Loading...
HomeMy WebLinkAbout1990-0870.Hawke.91-01-31IN TBE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD . BETWFSN FOR THE GRIEVOR FOR TEE EMPLOYER HEARING: November 2, 1990 OLBEU (Hawke) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer B. Fisher I. Thomson D. Halpert Vice-Chairperson Member Member L. Steinberg Counsel Xoskie & Minsky Barristers & Solicitors ,R. Drmaj Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HAWKE: This grievance alleges that the grievor should have been offered the opportunity to work overtime on the day shift on the job of Console Control Operator. The Employer in fact had this work performed on a non-overtime basis by another bargaining unit employee not regularly employed in the control department. The Union conceded that there is nothmg in the Collective Agreement which requires this work to be done on an overtime basis, however, they are relying upon an agreement between the individuals’in the control department and the employer which it says creates an estoppel situation. The facts in this case are quite straightfomard and not in dispute. The grievor’s position is that of a Console Control Operator.. He controls the console which, in part, runs the highly computerized and mechanized warehouse. The warehouse is run on a 24 hour basis thus there are three shifts of console Control Operators; day shift 8:00 a.m. to 430 p.m., afternoon shift 4:00 p.m. to 12:OO midnite and nightshift 12:00 midnight to X:00 a.m. On May 7, 1990, the grievor was scheduled to work: the afternoon shift. The day shift Console Computer Operator called in sick prior to the start of his shift. His work was then assigned to a Trainee, who regularly works in another department. The grievor was not asked to work this overtime, and had he been asked, he would have agreed to do so. From the opening of the Durham Warehouse in April 1984 until January 1, 1990, it was the consistent #practice that unscheduled absences of the day shift operators would be covered by the use of voluntary overtime by the other console operators. The departing night shift operator would be offered four hours -2- overtime and.the afternoon operator would be offered four hours’ voluntary overtime. Only if this was refused would the employer use other employees to perform this work. This practice was first set out in a written document recording a meeting of the console operators and management on October 24,1987. The grievor was present at this meeting. The minutes of that meeting contained the following provision: “Overtime: It was agreed that the current system of overtime assignment was acce table if the followin modifications were made.... overtime caused by a ?I senteeism. DAYS&I? person who is off sick is required to phone in by 730 so that midni staying four hours. Afternoon C2 Console cf ht man has operation of perator will be contacted first to see if he wants to come in four hours earl . If he declines, the afternoon CI Console Operator will be aske J . It was agreed that this overtime shall not be subject to rotation as it is unplanned, and limited in the pool of personnel.” Another document entitled “Controls Department - Console Operators - Criteria Used for Soliciting Overtime” has the following provision: “5) Sickness Dayshift - Midnight Opxator 4 lys. .4f4feo$;r erator 4 hrs. (fill m wtth Tramees if j! This was prepared by Mr. Wells, who at the time was the Acting Manager, although still a member of the bargaining unit. This document was prepared either in 1988 or 1989, after the Employer had introduced the Trainee System. This practice and the documents referred to in this decision were not known to the Union prior to the filing of this grievance. The Union was not a a party to the “agreement” which was between the console operators as individuals and management. Moreover, this subject did not come up in the latest round of -3- collective bargaining which led to the current collective agreement as the Union did not know of its existence. Furthermore, there was no evidence that the Union would have altered its bargaining position if it had known of this arrangement prior to bargaining. The Employer unilaterally changed the overtime procedure in January of 1990, after the signing of the current collective agreement. The Console Operators did not consent to this change. The requirements of estoppel are usefully set out in a GSB decision entitled Brown 0513/86 (Barrett) at pages 6 - 13: 2. The representation relied u on must be clear and unequivocal. Conduct whtc . i!. IS ambiguous or subject to a number of conflicting interpretatrons cannot form the basis of an estoppel. 3. The promise must be one that is voluntarily given; not extracted by force or coercion. 4. The promise must be one which was intended, or was reasonably construed as being intended, to affect the legal relations between the at-ties. A person may well grant an indulgence wtt 4 out ever Intending to forego his strict leg.aJ rights. The romisor is not estopped from rel ng on terms w rch m the past Il? Pi have not been e arced through error or inadvertence. 5. The person relying on estoppel must show that he: altered his position on the strength of the promise or representation that was made. An alteration of posrtron may take the form of an on&ton. It is sufficient been induced to conduct otherwise would have done. shown however to have been in reliance on the -4- promise; In the labour relations context reliance may take the form of forebearing to raise an issue t the bargaimng table which but for the promise would otherwise have been raised. 6. It must be shown that the alteration of position by the promrsee was to his detriment or prejudice. In essence the object of the doctrine is to prevent aparty from acting m a manner mconsistent wtth an expense or implied promise, when to do so would be unconscionable. ” The question that arises is whether or not the plea of estoppel is defeated by the fact that the representation was not made to the Union, but rather to individual bargaining unit members. This issue has been extensively reviewed in- a decision by Arbitrator Monroe in British Columbia in a’case entitled Re: British Columbia Forest Products Lt. and IAW Local l-80 8 LAC (3d) 218. The result of that case is that estoppel can be relied upon by the Union even where the representation has been made by the employer to an employee, where the Union later “adopts” the representation. We are satisfied therefore that notwithstanding the fact that the representation was not made to the Union, the Union may rely upon it after “adopting” it, which it has done in this case. This takes care of the first criteria referred to above. There is no doubt that criteria 2,3, and 4 have also been met in this case. However, there is absolutely no evidence upon which this Board could find that either the grievors or the Union in any way altered any position they may have taken in reliance upon the Employer’s representations. The Union obviously could not say that they altered their position at the bargaining table because of the representations in that they were not even aware of these representations at the time the current collective agreement was negotiated. The only possible detriment that the grievors can show is that had they known their -.5- “agreement” was not enforceable, they would have gone to the Union with a complaint for resolution. However, there is no evidence as to whether or not the Union would have even included this proposal in their bargaining agenda if they had known about it in time. A similar fact situation arose in a judic:ial review of Arbitrator’s Teplitsky’s decision by the Divisional Court in Re: Metropo~litan Toronto Civic Employees Union, Local 43, CUPE and Municipality of Metropolitan Toronto et al 50 OR (2d) 618 (Reid) at page 628.: ‘The situation before the arbitrators in this case is different from the foregoing cases in a way I think significant. Here the representations are now shown to have induced the union to act to its detriment. There is no suggestion that, because of representations made to these em loyees, the negotiators for the union were le % to assume that benefits would be paid to those employees on a on,e for one basis, notwithstanding this agreement, and there is no evidence of a course of conduct on Having failed to prove an essential element of estoppel, the grievance must fail As a further note, even if the estoppel argument were to have succeeded, it would not necessarily have meant that the grievance would have succeeded as the Board could have found that the Employer was free to revert to its strict legal rights upon proper notice. This following quote from Beaulne (Simmons) 606/86 explains this concept well. -6- However, Boards of Arbitration have incorporated the principles of estoppel mto the arbttral jurisprudence which has been acce ted, at least in Ontario in CNR Corn any et al and geatyt al (1981), 128 D.L.R. (3d) 2s (Or+. Div. Ct.). ut the eqmtable doctrine of estoppel has its foundattpn in reasonable notice. That is, eqmty stepped m to prevent ap%to a.contract from revertmg to hts strict leg rtg ts wtthout gtvmg the other party who had rehed on a promise or certain conduct to his detriment an opportunity to alter his osition. What constitutes reasonable notice WI 1 depend on the circumstances of each P individual case. In certain instances arbitration boards have held that the estoppel ceases to exist when the term of the Collective Agreement expires. See Re M. She pard and Minist of Correctional Services (1986f1 G.S.B. No. .510/% (Roberts). However, other arbitrators have found the defence of esto pel to be appropriate only in the short term or on t I! e filing of a Supermarket of @evame. See Re RaheJs orth Sydney and Retal Wholesale & (34 6.5 (MacDonald) anA the cases cited t De artment Store Union Local 596 (1983 h 30 L.A.C. erein. In this case the Union and the grievors had approximately four months’. notice of the change as the change was announced in January 1990 and the incident leading to the grievance occurred on May 7,199O. It may well have been that four months’ notice of this change was suftkient in the circumstances, although it is not necessary to decide that point given the Board’s position on detrimental reliance. Dated at Toronto this? lday of January, 1991. \ . D.Halpert ’ . Member