GSB# 2003-2259

UNION# 2003-0701-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Granholm)

Union

• and -

The Crown in Right of Ontario (Ministry of Tourism)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Sean Kearney Senior Counsel Ministry of Government Services

HEARING

September 19 & 20, 2005.

Decision

In a grievance dated April 17, 2003, Mr. K. Granholm claims that the Employer reneged on a term of a settlement which the parties negotiated on November 26, 2002. The essence of his claim is that at a second stage grievance meeting on November 26, 2002, the Employer agreed to interview him for a Maintenance Mechanic position which the parties anticipated would soon be posted. Mr. Granholm did apply for the Maintenance Mechanic position that was posted eventually, but was not given an interview. In defending against the grievance, the Employer, among other things, takes the position that it did not agree on November 26, 2002, to interview Mr. Granholm for the Maintenance Mechanic position. There was no challenge to my jurisdiction to hear and determine this grievance.

Since September 1999, Mr. Granholm had been employed on a series of unclassified contracts as a Manual Worker at the Old Fort William Historical Park (“the Fort”). By letter dated July 22, 2002, the General Manager of the Fort advised Mr. Granholm that the position of Manual Worker was being eliminated effective immediately and that he would not be recalled after the two-week notice period. Mr. Granholm challenged this decision by grieving on September 3, 2002, that he had been “wrongly terminated”. It was the second stage meeting of this grievance which took place on November 26, 2002. Ms. J. Pilley and Mr. Granholm attended the meeting for the Union. Ms. Pilley has been a staff representative with the Union since April 1993. Mr. L. Allen, Mr. P. Boyle, Ms. P. Brophy and Ms. E. Jeffrey were present for the Employer. Mr. Allen, who was then a Human Resources Consultant with the Ministry of Tourism, Culture and Recreation (“the Ministry”), was the Employer’s designee for the meeting. He left the Ontario Public Service in July 2003. Mr. Boyle was the Acting General Manager of the Fort. Ms. Brophy is a manager at the Fort and Ms. Jeffrey was a Human Resources Representative with the Ministry. As will become evident when I refer later in more detail about what occurred at the meeting, the significant discussions took place between Ms. Pilley and Mr. Allen when they were by themselves.

There is no dispute that when the second stage meeting was completed on November 26, 2002, both parties understood that Mr. Granholm’s grievance had been resolved. The Union asserts that Mr. Allen had agreed that Mr. Granholm would be interviewed for the Maintenance Mechanic position, a matter with which Mr. Allen disagrees. The parties left the meeting with the understanding that the settlement would be incorporated into a written document. The parties did enter into a Memorandum of Settlement (“the Memorandum”) dated December 5, 2002. It was executed by Mr. Boyle for the Employer, by Ms. Pilley for the Union and by Mr. Granholm as the grievor. The Memorandum contains four terms, with a preamble that reads, “The parties agree to the following terms and conditions as full and final settlement of the above captioned grievance and all related matters. The first term is that the Employer will pay a lump sum payment to Mr. Granholm. The remaining terms, including a confidentially provision, are not relevant for our purposes. Absent from the Memorandum is any reference to an agreement by the Employer to give Mr. Granholm an interview for a Maintenance Mechanic position.

When this matter first came on for hearing, the Employer took the position that even if Mr. Allen had agreed verbally that Mr. Granholm would be interviewed for a Maintenance Mechanic position, the Union could not enforce such an agreement because it was not reflected in the Memorandum. Assuming the Employer had verbally agreed to interview Mr. Granholm for a Maintenance Mechanic position, the parties made submissions based on the Union’s best case. In a decision dated March 22, 2005, I indicated that “In order to dismiss Mr. Granholm’s grievance as requested by the Employer, I would have to conclude that there is no legal construct within which an oral agreement to give an interview could have any validity in these circumstances. I am not prepared to reach such a conclusion. In my view, it is appropriate to hear the evidence on whether the parties agreed on November 26, 2002, that Mr. Granholm would get an interview for a position that was soon to be posted and their intentions in relation to whether such an agreement was to prevail notwithstanding the lack of reference to it in the Memorandum”. The hearing was scheduled to continue on September 19 and 20, 2005.

Prior to the September hearing dates, the parties addressed by way of written submissions the issue of whether Mr. J. Hickin, the successful applicant who is still employed as the Maintenance Mechanic, was entitled to third party notice of the hearing. In essence, the Union argued that he was not entitled to notice because the issue at this stage of the proceeding only related to whether the Employer contravened a settlement, a matter in which Mr. Hickin did not have an interest. In a decision dated September 9, 2005, I concluded that Mr. Hickin was entitled to third party notice in the circumstances. The Union’s goal is to challenge the validity of the competition in which Mr. Hickin secured the Maintenance Mechanic position and to ultimately secure that position for Mr. Granholm. Given the remedy the Union is seeking, it was my view that Mr. Hickin had a legal interest in the proceeding and was entitled to notice. Mr. Hickin attended both days of hearing as an observer only, electing not to participate.

In support of its position that the Employer agreed on November 26, 2002, to interview Mr. Granholm for a Maintenance Mechanic position, the Union called Ms. Pilley and Mr. Granholm to testify. The Employer called Mr. Allen and Mr. Boyle as witnesses. Given that these witnesses were testifying about events which occurred almost three years earlier, it is not surprising that there were conflicts in the evidence. There were a number of conflicts between the testimony of Ms. Pilley and the testimony of Mr. Allen. There were conflicts also between the testimony of Ms. Pilley and the testimony of Mr. Granholm. None of the witnesses took contemporaneous notes of the relevant events and they were dealing with what would have appeared to them on November 26, 2002, to be a relatively straightforward matter. I am satisfied that the conflicts did not arise because witnesses intended to deceive me about certain matters. In my view, the witnesses testified truthfully about their recollection of what had occurred. In determining the facts, I utilized the usual criteria for resolving conflicts in the evidence, including assessing what is most probable in the circumstances, having regard to the totality of the evidence.

The grievance meeting on November 26, 2005, took place at the Employer’s premises. It started with the Ms. Pilley providing the Union’s perspective on the grievance. The Employer then provided its perspective. Since each side was relatively brief, this phase of the meeting did not take long. Mr. Allen and the other members of the Employer side then left the room to discuss by themselves the circumstances giving rise to the grievance. It appears that there was some recognition by the Employer representatives that Mr. Granholm’s Manual Worker position was eliminated too early. The Employer was in the process of reorganizing the workplace with the result that many jobs at the Fort were being eliminated and as many as eight new jobs were to be created. The Employer was prepared to resolve the grievance with a monetary settlement based on how long Mr. Granholm should have kept working. The Employer side returned to the room and Mr. Allen and Ms. Pilley left the room to speak in private.

Mr. Allen spoke to Ms. Pilley about the reorganization, the creation of new jobs and admitted that the Employer moved too quickly when it laid off Mr. Granholm. He indicated that the Employer was prepared to compensate Mr. Granholm and they discussed compensation for the four months from August to the end of November 2002 as a basis for resolving the grievance. Ms. Pilley understood that the new jobs, including a Maintenance Mechanic position, would be posted soon. Ms. Pilley then discussed the monetary offer with Mr. Granholm. He was satisfied generally with the monetary element but he mentioned that this resolution still left him without a job. Ms. Pilley talked to him about asking for an interview for the Maintenance Mechanic job. Since Mr. Granholm was interested in obtaining an interview for that position, Ms. Pilley went to discuss that issue with Mr. Allen, as well as how the monetary payment would be structured.

For our purposes, the next private discussion between Ms. Pilley and Mr. Allen is particularly significant. Ms. Pilley raised the issue of how the payment would be structured and indicated that Mr. Granholm wanted to be interviewed for the Maintenance Mechanic position. The structure of the monetary payment was easily resolved. With respect to the interview, Ms. Pilley testified that they discussed Mr. Granholm’s skills and abilities, as well as the work he did at the Fort. According to Ms. Pilley, Mr. Allen then said, “With his skills and abilities, he would be interviewed; however there is no guarantee that he would get the job”. Ms. Pilley agreed in cross-examination with the suggestion that after a discussion about Mr. Granholm’s skill and ability, Mr. Allen indicated that there was no reason why Mr. Granholm could not apply for the Maintenance Mechanic position. When this discussion ended, Ms. Pilley believed that the financial and interview issues were resolved and that the grievance was settled. She testified that there was no doubt in her mind that Mr. Allen agreed as part of the settlement that Mr. Granholm would be interviewed for the Maintenance Mechanic position. Mr. Allen went to speak with the Employer side and Ms. Pilley spoke with Mr. Granholm. Mr. Granholm testified that he agreed to the settlement when Ms. Pilley told him that he would be getting an interview for the Maintenance Mechanic position. Both sides went back into the meeting room for a general discussion before the meeting ended. The precise terms of the settlement were not discussed at that time. It was agreed that the Employer would draft the settlement and send it to the Union for execution.

Mr. Allen’s recollection of his discussion with Ms. Pilley regarding an interview is quite different. He testified that there was no discussion about giving Mr. Granholm an interview and that the focus was essentially on the monetary issue. Mr. Allen testified that there was a discussion about giving Mr. Granholm the ability to apply for jobs that were soon to be posted. He discussed this with Mr. Boyle and the Employer indicated Mr. Granholm could apply for the upcoming positions. Mr. Boyle testified that Mr. Allen did not raise the issue of an interview with the Employer side and that the Employer did not agree to interview Mr. Granholm for the Maintenance Mechanic position as part of the settlement. He testified that the Employer side was asked if it would consider an application from Mr. Granholm and it responded in the affirmative. Mr. Boyle thought that this discussion occurred near the end of the meeting.

Once an accurate calculation of the amount owing to Mr. Granholm was made, Mr. Allen drafted the settlement document and sent it to Mr. Boyle to review. The draft Memorandum was then sent to Ms. Pilley. Ms. Pilley testified that the absence of a reference to an interview did not concern her because she trusted what Mr. Allen had said and she had no reason to believe that the management team would not follow through with providing the interview. She did not contact Mr. Allen or anyone in management to discuss the written document. She signed the Memorandum and contacted Mr. Granholm to have him come in to sign it. In her examination-in-chief, she responded “no” when asked if Mr. Granholm had raised an issue with her about the absence of a reference to an interview. She said she could not recall to essentially the same question asked during cross-examination. Mr. Granholm testified that he did question her about the interview issue by asking what would happen if the Employer reneged. He indicated that he signed the Memorandum when Ms. Pilley responded that another grievance would be filed. Ms. Pilley agreed in cross-examination that the terms of a settlement usually are written into a settlement document and that it was not typical to leave out important terms.

The Employer eventually did post eight new positions. Mr. Granholm applied for the Maintenance Mechanic and the Facility Caretaker positions. He handed both applications to Ms. Brophy in separate envelopes. Mr. Granholm testified that he talked to her about the agreement to interview him for the Maintenance Mechanic position and that on the envelope containing his application for that position she wrote, “will be interviewed”. He indicated that she did not make any notation on the envelope containing his application for the Facility Caretaker position.

Although Mr. Granholm underwent some testing and a preliminary interview for the Facility Caretaker position by a third party, he did not reach the final interview stage for this position. When he had not been contacted about the Maintenance Mechanic position, he contacted Ms. Pilley and expressed his concern. There were discussions with Mr. Allen which subsequently occurred which the Union submitted were of some significance. Ms. Pilley contacted Mr. Allen by phone and advised him that interviews were taking place and expressed surprise that Mr. Granholm had not received an interview. Ms. Pilley testified that Mr. Allen indicated that he was surprised and that he would contact Mr. Boyle and get back to her. When she did not receive a return call from Mr. Allen, Ms. Pilley again attempted to contact him and they did eventually have another discussion. According to Ms. Pilley, Mr. Allen advised her that Mr. Boyle was no longer the Acting General Manager and that he did not have the same kind of relationship with his replacement. Mr. Allen told her that he would keep on trying. Mr. Granholm kept in contact with Ms. Pilley and before she went away on Union business, she told him that he could call Mr. Allen during her absence. Mr. Granholm did call Mr. Allen to tell him that he still had not received an interview. He testified that Mr. Allen told him that he was surprised that he did not get an interview and, in essence, indicated that he would contact someone to find out what was going on. Ms. Pilley attempted unsuccessfully on her return to contact Mr. Allen and she eventually discovered that Mr. Allen was no longer with the Ministry. It is clear from his testimony that Mr. Allen had no recollection of these subsequent conversations with Ms. Pilley and Mr. Granholm. Ms. Pilley did not attempt to contact the local management about an interview for Mr. Granholm. Mr. Granholm filed the grievance before me when he learned from a steward that the Employer had filled the Maintenance Mechanic position.

I have no doubt that Ms. Pilley discussed the matter of an interview for the Maintenance Mechanic position with Mr. Allen on November 26, 2002 and that she believes that he agreed to an interview. I find as well that Ms. Pilley and Mr. Granholm subsequently discussed with Mr. Allen, in the way they described in their testimony, the failure of the Employer to interview Mr. Granholm for the position. Mr. Allen’s testimony about these discussions merely reflects an inability to recall discussions which occurred a few years earlier. However, although I am prepared to accept the Union’s evidence in a number of areas where there are conflicts, it is my conclusion that the Union has not established that the Employer agreed on November 26, 2002, to provide Mr. Granholm with an interview for the Maintenance Mechanic position.

According to Mr. Boyle, the decision maker for the Employer at the November 26, 2002 grievance meeting, the issue of guaranteeing an interview was not discussed by the Employer side and he never agreed to such a term as a part of the settlement. Although Mr. Allen’s recollection of some events is faulty, he was quite clear that he did not agree to guarantee an interview for Mr. Granholm. The absence of a reference to an interview in the Memorandum, a document drafted by Mr. Allen and signed by Mr. Boyle on behalf of the Employer, serves as an indication in these circumstances that they did not agree that the Employer would give Mr. Granholm an interview. If Mr. Allen had agreed to such a term on November 26, 2002, it is unlikely that he would have neglected to refer to an interview in the Memorandum.

Ms. Pilley’s testimony about her discussions with Mr. Allen, by itself, illustrates that they were not ad idem on the issue of the interview. According to her, she raised the issue of an interview with Mr. Allen and after they discussed Mr. Granholm’s skills and abilities, Mr. Allen said, “With his skills and abilities, he would be interviewed; however there is no guarantee that he would get the job.” Although Ms. Pilley believed that Mr. Allen had agreed to the interview, the comment she attributes to Mr. Allen is rather ambiguous. The simple expression by Mr. Allen in this context that Mr. Granholm “would be interviewed” does not necessarily mean that he agreed to an interview as part of the settlement. It is most probable, having regard to the totality of the evidence, that Mr. Allen was merely expressing his opinion that Mr. Granholm would get an interview given Ms. Pilley’s indication of his skill and ability. Given the ambiguous words used by Mr. Allen and the lack of a clear indication of his intention, it is difficult to conclude that the Employer agreed to interview Mr. Granholm for the Maintenance Mechanic position. If Ms. Pilley had inquired about the absence of a reference to an interview in the Memorandum, Mr. Allen or Mr. Boyle would probably have indicated that the Employer did not agree to such a term. The most reliable indication and generally exclusive indication of the terms of a settlement is the written terms of settlement. Here, there is no reference to an interview in the Memorandum and there is no unambiguous evidence establishing that entitlement to an interview was an additional feature of this settlement.

None of the events which occurred after the execution of the Memorandum support the Union’s contention that the Employer agreed to interview Mr. Granholm. By writing, “will be interviewed” on the envelope containing his application for the Maintenance Mechanic position, Ms. Brophy was likely simply recording the information from Mr. Granholm when he gave her his application. Mr. Allen’s expression of surprise when Ms. Pilley and Mr. Granholm told him that Mr. Granholm had not been interviewed is consistent with the view that Mr. Allen anticipated that Mr. Granholm would get an interview. His indication that he would follow up with the Employer is likely no more than an effort on his part to pursue what the Union perceived as an issue. During these later discussions with Ms. Pilley and Mr. Granholm, no reference was made to the Memorandum, nor was it put to Mr. Allen that the Employer had contravened his commitment to provide Mr. Granholm with an interview. In this context, Mr. Allen’s responses are equivocal at best and do not form a basis for concluding that he subsequently acknowledged that he had agreed to an interview on November 26, 2002.

For the foregoing reasons, it is my conclusion that the Union has not established on the balance of probabilities that the Employer agreed on November 26, 2002, that Mr. Granholm would be interviewed for the Maintenance Mechanic position. It has not been proven that the parties were ad idem on this issue. As well, the Memorandum does not oblige the Employer to interview Mr. Granholm for the position. Accordingly, Mr. Granholm’s grievance dated April 17, 2003, is dismissed.

Dated at Toronto this 8th day of November, 2005