GSB# 2003-3789, 2003-3790, 2003-3791

UNION# 2004-0331-0003, 2004-0331-0004, 2004-0331-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lewis et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

David Wright Rider Wright Blair and Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Ministry of Government Services

HEARING

October 6, 2005.

INTERIM AWARD

This decision deals with two preliminary motions made by counsel for the Ministry to dismiss the grievances before me. Counsel argues that the three grievances before me are not arbitrable as they arise out of and are caught by previously executed Minutes of Settlement. In addition, the Ministry has also taken the position that the grievances are untimely and should be dismissed on that basis.

This case involves three group grievances that were filed on January 29, 2004. All were signed by Yvonne Lewis on behalf of the group. The grievors work on the Forensic Assessment Unit (FAU) at the Whitby Mental Health Centre (WMHC). The grievances deal with the compressed work week agreement (CWW ) in place on the FAU for nursing staff who are made up of RN’s, RPN’s, and Patient Care Assistants (PCA’s). In particular, the grievances pertain to the evaluation processes utilized by management with regard to the CWW.

The first grievance alleges:

WMHC mgemt. is in violation of Art. 2 in that they manage in a deceptive & unethical manner, mock the purpose of the Collective Agreement, do not make reasonable rules, do not hold its employees to the same standards of employment, do not assess each discipline’s hours of work with the same scrutiny or criteria as imposed on nurses, do not determine other discipline’s hours of work on the results of satisfaction surveys of unrelated disciplines or of patients, do not subject all employees that work a Compressed Work Week Schedule to the same evaluation process that is being imposed on FAU Nurses/PCA.

The second grievance alleges:

I grieve that it is both unreasonable & unfair mgemt. practice to give part-time unclassified staff the opportunity to dictate full-time classified staff’s hours of work. Part-time staff choose their hours of work and do not have their schedules imposed upon them. Since introducing the Compressed Work Week Schedule on FAU no part-time staff has been denied the opportunity to decline a 12-hr. shift & opt instead for an 8 hr. or 4 hr. shift. This option excludes part-time as “affected” staff.

The third grievance alleges;

WMHC mgemt. does not manage in a fair & equitable manner. The employer’s “evaluation criteria” of the Compressed Work Week on FAU as detailed in the written notice by R. Ballantyne Admin to J. Gates OPSEU Local 331 President dated Nov. 12/02 is in violation of both Art. 2 and 3.1 of the Collective Agreement. Nurses are being held to a standard unparalleled by any other discipline. This inequity is poisoning the wrok environment and the stress of this equity causes resulting violation of Art. 9. It could also be seen as harassment under the Employment Equity article & OPS Policy (3.2).

Ms. Lewis, the lead grievor, is employed in the FAU at WMHC as a Registered Practical Nurse. Many of the grievors, including Ms. Lewis, who are part of the group of grievors currently involved in the grievances before me, were members of an earlier group of grievors who filed a grievance on January 23, 2001, alleging that the employer violated the collective agreement in that it failed to manage in a fair and equitable manner. Specifically, these grievances alleged that the failure of management to consider a CWW for the FAU violated the collective agreement.

Those earlier grievances were resolved by Minutes of Settlement dated November 5, 2002. The Minutes read as follows:

Whereas the Union and the Grievors filed grievances dated January 23, 2001 regarding the implementation of a compressed work week arrangement on the Forensic Assessment Unit at the Whitby Mental Health Centre;

And whereas the parties wish to resolve all issues between them respecting these grievances without the need for further litigation;

Now therefore the parties agree, without precedent and without prejudice, to the following terms and conditions as a full and final settlement of all issues between them arising out of the grievances:

1. The parties agree to implement a compressed work week arrangement for the Forensic Assessment Unit on the terms of the Memorandum of Agreement attached as Appendix 1.

2. Such compressed work week arrangement shall commence January 6, 2003;

3. The Union and Grievors hereby acknowledge that Mr. Ballantyne, Administrator Whitby Mental Health Centre, shall deliver to Ms. Gates, President OPSEU Local 331, a letter in the form attached as Appendix 2 which letter sets out the basis on which the Employer will evaluate the success of the compressed work week agreement and on which the Employer reserves its right to terminate that agreement;

4. The Union and Grievors hereby withdraw the grievances.

5. The Grievors agree that this settlement satisfies all claims, demands, actions and grievances whatsoever related to the subject matter of the grievances and hereby release and forever discharge the employer from all such claims, demands, actions and grievances of every nature arising out of the subject matter of the above noted grievances including but not limited to all claims under the Ontario Human Rights Code and the Employment Standards Act.

6. The parties agree that Vice-Chair Janice Johnston shall remain seized to deal with any issue respecting the interpretation or implementation of these Minutes of Settlement.

The letter referred to in paragraph three of the Minutes of Settlement reads as follows:

Ms. Joan Gates

President

OPSEU Local 331

Dear Ms. Gates:

Re: Memorandum of Agreement - Compressed Work Week - FAU

I am writing to put the Union on notice that the employer will be evaluating the success of the compressed work week agreement for the FAU within one month after the completion of the trial period for that agreement.

The employer’s agreement to this arrangement is subject to the following principles:

1. The agreement is intended to accommodate staff preferences for a compressed work week (i.e. 12 hour shifts) without negatively affecting the quality of patient care on the clinical units involved.

2. It is assumed that patients’ best interests must be given priority regardless of the existence of a compressed work week. The compressed work week agreement must not compromise this priority.

3. It is recognized that on each clinical unit there are existing protocols that define how clinical and operational information is communicated amongst staff so that there is effective and efficient communication.

4. It is acknowledged that new protocols may need to be developed to augment the existing methods of transfer of important clinical and operational information.

5. All parties to the agreement endeavour to achieve success of the compressed work week agreement and to ensure integrity in the collection of information required to evaluate the agreement.

6. The agreement assumes compliance with the Collective Agreement and staffing practices of Whitby Mental Health Centre.

We will be evaluating the success of that agreement on the following criteria:

The following criteria will be used to evaluate the success of the compressed work week agreement. Where appropriate, the benchmark data will be from 1999 to 2002 from the respective clinical units involved.

1. There will be a report produced on the evaluation criteria within one month of the completion of the first anniversary of the implementation of the compressed work week agreement. The report will detail:

. Nursing staffing costs

. Overtime costs

. Sick time and associated costs

. Results of an annual staff satisfaction (both nursing and non-nursing) survey

. Results of an annual secret ballot to determine the percentage of staff who wish to continue the compressed work week agreement

. Results of an annual patient satisfaction survey

. Medication errors

. Analysis of staff and patient incident reports

. Analysis of staff mix throughout shifts

. Nursing staff turnover rates

. Indicators of risk analysis associated with longer shifts

. Assessment of adequacy of breaks during shifts

. Assessment of costs resulting from the administration of the compressed work week schedule and agreement in general.

Please be advised that the employer will be exercising its right to terminate the agreement on notice:

1. If we are advised that more than 50% of the affected staff, in a secret ballot vote, express a desire to terminate the agreement;

2. If staffing costs increase by 5% or more;

3. If sick time increases by 10% or more;

4. If there is a clearly evident negative impact on the quality of patient care as a result of the compressed work week agreement.

Also please be advised that the Employer is entering into this agreement for a one year trial period. We will evaluate the trial period within one month after the completion of this one year period at which point a determination will be made whether the employer will continue with the compressed work week agreement. If the agreement continues beyond the trial period, an annual evaluation will be completed within three months of the completion of the anniversary of the implementation of the agreement.

Yours truly,

Ronald Ballantyne

Administrator

Whitby Mental Health Centre

The three grievances before me relate to the review of the compressed work week undertaken by management in January, 2004.

As noted, counsel for the employer takes the position that the three grievances before me are not arbitrable due to the settlement set out above.

The union is claiming that the review of the compressed work week and the manner in which it was conducted was flawed and was contrary to the collective agreement. It is the union’s position that the Minutes of Settlement set out above do not bar the union from filing the grievance before me.

To determine the dispute before me, it is necessary to review the Minutes of Settlement and the attached Appendix 2 to determine what the parties did or did not agree to when the Minutes of Settlement were executed. In other words, what was the deal reached to settle the earlier grievances?

The crux of the dispute before me centers around paragraph 3 of the Minutes of Settlement and in particular, the meaning to be given to the word “acknowledge” as utilized in that paragraph.

It is not in dispute that at the time the Minutes of Settlement were executed, the letter attached as Appendix 2 was given to the union and the grievors. The situation was not one where the concept of a letter was agreed to with the contents to be determined at a later date. The contents of the letter were already in existence and all of its wording was provided to the union and to the grievors before the Minutes of Settlement were signed off. Everyone who signed the Minutes of Settlement was well aware of the fact that the employer intended to evaluate the compressed work week for the FAU and the articulated details pertaining to this review process.

Therefore, at the time the Minutes of Settlement were signed the grievors knew that: the employer was planning to evaluate the compressed work week for the FAU within one month of the trial period (which is stated in the letter to be a one year period); the employer’s agreement to a compressed work week was subject to certain principles; the compressed work week would be reviewed based on certain criteria; and the employer would exercise its right to terminate the agreement in certain situations.

A review of the Minutes of Settlement establishes that the preamble reads “whereas the parties wish to resolve all issues between them respecting these grievances without the need for further litigation” and “... therefore the parties agree, without precedent and without prejudice, to the following terms and conditions as a full and final settlement of all issues between them arising out of the grievances”. Therefore, the word “agree” is used in the preamble. The parties in paragraphs 1, 5 and 6 of the Minutes of Settlement again used the word “agree” to describe the process they were engaging in. However, in paragraph 3 the word “agree” is not used but the word “acknowledge” is.

What therefore is the impact, if any, of the use of the word “acknowledge” as opposed to the word “agree” to describe the process occurring in paragraph three of the Minutes of Settlement?

Counsel for the employer argues that whether or not the word “acknowledge” or the word “agree” is used, the bottom line is that the union and grievors were aware of the contents of the letter and did not disagree with it. They did not raise any concerns with the letter. Therefore, in the absence of any disagreement, I should conclude that they agreed to the contents. If the union and grievors did not agree to the terms set out in the letter, then they should have said so. Counsel suggested that it would inequitable for me to allow the union to sign the Minutes of Settlement then lie in wait and grieve something that was attached to the Minutes of Settlement.

Ministry counsel pointed out that there are serious policy considerations at issue in this case in that the board should always strive to give effect to settlements freely reached between the parties. In support of this, he referred to K. Gottwald and The Crown in Right of Ontario (Ministry of the Attorney-General) 0127/96 (Leighton):

The policy considerations behind giving effect to settlement agreements reached by parties to a grievance were noted in OPSEU (Policy Grievance) when Arbitrator Kaplan reviewed several key decisions of the GSB. Arbitrator Kaplan cited Landry-King 1593/84 (Knopf) where the Board held:

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 settlement once obtained cannot be honoured by the parties, this Board should not even attempt to interfere with the settlement (at 8-9).

Arbitrator Kaplan also cited Edgett 2476/90 (Dissanayake) where the Board held that:

Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontario Labour Relations Board, apply with equal vigour and force in proceedings before this board. The purpose of the pre-arbitration grievance procedure under the collective agreement is to provide the parties opportunity to resolve disputes informally, promptly and without the expense and delay of arbitration. Besides, it is generally accepted that a settlement reached between the parties is a far preferable way of resolving a dispute than an award handed down by a third party. If the efficacy of the settlement so reached is to be maintained, the parties must be held to their agreement. (At 10-11).

Union counsel agreed with the policy considerations articulated in the Gottwald Case and frankly, so do I. However, counsel for the union stressed that the issue before me was one of interpretation. It is not in dispute that the agreement should be enforced, but the question is, what is the agreement that was reached, or, what does the settlement say?

Counsel for the union pointed out that the parties in this case are sophisticated bargaining parties who were represented by counsel. He urged me to utilize and apply the canon of construction that provides that every word in a document was chosen for a reason and has meaning. In paragraph three of the Minutes of Settlement, the word “acknowledge” not the word “agree” was used. By utilizing acknowledge instead of agree, the union and the grievors were merely indicating that they were on notice of management’s intentions with regard to the administration of the CWW agreement. However, they did not agree to it. The union did not agree to the letter but merely acknowledged that it was aware of the contents of it. By using the word acknowledge, the union left open the possibility of coming back before me in the event that the parties could not agree on the review process. The language giving rise to the current dispute was specifically chosen, as at the time the Minutes of Settlement were being signed, the parties were not able to agree upon and resolve in their entirety, all of the issues with regard to the review process.

It was acknowledged by union counsel, that the release clause in paragraph five of the Minutes of Settlement was binding on the union. In his view, that means that the union is on notice that the employer can conduct a review, cannot object to the employer doing so and cannot suggest that by conducting a review that the employer has breached the Minutes of Settlement. However, although the union is prevented from saying that the employer cannot review the CWW agreement, management in turn cannot say that the union has waived its right to challenge an aspect of the review process, should it chose to do so. The union has retained the right to grieve and suggest that the review conducted by management has violated the collective agreement.

Union counsel suggested that both parties were and are aware that the word “acknowledge” was chosen for a reason. Thus, it is disingenuous for the employer to suggest at this point that the union was lying in wait for the employer. The use of the word “agree” in paragraph three was rejected by the union. By suggesting that the word “acknowledge” should be given the same meaning as the word “agree,” he asserted that the employer is asking me to give to them the agreement they wished they could have gotten, but did not.

DECISION

After having carefully reviewed the submissions of counsel and the documents before me, I have concluded that the motion made by counsel for the Ministry to dismiss the three grievances before me on the basis that they are not arbitrable, should be dismissed.

The letter referred to in paragraph three clearly outlines management’s intentions and, as far as I know, the grievors and union did not put the employer on notice that they specifically disagreed with any part of it. Nor did they agree to it. They acknowledged what management was planning to do. The two words are different. Therefore, the mere fact that the word agree was not used, means that the union and the grievors clearly did not agree with the contents of the letter.

By utilizing the word “acknowledge” instead of the word “agree”, the parties consciously chose to employ a different word in paragraph three to describe what was occurring. Paragraph three commences with “The union and grievors acknowledge ...” it does not start with “The parties agree ...”. In this case, I am dealing with sophisticated parties who were represented by experienced and capable counsel. I have no doubt that the use of the word “acknowledge” was discussed and that it was chosen for a reason. But I have not heard any evidence as to why the word “acknowledge” was chosen nor have I heard any evidence as to what the parties meant when they used this particular word . All I know is that the word “agree” was not used and that this must have been done for a reason. The language used in paragraph three of the Minutes of Settlement must have been intended to have some effect on the future dealings between the parties with regard to the CWW agreement for the FAU, but what?

In the context of this case, I conclude that at the time the Minutes of Settlement were signed, assuming that a CWW would be put into place for the FAU, that the union and the grievors were aware:

i) that the Ministry was planning to evaluate the CWW for the FAU at the end of the one year trial period;

ii) that the Ministry’s agreement to a CWW was subject to certain principles;

iii) that the Ministry was planning to review the CWW based on certain criteria; and

iv) that the Ministry would exercise its right to terminate the agreement in certain situations.

I cannot say what the parties intended when they used the word “acknowledge” instead of “agree”. However, because they did use this word and for all of the reasons set out above I conclude that the union has not agreed to the contents of the letter referred to in paragraph three and can therefore challenge the review process undertaken by management in January, 2004. But the union’s right to challenge is not unlimited. Based on my conclusions set out above, when we start to hear the merits of the case, it may well be that I will limit the union’s right to challenge certain aspects of the review conducted by management. For example, as conceded by union counsel, the union and the grievors cannot object to the mere fact of the employer conducting a review of the CWW in the FAU and cannot suggest that by doing so that the employer has breached the Minutes of Settlement. However, until I am certain of the exact form the union’s challenge to management’s actions will take, I am not prepared to state categorically what is or is not appropriate.

Ministry counsel also argued that the grievances should be dismissed as they are untimely. He took the position that as the Minutes of Settlement were signed on November 5, 2002, the union was aware of the letter referred to in paragraph three outlining managements intentions with regard to a CWW agreement for the FAU at that time. In his view, the clock started ticking for the filing of a grievance at that point, not when the review was actually conducted in January, 2004.

In support of his argument, counsel referred to the following articles in the collective agreement:

Article 22 - Grievance Procedure

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.

Employer counsel’s argument on the issue of delay was predicated on his assertion that there was a delay in the filing of the grievances in this case of approximately thirteen months (from November, 2002 to January, 2003). In support of his argument that I should conclude that this was when the time limits should commence to run, he referred me to Newfoundland and Labrador Association of Public and Private Employees and Labrador School Board District 1 (Buffett) (no cite provided).

After reviewing that case, I am of the view that as the facts in it are quite different from those in the case before me, it is not particularly helpful.

Counsel then went on to argue why I should not extend the time limits in this case. His argument was well thought out and well presented. However, I am not going to review his arguments pertaining to the extension of time limits in this decision. In my view, they are not relevant, as I do not accept his underlying presumption that the clock started to run in November, 2002. For the reasons that follow, I have concluded that the grievances were filed in a timely fashion.

While it is true that the union was aware in November, 2002, when the Minutes of Settlement were signed, of the employer’s intent to review the CWW agreement to be put into place for the nursing staff on the FAU, the fact is that there was no CWW agreement in place in at that time. I did not set out the CWW agreement that was attached to the Minutes of Settlement (it is referred to in paragraph one of the Minutes of Settlement) as it is a lengthy document. However, at this point it is relevant to note that this document provides that a CWW will only be implemented “once it has been demonstrated by a secret ballot that 60% of the affected staff on the clinical unit support the introduction of the compressed work week agreement”. Therefore, in November, 2002, there was no CWW agreement in place and until the outcome of the vote was determined, there might not ever be one.

Union counsel suggested that it would have been inappropriate for the union to have filed a grievance on the CWW in November, 2002, as it would have been hypothetical at that time. In his view, the Board should not encourage the filing of grievances on hypothetical events.

I agree with this observation and would also note that, for many of the same reasons, the Board should not encourage the filing of grievances on the heels of the signing of Minutes of Settlement. Until a CWW agreement is put into place and management signals its intentions to review it in a manner that the union feels is contrary to the collective agreement or the Minutes of Settlement, the filing of a grievance would be premature.

On January 27, 2004, the employer notified nursing staff on the FAU that a review of the CWW agreement was going to take place. The grievances before me were filed on January 29, 2004. They are timely grievances.

Accordingly, the two motions made by the employer to dismiss the three grievances before me on a preliminary basis are dismissed.

Dated in Toronto this 12th day of December, 2005