Loading...
HomeMy WebLinkAbout1986-0597.Policy.88-02-23597186 IN.THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC1 Before THE GRIEVANCE SETTLEMENT BdARD Between OLBEU (Policy~ Grievance) .r '. : and LIQUOR CONTROL BOARD OF ONTARIO For the Grievor J. W. Samuels Vice-Chairman J. Solberg Member G.J. Milley Member A.M. Heisey Counsel Perry, Farley Barristers & Solicitors For the Employer R.W. Little Counsel Hicks, Morley, Hamilton, Stewart & StOrie Barristers & Solicitors Hearing nay 5, 1987 October 16, 1987 December 14, 1987 Grievor Employer 2 . ,Ihe Union seeks a declaration that all empioyees,’ including Clerk 4s and Assistant Managers, are entitled to premium pay under ‘Article 6.12 of the collective agreement, whenever the employee is the Acting Manager (. . is .~ assigned to act on the Store Manager’s dav off, subject to ‘the @alification in the second sentence of Article 6.12(a).’ ’ Fe formalgrievance was filed in June. 1986, and would be determined according to the. collective agreement then ‘in force. However, at our hearing, the.pa&s agree,d that we should consider‘ events following the . grievance, mcludmg the negotiation’and conclusion of the 198i/88.cohective agreement; and ~that we’ should determine the matter both under the agreement in force~m June 1986, ‘and under the current collective agreement. It is expected that our award will assist the parties to settle a number of individual grievances which raise the same issue as.the policy grievance before us.‘. : ‘. . Article 6.12 reads: -. ., , .,~, ._ (a) The Boards agree to pay a premium of four dollars and sewnty-fiw cents (54.75) per day to an employee acting for the Slore Manager in his absence, provided he ii assigned to act for a tiinimutibf th& (3) con- sccutive hours. Such premium will not be paid 10 an Assistant Manager in charge df the’ second shift.’ Howwr. it would be applicable to the person dnig- natcd IO act for the Assistant Manager in his absence while working thesecond shift. Effective July 1.1986 the premiumpnda this provision shall be five dollars WOO) p&r day., (b) An CHIP~OYCC (other than those in (a) ibow) de& _ nated by,the Board IO replace another employee in a higher classitititibn shall receive a. premium of sm’wone cents (71c) per hour for each hour ruch duties are performed provided he works minimum of IWO (2) continuous days in the higher classification. Effective July 1.1986 the premium under thii provi- sion shall be seventy-five cqtr (75a) i%hoti:,, ‘.~ (C) A Liquor Store Clerk Grade 4 when aqingpr a Man- a&r t” a XI” store $xall k wd a prcmum m accord- ’ , an? with section (a) above. _j .! _. . .. On- the face of =Article 6.12;it would seem clear that the bunion is ,entitled to the declaration it seeks. Whenthe Store Manageris “absent”.(“not present”--The Concise Oxford Dichonary, New Edition ,1982), and the reason for his absence is irrelevant (vacation, illness, or scheduled day-off), 3 the person assigned to act in the Manager’s place is entitised to the premium provided in Article 6.12, subject to ‘the case of an Assistant Manager in charge of the second shift. This point has already been made by the Grievance Settlement Board in Kalichuk, 482183. This case concerned the question of whether the Assistant Manager is entitled to the premium on the first shift, when the Manager is working the second shift. At first this Board dismissed the grievance (decision of Verity et al, April 2, 1984). But this decision was overruled ,by the Divisional ,Court on April 2, 1985. : The matter was remitted to a new panel of&e Grievance Settlement Board, this time ch~aired by Mr. P.-Draper. This panel allowed the grievance :in its decision of November 25,1985, saying in part (at page 4): ., It seems to us that a Manager is absent within the meaning of Article 5.12 (note, this is now: 6.12) (a) whenever he is not on duty because he,is not scheduled to work. Whether he is absent because of an illness or a vacation, or simply because he is not required to be on duty for part of the daily period when the store is operating, we think is immaterial. The article makes no such distinction and we ‘would expect that if it were intended to apply o’my to absences of managers for extended periods, or for specific reasons, either it would not have a minimum qualifying period for payment iof the premium, or it would not have one as short as three hours. And this decision was upheld by the Divisional Court on September ‘22, 1986. .However, now the LCBd argues that the parties’ came to a special agreement governing the application of Article 6.12, and that this special agreement applies to the situation raised before us. In October 1977, in the Memorandum of Agreement for the renewal of the collective agreement, the parties said: i “ 4 The undersigned principals confirm the.fohowing terms of settlement.of a renewal Collective Agreement between them:; : A. The Agreement shall be effective from date of ratification except as otherwise, provided herein.....and shall continue in effect until June 30,1978. B. The Agreement shall be in the form of the prior Collective Agreement except as specifically modified herein. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0. The parties have further agreed to the following matters which ,shall not form part of the Collective Agreement:, . . . . . . . . (5) Acting Store Man= The parties have reached agreement concerning the interpretation of Section 5.12 relating to the entitlement of Assistant Store Managers to the $4.00 per day premium. A copy of a letter reflecting the understanding and agreement is attached as, Appendix F hereto. In keeping with this understanding the Association agrees to withdraw the policy grievance dated February 25, 1977. A copy ,of the above mentioned grievance is attached to Appendix F. (Note--Article 5.12 has now become 6.12) . And then Appendix F, to which reference is made, in item U(5), provides: ,I YZith regard to your grievance dated February 25, 1977 protesting re; moral oi one Assistant Xanagcr in double khiit stores, it is o=r contczticn thit the filling of such position is’a matter for management decision which is not s,;bjec: to,any terms of,the Co!lcctive A.grccme.<. For th;: rcssoz, we do not agree that t.here.has been any \i~o!ation of the Collective Agrcz- mcnt in.the action protested by the grie*:ance,’ We would advise, however, that it has now been decided that the positions in questi will be filled and that WC plan to maintain such positions in .I double shift stores for the foreseeable iuture. We ta!ie t!lis action on the cndcrs:andir.g that the premium of $4.00 per day provided under Section 5. 12 of the cnrrcnt Collective Agreement to an cmployce acting for t’:e S:ozc \knager in hisfhcr absence, will not be paid to any Assistant .Xsnz:er YC- iic1-ir.z the Store Manager during the latter’s day off. Ye trcst that this will scrvc to satisfy your concerns in tSz matter and t!v: tt,e ou:standing gricvznce in this matter will be withdra&n. In our view, these provision of the 1977 Memorandum of Agreement mean the ,following: (a) The “renewal Collective Agreement”, to which reference is * cc> Cd) (4 made in the preamble, will continue in effect until June 30,1978 (this is provided in paragraph A. where the “renewal Collective Agreement” is referred to briefly as “The Agreement”). Then paragraph U provides, for certain agreed matters which will ti be in the renewal Collective Agreement. One of these matters is set out in sub-paragraph 5--that Article 6.12 will be interpreted in accordance with the understanding recorded in Appendix F. Appendix F then says that the premium in 6.12,“will not be paid to any Assistant Manager relieving the StoreiManager during the latter’s day off’. This understanding deviates from a plain reading of Article 6.12, and applies only to the situations expressed. It says that the Assistant w shall not receive the premium on the Manager’s day off. It does not preclucle the Clerk 4, or any other employee, from receiving the premium. And the quid,pro quo for this relief granted to’the LCBO is the LCBO’s undertaking to maintain more than one Assistant Manager in double shift stores. Without this~undertaking, the LCBO would have the right to “assign” staff as it wished. 6 (f) Furthermore, this understanding concerning the application of Article 6.12 had no expiry date; A reasonable interpretatiou of its duration is that this is the way that Article 6.12 would be applied by the parties until the operative provisions of Article 6.12 were changed, or until the parties came to’ a different agreement concerning the application of Article 6.12. Suppose that the parties had gone to arbitration iiis,tead of coming to the understanding recorded in Appendix F; and the arbitrator had interpreted Article 6.12 in the way that the parties agreed it. ,. should be applied. If the parties left Artic!e 6.12 untouched at the next round of negotiations, it would be assumed that the arbitrator’s interpretation would. still apply. Neither party could grieve that the clause should now be interpreted in a different way because the te& of the old collective agreement had expired and a new .collective agreement had come into force. In like vein, when the parties themselves agree on an interpretation or application of a clause in the collective agreement, it must be taken that this is the interpretation or apphcation which,will apply unless the provision in question is changed, or unless the parties come to a new agreement on the mterpretation or application of the clause.. (g). In our case, Article 6.12 has not been changed materially since 1977, nor have the parties come to any Jater agreement on its application, therefore in our vie& Appendix F to the 1977 Memorandum of Agreement continues to apply. . . . However, whatever the legal effect of this 1977 agreement, the evidence before us disclosed that, up to *d-1986, there was ,a widespread practice which was’contrary to this agreement. Up to mid-1986, it appears that, in many of the Boards 600+ stores, Clerk 4s and Assistant Managers were in fact paid the premium when they.acted for the Store Manager in his 7 absence, includinP on the Manager’s dav off. In store upon store, the Clerk 3 or 4 who prepared the payroll would show that the Acting Manager should be paid the premium on the Manager’s day off, and this entrywould be passed by all later authorities who dealt with the payroll (Manager, District Supervisor, eayroll Department at head office), though it ‘would have been difficult for these later authorities to know that the premium was being paid for service on the Manager’s day off. Mr. R. MacDougall, the LCBO’s Staff Relations Officer since 1975, testified that, in his opinion, it has always been Board practice m to pay the premium on the Manager’s regularly scheduled day off. He recalls a bulletin to this effect in 1977, after the long standing practice was written ,down in the Memorandum of Agreement. However, there are detailed instructions governing siore operations in the Store Procedures Manhal and the Store Operating M&m& including directions concerning premium payments, and these instructions do ti say anything about an exception in the case of the Manager’s day off. Indeed, in the Store Operating Manual. the directions concerning the payment of the premium under Article 6.12 ,largely repeat the Article,. and the clear impression given is that me premium is to be paid for ail absences over three consecutive hours, including the Manager’s day off. Whatever management thought about the paying of the premium on the Manager’s day off, the evidence before us shows clearly that the Union had either forgotten about the 1977 agreementor thought that it no longer applied. The official Manuals, and the widespread practice of paying the premium on the Manager’s day off, led the Union to ‘believe that the Manager’s day off was an “absence” which attracted the premium under Article 6.12. In these circumstances, in our view the LCBO’s practice was sufficient to constitute a representation (a “promise”) to the Union that the Board would not insist on the strict application of Appendix F to the 1977 agreement, and this representation gives rise to a promissory estoppel. . 8 I An oft-quoted statement of the.principle of promissory estopped is’ found in the judgment of .Lord Hodson in Ajayi v. R. T. Bristoe (Nigeria) Ltd., [1964] 3~Al.l ER 556 (PC), at page 559: The principle, which has been described as quasi estoppel and. perhaps more aptly as promissory - estoppel, is that ~when one party to a contract in the : absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party. This equity is, however, subject to the qualification (a) that the other party has altered his position, (b) that the.‘Rromissor can :resile from his promise on giving reasonable notice, which need not be formal notice, giving the ,.,.promisse,e a reasonable opportunity of.~ resuming his position, (c) the promise-only becomes final and ‘+-revocable if the promissee cannot resume his position. And on promissory estoppel in the context of a collective agreement, see in part&ulai Re Dominion Stores Ltd. and Retail, Wholesale and Department Sfor@ Union, Local 414 (1984), 13 LAC (3d) ~11 (Weatherill), where it was found that there was not a sufficient representation to ground an estoppel; Re Dow Chemical Ctinaaiz Inc. and Energy and Chemical Workers Union, LobI 672 (1982), 7 LAC (3d) 385 (Roberts); and’Re Southam Murray Printing (Council ‘of Printing Industries of Canada) and T&r-onto Typographical Union, Local 91 (1986), 24 LAC (3d) 76 (Swan). In our case, the “contract”, in question is the understanding set out in Appendix B to the 1977 Memorandum of Agreement. The LCBO represented (“promised”) that it would not enforce its rights under the 1977 agreement. The Union gave.no legal consideration for this promise. The Union altered its position ~by not negotiating a change in the 1977 agreement in later negotiations. Therefore a promissory estoppel arises, preventing the LCBO from insisting on its strict rights under the 1977 agreement. However, this promissory estoppel can be terminated if the promiser (in this case, the LCBO) gives reasonable notice to the, Rromissee of an I 9 intention to revert to the strict application of the original agreement (the 1977 understanding), and the promissee (the Union) has ,had a reasonable opportunity to resume its position. Generally, in the context of organized labor relations, a promissee in these situations is taken to have reasonable opportunity to resume its position when the collective agreement is up for renegotiation. In Re Dow Chemical Canada Inc. and Energy,and Chemical Workers Union, Local 672 (1982), 7 LAC (3d) 385 (Roberts), the learned arbitrator said (at page 388): In other words, whether an estoppel survives renegotiation of a collective agreement depends upon the facts. Do the facts show (~1) that one party gave reasonable notice that it was resiling from the , promise raising the estoppel; and (2) that the party relying upon the estoppel was given a reasonable opportunity to resume his original position? In our case, by mid-1986, the LCBO made it known to the Union that it considered the premium on the Manager’s day off to’be contrary to the collective agreement. The issue came up in discussions relating to the Kalichuk grievance, to which reference was made earlier. On April 28, 1986, a bulletin was sent to all Directors and District Supervisors informing them that a Manager’s regular scheduled day off is n&considered as an “absence” which attractsthe premium pay. Some of the Supervisors gave copies of this memorandum to their bargaining unit employees in charge of payroll. Mr. J. Miles, the Union President since 1984, received a copy of this memorandum in June or July 1986. On October 22, 1986,‘a general circular was issued by Mr. F. B. Rankin, the Director of Retail Operations, saying that “An Assistant Manager is not entitled to such premium when acting for the Manager on the Manager’s day off’, and this..applied also to Clerk 4s in C stores. It appears that the Union was still not clear on the basis for management’s interpretation of Article 6.12 until the negotjations in October 10 1986 for the 1987/88 collective agreement. At the negotiations, management raised the 1977 Memorandum of Agreement and made it clear that the LCBO .considered the interpretation of Article 6.12 to continue in force. The LCBO was of the view that it had lived up to its part of the bargain---it. had continued to appoint Assistant ‘Managers to double-shift stores, as provided in Appendix F to the 1977 agreement---and the Union had to live up to its end, by not claiming premium bay for the Manager’s day off. The LCBO proposed that the 1977 understanding should no& be incorporated into the new collective agreement, but this wasn’t done. At the same time, however, neither side said that the 1977 agreement was withdrawn or that the LCBO should stop appointing Assistant Managers. In our view, in mid-1986, the LCBO gave clear notice that it intended to revert to’its rights under Appendix F to the 1977 Memorandum of Agreement. This position was. maintained. steadfastly throughout the negotiations for the 1987/88 collective agreement. The Union had an opportunity at that set of negotiations to bargain for a change in the 1977’ understanding. This was an opportunity to “resume its position”, in the language of promissory estoppel. Therefore, the promissory estoppel came to an end when the 1985186 collective agreement expired. The result of all of this is,that the Union is entitled to a declaration that. the LCBO must pay the premium under Article 6.12 to any employee, including Clerk 4s and Assistant Managers, whenever the employee is the Acting Manager assigned to act on the Store Manager’s dav off, subject to the qualification in the second sentence of Article 6.12(a), commencing 14 days .prior to the date of filing of the policy grievance in June 1986, until the expiry of the 1985/86 collective agreement (December 31, 1986). This results from a plain reading of Article 6.12. The LCBO~is estopped during this period from insisting on the special interpretation of Article 6.12 set,out in Appendix F of the 1977 Memorandum of Agreement. Thereafter, the LCBO is entitled to rely on the understanding reached in 1977 concerning the application of Article 6.12. This understanding, 11 recorded in Appendix F to the 1977 Memorandum of Agreement, provides that the premium “will not be paid to any Assistant Manager’relieving the Store Manager during the latter’s day off’. This understanding deviates from a plain reading of Article 6.12, and applies only to the situations expressed. It says that the Assistant shall not receive the premium on the Manager’s day off. It does not preclude the Clerk 4, or any other employee, from receiving the premium. Clerk 4s, including a Clerk 4 in a C store, and other employees who act for the Store Manager. in his absence are entitled to the premium provided in Article 6.12. i :DAT3D AT TORONTO this 23rd day of February: (1988. , I TV=== J.W : 3d!L.LL Samukls, Vice-Chairman J. SOLBERG, MEME$)R G.J. MILLEY, MEX5ER .