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HomeMy WebLinkAbout1994-0951.Ardell.95-11-10ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOY~S DE LA COURONNE DE L’ONTARIO CPMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO M5G 118 180. RUE DUNDAS OUEST. BUREAU 2100. TORONTO (ONTARIO). MSG 128 BEFORE: FOR THE GRIEVOR GSB # 951/94 CUPE # 92-102 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD CUPE 1750 (Ardell) Grievor - and - The Crown in Right of Ontario (Workers' Compensation Board) Employer HEARING TELEPHONE/T~LLfPHONF: (4 16) 326- I388 FACSIMILE/T~L~COPIE : (4 16) 326- 1396 FOR THE EMPLOYER W. Kaplan Vice-Chairperson P. Douglas National Representative Canadian Union of Public Employees 1750 E. Kosmidis Counsel Workers' Compensation Board August 28, 1995 October 30, 1995 2 Introduction This case concerns a September 29, 1992 grievance filed by Kim At-dell, an employee of the Workers’ Compensation Board based in Hamilton. The grievance proceeded to a hearing in Toronto at which time employer counsel raised a preliminary objection. In the employer’s submission, the Board was without jurisdiction to hear the grievance as it had been settled. The union took the position that the grievance had not been settled and that the Board should, therefore, inquire into the merits of the dispute. At the request of the parties, the hearing, and this decision, is limited to the disposition of the employer’s preliminary objection. The Employer’s Objection Mr. Edward Baldwin, a staff relations specialist with seventeen years experience at the WCB, testified on behalf of the employer. According to Mr. Baldwin, the grievor’s grievance was processed in the usual way. On August 18, 1993, a step 3 grievance meeting was held. Subsequently, on October 1, 1993, the employer offered to settle the grievance by offering the grievor the “next available vacancy for Payment Specialist in the Hamilton Regional Office, which occurs within 18 months from the date of this letter.” In early February 1994, Mr. Baldwin received a fax from Mr. John Madden, the chief steward of CUPE, Local 1750, replying to the employer’s October 1 st letter. Mr. Madden inquired in his fax whether the employer’s proposed settlement included training. Mr. Madden noted that it had been almost a year since the grievor had occupied the position in question, and the fax concluded with the following statement: “If this [the training] were assured, I am advised we would have a settlement.” After receiving this fax, Mr. Baldwin inquired whether further training 3 would be possible, learned that it was and, on February 9, 1994, advised Mr. Madden who said “thanks.” Mr. Madden’s fax was introduced into evidence, and on it appear some marginal notes made by Mr. Baldwin. Suffice it to say that Mr. Baldwin concluded, the condition precedent having been met, that the grievance was resolved. However, on September 6, 1994, Mr. Baldwin received a telephone call from Mr. Madden. Apologetic in tone, Mr. Madden advised Mr. Baldwin that the grievor was not satisfied with the terms that had been reached, and that the union, therefore, had no option but to proceed to arbitration In cross-examination, Mr. Baldwin agreed that he never sent the union or the grievor any correspondence setting out his understanding that the matter had been resolved. He also agreed that he did not express any surprise, or say “hey, what are you talking about” when Mr. Madden advised him in early September 1994 that the union and grievor wished to proceed to arbitration. According to Mr. Baldwin, he simply “heard Mr. Madden out” and then recorded a summary of their conversation in a memorandum to file. He admitted, however, that in February 1995, in another effort to resolve the dispute, he sent a further settlement offer to the union and the grievor. It did not state the employer’s view that the matter had already been settled. It was, however, without prejudice. The offer was rejected and a counter- offer made. The employer rejected the counter-offer. The Union’s Case Mr. Madden testified on behalf of the union. He was, as noted above, involved in the settlement discussions and testified that as a result of information that he had obtained from a local steward in the grievor’s office, he concluded that the matter could be settled on the terms 4 suggested by the employer as long as additional training was provided. Accordingly, Mr. Madden advised Mr. Baldwin of this. However, in the aftermath of doing so he learned from the grievor that she had no intention of settling on that basis as she had a number of outstanding concerns. Mr. Madden then contacted Mr. Baldwin and apologetically explained that there had been a misunderstanding and that it was his mistake. Mr. Baldwin never told him that the matter was resolved. Mr. Madden candidly agreed in cross-examination that when he had his February 1994 discussions with Mr. Madden, he thought that he was settling the grievance. Employer Argument In the employer’s submission, the evidence was crystal clear that the parties, in February 1994, resolved the matters in dispute when they entered into a final and binding settlement of Ms. Ardell’s grievance. The fact of the matter was that the employer made a settlement offer and the union, the other party, accepted that offer. Having done so, the matter was resolved. Employer counsel took the position that settlements such as the one at issue in this case, while not written down, were valid nevertheless. The only way our system of labour relations can work, in the employer’s view, is if the parties have confidence, when they settle outstanding matters, that their settlement will be honoured and not be subjected to subsequent attack when one of the parties, for whatever reason, determines the settlement is no longer to its liking. Accordingly, and on the facts of the instant case, employer counsel urged me to find that the settlement continued in force, and asked me to issue a declaration to that effect. 5 Union Argument In the union’s submission, this was an appropriate cast I forego any initial temptation to conclude that there was a settlement ant instead, to carefully review all the background facts. A careful analysis, in the union’s view, could only lead one to conclude that there had been no settlement and that the issue between the parties, namely the grievance, remained very much alive. Mr. Douglas began by noting that the parties have historically enjoyed both cordial and informal relations. While it was true enough that a settlement could be informally reached, it was the union’s submission that no such settlement had been arrived at in this case. It was noteworthy, in that regard, that the so called settlement was never reduced to writing, nor did Mr. Baldwin ever refer to it in any of his subsequent conversations or dealings with the union or the grievor. And while Mr. Baldwin availed himself of several opportunities to record his discussions with Mr. Madden, he never wrote a single memoranda to file indicating his view that the matter had been resolved. Indeed, it was only after employer counsel became involved that the existence of a settlement was raised as a bar to further proceedings. It was also noteworthy, the union argued, that the position in question, namely the one provided for in the settlement, was never offered to the grievor. Surely one way of assessing whether a settlement had taken place was by considering compliance. In this case, the very terms of the agreement, assuming that it existed, had never been given effect. The union also took the position that the employer’s February 1995 attempt to resolve the matter indicated its understanding that the issue had not 6 been settled. Turning to the text of the employer’s offer, Mr. Douglas pointed out that it stated that it was “to settle all matters related to Grievance #92402...[and] is made without prejudice or precedent to any further dealings between the parties.” These words evidenced, in the union’s view, a recognition on the part of the employer that the grievance had not, as it later claimed, been resolved. Accordingly, and for the reasons just given, the union asked that the employer’s preliminary objection be dismissed, and the grievance be allowed to proceed on its merits. Decision Having carefully considered the evidence and arguments of the parties, I have come to the conclusion, notwithstanding the very able representations of Mr. Douglas, that the employer’s preliminary objection should be allowed and the grievance dismissed. Very simply, I find on the facts of this case that the employer made an offer to settle this case, and that offer was accepted by the union. This is not a case, as in Re Town of Glace Bav and CUPE 42 L.A.C. (4th) 188 (North), an award cited by the union, where the offer was conditional on some event. It is true that there was a condition - namely, the provision of some training - but that condition had been complied with and once it was, the employer’s offer was agreed to. While the employer made a further offer to settle the matter in February 1995, the fact that it did so hardly leads one to conclude that it was abandoning its position that the matter had already been resolved. Obviously, a party to a settlement can, on the one had, maintain that a settlement is in effect, but in order to avoid litigation, in a case such as 7 this one where one of the parties has stated its intention to proceed to arbitration, make further efforts, on a without prejudice basis, to resolve the dispute. There is no evidence about why the grievor did not accept the second settlement offered to her. What the evidence does establish is that the union counter-offered and the employer maintained its position. Once again, the fact that it did so, like the fact that it was only when counsel became involved that the employer went explicitly on the record that the matter had been resolved is neither here nor there. When all of the circumstances of this case are reviewed it is clear that the parties reached a settlement and then one of them attempted to resile from it. This conclusion finds support in Mr. Madden’s evidence that he knew that the February discussions were directed to settling the grievance, in his fax to the employer, and in his actions after the fact. There can be really little doubt in this case but that at the relevant times, the parties knew that they were settling a grievance and, for some considerable period of time, at least in until the fall of 1994, acted as if that grievance was resolved. The fact of the matter is that parties reach all sorts of settlements of outstanding matters in dispute. Some cases are settled on better terms than others. There is no reason in this case to set aside the settlement that the parties reached, and doing so would, in fact, be counter to good labour relations which requires that all settlements, for good or ill, absent compelling reasons to the contrary, be given effect. It is true enough that the settlement was never executed in the sense that the grievor was not given the position in question. Suffice it to say that the limited evidence on point was equivocal about the availability of the desired position. Moreover, it should be noted that the grievor 8 communicated her unwillingness to accept the settlement’s terms and her desire to proceed to arbitration. That being the case, it is hardly surprising that the settlement was never given full effect. Finally, there was some evidence about a GSB decision that was issued after the parties had, as found in this award, settled this particular grievance. For the reasons already given, I have found that this settlement remains in effect and it, therefore, trumps any subsequently issued GSB award, even assuming for the sake of argument that such an award may have affected the grievor’s rights. Accordingly, and for the foregoing reasons, the grievance is dismissed. DATED at Toronto this 10th day of November 1995. PF ----------------a William Kaplan Vice-Chairperson