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HomeMy WebLinkAbout3270-05-U - Goring 07-05-08 MRY 08 2007 16:25 FR TO 94164438618 P.03/03 ONTARIO LABOUR RELATIONS BOARD 3270-OS-U Wendy Gormg9 Applicant v. Ontario Public Service Employees Union, Responding Party v. The Crown in Right of Ontario, as represented by the Ministry of Community Safety & Correctional Services, Intervenor. BEFORE: Patrick Kelly, Vice-Chair. DECISION OF THE BOARD; May 8. 2007 1. This is an application alleging a breach of the duty of fair representation under section 74 of the Labour Relations Act, 1995 as amended ("the Act"). 2. The Board is in receipt of correspondence dated May 7, 2007, in which counsel for the responding party ('"the union") requests that the application be dismissed on the basis that the applicant's grievances. which form the foundation of the complaint against the union, have all been settled. Counsel included with his letter a memorandum of settlement dated March 22, 2007 signed by the union, the employer and the applicant, which appears to confirm that a significant number of the applicant's grievances have been settled with her consent, and with her acknowledgement that she was fully and properly represented by the union. 3. The last time the Board dealt with this application was via a decision, dated Aprilll. 2006. of a differently constituted panel. In that decision, the Board adjourned the application until June 1, 2006, in order to provide the w1ion a chance to engage in a review and mediation of the applicant's outstanding grievances. The Board also provided the applicant an opportunity after June l, 2006 to request that the matter be scheduled for a consultation if she remained of the belief that the union had violated section 74 of the Act. The Board has not since received any communication from the applicant or her representative requesting that this matter be set down for a consultation. 4. It would appear that, in all the circumstances, the application ought to be withdrawn. dismissed, or otherwise terminated. Unless the applicant provides Wlitten reasons in opposition to the union's request on or before May 15. 2007. the matter will be deemed to be dismissed without further notice to the parties. "Patrick. Kelly" for the Board ** TOTRL PRGE.03 ** ONTARIO LABOUR RELATIONS BOARD 3270-05-U Wendy Goring, Applicant v. Ontario Public Service Employees Union, Responding Party v. The Crown in Right of Ontario, as represented by the Ministry of Community Safety & Correctional Services, Intervenor. BEFORE: Patrick Kelly, Vice-Chair. DECISION OF THE BOARD; May 18, 2007 1. This is an application alleging a breach of the duty of fair representation under section 74 ofthe Labour Relations Act, 1995 as amended ("the Act"). 2. By decision dated May 8, 2007, I indicated that counsel for the responding party ("the union") had sought the dismissal of the application on the basis of a memorandum of settlement ("the settlement"), signed by the applicant, that appeared to resolve the underlying grievances which gave rise to the applicant's complaint against the union. I provided the applicant with an opportunity to respond to counsel's request, and to say why the application should not be terminated. 3. The applicant's representative objects to the union's request to dismiss, based upon the following allegations. Counsel for the union was not well prepared for the hearing of the grievances, and did not meet with the applicant prior to the hearing, and for that reason, counsel opted for mediation rather than litigation. The settlement was presented to the applicant by counsel for the union only after counsel asked for and obtained an undertaking by the applicant not to discuss or share its contents with the applicant's representative in this application. Moreover, the applicant's representative contends that the settlement was provided by union counsel to the applicant without explaining its contents, and that the applicant was pressured by the constraints of time imposed by counsel to read, understand and sign the settlement. In addition, the applicant was not provided an opportunity to seek independent legal advice, and did not waive her "right" to do so. The settlement was "doctored" after the applicant signed it, although the applicant's representative does not expressly indicate in what manner the document was altered. 4. The applicant's representative further submits that the settlement does not refer to this application, nor its disposition. Finally, the applicant's representative states that the settlement was handled in a manner that denied the applicant natural justice and Charter rights, but does not explain how that denial manifested itself. 5. In my view, the applicant has not provided any compelling reason why the Board should inquire further into this application. 6. I turn first to the allegation concerning "doctoring". The applicant has not explained how the settlement was "doctored", or by what party. I can only surmise that the applicant is concerned with paragraph 5 of the settlement which reads: 5. The Grievor acknowledges that she fully understands the terms of this settlement and that she has been fully and properly represented by the Union. - 2 - In the copy of the settlement filed with the Board, the word "will" appears to have been struck from between the words "she" and "fully understands". With the insertion of "will", the sentence would have read: "The Grievor acknowledges that she will fully understands the terms of this settlement and that she has been fully and properly represented by the Union". If that is what the applicant means by "doctoring", it does not amount to a violation of section 74. To the extent the settlement was altered in this manner after the applicant signed it, it would appear that the purpose was to correct a grammatical or clerical error. In any event, the remedy, if any, for an unauthorized alteration of the settlement lies with the arbitration panel that was assigned the hearing of the grievances, not the Board, 7. In terms of the other allegations, they do not disclose coercion of the applicant. Time constraints and other such pressures are a normal feature of the arbitration/mediation process. This has been recognized repeatedly in the Board's jurisprudence. A recent example was the decision in Cooper Standard Automotive, [2006] O.L.R.D. No. 3616. The complainant chose to accept a settlement offer in respect of his termination grievance, but later claimed duress. Among other things, the complainant, like the applicant in tlus matter, contended that the settlement was achieved very quickly and that he had had no opportunity to take a day to think about it, or to obtain independent legal advice. The Board indicated that those were not compelling reasons to set aside a settlement, and that very few settlements would withstand scrutiny were the Board to adopt such a test. 8. I agree with the Board's assessment in the Cooper Standard Automotive, supra, decision. The applicant was under some pressure, but she was not denied the choice of refusing to sign the settlement. She could have declined to execute it. There was nothing to prevent the applicant in this case from simply refusing to be a party to the settlement. Instead, she affixed her signature to it, and thereby expressly acknowledged that she had been fully and properly represented by the union with respect to her grievances and their resolution. Nor did the applicant say that she did not understand the terms of the settlement, nor that she lacked the capacity to enter into it, nor that there was anything unconscionable in the settlement. There is therefore no labour relations purpose in proceeding further with this application. Whatever dissatisfaction the applicant may have felt concerning the union's handling of her grievances, the fact is that the grievances were resolved and the applicant derived a benefit under the terms of the settlement. 9. The applicant's representative added that if the Board were inclined to dispose of the application, it should simply adjourn the matter sine die until all the terms of the settlement are complied with. I disagree. This application dealt with the union's treatment of the applicant's grievances. The settlement puts an end to that issue. Any other issue with respect to enforcement of the settlement that pertains to the union's duty of fair representation may, if necessary, be dealt with in a fresh application. 10. For these reasons, the application is dismissed. "Patrick Kelly" for the Board