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HomeMy WebLinkAbout1984-0419.Couldridge.85-04-12ONTARIO CROWN EMPLWEES GRWANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ,OPSEU (Reginald D. Couldrioge) - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Before: G. Brent. Vice Chairman H. Roberts Member I. Freedman Member .-q... _~.. -..-- .>... .-.. For the Griever:' Melvin I. Rotman - Counsel For the Employer: Hearing: ~ March 7. 1985 i Crai ? H; Slater Lega Services Branch' Ministry of Community'and Social Services 419184 ~ Grievor Employer : 2 The matter before the Board arises Out of a grievance dated April 6, 1984 in which the griever makes certain allegations concerning the treatment of the Co-ordinator of Community Services Orders position. It was the Employer's position that the Board did not have Jurisdiction to deal with that grievance on its merits because it had been withdrawn and the matter had been settled. The Union's position is that there was no settlement and that even if there were a settlement it had not been implemented by the Employer. L The-parties met on or about May 8, lpS4 to deal with the grievance at stage 2. The employer was represented by Ms. Kulman and Mr. Archer; the griever waspresentwithhisunion representative, Mr. Rosen; the meeting was chaired by Mr. Shapiro. 1t is clear from all of the evidence that the parties came to the realization 'that the grievance did not speak to the major concerns which the griever had-&&which led tb hi&filing the grievance. It is equally clear that they decided that they should deal with the griever's real concerns. It is the Employer's evidence that the griever agreed to withdraw jl& qrievanc~-~.. .- -~ -- exchange for iis-agpes;bent to discuss and deal with his: real concerns. The employer did not obtain any written withdrawal of the grievance from the qrievor. It is the griever's evidence that the grievance would be withdrawn as soon as the settlement was fulfilled. Leaving aside that issue for the time being, there is no doubt that the parties considered that they had reached an agreement to settle the outstandin$dispute. Ms. Kulman recorded notes (Sx. 2) which listed the following pbints: l like to be back doing Court CSO Function '* formal feedback as to why he was not considered * information about CSO job itself - is it training on rotation or time limitation t assurance that grievance will not be held against She said that the Employer agreed to all of the points and assured the grievorthatthe grievance would not be held against him. On May 14, 1984 she wrote the following letter (EX.4) to Mr. Rosen, the Union representative: Dear Mr. Rosen: Re: Organizational Changes - Toronto Area Children's Division --__ -.-____- -----. _- This~will confii-m our agreement that an explanation will be given to Mr. Couldridge concerning why he was not assigned the duties associated with the community Services Orders. In addition, a meeting will be held with the staff of the Toronto East and West Offices to ensure there is consistency of understanding on these duty assignments. The griever se&the following memorandum dated May 14, 1984 CExl 5) to his supervisor: Re: Grievance Settlement, Stage 2. giy a, 1984. *S you are aware, on May 8, 1984 a Stage 2, .- Grievqq,e.-.Ii+aring wa,s..he&d:.in accordance with Article 27.3.3 of the Collective Agreement, at the offices of 110 Eglinton'Avenue West. As you are also aware a settlement was agreed upon' as an alternative to proceeding to Stage 3 of the Grievance Procedure. The settlement that I have agreed to is as follows:' *- I 1. Due to the declining Probation caseloads] the increased workloads involved in Community Service programs; large ,~ population and geographic area covered by the Central Toronto program; the expansion anticipated under the Y.Q.A., that consideration be given to having two officers assigned to the Community service Order Program. Furthermore that re-instatement of myself as one of those officers be considered. i 2. Failing the above, if these assignments are to be only considered for Staff Training and Development purposes, and to be used for staff in whomthere is an identified need for development of necesary skills in facets of the duties within the P.0.2 classification, that such purpose be communicated to all staff within the Toronto Area. The disparities between the various interpretations of the memo of March 29, 1984 was made known at the Stage 2 hearing on May 8, 1984. A meeting is to be calledby Management with all staff. ~11 staff are to be advised of the one true interpretation of the March 29, 1984 memo, without variation depending on office location. 3; 4. .-& That-there be assurance that I.not be excluded from any consideration for _ future special assignments, including Community Service or similar programs. That I receive Formal Eeedback.on the reasons why I was. not considered for assignment to either the position of Court Liaison officer or Co-ordinator Community Services, Order Program (RAcSOP). Such feedback to be complete and over and above that "It was a management decision." That there be assurances that my ,grievance in respee to the questionable Competition process and procedure, and management's assumption of a right to transfer without consent of the employee; or consideration of the employee's rights andfeelings,notbe heldagainstme,or used inany way to restrict or impair career advancement or any employment' opportunities, at this time or at any, time in the future. To ensure that the settlement requests meet my satisfaction, and to'ensure that it is not necessary to return to Grievance Procedure, I would like to be adequately advised of ,the meetings that .&e necessary to fulfill the settlement agreed to. I wish to bepresent at all scheduled meetings with line staff. I also reserve my right to have an employee representative present as my right under Article 27.5 of the Collective Agreement. If I waive this right I place you on notice or my - 4 5 intention to, take a record of compliance with my settlement requests. That memorandum was forwarded to Ms. Kulman who sent the following letter (Ex. 6) to the griever: Dear Mr. Couldridge: Ms. D. tiallhas forwarded ydur letter of May 14, 1984 to this office for reply. It is management's position that your letter is inappropriate. May I remind you that the terms of , ~0°K agreement were confirmed in my letter dated May 14, 1984 to Mr. Rosen, your union representative, a copy of which was directed to~you. ACtiOn is being taken to satisfy those terms., I would like to point out that these terms were never considered to be part of the resolution to your recent Stage 2 grievance. It is our conclusion that the parties did reach an agreement and that the five points listed by the griever in his memorandum (Ex. 5) and the points listed by Ms. Kulman in her notes and letter (EXE. 2 a 41 are i identical in substance The griever clearly refers to the "settlement that I have agreed to" in his memorandum. Where he deviates from Ms. Kulman's understanding is in the last paragraph where he appears to - .- be adding new conditions and In his unde>standing that the withdrawal of ~.4p ..,_ ';. -'.-- i.. the grievance was conditional.upon the terms of settlement being implemented. There is no doubt (1) that the parties reached an agreement and (2) that that agreement was either separate and apart from the undertaking to withdraw the grievance or that ,the withdrawal was conditional upon the settleLent being implemented. It is most unfortunate that the parties do.Aot have a written record of the May 8th meeting with the griever's signed undertaking to withdraw. In the absence of that,we are left with two conflicting versions of the events and, because Mr. Rosen I. - 5 me’ 6 did not testify, we are asked to draw an inference against the griever. While this may be a proper case for the drawing.of an infer'ence against the griever, we must also weigh the competing versions against the standardof reasonableness, and if one version is more reasonable than the other we cannot overlook that. In a situation such as this ~where a grievance is being withdrawn so that broader issues can be settled, it would seem only reasonable that the griever would want to make his withdrawalconditionalupon the settlement of those broader issues. If he were to withdraw without such a conditipn, then he would be left without either his origin~al grievance or a settlement of'any sort. It is possible that, in their haste to discuss and settle $.h.e other issues raised, the parties failed~to deal with the withdrawal question clearly/and, in the absence of a written withdrawal, it is reasonable to conclude that the griever intended his withdrawal to be conditional upon the settlement of bther i,ssues. We therefore find that the grievance before us was settled and withdrawn conditional upon the follaring agreement: - 1. Thati?+. i - grieuor be cop+derecl*,for any futures placement ih the Community Service Order Program should another such position be established, or for any other assignments; 2. That the Employer inform the employees in the Toronto East and West offices that the assignr+ents to the Community Service Program are for staff training and developmentpurposesi 3. TQatthe griever be formallyinterviewedby his supervisors for the purpose of informing him of the reasons why he was not ; chosen for the assignment in question; 4. That the grievance not.ba held against the grieves in any way in the future. .I ’ i ; -7 Based on the evidence before us, we find that the Employer'has fully complied with points 2 and 3 of ~the above settlement. We are further assured by the Employer that it is complying with, and'will continue to comply with, points 1 and 4. Since those points are prdspective 'in nature, and since there has been nothing to indicate that theEmployerintendstodisregardits agreement.with the~grievor, we accept those assurances as evidence of the Employer's continued good faith. The EmplOyer has c~ited several cases toustothe effectthatthe parties may reach an oral settlement of a grievance and have that settlement incorporated as an order of a~boardof,arbitration. (See, for example, Carpenters' District CouncilofToronto~VicinitY, 0" behalf of~Locals.27 and 13b4, United Brotherhood of Carpenters ana Joiners& America v. Suss Woodcraft Ltd., -- [19831’ OLRB Rep. April 600 and vocal Union 2965, Re~silient Floorworkers, U.B.C.J.A.&Perfection -- m Co. Ltd., [19841 OLRB Rep. January 68.) We accept those propositions. We agree that there has been a settlement, the terms of . ..+.. . . - -- I~.. ..-- which we have set out above. we further accept that there has been compliance with the settlement, insofar as it is possible to ascertain to date, and that there will be future cdmpliance with the prospective aspects of the settlement. We therefore consider that, consistent with the authorities cited to us, our jurisdiction in this case is solely to declare the matter settled and to direct the Employer to continue tO , comply with the terms of the settlement. We do not have jurisdiction to deal with th% grievance on its merits. 8 DATED AT MINWN, DNTARID TEIS 12th DAY OF April ,198s. Gail Brent, Vice chairman u --iii-Roberts, &&ber b ---~- I. Freedman, Member