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HomeMy WebLinkAbout1995-1009MALLOY97_11_12 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 800, TORONTO ON MSG 1Z8 TELEPHONEITELEPHONE (41tJ) 32tJ-1388 180. RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) MSG 1Z8 FACS/MILEITELECOPIE (41tJ) 32tJ-13SltJ GSB 11 1009/95, 1708/95, 344/96 OPSEU 11 95A999, 95F387, 96C785 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Malloy) Grievor - and - the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R H Abramsky Vice-Chair FOR THE M. Doyle UNION Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE G Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING November 3, 1997 AWARD At the outset of the heanng, the UOlon raised a prehmmary motion assertmg that the Board lacked Junsdiction to proceed because a settlement agreement had been reached by the parties. This Award deals With that prehminary motion. Facts In 1995, a number ofgnevances were filed on behalf of the gnevor, Larry Malloy, stemmmg from, among other issues, the issuance of three-day dIsciplinary suspension and final warmng to him for allegedly actmg 10 an unprofessional manner towards a co-worker A mediatIOn session took place on or about December 18, 1996, at the end of whIch the Ministry made a proposal 10 writmg, with the grievor to have until January 7, 1997 to accept It. Settlement discussions continued 10 December 1996 and into 1997, and on April 8, 1997, counsel for the UOlon, Maureen Doyle, sent GIselle Basanta, the MinIstry's representatIve, a proposal of settlement. SpecIfically, that proposal stated that the Union seeks. -<,~ a) three (3) days' pay representmg the thIrty-six (36) hours pay lost to Mr Malloy due to his suspension, 2 b) twelve (12) hours pay representmg the vacation day he took when compassIOnate leave was demed, c) eight (8) hours wages, lost by Mr Malloy to facilitate his attendance at the Gnevance Settlement Board hearrng; and d) the letter to file preViously submitted by Mr Dvorak concernmg July 4, 1995 allegations be removed and replaced with the enclosed letter Further, we propose that this letter be removed from Mr Malloy's file July 4, 1997 fully two years after the allegations. Although attempts by both representatives were made, the parties did not diSCUSS this matter agam until June 2, 1997 During that discussion, Ms. Basanta told Ms, Doyle that her client had approved a counterproposal, but had not yet faxed it to her so she did not have anythmg m wntmg to send, but the substance of the counterproposal was as follows the Ministry agreed to pay Mr Ma110y 48 hours pay (the three days for his suspension and the 12 hours for the compassionate leave), but not the 8 hours for hiS time at the GSB, and accepted the Union's versIOn of the letter, but with the normal sunset time frame in the co11ective agreement, specifically, three years. On June 5, 1997, Ms. Doyle conveyed the Ministry's offer to Mr Manoy and was instructed to accept the Ministry's proposal Accordmg to Ms, Doyle, later that day, she spoke to Ms. Basanta and adVIsed her regarding her client's acceptance of the MinIstry's offer and was adVised by Ms Basanta that the Mimstry would forward somethmg m wntmg for their signatures, 3 Ms. Basanta did not recall theIr conversatIon of June 5, 1997 clearly, but stated that she did not view it as creating a final deal wIthout the signed documentation. To that end, on June 12, 1997, she faxed a cover letter to Ms, Doyle whIch states, m pertment part, as follows Maureen, so sony for the delay Attached please find a signed offer from the Employer along the lines of what we discussed. Giselle. The attached Memorandum of Settlement, which Ms. Basanta signed, sets forth the following terms 1 The Employer agrees to repla.ce the July 26, 1995 letter from Mr A. Dvorak with the attached document whIch will remam on the gnevor's personnel file until July 4, 1998 2. The Employer agrees to pay the grievor the eqUIvalent of 48 hours pay less statutory deductions. 3 The Vmon and the gnevor agree to WIthdraw the above-noted grievances. This offer of settlement is deemed to have been WIthdrawn and shall be null and VOId ifnot accepted by 5 P m. on July 20, 1997 According to Ms Basanta, placmg a tIme frame on an offer of settlement IS her standard practtce and the practtce of the Mimstry After reCeIVIng thIS fax from the Ministry, Ms, Doyle dIscussed It with her chent. She stated that while the document represented their agreement, they noted that It made no reference to a provIsIon, whIch had been m the ongmal December 18, 1996 proposal of settlement, whIch stated. "The Employer agrees to make all reasonable efforts not to assIgn 4 the gnevor and [the co-worker] to work m close proximity with each other However, m the unlikely event that the institution's operational requirements cannot accommodate this arrangement, the Employer expects the gnevor to complete his shIft at the assigned post and conduct himself in a professional manner" Consequently, on July 3, 1997, the Union sent a Memorandum of Settlement to Ms, Basanta, which contained the three items set forth in the Mimstry's June 12, 1997 Memorandum of Settlement, and addmg a fourth Item - the language regarding assignments as set forth above. The Memorandum of Settlement was signed by the grievor and Ms, Doyle. Towards the end of July, Ms. Doyle was advised by Ms. Basanta that the Ministry was no longer interested in a settlement along these lines. Ms, Basanta informed Ms. Doyle that there was an ongomg investigation concernmg the gnevor which might result m additional discipline, that her instructions had changed and the matter could not be settled until the mvestIgatIon was completed, at which time It would be reassessed, Until then, she conSidered all outstanding proposals null and VOId. Ms. Doyle then adVised Ms Basanta that, m her view, the parties had settled the matter when the Umon had verbally accepted the June 2, 1997 counterproposal from the Ministry and would take the matter back to the GSB for resolution of thiS Issue 5 Arguments of the Parties The Union contends that the parties settled this matter when the Union verbally accepted the Ministry's June 2, 1997 counterproposal. At that point, it submits that a deal to settle the matter had been made. It asserts that the Mimstry' s subsequent fax of June 12, 1997 which labeled the Memorandum of Settlement an "offer of settlement" does not and cannot change that result. The Umon subnuts that on June 5, 1997, the Ministry's June 2, 1997 counteroffer was accepted even though It had not been formally Signed-off. It argues that the terms of the settlement agreement eXisted mdependent of any wntten documentatIOn, that the terms of the settlement were clear and that there were no Issues left to be discussed. In terms of its July 3, 1997 proposal of settlement, the UOlon states that It should be viewed as an attempt to reopen negotiations which the Ministry rejected, rather than as a counterproposal. It submits that Its attempt to reopen negotiations does not affect the parties June 5, 1997 agreement whIch bmds both parties. In its view, as ofJune 5, 1997, the Ministry could have refused to negotiate any further because the parties had a final deal. It argues that the MiOlstry could have "held the Union's feet to the fire" "- In support of its pOSitIOn, the Umon cites to Re Vancouver General Hospital and British Columbia Nurses' Union (1985), 21 L.A.C (3d) 275 (Hope) and Re Oakville 6 Associationfor the Mentally Retarded and OPSEU, unreported decIsIon dated Feb 3, 1993 (Samuels) The Mimstry argues that there was no final settlement of these gnevances and that, Instead, there were contInuing proposals and counterproposals between the parties until the end of July, when the Ministry halted settlement negotiatIons pending the outcome of the new investigation. Although Ms. Basanta stated that she could not recall the specIfics of her telephone conversation with Ms. Doyle on June 5, 1997, she did not consider that a "deal" had been made. Consistent with that view, the Mimstry argues that it followed up with a written "offer of settlement" provIding the Union approximately one month to agree to It. Thereafter, it submits that the Union, wIthin the time period to respond, made another counterproposal on July 3, 1997 wluch the Mimstry later rejected. In the Mimstry's VIew, the parties were still bargaining throughout June and July, 1997, and points out that only later, after the Mimstry declined to negotiate further, did the Union state that the parties had a final deal back on June 5, 1997 The Ministry argues that, from its perspective, no final deal had been made and that when the Unton made a counterproposal In July 3, 1997, the Mimstry's earlier proposal became lustory Further, it argues that as a matter of practIce, the Mimstry depends on wntten documents, not telephone caUs. It asserts that while It respects the notton of verbal settlements, it never thought that It had one in thIS case. 7 " Decision After careful consideration of the eVidence and arguments of the parties, I conclude that a final settlement agreement was not reached on June 5, 1997 Although the Union may have thought that it had a deal, With Its acceptance of the Mimstry's June 2, 1997 counterproposal, the eVldence demonstrates that the Ministry did not share that view There was thus no "meetmg of the mmds" that a final deal had been executed over the telephone on June 5, 1997 The cases cited by the Union establish that a verbal settlement is binding on the parties. As stated by Arbitrator Samuels in Re Oakville Association for the Mentally Retarded and OPSEU, supra at p 2-3, a telephone conversatIOn may result in a final bmdmg agreement to settle a gnevance even though a wntten document IS to follow The board explamed, at p 3 (emphasis in original) [T]he agreed terms of the settlement eXisted independent of the wntmg. Parties may contemplate a formalization of their verbal agreement, but thiS does not dImmish the legal force and effect of the verbal agreement Itself, if the parties already have a meeting of the minds concerning all the essential terms of their contract In such a case, the "formalizatIon" IS SImply a reductIon of the verbal agreement mto wntmg, In that case, the board found that the eVidence estabhshed that the parties reached a settlement agreement over the telephone. The employer then took actIOn consistent With that 8 agreement - sendmg a release for the gnevor to sign and sendmg a cheque payable to the grievor, to be held in escrow pending receipt of the signed release. There was nothing further to negotiate and no further negotiations took place. Accordmgly, the board found "that the parties came to a final binding contract to settle their differences m this matter and we have no further jurisdiction." Similarly in Re Vancouver General Hospital and British Columbia Nurses' Union, supra, the board of arbitration was convmced on the eVidence that an agreement had been verbally reached by the parties, even though there was some vagueness regardmg terms, The board stated at p 282. "[T]he authonties do not contemplate that the terms of a settlement must be clear, only that the fact of a settlement must be clear The terms represent an Issue which can itselfbe resolved through arbitration." (emphasis added) In this case, the evidence falls short of establishing that the parties came to a final bmding contract to settle their differences. The UOlon's acceptance of the Ministry's June 2, 1997 proposal was not viewed by the Mimstry as a final agreement but as a continuatIon of the negotiations that had been ongoing for the past eight months. Rather than viewing the conversation as Itself creatmg a formal agreement the Mimstry presented Its latest offer for SIgnature, Thus,.~on June 12, 1997, it sent to Umon counsel "a signed offer from the Employer along the lines of what we discussed," The UOlon was given until July 20, 1997, more than a month, to sign-off on it. While the UOlon argues that thiS charactenzatlon by the Mirustry 9 cannot alter the fact that an agreement was reached, In my VIew, It demonstrates the Ministry's state of mind. Its actions were also consIstent with its position that the matter was not finahzed by the parties' telephone conversation of June 5 The only way I could conclude that a final agreement was reached is to take a strict legal vIew of what occurred. That IS, there was a verbal counterproposal by the Employer on June 2 and verbal acceptance ofthat proposal on June 5, end of story But that approach would ignore the evidence concerrung how the Employer VIewed what transpired, as set forth above, and further Ignore the Uruon's actions after June 5 Upon receIpt of the Employer's June 12th proposed Memorandum of Settlement, the Union did not unmediately SIgn off on it as one would expect If the deal was, In fact, finalIzed on June 5th. Instead, counsel discussed the draft wIth Mr Malloy and they decided to propose an additIonal term. Thus, on July 3, 1997, a reVIsed proposed Memorandum of Settlement was subnutted to the Ministry for sIgnature. While the Union suggests that thIS was an attempt by the Uruon to reopen settlement negotiatIons, Its actIOns demonstrate that no final deal had been reached on June 5 and that the parties were still in the process of negotiatmg, When the matter was next discussed, It was only after the Employer rejected the Uruon's latest proposal and broke off negotiatIOns that the Umon insIsted that the Employer was bound by the Umon's acceptance of the June 2 proposal If that were truly the case, the Union would have SImply signed off on the June 12th wntten proposal and not submItted a 10 new proposat to the Mimstry That proposal can only be seen as a counterproposal, rather than as an attempt to reopen negotiations. Clearly, after seeing the Ministry's proposal 10 writmg, the Union and grievor had one more issue to negotiate and presented a new proposal to the Mirustry to obtatn It. Its actions at the tIme were not consistent with a final deal havmg been reached on June 5th, Even if the June 5 conversation could be viewed as establishing a firm settlement agreement, that agreement was subsequently negated by the Union's July 3 counterproposal. By not signing the Memorandum of Settlement and submitting a counterproposal, the UnIOn and gnevor nnplicltly rejected the MiOlstry's offer, and the Ministry properly Vlewed Its June 2 offer as being rejected. In so ruhng, I agree with the cases cited by the VOlon regardmg the Importance of settlements and their enforcement. Settlement agreements are crucial to labour-management relatIons and settlements must be respected If the credibility of the gnevance process IS to be maintained, Where a settlement has been clearly reached, neIther party may back away from It at a later date. But the fact that the parties reached a settlement must be clear, and, 10 this case, the evidence falls short. 11 Accordingly, for the foregomg reasons, I conclude that the partIes did not enter mto a bmding settlement agreement on June 5, 1997, and that the gnevances remam 10 dispute. ThIs matter should therefore be set for heanng. Issued this 12th day of November, 1997 ~ I H- 5fhnm R di Hammer Abramsky2chatr 12