instant case than in the former. And a further and final distinction between the two cases: while the post and fill remedies were not articulated in Hunt until long after the merits had been determined, in the instant case those remedies are the primary ones identified from the outset on the grievance form filed by the union. There was no mistaking its objective.

20Having regard to the foregoing, I am not persuaded that there is any jurisdictional obstacle to this Board considering the propriety of the post and fill remedies being sought by the union in the event its grievance is successful. And neither am I persuaded that there is any other basis to preclude the availability of such a remedy on a preliminary basis.

21I note in closing that any and all facts presented herein were based largely on the submissions of counsel. And while the facts necessary to determine this motion may not be controversial, the parties should view any findings herein as having been made only for the purposes of disposing of the employer’s motion. Further, nothing in this award should be taken to preclude the abilities of either party to advance any arguments they may wish to make with respect to the propriety of any remedies sought, including “post and fill”, should these proceedings advance to that stage.

22The employer’s motion is hereby dismissed.