HomeMy WebLinkAboutBagley Group 13-07-19IN THE MATTER OF AN ARBITRATION JUL 19 2013
i� r iiton
BETWEEN; e i nai Office
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
( "the Union ")
and
THE REGIONAL MUNICIPALITY OF HALTON
( "the Employer ")
Group Grievance Regarding Clothing Allowance
Before
Larry Steinberg, Sole Arbitrator
Appearances
For the Union
Mitch Bevan, Grievance Officer
For the Employer
Craig Lawrence, Counsel
Greg Sage, Chief of Paramedic Services
Mary Killeavy, Director of Haman Resource Services
Andrew Martin, Manager of Employee Relations
Lord Peever, Human Resources Generalist
Hearing held in Oakville Ontario on July 11, 2013
Overview
[1] This case concerns a group grievance filed by the Union alleging that the
Employer violated the collective agreement in 2010 by making it mandatory for
employees, who did not yet have a so- called "3 -in -1 jacket" (`the jacket "), to utilize their
clothing allowance to purchase the jacket,
[21 The Union conceded that the Employer had the right to determine uniform
requirements, which would include the jacket. However, the Union argued that the
relevant provisions of the collective agreement did not permit the Employer to dictate
when the jacket was purchased.
[3] The Employer asserted that it had the right, as part of its management rights, to
determine not only the items of clothing that comprise the uniform, but also the timing of
when employees were required to purchase these items.
[4] After carefully considering the argument of the parties, I am of the opinion that
there has been no violation of the collective agreement and accordingly the grievance is
dismissed.
Facts
[5] The parties called no evidence and proceeded by way of an Agreed Statement of
Facts and related documents. The Agreed Statement of Facts states:
Agreed Statement of Facts
WHEREAS Halton and the Union are parties to a collective agreement, a copy of which has
been provided;
AND WHEREAS the Union filed a group grievance dated April 23, 2010 ( "the Greivance "), a
copy of which is attached hereto at Tab 1;
3
AND WHEREAS the parties wish to provide the grievance arbitrator with a written statement of
facts respecting this matter, the parties agree that the following statement of facts is a true and
accurate account of events:
1, Pursuant to articles 18.02(a) and 24.06(a) of the collective agreement between the
parties, Halton provides a uniform allowance to Union members in the amount of $600
per calendar year for full time employees, and $300 per calendar year for part time
employees.
2. Pursuant to articles 18.02(b) and 24.06(b) of the collective agreement, Halton provides
an initial uniform to newly hired employees.
3. Any accrued but unused uniform allowance is paid out to members at the conclusion of
the year. From 2006 to 2012, Halton has paid out the following amounts in unused
uniform allowances:
2006
$18,773
2007
$19,029
2008
$17,698
2009
$21, 799
2010
$26,343
2011
$24,021
2012
$22,177
4. During the course of bargaining for the last two renewals of the collective agreement,
Halton has sought to amend articles 18.02 and 24.06 to move from a uniform allowance
to a quartermaster model as a means of controlling the foregoing costs. The Union has
resisted all such proposed changes.
5. As part of its labour relations, Halton maintains a Uniform and Equipment Committee
( "the Committee "). The Committee is staffed by both labour and management and
tasked with discussing and developing solutions to uniform, equipment and stock
resources, needs and requirements. The Committee's mandate is reflected in its Terms
of Reference attached hereto at Tab 2.
6. Between March 2005 and October 2006, the Committee reviewed and recommended a
plan to introduce a change to uniforms by introducing a 3 -In -1 jacket to replace several
El
items previously provided to employees. Minutes of the Committee's meetings
respecting this issue are attached hereto at Tab 3.
7. The Committee's recommendation on 3 -in -1 jackets was adopted by Halton, and the
jackets were made available for purchase by employees in or around October 2006.
8. At that time, employees were given the option to purchase the new jacket as part of their
annual uniform order. The cost of the 3 -in -1 jacket was deducted from their annual
uniform allowance along with any other uniform items selected by the employees up to
their annual maximums. In addition, employees were given the option to split the cost of
the 3 -in -1 jacket across two years (e.g. -- 2007 and 2008) in order to allocate the cost
across two uniform allowance periods. Samples of the order forms with cost
breakdowns of the jacket from 2006 to 2013 are attached at Tab 4.
9. Approximately three years later, on March 12, 2010, Halton issued a memo to
employees stating that the purchase of the 3 -in -1 jacket was now mandatory. In
particular, the memo stated as follows:
Also to provide a consistent uniform, all staff members will be
required to order a high visibility 3 -1 coat through the uniform
order process. The navy parka, yellow raincoat and navy spring
jacket will no longer be approved for use by staff after 30 days
following the receipt of the 2010 uniform order. If you have not yet
purchased the complete 3 -1 coat, Jennifer will be contacting you
to coordinate this purchase for 2010 as we are still offering a split
payment plan to assist with this process.
A complete copy of the memo is attached at Tab 5.
10. Shortly thereafter, the Union filed the present grievance on behalf of 24 current
employees alleging that the change in practice to making the 3 -in -1 jacket a mandatory
purchase violated the collective agreement. As a remedy, the Union is seeking the
issuance of the 3 -in -1 jackets to the affected members, or replacement of funds for the
members who have already purchased the jackets.
11. The current requirement for a 3 -in -1 jackets is reflected in Halton's policy regarding
Uniforms and Personal Hygiene, a copy of which is attached at Tab 6.
12. In instances where employees used up the entirety of their uniform allowance and
subsequently required new boots, Halton has exercised discretion by purchasing new
boots on the employees' behalf and then deducting the cost from the employees'
uniform allowance the following year.
13. In addition, in or around January 2013, Halton underwent a rebranding. In particular, the
Halton crest was revised, and it is in the process of being phased in over the next five
years. As a result of this rebranding, all new items that are not currently in stock must
5
beau the new Halton crest. Accordingly, when a Union member purchases a new item
the vendor sews the new Halton crest onto the item. The cost of both the item and the
sewing of the new crest are carried by the employee and deducted from his or her
uniform allowance.
[6] In addition, during argument, it became apparent from a review of the order
forms referred to at paragraph 8 of the Agreed Statement of Facts that employees were
permitted to split the cost of the jacket across three years (2010, 2011 and 2012).
[i] The following are the relevant provisions of the collective agreement referred to
at the hearing:
ARTICLE 2 — MANAGEMENT RIGHTS
2.01 The Union recognizes and acknowledges that the management of the stations and
direction of the working force are fixed exclusively in the Region and, without restricting
the generality of the foregoing, the Union acknowledges that it is the exclusive function
of the Region to:
(d) Determine the nature and kind of business conducted by the Region, the kinds
and locations of stations, equipment, and materials to be used, the control of
materials and parts, the methods and techniques of work, the content of jobs, the
work schedules and locations, the number of employees to be employed, the
extension, limitations, curtailment or cessation of operations or any part thereof
and to determine and exercise all other functions and prerogatives which shall
remain solely with the Region except as specifically limited by the express
provisions of this Agreement. The Region will consult the Union in the event of
changes to shift schedules.
ARTICLE 18 -- MEAL ALLOWANCE AND UNIFORMS
18.02 (a) With regard to clothing and cleaning allowance, subject to provision 8.02 (b), the
Region shall pay each full -time employee six hundred dollars ($600.00) per
calendar year. On termination, an employee will receive the unused portion of
his/her allowance pro -rated on the basis of one - twelfth (1 /12) of the annual
amount ($50.00 per month) for each completed month of service as of
termination. In the year of normal retirement, the employee will receive on
retirement the unused portion without pro - rating.
(b) For newly hired employees, there will be an initial uniform provided as follows:
(i) Full -time employee's initial uniform will consist of: one (1) tunic; two (2)
trousers; five (5) shirts (short or long sleeve); one (1) tie: parka (basic);
one (1) black belt; one (1) raincoat; one (1) pair of safety boots, and, if
required, one (1) tactical team uniform; one (1) dress uniform; one (1)
maternity uniform; and one (1) bike medic uniform.
ARTICLE 24 — PART -TIME EMPLOYEES
24.06 Uniforms
The Region will attempt to provide uniforms to part-time employees within six (6) weeks
of their start to work.
(a) For part-time employees, subject to provision 24.06 the yearly uniform allowance
will be pro -rated with a credit of $25.00 for each month that the employee works
three (3) or more shifts, up to a maximum of $300.00 per year. In order to
receive the full $300.00 allowance, the part-time employee will have worked a
minimum of thirty -six (36) shifts in the calendar year based on the formula of
three (3) or more shifts per calendar month. Payout of uniform allowance credits
will coincide with the time and method of payout for full -time employees.
(b) For newly hired employees, there will be an initial uniform provided as follows
Part-time uniform issue: one (1) trouser; two (2) shirts (short or long sleeve); one
(1) tie: parka (basic); one (1) raincoat; and one (1) pair of safety boots and, if
required, one (1) tactical team uniform; one (1) dress uniform; one (1) maternity
uniform; and one (1) bike medic uniform.
ARTICLE 28 — HEALTH AND SAFETY
28.01 The Region shall continue to make reasonable provisions for the safety and health of its
employees during the hours of their employment. It is agreed that both the Region and
the Union shall co- operate to the fullest extent possible in the prevention of accidents
and in the reasonable promotion of safety and health of all employees.
28.02 The Region shall provide safety equipment and protective clothing where it requires that
such shall be worn by its employees.
7
28.03 The obligation contained herein does not apply to the provision of safety shoes or boots
or the provision of clothing. The provision of these items shall be in accordance with
Article 18 of the Collective Agreement.
Argument
L1=A.
[8] The Union did not challenge the Employer's right to require employees to wear a
uniform and the specifics of the uniform. Nor does the Union challenge the fact that the
cost of the uniform is to be paid out of the clothing allowance provided for in Article
18.01(a) (unless Articles 18.01(b), 24.06(b) or 28.02 apply). Specifically, in this case,
the Union does not challenge the Employer's right to determine that all employees must
purchase a jacket out of their clothing allowance.
[9] What the Union did assert was a violation of the collective agreement was the
requirement, on virtually no notice, that all employees must purchase the jacket as part
of the 2010 uniform order. The Union stated (and the Employer agreed) that in the past
employees replaced their clothing as needed. If the Employer wanted all employees to
wear a particular jacket as part of the required uniform, they were required to purchase
it only when their current jacket required replacement and not before.
[10] The Union focused its argument on Article 18.02(a) of the collective agreement,
In its submission, that Article does not provide the Employer with the right to dictate the
timing of the purchase of items of clothing and, if the Employer wishes to do so, then
specific language to that effect must be negotiated into the collective agreement. The
Union argued that if the Employer could dictate when employees had to spend their
clothing allowance, this would amount to an amendment to the collective agreement.
[11 ] The Union emphasized that from October 2006 until March 2010, while the jacket
was available for purchase, employees were only required to purchase it when they
needed a replacement for the jacket it was designed to replace and not, as here, when
there was no need to replace those items, In the submission of the Union, if the
Employer wished to proceed in that fashion it ought to have bought the items for
employees as is done with new employees.
[12] In support of its position the Union cited Simocoe (County) and S.E W., Local 1
(Bockus)(Re) (2009) 182 L.A.C. (4t") 170 (Knopf) ( "Simcoe County') and Jazz Aviation
LP and Canadian Flight Attendants Union (Mandatory Uniform Component - Scarf)
(2012) 114 C.L.A.S. 312, 2012 CLB 39359, 2012 CarswellNat 5782 (Hodges),
Employer
[13] The Employer argued that this case involved a straight forward exercise of its
management rights and so long as it did not exercise these rights in an arbitrary,
discriminatory or bad faith manner, it was entitled to determine not only the what but the
when regarding uniforms.
[14] The Employer argued that the Union's position that there must be specific
language providing that the Employer can dictate the timing of when the jacket must be
purchased runs contrary to the residual management right theory. In its view, Article 18,
properly viewed, provides a subsidy for cleaning and clothing and the Employer has an
unfettered discretion regarding both nature of the uniform and when employees are
required to purchase it.
[15] The Employer agreed that in the past with respect to other items of clothing and
since 2006 when the jacket was made available, it did not require employees to
purchase required clothing except when it was time to replace existing clothing.
However, in 2010, the Employer decided to require all employees who had not yet
purchased a jacket to do so as part of the 2010 uniform order which had to be made by
March 31, 2010. Employees were advised of this in a memo dated March 12, 2010. The
reason for departing from the established practice was "to provide a consistent uniform
[16] In addition, the Employer characterized what occurred here as an exercise of
discretion regarding the timing of the purchase of the jacket. It refrained from exercising
its discretion to require the purchase of the jacket from 2006 to 2010 except when
employees were purchasing a replacement for items no longer approved however, for
good business reasons, it decided to exercise its discretion in 2010 to require
employees to purchase the jacket whether or not it was needed, And, in order to assist
employees, the cost of the jacket could be split over several years.
[17] In support of its position, the Employer cited Metro Ontario Inc. v. United Food
and Commercial Workers Canada, Local 175 and Local 633 (Colley Grievance) [2013]
O. L.A.A. No. 10 (Stout) and Atomic Energy of Canada Limited and Society of
Professional Engineers and Associates 2011 CanLII 20788 (ON
LA)(Goodfeilow)( "Atomic Energy').
Union Reply
[18] The Union argued in reply that, even if this case was only about the exercise of
management rights, the Employer did so in an arbitrary manner by simply picking a day
in March 2010, with no prior notice to the Union or employees, to mandate the purchase
of the jacket as part of the 2010 uniform purchase.
[19] The Union also made a brief and passing reference to the fact that it and its
members detrimentally relied on the Employer's past practice of not insisting on the
purchase of any particular element of the uniform or clothing until such time as the
existing items needed to be replaced. Using the language of estoppel but refraining
from a full frontal attack based on estoppel, the Union stated employees always spent
the clothing allowance as they saw fit and in March 2010 the Employer changed the
way in which it exercised its discretion regarding the purchasing of clothing.
10
Decision
[20] In my view, there is no doubt that the Employer has the discretion under the
collective agreement to not only determine the elements of the uniform but also when
employees must purchase them.
[21] Article 18 provides for a clothing and cleaning allowance in a certain yearly
amount. Employees are absolutely entitled to this amount and nothing on the facts of
this case indicates that they received anything less than the contractually agreed
amount. This alone distinguishes this case from Simcoe County in which the allowance
was pro -rated for employees who were off sick.
[22] The Union concedes that the Employer can dictate the uniform employees are
required to wear as part of its management rights but not the timing of the purchase of
the uniforms. The Union goes further and states that if the Employer wants to dictate the
timing of such purchases specific language must be negotiated into the collective
agreement.
[23] This argument is fundamentally flawed. Although there are provisions in the
collective agreement referring to uniforms, no where does the collective agreement
specifically stipulate that the Employer can dictate the items that make up the uniform
yet the Union concedes that the Employer has that right. It is the same with respect to
the timing of the purchase of those items. There are no provisions in the collective
agreement which address the timing of the purchase of those uniforms. Yet both
matters surely fail under the provisions of Article 2.01-whereby the Employer has the
exclusive function, among other things, "to determine and exercise all other functions
and prerogatives which shall remain solely with the Region except as specifically limited
by the express provisions of this Agreement."
11
[24] Therefore, the Employer has the discretion to require the purchase of uniforms or
elements thereof at any time so long as does not act in an arbitrary, discriminatory or
bad faith manner. Did the Employer do so in this case?
[25] The Union asserted that the Employer's discretion was exercised arbitrarily. It
pointed to the fact that for four years the Employer followed its previous practice with
respect to the purchase of the jacket and then, without warning or consultation with the
Union, decreed in a memo dated March 12, 2014 that affected employees would have
to order the jacket by March 31, 2010. Other than the statement in the March 12th memo
that the reason for the change in approach was to provide a consistent uniform, there
was no explanation regarding why the Employer decided to exercise its discretion
differently in March 2010 or why March 2010 was chosen.
[26] The way in which the Employer went about exercising its discretion was poorly
executed. In view of its long past history in dealing with such matters and in view of the
fact that employees had become accustomed to the extra income from any unspent
clothing allowance and in view of the fact that Employer gave no notice of any kind to
employees much less the Union of its intention, the resulting grievance could not have
come as a surprise. In my respectful opinion, the Union and employees had every right
to be upset with the way in which the Employer altered the exercise of its discretion
regarding the purchase of the jackets.
[27] However, the legal issue is whether the Employer acted arbitrarily in the way in
which it exercised its management rights. To act arbitrarily is to act in an illogical or
capricious manner. The stated rationale for the change was to achieve a consistent
uniform. This is a legitimate goal for the Employer to seek to achieve.
[28] What about the process the Employer followed in achieving its legitimate goal? In
evaluating that it is necessary to look at the entirety of the process. While the lack of
notice is problematic, the Employer also exercised its discretion to permit the cost of the
jacket to be spread over three years. On balance, 1 am of the opinion that, while the
12
manner in which the Employer sought to achieve its legitimate goal left much to be
desired, I do not think either the reason or the process followed could be described as
arbitrary in the sense of it being either illogical or capricious.
[29] This then leaves the question of estoppel which the Union raised in passing. The
Employer cited the decision of Arbitrator Goodfellow in the Atomic Energy case in
connection with the application of that principle to the exercise of Employer discretion.
In that case, the collective agreement had substantive provisions that referred to
changes in certain amounts being subject to the Employer's discretion, The following
paragraphs from page 12 of the Award are relevant:
In this case, the assertion is that the Employer is estopped from
relying on an express discretion to change a figure that is spelled
out in the very provision that gives rise to the figure. In these
circumstances, I agree with the Employer that it would take "a
pretty clear representation" to find that it was precluded from
relying on that statement of discretion (as contrasted, perhaps,
with one that is built on a general statement or understanding of
management's rights) — a representation that is nowhere present
on the facts of this case.
The Employer submits, and I agree, that generally speaking,
'discretion is not a use it or lose it thing'; that is, it is in the very
nature of a discretion that it may or may not be exercised as the
party in possession of it sees fit. The fact that it has not, or not
often, or not for some considerable period of time, been exercised
does not, therefore, necessarily amount to a representation that it
will not be exercised in the future. It is necessary to look at the
circumstances of its alleged `non -use' to consider whether any
such clear or unmistakable inference can be drawn.
[emphasis in the original]
[30] The difference between that case and this case lies, of course, in the fact that the
discretion here is one "that is built on a general... understanding of management's
rights" and not on an express discretion spelled out in the collective agreement.
Arbitrator Goodfellow suggests that the nature of the representation that might be the
basis for an estoppel in a case such as this might be less clear than that required in a
case involving an express discretion.
13
[31] Even if that is the case, we are still dealing with a matter of discretion. The simple
fact, without more, that a discretion has not been exercised is not a very solid
foundation on which to build an estoppel. As Arbitrator Goodfellow observed, in
considering whether the failure to exercise a discretion can be the basis for an estoppel
"It is necessary to look at the circumstances of its alleged `non -use' to consider whether
any such clear or unmistakable inference can be drawn."
[32] In this case, the only evidence I have is the agreement of the parties that in the
past the Employer never exercised its discretion to mandate the purchase of clothing
prior to the need of the employee to replace that item of clothing. There is no other
evidence of the circumstances of its non -use. In addition, even if one could find a
representation based soley on the non -use of the Employer's discretion to mandate the
immediate purchase of items of the uniform, there is no evidence before me of
detrimental reliance by the Union on such representation. Accordingly, this is not an
appropriate case to apply the principle of estoppel.
Conclusion
[33] For the above reasons, I am of the opinion that the Employer properly exercised
its discretion to require the purchase of the jacket as part of the 2010 uniform order. The
grievance is dismissed.
Dated at Toronto Ontario this 19th day of July 2013
Larry Steinberg