Renee Guerin v. Canadian Union of Public Employees, Local 1967, 1984 CanLII 1062

Ontario Labour Relations Board

[1984] OLRB Rep. February 259

0242-83-U Renee Guerin, et al, Complainants, v. Canadian Union of Public Employees, Local 1967, Canadian Union of Public Employees, Local 2474, and The Hawkesbury & District General Hospital, Respondents, v. Canadian Union of Public Employees, Intervener, v. Nicole Drouin and certain other employees, Interveners

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members L. Hemsworth and W. F. Rutherford.

APPEARANCES: John B. West and James R. Hendry for the complainants; Mario Hikl, Robert Rouleau and Gilles Lebel for the Canadian Union of Public Employees and its Locals 1967 and 2474; Jacques A. Emond for Nicole Drouin and certain other employees; no one appeared on behalf of the Hawkesbury & District General Hospital.

DECISION OF IAN C. SPRINGATE, VICE-CHAIRMAN: February 20, 1984

1A French language version of this decision will be issued shortly.

2I note the consent of the parties to the substitution of Board Member W. F. Rutherford for Board Member B. K. Lee part-way through the proceedings.

3The members of this panel of the Board are unanimous in our view of the facts relevant to this case. We are also unanimous in concluding that the Labour Relations Act has been violated. We differ, however, with respect to the appropriate remedy for the breach. My colleagues favour a remedy other than the one which I view as appropriate. Accordingly, on the issue of remedy, this decision reflects a minority opinion only.

4This matter arises out of a complaint under section 89 of the Labour Relations Act alleging that the respondents have violated section 89(7) of the Act by not complying with the written terms of settlement of an earlier section 89 complaint.

5Section 89(7) provides as follows:

"Where the matter complained of (in a section 89 complaint) has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1)."

6These proceedings have their origin in the re-organization of hospital services in the Town of Hawkesbury. Prior to July of 1981 there were two hospitals in the town, namely, the Hawkesbury General Hospital and the smaller Smith Clinic. Notwithstanding its name, the Smith Clinic functioned as a general hospital, and as did the Hawkesbury General Hospital it offered a wide range of services to the general public in the Hawkesbury area. The General Hospital was a public hospital managed by an elected board, whereas the Smith Clinic was privately owned by a group of physicians. Because both the General Hospital and the Smith Clinic were housed in older buildings, neither of which was suitable for major renovation, the Ontario Ministry of Health indicated a willingness to financially support the construction of a new hospital building. The Ministry made it clear, however, that once a new hospital became operational, the Ministry would not continue to fund any other hospital in the Hawkesbury area. In light of these developments, the owners of Smith Clinic indicated to the Ministry of Health that they were willing to sell their hospital. Eventually a sale price of some 1.3 million dollars was arrived at in discussions between the owners of Smith Clinic and the Ministry. Although the Ministry put up the money for the purchase of the Smith Clinic~ the Government did not act as the purchaser. Instead, the Ministry of Health gave the money to the Hawkesbury General Hospital which in turn used it to purchase the Smith Clinic. As of July 31, 1981 the Smith Clinic became the Smith Pavilion of the General Hospital.

7Prior to the events described above; some 110 employees at the General Hospital had been represented by Canadian Union of Public Employees, Local 1967. In January of 1981 the Canadian Union of Public Employees was certified as the bargaining agent for two bargaining units with a total of approximately 65 employees at the Smith Clinic, and Local 2474 was chartered to be their local. Although it appears that notice to bargain was served on the Smith Clinic by Local 2474, no collective agreement was ever entered into between the local and the Clinic, presumably because of the impending sale. On July 30, 1981, one day prior to the formal takeover of the Smith Clinic by the General Hospital, representatives of Local 2474 (the Smith Clinic local) signed agreements with the General Hospital with respect to the Smith Clinic employees. These agreements provided for the continued employment of the Smith Clinic employees by the General Hospital, as well as a limited recognition of employee service at the Smith Clinic. However, the agreements effectively put the Smith employees at the bottom of the General Hospital employee seniority lists for the purposes of promotions, lay-offs and shift scheduling. Mrs. L. Whetstone, a Smith Clinic employee who signed one of the July 30, 1981 agreements on behalf of Local 2474, testified that the local's representatives had signed the agreements only because the General Hospital had threatened that if they did not do so, the Hospital might refuse to continue to employ the Smith Clinic employees. Local 1967, which represented the General Hospital employees, apparently had no input into the terms of these agreements. Indeed, members of the executive of Local 1967 testified that they had no knowledge of what had led up to the signing of the July 30, 1981 agreements.

8Their placement at the bottom of the seniority lists caused considerable concern to the Smith Clinic employees. Staff turnover at the Clinic had been fairly low, with the result that a number of employees had 15 or more years of service. Further, a number of employees were of the impression that the General Hospital was already over-staffed, and they were concerned that once operations became consolidated in a new hospital building substantial lay-offs might occur. This was not, however, the only area of concern for the Smith Clinic employees. The effects of the sale on the Smith Clinic employees was one of the topics dealt with in a special study performed for the Hawkesbury General Hospital by Mr. C. Wilson of the Ontario Hospital Association and Mr. M. Lalonde of the Ottawa General Hospital. In their report Mr. Wilson and Mr. Lalonde had the following to say about the consequences of the .sale on the Smith Clinic employees:

"Consequences of the Sale for former with Employees.

In the whole equation of purchase and sale, it is the former employees of the Smith Clinic who appear to have paid the price. Whatever anyone else has won, almost without exception, they have lost. Among their losses are:

1. Union Seniority: The effect of this has been to disadvantage them in all matters of shift, vacation, statutory holidays and promotions or appointments.

2. Ward Teams and Nursing Specialties: On purchase, RNs, RNAs, aides and orderlies were shifted on to new units, with new teams and often to-new specialties from the OR to medicine, from obstetrics to nursery.

3. Special Status: With the knowledge of the Ministry of Health, the administration of the Smith Clinichad granted some 10 RNAs authority to act as (and be paid as) RNs. These "RNA Specials" were reduced to RNAs immediately on purchase. Although they accepted compensation for the change in their status, the former "RNA Specials" still resent the apparent 'demotion' regardless of the explanation offered.

4. Permanent Shifts: Particularly grievous for former Smith employees isthe Hospital's scheduling of permanent shifts for RNAs. Under this system employees are assigned permanently to a shift (Days, Evenings or Nights) according to seniority. This system, it appears, is the rule in Quebec hospitals. It is encountered very rarely in Ontario and the Hospital was strenously advised by its labour relations consultants not to adopt it in 1981. Its normal disadvantages, (which have caused some hospitals to take their unions to arbitration to get it out of the contract) are multiplied when permanent shifts are employed in a situation of unfair seniority — such as that now suffered by the Hospital. There are present examples of RNAs with 14, 12 and 8 years seniority (at the Smith only) now forced to work permanent nights, without prospect of a better shift for 2-4 years. For the employee's family this is a particularly high price to pay.

5. Normal Avenues of Appeal or Redress: Former Smith employees perceive, correctly in the Consultants' view, that they have had nowhere to turn when they felt that they had been wronged. Their Union is dominated by long tenured Hospital employees who have profited significantly from the influx of new (i.e. Smith) employees below them on the seniority list. In consequence it has done little to support their claims. Administration, which still talks about "our people" in contrast to "them" is notably unsympathetic. It has seen "them" simply as individuals who persist in resisting the new realities of their employment.

Finding #7: Former employees of the Smith Clinic have sustained considerable losses in their conditions of work and in their relationships with fellow employees and their employer. The Hospital's administration has not seen it to be its responsibility to recognize or resolve what the consultants see to be unfair consequences of the amalgamation."

9On March 31, 1983 eighteen of the former Smith Clinic employees filed a complaint under section 89 of the Labour Relations Act against Local 1967, Local 2474 and the General Hospital. The complaint alleged that in agreeing to put the Smith employees at the bottom of the seniority lists, the union locals had violated section 68 of the Act. Section 68 provides that a trade union cannot act in a manner that is arbitrary, discriminatory or in bad faith in representing an employee in a bargaining unit. The complaint also alleged that the General Hospital had violated sections 64 and 79 of the Act. Section 64 prohibits an employer from interfering in the formation, selection or administration of a trade union or the representation of employees by a trade union. Section 79 "freezes" the terms and conditions of employment pending negotiations for a collective agreement.

10The original March 31, 1983 complaint was settled in writing between the parties, and accordingly, the Board was not called upon to make any findings as to its merits. The allegation in the instant complaint is that the earlier settlement has been violated. Having regard to the wording of section 89(7), the only issue in these proceedings is whether the settlement has been violated, and not whether the initial complaint would have been successful. The complainants in the instant proceedings are the same former Smith Clinic employees who filed the first complaint. Although the General Hospital was named as a respondent in these proceedings, it did not participate in the hearing, presumably because it was not alleged that it had violated the terms of the settlement. The two union locals were represented at the hearing by Mr. Mario Hikl, the National Director of Legal Services for the Canadian Union of Public Employees. Given that the complaint alleged that Mr. Robert Rouleau, a national representative with the union, had breached the terms of settlement, Mr. Hikl indicated that he was also appearing on behalf of the national union. Accordingly, the Canadian Union of Public Employees was formally added as an intervener in the proceedings. A large number of General Hospital employees were also represented at the hearing by counsel. Given the particular facts of this case, and given that these employees might be directly affected by any decision of the Board, over the objections of the complainants these employees were also accorded standing as interveners.

11The settlement to the original complaint flowed from a meeting in Ottawa on April 14, 1983 between representatives of the complainants, John McLaughlin, the executive administrator of the General Hospital, and certain national representatives of the Canadian Union of Public Employees. Also in attendance was one of the Board's Labour Relations Officers. At the meeting the following Minutes of Settlement were entered into:

"MINUTES OF SETTLEMENT

In the above matter, the parties hereby agree to resolve their differences in the following manner:

1. Notwithstanding any subsequent provisions contained herein, the Respondents jointly and individually deny each and every allegation within the subject Complaint and further deny any and all liability related thereto.

2. The parties hereby agree to review the matter of the seniority lists covering the Complainants and others through direct discussion and negotiation in good faith with the object of reaching agreement on an integrated seniority lists. The Respondent Trade Union Committee in this matter shall include Ms. Louise Whetstone, Alexis Lessard and Marie Therese Fraser. The parties jointly request the attendance of the Board's Senior Labour Relations Officer at this meeting.

3. The Complainants and the Respondents Trade Unions further agree that in the event the discussions provided for in paragraph 2 above result in a proposed integrated seniority list, then such list shall be submitted to the Local Union 1967 membership for ratification by secret ballot vote at a membership meeting called for such purposes. The National Representatives, signatory to these Minutes of Settlement hereby agree to wholeheartedly recommend the principle of an integrated seniority list to the membership. The Complainants and the Respondent Trade Union request the attendance of the Board's Senior Labour Relations Officer at such a meeting to observe.

4. The Complainants and the Respondent Trade Unions agree to be bound by the decision of the membership reached by the procedure outlined in paragraph 2 and paragraph 3 above.

5. The Respondent Trade Unions hereby undertake to conduct future membership meetings in a manner that will afford members on shift work the opportunity to attend. In this regard, membership meetings will be held during both the afternoon and the evening on each "meeting day" allowing two membership meetings. Such arrangements shall continue for a minimum of six (6) monthly meetings or until such time as Local Union By-Laws are adopted and make other provisions. The continuation of the "two" membership meetings shall be determined by the attendance of members at such meetings. Pending the adoption of Local Union By-Laws, the membership meetings shall be conducted in a parliamentary manner in accordance with Bourignot' s Rules of Order.

6. The Respondent Employer and the Respondent Trade Union hereby agree to discuss the matter of the "permanent" shift process against the "rotating" shift process.

The parties to this agreement hereby undertake to fulfill the provisions of this agreement in keeping with its spirit and intent.

7. In view of these Minutes of Settlement, the Complainants hereby request leave of the Board to withdraw their Complaint (Board File No. 2753-82-U) and further undertake that the circumstances shall not be used to form the basis for any further Complaint under the Act."

DATED at Ottawa, this 14th day of April, 1983.

For the Complainants For the Respondents

"Eunice Zorosz" "Giles Lebel" "Alexis Lessard" "Helen O'Regan" "Dianne Laflamme" "Steve Backs" "Denis Myrs" "Robert Rouleau" "Joyce Butler"

"Louise Whetstone"

"John B. West" "John G. McLaughlin" Counsel for the Respondent Employer

Complainants

"James R. Hendry"

Counsel for the

Complainants"

(emphasis added)

12The April 14, 1983 Minutes of Settlement contemplated a further meeting at which an attempt would be made to reach agreement on integrated seniority lists, and that three of the complainants, namely, Louise Whetstone, Alexis Lessard and Marie Therese Fraser would be in attendance at the meeting. Once integrated seniority lists had been drawn up, the lists were to be put to the membership of Local 1967 for ratification. By now the membership of Local 1967 included both the General Hospital and former Smith Clinic employees. The Minutes of Settlement also stipulated that prior to the vote, the national representatives of the Canadian Union of Public Employees who had signed the Minutes of Settlement were to wholeheartedly" recommend the principle of integrated seniority lists to the local's membership. At some point, it became understood that the recommendation would actually be made by only two of the four union's representatives who had signed the Minutes of Settlement, namely Mr. Robert Rouleau and Mr. Gilles Lebel. Mr. Rouleau is a national representative of the union responsible for servicing a number of locals in the Ottawa — Hawkesbury area, including Local 1967. Mr. Lebel is an assistant director of the Canadian Union of Public Employees. Mr. Lebel is based in Sudbury and prior to the events in question had not met with members of Local 1967. At the time of the signing of the April 14, 1983 Minutes of Settlement, all of the individuals concerned recognized that the former Smith Clinic employees were a minority in the local, and that for integrated seniority to be accepted a number of the General Hospital employees would have to vote in favour of it, notwithstanding that to do so would run counter to the interests of many of them. Ms. Joyce Butler and Mrs. Louise Whetstone, two of the complainants who signed the April 14, 1983 Minutes of Settlement, testified that at the time the agreement was entered into they felt that if the Smith employees were given a fair chance to have their position explained, then the General Hospital employees would likely see the justice of their position.

13All of the members of the executive of Local 1967 had been employees of the General Hospital prior to the purchase of the Smith Clinic. None of the members of the executive were in attendance at the meeting in Ottawa on April 14, 1983. Accordingly, no one on the executive signed the Minutes of Settlement. In addition, neither the executive nor the membership of the local had given the national officers of the union authority to sign the document on behalf of the local. On April 16, 1983, Mr. Rouleau met with the executive of Local 1967. Mr. Rouleau outlined to the executive what had happened on April 14th, 1983 and explained the terms of the Minutes of Settlement. A committee of three General Hospital employees was then selected to deal with the integrated seniority issue. Included on the committee were Miss Savaria, the president of Local 1967, as well as Francine Radford another member of the local's executive. Mrs. Nicole Drouin, a union steward who was not on the executive, was chosen as the third member of the committee. Another meeting of the Local 1967 executive, this time with Mrs. Drouin in attendance, was held on April 19, 1983 at a local motel. Both Mr. Rouleau and Mr. Lebel were also in attendance. At this meeting, the executive of the local voiced strong opposition to the Minutes of Settlement and further indicated that since they had not been involved in negotiating the settlement, they did not view themselves as bound by it. Mr. Lebel tried to convince the members of the executive to go along with the settlement, but without any noticeable success. This meeting ended with Mr. Lebel and Mr. Rouleau indicating that the three representatives of the General Hospital employees should at least attend a meeting set for the following day with representatives of the complainants and the Hospital.

14The meeting on April 20, 1983 was convened at the Hospital. In attendance was Mr. John G. McLaughlin, the executive administrator of the Hospital, as well as certain other management persons. Also present was the committee comprised of three former Smith Clinic employees, namely, Marie Therese Fraser, Alexis Lessard and Louise Whetstone, as well as the committee of three General Hospital employees, namely, Yolande Savaria, Francine Radford and Nicole Drouin. Mr. Rouleau and Mr. Lebel were also in attendance.

15The meeting on April 20th commenced with a discussion relating to the claim by the three General Hospital employees that they were not bound by the April 14th Minutes of Settlement. Mr. Rouleau then asked for an adjournment so he could meet with these three employees. In these proceedings, Mr. Rouleau testified that he had felt that if he could talk to the employees, he could convince them to go ahead with the terms of the Minutes of Settlement. He also testified that he felt he had an obligation to talk to the General Hospital employees in that he had signed the Minutes of Settlement on their behalf.

16Mr. Rouleau's meeting with the three General Hospital employees lasted for at least one and a half hours. Mr. Rouleau testified that he stated to the employees that if the local's membership felt as strongly as they did about integrated seniority, the idea would be rejected. It was Mr. Rouleau' s evidence that given the relative numbers involved, he had been of the view that integrated seniority would likely be rejected in a vote. Mrs. Nicole Drouin testified that the three employees discussed among themselves the numbers involved and they concluded that a vote would be against integrated seniority. Eventually the three employees agreed to the vote, but on two conditions. One was that the ballot be simple and easy to understand. The second condition related to the timing of the vote. Previously, April 27, 1983 had been suggested as a possible date for the vote. The three General Hospital employees insisted that any vote be held subsequent to that date.

17During the course of the discussions between Mr. Rouleau and the three General Hospital employees, one of the employees asked if they would be able to hold informal meetings prior to the vote. Mr. Rouleau indicated that such meetings could be held, and in this regard specifically referred to possible wine and cheese parties. Mr. Rouleau cautioned, however, that no union meetings were to be held.

18After the three General Hospital employees and Mr. Rouleau had returned to the larger meeting, it was agreed that a secret vote would be held on May 4, 1983. It was also agreed that there would be two membership meetings on May 3, 1983 at which Mr. Rouleau and Mr. Lebel would speak in favour of integrated seniority. Mrs. Whetstone, one of the Smith employees, was not contradicted when she testified that she proposed that no other large meetings be held, and that no one spoke against the proposal. There was then some discussion about campaigning for the vote. The matter was left with the understanding that canvassing would be permitted. Particular reference was made to canvassing "one on one" or "one on two or three". It was agreed that neither the name of the union or any union money would be used in this canvassing. Unfortunately, at the larger gathering no one mentioned Mr. Rouleau's earlier comment to the three General Hosptial employees about holding wine and cheese parties, and hence, the former Smith employees were not aware that the comment had been made.

19During the course of the April 20, 1983 meeting, Mr. McLaughlin distributed copies of proposed integrated seniority lists which the Hospital had prepared. These lists were accepted by all concerned as being generally correct, but it was agreed that if integrated seniority were to be adopted, then individual employees would be given an opportunity to challenge their position on the lists. After this had been agreed to, Mr. McLaughlin requested that the matter be kept out of the press. This request was agreed to. Later, when the meeting was breaking up, Mr. Rouleau reminded the three General Hospital employees that they should not go to the press. He also mentioned to the same employees that he had already been contacted by a reporter. Given what subsequently occurred, it is unfortunate that Mr. Rouleau did not also advise the three former Smith Clinic employees of this fact.

20At the meeting on April 20, 1983, a second set of Minutes of Settlement were entered into which provided as follows:

"MINUTES OF SETTLEMENT

1. Further to the April 14, 1983, Minutes of Settlement in the above matter the parties hereby agree to conduct membership meetings on May 3, 1983 and a secret-ballot vote May 4, 1983 at the Legion Hall, Hawkesbury at the following times:

Membership Meetings — May 3, 1983 — 2:00 p.m. and 7:00 p.m.

2. Further, in the event the membership by the secret ballot vote ratify the proposed integrated seniority list (subject to individual review) the parties agree this settlement shall constitute an amendment to the Collective Agreement under Article 25.02 and the provisions of Article 11.02 shall apply to the question of errors that may appear on the proposed seniority list.

3. The parties agree to establish a Committee of three (3) union members. to resolve any errors appearing on the proposed seniority lists.

DATED at Hawkesbury this 20th day of April, 1983.

("John McLaughlin")

("Louise Whetstone")

("Francine Radford")

("Alexis Lessard")

("Yolande Savaria")

"Bob Rouleau"

"Gilles LeBel"

"N. Drouin"

21It will be noted that the second set of Minutes were stated to be in furtherance to the April 14, 1983 Minutes of Settlement, and essentially dealt with how the first Minutes of Settlement were to be implemented. The second Minutes of Settlement were signed by, amongst others, Francine Radford, an executive member of Local 1967, as well as Yolande Savaria, the local's president. We are satisfied that by the action of Miss Savaria and Mrs. Radford signing the Minutes of April 20, 1983, they thereby adopted the Minutes of April 14, 1983 on behalf of Local 1967, and the local became bound to its terms.

22The same day that the second Minutes of Settlement were signed, the Vankleek Hill Review published a front page article dealing with the status of the former Smith Clinic employees. Vankleek Hill is a town within the area serviced by the Hawkesbury General Hospital. On the previous day, April 19, 1983, Mr. Rouleau had been telephoned by a reporter from the Review and asked a number of questions about the situation involving the Smith Clinic employees, and his responses were incorporated into the article. The appearance of the article upset a number of former Smith Clinic employees due to the oral understanding to keep the matter out of the press. However, given that Mr. Rouleau had spoken to the reporter the day prior to when the understanding had been reached, he had not in fact breached the oral understanding. Certain of the former Smith Clinic employees were very upset at the contents of the newspaper article. What was of particular concern to the former Smith Clinic employees was the following statement contained in the article:

"The former (Smith) employees accepted cash settlements from the General Hospital in the takeover to accept a loss of seniority. The employees were told if they did not sign such an agreement they would not be hired by the Hawkesbury and District General Hospital.

RNA specials, RNA's responsible for more work than RNA's by Ministry standards were subsequently paid the salaries of RNA's and not the higher amount rewarded them by the privately-owned Smith Clinic.

Whether it was legal or not it was signed said Rouleau of the agreement all Smith Clinic employees signed to work at the Hawkesbury and District General Hospital."

23There is no question that the statement contained in the article about the Smith Clinic employees accepting cash settlements to accept a loss of seniority was inaccurate. As indicated above, only the relatively small number of "RNA specials" received a cash payment, and the payment was not to compensate them for their loss of seniority, but only to compensate them for a downward change in their status and pay. Other Smith employees received no similar payments. In testifying before this Board, Mr. Rouleau asserted that while he had discussed both the seniority issue and the cash payments with the reporter, he had not told the reporter that the Smith employees had received compensation for the loss of their seniority. Given this evidence, which was not contradicted, it appears that it was the reporter who incorrectly linked the monetary payments to the loss of seniority, and not Mr. Rouleau. However, given the way the article was written, at least some of the Smith employees felt that Mr. Rouleau was to blame for the erroneous information.

24A former Smith Clinic employee who was particularly upset by the article in the Review was one of the complainants, Ms. Joyce Butler, a resident of Vankleek Hill. Although an RNA, Ms. Butler had not been an RNA special and hence had not received any cash payment from the hospital. Ms. Butler wrote an identically worded letter to both the Vanldeek Hill Review and the Hawkesbury Express. Ms. Butler testified that she had known about the oral understanding not to go to the press, but that she had decided to write the letters anyway because she was so upset that Mr. Rouleau had, in her way of thinking, publicly stated that the Smith employees had been paid to give up their seniority. The letter, which both newspapers printed unedited on or about April 30, 1983, read as follows:

"The Editor,

As one of the 18 former Smith Clinic employees who was involved in filing a complaint with the Labour Relations Board against CUPE and the General Hospital, I feel I can inform the public honestly about the events surrounding this issue. We filed the complaint for the main reason of regaining our seniority rights which were lost at the time of the takeover in 1981. We also felt we were not being given fair representation -by our union representatives, neither at the time of the takeover, nor up until the time of filing the complaint.

Due to a certain amount of bad press, malicious gossip, and ignorance of the truth, I don't feel most people understand the issue fully. We simply want what is rightfully ours; recognition of our years worked at Smith Clinic. We were certainly never paid one cent to give this up. We were, however, told by our present employers, at that time, that if we did not sign an agreement to give up our seniority, we would all be fired. Franidy, we were not left much choice.

I would hope that everyone voting on the integrated seniority lists on the 4th day of May will recognize the injustice that we have been dealt. In all fairness, let's clear this matter up once and for all, and begin to work together for a common goal. Is that really asking too much?"

25Events of some importance occurred on April 26 and 27, 1983. By a process which the Board was not advised of, and with respect to which all of the General Hospital employees who testified indicated they had minimal or no involvement, a decision was reached among the General Hospital employees that they would meet together over the period of the evenings of April 26th and 27th in the basement of the home of Mrs. Nicole Drouin. It will be recalled that Mrs. Drouin had been one of the three General Hospital employees at the meeting on April 20th. Mrs. Drouin testified that although she had offered her basement, she had not been involved in organizing the meetings. Mrs. Drouin also testified that the only reason for holding the meetings had been to dispel false rumours that had been circulating. Miss Savaria, the president of Local 1967, testified that she understood that the meetings had been called because employees wished further information. Miss Savaria added that no one had asked her if there could be a meeting, and that she did not tell other employees that there would be a meeting. No former employees of the Smith Clinic were invited to or attended at the meetings. When asked why this was so, Mrs. Drouin testified that it was because the Smith employees had been starting rumours that the vote was to deal with the status of RNA specials and shift rotations. Miss Savaria testified that she did not know why the former Smith Clinic employees had not been invited.

26It was the contention of all of the General Hospital employees who testified that the two meetings in Mrs. Drouin' s basement had not been union meetings. In this regard they noted that unlike the situation with union meetings, no notices had been posted about the meeting, and no national representative from the Canadian Union of Public Employees was in attendance. Notwithstanding these facts, however, all five members of the executive of Local 1967 were in attendance on both April 26th and April 27th. On both nights the format of the meeting was basically the same. When people arrived they were asked to sign their names in a book, a procedure also used at regular union meetings. The meetings commenced by Miss Savaria, who was seated behind a desk, telling those present that the meeting was not a union meeting and that she was not present as president of the local. Miss Savaria testified that she also stated that she did not want anyone to speak against anyone else. Mrs. Drouin remembered Miss Savaria's comment as being that she did not want anyone to speak against the former Smith Clinic employees.

27Following Miss Savaria's comments, Mrs. Drouin addressed the meeting. Mrs. Drouin explained the concept of integrated seniority. There was then passed around one of the copies of the integrated seniority lists which Mr. McLaughlin had made available at the meeting on April 20, 1983. Down the side of the lists, however, had been added numbers to indicate to the employees where they would stand on a seniority list with all of the General Hospital employees on top, and the former Smith Clinic employees on the bottom. The employees present then broke up into smaller groups for discussion, generally with employees who worked together in each of the groups. These discussions appear to have centered around the issue of seniority, although some social discussion also occurred. During the meetings, coffee, cheese and crackers were served. Some 86 out of the approximately 110 General Hospital employees attended at least one of the meetings.

28As it happened, on one of the nights that a meeting was held at Nicole Drouin' s house, a former Smith Clinic employee chanced by the house and became suspicious of the large number of cars parked nearby. Phone calls to the homes of three members of the Local 1967 executive produced responses that the individuals in question were not home, as well as an indication that their absences might be union related. A brother of one of the complainants then noted the licence plate numbers of the cars parked near Mrs. Drouin' s home. It was later established that the cars belonged to General Hospital employees. These events prompted the preparation of the instant complaint on May 3, 1983, and its filing with the Board on May 4th.

29On May 3, 1983 the two planned meetings of the local membership were held, one in the afternoon and one in the evening. Due to the preponderance of former Smith Clinic employees working on the night shift, the afternoon meeting was dominated by former Smith Clinic employees and the evening meeting by General Hospital employees. One of the Board's Labour Relations Officers was present at both meetings, and at both he indicated that the instant complaint had already been prepared. At the afternoon meeting Ms. Butler, a former Smith Clinic employee, moved two motions. One of the motions was to postpone the vote, while the second was to have the ballot box sealed and the ballots not counted. It is not clear on the evidence whether these motions were ruled out of order or were eventually voted down at the evening meeting. In any event, they did not carry. Mr. Lebel and Mr. Rouleau spoke at both meetings and indicated that they recommended that the integrated seniority lists be adopted. All of the witnesses agreed that Mr. Lebel made an impassioned plea in both the French and the English languages in favour of the general principle of integrated seniority as well as its application in the instant case. At both meetings Mr. Lebel was followed by Mr. Rouleau. There is some conflict in the evidence as to what Mr. Rouleau stated. Mr. Rouleau testified that he made a rather lengthy speech in English and French recommending acceptance. At least two witnesses, namely, Miss Savaria and Mrs. Lise Lauzon, testified that they could not recall Mr. Rouleau having spoken at all. On balance, however, I accept the evidence of certain other witnesses that Mr. Rouleau did speak, but that all he said in English and in French was that he recommended acceptance of integrated seniority.

30The vote on the issue of integrated seniority was held on May 4, 1983. The ballots cast were counted, but not officially announced. From the testimony of persons present at the counting of the ballots, it appears that the result was approximately 103 — 65 in opposition to integrated seniority. This split roughly paralleled the numerical split between former Smith Clinic and General Hospital employees.

31A meeting of the membership of Local 1967 was scheduled for June 15, 1983 at which the results of the vote were to be officially announced. No union business was actually conducted at the meeting, however, due to a lack of a quorum. Previously, union meetings had been scheduled only in the evenings. This had been a cause of concern on the part of the former Smith Clinic employees. As already noted, because their seniority with the Smith Clinic was not being taken into account, many of the former Smith Clinic employees were permanently assigned to the night shift. One of the terms of the Minutes of Settlement had been that henceforth two union meetings would be held, one of them in the afternoon so that employees on the night shift could attend. However, only one union meeting was held on June 15, 1983, and that was in the evening. Mr. Rouleau, who in accordance with general practice attended the meeting, testified that it was not until he was actually at the meeting that he recalled the agreement that two meetings must be held. Miss Savaria, the president of the local, however, indicated that she had not forgotten about the two-meeting issue. Instead, when asked in cross-examination about the matter, Miss Savaria indicated that the executive of the local had decided to only hold one meeting since the vote had been in favour of the General Hospital employees. Mrs. Savaria was then asked if she was on that side (i.e. the side of the General Hospital employees). She replied in the affirmative.

32During the course of her cross-examination MissSavaria was asked if there were two factions within the union local, and whether she viewed the situation as involving "we" and "them". Miss Savaria denied that either was the case. However, I am satisfied that Miss Savaria's testimony when taken as a whole, including her comments relating to the union meeting on June 15, 1983, indicates that there was in fact a split between the General Hospital and former Smith Clinic employees, and that Miss Savaria viewed herself as part of the General Hospital group. Miss Savaria was the only member of the executive of Local 1967 to testify. However, from her testimony, and from the fact that the local's executive appeared to be acting in concert, with all five executive members attending both of the meetings at Mrs. Drouin's house, I feel it reasonable to infer that the other four members of the executive shared Miss Savaria's view of the matter.

33As indicated earlier, the issue in these proceedings is whether or not there was a violation of the Minutes of Settlement. The complainants contend that they were violated in a number of ways. The easiest contention to deal with relates to an allegation that Mr. Rouleau violated an agreement not to go to the press. The understanding not to go to the press had not in fact been included in the written Minutes of Settlement. Further, it is clear that Mr. Rouleau talked to the reporter from the Vanldeek Hill Review prior to the oral understanding even being reached. Accordingly, Mr. Rouleau did not breach the agreement by going to the press. The timing of the article was indeed unfortunate. Even more unfortunate was the fact that a key portion of the newspaper report was incorrect and from the way the article was written one might conclude that Mr. Rouleau had provided the erroneous information to the press. As already noted, however, Mr. Rouleau testified that he had not in fact given the incorrect information to the reporter. In addition, Ms. Butler's letters to both the Vankleek Hill Review and the Hawkesbury Express likely went a long way to correct any misunderstandings related to the question of why certain of the Smith employees had received cash payments.

34Although they apparently had not thought so at the time, at least certain of the complainants became concerned that when Mr. Rouleau met alone with the three General Hospital employees on April 20, 1983 he might have been "conspiring" with them to the detriment of the former Smith Clinic employees. I am satisfied, however, that such was not the case, and that Mr. Rouleau's actions were designed only to secure the agreement of the three General Hospital employees to the April 14, 1983 Minutes of Settlement.

35The complainants contend that Mr. Rouleau violated the Minutes of Settlement in that he did not "wholeheartedly" recommend the principle of integrated seniority to the local's membership. The complainants contend that his failure to do so took on increased importance due to the fact that unlike Mr. Lebel, Mr. Rouleau was well known to the local's members. As already indicated, I am satisfied that unlike Mr. Lebel who made an impassioned speech in favour of integrated seniority, Mr. Rouleau went no further than to state in English and in French that he recommended integrated seniority. On the other hand, however, Mr. Rouleau in no way qualified his recommendation. This being the case, I am content that Mr. Rouleau did in fact meet the requirements under the agreement for recommending acceptance of the integrated seniority lists.

36The complainants primarily base their case on the meetings of April 26th and 27th at Nicole Drouin' s home. They contend that these were meetings of the union membership to which the former employees of the Smith Clinic were not invited, and that the intent and effect of the meetings was to defeat the purpose of the May 3, 1983 meetings. Counsel for the complainants further contends that by holding the two meetings the executive of Local 1967 insured that the former Smith employees would not be fairly treated. Counsel submits that it is impossible to now re-create the situation contemplated by the Minutes of Settlement, in consequence of which the Board should deem ratification of the integrated seniority lists. The position of the Canadian Union of Public Employees and the group of General Hospital employees is that the final decision with respect to integrated seniority was left to the local's membership, and the decision of the membership as reflected in the May 4, 1983 vote should be allowed to stand. Counsel for the employees contends there was no breach of the Minutes of Settlement and that the meetings on April 26th and 27th had not been union meetings. He further submits that if the Board were to conclude the settlement had been breached, the appropriate result would be to order a new vote.

37As indicated earlier, the issue in these proceedings is only whether the settlement to the earlier section 89 complaint was breached. That settlement provided that there be two union meetings on May 3rd at which union representatives would urge acceptance of the idea of integrated seniority and that a vote would then be held on May 4, 1983. The settlement also provided that the parties would carry out the terms of the settlement in good faith.

38A clear implication from the Minutes of Settlement, and one that everyone understood, was that the only union meetings to be held prior to the vote were to be those on May 3rd. However, meetings were held on April 26th and 27th. I am satisfied that these meetings were in fact meetings of Local 1967 from which an important component of the local, namely the former Smith Clinic employees, were excluded. I base this conclusion on a number of grounds. One is the fact that the purpose of the meetings was to deal with employment related matters. Further, the meetings were highly structured. One would not generally expect either a sign-in procedure or speeches at a social gathering. Most importantly, all five members of the local's executive were in attendance on both evenings. No one sought to explain why this was the case, and the reasonable inference is that they were present on both evenings because they were members of the executive. It is of some interest that the meetings on both evenings were commenced by Miss Savaria, the local's president, stating that the gathering was not a union meeting. She likely made this comment because, given all of the circumstances, the employees present would reasonably have concluded that they were in fact union meetings. Merely saying they were not union meetings, however, could not change the reality of the situation, namely, that the executive of Local 1967 was involved in meetings of the local membership from which the former employees of the Smith Clinic had been effectively excluded. I find these meetings to have been in violation of the Minutes of Settlement as being union meetings held in addition to the union meetings agreed to in the Minutes of Settlement. The meetings also violated paragraph 5 of the April 14, 1983 Minutes of Settlement in that the meetings were held only in the evening with no corresponding meetings in the afternoon. Having regard to the considerations, I find that Local 1967 failed to comply with the terms of the settlement of the earlier section 89 complaint, and accordingly, conclude that Local 1967 violated section 89(7) of the Act.

39The Minutes of Settlement indicated that the employees in the bargaining unit were to be advised by national representatives of the Canadian Union of Public Employees that they recommended integrated seniority. It is reasonable to infer that this was designed to ensure that when the employees decided how to vote, one of the factors they would take into account was the fact that the union favoured integrated seniority. I am satisfied that one of the effects of the meetings on April 26th and 27th was to indicate to those present that the executive of Local 1967 opposed integrated seniority. I am further satisfied that the meetings were used as a vehicle to appeal to the self-interests of the General Hospital employees. These actions ran counter to the intent and purpose of the Minutes of Settlement, and accordingly, I am led to conclude that the actions of the executive of Local 1967 had the effect of undermining the purpose of the Minutes of Settlement.

40The difficult issue now becomes one of deciding on an appropriate remedy. Counsel for the group of General Hospital employees contends that the appropriate response would be for the Board to direct the taking of a new vote. I do not, however, believe that the situation contemplated by the Minutes of Settlement can now be created so that a new vote could be held in accordance with the spirit of the settlement. The complainants settled their original complaint on the basis that prior to a vote, employees would be addressed at union meetings by national representatives of the Canadian Union of Public Employees and told why integrated seniority was preferable. Doubtless the complainants felt that such an appeal would lead to some of the General Hospital employees voting for integration even though it would be against their own interests to do so. However, before this could occur, Local 1967 held meetings where the self-interest of the General Hospital employees was directly appealed to. I do not believe that the effects of this appeal to self-interest can now somehow be removed.

41Counsel for the complainants contends that the only appropriate response is for the Board to "deem" the acceptance of integrated seniority. The difficulty with such a remedy is that it is far from clear that integrated seniority would have been accepted if the vote had preceded in accordance with the agreed to Minutes of Settlement. Quite apart from the relative numbers involved, it seems highly probable that if the formal meetings of April 26 and 27. 1983, had not been held, individual General Hospital employees would have lobbied against integrated seniority without in any way breaching the Minutes of Settlement. Further, to deem integrated seniority would impose a result upon a sizable number of General Hospital employees who were not involved in attempts to undermine the terms of settlement. In these circumstances, I am not satisfied that the appropriate response to the breach of the settlement is to simply impose integrated seniority.

42There is no easy remedy in this case. Because of the nature of the settlement and the way it was breached, the situation contemplated by the settlement cannot be re-created. In the circumstances, I am reluctantly led to the conclusion that in the unique circumstances of this case the most appropriate result would be to simply set aside the settlement, and allow the complainants to litigate their original complaint on its merits before another panel of the Board. As already indicated, however, my colleagues do not share my view. In that they are in the majority, it is their decision on point which must govern.

DECISION OF BOARD MEMBERS L. HEMSWORTH AND W. F. RUTHERFORD;

1. We concur with the findings of fact set out in the decision of Vice-Chairman Ian C. Springate. We also concur with his conclusion that Local 1967 failed to comply with the terms of settlement of the original section 89 complaint and thereby violated section 89(7) of the Act.

2. We are unable to agree with the remedy proposed by the Vice-Chairman. The parties entered into a settlement so as to avoid having to litigate the original complaint. In our view, it would not be appropriate to now require the parties to do the very thing the settlement was meant to avoid. Indeed, to do so would in our view undermine the entire settlement process.

3. Local 1967 violated the terms of settlement and thereby ensured that a vote could not be held in accordance with the conditions contemplated by the Minutes of Settlement. In our view, it is appropriate that those who in bad faith sought to undermine the purpose of the vote end up with the very result they sought to avoid. Accordingly, we are satisfied that the appropriate remedy is to require that the parties conduct their affairs on the basis that if the terms of settlement had been adhered to, the vote on May 4, 1983 would have been in favour of integrated seniority.

4. In the result, we direct all of the parties to these proceedings to implement the procedures agreed to be followed once integrated seniority was adopted.