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HomeMy WebLinkAbout2011-2422.Coelho.13-10-17 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2422, 2012-2253 UNION#2011-0290-0059, 2012-0290-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Coelho) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Michael Lynk Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Caroline Cohen Ministry of Government Services Legal Services Branch Counsel HEARING July 29, 2013 - 2 - Decision Introduction [1] This ruling is an interim decision. The sole issue before me is whether the parties had reached an agreement to settle the grievance filed by the Ontario Public Service Employees Union (OPSEU) on behalf of Ms. Dolly Coelho. The Employer argues that its negotiations with OPSEU during the mediation process over the settlement of the Coelho grievance had crystallized into a binding agreement with the Union, the grievance has been conclusively settled, and the grievance arbitration process has come to an end. Conversely, OPSEU maintains that the vital legal elements of an agreement had not been satisfied through its negotiations with the Employer during the mediation process; accordingly, it asserts that the Employer’s preliminary motion would be dismissed, and this matter should proceed to be litigated on its merits. [2] Counsel for the Employer, Ms. Cohen, requested that this interim ruling be issued as per Article 22.16 of the governing collective agreement, with no precedential value. She maintained that this was appropriate in the circumstances. Mr. Brewin, counsel for the Union, opposed this request, submitting that a significant amount of evidence had been presented at the hearing, thus negating the purpose of Article 22.16. After carefully considering the representations, I have decided that this ruling should not be issued as per Article 22.16. [3] In preparation for this hearing on the Employer’s preliminary motion, the two lawyers for the parties have created a detailed Agreed Statement of Facts (ASF). This Agreement has significantly expedited these proceedings on the preliminary motion. The ASF appears in paragraph 7 of this ruling. Along with the ASF, I have provided a short descriptive summary of the case, based on non-controversial and commonly accepted facts presented to me during the course of the proceedings, but which have nevertheless not yet been definitively established in evidence. - 3 - Evidentiary Background [4] Ms. Coelho is presently classified as a Youth Service Officer with the Ministry of Children and Youth Services (MCYS), assigned to the Roy McMurtry Youth Centre in Brampton, Ontario. She has been employed by the Ontario Public Service (OPS) since 23 October 2006, and initially was employed with the Ministry of Community Safety and Correctional Services (MCSCS). Ms. Coelho subsequently transferred to the MCYS. In August 2009, she injured her back at work, and remained away from the workplace on disability leave until March 2012. Upon her return to work, she was assigned first to an OPS location in Burlington with the Ministry of the Environment for several weeks, and then at the Roy McMurtry Youth Centre. However, Ms. Coelho’s return to work was short-lived, and her ongoing injury eventually forced her to resume her disability leave in May 2012. She has been unable to return to work since then. [5] Ms. Coelho and her Union have sought an accommodation that, when she has recovered sufficiently from her injury to return to work with restrictions, would place her in an OPS position within a short car drive of her home in Kitchener. Ms. Coelho has provided a medical evaluation from her physician, which states that she is limited to a maximum 30 minute drive from her residence as a result of her back injury. This restriction would exclude an accommodation at her most recent assignment, the Roy McMurtry Youth Centre, which is beyond the 30 minute range. [6] In 2011, while Ms. Coelho was on disability leave, she applied for a vacancy as a Victim Witness Services Worker (VWSW) at the MCYS’s office in Kitchener. Her application was unsuccessful. OPSEU subsequently filed a grievance on her behalf in July 2011, arguing that the Employer had breached the governing Collective Agreement by not assigning her to this position. OPSEU has taken the position that the VWSW job would be a viable accommodation for Ms. Coelho. The grievance proceeded to a hearing at the Grievance Settlement Board on 30 April 2013, where the parties mutually agreed to engage in mediation to settle their differences. - 4 - [7] The parties have agreed to the following ASF (the appendixes mentioned in the ASF are not included in this award): Agreed Statement of Facts 1. The parties met at the Grievance Settlement Board on April 30, 2013. They engaged in mediation with Vice-Chair Lynk acting as mediator. 2. In the initial discussion between counsel and Vice-Chair Lynk, ideas that might form the basis of a settlement were considered. The case itself involved a claim by the Grievor for accommodation into a Victim Witness Services Worker [VWSW] position in the Ministry’s Kitchener office for which the Grievor and the Union said she was qualified and the Employer said she was not. Counsel for the Employer suggested consideration of a resolution based on the Grievor being interviewed for a VWSW position in another office for which a competition was currently underway. The Grievor would be interviewed solely for the purpose of determining whether she was minimally qualified for a VWSW position. If she was deemed minimally qualified, she would be offered the next available position within a defined geographic area. Counsel agreed to discuss the idea with their respective clients. They did so and then met again to report to the Vice-Chair. 3. Over the lunch break, at the Vice-Chair’s request, counsel for the Union prepared a written draft of key elements of a proposal that would be acceptable to the Union and the Grievor, reflecting the direction of the morning discussions. Counsel presented this to the Vice-Chair and counsel for the Employer. It is attached as Appendix 1 to this agreement. 4. After further discussions, counsel for the Employer presented language that would be acceptable to the Employer on components of the proposed settlement. A copy is attached as Appendix 2. 5. Counsel for the Union discussed the Employer’s draft with the Grievor. He reported to Vice- Chair Lynk and counsel for the Employer that the Union and the Grievor were in substantial agreement with the proposal as drafted, subject to a number of revisions. A copy of the document with counsel for the Union’s notes is attached as Appendix 3. Union counsel said to Employer counsel that there was “agreement in principle” on the points set out in the employer’s proposal subject to the following comments. Union counsel orally advised counsel and the Vice Chair: a. Re Paragraph 1 (b): the provision re 70% with the panel to be advised in advance of the process was acceptable to the Union; b. Re Paragraph 1 (c): the position # was wrong; c. There need not be a provision for Union consultation on appointees or for a Union observer; d. Re Paragraph 1 (d): the Union asked that the paragraph provide that, if the Grievor was turned down, the Grievor would be given reasons for decision, areas of deficiency and scoring; - 5 - e. Re Paragraph 1 (e): the Union wanted the paragraph to provide that deference be given by the Vice-Chair to the panel’s “area of expertise” and that the rest of the last sentence of that paragraph be deleted. He explained that the Union didn’t want the Vice-Chair’s jurisdiction expressly limited to the fairness of the process if, for example, the panel was wrong about a model answer; f. Re Paragraph 2: if the Grievor got clearance to travel further, she would provide the Employer with the revised restrictions and the search was to be broadened accordingly. g. Re paragraph 3: the Union wanted to add that the duty to accommodate was in accordance with the Collective Agreement as well as the Code. 6. There was a discussion in the hallway on a point not included in the typed document or in the revisions written onto the document by Counsel for the Union. Counsel for the Union advised Employer counsel that the Grievor and the Union wanted the Employer to agree to a level of reasonable coaching of the Grievor prior to the proposed panel interview. He said it didn’t need to be included in the body of the memorandum of Settlement but could be set out in a letter. Employer counsel replied that all the information the Grievor might need was available on the internet or she was welcome to speak to anyone who works in the program for information about the job. Union counsel said he would discuss that with the Grievor. Neither party raised this issue in further discussion or correspondence. Union counsel says that, in advising that the draft terms of the settlement reflected an agreement “in principle”, he intended to convey that, for the Union and the Grievor, the agreement was subject to approval of the language of the Memorandum of Settlement and the acceptance of its terms as evidenced by the Memorandum being signed by the Employer, the Union and the Grievor. This was the understanding of the Grievor, based on the explanation of the process she had been given by Union counsel. Union counsel assumed that this was also the Employer counsel’s understanding. In fact, this was not the understanding of Employer counsel. 7. The Employer was aware that the Grievor’s medical restrictions included a restriction that limited her from driving for more than 30 minutes’ duration, as set out in her Health Reassignment Case Summary. The Employer was aware or should have been aware that for her to work at Milton or Brantford would involve her driving for more than 30 minutes to get to work from her residence in Kitchener. 8. There was a subsequent discussion between counsel of the area to which the Grievor might expand the search of a VWSW position if she was cleared to do so by her doctors. Union counsel says that he indicated that the Grievor might want the area to include London, for example, although Employer counsel has no recollection of London being mentioned. Employer counsel said that the area had to be limited to the Central West Region [which would not include London] but agreed that, subject to that, the geographic scope could be expanded, if the Grievor produced medical clearance. Employer counsel said that, for reasons raised earlier by Employer counsel, the search was not to include Brampton. Union counsel said he would have to discuss these issues with the Grievor. - 6 - 9. Employer counsel also said that once the Grievor obtained a position under the MOS, if another position arose closer to home, she would have to get there “on her own steam” and the obligations under the MOS would be exhausted. Union counsel said that is what he would expect, although he had obviously not yet discussed the point with the Grievor. He indicated he would do so. 10. There were no further discussions that day of these or any other substantive issues that might be included in the agreement. 11. Because counsel for the Union and the Vice-Chair had to leave for other appointments and with the consent of counsel for the Employer, it was agreed to break off discussions at that point. Counsel for the Employer said she would prepare a draft Memorandum of Settlement and send it to counsel for the Union for the consideration of the Union and the Grievor. 12. The Employer was aware of OPSEU’s policy that it would generally not agree to a Memorandum of Settlement without the agreement of the Grievor. On rare occasions the union would settle a grievance without the approval of the grievor, a situation of which the employer would invariably be advised. At no point in this case did union counsel indicate this would be such a case. It has been a long-standing practice at the Grievance Settlement Board to ask for and obtain the Grievor’s agreement to a Memorandum of Settlement of any settlement at the Board. The Employer has participated in this practice. The last time Union counsel called Employer counsel out to the hallway for a discussion was to ask what the parties would be using the next scheduled hearing date to discuss, i.e. would the parties use the date to discuss the Grievor’s remaining (unrelated) grievances. 13. After the meeting at the Board was adjourned on April 30, counsel for the parties exchanged the emails entered as exhibits. [8] As the ASF indicates, the parties had not reached the stage of completing a final written document that would capture the language that the parties had negotiated to bring the mediation of the Coelho grievance to a successful conclusion by the end of the day on 30 April 2013. However, the relevant issues required for a settlement had been identified, and the parties had exchanged proposals back and forth throughout the day. As Paragraph 3 of the Agreed Statement of Facts (ASF) states, counsel for the Union created a handwritten ‘without prejudice’ proposal early in the afternoon of the 30 April mediation session, which he presented to counsel for the Employer (#A1). As per Paragraph 4 of the ASF, counsel for the Employer then made revisions to this initial proposal on her laptop, which served to capture the evolving nature of the negotiations (#A2). In turn, counsel for the Union then provided handwritten requests for amendments to A2 on the printed form of that document (#A3). Union counsel also orally expressed to the counsel for the Employer - 7 - the outstanding issues that he had with A2, which are captured in Paragraph 5 of the ASF. The parties proceeded to negotiate with each other during the afternoon, clarifying and narrowing their differences. Other general concerns and ideas were raised as the afternoon progressed, which are captured in Paragraphs 6-10 in the ASF. When the mediation session concluded at the end of the afternoon on 30 April, the parties had made significant progress, and counsel for the parties agreed to continue their negotiations and drafting, while maintaining contact with the Vice-Chair on their progress. As the basis for their continued work to complete the written document, they agreed to work from the proposal as it stood at the end of the mediation session on 30 April. [9] As part of the ASF, the parties submitted the e-mail exchanges between Ms. Cohen and Mr. Brewin for the period between 1 May (when the two counsel began their post- mediation hearing efforts to complete the negotiations for a settlement of Ms. Coelho’s grievance) and 8 May (when negotiations ended). [10] Ms. Cohen worked on revising the 30 April draft during the following day. Mr. Brewin wrote by e-mail to Ms. Cohen at 12:57 pm on 1 May with some requests for changes to the working draft. Ms. Cohen replied at 1:07 pm that: “I have already revised the draft and sent it to my client. I had the gyst [sic] of your concerns.” Mr. Brewin replied later that afternoon (2:40 pm), asking for the “coordinates of someone whom the Grievor can contact re the VWSW interview, etc. rather than going through us?” After exchanging comments by e-mail about another issue (specifically, how to use the upcoming scheduled hearing date of 14 May to address other grievances filed on behalf of Ms. Coelho), Mr. Brewin then wrote to Ms. Cohen at 3:23 pm: I imagine both parties agree we have an agreement. We only need to sort out the final working [sic: both parties agree that Mr. Brewin meant to write “wording”] of the memorandum of that agreement. I just don’t want you to say, if it takes until next week to finalize the MoS, that you only have a week left to prepare for a mediation of the remaining issues. You are notice now [sic] of the Union’s intention and hopes for May 14. I believe we will sort out the MoS. At worst there will only be some minor editing to finish off. Don’t you agree with that? What’s the problem here? [11] On 2 May, at 8:53 am, Ms. Cohen wrote to Mr. Brewin to provide him with the name of a human resources contact regarding the VWSW position, but asked him not to pass along - 8 - the name until the draft memorandum had been finalized. Mr. Brewin replied several minutes later, agreeing “not to pass on the information for now.” In the early afternoon of 2 May, Ms. Cohen sent the revised draft of the Memorandum to Mr. Brewin for review (#A4). In her cover e-mail, she said: Sorry for the delay in not getting back to you. My instructing client was not available yesterday. - I have changed the competition # - Debrief: I included the reasons for the decision - Regarding who is on the panel: I left the language as is on the assumption that the grievor has not previously applied for the position. If you find out she has, we should change this to simply exclude [named person], who assessed her qualifications in 2011. - I changed “discretion” and added “expertise”, and replaced my earlier wording with reference to reasonableness, which I think is a good compromise and is in line with the intention. - I added the remaining locations in the Central West Region (except Brampton, as previously discussed) as possible locations, if she provides medical clearance to travel further. - I added a provision that we discussed toward the end of the day, that if and when she lands a permanent VWVS position, that’s the end of the obligations under the agreement. If another vacancy comes up closer to home, she has to get there on her own steam. - Please give me a call if you have any questions. I hope this is a wrap! [12] That evening, Mr. Brewin replied to Ms. Cohen, stating: “Thanks, Caroline. We are definitely getting there. I will run it past my folks and get back to you asap. I only have a couple of concerns which the Grievor may not share. Should be manageable.” [13] Over the next several days, the two counsel exchanged email messages respecting the other grievances pertaining to Ms. Coelho. The next relevant message respecting the progress of the settlement talks was on 6 May, when Mr. Brewin wrote to Ms. Cohen to say that: “The Grievor and I are in the middle of our review of the draft MoS [Memorandum of Settlement]. I should be able to get back to you on that by tomorrow.” [14] Ms. Cohen wrote to Mr. Brewin at 12:03 pm on 8 May, asking: “Can I please hear from you on the MoS?” Mr. Brewin replied at 4:36 pm that afternoon to say that Ms. Coelho and the Union were not able to agree to the terms of the draft memorandum. Mr. Brewin’s e-mail to Ms. Cohen and the GSB Vice-Chair stated: - 9 - After further reflection and much discussion, the Union and the Grievor have concluded they do not want to proceed towards a settlement along the lines discussed last week. Your efforts, Caroline, including the preparation of the draft Memorandum of Settlement are noted and appreciated. However, the Union and the Grievor have concluded the proposed settlement does not represent an approach that they can accept. The only possibility for a settlement would be one that is based on the Grievor being appointed to the Kitchener position when she is cleared to return to work. From previous discussions and exchanges with Caroline I assume that there would be of no interest to the Employer. If I am wrong we can reopen discussions. If I am correct then, In [sic] those circumstances, I propose that we proceed with the hearing on Tuesday as planned earlier. [15] At 4:49 pm, Ms. Cohen replied, stating in her e-mail: “We had an agreement in principle, you said so yourself at the end of the day. I don’t believe you can pull the plug on the settlement at this stage.” [16] No further substantive negotiations between the parties were conducted on this matter. Argument Employer [17] Ms. Cohen submitted that the parties had reached a meeting of minds on all of the essential issues pertaining to the settlement negotiations by day’s end on 30 April, resulting in a crystallized agreement to settle Ms. Coelho’s grievance. She argued that the agreement that should be enforced was the draft memorandum (A4) that was sent to Mr. Brewin during the afternoon of 2 May. This draft, she argued, had the consent of the Grievor and it had incorporated all the Union’s concerns and requests. Ms. Cohen further submitted that Mr. Brewin had the authority to bind the Union, and his words and actions during the back-and-forth communications amounted to effective consent. All that was left to do after the end of the mediation session on 30 April was to finesse some words and phrases to capture the agreement. This was done by Ms. Cohen during her work on the draft over the next two days. - 10 - [18] The Employer argued that the issue at the heart of the negotiations between the Employer and the Union concerned Ms. Coelho’s access to an evaluation by a Ministry panel which would determine whether the grievor was minimally qualified (the 70% threshold evaluation) for a VWSW position. The parties had agreed that the evaluation was to consist of an interview, an oral presentation and a written component. If the panel determined that Ms. Coelho had achieved the 70% threshold, then she would be awarded the next available VWSW position within a 30 minute driving radius from her home in Kitchener, as long as her medical restrictions permitted her to do so. There would be an agreed time limit for her to be able to achieve the requisite medical fitness to take up the position, or she would forfeit the available position. [19] However, if Ms. Coelho failed to achieve the 70% threshold, the Employer would provide her with an oral debriefing session to explain why she had not reached the threshold. If Ms. Coelho wished, she would be entitled to request the Vice-Chair to review the reasonableness of the evaluation process. [20] Ms. Cohen submitted that these interview provisions were the central issues for the negotiated bargain reached with the Union, a meeting of minds had been reached at the end of the day on 30 April, and these provisions were laid out in the 2 May version of the draft memorandum (A4) that she sent to the Union. She also referred to Paragraph 5 of the ASF, which lists the Union’s seven requests for changes to the working draft of the proposal as it stood near the end of 30 April; these requested changes dealt with details surrounding the interview process. Ms. Cohen submitted that the Employer had accepted all of these Union requests for changes, and they were incorporated in the A4 document that was sent to the Union on 2 May. [21] The Employer argued that the conduct of the Union, specifically captured by the e-mails from the counsel for the Union to counsel for the Employer beginning on 1 May, supports its position that an agreement to settle the grievance had crystallized. [22] Ms. Cohen requested that the GSB find that the negotiations between the parties had matured into a legal binding agreement to settle the Coelho grievance, and that the parties are now bound by this agreement, which is contained in the A4 document. - 11 - [23] As support for the Employer’s position, Ms. Cohen submitted the following caselaw: AMAPCEO v. Ontario Ministry of Community and Social Services (Kent), [2012] O.G.S.B.A. No. 139 (Dissanayake); City of Hamilton v. ATU, Local 107 (Maracle), [2008] O.L.A.A. No. 564 (Luborsky); Gregory v. Estee Lauder Cosmetics Ltd., [2012] O.L.R.D. No. 1111 (Hayes); LIUNA v. Elgin Construction, 2011 CanLII 78743 (Gee) (OLRB); OPSEU v. Ontario Ministry of Community and Social Services (Rolfe), 2006 CanLII 30730 (OGSB) (Briggs); Architectural Mouldings Ltd v. USWA, Local 1-700 (Osman), [2005] O.L.A.A. No. 273 (E. Newman); OPSEU v. Frontenac Youth Services (Bernardes), 2005 CanLII 40720 (Chapman); AMAPCEO v. Ontario Ministry of Health (Globerman), [2003] O.G.S.B.A. No. 46 (Briggs); and Ontario v. AMACPEO (Reasonable Efforts ‘Settlement’ Grievance) (2001), 104 L.A.C. (4th) 166 (Knopf). Union [24] Mr. Brewin, for the Union, submitted that no final and binding agreement had been reached between the parties on the Coelho grievance, because there were still outstanding substantive issues that the parties had not yet reached a meeting of minds anywhere along the mediation process. A general framework for the resolution of the grievance had been accepted by the end of the day on 30 April, but because some of the important and substantive details had yet to find final resolution, there remained a gulf in law between aspiration and agreement. [25] Mr. Brewin advanced two general arguments in support of the Union’s position. First, he cautioned that arbitration boards should be very careful about imposing settlements because rights are affected. The best practice among arbitrators is to require that an agreement should be reduced to writing, because that is by far the best barometer to assess precisely what the parties had consented to. And second, he pointed to the particular system of carriage rights applied in the OPSEU-OPS relationship, where a grievor’s consent is a necessary part of reaching an agreement to settle a grievance. He asserted that, until the grievor had signed the draft agreement, there is no agreement. - 12 - [26] In addition, Mr. Brewin asserted that, while there was an agreement in principle at the end of mediation on 30 April, this had not yet been reduced to writing. Any agreement in principle still needs to be captured in language that has the imprint of consensus by all parties in order to pass the legal test. He maintained that several substantive matters – such as the locations for some of the possible accommodation assignment sites for Ms. Coelho, the issue of preparation coaching for the VWSW interview, the ability of Ms. Coelho to obtain an accommodation position in Kitchener if she first obtained a position elsewhere, and the starting point for the six months to obtain medical clearance – had not yet been resolved in agreed-upon language, thus meaning that the draft agreement had not crystallized into a binding document. [27] In particular, Mr. Brewin pointed to the e-mail traffic between the two counsel, and submitted that it expressed the need for further refinements of language in the working document, indicating that a settled agreement had not yet been reached. [28] As authority to support the union’s position, Mr. Brewin relied upon the following caselaw: AMAPCEO v. Ontario Ministry of Community and Social Services (Kent), [2012] O.G.S.B.A. No. 139 (Dissanayake); Re TransAlta Utilities Corporation and United Utility Workers’ Association (2005), 139 L.A.C. (4th) 192 (Beattie); OLBEU v. Ontario Liquor Control Board (East), [2004] O.G.S.B.A. No. 131 (Gray); and AMAPCEO v. Ontario Ministry of Health (Globerman), [2003] O.G.S.B.A. No. 46 (Briggs). Decision and Reasons [29] Productive labour relations in Canada depend upon the creation and maintenance of trust, respect and reliance between employers and unions in their dealings with each other. This does not mean that they have to agree with one another all of the time, or even that they will forestall from using the tools of hard bargaining and litigation to win a point. Indeed, intense disagreement, legal battles and industrial action are common place as part of the warp and woof of modern labour relations and labour law in Canada. It does mean, however, the parties are expected to engage in meaningful negotiations to settle - 13 - differences as they arise, and it does mean that the parties ought to be secure in their belief that the law will respect and enforce the agreements that they reach. Because differences between employers and unions arise continuously, and because productive industrial relations depend upon the efficient and effective resolution of these differences, labour law has erected a system of rules that encourages and reinforces a cooperative spirit between the parties. [30] Employers and unions sign agreements with each other all the time. Not only do they consent to collective agreements, pension and benefits agreements and a range of special agreements that arise in any particular workplace, they also regularly negotiate agreements to settle grievances that arise during the life of the collective agreement. All of these agreements are contracts for the purposes of the law, but the law recognizes them as contracts of a special nature. Labour law accepts that employers and unions have an ongoing and deeply integrated relationship that deals with the exchange of human labour for appropriate compensation in the context of an employer’s productive mission. These two factors – the ongoing and indefinite nature of the relationship and the involvement of human labour – practically and legally distinguish labour contracts in the workplace from regular one-off commercial contracts and purchase and sale agreements. Accordingly, while labour law draws some of its rules on the interpretation and application of contracts from classical contract law principles, it has also created and adapted its own rules of contract interpretation that are particular to the unique demands of the industrial relations world. [31] Grievances are regularly settled between industrial relations parties in order to avoid the uncertain outcomes of arbitration, to sidestep the financial and goodwill costs of litigation, and to reinforce the long-run benefits of an enduring relationship based on accommodation and compromise. Many times more grievances are filed in the unionized Canadian workplace than the arbitration process could ever hope to adjudicate through litigation. Accordingly, reality demands, with the full encouragement of the law, that the parties find productive ways of managing differences and disagreements. Ensuring the sanctity of an agreement is one significant feature of this legal encouragement. If employer and unions could easily repudiate their agreements with each other, especially - 14 - after one party subsequently develops buyer’s remorse, then the elaborate industrial relations machinery that mixes legality, flexibility, durability, informality, compromise, mutual interest, workplace rights and trust would quickly clog with sand. [32] Our focus in this case is on whether the employer and the union had reached a binding agreement to settle the Coelho grievance. Both parties and their counsel engaged in meaningful negotiations to seek an agreement that sought to satisfy their respective interests, while remaining open to compromise and concession. Both counsel represented their clients in an effective and professional manner. The dynamics that shaped this particular set of negotiations are illustrative of both the common features of the mediation process to settle a labour grievance in the context of a more enduring relationship, as well as the unique factors that drove this particular file. Arbitrator Paula Knopf has aptly captured the nature of negotiating a settlement in the labour context: There is a delicate art to negotiating settlements. People need to be able to communicate and persuade. It takes patience, ingenuity and wisdom. But it also takes strength and determination...No deal can be successfully concluded until both sides feel they have achieved the best they can to protect their own interests. So negotiations become a fascinating dynamic of give and take, as well as delicacy and resolve...What is both clear and fascinating is that no two sets of negotiations will ever be the same. The process and its results are shaped by the issues, the personalities who are directly and indirectly involved and the intricacies of the interests at stake. Re Ontario Racing Commission, supra, at para. 27. [33] The caselaw submitted by the two parties lays out a set of applicable principles that are useful to assess whether a document or a set of proposals exchanged during negotiations between an employer and a union have crystallized into a legally binding agreement. My reading of these cases has yielded the following principles: a. The classical principles of contract law apply: offer, acceptance and consideration. The key determinant is whether the parties have reached a common agreement, a meeting of minds, on all of the substantive issues on the table. An agreement is reached at the moment when all of the substantive matters in dispute have been resolved, there is nothing substantive left to be negotiated, and the parties have intended to achieve resolution of the matter on these terms. (Re TransAlta Utilities Corp., supra.; Re Architectural Mouldings Ltd., supra.). The test is objective. - 15 - b. The representatives of the parties reaching the agreement must have the authority to bind the parties. (Re Architectural Mouldings Ltd.) c. The fact that some secondary details might still require elaboration would not be usually sufficient to negate the crystallization of a binding agreement, unless this was an express condition agreed upon during the negotiations. d. The parties can be bound by oral commitments, as long as the evidence demonstrates that they have unconditionally agreed to settle the substantive issues between them (City of Toronto v. Toronto Civic Employees Union, Local 416 (Lewis), [2002] O.L.A.A. No. 531 (Luborsky)). Reducing the settlement to writing is a procedural, and not an essential, feature of an agreement. Signatures on a document are usually conclusive that an agreement has been reached, but a binding agreement does not necessarily depend on the presence of signatures. (OPSEU v. Ministry of Community and Social Services (Corbiere), [2013] O.G.S.B.A. No. 124 (Dissanayake)). e. The party seeking to rely upon the agreement must establish its existence on the balance of probabilities, based on clear and cogent evidence of the words and conduct of the parties. (Canadian National Railway Co. v. UTU (Thomas), [2004] C.L.A.D. No. 233 (M. Picher); City of Hamilton v. ATU, Local 107 (Maracle), [2008] O.L.A.A. No. 564 (Luborsky); Re Architectural Mouldings Ltd.). [34] Applying these principles to the facts of our case, I find that the parties had reached an enforceable and binding agreement, from which the Union cannot now withdraw. I say this for four reasons. [35] First, by the end of the mediation session on 30 April, the parties had reached a meeting of minds on all of the substantive issues between them. The primary movement occurred when, early on in the mediation process that day, the Employer expressed its openness to the Union to creating a process that would allow Ms. Coelho to interview for a VWSW position. This melted the initial impasse as to whether or not Ms. Coelho was qualified for a VWSW position. The parties then spent much of the rest of the day exchanging ideas that provided shape and substance on how this process would actually work. Throughout - 16 - the mediation session, both counsel met frequently with their respective advisors, including, in the case of the Union, with Ms. Coelho. [36] By day’s end, the substantive heart of the agreement had been reached: • An interview process would be established for Ms. Coelho to be interviewed for an upcoming VWSW vacancy in Brampton, for the sole purpose of determining whether she was minimally qualified for a VWSW position; • To be minimally qualified, she would have to achieve a total score of at least 70% on the cumulative components of the competition; • The interviewing panel would not contain any managers who had been involved in any previous assessments of Ms. Coelho; • If she was found not to be minimally qualified, a process was set up for the Union and Ms. Coelho to refer the matter back to the Vice-Chair to specific terms; • If Ms. Coelho was found to be minimally qualified, an “offer of vacancy” process was set up, whereby the Employer would offer her the next available VWSW position in a defined number of locations within Ms. Coelho’s driving restriction range; • Once an “offer of vacancy” would be made by the Employer to Ms. Coelho, she would have six months to obtain medical clearance to return to work, failing which the offer would be withdrawn; and • Ms. Coelho would withdraw her grievance; In addition, there were the usual terms and conditions that accompany an agreement to settle a grievance, such as waivers and the like. In this particular process, these terms were uncontroversial and could not be considered as playing any part of the core agreement. [37] These terms reflected the core and the substance of the agreement. After 30 April, nothing happened to this core feature of the agreement, until the Union and Ms. Coelho sought to withdraw from the agreement on 8 May. In his closing argument, Mr. Brewin cited several aspects of the interview and offer of vacancy process that had not yet been settled. In my - 17 - view, whatever details were left to be finalized were secondary and tertiary matters, and do not alter the fact that the substantive features of the deal had already been resolved. [38] My second reason for finding that the parties had reached an agreement during the mediation and negotiations process is the conduct of the parties after 30 April. What happened after 30 April was the drafting process, followed by various e-mailed exchanges regarding loose ends in the working document. Nothing in the evidence points to any important unsettled feature respecting the substantive issue after 30 April. Everything points to a meeting of minds on the substantive point around which the negotiations had revolved. Mr. Brewin’s e-mail to Ms. Cohen on the afternoon of 1 May reflects this: “I imagine both parties agree we have an agreement. We only need to sort out the final [wording] of the memorandum of that agreement.” When Ms. Cohen wrote to Mr. Brewin with the draft memorandum of agreement on 2 May, the list of changes that she mentioned in her covering message indicated the various details that had been corrected, added or changed. None of these details went to the core of the agreement. Mr. Brewin’s reply to Ms. Cohen later on that day, after having had the opportunity to review the draft memorandum, did not state any concerns with any of the substantive aspects of the deal. An objective review of this evidence can only conclude that the parties had settled upon the contours of the interview process for a VWSW by the end of the mediation session, and were engaged after 30 April in a drafting exercise to capture the dangling details. [39] The third reason for concluding that the Employer and the Union had reached an agreement is that both parties had representatives at the mediation process who were empowered to enter into a binding agreement. Neither side has seriously contested this issue. [40] The fourth and final reason for my conclusion goes to the argument advanced by the Union that an OPSEU member’s consent to a memorandum of agreement that settles his or her grievance is required. I am quite aware of, and sensitive to, the Union’s practice that it seeks the engagement of its members throughout the grievance process, and particularly when active negotiations have been initiated to resolve a member’s grievance. This commitment by the Union to membership representation and grievor engagement is - 18 - exemplary. However, no caselaw authority has been presented to me to establish the legal principle that a deal reached on the settlement of a grievance under this collective agreement is conditional upon the consent of the grievor. The standard rule in Canadian labour arbitration is that a union has the sole carriage rights of a grievance, and is entitled by law to decide whether to advance, settle or withdraw a grievance, subject to the limitations imposed by the duty of fair representation and any requirements in the union constitution. This rule is capable of alteration, but nothing was submitted to me in argument that would persuasively establish that an exception to this rule had been created in these circumstances. Indeed, none of the GSB decisions submitted by the parties to me in this matter pertaining to the legal moment as to when negotiations to settle a grievance had crystallized into a binding agreement cited the necessity of grievor consent under the current or its predecessor collective agreements as one of the required pre-conditions of an agreement in the OPS. [41] From the evidence, counsel for the Union worked assiduously during the mediation day on 30 April, and thereafter, to secure a favourable deal for the Union and Ms. Coelho. He regularly consulted with her and she would have been well aware of the direction of the negotiations to reach an agreement and resolve the grievance throughout this period. The fact is that, working closely with the Union and Ms. Coelho, Mr. Brewin developed a process framework in his negotiations with Ms. Cohen that, when the substantive issue was settled, solidified into an enforceable agreement. The Grievor may have subsequently regretted the terms of the agreement, but she did not possess the power to formally veto it. In any event, the timing of her change of heart was too late to permit the Union to undo the agreement that it had been already reached with the Employer. Conclusion [42] I have concluded that the parties had reached an agreement on the settlement of Ms. Coelho’s grievance, and this agreement is binding and enforceable. [43] I remain available to assist the parties with the implementation of any aspect of this award. - 19 - [44] I wish to thank both counsel for their very helpful assistance throughout the mediation and litigation of this matter. They both represented their clients well. Dated at Toronto, Ontario this 18th day of October 2013. Michael Lynk, Vice-Chair