Loading...
HomeMy WebLinkAbout1995-0443UNION95_08_28 ~ /'~ ,/' (C C 0"11 ARlO EMPLOYES Of LA ':;OIJRJ"INE \~ I CROW"I EMPLOYEES DE l.'ONTAf1IO .~ ) rt'll. r .' 1111 GRIEVANCE CpMMISSION DE \. t: . I I f"f\ . _ l)'. -' SETTLEMENT REGLEMENT '\'l ' -\ \ \ \ i"" A' ~ \)J (;. BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE: (4 Ii) 326 1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELI~COPIE (416) 126..1396 ~-""'.'O--.~~.__'_ GSB # 443/95 .....~. ~"g:; .~ (;<b ~ ~ N~~ if~ R .~ t; ,~- ~ V l~"'t~ U OPSEU # 95U056 '" .'.~'A1 . r;[. . 1ii'""1'tl . .AUG 2 9 1995 IN THE MATTER OF AN ARBITRATION pllb! li..1 01--;.~ /ICr.:: Under ~_ .....' " -.....:1 ~ 1-_ PPOFA! BO.ARDS \. , "'_9 ",:10_ ..~ - -----THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE W Kaplan Vice-Chairperson FOR THE I Roland GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING August 25, 1995 ~ - 2 Introduction , This case concerns a union gnevance alleging a violation of a Memorandum of Settlement entered into by the parties on February 4, 1994 The case proceeded to a heanng in Toronto, at which time evidence and argument were heard At the end of the day, none of the legally relevant facts are in dispute, and the background to the case can be summarily described In December 1984, the parties entered into a memorandum of agreement providing for a compressed work week. Mr Gary Lenehan, the union president at the time, testified about the background to this agreement. Its details, however, do not concern us other than to note that a specific shift schedule was established By article 7 of this memorandum of agreement, the parties agreed that it would continue automatically from year to year "unless either party notifies the other, in writing, sixty (60) days prior to the annual expiration date, that it desires to renegotiate" Moreover, this memorandum of agreement also provides that "either party may, on written notice of twenty-eight (28) days to the other party, terminate this agreement. " For many years, the shift schedule which came into being upon the slgnmg of this memorandum of agreement operated without incident. However, around 1992, Mr Burke Thompson, the Nursing Coordinator, became concerned about communication problems between staff arising from the 12 hour shift rotation established by the compressed work week arrangement In a nutshell, there was no overlap between shifts, and Mr Thompson determined that various problems (which are listed in some correspondence Introduced into evidence), could be ameliorated through the staggering of shifts thereby providing overlap and improving resident care Discussions -- 3 ./ were held with the union A staggered shift schedule was prepared, and while not legally diSpositive of any of the issues m this case, it IS worth notmg that this proposed schedule provided for a single, and relatively minor, variation from the status quo After the employer announced its intention to introduce a staggered Shift, a gnevance was filed In the meantime, a pilot project was undertaken, and staff were subsequently surveyed about the proposed changes. On January 25, 1 994, Mr Thompson wrote that while "positive comments were included there were definttely more negative statements made" The grievance referred to above was dated October 1, 1993, and it alleged a violation of the 1984 memorandum of agreement and the Collective Agreement. Prior to arbitration, a mediation session was held Mr Kent Morrow, who was then president of the local, attended the mediation session and testified that he and Mr George Kytayko, the Hospital Administrator, agreed to settle the grievance That agreement was set out in a February 4, 1994 Memorandum of Agreement that the two men signed It provided, in full and final settlement of the union's grievance, that the Unton would withdraw its grievance and the employer "agrees to reinstitute the stagger shift at Oak Ridge on a volunteer basis" Mr Morrow agreed that no one ever made any representations to him suggesting that there would never be a staggered shift, or that the collective agreement precluded the imposition of such a shift. The discussion centered around the union's gnevance, and in return for the employer agreeing to use volunteers for the staggered shift, the union agreed to withdraw ItS grievance For his part, Mr Kytayko testified that he signed the Memorandum of Agreement in order to resolve the grievance The success of that resolution, from management's point of view, was dependent on obtaming the necessary 4 number of volunteers There was, however, no "what if" discussion, nor, Mr Kytayko confirmed, was any representation made to the union that the employer was permanently precluded from introducing a staggered shift Union Argument In union counsel's submission, the February 1994 Memorandum of Agreement was binding, and the employer was, in the result, restricted to using volunteers for the staggered shifts. In the absence of volunteers, counsel noted, the employer could, if it wished, either renegotiate the compressed work week arrangement, or terminate that agreement. What it could not do, counsel argued, was ignore the terms of settlement that it had entered into - terms of a settlement, counsel pointed out, which were directly responsive to a specific grievance taking issue with a change to a long-established shift schedule Very simply, in the union's view, management, having clearly settled the gnevance on the basIs that it would staff the staggered shifts With volunteers, could not later resile from its agreement by staffing the staggered shifts on some other basis. In counsel's submission, it did not matter whether the settlement was a good one or a bad one What mattered was giving that settlement effect, and counsel referred to a number of cases in support of this submission There was no fraud in this case, all there was a voluntarily agreed-upon settlement, and it was one, the union argued, which continued to bind the employer Counsel urged me to issue a declaration to that effect. Employer Argument In the employer's submission, this case was not about the employer seekmg - 5 to repudiate or resile from the February 1994 Memorandum of Agreement Rather, this case was about the terms of that agreement, and whether they had been complied with. In counsel's view, management had complied with the agreement, but been unsuccessful m staffing the staggered shIfts wIth volunteers That being the case, it was entItled to contmue to manage the facility, and as there was nothing in that document precludmg the employer from making changes to its shift schedules, It announced plans to do so Counsel noted that Mr Kytayko never made any representations to the trade union that management would, for all time, only staff the staggered shifts with volunteers Nor did the employer ever concede that it had breached the compressed work week agreement or the Collective Agreement. All that it did was try to settle a grievance through attempting to resolve a scheduling problem with the use of volunteers. When that attempt failed, notwithstanding the employer's many good faith efforts to make it work, the employer determined that it had to introduce the staggered shifts on a mandatory basis, and was hardly, counsel argued, precluded by the February 1994 Memorandum of Agreement from doing so By its very terms, that settlement was limited in scope, there was nothing m it, in the employer's submission, remotely suggesting that it was intended to govern forever A number of authorities were submitted in support of these and other representations In the employer's View, not only was there nothing stopping It from implementing the announced change, there was also nothing stopping the union from taking Issue with that change, after it was made, by filing a grievance Counsel argued that whatever the February 1994 Memorandum of Settlement did, it did not resolve the merits of the matter in dispute, and 6 this was yet another reason for finding that the employer could make the changes proposed in thiS case Employer counsel also referred to some polley reasons in support of his position that the Memorandum of Settlement at issue in this case was limited in scope If the Memorandum of Agreement was gIven the kind of unlimited and expansive interpretation requested by the union, management would never, counsel suggested, agree to resolve disputes And this, counsel noted, would not be in the interest of either party Accordingly, counsel urged me to give the February 1 994 Memorandum of Settlement a limited Interpretation and to dismiss the grievance Decision Having carefully considered the evidence and arguments of the parties, I have concluded that the grievance should be upheld and the employer directed to comply with the February 1994 Memorandum of Agreement. In my view, that agreement clearly and unequivocally limits the employer to scheduling staggered shifts with volunteers. Whether the settlement was wise or not is not the issue before the Board in the same way as the merits of the union's position, given the limited nature of the proposed change, do not matter to the disposition of this case What is important is that settlements be given effect. In thiS case, the Memorandum of Settlement is not temporally limited It says that staggered shifts will be staffed with volunteers Had the parties Wished, they could have limited the settlement, for example, to a trial period, or they could have provided for an escape hatch should the 7 .-' anticipated volunteers not appear Management was well aware when It entered into the settlement that the preponderance of opinion among the bargaming unit was hostile to the shift change Mr Thompson's January 25 1994 letter, cited above, makes this perfectly clear Moreover, the documentary evidence also establishes that within days of the settlement, the employer realized that the settlement was not, from Its perspective, a good one In a letter to the union president dated February 10, 1994, Mr Thompson wrote that he was "quite surprised to read" upon Mr Kytayko's return from mediation, "we agreed to only 'shift stagger' with volunteers!" That is, nevertheless, exactly, what the settlement says In this case, the employer announced its intention to change the shift schedule That decision was grieved The grievance proceeded to medIation, and the parties decided to resolve it. Two terms were agreed upon First, that the employer would only staff staggered shifts with volunteers And second, that the union would withdraw its grievance As a result of this agreement, it matters little whether the employer was entitled under the Collective Agreement or the compressed work week agreement to introduce mandatory staggered shifts Whatever its entitlements, It decided, for good or ill, to limit its nghts as set out in the Memorandum of Agreement. Having made that decisIon, It cannot, absent fraud or some other factor properly vitiating the settlement, resile from it. To allow the employer to do so would be to hold every settlement up to attack This, obviously, would cut both ways, and would be very destructive to the resolution of gnevances While Mr Kytayko may not have thought that the Memorandum of Settlement would govern in the future, he did not avail himself of the opportunity to limit its scope He agreed to staff the staggered shifts with volunteers, and that agreement should be given 8 effect. It should be noted that the parties entered Into a formal memorandum of settlement. This case can, therefore, be distinguished from those cases, two of which were submitted on behalf of the employer, where a gnevance is informally resolved and where there is little or no evidence of any intention that the resolution should govern in the future This Board has a long history of giving effect to agreements reached by the partIes. In Landry-King 1593/84 (Knoph), the Board held The Board wishes to do everything possible to foster and honour settlements reached by the parties Once settlements are achieved, parties must feel confident that they can rely upon them Otherwise, there would be no incentive for the parties to even attempt to settle matters Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the settlement (at 8-9) In Edgett et al 2476/90 (Dissanayake), the Board held, following an extensive review of relevant cases, that. Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontano 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 expense 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 (at 10-11) 9 ~ It IS generally accepted that the Board has the power to enforce settlements, whatever we may think of them As noted in Vinal! ~.Lill , 270/86 (Gray) The enforceability of a gnevance settlement cannot depend on whether the terms of the settlement reflect what an arbitrator would have done or could have done In response to the onginal grievance Nor can it depend on whether it would have been with an arbitrator's jurisdiction to impose the terms which the parties incorporated into the settlement. Limiting the enforceability of settlements in those ways would effectively negate one of the considerable attractions of dispute resolution by negotiated settlement - that the parties are not confmed, as an arbitrator would be, in defining either the scope of the problem they wish to resolve or the nature of an appropriate response to it. Similarly, the enforceability of a gnevance settlement cannot depend on whether its terms could or would have been the subject or result of bargaining for a collective agreement. If settlements are to be encouraged, any lawful provision of a settlement agreement must be enforceable, and enforceable in the same forum as any other such provision (at 1 4 ) In the instant case, the February 1994 Memorandum of Agreement is not ambiguous It is clear, and for the reasons given above, and in line with the long established jurisprudence of the Board, I declare that the employer's announced intention to introduce staggered shifts on a mandatory basis would constitute a violation of the February 1994 Memorandum of Agreement. I therefore direct the employer not to make this change ThIS is not to say that the employer is without remedy The compressed work week arrangement can be renegotiated, or It can be terminated 10 A few fmal observations are In order The eVidence clearly establishes that the changes which management sought to make were motivated by its desire to improve resident care The evidence further establishes that the employer, from the outset, made many good faith efforts to communicate with the trade union and to enlist employee support However, and for whatever reason, employees had no desire to change their longstanding shift schedules, and they made their views known at an early stage The union filed a grievance taking issue with this change at the first opportunity, and the settlement to that grievance provides that the employer will staff staggered shifts with volunteers That settlement was a final one, and like any other settlement must, absent extraordmary circumstances not present in this case, be given effect. I remain seized with respect to the implementation of this award DATED at Toronto this 28th day of August 1995 J I' ! _______ __1-~!----------- William Kaplan Vice-Cha irpe rson