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HomeMy WebLinkAbout1996-0488.Group.98-02-05ONmRn EMPlOYtS DE L4 COlJRONNE CROWN EMPLOYEES DE LWARO GRIEVANCE COMMISSION DE SE’lTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS S7REET WES7; SUITE 600, TORONTO ON M5G 12. 180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZB TELEPHONEjTiLiPHONE : (416) 326-1388 FACSlMlLE/TriLLiCOPIE : (416) 326-1396 GSB # 0488196 CUPE 1750 # 95-27 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINTNG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Group Grievance) BEFORE FOR THE UNION - and - Grievor The Crown in Right of Ontario (Workers’ Compensation Board) Employer R.H. Abramsky Ms. L. Paddison National Representative Canadian Union of Public Employees Local 1750 FOR THE EMPLOYER Ms. P. Hillen Legal Counsel Legal Services Division Workers’ Compensation Board Vice-Chair HEARING December 8, 1997 PRELIMINARY AWARD At issue is what “expense policy” is currently in effect between the parties -- whether it is the July 1985 policy (Document 62.06.01) as the Union contends, or the 1991 policy (Document 68.01.08) as the Employer contends. A number of grievances involve this issue and the parties agreed to proceed first with the preliminary issue of which policy is in effect. The parties agreed to a statement of facts which are incorporated below. Article 24.04 (a) of the current collective agreement, the January 1, 1993- December 3 1, 1993 agreement, provides, in pertinent part, as follows: 24.04 Meal Allowance (a) The current practice concerning meal and expense policy will be continued for the duration of this Agreement. The wording of this provision has remain unchanged since 1990, and first appeared in the parties’ initial collective agreement in 1975. Effective July 1985, the Employer revised its expense policy (Document number 62.06.01). That policy superseded an August 6, 1980 policy, and, according to the Union, it is the expense policy which should be currently in effect. 2 According to the stipulated facts, the July 1985 policy was “replaced with the {Travel Meal and Accommodation Expense policy, adopted by the Employer on April 9, 1990...” (the “April 1990” policy), although it was not immediately implemented. One of the provisions in this new policy was that the normal commuting costs between an employee’s home and normal working office would be deducted from the employee’s business travel expenses. On August 29, 1990, then Manager of Employee Relations, Brian Homer, wrote the President of C.U.P.E., Local 1750, Frank Mucci, advising him of the policy change and providing copies of the new policy, Mr. Mucci objected to the changes, stating that it was unacceptable that the Employer would approve a policy which affected its members without meeting with the Union to discuss the policy. Thereafter, the April 1990 policy was slightly revised and a new policy was adopted by the Employer on September 7, 1990 (the “1990 Policy”), and notice of the new policy was provided to all directors. The Union’s response was to lodge a complaint concerning the Employer’s recently announced travel expense policy. On December 11, 1990, the Union filed a complaint before the Ontario Public Service Labour Relations Tribunal alleging that “[slubsequent to the commencement of negotiations, the Employer introduced three (3) policies which clearly conflict with existing provisions of the collective agreement.” One of those policies involved the deduction of commuting expenses as set forth in the 1990 policy. 3 \\ Subsequent to discussions with the Union regarding the 1990 Policy, the Employer removed the provision regarding deduction of commuting expenses from the 1990 policy. A revised policy, the “1991 Policy”, was formulated by the Employer. The 1991 Policy resulted in changes to previous administrative practices in the reimbursement of travel expenses. It was tabled for discussion with the Union in collective bargaining sessions on January 3 1, 1991 and February 1, 1991. Negotiation notes of those meetings from both the Union and Employer indicate that the 1991 Policy was reviewed at those meetings. After those meetings, the 1991 Policy was formally adopted by the Employer on February 14, 1991. It had a general effective date of October 1, 1990 (the expiry date of the prior collective agreement), while the rates for kilometre allowance and meal allowance were effective as of January 1, 1991 and March 28, 199 1 respectively. On February 19, 199 1, notice of the 199 1 Policy was provided to all staff. On March 26, 1991, the Employer and the Union reached consensus on “all outstanding issues with respect to a renewal of the Collective Agreement to be effective from October 1, 1990 to September 30, 1991.” The Memorandum of Settlement provided as follows in regard to Article 24.04: Article 24.04 Meal Allowance Breakfast $6.15 4 - Lunch $10.20 Dinner $15.00 i\ Effective the date of signing the collective agreement In a memorandum dated April 5, 1991, Brian Homer, Manager, Employee Relations advised G. Picken, Executive Director, Human Resources and Development, that the Union had withdrawn its Tribunal complaint in light of the Employer’s removal of the commuting expenses deductions from the travel expense policy and the recently negotiated collective agreement. Consistent with that memo, on March 19, 1991, the Tribunal advised the parties that the complaint had been terminated. The Union did not raise any objection to the provisions of the 1991 Policy from the time it was tabled to the time the negotiated settlement was reached. Since 1991, there have been two negotiated collective agreements and subsequent extensions to the current collective agreement but enforceability of the 1991 Policy was not raised as an issue during these bargaining discussions nor was the issue raised generally until 1995. During this period the 1991 Policy has remained the same. The Union has also relied on the 1991 Policy and its application in other grievances, such as Grievance 94-37 and 94- 21, where the enforceability of the 1991 Policy was not in issue. In addition, an agreement was signed on June 11, 1996, between Yvonne Car-r, then President of CUPE Local 1750 and Linda Jolley, then Vice President of Human Resources and Client Appeals, that the application of the 1991 Policy would be limited to one work base (as opposed to more than one) on a without prejudice basis until the next round of bargaining. The term “work base” does not exist in the July 1985 policy. 5 \ \The parties are currently in the collective bargaining process, but as of the date of the hearing, had not yet tabled proposals for the new agreement, Arguments of the Parties The Union’s position is that the 1991 Policy is not enforceable or in effect since it never agreed to the new policy. It asserts that the presentation of the 1991 Policy during negotiations was for information purposes only and all that the Union agreed to, as reflected in the Memorandum of Settlement, was an increase in the meal allowance and the kilometre rate. It insists that the “current practice concerning meal and expense policy” to which it agreed was the 1985 po!icy, document number 62-06-01. It points out that the negotiation notes show only that the new policy was discussed, not that the Union agreed to the change in policy. It submits that while it did not object to the new policy, it did not agree to it and contends that to change the “current practice”, the Union would have had to agree to it. Since it did not agree, the 1985 policy was still in effect under the new collective agreement. The Union also relies on two prior GSB decisions, CUPE (Zonni/Hardy) and Workers’ Compensation Board, GSB Nos. 812189; 1472189 (Kirkwood, Vice Chair) and CUPE 17.50 (Shay) and Workers ’ Compensation Board, GSB No. 1403188 (Kirkwood, Vice Chair). The Union contends that the Board held, in both of those cases, that Article 24.04 of the parties’ collective agreement incorporated the Policy and Procedure Manual pertaining to the conditions for payment of expenses. Therefore, it argues that the- 6 Employer’s adoption of the 1991 Policy contravenes the collective agreement, which, ,+mder the GSB case law, incorporates the 1985 Expense policy. It argues that by maintaining the existing language, it maintained the 1985 policy and asserts that if the employer wanted to change this term of the collective agreement, it had to have had agreement from the union. It f%rther argues that such a substantial change should be clearly documented, which was not done here. The Employer, in contrast, argues that Article 24,04(a) requires it to maintain its expense policy only during the term of the collective agreement, not beyond that. It submits that it was fi-ee to amend the policy upon the expiration of the parties’ collective agreement, which it did on February 14, 1991, and argues that the presentation it made to the Union concerning the 1991 Policy during negotiations put the Union on notice of the change. The Employer argues that the Union was aware that the Employer adopted the 1991 Policy before negotiations were finalized yet raised no objections and signed off on Article 24. It states that it was incumbent on the Union, after the Employer tabled the 1991 policy, to negotiate the continuation of the old policy or seek changes to the new one. Instead, the Union was silent. Accordingly, in the Employer’s view, the revised policy was not an “outstanding issue” between the parties and consequently was not specifically referred to in the Memorandum of Settlement. The Employer further submits that the Union’s acquiescence to the change in policy was further evidenced by its withdrawal of the Tribunal complaint and its failure to 7 file any further grievances or complaints about the new policy from 1991 until 1995. It \points out that two subsequent collective agreements were negotiated during that period, as well as agreement extensions, without the new policy being challenged by the Union. In terms of the GSB cases cited by the Union, the Employer contends that they only mean that the Employer could not change the policy during the term of the collective agreement. Accordingly, the Employer argues that the “current policy” under Article 24.04(a) is the 1991 Policy. In the alternative, the Employer argues that if I conclude that the 1985 Policy is still in effect, the Union should be estopped from relying on that provision. The Employer submits that all of the elements of equitable estoppel are present and that after so many years of silent acquiescence it would be highly inequitable for the Union to now argue that the 1985 policy is still in effect. In support of its argument regarding estoppel, the Employer cites to Re City of Penticton and C.U.P.E., Local 608 (1978), 18 L.A.C. (2d) 307 (Weiler); Re Fieldfresh Farms Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees Local 647 (1997), 61 L.A.C. (4th) 182 (Goodfellow); Dartmouth Ambulance Ltd. and C.U.P.E. Local 3264 (1993) 33 L.A.C. (4th) 78 (Sloane); and Re Domglas Inc. and Aluminum Brick & Glassworkers International Union, Local 2602 (1994), 40 L.A.C (4th) 398 (Keller). 8 Qacision Based on the stipulated facts and arguments of the parties, as well as the cited arbitral jurisprudence, I conclude that the “expense policy” currently in effect is the 1991 Policy. Article 24.04 (a) states that “[tlhe current practice concerning meal and expense policy will be continued for the duration of this Agreement.” This same language existed in prior agreements and did not preclude the Employer from amending its policy. What it does preclude is amendment of the policy “for the duration” of the collective agreement. In other words, no change may be made to the policy during the term of the agreement. This interpretation is consistent with the GSB cases cited by the Union. In CUPE (zonni/Hardy) and Workers’ Compensation Board, supra, the arbitration board concluded that “[b]y including a reference ‘expense policy’ in article 24.04, the parties have agreed that the terms of the expense policy as set out in the Policy and Procedural Manual will not be changed during the course of the collective agreement.” (Decision p. 8; emphasis added). Similarly, in CUPE 17.50 (Shaw) and Workers ’ Compensation Board, supra, the board determined that while management has broad rights to manage the organization, those rights are subject to the rights and obligations negotiated in the collective agreement. It held that “in articles 24.04(a) and 25.05 of the collective agreement, the employer agreed to limit its management rights, where those rights relate 9 to the reimbursement of certain expenses. It agreed that the current practice concerning meals and expenses is to be continued for the duration of the collective agreement.” (Decision p. 9, emphasis added.) These decisions, therefore, do not stand for the proposition that the 1985 policy was incorporated by reference into the collective agreement until a mutual agreement to change the policy was made. Rather, they stand for the proposition that management has the right to change the policy, but may not do so during the term of the collective agreement. In this case, no change was made during the term of the collective agreement. The 1991 policy was adopted by the Employer on February 14, 199 1, after the expiration of the parties’ collective agreement and before the parties had reached a new agreement. Consequently, when the parties agreed to Article 24.04(a) on March 26, 1991, the “current practice concerning . ..expense policy” was the 199 1 policy. The Union’s argument that the parties discussion of the 1991 policy was for informational purposes only cannot last beyond the Employer’s formal adoption of the 1991 policy on February 14, 1991 and its dissemination to all employees on February 19, 1991. In light of those developments, at the time the parties’ reached their Memorandum of Settlement, the expense policy had been revised. Further, the Union was made aware that there had been a change in the expense policy. Consequently, as of March 26, 1991, the “current 10 practice” which could not be changed during the term of the collective agreement, was IJQW the 1991 policy. But even if that was not fully understood in 1991, (i.e., even if there was some misunderstanding that the “current practice” remained the 1985 policy), that misunderstanding could not have continued for long. The 1991 policy was adopted by the Employer, notice was provided to all employees and the new policy was implemented. Yet the same contractual language set forth in Article 24.04(a) was adopted by the parties in the next two collective agreements. Clearly, when those subsequent agreements were negotiated there could have been no doubt that the 1991 policy was in effect and that the “current” expense policy was the 199 1 policy, not the 1985 policy. Thus, under Article 24.04(a) of the current collective agreement, the “expense policy” which is incorporated into the collective agreement is the 1991 policy. In addition, even if the Union is correct that the 1985 policy is still incorporated into Article 24.04(a), it would be estopped from asserting that contractual right. According to Brown and Beatty, Canadian Labour Arbitration, at 212210, three elements are needed to find an estoppel: 1. a finding that there was a representation by words or conduct, which may include silence, intended to be relied upon by the party to which is was directed. 2. some reliance in the form of some action or inaction, and 3. detriment resulting therefrom. 11 In this case, from 1991 to 1995, a period of four years and three collective agreements, the Union did not file a grievance or protest in any way the Employer’s implementation of the 1991 expense policy. This lengthy period of acquiescence to the employer’s implementation of the 1991 expense policy may be held to constitute a “representation” that the “expense policy” incorporated into the parties’ collective agreement under Article 24.04(a) was the 1991 policy, not the 1985 policy. Re Fieldfresh Furms Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, supra at p. 193; Re Domglas Inc. and Aluminum, Brick h Glassworkers International Union, Local 2602, supra at 404. As a result, the Employer had no need to bargain over this issue during the renegotiation of the parties’ collective agreement. A lost opportunity to bargain has been held to be detrimental reliance. Re Fieldfresh Farms Inc., supra at 194. Further, there would undoubtedly be a substantial cost to the Employer if the 1985 expense policy was determined to be in effect since it has been applying the 1991 policy for so many years now. In these circumstances, it would be inequitable to enforce the 1985 policy. As Arbitrator Michel Picher stated in Re Board of Commissioners of Police for City of Owen SoundPolice Association (1984), 14 L.A.C. (3d) 46, at pp.56-8, quoted in Re Domglas Inc., supra at 404-405 : It is reasonable for any employer in a collective bargaining relationship to expect that the application of any part of the collective agreement which does not meet with the approval of the opposite party will either give rise to a grievance or become a point of contention in the periodic renegotiation of the collective agreement. In this case the association had made no objection to the way in which the board of commissioners applied art. 14 12 over a great number of years. No grievance was filed since the article was first inserted into the collective agreement, nor was any word of objection :\ raised in the many successive rounds of renegotiation of the parties’ agreement. In my view, in these circumstances, it would be most inequitable to allow the association to assert successfully an interpretation . . . that is inconsistent with its many years of apparent acceptance of a contrary interpretation applied by the board of commissioners.. . . The same principle is applicable here. For all the foregoing reasons, I conclude that the current “expense policy” under Article 24.04(a) of the parties’ collective agreement is the 1991 policy. Dated in Toronto, this 5th day of February, 1998. air 13