[1986] OLRB Rep. September 1323
0278-86-R Ontario Nurses' Association, Applicant, v. Winchester District Memorial Hospital, Respondent, v. Group of Employees, Objectors
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members W. H. Wightman and P. J. 0'Keeffe.
DECISION OF THE BOARD; September 30, 1986
By decision dated June 6, 1986, the Board appointed a Labour Relations Officer to inquire into and report back to the Board on the status of six disputed individuals and the composite on of the bargaining unit in this application for certification. Pending the resolution of the issues t dispute, the Board granted the applicant interim certification.
An officer was duly appointed and met with the parties. The applicant and respondent settled the status of the disputed individuals prior to the scheduled inquiry.
This settlement was reported to the Board which issued a decision, dated July 24, 1986, in which the settlement was recorded and final certification granted.
The settlement was signed only by the applicant and respondent, although objecting employees had intervener status. In issuing its decision of July 24, 1986, the Board understood that the objecting employees had chosen not to participate in the settlement discussions and so stated in the decision.
Subsequent to the release of the July 24th decision, the Board received correspondence from two of the objecting employees, D. Jean Holmes and Nancy Sheldrick, who were also among the six disputed employees, in which the employees took issue with the statement in the decision that "Objecting employees were offered an opportunity to participate in the inquiry, but declined to do so". Both individuals stated that they did not sign the agreement because they had not been involved in the process of reaching the agreement and did not agree with it. They also expressed concern because they had not been examined as expected pursuant to section 1(3)(b) of the Labour Relations Act, the section under which their inclusion in the bargaining unit had been challenged.
The Registrar sent copies of these letters to the other parties, inviting their comments by September 5, 1986. The respondent and Holmes and Sheldrick responded to this invitation. Holmes and Sheldrick confirmed each other's version of the events which each had transmitted by their initial letters to the Board. The respondent confirmed that the officer had met with the applicant and respondent and that he had indicated that he would meet with Holmes and Sheldrick. The original letters of Holmes and Sheldrick confirm that the officer did meet with them but only after the settlement between the applicant and respondent had been reached.
After consideration of this matter, the Board is of the view that its July 24th decision was based on a partial misunderstanding of the events occurring at the meeting convened by the officer and has therefore reconsidered that decision.
In light of the concern expressed by Holmes and Sheldrick that they had not been examined, it should be explained that the settlement process is intended to expedite matters which might otherwise take considerably longer to resolve if an inquiry into the duties and responsibilities of disputed employees is held and then the parties wish to make representations before the Board with respect to the officer's report based on the inquiry. Of course, not all cases lend themselves to settlement. But where an officer can effect a settlement, the resolution of disputed matters permits the parties to get on with the business of collective bargaining and of developing a working relationship with each other in an atmosphere more conducive to such behaviour than where their relationship remains interim" (although interim certification does permit the parties to begin collective bargaining). Any such settlement has the same force as a decision resulting from a full hearing before a panel of the Board. However, it is in the nature of the settlement process that it is informal, more informal than a Labour Relations Officer's inquiry and more informal still than a full Board hearing. The officer has a certain amount of discretion with respect to how he or she conducts the settlement discussions. For example, an officer is not required to speak with all the parties at the same time; rather, he or she may speak with one party, obtain the views of that party and then take those views to other parties, seeking a response. The officer acts as a conduit between or among the parties, in order to transmit their positions to one another, and as a facilitator by helping them negotiate a settlement. During this process, the officer is not required to conduct a mini-inquiry; rather, it is hoped that the settlement will negate the need for an inquiry. Therefore, the fact that the objecting employees were not examined does not in itself render the settlement process or the settlement void. Furthermore, the officer apparently did speak with the objecting employees, informing them of the agreement reached between the respondent and applicant, and sought the views of the objecting employees. The officer's approach to reaching a settlement was quite acceptable.
The officer then asked the objecting employees to sign the Minutes of Settlement. He understood that the objecting employees did not sign the Minutes of Settlement because they no longer considered themselves a party. This view was evidently misconceived. The misconception was, unfortunately, transferred to the Board's decision of July 24, 1986. The Board was satisfied hat the absence of the signature of a representative of the objecting employees was explained by the decision of the objecting employees not to participate in the settlement proceedings.
It now appears that objecting employees did not sign the Minutes of Settlement because they disagreed with them, not because they had withdrawn as a party or had declined an invitation to participate as a party. Under the circumstances, the Board concludes that the preferable course is to appoint again a Labour Relations Officer to meet with the parties as originally directed in the decision dated June 6, 1986.
We are aware that both the applicant and the respondent have reached a mutually satisfactory settlement and that they believed the matter to have been resolved. In particular, the applicant has been certified as the bargaining agent for the full-time and part-time employees in the bargaining units described in the decision dated July 24, paragraph 3. Today's decision means that that Final certification for both units will have to be revoked pending the resolution of the issues in dispute and the applicant granted interim certification pursuant to section 6(2) of the Labour Relations Act.
This panel is not seized with this matter.
This matter is referred to the Registrar.