GSB#2010-0202, 2010-0207, 2010-0211, 2010-1179, 2010-2203, 2010-2550, 2010-2551

UNION#2010-0212-0009, 2009-0633-0011, 2010-0526-0005, 2009-0317-0008, 2010-0526-0053,

2010-0526-0054, 2010-0551-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hollingsworth et al)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

January 22, 2013.

Decision

1The Board is seized with a policy grievance and a number of individual grievances which have been consolidated on agreement. The allegation common to all of the grievances is to the effect that the employer has refused and continues to refuse to apply the collective agreement to bargaining unit work performed by the grievors.

2The grievors are employed as Court Reporters. The ministry employs some 700 court reporters across Ontario. The court reporter position includes two primary functions, that of taking the record during court proceedings, and the preparation and certification of transcripts from that record upon request by judges or legal counsel. The grievances are about the alleged refusal by the employer to apply the collective agreement to the work related to the preparation and certification of transcripts, a substantial amount of which is performed by court reporters outside of regular work hours.

3When these matters came before me, the union sought interim relief pursuant to s. 48(12)(i) of the Labour Relations Act as incorporated by s. 7(1) of the Crown Employees Collective Bargaining Act.

4The policy grievance before me alleges that “The employer is in violation of article 1 of the OPS collective agreement and any other articles and legislation by not applying the terms of the collective agreement to court reporters who prepare and certify transcripts”. Remedies sought include a cease and desist order and an order that the employer apply the terms and conditions of the collective agreement.

5The interim relief sought is for an order directing that the employer apply the terms of the collective agreement to all court reporters performing the work of preparation and certification of transcripts.

6This issue between the parties has a history before the Board. A brief review of that history is essential to put the present dispute into context. In a decision dated July 27, 2006 in Re Hunt et al, 2001-0534; 2003-2944(Abramsky) (“2006 decision”), the Board dealt with the very same dispute. The respective positions advanced by the parties is capsulized at p. 9 of the decision as follows:

A very significant amount of typing transcripts, however, is done outside of court, on non-work time, and this forms the crux of the Union’s complaint. In the Union’s view, transcript preparation is required work which should be subject to the collective agreement, including the overtime provisions. In the Ministry’s view, the preparation of transcripts is separate from the taking of the record and when Court Reporters perform this function, they are acting as independent contractors. In the Ministry’s view, the preparation of transcripts is not bargaining unit work.

7Reviewing the facts before her and the applicable law, Vice-Chair Abramsky in a well-reasoned decision concluded as follows at p. 53:

I determine that the preparation and certification of transcripts is bargaining unit work of the Court Reporters, and so declare.

I wish to emphasize that, at this point, I am only deciding whether the preparation and certification of transcripts is bargaining unit work. All issues regarding the implications of this finding are referred back to the parties, and I will remain seized.

8In a subsequent decision dated December 4, 2009, in the same matter, Vice-Chair Abramsky clarified the implications of her 2006 decision as follows at paras:21-22:

21After many days of hearing regarding how transcription services were performed in the province of Ontario and the control (or lack of control) that the Employer exercises, the board accepted the Union’s position that transcription work was the work of the Court Reporters as employees, not as independent contractors, as the Employer had asserted. The determination was as follows:

I determine that the preparation and certification of transcripts is bargaining unit work of the Court Reporters, and so declare.

22What this means - as requested in the policy grievance - is that the preparation and certification of transcripts is work of the bargaining unit, specifically the Court Reporters, to which the collective agreement applies. It also means that OPSEU is the exclusive representative of the Court Reporters for that work. The decision had implications retrospectively – the Court Reporters and the Union were entitled to all the benefits of the collective agreement. It also had prospective implications – the Employer could not refuse to recognize OPSEU as the exclusive representative, nor could it treat the Court Reporters as falling out side of the collective agreement in regard to transcription work. The decision was based on the evidence and facts established at the hearing.

9Employer counsel conceded that “the status quo” that existed at the time of the 2006 decision has not changed to date. That is, court reporters continue to prepare and certify transcripts in the same manner as they did at the time. Counsel therefore conceded that “liability is not in issue” in the grievances before me, and that the dispute will be only about remedy. In other words, the employer conceded that it has been, and continues to be, in violation by not applying the collective agreement to the work in question.

10It is readily apparent that the interim relief sought by the union is identical to the remedy sought in its policy grievance itself. In response to the union’s notice of application for interim relief, in a letter dated December 28, 2012, employer counsel wrote as follows:

Please note that after the Union’s interim relief application is decided, the Employer will bring preliminary motions at the next scheduled hearing date asking the Vice-Chair to dismiss Union Policy Grievance 2011-0999-0033. The Employer will make the following submissions:

a. The remedy requested in that grievance (that the Employer apply the Collective Agreement to all Court Reporters) is beyond the jurisdiction of the GSB.

b. Even if the GSB had jurisdiction to order the remedy, the grievance does not make out a prima facie case for that remedy based on the particulars provided.

c. Vice-Chair Abramsky issued a ruling on whether the Employer could be ordered to apply the Collective Agreement to Court Reporters on December 4, 2009. Issue estoppel applies based on that ruling.

d. The union is legally barred from seeking an order that Employer apply the Collective Agreement to Court Reporters. The Union failed to seek that remedy as part of the original Hunt et al proceeding. The Union is attempting to impermissibly relitigate the Hunt et al grievance to attempt to obtain a remedy which it chose not pursue originally.

11These motions are scheduled for hearing before me on February 21, 2013.

12“Interim” relief typically is granted pending the determination of the merits of a grievance. It is for that reason, an applicant for interim relief is required to show, inter alia, that it has an arguable case on merits. In the present case there is no determination pending on the merits. The employer has conceded the merits and agreed that liability is not being contested. The only determination to be made is about remedy.

13The employer has taken the position that the Board lacks jurisdiction to order the remedy requested in the policy grievance under consideration, namely an order that the employer apply the collective agreement to the disputed work. In the circumstances, to grant that very remedial order by way of interim relief, in the Board’s view, would be in effect to issue a cease and desist order. It would not be an “interim” order because there is no determination pending on the merits, which would either end that relief or make it a final Board order.

14Following the hearing on February 21, 2013, the Board would make one of two conclusions on remedy. It may agree with the employer that it has no jurisdiction to order the employer to apply the collective agreement. It seems that in that eventuality the union would be entitled a declaration and to seek redress with respect to losses that result from the employer’s continuing failure to apply the collective agreement to the bargaining unit work in question. It is to be noted that the employer’s position is that no losses flow to the grievors or the union from its violation.

15On the other hand, if the Board concludes that it has jurisdiction to order the remedy requested, it is open for the union to seek an order, (not an interim order) that the collective agreement be applied to court reporters performing the work in question, as it has done in the grievance itself. Such an order would be enforceable. Once complied with, the violation and the accrual of losses if any, would cease. The parties would then be able to focus on past losses. That is, losses that may have been suffered up to the date when the violation ends by the employer applying the collective agreement.

16Considering the foregoing, and particularly considering that the union’s entitlement to the full remedy it seeks in the policy grievance would be determined fully and finally within a few weeks, the Board does not consider it appropriate to issue interim relief.

17For all of the foregoing reasons, the application for interim relief is denied.

18This proceeding will continue as scheduled and the Board remains seized.