GSB# 2445/02

UNION# 2003-0999-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

February 18, 2003.

DECISION

The employer contends this union grievance is barred by a memorandum of settlement negotiated by the parties in the aftermath of a decision allowing an earlier union grievance. This award deals exclusively with the impact of the settlement on the instant grievance.

I

Both grievances arose against the backdrop of the impending privatization of driver examination services. Classified employees were asked in November of 2001 to make an election, under Appendix 18 of the collective agreement, between taking an enhanced severance package and following their jobs to the receiving employer who had not yet been selected. In December of 2001, a Confidential Information Memorandum (CIM) was issued to qualified bidders. The CIM contained a timetable indicating the successful applicant would be announced in April of 2002 and would begin providing services later that year. This timetable was not met. The successful bidder was selected in February of 2003 and has not yet begun operation.

The instant grievance, dated January 8, 2003, concerns the classified employees who made an election in November of 2001. The grievance states:

The Union grieves that the Ministry has acted unreasonably and is in violation of the Collective Agreement in that they have not allowed employees in Drivers and Vehicles who were put to an election (regarding Appendix 18) in 2001 to make a new election (re-elect) despite the lengthy delays in the planned transfer of services.

The earlier grievance is dated January 25, 2002 and was assigned GSB File No. 0211/02. That grievance challenged the employer’s refusal to convert unclassified employees to classified status after the release of the CIM in December of 2001. In a decision dated October 24, 2002, I allowed the grievance, directed the employer to convert all unclassified driver examiners who had completed two years of service by September 17, 2002, and remained seized of any issues arising in the implementation of the award.

After receiving the conversion decision, the parties entered into a memorandum of settlement dated December 19, 2002. The preamble states:

WHEREAS the Union filed a grievance dated January 25, 2002; and

WHEREAS the Grievance Settlement Board ("GSB") issued a decision on the grievance on October 24, 2002; and

WHEREAS the parties wish to resolve any and all issues and matters related to the decision on a full and final basis;

THEREFORE the parties agree to full and final settlement of all outstanding matters regarding GSB#0211/01 without precedent and without prejudice on the following terms …

Much of the settlement deals with details about converting unclassified employees to classified status. A process is set out for resolving disputes about who was entitled to conversion as of the date of the settlement. Provision is made for conversion to continue until the successful bidder was chosen. The settlement allows some converted employees to elect to transfer to the new service provider, but denies this election to others, depending upon the date of conversion. The rights of converted employees who elect to transfer to the new employer are specified as are the rights of those who do not.

Three paragraphs of the settlement are of particular interest:

11. The Employer agrees that all employees that elect to be transferred to the new service provider, including those who so elected in 2001, shall receive their mandatory job offer based on the 2002 rate of pay.

12. The parties agree that the terms of this Settlement satisfy all issues arising out of GSB decision #0211/02 and hereby release and, subject to disputes respecting implementation of this Settlement, forever discharge the Crown in Right of Ontario and the Employer, its servants, agents and directors from all grievances, actions, claims or complaints of every nature and kind respecting issues arising out of GSB decision #0211/02 including but not limited to Appendix 9 and 18 and Article 20 of the collective agreement.

13. The Union agrees that all outstanding individual, group and union grievances related to GSB# 0211/02 are hereby withdrawn. (emphasis added)

Re-election is not addressed in the memorandum of settlement, but it was mentioned during the preceding negotiations. Counsel for the union raised this matter in a voice message left for employer counsel on November 5, 2002. The transcription of that messages reads as follows:

The view is that in fact those people who … last November made their elections should be entitled to a re-election and the view is that their decision [was] in part based on the fact that there’s only 300 of us roughly who are classified and there are all these jobs there and I’ll take my chances … Now it’s the other unclassified jobs and letting somebody take guaranteed jobs that may affect people’s decisions …

This cryptic message suggests employees in 2001 may have elected to take enhanced severance pay, rather than a guaranteed job offer from the new service provider, based upon the assumption they would be able to secure a job offer from the new employer without this guarantee. The concern identified in the message is that such employees might have decided otherwise if they had known that a large number of unclassified employees would be converted and allowed to elect to receive a mandatory job offer.

A written proposal from the union to the employer, dated November 8, contained a provision dealing with re-election:

The Employer agrees that all employees who made an election respecting the CIM in November 2001, regardless of whether they elected to opt in or out, shall have the right to re-elect as to whether or not they wish to be included in the CIM. This re-election shall be carried out at the same time as the election in paragraph 5 above. The Employer further agrees that employees who opt to be included in the CIM shall receive their mandatory job offer at the 2002 rate of pay. (emphasis added)

The employer’s counter proposal, dated November 14, 2002, made no mention of re-election and the union did not resurrect the subject in its next proposal a week later. The subject of re-election did not surface again in any proposal or other communication between the parties.

II

The union agreed in paragraph 12 of the memorandum of settlement to release the employer from “all grievances, actions, claims or complaints … respecting issues arising out of GSB decision #0211/02 including but not limited to Appendix 9 and 18 and Article 20 of the collective agreement” (emphasis added). The parties now dispute the scope of this release.

At a minimum, the release bars the union from grieving any of the issues posed by the conversion grievance and left unresolved by the decision about conversion. These issues involve unclassified employees, for whom the union sought conversion, and include the remedial consequences of my determination that the employer violated the collective agreement by refusing to convert anyone after the issuance of the CIM. One such remedial matter is the entitlements, if any, of converted employees under Appendix 9 and Appendix 18 of the collective agreement. Grievances over any of these matters are barred by the release clause. This much is agreed. The dispute is about whether the release extends beyond claims made by the union on behalf of employees seeking conversion, so as to encompass the present grievance concerning classified employees who made an election in November of 2001.

Counsel for the employer contended the memorandum of settlement unequivocally bars the election grievance. Counsel argued an expansive reading of the release is supported by other provisions in the settlement. Referring to the third paragraph of the preamble, saying the parties wished to resolve “any and all issues and matters related to the decision” about conversion, counsel suggested a matter may be related to a decision without being a central feature of it. As to paragraph 11, saying offers of employment based on 2002 rates of pay shall be made to classified employees who elected in 2001 to take jobs, counsel submitted this provision implies these employees would be bound by the choices they made in 2001. In the alternative, the employer relies upon the evidence of negotiation history recounted above.

Counsel for the union argued the only issues “arising out of” the conversion decision are those concerning employees seeking to be converted. Counsel contrasted the reference in paragraph 12 to claims “arising out of” the conversion decision with the reference in paragraph 13 to outstanding grievances “related to” that decision. Urging me to ignore the evidence of negotiation history, union counsel contended it would not assist the employer even if taken into account.

III

The release clause in paragraph 12 of the memorandum of settlement bars the union from pursuing “grievances, actions, claims or complaints … respecting issues arising out of” the decision about conversion. The crux of the dispute is the meaning of the phrase “arising out of.” In normal parlance, these words connote a relationship between two things without specifying precisely how they are related. Where the exact connotation of the phrase is not otherwise specified, it is best determined by reference to context.

The memorandum of settlement was negotiated in the aftermath of the decision allowing the conversion grievance and leaving unanswered a number of subsidiary questions posed by that grievance. Paragraph 12 releases the employer from claims “arising out of” the decision. In this setting, the most obvious meaning of the release is that it bars claims forming part of the conversion grievance and not determined by the initial ruling. These claims are the ones most obviously arising out of the decision about conversion. This reading of “arising out of” rests upon the premise that the claims released by the memorandum of settlement fall within the range of those left open by the decision, unless the parties indicated the release was intended to have a broader scope.

Does anything in this memorandum of settlement show the parties intended paragraph 12 to bar claims not contested by the conversion grievance, including the claim for re-election now advanced by the union on behalf of employees who made an election in 2001? The preamble’s reference to resolving “matters related to the decision” is too vague to provide any clear guidance when interpreting the release. Nor is any such guidance found in paragraph 11 guaranteeing offers of employment, based upon 2002 rates of pay, to employees who elected in 2001 to take jobs with the new service provider. This paragraph does not mention those making the opposite election in 2001 and contains no clear indication that employees making either election are barred from seeking a right of re-election.

Negotiation history shows the union sought a right of re-election and failed to obtain it. By merely withdrawing its proposal, the union did not signal it was relinquishing the right to seek in arbitration what it had failed to win through negotiation. There is no evidence of any communication between the parties as to whether a grievance about re-election was foreclosed. The union was not told the withdrawal of its proposal was understood by management to imply there would be no such grievance. The employer did not request an assurance from the union that it would not grieve the matter of re-election; and the union offered no such assurance.

In short, there is nothing in the memorandum of settlement or negotiation history to rebut the presumption that the claims released by the settlement do not extend beyond those posed by the conversion grievance and left unresolved by the resulting decision. Accordingly, I conclude the union is not precluded from claiming a right of re-election.

Dated at Toronto this 4th day of March 2003.