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HomeMy WebLinkAbout1991-0860.Policy.92-03-17~-'~ :-.: '" ~ ONTARIO EMPtO YES DE LA ¢OuRONNE ~" ' "~' '~ ' ~ ~: ' CROWN EMP£ OYEE$ DE,~ 'ONTARIO GRIEVANCE C,OMMISSION DE SE3'FLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS sTREET WEST, SUITE 2100= TORONTO, ONTARrO. M5G 1Z$ TELEP~ONE/T~L£PHONE; (,~6) 225- ~258 180, RUE DUNDAS OUEST, BUREAU 2100, TO~ONTO (ONTARtOJ. MSG IZ8 · FACSiMILE/TEL~COP~E. (4 ~6) 326- ~96 860/91 IN TH~ MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES coLLEcTIVE BARGAINING ACT Before BETWEE~ OLBEU (Policy Grievance) - and- The Crown in Right Of ontario (Liquor Control Board of Ontario) Employer BEFORE: H. Waisglass Vice-Chairperson G. Mai esky Member R. Scott Member FOR THE L. Steinberg GRIEVO~ Counsel Koskie & Minsky Barristers & Solicitors FOR TH~ R. Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING October 11, 1991 January 8, 1992 GSB 86~/gl IN THE~ATTER OF AN ARBITRATION , UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU (POLICY GRIEVANCE) GRIEVOR -AND- THE CROI~N ~N RIGHT OF ONTARIO (LCBO) EMPLOYER BEFORE: H.J. WAISGLASS Vice-Chairperson G. MA3ESKY ~ember 3, SCOTT Member FOR THE GRIEVOR: LARRY STEINBERG, C'ounsel Koskte Mtnsky FOR THE EMPLOYER: ROBERT LITTLE Hicks, ~orley HEARINGS: October ll, L991 AND January $, 199Z DECISION This ~s n Union Policy Griewnce dated ~y 23, ~991 ~nd submitted by the President, 3ohn £oones, alleging that the changes introduced by ~he Employer ! regard(rig the shift scheduling For Asstston~ ~ogers v~ot~te, amon~ othe~ things, Articles ~,¢ ((ti) and 6.1¢ of ~he cottec[tve og~ee~ent.'The grievance asks "6or oil employees to work according to the collective agreement os ~n the post,-and the new practice to cease (m4n. edtatety." The grievance w~s clarified at the hearing, Prior to the change att A and 8 skores were staffed by one monage.r (not ~n the bargaining un~t) and two assistant managers (in the bargaining uni~). The assistants rotated on o weekly basts between the dog and afternoon~shiFts. The change eliminated the 2 positron of one assistant and required the other to work steady afternoon shifts, while the manager worked steady day shifts. The Union ~lleges that the new practice of pernmnentty ossign(pg on ~ssiston~ manager (n the A and B stores to the afternoon shifts violates the collective agreement, particularly ' Article 6.14. The Union submits ~hot ~he grievance had been settled at o meeting he~d on October 7, ~99~ (n the office of Gar She~ood, L£~O's V~ce-Pres~dent, The meeting was celled by Sher~od for resolution of this grievance in advance of the he~ring dote that had beenlset For October ~lfh. Attending that meeting were Sherwood, accompanied by Sandy R~e, Director of StoF~ Relations and Cannes, the Un,on President, accompanied by the Business Agent, Heino Nielsen. Each of these Four persons testified at the hearing. The issues before this Board to decide ore whether or not the grievance has been settled~by the port,es; and (F ~o, ~t ~re the terms of the settlement upon which they hod agreed. There are no significant differences between the four ~itnesses in their testimonies regarding ~hot took place at the meeting of October ?th and the exchanges between them the next day. The Employer and the Union boEh acknowledge that there had been on agreement ~n principle reached orally that day, but the Employer submits that the agreement ~s not completed in that it h~d not been put in wr~t(ng, which both pert(es h~d undertaken ~o do. Once the po~{es had completed their discussions Qn the substantive points For the settlement, the Union indicated after a bmief coucus that it accepts the Employer's oFFem. The Union mode no Further ¢ounteroproPosols. At that po(mt, when tt ~os cieor to oil four ~tnesses that they hod on mgreemen~ tn principle, the Employer asked the Union if i~ ~utd now withdrow the - grievance. The Union ~greed to ~thdro~ the grievonce, hue not i~ediotely, not until the agreement ~os put in ~riting. The Union asked ~o hove ~hi~ done (mmediotel7 before the participants lef~ thor meeting. R~e offered to prepare ~ draft of the ogreqment in princEple and send it Eo the Union by 6ox eorl~ next ~rning. This ~os accepted. The next day, after Iunch-time, and after the Union had responded by fox to the Employer's first draft oF the terms of settlement, the Employer had beco~e aware of a substantive matter whtch tt had not r~ised ~t the meeting the previous day. That afternoon the £mptayer tn6or~ed the U~ton that the agreement would, apply only to current ~ncu~benis of the o~s~stant manager position and not to future incumbents ~nd tt required ~h(s provision to be included ~n the ~emoP~ndum o~ settlement. The Union eefuses to add this new substantive provision, ~nsisting that ~he deal hod been co, plated and closed. The Union representatives left the October 7~h meeting believing that the grievance had been set~ied and tha% it remained-only to complete the procedure! undertakings made by bo~h par~ies to express that verbal settlement tn ~r~ing and then to inform the GS8 ~ha~ tt v~! be unnecessary ~o proceed with the scheduled hearing because the grievance was se~t~ed. I~ ~s the Union's view that the question oF "withdrawal' was a matter of informing the GS8 that the hearing scheduled for the next week could be cancelled. Un(on witnesses testified that the Union's response [tha'~ (6 wilt {t has the settlement tn writing] was intended to keep pressure on the E~ployer to complete the task oF writ(rig the m{nutes of settl~ent, tn order to avo(d the unreasonable delays that ~t h~d previously experienced i~ similar s~uot~ons. The Employer's representatives testified tha~ ~hey regarded the Union's refusal to "~rLthdrow*' the grievance to mean ~hat the grievance ~s naa serried until such time that the ~greement in principle i~ put in writing. In a literal sense, o grievance may De w~hdrawn only before tt (s resolved. ~tthdrowal impltes ~hat the grievance ~i~l not.be pursued towards ~s resolution. The settlemen~ of ~ grievance implies that the ~rtevonce is no longer there to be withdrawn or pursued, ond need not De ~djudtcated. I~ ts not pursued further because there is nothing ~eft to be pursued. find that '~hen t~e~orties s~Qke of the "withdrawal oF the ?iqvpnce~', at ~he. October 7 ~eetin~, they had tn mind th~$ mace ~rec~s~ meaning: "~thdram.~ the Un~on's g~plicoti~n to_adjudicate the Urt~yonce~ 4 The Employer's conduct the next day, (n prepo~ing and sending to the Union its written version of the agreement in princkple, confirms tho~ the grievance had been settled verbally. The Employer's oF~er to settle was presented and discussed. In the course of discussions the Emp~oyer'agreed to modify its offer (n accordance with some of the proposaks put forward by ~he Union, The modified offer was accepted by the Union. The Union bresented no counter- proposals, Its acceptance ~os cleorly~rlthout conditions and ~ithout reservations, Neither party presented'further substantive points. There ~os meeting of minds on all o~ the substantive aspects o6 the grievance which were presented end dEscussed at the settlement meeting. Sherwood testified that he had authority to settle and that he presented and explained to the Union o~ the points contained (n the memo he hod prepared For h(mself in mdvance of the meet(n§. Also, he comf~rmed that it was not in h~s mind ~0 msk the to "grondfmther" the settIement; that is, to rest~c~ its Opp~icotion to assistants currently o$signed to t~o-shift s~ores. He testified that he ~ouid have presented this proposition hod it been En his mind to do so, but tt hod not come to his m(nd.until the oFter~oon o6 the nex~ day. He testified also 'that he had earlier presented th(s point ~s port of o proposed package settlement for ~he grievance at 6 meeting ~4th the Union ~he prev(ous June. The package was rejected and ~h(s port(culor'po(nt hod not been ogotn after that meet(ag in June, not until after the agreement in principle. was reached. The Board f~nds that the grievance ~s settled verbally. At the t~me of se klement all of the terms ~nd condition~ canto{ned in the Employer's offer ~ere accepted by the Union as a complete pa~koge, The package settlement resolved oll outstanding substantive Factors and precludes eitheP poPty from subsequently pursuing any chonge or addition to, or delet(on from the ~ackag~. Upon completion of the settlement verbally the port%es undertook to express its terms, in o written memorandum promptly the next day. The Employer's f~rs~ draft o~ the settlement terms did no~ contain the substantive restrEc~on wh%ch the Employer later attempted to impose. The Union has the Pight to re~use the EmpIoyer's proposat to odd to or to chon§e substantively the terms of settlement which the parties had agreed upon verbally. £onsequently, the Employer.refused to complete (ts undertok{ng to put %he settlemen~ terms o ~emo~'ondum, Nevertheless, the verbal agreement reno(ns o~d expresses the ter~s upon which the grievance is resolved. It now re~otns to determine Iwhot were the terms upon which the grievance was serried orally. They ore expressed and confirmed tn the evidence produced at the hearing, porticulart~ by Exhibit 1 [the first drafts of ~he ~greement which the Employer ~nd the Union hod submitted to e~ch other] and by ~hot ~[ four witnesses agreed were the ter~s end conditions for settlement ~hich hod been offered by ~he Employer and accepted by the Union. We establish as ~oct tha~ the parties hod agreed upon the fo~'ko~ng points' (1) The terms of the settlement shall become effective November I,~991.[Thts is indicated by Exhibit 1. 2t ~s contained in each droft.] (2) Assistant managers tn double ~hift sto~es shall be assigned to woPk the afternoon (second) shifts on a weekly or biweekIy rotationaI b~sis. The assistant m~nager sholI not nor~ally he required to work more than half of the scheduled second shifts within the one- or two-week cycle. [This is confirmed by the exhibits as well as the ~fva vo~e evidence of the witnesses.] Assistant managers ~y elect to be scheduled to ~o~k mor~ than ho~{ of the afternoon shifts on o voluntary basis. ~t is understood however ~hat the assistant. ~nager h~s the right to revert to rot~tion~[ schedu~in9. Scheduling preferences must be indicated before store staff schedules ore completed. [This is confirmed b7 the exhibits and the ~ ~oce evidence.] (4) ~hen the assistant monogee has not been assigned to work the a~ePnoon shift, this ~ssignment wire be offered to ~he most senior employee in the next ~owest c~osstficet~on tn the store who ts quaEtfted to perform said ~sstgnment. [This term Ks .in the Employer's first draft and confirmed by the Union's draft, as well ~s by viva race evidence.] (5) ~hen asstgning e~ployees :o the second ~htft, the Sto~e h~noger will make eveey reasonobte effort to balance the needs oF the staff with operQtionoI requirements of the store. [This term is expressed in Employer's first draft and the Union does not deny that it was included tn ~he verbal offer which it had accepted.] , The above five points express completely the substance of the verbal agreement to settle the grievance. It represents o meeting of the minds of the parties at the time the offer was made and accepted. No other substantive issues were raised. If there hod been onylother substantive point(s) inlthe m(nds of the parties at the time of the negotiations which concluded in the var'be! agreement, they~ould have been and should have been expressed in their respective offers and/or counter of Eer$. The Employer hod included the regarding the restrict(on of the agreement to curren£ employees, in on earlier offer which had been presented to mad rejected by the Union the previous'June. it iS quite legitimate for the Un,on to consider that point to hove been withdrnwn when it is not raised again ~n the' course o? ~he negotiaeions that were resumed in October, In pddition to the above-noted substantive points of agreement, the part,es hod. agreed atso, o% the time, ~o two procedural matters which Followed the verbal agreement to set~le the grievance. After'the Union refused his request to withdraw the grievance immediately, saying not" until language covering agreement in p2incipte ~s drafted and accepted", Roe undertook to dr~ft the language covering the agreement in principle. The Unio~ asked him to do tt "~s soon as possible as arbitration date is set ~or October llth". Rme responded quickly by foxing~the droft to the Union the next manning. Their conduct confirms the view thor language drofting.~os o procedural matter, no{ a condition o~ settlement. It w~s not raised until after the Union had accepted the Employer's offer to sortie. The second procedural matter which the parties hod a~reed upon, Following their agreement to settle.the grievance, concerned communications Peganding the set~Iement to the mona§ers and employees affected by it. In response 'to the Union's request, Sherwood undertook to let the Union see any circ~lor$ regarding %he mgreement before they are sene to the emptoyees. ? There is a statutory requirement that a collective agreement must De ~n writing. {Crown Employees Collective Bargaining Ac~, 1 (1) Cd); and There ts no similar statutory requ~r~nent regarding the settlement of grievanceS. A verbot agreement to settte ~ grievance ~s b~nd~ng o~) both parties, It does no~ hove to b~ tn writing. ThSs ~s ~Fftrme~ by the Follow~ng case~ brought to our attention by counsel ~o~ the Re BILT-RITE UPHOLSTERING AND UPHOLSTERERS' UN~ON {Z4 L,A.C.(Zd) p.4ZS}; RE CONTZN[NT~L CAN CO & GRAPHIC ART INT'L UNZON {~0 L.A.C. (2d) p.35}. RE SUSS ~OOD£RAFT LTD [19&3-OLRB Rep. April R~ PERFECTION RUG CO LTD [~9$4-OLRB Rep 2mnuory It should be noted that the Crown Employees Collective Bargaining Act encouroges ~he parties to determine their own grievance procedures on o voluntary hosts. The §rievonce procedures ore not prescribed ~n the ~ct, The statute also encourages the voluntary resolution of grievances ~nd prov~de~ for arb(trotion os a last resort: '"Every collective agreement shall be deemed to provide that tn the event the parties are unable to effect ~ settlement of any differences between them ....... such matter mmy be referred for arbitration to the Gr~eYance Settlement Board." [Section 19 (~)]. It shoutd be noted further that the .Collective Agreement contains ~ gr{evonce procedure ond that the Preamble to that Agreement stQtes ~hoE tis ~urpose "ts to establish mhd continue h~rmon{ou$ relations between the Employers amd the employees covered Dy thls Agreement and consistent there~th to provide procedures ~or the prompt ond ~ust d~sposition.of d~f~erences Qnd grievonces." There is nothing tn either {he ColLec~(ve Agreement or the governing stotute thor requ~es the settlemen~ o~ grievances in wr~inN. A collective a~reemen~ must be in ~riting, bu~ not the settlement of a grievance, It ts incumbent upon grtevQnce orDitrQtors to sho~ defereoce to the voluntor~ settlement of grievances ~hether or not such settlements Qre expressed in writing or verbally. Section 29 of the Act ~oes not permi~ the Grievance Settlement Board to decide o d~f~eremce in the event thor the p~rEie$ are ob!e to e~ect o settlement of that difference voluntorily~ ~hether orally or in ~riting, 8 We h~ve exom~ned the case law referred ~e'h~ve cqns~dered car~(~l~y ~he re~re$~totions mode ~ r~spec~ to ~he ~ppttcobiltty of those cases'to the case at hand. With respect, ~e Find mo~ of those cases ore not relevant to the questions we must grievance is settled by on oral agreement and ~hethe~ on oral settlement of grievance is enforceable, i The Bowt~ko case [79 D.L.R. (~TH)] concerns negotiations for a complex co~m~ercial franchise contract, where there ~as an oral ~9reement on s~ne poin[s of variation fro~ ~he s~andard form of the franchise ~reement. The cou~t found ~ho~ no final agreement hod been reached. "Tile co~plex te~s the ~greement could not be regarded as mere formaI[ties or os routine ~angua§e, and, os the subsequent conduct of the para,es sho~ed, ~here was no a~ree~ent between them on these Zn the Nonoi~o case [Nana[mo Daily Free Press andI the Vancouver Typographical Union, Loca[ 22e --Unpublished arbt[ratton decision] [he .U~ton Fa(led to estobl[sh tha~ there v~s a set~le~en~ moJe between the parties. The ~rbitrotion board [H.A. Pope, Cho~r] Finds there was o misunderstanding bet'~een the parties as to whot wos conctuded between them. Unlike the case at hand, the Arbitration Board in that case Found: "The Un(on leF~ with the understanding that the dispute h~d be~n settled whereas the E~p[oyer [eft with the understanding ~hot the disputed ~ork~outd continue to be done by members of the b~rg~in~ng unit .... ~ The Graphic Centre case [19?60LR8 Rep ~ay 221] is distinguishable in that it concerns the duty under the Ontario Labour Re,arians Act [l~.ke other collect(ye bargaining statutes] "to borgoin in good Faith and make every reasonable effort to make a caE[ecl(ye agreement". Like the Cro~n Employees Cotlect(ve Bargain(rig Act and other similar statutes, the Labour Relations Act defines ~ c~llective agreement as "an agreement in ~riting". ~e p?oces~ requirements For de.~ermining q collective agreemen~ are on enti£e~y d~.fferen~ mgtter ~han For the determinat~on of o ~r(evance se~lemen%. ~hile ~he collective borgaining statutes noted above requi~e a coELective agreement to be'in writtn~ nothing in the applicable statutes nor in common taw requires .tha-t the terms of settlement of a grievance arising under a cotlec~[ve agreemen~ De expresse~ in writin~ before tha~ settiement can be enforced in As exp!oined in the Perfection Rug decision [cited above]: "..In complex matters, negotiations may proceed o~ally un~il the po~ies Fee! they h~ve reoched ~greement (n ppinciple, leaving the details to be woPked out thereoe~er in ~he process of d~of~ing o ~itten ogreemeot. To the extent the anticipated ~ritten ogreemen~ is required or expected to contein terms or resolve points no~ 6inolized du~(ng oro~ negotiations, it con fairly be s~id ~hot there is no ~greemen~ until the required document h~s been finalized and executed. Delivery and execution o~ ~he onttcipoted document is, tn those circumstances, o precondition to the existence of ~ bindtng agreement. In each cose.v~here o written agreement is contempIoted, it is 'a question of constructton, whether the parties tntended that the terms agreed should merely be put into form, or whether they should De subject to a new agreement the terms of which ore no~ expressed in de~oil' ~ In the case before this panel, the evidence i~s very clear that the parties hod completed on oral ogreemen~ on %he terms of settlement Fog %his grievance ~nd thor the oral ne§otiotions left no subs%ontive points to be finolized and no de~oils to be worked out thereafter in ~he dt'a~ting process. The Facts of this case indicate tha~ ~he parties intended that %he ~erms agreed upon should mereIy be pu~ into Form, The Spottiswoode case [June ZO,194g, All Engtqnd L~ Reports'Anno%oted Vol. Z, Spo%tiswoode v Doreen Appliances, Ltd. (~o~d 6,eene M.R.),67j concerns o l~ndlord ~nd tenant dispute where the court found that the agreement between the parties was "subject to con~roct" which under settled low clearly meons that "~he intention of the parties is that neither of them is to be contractuol!y bound until a contract is signed in the usual ~oy." ~hot ~he parties hod in e{fect is nothin~ more than "o cant?act ~o enter in~o ~ 10 contract, which, the authorities have established now quLte p1ainly is not d b~nding contract at all." In the grievance case before us, the tegal question oF ~subject to contract~ is not in evidence. Again, tn ~he Davis of Georgia case [ 65 WWR,~B.C. 1968, Nunroe,J., p. Z5[]the dispute invotved o conkroct for the purchase o~ putp mQchines where the agreement ?or sate ~s "~ubject to. contract", and where the court held that no en{orceoble agreement ever come in~o being since the port,es were never ad ~dem os to the terms of the contract; at no time d~d either potty ever regmrd itself os contractually bound in specific terms os appeared from the fact of their continued negotiations and bargaining. In the grievmnce dispute at hand we have found the parties were ad idem, and the evidence indicates that the parties acknowledged that they had on agreement in principle, and tho~ ~heir agreement was not "subject to contract'. We short now examine what we'bel{eve is the most pertinent among the decided cases refer~ed to us by Employer's counsel. In the Toplin case [GSB' 'OPSEU AND HINISTRY OF CORRECTIONAL SERVICES] Vice-choir Samuels dismissed the Ministry's preliminary objection -that the grievances hod been settled- on the ?ouDds that "there ~os no settlement in this testimony. While it appeared to the Ministry thor o number of the grievor's concerns hod been met, at no time had oll the details of a settlement been agreed by the parties ..... UntJ[ all the ter~$ were agreed ~n one package, the part~es ~ou~d have no set~Jemen~, And ~hey never teethed ~he poin~ of agreeing on all the terms o se~t[ement. Un~! such ~ point ~s reached, either party could change its m~nd ghoul Ony of the ~te~s which ~y hove se~ed se~sfectony o~ [he The facts in the grievance before this poneZ are tn contrast to the Facts in Topttn. Unlike that case, the Union in this case accepted all of the-terms contained in the Employer's offer. There ~os nothing left to negotiate. ~hen the Union accepted alt of the ~erms ~n the Employer's package~ the parties reached the point of agreeing on all the ~erms of a settlement. It is no~ ~oo ta~e For e~her the Union or the Employer to add o new term or to change i~s mind about any of the ~tems in the agreed package. For the reasons s~ Forth herein, the Board decides that the grievance succeeds. The Board Finds that the grievance has been settled on the facts set ~or~h above and directs the Employer to implement the settlement forthwith. DATED AT HAmiLTON, ONTARIO~ THIS "I D~ssen=" (dissen'c a=tached) R. SCOTT, Between: ~. ONTARIO LIQUOR BOARD EMPLOYEES' UNION -and- THE CROWN IN THE RiGHT OF ONTAR~IO (Liquor Licence Board of Ontario) The Grievance Settlement Board Grievance - Policy 860/91 UNION NOMINEE ADDEND UM After reviewing the award in the above captioned matter, I am delighted that an award of the Grievance Settlement Board speaks to the fundamentals of sound labour relations. I believe the board has taken a necessary step in articulating the balance between verbal settlements and the good of faith the parties. The award makes abundant sense, and contrary to the employer's legal argumentd at the hearing, I truly hope they now understand the gundan~ental importance of "verbal agreements" with respect to settlement matters. Finally, I believe this award also echo's the sentiments of Edward Seymour who recently expressed a dissent in OPSEU (Burton et al). and Ministry of Tourism and Recreation, 452/90, 602/90, 615/90, 617/90: '"I f'unnly believe that the evidence presented at the hearing strongly supports the union's perception of events as they occurred. I believe this decision is wrong and it could have a negative impact on future negotiations between the parties. In Collective Bar~aini_n.~. the 'word of the parties is a crucial element in ensuring harmonious relationships. We need only to observe the relations between the Canadian Union of Postal Workers (CUPW) and Canada Post to see the level to which relationships can deteriorate when the two sides in the collective bargaining process distrust one another." [emphasis added] As well, this award is clearly the product of the Chairman's fifty odd years in the industrial relations field. And with that kind of experience guiding this board, we were able to look at this matter in terms of the future interests of the parties, becattse this award has some far reaching implications that bodes well for industrial relations in the Ontario Public Service Respectfully submitted by, ~~~S UL TANT SER VICES GM/m~ MARKHAM, Ontario February 14th, 1992 Dissent of J. R. Scott I have read the decision of the Board in this matter and find I disagree with · its conclusions. The Board was faced with a' situation wl~ere representatives of the employer and of the union met in an attempt to resolve a union grievance which challenged the employer's right to schedule certain assistant store managers. At a meeting on October 7, 1991, the parties reached agreement in principle on a number of points which appeared to settle the grievance, but the union took the position that they would not withdraw their grievance until language covering the issues was drafted, and "accepted" by the union. However, before the written agreement could be finalized, a more critical difference of opinion arose. The emplo3er made it known to the union that while discussing the points of settlement on October 7, 1991, they were contemplating only the current assistant managers. The union, on the other hand, made it clear that they were talking Of both current and future assistant managers. At this point the parties realized a settlement was not possible and the union decided to proceed to the Grievance Settlement Board for a. resolution o~ ire dispute. The parties first argued the question of whether the verbal agreement was a valid agreement o? if it was not an agreement until it was reduced to wr/ting. I am prepared to admit there were compelling arguments on both sides of this question, but since it was the union that insisted they would not withdraw their gr/evance until the language covering the agreement "was drafted and accepted," I lean towards the view that there never was a legal agreement in this case. With respect to the question as to whether or not the agreement applied to future assistant managers, it was not surprising that witnesses for the union supported the union's position and witnesses for the employer supported the employer's position. The important point, in my view, is that'nothing in the testimony of either party discredited the testimony of the other. This lends support to the position that the panics were not on the same wavelength when they were discussing a settlement of the grievance on October 7, 1991. The employer was speaking to an agreement which applied to current' employees only, while the union was speaking to an agreement which applied to future as well as current employees. Counsel for the employer argued that there was no meeting of the minds when the parties reached an agreement in principle on October 7, 1991 and, therefore, there was no agreement in law. He submitted case law to support this position, Angevaare v. McKay Ontario CoUnty Court, Kennedy Co. Ct.J, September 20, 1960 and Morrison v. Burton et al Alberta Supreme Court Egbert, J., June 28, 1955. Under the circumstances of this case, it is incumbent on the Board to consider any factors which will heIp it decide if, indeed, there was or was not a meeting of minds. 3 One such factor: was put to the Board in the form of a question by Counsel for the employer. After establishing through witnesses for both the employer and the union that the employer would gain nothing from the agreement in principle unless it applied only to current employees, he put this question to the Board: Why would the employer agree to something that gave them nothing and, i~ fact, left them in a worse position than if there was no agreement? I' suggest the answer to that question is obvious and it was answered in very categoric fashion by the person who had the authority to approve the agreement, Mr. Gar Sherwood, Vice-President Retail. This question was put to Mr. Sherwood by a member of the Board: "Would you have approved the agreement in principle if you thought it applied to future employees?" His concise answer was: "No, I would not." The award, at page 4, suggests that it was not Mr. Sherwood's intention to restrict the agreement's application to current assistant managers. Beginning at line 13 on page 4 is the following comment: · "Also, he confirmed that it was not in his mind to ask the union to "grandfather" the settlement; that is, to restrict its application to assistants currently assigned to two-shift stores." This, I suggest, does not correspond with my understanding of Mr. Sherwood's evidence. 4 Mr. Shcr~vo~cl w~s asked b), counsel for the union, "Why would you not raise the question of grandfathering at the October 7th meeting?" Mr. Sherwood's answer was: "It never entered my mind because we were dealing with existing employees." In other words, Mr. Sherwood participated in the discussions on October 7, 1991 and approved the agreement in priniciple that flowed from that discussion, under the clear impression that they were "dealing with existing employees." His clear and unequivocal evidence can be interpreted in no other way. The essence of this aspect of the employer's case is that there was not a meeting of minds in the discussion of October 7, 1991 and it is immaterial whether this resulted from an oversight by one party or another. As mentioned earlier, the employer relied, in part, on the case of Morrison v. Burton (Alta. 1955, Egbert, J.) wherein it is stated: "The law is clear that under certain circumstances mistake may exclude real consent; if each party meant ~ some definite thing but not the same thing as the other party meant, their minds never met." Another pertinent passage from that decision reads: "If agreemem in this sense is wanting, it is immaterial whether its absence is due to the mistake of one party or both. In either case it is the absence of a meeting of minds which prevents the contract being formed. The award, at Page 6, expresses the view that because the parties reached agreement in principle on the five points discussed on October 7, 1991, this 5 "represents a meeting of the minds of the parties at the time the offer was made and accepted." This, I Suggest with respect, misses the whole point of the employer's argument and the law cited by Egbert, J. supra. There clearly was no meeting of minds in this case and on that ground alone I would l~ave come to the conclusion there was no valid agreement between the parties.