Civic Institute of Professional Personnel v. The Corporation of the City of Ottawa, 1986 CanLII 1595

[1986] OLRB Rep. April 533

2800-84-U Civic Institute of Professional Personnel, Complainant, v. The Corporation of the City of Ottawa, Respondent

BEFORE: N. B. Sattetjield, Vice-Chairman, and Board Members J. Wilson and L. Lenkinski.

APPEARANCES: Elizabeth McIntyre, Robert St. Eloi, David McDonald and Narindar Singh for the complainant; Frank C. Askwith, Q. C. for the respondent.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER J.

WILSON; April 17, 1986

1. The name of the respondent is amended to read: "The Corporation of the City of Ottawa".

2. This is a complaint filed under section 89 of the Labour Relations Act alleging that two grievors, David McDonald and Narindar Singh, have been dealt with by The Corporation of the City of Ottawa ("the employer") contrary to the provisions of sections 66 and 70 of the Act. The facts alleged in the complaint raise the issue of whether the employer violated sections 66 and 70 of the Act when it required McDonald and Singh to withdraw grievances against the employer as a condition of accepting jobs which the employer was obligated to offer to them pursuant to the collective agreement between the employer and the Civic Institute of Professional Personnel ("the union").

3. The Board heard the testimony of McDonald, Singh and John Cyr, the employer's commissioner of personnel services. Each was a credible witness and the significant facts drawn from their evidence and set out herein are not in dispute.

4. McDonald and Singh are planners employed by the employer. McDonald has been an employee for approximately fourteen years and Singh for approximately seventeen years. When the events began which culminated in this complaint, McDonald was a senior planner in the community studies section of the employer's planning branch and Singh was an intermediate planner, urban design section in that branch. They were advised officially in writing on October 4, 1984 that their jobs had been declared redundant by City Council. Both notices concluded with the following statement:

The Community Development Department, in conjunction with the Personnel Department, will assist you in reaching a resolution as to how you wish to respond to this action, in accordance with your Collective Agreement, and will be contacting you in the near future with regard to this matter.

Three weeks later on October 25th, they both filed grievances under the collective agreement, to be processed by the union against the employer. McDonald was subsequently offered the job of junior planner, community studies section and Singh was offered the job of junior administration planner, land use and development division. A second grievance filed by Singh had been referred to the employer by the union prior to Singh receiving the employer's job offer. McDonald also filed a second grievance with the union, but it had not been referred to the employer at the making of this complaint on January 18, 1985.

5. McDonald's first grievance alleges that the employer:

(1) failed to re-locate McDonald at the same time his " ... job was deleted." in spite of the fact that re-organization had been proceeding for more than a year, during which time several jobs at his level were created and filled;

(2) withheld from McDonald the report which included the recommendation to delete his job and did not consult with McDonald about re-location or encourage him to look elsewhere;

(3) failed to give adequate reasons for " ... the effective reduction of [his] job to a junior level."; and,

(4) failed to treat McDonald in an equal manner compared to other employees who were offered re-location either prior to their jobs being deleted or immediately after the event.

The evidence with respect to McDonald's second grievance does not reveal the date when he referred it to the union, but it was some time after he had received the employer's offer of the junior planner position which was formally made by letter to him from Cyr dated December 3, 1984. As stated above, the union did not refer McDonald's second grievance to the employer. The subject matter of his second grievance is that the employer:

(1) failed to carry out a sincere effort to place McDonald pursuant to the redundancy provisions of the collective agreement;

(2) demoted McDonald without just cause contrary to the agreement; and,

(3) treated McDonald unequally with other employees by offering them jobs at a level equal to their redundant jobs and by offering him a job at a lower level than his redundant job.

6. Singh's first grievance includes, inter alia, allegations that the employer:

(1) failed to provide Singh with a copy of reports relevant to the re-organization prior to submitting the reports to committee;

(2) failed to discuss with Singh prior to the decision to delete his job, the pending re­organization and its potential effect on him;

(3) failed to provide Singh with an opportunity prior to implementing the re-organization, to discuss it and possible alternative jobs and has given other employees favoured treatment compared with Singh by giving them such opportunity.

Singh's second grievance was filed early in December, 1984 and alleges that the employer:

(1) failed to use its best efforts to place him pursuant to the redundancy provisions of the collective agreement, in a position similar to his redundant job, having regard to his former salary range and position;

(2) failed to offer Singh available jobs, similar to his redundant job, for which he applied including three particular intermediate planner jobs;

(3) failed to respect Singh's professional qualifications and record of service;

(4) breached the agreement by hiring to fill jobs for which Singh was qualified; and,

(5) by doing all of these things, has discharged Siogh without just cause contrary to the

agreement.

7. McDonald and Singh described their first grievances generally as complaints about the manner in which the employer dealt with them during the various stages of re-organization prior to the formal notices of redundancy. The grievances claim also that the employer's alleged acts and omissions are in violation of general conditions of employment which are preserved by the agreement. While they make similar claim in their second grievances, they described those grievances as complaints about the quality of the employer's endeavours to place them after their jobs had been declared redundant. They claim that the employer failed, when placing them, to have " ... regard to [their] former salary range[s] and position Is]." as required by the collective agreement. Their first grievances were heard on December 10, 1984 at the last step of the grievance procedure prior to arbitration. On or about December 13th McDonald and Singh Were advised that the employer had refused their grievances.

8. Between October 4th when McDonald and Singh received official notice that their jobs had been declared redundant and December 13th, the employer gave them specifications for some vacant jobs with instructions to identify to the employer those jobs in which they were interested.

9. McDonald received his information at a meeting on October 26th. It was confirmed to him in writing on October 29th and he responded in writing identifying five available senior planner jobs in which he would be interested. It would seem that McDonald incorrectly expected the employer to decide whether he would be offered one of those jobs before he would need to state whether any lower classifications would be of interest to him. McDonald addressed that expectation in another memorandum to the employer on November 1st and went on to name three intermediate planner jobs which would be of interest to him if none of the senior jobs were offered. His memorandum ended with the following comment:

If I am offered one of these lower jobs, I would, of course, continue the grievance that has been filed. The complaint under the grievance is that I was unfairly deprived of my senior position, and that would still be true if I accepted a lower one.

That comment prompted a response from Cyr in a letter to McDonald dated November 6th. Cyr answered a couple of matters raised by McDonald's memorandum, advised him that there would be discussions after all vacancies had been identified and McDonald had made known his preferences before a final decision was made and then concluded as follows:

I just wish to correct your last paragraph ..., that if there are no other City positions available having regard to your classification and salary level, and in the event you are placed in one of the positions that you have indicated an interest, that will satisfy any potential grievance that might exist. In short, you cannot accept a position and still grieve. If you accept a position with the [employer], then no further action can be taken by yourself or the [union].

10. McDonald was not offered any of the senior planner or intermediate planner jobs in which he had expressed interest. He received a formal offer of a junior planner job in a letter from Cyr dated December 3rd and was asked to tender in writing by December 7th his acceptance or refusal of the offer. The letter made no reference to McDonald's grievance. The deadline was extended to December 18th in another letter from Cyr addressed to the union. No reference was made in that letter to McDonald's grievance. The union responded by letter dated December 20th advising Cyr that McDonald had accepted the junior planner job. Cyr's letter to the union dated December 21st took the position again that the grievance has been satisfied by the offer and acceptance of the job:

The placement of Mr. McDonald is in accordance with the terms of the agreement and thus satisfies the provisions of Article 9 on the one hand and satisfies the grievance on the other.

Please confirm to me that the outstanding grievance has been satisfied and the commitment to place pursuant to Article 9 has been complied with.

McDonald confirmed by letter dated January 8, 1985 that he had accepted the position and his letter ends:

... and I accede to your demand that I drop the grievance which the [union] had filed against the City on my behalf.

11. While the detail is different with respect to Singh, the employer took a similar position respecting the relationship between its job offer and Singh's grievances. No formal job offer was made to him until January 10, 1985. He had been given job specifications for open jobs at a meeting on October 26, 1984 and had advised the employer by memorandum dated October 30th of three intermediate planner jobs which were acceptable to him. The formal offer of a junior planner job was made by Cyr in a letter to Singh dated January 10, 1985. Cyr's letter contains the following statements:

This job offer, pursuant to the terms of the Agreement, satisfies the employer's obligation in attempting to place you as a result of City Council, on October 3, 1984 declaring your position surplus or redundant, as a result of re-organization. It further would satisfy any and all claims or actions initiated to date, launched by yourself through your [union]....

I would, therefore, request that you provide me with either your acceptance or refusal of this position within forty-eight hours following receipt of this letter to you.

(emphasis added)

Singh eventually was given until January 25th to decide on the offer on which date he wrote to Cyr accepting the offer and confirming " ... that the job offer satisfies all claims or actions initiated to date by myself through the [union].".

12. The union was involved on behalf of McDonald and Singh throughout the process from the filing of their first grievance until they accepted the employer's offer of the junior planner jobs. Each grievor had independent legal counsel during this period as well.

13. Cyr acknowledged orally to the Board during the hearing, as he had done in writing to the grievors and the union, that the employer's offers of the junior planner jobs were in fulfillment of the employer's collective agreement obligation. Had McDonald and Singh not accepted the positions offered to them, Cyr admits that the employer would have filled those jobs by hiring persons from outside of the bargaining unit. It is undisputed that the employment of the two grievors would have been terminated. They would have been eligible for termination payments prescribed by the collective agreement, although the grievors and the union expected that payment of termination pay would have been withheld pending determination of their grievances. The employer confirmed in the hearing that payment would have been withheld until the grievances were resolved.

14. The collective agreement between the parties contains a grievance procedure (Article 23) and a provision for final and binding arbitration (Article 24) of grievances not settled in the grievance procedure.

15. In order to answer the question of whether the employer has contravened the Act, the Board must first decide whether the grievors have a right under the Act to have their grievances properly processed by the union under the grievance procedure and arbitration provisions of the collective agreement and then whether the employer has interfered with that right in a manner which contravenes the Act. The employer admits that the two grievors have the right under the collective agreement to have a grievance properly processed by the union through the steps of the grievance procedure to final and binding arbitration. The question is whether that right is also a right under the Act. Both parties told the Board that they were unaware of any Board decisions on point. Whether they are correct that the Board has not dealt previously with the same fact situation facing it in this case, it has frequently had to decide if a particular activity not expressly dealt with in the Act is a right protected by the substantive provisions of the Act.

16. It is clear from the Board's many decisions that an activity does not have to be expressly covered by any one section of the Act in order to be found to be a right protected by the Act's substantive provisions, like sections 66 and 70. A primary purpose of the Labour Relations Act is to protect the right of employees to engage in lawful collective bargaining. The legal fruits of the collective bargaining process become the terms and conditions of the collective agreement between the union and employer. Those fruits are preserved by the grievance procedure and arbitration provisions of the agreement. If the agreement fails to provide for final and binding arbitration of disputes arising under the agreement, section 44(2) of the Act deems the agreement to contain the provision set out therein. Were there no grievance procedure and arbitration provisions to enforce the terms and conditions of a collective agreement, either party to the agreement, with impunity, could walk away from their obligations under the agreement. Since section 44(2) of the Act mandates that an agreement provide for the settlement of differences between the parties respecting the interpretation, application, administration or alleged violation of the agreement or be deemed to include such a provision, then the right to have the procedures followed must be a right under the Act. Otherwise one party to an agreement would have no remedy if the other party refused to comply with the agreement, for example, by refusing to name its appointee to a board of arbitration. It follows, then, that the union and, through it, McDonald and Singh have the right to have grievances processed through the steps of the grievance procedure to final and binding arbitration. This right, of course, is subject to the union's exercise of its power to decide the carriage of any particular grievance through the grievance and arbitration procedures of the collective agreement. The union's exercise of that power must be consistent with its duty of fair representation pursuant to section 68 of the Act.

17. The remaining issue is whether the employer has violated sections 66 and 70 of the Act, as the union alleges, by requiring McDonald and Singh to withdraw their grievances against the employer as a condition for accepting the employer's offers of the junior planner jobs. Sections 66 and 70 of the Act provide as follows:

18. No employer, employers' organization or person acting on behalf of an employer or an employers' organization.

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

71. The parties do not want the Board to interpret the article of the collective agreement which deals with positions declared redundant by City Council. They agree that the collective agreement provisions obligate the employer to endeavour to place an employee whose position has been declared surplus or redundant; that the employer has to have regard to the employee's former salary range and position in endeavouring to place him; and that the employer and the employee have to consider the offered position suitablie for the employee. They disagree as to whether there is an implied obligation on the employer to consider a claim by an employee that he is qualified to fill vacant positions which the employer has not offered.

72. Employer counsel submits that the employer has done precisely what the collective agreement requires. That is, it has endeavoured to place McDonald and Singh, having regard to their former salary ranges and positions, in positions considered by the employer and by McDonald and Singh to be suitable for each of them. The employer's offer of a junior planner position to each grievor establishes that the employer considered the jobs suitable for them and the employees' acceptance of the junior planner positions satisfies the requirement that the positions be considered suitable by the employees. According to counsel, their acceptance of the positions were individual acts of volition. Counsel admits that the collective agreement gives an employee a right to have a grievance processed through the grievance procedure up to and including final and binding arbitration, but, he submits that there is nothing which prevents an employee from giving up a right or deciding not to pursue it. He contends that to be the case here. Both grievors had begun to exercise their right to pursue a grievance under the collective agreement, but, having had the benefit of support and advice from the union as well as from independent counsel, they tendered their unqualified acceptance of the positions. Therefore, he argues, the grievors cannot now question their decision to accept the offers.

73. Counsel for the union argues that the offers of the junior planner jobs were acknowledged by the employer to have been in furtherance of its collective agreement obligation, not in furtherance of settling a dispute, and that the employer further acknowledged the employees to be suited and qualified for the junior planner jobs. In these circumstances, counsel submits that the employer cannot claim now that the jobs were offered for purposes of settling the grievances filed by McDonald and Singh. Requiring the grievors to withdraw their grievances as a pre-condition to accepting the offer is the same as the employer saying they will not get the jobs, for which the employer has agreed they are suited and qualified, and their employment will be terminated unless they drop their grievances. According to counsel, since the employees had the right to grieve their claim that the employer has declared them redundant and has failed to place them in an appropriate position; and since that is a right protected by the Act, the employer's threat of loss of employment should they not drop their grievances constitutes interference with the employees' rights under the Act. Therefore, contrary to sections 66 and 70 of the Act, the City has sought by threat or coercion to get McDonald and Singh to relinquish their rights under the Act.

74. The facts respecting the sequence of events leave no doubt that the employer forewarned the union and the employees in writing that it was taking the position that an offer of jobs to McDonald and Singh, made pursuant to its collective agreement obligation and accepted by them, would discharge that obligation and resolve the grievances. That position was taken respecting McDonald prior to the making of its offer to him, and respecting Singh, at the same time as making its offer to him. In the face of the employer's position, the grievors eventually relented in the pursuit of their grievances and withdrew them. The choice facing them, as impalatable as it may have been, was to accept the jobs offered or forego those jobs and take their chances that the arbitration process might produce a better result for them. They chose the sure thing. It is not uncommon that either party to the grievance process in a collective agreement has to make that kind of choice. For example, an employee facing lay­off might file a grievance because his employer has denied his claim under a collective agreement to a particular job. While his employer denies that claim, it acknowledges a collective agreement obligation to offer the employee a different job and offers it conditional upon the employee dropping his grievance. The employee's alternatives are clear, either accept the available job and drop the grievance, or take his chances with the grievance procedure.

75. The question of whether the employer's stance in that hypothetical fact situation violates the collective agreement would be an appropriate one for an arbitrator to decide, as it would be in the fact situation herein. But it is not for the Board to decide in this case whether the employer has interpreted the collective agreement correctly or incorrectly. Nor is it for the Board to decide whether the sequence of events herein demonstrate a settlement of the grievances. Whether or not the events in this case are characterized as a settlement process, it is clear that the employer has been confronted with grievances arising out of its decision to declare the jobs of McDonald and Singh to be redundant; has offered alternative jobs to them and has made the withdrawal of their grievances a pre-condition of them accepting the jobs. The issue for the Board is whether the employer, in making acceptance of its job offers to McDonald and Singh conditional upon them dropping their grievances, was seeking by threat of dismissal, or other penalty, or other means to compel McDonald and Singh to cease to exercise a right under the Act contrary to section 66(c); or was seeking by intimidation or coercion to compel them to refrain from exercising a right under the Act contrary to section 70.

76. As a matter of theory, any compromise settlement of an employee's grievance made conditional upon withdrawal of the grievance might come within the definition of an unfair labour practice. Such a settlement could be characterized as a successful attempt by the employer, to paraphrase section 66(c) of the Act, to compel a grievor or his union, by threat of pecuniary or other penalty, to waive or cease exercising a right available under the Act; that is, the right to enforcement of the collective agreement through the grievance and arbitration procedure. Nonetheless, a grievor, and in many cases a union without a grievor's consent, may waive that right to full enforcement of a grievor' s literal rights under the collective agreement. Indeed, the very purpose of the grievance procedure mandated by the Labour Relations Act is to bring about settlement of as many disputes arising out of the collective agreement as possible. It would be counter-productive to that objective if a party responding to a grievance is going to be placed at risk of being found in violation of the Act if it makes withdrawal of the grievance a condition of a settlement offer. There may well be particular circumstances where causing an employee to choose between retaining employment and exercising his right to have the collective agreement enforced could be found a violation of the Act, even where it occurs in the course of settlement attempts, but this is not such a case. Nor on its facts is it a case of the employer acting out of retribution because the employees had filed grievances.

77. The union and the employer have an honest disagreement over the scope of the employer's obligation and employees' protections under the redundancy provisions of article 9 of their collective agreement. They have sought unsuccessfully to resolve their differences as they related to McDonald and Singh. In the process, the employer may have played hardball with the union and the employees but, on the evidence before the Board, it was nothing more. While an arbitrator might have found the employer to have violated the collective agreement by its interpretation of article 9 of the agreement and by the way it dealt with McDonald and Singh pursuant to that article, the Board does not find the employer's conduct in evidence here to constitute a violation of sections 66 and 70 of the Labour Relations Act.

78. The complaint is hereby dismissed.

DECISION OF BOARD MEMBER L. LENKINSKI;

1. The evidence before the Board clearly discloses that the employer forewarned the union and the grieving employees that their acceptance of the jobs offered would discharge any obligation the employer had under the collective agreement, and resolve the grievances.

2. In my respectful view the employer's threat that Mr. McDonald and Mr. Singh, the employees in question, would lose their jobs should they choose not to drop the grievance, constitutes an undue interference with the employees' rights under the Act.

3. In paragraph 23 of the majority decision it is clearly stated that " ... any compromise settlement ... made conditional upon withdrawal of the grievance might come within the definition of an unfair labour practice.". I agree with that.

4. I would have found on the basis of the evidence that the employer had placed an unacceptable condition on Mr. Singh and Mr. McDonald and thereby compelled them to waive their rights under the Act.

5. I would have found that the employer's conduct therefore violated sections 66 and 70 of the Labour Relations Act.