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HomeMy WebLinkAbout1990-2476.Edgett et al.92-06-18 Decision.. DEL'ONTARIOEMPLOYES DE LA COURONNE ~%&"rcE CgMMlSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, SUITE 2100, TORONTO. ONTARIO. MSG 128 180. RUE DUNOAS OUEST. BUREAU 2100. 'TORONTO (ONTARIOJ. MSG 1.78 IN TEE MATTER OF M ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Edgett et al) -and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: N. Dissanayake P. Klym D. Montrose Vice-Chairperson Member Member FOR TBE D. Wright GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Senrices HEARING October 2, 1991 2 J3ECIS30N These are four grievances filed respectively by D.W. Edgett, S.C. Gooding, H.L. Legaspi and G, Wadell. They have grieved that the employer has failed to apply to them, the Minutes of Settlement in Re Berm et a1 , 217/83 and Alcam~o et al, 218/83. This settlement was executed by the parties following a finding by the Board that the grievors in the two above-mentioned cases were improperly classified. In the memorandum of settlement dated May 10, 1990, the parties agreed upon the proper classification for nIncome Maintenance off icerstg , the period of retroactivity of the reclassification and the amounts payable to each employee by way of retroactive pay and interest. The employer has taken the position that the Berrv and Alcamwq proceedings were concerned only with the proper classification for the positions of Income Maintenance Officer. It is pointed out that the Board's decision was that those Income Maintenance Officer positions were improperly classified. The Board directed that they be properly classified. It was pursuant to this direction to "properly classifyN these positions that the memorandum of settlement was executed. Ther-fore the employer has taken the stand that the settlement applies only to Income Maintenance Officer positions and that it does not apply to the grievors who hold 3 the position of "Income Maintenance Legal Aid Assessment Officerw, as opposed to "Income Maintenance OfficerN. The union takes the position that the term llIncome Maintenance Officern, as used in the settlement, encompasses the four grievors' positions. The Union sought to adduce extrinsic evidence to show that the employer in practice has treated Legal Aid Assessment Officers as part of the Income Maintenance Officer group and that they were intended to be covered by the terms of the settlement. Two preliminary issues were raised at the commencement of the hearing. The employer took the position that this Board has no jurisdiction to hear these grievances because they do not allege any contravention of the collective agreement, but merely claim non-compliance with a settlement reached between the parties. Employer counsel further submits that in the event that the Board seizes jurisdiction to interpret the terms of the settlement, the union should not be permitted to adduce extrinsic evidence. It is common ground that the four gwievors were not among the grievors in the Berry .,and Alcam~o proceedings. Nevertheless, it is agreed that in complying with the Board order to properly classify those grievors8 positions, the parties did not restrict the terms of settlement to the named 4 grievors. Instead, quite sensibly we might add, they agreed to apply the result of the Berry and Alcarn~~ proceeding to all "Income Maintenance Officers", whether or not they were actual grievors in the proceeding. The dispute here is whether the four grievors in this proceeding are "Income Maintenance officersw within the meaning of the minutes of settlement. Union counsel conceded that these grievances do not allege a direct violation of the collective agreement. What the grievances claim is an alleged non-compliance with the terms of a grievance settlement. It is his position that the violation of a grievance settlement indirectly raises an issue of the proper classification of the grievors' positions and that that is a matter over which the Board has jurisdiction under Section 18(2) of the Crown Em~lovees Collective Barcraininq Act. Alternatively, Counsel relies on the doctrine of estoppel as a basis for jurisdiction. For this proposition reliance is placed on Re Baars, 457/90 (Stewart) The Board was also referred to pe Sim & Bain 1380-87/86 (Draper). There the parties had entered into minutes of settlement in relation to two grievances. Subsequently there arose a dispute as to hr-' the minutes of settlement were to be interpreted. The grievors filed new grievances alleging that the employer had failed to comply with the minutes of settlement. Despite the fact that neither party raised any 5 objection to the Board's jurisdiction to determine the grievances, the Board in a majority decision held that it did not have jurisdiction to determine the grievances since it was being called upon merely to adjudicate a difference relating to the minutes of settlement rather than a matter described in section 19(1) or 18(2) of the Act. The dissenting member would have held that the interpretation of the settlement involved a question of the administration or interpretation of the collective agreement. This decision was the subject of an application for judicial review. The Divisional Court issued a very brief order quashing the Board decision on the consent of all of the parties. Mr. Wright was counsel to the union in Re Baars also. There, relying on the Court order in Sim & Bain, Mr. Wright argued that the ~rievance Settlement Board has jurisdiction over grievance settlements because they are properly characterized as appendices to the collective agreement and can be enforced as such. The Board in Re Baars, noting that the Court order was a very brief consent order which did not contain any .reasons or guidance as to the extent of the Board's jurisdiction, held that the quashing of the Board order in the circumstances cannot be taken as an endorsement by the Court of a proposition that a settlement between parties to a collective agreement has the status of a collective agreement and can be enforced as such. Since the 6 Board in that case upheld the union's argument based on estoppel, it found unnecessary to make any decision of its own as to whether the union's argument that grievance settlements are enforceable as appendices to the collective agreement had any merit. While we agree that the Court's consent order in Re Sin &$I, cannot be said to stand for any proposition, the fact that all of the parties, including the Board, agreed that the Board's decision to decline jurisdiction ought to be quashed, and the court's preparedness to do so, is not without significance. This case raises directly, the fundamental issue as to whether the Grievance Settlement Board has jurisdiction to interpret and enforce a settlement of a grievance settlement. The Board derives its jurisdiction under two provisions of the Crown Eat~lovees Collective Barqainincz Act. 18(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 9 ( 1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity ta the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. We find the jurisprudence from the Ontario Labour Relations Board under section 124 of the Labour Relations Act to be useful and persuasive in resolving this dispute. Under that provision the Ontario Labour Relations Board sits as arbitrator over grievances in the construction industry. It is then acting in the role of a statutory arbitrator, very much like the Grievance Settlement Board's role under the Crown Employees Collective Baraaininu Act. The Ontario Labour Relations Board derives its jurisdiction under section 124(1) which reads: 124-(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers1 organization and a trade union or council of trade unions may refer a grievance concernina the interpretation. *f the acrreernent, including any question as to whether a matter is arbitrable, to the Board for final and binding determination. (emphasis added) It is immediately apparent that the underlined words in section 124 are remarkably similar to the corresponding words in section 19(1) of the CCw~ollectiveaininqwn , "arising out of the interpretation, application, administration or alleged contravention of the agreement". The Ontario Labour Relations Board has had to decide whether it had jurisdiction to hear and determine a grievance alleging a violation of the terms of a grievance settlement. In gerfection Rua Co. Ltd., (1984) OLRB Rep. Jan. 68, the grievance alleged a violation of an oral settlement of a prior grievance. Counsel for the employer raised a preliminary objection on the basis that the Board had no jurisdiction under section 124 to deal with a grievance alleging a violation of the terms of an alleged settlement. Counsel argued that the settlement constituted a separate contract between the parties over which the Board had no jurisdiction under section 124. The Board held that it had jurisdiction over the grievance on the basis that a grievance alleging a contravention of a grievance settlement constitutes an arbitrable question concerning the "applicationn or Itadministration"of the collective agreement. At p. 73 the board observed: 6. Having carefully considered the submissions of counsel concerning the respondent's preliminary objection, we have concluded that it cannot succeed. Whether raised in the context of the original grievance (as in Suss Woodcraft Ltd., m)or of a second grievance (such as in the present case and in Ford Motor Com~any, suarq) an allegation that a party to a collective agreement has failed to comply with the settlement of a grievance constitutes an arbitrable question concerning the napplicationn or ltadministrationMofthe collective agreement, within the meaning of subsection 124 (1) of the Act. As noted by the Board in paragraph 11 of its December 12, 1983 decision in File No. 1622-83-M (quoted above), arbitrators have recognized and endorsed for over three decades the importance of supporting grievance settlement processes. In some cases that objective has been achieved by applying the doctrine of estoppel. See, for example, Fruehauf Trailer ComPanv of Canada (1951) 2 LIA.C. 741 (Fuller). Other arbitrators simply find settlements to have been entered into and exercise their remedial power so as to direct the parties to carry out the terms of the settlements: see, for example, Be Bilt Rite U~holstesina Co. Ltd., (1979), 24 L.A.C. (2d) 428 (Rayner); Re Continental Can Co. of Canada ltd. (1975), 10 L.A. C. (2d) 35 (Weatherill);Ford Motcr Comwanv of Canada, supra; Suss Woodcraft Ltd, supra; and the authorities referred to therein. Private arbitrators [see, Re Ford Motor Com~anv (1952) 3 L.A.C. 1159 (Lang); Re Corxl. of Borouah of Etobicoke, (1982) 5 L.A.C. (3d) 52 (Kennedy); and Re Stelco Inc., (1989) 5 L.A.C. (4th 284 (Haefling)] and the OLRB [see pe Perfection Bus Co. Ltd. sums; Re Suss Woodcraft Ltd., (1983) OLRB Rep. April 6001, in seizing jurisdiction to deal with grievances alleging non-compliance with grievance settlements have stressed the sound industrial relations purpose served by such an approach, that is, the importance of supporting the settlement process. In Ontario Hvdro (1983) OLRB Rep. November 1869 in rejecting the argument that the Board had no jurisdiction to enforce an oral settlement the Board observed at paragraph 26 as follows: Our labour relations system relies on and values the ability to settle disputes. This Board is loath to adopt any approach which might limit or impair the settlement process or discourage its use: Crown Electric, (1978) OLRB Rep. Apr. 344; && Construction f Canada) T,imiteQ, (1982)OLFtB Rep. Dec. 1811. It is important that boards of arbitration not impose unnecessarytechnicalitiesor limitations on the settlement process, because to do so would undermine the finality of settlements parties feel they have achieved in good faith. (See Ford Motor ComDanv of Canada Ltd., (1952) 3 L.A.C. 1159 (Lang) at 1161; -9f, (1965) 15 L.A.C. 403 (Reville); Re Continental Can Co. of Canada Ltd., (1975) 10 L.A.C. 35 (Weatherill). Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontario Labour Relations Board, apply with equal vigour and force in proceedings before this Board. The purpose of the pre- arbitration grievance procedure under the collective agreement is to provide the parties an opportunity to resolve disputes informally, promptly and without the experse and delay of arbitration. Besides, it is generally accepted that a settlement reached between the parties is a far preferable way of resolving a dispute than an award handed down by a third party. If the efficacy of a settlement so reached is to be maintained, the parties must be held to their agreement and there must be a means of enforcing the agreement without further delay and expense. While a settlement may be enforceable as a separate contract in the general courts of law, that is not a suitable alternative. That is why labour relations disputes, as a general rule, are removed from the jurisdiction of the courts. Where the statute reasonably allows an interpretation conferring jurisdiction over these matters the Board must seize that jurisdiction. That is exactly what arbitrators and the Ontario labour Relations Board have done. We see no reason to why this Board should adopt a different approach. In Re Perfection Rua Co. Ltd. (sunra) , the Ontario Labour Relations Board seized jurisdiction over the settlement because its subject matter had to do with a prior grievance which raised issues relating to the interpretation, application, administration or alleged violation of the collective agreement. Through that connection, the Board reasoned that the grievance before it alleging a violation of the settlement, was itself a grievance raising issues of application and administration of the collective agreement. The settlement before us was the culmination of certain grievances raising the issue of the proper classification for 12 the positions of Income Maintenance Officer. By extending the settlement to all Income Maintenance Officers, the employer in effect made all Income Maintenance Officers "partiesn to that settlement. These grievors have grieved that the employer has violated that settlement by failing to apply its terms to them. Thus, following the reasoning of the Ontario Labour Relations Board, these grievances in effect raise issues relating to matters properly falling within section 18(2)(a) namely, a claim that the grievars * positions were improperly classified, a claim that the grievors allege was settled by the employer. Whether the grievors are in fact covered by the settlement is a matter that goes to the merits of the dispute. It is our conclusion that the Board has jurisdiction to interpret the terms of the settlement to determine that issue and to enforce the settlement if the finding is that the grievors were covered by the settlement. We have considered the Board's decision in Re Neamtp, 516/84 (Roberts), which was relied on by employer counsel as standing for the proposition that that the Board lacked jurisdiction to clarify the language of a settlement document. In that case the minutes of settlement in question had been made a Board order by consent. Yet, the Board :.eld that it had no jurisdiction to clarify and interpret the language. In our view that decision turned on the unique facts of that case namely, the existence of a provision in the settlement 13 (. specifically stating that it is being made a Board order for the limited purpose of enforcement under section 19(6) of the In those circumstances, the Board held that for it to seize jurisdiction for the purpose of clarifying the language of the document would "stand as a complete contradiction to paragraph 8, which, after all, formed part of the order". We do not consider that decision as impacting upon the Board's primary jurisdiction over grievance settlements. The employer further argued that even if the Board had jurisdiction over grievance settlements as a general matter, it had no jurisdiction over these specific grievances since there was no 91privity of contractw between the four grievors and the employer. This contention is based on the fact that these grievors were not grievors in the Bern and FLcam~o proceedings. On that basis counsel argued that the grievors were not party to the settlement and cannot claim any rights thereunder. We do not agree. Firstly, the employer has conceded that the settlement was not restricted to the named grievors in the Berry and Alcampo proceedings. It was extended to coves all "Income Maintenance Off icetsR. Whether these grievors come within that term is in dispute. As already noted, that is a matter that goes to the merits of the grievance. Secondly, and in our view more importantly, the employer and the union were parties to the grievance 14 settlement. They are also parties to these grievances. Therefore there is privity of contract. (See, Re Glenny, 756/86 (Springate). Having concluded that the Board has jurisdiction over these four grievances, we must now turn to the second preliminary issue as to whether the Board should entertain extrinsic evidence in determining whether the employer has complied with the terms of the settlement. The jurisprudence of the Ontario Labour Relations Board is again of assistance in determining this issue. In Crown Electric, (1978) OLRB Rep. April 344, the union sought to lead extrinsic evidence "either to establish that no settlement was fact reached that settlement was reached, determine whether the true terms of that settlement are different from what appears on the face of the written document". The Board stated at hara 12-15 12. Generally parol evidence or extrinsic evidence is not admissible to vary or contradict the terms which appear on the face of a written agreement unless there is established some ambiguity in the document itself. Extrinsic evidence may be adduced as an aid to interpretation where ambiguity is patent on the face of the agreement. It may also be ~ntroduced to establish a latent ambiguity, that is an ambiguity which is not apparent on a plain reading of the document itself. 13. But a distinction must be drawn between latent ambiguity and a mere difference of interpretation of words which are not otherwise ambiguous. Par01 evidence may be necessary to establish latent ambiguity respecting the formal validity of documents, the identity of parties or the meaning of technical terms or terms of special usage (Flam~i v. Swartp (1964) 43 D.L.R. (2d) 11 (Ont. C.A.). It may be admitted to show ambiguity in the use of a proper noun, as where two parties agreed to the sale of cotton to be delivered "ex Peerlessm1 from Bombay where there were in fact two ships named "Peerless" sailing from Bombay at different times (Rafflesv. Wichelhaus (1864) 159 E.R. 375). But the mere fact that there may be two arguably different constructions of a set of words does not of itself establish latent ambiguity. Because of the greater evidentiary value of written instruments and the general need for legal finality, courts and boards of arbitration alike have declined to admit extrinsic evidence that would do no more than establish the possibility of two contrary and self- serving interpretations. 14. In this regard the Board adopts the following words of the majority of the board of arbitration in Re International Nickel Co. of Canada Ltd. (1974) 5 L.A.C. (2d) 331 at 333 (Weatherill). #@It may be that the provisions of the collective agreement here in issue pose a problem of construction, so that they may be said to be 'of doubtful meaning1 in that very general sense. In our view, however, the interpretation of the notion of latent ambiguity' to include generally la11 cases of doubtful meaning or applicationm (Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. IInc.L et al., (1969) 1 O.R. 469, 3 D.L.R. (3d) 161, at p. 524 per Gale, C.J.O.), should not be, and was not intended to be taken so far as to open the door to the admission of extrinsic evidence wherever a disagreement as to the construction of a document arises. If that were allowed, the strength of a document such as a collective agreement would be greatly reduced, and the well-established rules respecting the admission of extrinsic evidence would be meaningless." 5 There is no ambiguity in words "all compensation to the three grievors" and in our view the extrinsic evidence which the applicant seeks to introduce would not establish a latent ambiguity. Rather, it would merely provide the basis for disagreement as to the interpretation of a document that is clear on its face and for which no latent ambiguity could be shown. For that purpose extrinsic evidence is inadmissible. In the present case, the dispute is as to the meaning of the term tlIncome Maintenance Off icerI1. The union seeks consent to adduce extrinsic evidence to show that in the settlement this term was used in a broader sense to include the grievors whose position title also included the words ltIncome Maintenancet* and to show that the employer in practice treated the grievors as part of a single group of Income Maintenance Officers. There is clearly a dispute as to who was intended to be covered by the terms of the settlement. In our view in the circumstances there is a latent ambiguity as would entitle the union to lead extrinsic evidence, and we would be prepared to receive the same. Accordingly, the employer Is preliminary objections are dismissed and the parties are directed to contact the Registrar of the Board for the purpose of scheduling these matters for '-earing in accordance with this decision. This panel remains seized for that purpose. In light of the above-disposition of the preliminary objections, it is not necessary for the Board to deal with the union's argument based on estoppel. Dated t.his.18th day 0f~~~~,1992at Hamilton, ~ntiwio N. Dis Vicrchnir person D. Montrose Member