HomeMy WebLinkAbout2015-0536.Union.15-11-13.DecisionCrown Employees
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GSB#2015-0536
Union#G-13-15-COR
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Union) Union
- and -
The Crown in Right of Ontario
(Metrolinx - GO Transit) Employer
BEFORE Richard M. Brown Vice-Chair
FOR THE UNION Simon Blackstone
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER John Mastoras
Norton Rose Fulbright Canada LLP
Counsel
HEARING October 23, 2015
Decision
[1] This grievance is about free travel on Go Transit services. Employees and
retirees in possession of a photo identification card are allowed to travel without paying.
The dispute relates not to employees and retirees but to their guests. Until recently a
card holder was allowed to be occasionally accompanied by one non-paying guest. A
recent change to Go Transit’s policy ended free travel for guests. The union claims this
change contravened the collective agreement. In the alternative, the union submits the
employer is estopped from implementing this change until the expiry of the current
collective agreement. The relevant facts are set out in detail in the attached agreed
statement.
I
[2] Article 34 of the collective agreement is entitled photo identification card. The
earliest version of this article, found in the 1986-89 collective agreement, stated:
34.1 From the date of hire, all regular employees will be issued with a photo
identification card. This card must be worn or produced as required, in order to
gain access to designated facilities and transportation services. [emphasis
added] Where employees use such card for transportation services, any
observed vandalism or other incidents must be reported to the Employer, and
revenue passengers will be accommodated prior to such employees.
34.2 An employee who retires from the Employer and is receiving a P.S.S.F. Pension
will be allowed to retain his photo identification card.
[3] Article 34.1 has not been altered since 1986. There have been amendments to
article 34.1. It now states:
(a) An employee who retires from GO Transit and has at least ten (10) years of
continuous service, and is in receipt of OPSEU, OPB and/or OMERS Pension
Plan benefits will be allowed to retain his/her photo identification card.
(b) A part-time employee who retires from GO Transit and has at least 20 years of
continuous service will be allowed to retain his or her photo identification card.
Such employees must have identification cards renewed upon expiry.
[4] In short, since 1986 the collective agreement has granted card holders access to
“transportation services” without requiring any payment. The parties disagree as to
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whether this contractual right of access extends beyond the card holder to include an
occasional guest.
[5] Since about 1988, Go Transit’s written policy about photo identification cards has
allowed a card holder to be “occasionally” accompanied by one non-paying “visitor”
when using transportation services. The policy also states “this privilege is not intended
to provide regular access to the system for anyone other than the designated
employee.” I note the term “visitor” could include not only a spouse or dependent child
but also any relative, friend or neighbour.
[6] On March 3, 2015, the employer announced a new policy, to go into effect April
28, ending access for non-paying visitors. This policy change was announced after the
current collective agreement had come into force.
II
[7] The union’s primary argument is that the words “transportation services” in article
34.1 are ambiguous in relation to guests. I was urged to resolve this alleged ambiguity
in a manner consistent with the long-standing practice, codified in the employer’s written
policy, of allowing a card holder to be occasionally accompanied by a non-paying visitor.
The employer contends the words “transportation services” unambiguously mean
services such as trains and buses to which cardholders themselves are granted access.
[8] The seminal case on using past practice as aid to interpretation is John Bertram
& Sons Co. and International Assoc. of Machinists (1967), 18 L.A.C. 362 (Weiler).
Professor Weiler stated past practice should be used as an interpretive aid only where
there is “no clear preponderance in favour of one meaning based on the words and
structure of the agreement as seen in their labour relations context” (para. 13)
[9] I begin my analysis with the language of article 34.1. It allows a card holder to
access “transportation services”. These words self-evidently refer to services such as
trains and buses. There can be no doubt cardholders themselves are granted access to
trains and buses. Article 34.1 does not explicitly mention anyone other than card
holders accessing transportation services. Turning to the labour relations context, I note
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most provisions in collective agreements confer rights on active employees. Contractual
provisions relating to health and welfare benefits often extend beyond active employees
to include their spouses and dependent children as well as retired employees.
Collective agreements very rarely provide benefits for other relatives, friends and
neighbours. Viewing the wording of article 34.1 in this labour relations context, I
conclude there is a clear preponderance favouring the employer’s interpretation over
the one advanced by the union. Accordingly, there is no need to resort to past practice
as an interpretive aid.
III
[10] I turn to the union’s alternative argument based on estoppel. The union contends
no change to past practice can be implemented until the current agreement expires and
the union is afforded an opportunity to address the issue during bargaining for the next
agreement.
[11] The starting point for any arbitrator applying the doctrine of estoppel must now be
the recent decision of the Supreme Court of Canada in Nor-Man Regional Health
Authority and Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616
where the Court declared arbitrators are not bound to follow common precedent and
gave them a mandate to reshape the doctrine in a manner responsive to the unique
nature of collective bargaining. Speaking for the Court, Mr. Justice Fish wrote:
[48] Collective agreements govern the ongoing relationship between employers and
their employees, as represented by their unions. When disputes arise - and they
inevitably will - the collective agreement is expected to survive, at least until the next
round of negotiations. The peaceful continuity of the relationship depends on a system of
grievance arbitration that is sensitive to the immediate and long-term interests of both
the employees and the employer.
[49] Labour arbitrators are uniquely placed to respond to the exigencies of the
employer-employee relationship. But they require the flexibility to craft appropriate
remedial doctrines when the need arises: Rigidity in the dispute resolution process risks
not only the disintegration of the relationship, but also industrial discord.
[50] These are the governing principles of labour arbitration in Canada. Their purpose
and underlying rationale have long been well understood by arbitrators and academics
alike. More than 30 years ago, Paul C. Weiler, then Chairman of the British Columbia
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Labour Relations Board and now Professor Emeritus at Harvard University, underlined
their importance in a dispute of particular relevance here. He explained in the following
terms why the doctrine of estoppel must be applied differently in a grievance arbitration
than in a court of law:
... a collective bargaining relationship is quite a different animal. The union
and the employer deal with each other for years and years through
successive agreements and renewals. They must deal with a wide variety of
problems arising on a day-to-day basis across the entire spectrum of
employment conditions in the workplace, and often under quite general and
ambiguous contract language. By and large, it is the employer which takes
the initiative in making operational decisions within the framework of the
collective agreement. If the union leadership does not like certain
management actions, then it will object to them and will carry a grievance
forward about the matter. The other side of that coin is that if management
does take action, and the union officials are fully aware of it, and no
objection is forthcoming, then the only reasonable inference the employer
can draw is that its position is acceptable. Suppose the employer commits
itself on that assumption. But the union later on takes a second look and
[page631] feels that it might have a good argument under the collective
agreement, and the union now asks the arbitrator to enforce its strict legal
rights for events that have already occurred. It is apparent on its face that it
would be inequitable and unfair to permit such a sudden reversal to the
detriment of the other side. In the words of the Board in [Corporation of the
District of Burnaby and Canadian Union of Public Employees, Local 23,
[1978] 2 C.L.R.B.R. 99, at p. 103], "It is hard to imagine a better recipe for
eroding the atmosphere of trust and co-operation which is required for good
labour management relations, ultimately breeding industrial unrest in the
relationship -- all contrary to the objectives of the Labour Code" ... .
(Re Corporation of the City of Penticton and Canadian Union of Public
Employees, Local 608 (1978), 18 L.A.C. (2d) 307 (B.C.L.R.B.), at p. 320)
[51] Reviewing courts must remain alive to these distinctive features of the collective bargaining
relationship, and reserve to arbitrators the right to craft labour specific remedial doctrines. Within
this domain, arbitral awards command judicial deference.
[52] But the domain reserved to arbitral discretion is by no means boundless. An arbitral award
that flexes a common law or equitable principle in a manner that does not reasonably respond to
the distinctive nature of labour relations necessarily remains subject to judicial review for its
reasonableness. [emphasis added]
[12] Any arbitration awards, as well as any lower court judgements in judicial review
proceedings, based on the erroneous premise that arbitrators are bound by common
law precedents relating to estoppel, and not free to flex them to meet the needs of
collective bargaining, are no longer good law. No more need be said on this subject.
[13] The union relies upon my decision in Maple Lodge Farms Ltd. and United Food
and Commercial Workers (1991), 24 L.A.C. (4th) 211 where the employer unilaterally
ended a longstanding practice of paying delivery drivers for picking up cheques from
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customers, a subject not referenced in the collective agreement. Based on my analysis
of the numerous cases cited by counsel, dealing with the termination of past practices
relating to matters not specifically addressed in an agreement, I noted arbitrators
typically had held an employer was estopped from ending practices relating to the
compensation of employees for work performed, at least until the union had a chance to
bargain about any change. On the other hand, arbitrators had usually found no estoppel
arising from practices relating to such things as layoffs or replacement of absent
employees. Two of the cases cited were used to illustrate this general point: CN/CP
Telecommunications and Canadian Telecommunications (1981), 4 L.A.C. (3d) 205
(Beatty); and Rothmans of Pall Mall Canada Ltd. and B.C.T., Loc. 319T and (1983), 12
L.A.C. (3d) 329 (Picher). Referring to these cases, I wrote:
[17] In my opinion, the opposite outcomes in CN/ CP and Rothmans are explained by the
differing nature of the subject-matter of the past practice in the two cases. The past practice in
CN/CP concerned the payment of sick pay. Sick pay is one form of compensation.
Compensation, whether in the form of wages or benefits, normally is not subject to unilateral
alteration during the life of a collective agreement. This is part of the climate of collective
bargaining, to borrow a phrase from Professor Arthurs in Re U.S.W.A. and Russelsteel (1966), 17
L.A.C. 253. In this climate, it was reasonable for the union in CN/CP to assume that the employer
would continue to pay sick employees in conformity with past practice until the agreement
expired. (To reinforce a point made earlier, a union's reliance on past practice would be no less
reasonable if a collective agreement said nothing about sick pay but the employer long had paid
sick employees.)
[18] While employers usually relinquish control over wages and benefits during the term of a
collective agreement, management typically retains the right to adjust staffing levels to meet
production requirements. Most collective agreements reserve to management the right to lay off
employees as well as the right to decide whether to replace employees who either leave
permanently or are absent temporarily. Given this climate, it was not reasonable for the union in
Rothmans to assume that the employer would continue to replace absent employees even when
there was no work for them to do.
[14] My analysis in Maple Lodge Farms was recently adopted and applied by
Arbitrator Hayes in Halton Hills Hydro Inc. and Power Workers Union [2014] O.L.A.A.
No. 175, a case cited by union counsel, where he held an employer was estopped from
terminating a practice of paid leave for medical appointments. In my view, Mr. Hayes
properly viewed paid leave as part of the compensation package for work performed.
[15] A very different approach was taken Chronicle Journal and Canadian Energy and
Paperworkers Union (2003), 117 L.A.C. (4th) 385 (Surdykowski), a case cited by
employer counsel, where management had discontinued a practice of providing
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vehicles for the use of employees on duty and began compensating them for the use or
personal vehicles. Arbitrator Surdykowski wrote:
[45] I am not persuaded there is any difference in principle between compensation and non-
compensation issues. Compensation issues are important but they are no more important than
many other collective bargaining issues (job posting, promotion, contracting out, for example).
He dismissed the grievance because the provision of vehicles was not a matter
addressed in the collective agreement and the employer had not promised to make no
change relating to vehicles.
[16] The contested benefit in New Brunswick and New Brunswick Government
Employees Union [1995] N.B.L.A.A. No. 16 (Bruce), also cited by the employer, was the
use of a government vehicle to travel between home and work. This benefit had long
been provided to most but not all forest rangers. Arbitrator Bruce concluded the
employer was not estopped from ending its past practice. In coming to this conclusion,
he noted the collective agreement did not address the subject of transportation to work
and the employer had not represented the status quo would continue. He also wrote:
[22] The other aspect of the evidence which makes it difficult to apply the doctrine of estoppel in
this case is that not all employees had assigned vehicles or were entitled to take vehicles home.
This passage highlights the fact that personal use of a vehicle was not a standard part
of the compensation package.
[17] In Telus v. Telecommunications Workers Union (2010), 201 L.A.C. (4th) 15
(Sims), another case cited by the employer, the grievor contested management’s
decision to reduce the subsidy offered to employees purchasing Telus stock. The
collective agreement made no mention of stock purchases. Commenting on my decision
in Maple Lodge Farms, Arbitrator Sims wrote:
I do not accept however a broad statement, either of law, or of “the usual bargaining climate”, that
all compensation matters are assumed to remain in accordance with the status quo. It is a
reasonable starting point, but it is subject to exceptions. (para. 108)
Mr. Sims went on to conclude the employer was not estopped from altering its stock
purchase plan. In my view, the optional nature of the stock purchase benefit is
significant. This was not a case where all employees had received a benefit as part of
the standard compensation package for work performed. Rather employees had been
free to elect whether to take advantage of the stock purchase plan
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[18] Other arbitrators dealing with out-of-the-ordinary monetary benefits have also
concluded the doctrine of estoppel did not apply. In Maple Lodge Farms, I referred to
Victoria Times Colonist and Victoria Newspaper Guild (1984), 17 L.A.C. (3d) 284 (Hope)
where the employer ended a practice of paying employees who were absent from work
while negotiating the collective agreement. Arbitrator Hope remarked:
The practice at issue was not a practice with respect to the manner in which the collective
agreement was interpreted and applied, it was a practice with respect to the manner in which the
parties conducted their negotiations" (at p. 294).
After the grievance was dismissed, it is very likely that the union was called upon to
reimburse these employees for lost wages. In other words, the crux of the matter was
not whether employees would be paid for duties arising out of their employment but
rather which party to the collective agreement would pay them for representing the
union.
[19] In Centre for Immigrant & Community Services and Workers United Canada
Council [2015] O.L.A.A. No. 367 (Gray) the employer ended a longstanding practice of
paying employees for performing union duties not addressed in the collective
agreement and then obtaining reimbursement from the union. Arbitrator Gray wrote:
[35] Not all arbitrators agree with the Maple Lodge Farms [approach to compensation]. It is not
necessary for me to take a side in this debate because, in my view, the practice in question does
not concern compensation in the sense intended by Arbitrator Brown. …
[36] Compensation ordinarily refers to what an employer gives to employees in return for doing
work for it. No matter how the employer’s payment and the union’s reimbursement might have to
be characterized for the various statutory purposes … in substance the wages and other costs
involved in this practice come from the union’s pocket, not the employers, for time that is not
spent performing work for the employer.
[20] In my view, applying the doctrine of estoppel to preclude a mid-contract reduction
in standard compensation for work performed, when employees are barred by statute
from striking, is consistent with the mandate of arbitrators as defined by the Supreme
Court in Nor-Man Regional Health Authority. Allowing such a unilateral reduction in
compensation would be a “recipe for eroding the atmosphere of trust … and ultimately
breeding industrial unrest in the relationship”, to use the words of Professor Weiler as
quoted by the Supreme Court. This conclusion applies regardless of whether the
compensation in question is of a type specified in the collective agreement and
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regardless of whether the employer has made an express representation that the status
quo will not be altered.
[21] Different considerations may apply to benefits which are not properly
characterized as part of standard compensation for work performed, as illustrated by
such decisions as New Brunswick (vehicle usage provided to only some employees),
Telus (an optional stock purchase plan) and Victoria Times Colonist and Centre for
Immigrant & Community Services (payment for union duties). In each of these cases,
the employer’s past practice of providing the benefit in question was found not to give
rise to an estoppel, at least in the absence of an explicit representation by management
that the practice would continue.
[22] The contested benefit in the instant case is occasional free travel for one visitor
who could be a spouse or dependent child but could also be another relative, friend or
neighbour.
[23] A travel benefit for a spouse or dependent child is analogous to a health and
welfare benefit for the same family members and both types of benefits are properly
characterized as part of the compensation package for work performed. Both benefits
have a monetary value to an employee-spouse or employee-parent who is part of the
same household as the direct beneficiary for financial purposes. However, the same
cannot be said of a travel benefit for other relatives, friends and neighbours. The
primary value of this sort of benefit accrues to people falling outside an employee’s
household, even if the employee derives some secondary non-financial benefit from
providing a gift of free travel. To this extent, the contested benefit is not compensation
for work performed.
[24] The occasional nature of the benefit in question is also a relevant factor because
the precise meaning of occasional is contestable. The written policy uses occasional in
contradistinction to regular. Most people probably would agree that travel every day is
correctly characterized as regular whereas travel once a month is correctly
characterized as occasional. There remains ample room for contestation in the middle
ground between these two extremes. How should 5, 10 or 15 trips per month be
characterized? The answer is far from obvious. In my view, an arbitrator should be
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reluctant to give legal force to a benefit that is so imprecisely defined, because doing so
would be an open invitation to litigation about the exact scope of the benefit. Even if the
meaning of occasional has not been contested to date, it would likely be contested in
the future, given the employer’s current concern about costs that led to the change in
policy.
[25] The foregoing analysis leads me to conclude the employer’s past practice does
not give rise to an estoppel.
[26] The grievance is dismissed.
Dated at Toronto, Ontario this 13th day of November 2015
Richard M. Brown, Vice-Chair