GSB#0783/00, 1314/00, 0883/01
UNION# 00A454, 00A516, 01F523,
01F525, 01F526, 01F527
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dale et al)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR Nelson Roland Counsel Barrister & Solicitor
FOR THE EMPLOYER Fateh Salim Counsel Legal Services Branch Management Board Secretariat
HEARING February 27, 2002.
AWARD
During the course of the hearing, a dispute arose as to the admissibility of evidence concerning 17 grievances filed in 1996 which the parties’ settled in March of 1999. The Union seeks to rely on the facts and circumstances underlying those grievances to support its allegation that the actions taken by the Employer in the matters before this Board were based on anti-union animus. The Employer objected to the introduction of this evidence on the basis that the matters were fully and finally settled.
Facts
The initial grievance before this Board, dated November 2, 2000, alleges that the Employer constructively dismissed the grievors from their jobs, discriminated against them contrary to Article 3 of the collective agreement, unfairly disciplined them and subjected them to defamation of character by management because of their activities on behalf of the Union.
In an Award dated November 14, 2001, I consolidated five additional grievances – one dated July 3, 1998, as well as four from 2001, on the basis that “the grievances sought to be added by the Union involve the question of whether the employer’s actions toward Mr. Dale were the result of the grievor’s union activities.” The Award continues:
The allegation is that they are all “part and parcel” of the same course of conduct. As such, although the grievances allege discreet matters, the issue of the employer’s motive is the same in each case. Thus there is a “question of law or fact” in common, which satisfies the GSB’s rule regarding consolidation.
As noted above, at the hearing, a dispute arose concerning the admissibility of evidence pertaining to 17 other grievances filed by the grievors between April and November 1996. Those 17 grievances were consolidated and all allege that certain actions were taken against the grievors by the Employer based on their Union activities. The grievances were heard by the GSB from April 1997 until March 1999, and there were many days of testimony. On March 12, 1999, the parties settled all of these grievances and entered into Minutes of Settlement. The settlement did not include the outstanding July 3, 1998 grievance, which also alleges discrimination and harassment based on Union activity.
The preamble of the Minutes of Settlement state that it is in “full and final settlement of all matters in dispute, without prejudice or precedent, and without any admission of liability or culpability of any of the parties…” Paragraph 5 of the Minutes of Settlement states as follows:
- All parties to these Minutes of Settlement agree that all matters in dispute between them raised in the grievances have been resolved and no further actions respecting these matters will be taken under the common law, the collective agreement, statute or otherwise.
Positions of the Parties
- The Employer
The Employer objects to the Union’s attempt to introduce and rely upon the facts and circumstances relating to the 1996 grievances because they were fully and finally settled. The Employer submits that the intent of the parties, as evidenced by the wording of the Minutes of Settlement, was to resolve all of the issues raised by the 1996 grievances and that no party was to rely on the allegations or circumstances surrounding those grievances at a future point in time. In support of this position, it cites to Paragraph 5 of the Minutes of Settlement, and contends that it precludes the Union from raising these matters in a subsequent proceeding. In its view, Paragraph 5 prohibits the Union not only from re-litigating these grievances in another forum, but also from raising and relying on the facts and circumstances underlying those grievances. The Employer submits that the wording of the Minutes of Settlement and the intent of the parties, as expressed in that agreement, control this dispute and is paramount to any case law of the Ontario Labour Relations Board cited by the Union.
The Employer further contends that because the 1998 grievance existed at the time of settlement, the Union was well aware that, by settling the 1996 grievances, it could not later rely upon those circumstances to support the 1998 claim. It submits that the Union knew that when it settled those grievances, the matters were fully resolved and were not to be raised again in the future. In its view, any right the Union may have had to rely on these matters was waived under the terms of the settlement. In support of its position, the Employer cites to Knight v. Indian Head School Division No. 19 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 (S.C.C.) and Re Marnwood Lifecare Centre and Canadian Union of Public Employees (1997), 1997 CanLII 24955 (ON LA), 62 L.A.C. (4th) 1 (Briggs).
The Employer further contends that there are important labour relations principles at stake in this matter, specifically the encouragement of settlements between the parties and respecting the finality of settlements. The Employer submits that the parties to the collective agreement, through the adoption of the mediation-arbitration process for the resolution of most grievances, have recognized the importance of trying to settle disputes and that the parties have embraced the goal of settlement whenever possible. Further, it submits that once a settlement is reached, the settlement is final and binding. In its view, allowing the Union to proceed to adduce evidence about the 17 settled matters would undermine the Employer’s confidence in settlements and undermine the entire settlement process.
In support of this contention, the Employer cites to Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville); OPSEU (Union Grievance) and Ministry of Natural Resources/Management Board of Cabinet, GSB No. 1526/91 and 1294/92 (Kaplan, Vice-Chair); OPSEU (Pitirri) and Ministry of Correctional Services, GSB No. 1685/92 et al. (Kaplan, Vice-Chair).
The Employer contends that a balancing of the competing interests is required as set out in Re Hotel-Dieu Grace Hospital and Ontario Nurses’ Association (1997), 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (M. Picher), and that the balance favours its objection to the admissibility of the evidence. It points out that the matters sought to be introduced by the Union are now over six years old and that the Employer had believed them to be resolved. To allow this evidence into the record to support the grievors’ current claims, it submits, would be highly prejudicial to it. In further support it cites OLBEU (Gamble) and Liquor Control Board of Ontario, GSB No. 1635/96 (Gray, Vice-Chair)
- The Union
The Union asserts that it is not attempting to re-litigate the 17 grievances that were settled and it seeks no remedy in relation to those matters. Instead, it is attempting to lead evidence of the Employer’s past actions to establish a continuity of conduct indicative of anti-union animus. The Union submits that the evidence is relevant, probative and essential to its case. It contends that a ruling against admissibility would greatly impact its ability to present its case.
The Union asserts that the nature of its allegations in this case – that the Ministry engaged in a pattern of conduct against the grievors based on anti-union animus – is identical to an unfair labour practice proceeding before the Ontario Labour Relations Board. Accordingly, it submits that the jurisprudence of that Board should be followed. It notes that the OLRB has long held that although no remedy may be sought for unfair labour practice matters that have been settled or withdrawn, evidence about them is admissible for the limited purpose of establishing a pattern of unlawful activity. In support, the Union cites to Craftline Industries Limited [1977] OLRB Rep. April 246; Comstock Funeral Home Ltd. [1981] OLRB Rep. Dec. 1755; Maplehurst Hospital Limited [1986] OLRB Rep. Feb. 247 and Royal Homes Limited [1992] OLRB Rep. Feb. 199.
The Union submits that a settlement does not obliterate the fact that certain events happened and because those events are relevant to the subsequent matters, which are currently before this Board, the earlier events are admissible into evidence. The facts surrounding the 17 grievances, the Union argues, cast light on the Employer’s later conduct which might otherwise appear ambiguous.
The Union argues that there is nothing unusual about the wording of the March 1999 settlement which would negate the Union’s ability to rely on these matters to support its current claim. It asserts that if the evidence is barred, it will create a disincentive to settle matters involving an ongoing pattern of discrimination. It submits that although the Union hoped, at the time of settlement, that the discrimination would stop, that did not occur and new instances arose requiring the filing of new grievances. It contends that the settlement should not shield the Employer from its prior actions and that the Employer should not be allowed to hide behind it to mask its history of anti-union conduct. The Union contends that any inconvenience to the Employer in having to defend these matters is outweighed by the importance of the evidence to establishing a patter of anti-union conduct.
Decision
There clearly are conflicting interests at stake in determining whether evidence concerning the 17 settled grievances from 1996 should be admitted to support the Union’s claim that there is a pattern and practice of discrimination against the grievors on the basis of their Union activity. The Union claims that admission of the events which led to those grievances is critical to its case, and is required to put into context the otherwise ambiguous actions involved in the grievances presently before the Board. The Employer claims that it should not now, long after the fact and long after the matters were settled, be forced to relitigate matters which were fully and finally resolved.
The GSB has long recognized the critical importance of settlements and their enforcement. In OPSEU (Union Grievance) and Ministry of Natural Resources/Management Board of Cabinet, GSB No. 1526/91, 1294/92 (Kaplan, Vice-Chair), the Board referred to the “[s]anctity of [s]ettlements”, concluding at p. 31 that “[I]t is absolutely essential that the Board give effect to final settlements reached between the parties.” The Board cited to Landry-King, GSB No. 1593/84 (Knopf, Vice-Chair) at pp. 8-9, quoted at p. 31:
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.
Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. As the Board held in OPSEU (Pitirri) and Ministry of Correctional Services, supra at p. 12: “With respect to those [grievances] covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances that have been resolved by their terms will not reappear in some different guise.” Accord, Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville).
Under the jurisprudence of the Ontario Labour Relations Board, however, cited by the Union, it is clear that evidence concerning settled or withdrawn complaints may be “admitted for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity.” Craftline Industries Limited, [1977] OLRB Rep. April 246. In Comstock Funeral Home Ltd. [1981] OLRB Rep. Dec. 1755, the Board explained the rationale of that holding as follows, at p. 1758:
The settlement of a complaint continues to be advantageous to a party for all of the reasons one would normally contemplate settlement. But a party is not entitled to think that by the settlement of a particular complaint, it thereby obliterates the past, and can act thereafter with relative impunity. Rather, having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement.
In the Comstock case, the employer took a number of adverse actions against employees immediately after certification of the union which were the subject of unfair labour practice complaints. On the second day of the hearing, the parties were able to reach a settlement on all of the matters in dispute and all of the complaints before the Board were withdrawn. The Board concluded: “From this development…it must have appeared to the complainant that the respondent had finally accepted the relationship, and was prepared to get on with the amicable negotiation of a collective agreement.” (p. 1757) Three days after this settlement, however, the employer took a number of new adverse actions and “not a word was said to the complainant in the settlement discussions three days before in regard to these pending new developments.” (p. 1757) At the hearing on these new issues, the complainant claimed the right to adduce evidence on all of the allegations contained in its prior complaints, on the sole basis that they were relevant in demonstrating through a pattern of conduct the anti-union animus necessary to sustain the present complaint. It was not seeking any form of relief with respect to the prior complaints. As noted above, the Board allowed the complainant to adduce this evidence, concluding that if the matters which were settled “are arguably relevant to either support or defend a fresh complaint arising from subsequent developments, the events themselves continue to be provable and admissible in evidence.”(p. 1757)
In my view, the rationale of the Board in Comstock does not apply to the instant case, at least as it pertains to the July 1998 grievance. The reason it does not apply is because, at the time the 1996 grievances were settled in March of 1999, the July 3, 1998 grievance had already been filed. It was not a “fresh complaint” arising after the settlement or a “subsequent development.” At the time of the settlement, it was an existing and ongoing grievance. Thus, the underlying premise of the Board’s conclusion in Comstock – that future conduct of a controversial kind can force an employer to litigate its entire pattern of conduct to that point – does not apply when the conduct complained of exists at the time of settlement, as it did here in relation to the 1998 grievance.
Further, the parties to the settlement of a grievance may waive the right to raise or rely upon the matters which led to a grievance in the future. The Employer submits that that is exactly what the parties did in paragraph 5 of the Minutes of Settlement, which states:
- All parties to these Minutes of Settlement agree that all matters in dispute between them raised in the grievances have been resolved and no further actions respecting these matters will be taken under the common law, the collective agreement, statute or otherwise.
This paragraph may be interpreted broadly to hold that “further actions respecting these matters” includes raising them to support the allegation of anti-union animus in the present grievances. It may also be interpreted narrowly to mean that no further independent claims or actions on these matters would be taken.
Under the specific facts of this case, I conclude that the broader interpretation is what the parties’ intended. In March of 1999, after spending many days litigating these 17 grievances over a period of two years, the parties fully resolved these matters and it makes little sense to presume that the parties did not intend to preclude their use to support the existing 1998 grievance. By consenting to a “full and final” settlement and agreeing that “no further actions respecting these matters will be taken…” the Union cannot now rely on those settled matters to support a grievance that existed at the time these matters were settled. There is no evidence that anything was said to the employer to the effect that, despite the settlement, the facts underlying the settled grievances would be used to establish anti-union animus in relation to the 1998 grievance. Indeed, it would be tantamount to bad faith to settle a matter but plan to rely on the facts which underlie it to support an existing grievance. Nor, as noted above, does the rationale of Comstock support that view. Under these facts, I cannot presume that that was the parties’ intent when it entered into paragraph 5. Accordingly, I conclude that the broader interpretation of paragraph 5 – which precludes a party from raising and relying on these matters again – was intended by the parties.
The Union, at the time of the settlement, could have reserved the right to rely on these 17 events to support the 1998 grievance but did not do so. As stated in Re Marnwood Lifecare Centre and Canadian Union of Public Employees, Local 2225-06, supra at p. 6:
When parties enter into negotiations or mediation, it is open to each to establish ground rules or caveats regarding any number of matters… However, this did not occur in this matter. The issue before me might well be different if that were the case.
By not doing so, the Union cannot now rely upon those settled matters to support the 1998 grievance, which existed at the time of the settlement.
The issue still remains, however, whether the settled 1996 grievances may be used to support the remaining November 2000 and 2001 grievances. Although they involve matters which arose after the settlement (and thus the rationale of Comstock would arguably apply), I conclude that the evidence should not be admitted. First, the complaints that arose in 1996 arose more than four years before the November 2000 grievance. The situation in Comstock was vastly different. In that case, the events which gave rise to new unfair labour practice complaints occurred three days after the earlier complaints had been settled and within a few months of their occurrence. Under this scenario, the Board ruled that the respondent could not hide behind the settlement and that the respondent “must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point.” This was “especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement.” The same is simply not true after the passage of so many years.
In Maplehurst Hospital Limited, supra, the OLRB allowed the applicant to lead evidence in relation to events occurring prior to an earlier withdrawal of a certification request, in accordance with the reasoning of Comstock, supra. Although the exact dates that these earlier events occurred is not specifically stated in the decision, the settlement was dated November 22, 1985. The Board’s decision in Maplehurst Hospital was dated February 24, 1986. Accordingly, it seems likely that the earlier events took place within months of the subsequent events, certainly not years later.
In none of the cases cited by the Union is there a gap of four years between events, or even a gap of substantial duration. Given that the evidence sought to be lead is to establish a pattern of unlawful conduct, the passage of so much time leads me to conclude that the rationale of Comstock should not be followed in these particular circumstances. There may well be other cases where a different result would be reached, but under these specific facts, I conclude that evidence concerning the 17 settled grievances from 1996 should not be admitted.
The passage of so much time also requires consideration of a number of other factors in deciding the admissibility of evidence. In this regard, the decision in Re Hotel-Dieu Grace Hospital and Ontario Nurses Association, supra, provides useful guidance. The grievor in that case, in support of his claim of racial discrimination, alleged that the Employer had engaged in a pattern of racial discrimination over a substantial period of years, including incidents which arose six years before the grievance was filed. The Employer objected to the admission of this evidence, contending that the evidence should be limited to the nine-day period set out for the filing of grievances under the collective agreement, or in the alternative, to the six month period before the grievance as set out in the Ontario Human Rights Code.
The Board ruled that “it is important in this case to strike a fair balance between the concerns of both parties” and considered that “the prospect of opening the hearing to a full six years of incidents and the voluminous evidence that would result, gives us serious pause, both from an equitable and a procedural standpoint.” ( p. 2) The Board also expressed some “sympathy for the concerns of the Union”, stating that “[w]e appreciate that when the success of a grievance rests on showing a pattern of discrimination which would establish the tolerance, if not encouragement, of a poisoned atmosphere in the workplace, some scope must be allowed for evidence which would pre-date the nine-day limitation period contemplated in … the collective agreement”, although not the six years sought by the Union. ( p.2). Instead, the Board directed that “particulars and evidence be limited to a period commencing three years period to the date the grievance was filed…”
The same kind of balancing of interests is appropriate here. The events of 1996 occurred more than four years before the November 2000 grievance before me and the probative value of that evidence, given the passage of so many years, is relatively limited.
On the other hand, the prospect of opening this hearing to the 17 matters which arose in 1996 and were settled in 1999, after a lengthy hearing on those same issues, gives this Board “serious pause, both from an equitable and a procedural standpoint.” Procedurally, it would very significantly lengthen the hearing. From an equitable standpoint, requiring the Employer, who believed that these 17 matters were fully and finally settled as of March 1999, to re-defend these matters at this late date would be inequitable and prejudicial. Considering the competing interests involved, the balance of interests favours not admitting the evidence concerning the 1996 settled grievances.
I also note that the Board in Hotel-Dieu Grace Hospital found it inappropriate to admit evidence concerning the events which gave rise to the complaint of another employee, “to the extent that that matter, including a companion grievance filed by the Union, was resolved on a without prejudice basis.” (p.3). The Board stated that “[w]e must have serious pause before proceeding down a road which might involve us making adverse findings against the employer in respect of its treatment of another employee when that very issue has been quieted by a mutual settlement.” (p.2) Although the settled matters in this case concern the grievors rather than another employee, the same concerns are present in this case.
Accordingly, under the specific facts of this case, and for all of the reasons set forth above, I sustain the Employer’s objection to the admission of evidence concerning the facts and circumstances surrounding the 17 grievances which arose in 1996 and which were settled in March of 1999.
Dated at Toronto, this 11th day of March, 2002.