[1999] OLRB REP. SEPTEMBER/OCTOBER 875
0870-98-U; 1269-98-U Ontario Public Service Employees Union, Local 460, Applicant v. Frontenac, Lennox and Addington Children's Mental Health Agency, operating as Pathways for Children and Youth, Responding Party; Frontenac, Lennox and Addington Children's Mental Health Agency, operating as Pathways for Children and Youth, Applicant v. Ontario Public Service Employees Union, Local 460, Responding Party
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Kristin Eliot, Martin Sarra, Michael Yuille, Barb Meilenner, Gavin Anderson and Pat McGregor for OPSEU; V Panetta, J. Maltby and K. W Kort for the employer.
DECISION OF THE BOARD; September 2, 1999
- These are applications pursuant to section 96 of the Labour Relations Act, 1995 (the "Act"). In decisions of January 20 and January 27, 1999, the Board made procedural rulings and reflected agreements reached between the parties about which parts of these matters would be litigated, and when. This decision will decide one aspect of the unfair labour practice complaint around the suspension and termination of two employees, Michael Yuille and Barbara Meilenner. An arbitrator under the parties' collective agreement has been appointed to hear the substance of the complaints. Recognizing the overlapping jurisdiction, the Board deferred to the arbitration process, retaining jurisdiction to make remedial orders if appropriate once the arbitrator has made her findings. However, the Board determined that it was possible and appropriate for it to hear and decide the following isolated issue:
The union alleges that the employer failed to communicate its intentions to suspend, without pay, Ms. Meilenner and Mr. Yuille, for reasons consistent with its June 5, 1998 letter to them. The union alleges that the employer formed its intentions while it and the trade union were in the final stages of negotiation of the collective agreement and return to work protocol, and its alleged failure to reveal those intentions is a breach of the duty to bargain in good faith.
The facts relating to the allegation of bargaining in bad faith, contrary to section 17 of the Act, can be set out succinctly. The Ontario Public Service Employees Union, Local 460 ("OPSEU" or "the union") and the Frontenac, Lennox and Addington Children's Mental Health Agency, operating as Pathways for Children ("Pathways" or "the employer") began negotiating towards a first collective agreement in the fall of 1997. Pathways is a new children's mental health agency which brought together parts of the staff and programs of 4 predecessor agencies, all of which had their own collective agreements and bargaining history. All parties agree that the environment at the start of bargaining was difficult, owing to the amalgamations, resultant job losses, and very different nature of the organization that would now be delivering children's mental health services in Kingston and Lennox and Addington.
The parties made little bargaining progress, and a strike started on April 24, 1998. It was to last 19 weeks. The union's bargaining committee was composed of Gavin Anderson; Barb Meilenner and Mike Yuille who were members of the bargaining unit; and Martin Sarra, a seasoned OPSEU representative. Pathways negotiating committee was chaired by Kees Kort, an experienced labour counsel, and included JoAnne Maltby, Pathways Executive Director, and John Hill, Pathways' Director of Services.
On June 4, 1998, Ms. Meilenner and Mr. Yuille were sent almost identical letters. The letter to Mr. Yuille reads:
On April 24, 1998 Pathways received a facsimile communication from the Hastings Children's Aid Society enclosing a purchase of service agreement and notes respecting a meeting which you and another Pathways' employee apparently had on April 23rd, 1998 to finalize the agreement.
A copy of the agreement and the accompanying notes are enclosed with this letter.
We note that you have claimed eight hours' work for April 23rd 1998, a day during which, according to our recent inquiry, you met with representatives of the Hastings Children's Aid Society at their offices from 9:00 a.m. until noon.
The purpose of this letter is to place you on notice that, following the end of the strike, Pathways will be pursuing this matter and further investigating your conduct to determine whether or not disciplinary action is warranted.
- The letter to Ms. Meilenner differs in the third paragraph. Hers reads:
We note that you called in sick and obtained sick leave benefits on April 23rd, 1998, a day during which, according to our recent inquiry, you met with representatives of the Hastings Children's Aid Society at their offices from 9:00 a.m. until noon.
- During negotiations the union did not seek clarification of the letters. In fact, there were few face to face meetings between the parties, with most negotiations conducted through a mediator. On June 25, 1998, the union tabled amended proposals, and for the first time included the following:
The employer agree [sic] to take no disciplinary action, or place any letter on the file of any negotiating team member for any matter occurring prior to the return to work of the negotiating team member.
Mr. Anderson testified that, after receiving the letters, the union's negotiating team concluded that Pathways was targeting the negotiation team for discipline. Mr. Anderson had been disciplined just prior to the start of the strike. In its proposal, the union sought to protect the whole team from discipline.
The parties agree that there was no discussion of this proposal. On July 17, 1998, the employer made the following counter proposal:
(7) The discipline issue will be dealt with by the following process:
(i) Investigation will be completed;
(ii) Consents will be signed by employees involved for the release of information;
(iii) There will be full disclosure to employees involved;
(iv) There will be a full opportunity by the employees to reply;
(v) A Union representative may be present at all times in meetings between the employer and the employees involved;
(vi) There will be access to the grievance and arbitration procedures in the Collective Agreement.
Again, there was no discussion of the proposal.
There was a significant hiatus in the negotiations, but the issues, as well as the political climate in which the negotiations were taking place, kept the strike and negotiations in the public eye. In August, the mediator assisted in returning the parties to the table, and convinced them to focus on the issues that were of most concern to them.
Mr. Kort testified that when the mediator asked him about the discipline issue, on August 26, 1998, Mr. Kort responded that the issue would not go away, that the issues were serious and the employees' jobs were in jeopardy. Mr. Kort was certain that Mr. Sarra was present. Mr. Sarra is equally certain that no such statement was made in his presence.
All the witnesses I heard from on both sides, testified that the issues of discipline of Mr. Yuille and Ms. Meilenner were not the central issues that divided the parties. Both parties removed their proposals on discipline from the table. The final Memorandum of Agreement had no provision that either directly or indirectly addressed the potential discipline of Mr. Yuille and Ms. Meilenner. Mr. Anderson, Mr. Yuille and Mr. Sarra all testified that they expected Pathways would deal with Mr. Yuille and Ms. Meilenner in accordance with the June 5, 1998 letter and Pathways' human resources policy. Specifically, they expected Mr. Yuille and Ms. Meilenner would return to work, and an investigation would be undertaken in which Mr. Yuille and Ms. Meilenner would have an opportunity to explain, and then discipline would or would not follow.
On September 3, 1998, the parties entered into a return to work protocol. It provided that "All OPSEU members shall be recalled to work on September 8, 1998". In addition, the final version prohibited reprisals for strike related activity, and indicated there was no picket line conduct for which discipline would be warranted.
The union's negotiating committee recommended ratification. On September 3, 1998, the bargaining unit ratified the collective agreement. On September 4, 1998, Ms. Meilenner and Mr. Yuille received identical letters from John Hill:
This is in follow up to my letter to you dated June 5, 1998 in which I placed you on notice that following the conclusion of the strike Pathways would be pursuing its investigation with respect to your business dealings with TDS Services Associates.
Given the information we have to date, you are suspended without pay effective September 8, 1998, and I will be convening a meeting with you regarding this matter in the near future. A Union Steward should be present.
As a result of the letter, Ms. Meilenner and Mr. Yuille did not return to work on September 8, 1998 with their colleagues.
Mr. Kort, the only witness who gave evidence for Pathways, testified that the discipline issues surrounding Ms. Meilenner and Mr. Yuille were not discussed until after the Memorandum of Agreement and return to work protocol were signed. Mr. Kort said that when the allegations were first brought to his attention at the end of April or early May in 1998, he considered it his "worst nightmare" because it involved members of the union's negotiating team. He testified that he wanted to both put the employees on notice of the seriousness of the matters, but then to down play it in negotiations, so that the issue would not become a distraction. During caucuses, Mr. Kort rebuffed Ms. Maltby's occasional suggestions that they talk about the issue. Mr. Kort testified that his main goal was to negotiate a collective agreement, and avoid issues that might distract from the efficient completion of that goal. He said he was also concerned about any actions that might precipitate an unfair labour practices complaint. Mr. Kort testified that he initially sought to ignore the union's June 25, 1998 proposal about discipline of the negotiating team, and it was only when the issue did not go away that he tabled a counterproposal on behalf of Pathways.
He recalled meeting with Ms. Maltby at her request, immediately after the return to work protocol was signed on September 3, 1998. Ms. Maltby wanted to discuss a number of issues that had been set aside during the strike. Mr. Kort said he delayed the meeting to September 4, 1998. At that meeting, according to Mr. Kort, Ms. Maltby outlined what had been discovered by the employer about Mr. Yuille and Ms. Meilenner's conduct. Mr. Kort said he advised Ms. Maltby not to terminate the employees, but to suspend them without pay, pending an opportunity for them to explain. Mr. Kort talked to Mr. Hill about drafting the letter in the afternoon of September 4, 1998, and the letter was sent to Ms. Meilenner and Mr. Yuille shortly thereafter.
Mr. Sarra and Mr. Anderson testified about the shock and distress they and other members of the bargaining unit felt when Mr. Yuille and Ms. Meilenner were suspended without pay. They conveyed that the strike had been very fractious, and much rebuilding of relationships would be required. But the signing of the Memorandum of Agreement had ended in handshakes across the table, a significant gesture. Consequently, when the team learned that two of its members had been suspended without pay the day after the union ratified the agreement, they felt betrayed. Mr. Anderson said that Pathways' actions not only dashed any hope of rebuilding relationships, but undermined the entire negotiations. Mr. Anderson testified that if the negotiation team had known of the employer's plans, a settlement of the collective agreement might not have been reached, and in any event, the discussion around ratification would have been different.
As I set out earlier in the decision, at this time the Board is not dealing with much of the unfair labour practice complaints filed with respect to the circumstances surrounding the discipline and discharge of Ms. Meilenner and Mr. Yuille. The sole issue for the Board to determine is whether Pathways breached its duty to bargain in good faith in failing to disclose to the union in bargaining an intention to suspend Ms. Meilenner and Mr. Yuille without pay. Essentially, counsel agree on the legal and factual questions, and I was assisted by their clear and concise submissions.
Both parties accept that the union bears the onus of proof. The issues for decision are:
Is an employer required to disclose a settled intention or de facto decision to discipline employees who are also on the bargaining committee, as part of its obligations pursuant to section 17 of the Act?
Was the employer subject to the duty to bargain in good faith at the time it made its decision to suspend Mr. Yuille and Ms. Meilenner? This is both a factual and legal question.
If the answer to questions one and two is "yes", did Pathways meet its obligation to disclose information.
Having considered the parties' submissions, I have concluded that this case can be resolved by immediately moving to question three. For the purposes of this decision I am prepared to assume that an employer has an obligation to disclose in such circumstances, and that obligation continues past the point where a Memorandum of Agreement is signed, although they are propositions about which I have considerable doubt.
Counsel for OPSEU argued that the June 5, 1998 letter was not adequate because Pathways subsequently deviated from its plan. The union had the right to expect based on the first letter, that the strike would end, all employees would return to work, and an investigation would follow. Instead, the employer did not wait until the strike ended, did not return all employees to work, and took the unprecedented action of suspending two employees without pay. Counsel for the union argues that this was a egregious breach of the duty to bargain in good faith, particularly in the face of both parties' removing from the table their proposals dealing with the discipline of Mr. Yuille and Ms. Meilenner. Counsel said that if the employer were to take steps different from what was envisioned in the June 5, 1998 letter, it had a positive obligation to disclose.
It is not surprising that the parties did not find many cases that were helpful. The typical case alleging a breach of the duty to bargain in good faith involves a disclosure (or lack thereof) about an issue that is economically fundamental to the bargaining unit, such as the closure or relocation of a plant. But assuming that in the context of these negotiations, and this bargaining unit, that a plan to suspend without pay two members of the negotiating team, was fundamental to the bargaining unit, was the quality and nature of disclosure provided by Pathways adequate? In Curtis Property Management, [1984] OLRB Rep. March 443, the Board was faced with somewhat analogous facts. During bargaining, the employer disclosed in writing its intentions to contract out part of the work of the bargaining unit. The union asked no questions. Among its other proposals the employer tabled a wage rate for the affected employees, while reiterating its plans to contract out the work. The Board found that the employer had met its disclosure obligations pursuant to its duty to bargain in good faith. At paragraph 7 the Board wrote:
This letter satisfied the requirement to disclose and in the face of that notice the tabling of wage rates for cleaners cannot be seen as an attempt by the company to mislead. It was incumbent upon the union to seek clarification of that notice if clarification was required, and to fashion an appropriate bargaining response to deal with it.
The disclosure obligation is intended to give the other side enough information so that it can make the appropriate decision in bargaining. In this case, it is evident that the June 5, 1998 letter gave the union enough information, because, in response, it tabled a proposal that would have prohibited the employer from disciplining any member of the bargaining team for any conduct occurring prior to a return to work. Essentially, the union sought a clause that would more than deal with the concerns around potential discipline for Mr. Yuille and Ms. Meilenner. Then, most significant, the union withdrew the proposal. In withdrawing, the union sought and received no assurances about how the employer would proceed. Was the employer then required to say more? In my opinion, no. Was the union entitled to assume that the employer would only discipline Mr. Yuille and Ms. Meilenner after all employees were returned to work, and only discipline in accordance with the past practice of the employer? No.
First, I am not satisfied that the June 5, 1998 letter promised a particular process. For ease of reference I will reproduce the letter's last paragraph:
The purpose of this letter is to place you on notice that, following the end of the strike, Pathways will be pursuing this matter and further investigating your conduct to deternilne whether or not disciplinary action is warranted.
The letter did not promise a return to work before the matter would be investigated; it did not indicate what interim measures the employer might take.
Second, even if the June 5, 1998 letters, combined with Pathways' past practices can be construed as directing a particular disciplinary approach, the employer's departure from it does not constitute a breach of the duty to bargain good faith. At the risk of repetition, the disclosure duty is intended to give the other side enough information to formulate a bargaining response, to assess and weigh the issue's importance, and calculate its value in proportion to other issues that need to be resolved. Once the issue was tabled in bargaining, that became the forum for its resolution. In this case, the union decided that other issues were more important, and withdrew the proposal that would have insulated its bargaining team from discipline. At that point, the union has, as it were, elected to "take its chances".
Third, in my view, this is one of those situations in which it was incumbent on the union to seek clarification or other assurances, particularly in light of the employer's counterproposal. In my view, the employer's counterproposal on a disciplinary process for Mr. Yuille and Ms. Meilenner promises less that what the union is claiming was understood from the June 5, 1998 letters. In such circumstances, it was incumbent on the union to seek clarification of what consequences would follow if both parties withdrew their proposals about the disciplinary issue. The Board, therefore, concludes that Pathways has not breached the duty to bargain in good faith. As set out at the start of this decision, the Board retains jurisdiction to make remedial orders if appropriate once the arbitrator has made her findings on the discipline and discharge of Ms. Meilenner and Mr. Yuille.
This panel is seized.