1756-00-U Lawrence Kevin Redman and Stephen Bell, Applicants v. Ontario Public Service Employees Union and its Local 256, Responding Party v Superior Ambulance (1986) Limited and 501781 Ontario Limited (operating as Fleetwood Ambulance Service), Intervenor.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Robert B. Reid, L. Kevin Redman and Stephen Bell appeared on behalf of the applicant; Nelson Roland and Cameron Walker appeared on behalf of the responding party; Erin Kuzz appeared on behalf of the intervenor.

DECISION OF THE BOARD; October 16, 2001

1. This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party (referred to as the “union”) has violated section 74.

2. A consultation was held with respect to this matter and all of the parties had a full opportunity to make their submissions to the Board.

3. There was not much dispute about the relevant facts. The two applicants were paramedics working for the intervenor. They were classified as Paramedics I and wanted to receive the training necessary to be promoted to Paramedics II. Paramedics II require “advanced life support” training. The collective agreement provided for promotion in order of seniority where candidates are relatively equal, but it did not refer to training. The grievors filed grievances in 1995 because they felt that training opportunities should also be given in order of seniority. Twenty-nine other grievances with respect to advanced life support training were filed against the intervenor in and around the same time.

4. The advanced life support training necessary for advancement to Paramedic II was not provided by the intervenor but by the Medical Director at the “Base hospital” (in this case, Hamilton Health Sciences Centre). The Medical Director has the sole discretion with respect to who can take the training and who is certified at the end of it. The Medical Director set up screening tests which paramedics were required to pass before they could take the training. The Medical Director required the paramedics to receive a mark of 80 per cent or more to be certified. At some point between filing the grievances and the date upon which they proceeded to arbitration, the two applicants underwent the screening process. They received marks of less than 80 per cent.

5. The 31 grievances were referred to arbitration at the Grievance Settlement Board. The arbitration commenced in 1997. The applicants say the delay between the date the grievances were filed and the date the arbitration commenced was too long and that the union should have insisted they proceed more quickly. The union says that there was a huge backlog at the Grievance Settlement Board and that the delay was not unusual. Fourteen days of hearing were held. The applicants claim that they were never advised that the grievances were proceeding. Four more hearing days had been scheduled but it became clear that the intervenor would be going out of the ambulance business before the matter could be resolved. As a result of amendments to the Crown Employees Collective Bargaining Act, the new ambulance provider would not be considered a successor employer and therefore the union’s bargaining rights would be at an end. The parties therefore entered into negotiations and two intense days of mediation were held. Fortunately, the new ambulance service provider agreed to attend the negotiations even though it would not be a successor employer. The parties to the arbitration managed to negotiate a settlement which provided for training for 25 of the grievors who were considered to have achieved marks on the screening tests equivalent to 80 per cent. The agreement also provided that seven grievors would have the opportunity to go through the selection process and, if they received 80 percent or more, would receive training as it became available. Three of those seven had the option of choosing to accept $6,000.00 rather than go through the selection process. Under the agreement, the two applicants were to receive $2,000.00 each. It appears that the union agreed to different provisions for the different grievors based upon its assessment of the strength of their grievances. All of the grievances faced significant obstacles. For example, the union would have to argue that the reference to promotions being by seniority in the agreement meant access to training had to be by seniority. The union also had to face the problem of making the Medical Director a party to the grievances as only he or she could permit the grievors to take the necessary training. In the case of the grievors, the union faced the additional obstacle that they had gone through the selection process and had not achieved 80 per cent. The Medical Director would not offer training to someone who had been through the selection process and failed to achieve 80 per cent.

6. The settlement also contained the following provision.

This Settlement is subject to the necessary grievors executing their own, separate settlements, namely Lisa Sandridotti, Steve Bell and Kevin Redman. Should any of those settlements not be fully executed, all settlement agreements between the Employer and the Union and all other grievors shall immediately be deemed null and void and of no legal effect.

7. There were separate pages attached to the agreement for the applicants to sign as the union and the intervenor did not want them to know what had been arranged for the other grievors. The applicants refused to sign the settlement. However, before the hearing of the grievances was to reconvene, counsel for the union recommended that it exercise its authority to settle the matter even if the applicants did not consent. The union did so. The monies were then paid out to the applicants.

Decision

8. The applicants argue that the union violated the Act by delaying so long in proceeding with their grievances. They complain as well that the union failed to inform them when the grievances finally proceeded to arbitration. The union asserts that they were informed. They argue further that the union had no authority to settle the grievances without the applicants’ consent. Even if the union did have such authority, it could not exercise it after it included a provision in the agreement requiring the applicants to agree. The union says it did have the authority to enter the agreement without the applicants’ consent and that that was the responsible thing to do. If it had not done so, there would have been no settlement for anyone else and no longer any employer to enforce the collective agreement against. The union claims that the provision it negotiated for the applicants was reasonable in the circumstances.

9. After considering the submissions of the parties, the Board finds that the union did not violate the Act. The Board has held on numerous occasions that unions, including the responding party, have the authority to settle grievances. The Board has gone farther and said unions should exercise that authority where a settlement is warranted. (see for example Ron Boyer [1997] OLRB Rep. March/April 183; George Lee [1994] OLRB Rep. Aug. 1009 and Catherine Syme [1983] OLRB Rep. May 775) The Board does not substitute its judgment for the union’s in these matters but only considers whether its decision to settle a grievance was arbitrary, discriminatory or motivated by bad faith. The union’s decision in this case was none of those things. If there were ever circumstances in which a settlement was warranted they were the circumstances facing the union in this case. The union was in a situation in which there would soon be no collective bargaining relationship and therefore no way to achieve any real remedy. Fortunately, it was able to negotiate a settlement which went a good way to resolving the issue for most of the grievors. The union had valid reasons for its assessment that the applicants’ grievances had less likelihood of success than the others and did not act discriminatorily, arbitrarily or in bad faith in agreeing to different terms for them.

10. The Board also does not find that the union acted in bad faith in settling the matter without the applicants’ consent even though it had included a clause requiring their consent in the settlement. It would have been irresponsible to allow the applicants’ refusal to sign the settlement to unravel the agreement for everyone else, given the unlikelihood of achieving any remedy, let alone a better one.

11. The Board does not find that the union violated the Act by not insisting on processing the grievances earlier. The backlogs which have occurred at the Grievance Settlement Board at various times are notorious. If the union did not inform the grievors that the matter was proceeding to arbitration, it should have . However, there is no reason to think that the grievances had progressed to a point where the grievors’ personal input was necessary. It appears that the selection, training and promotion system for ambulance drivers as a whole was under scrutiny and it does not appear that the parties had proceeded to a consideration of the grievors’ individual circumstances. Finally, while it was at least unwise, and perhaps inappropriate, for the union to try to avoid informing the applicants about the terms the settlement provided for other grievors, that does not change the fact that there were good reasons for the union to negotiate separate deals. In the circumstances, the Board finds that the union did not violate section 74 of the Act.

12. This application is dismissed.

“Laura Trachuk”

for the Board