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HomeMy WebLinkAboutHutton 06-05-11 I . . 1 . . IN THE MATTER OF AN ARBITRATION BETWEEN: CASINO NIAGARA (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION on behalf of its Local 278 (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF J. HUTTON OPsEU FILE # 03-278-070 AWARD Board of Arbitration: Paula Knopf, Chair Clay Appleton, Employer Nominee Edward E. Seymour, Union Nominee . APPEARANCES: For the Employer D. Brent Labord, Counsel For the Union David Wright, Counsel A hearing in this matter was held in Niagara Falls, Ontario, on March 30, 2006, and written submissions received. . , . This is a grievance, based on a claim of estoppel, asserting that the bargaining unit members are entitled to performance bonuses. In order to expedite what could have become a very complicated and difficult hearing involving evidence of bargaining, the parties elected to proceed on the basis of the Union filing a statement of facts and submissions at the outset. The purpose of this was to clarify the nature of the claim and receive a ruling on whether the facts raise a prima facie case for a claim based on estoppel. Upon receipt of those submissions, the Employer filed a response asserting that the Union's "best case" fails to establish a prima facie case. The parties have asked this Board of Arbitration to rule on this issue. After a consideration. of the submissions, it must be concluded that the Union has failed to establish sufficient evidence to warrant the matter proceeding to a hearing on the merits. The reasons for that shall be set forth below. The facts that the Union relies on to attempt to establish a case of estoppel are the following: 1. The Union has been the certified bargaining agent for a bargaining unit of security officers of the Employer since August 1, 2001. 2. No other employees of the Employer are represented by a trade union. 3. The Union and Employer entered into negotiations for a first collective agreement which were not completed until the signing of a Memorandum of Agreement on February 9, 2003. The Union would have been in a legal strike position commencing at 12 a.m. on February 10, 2003. A copy of the. Memorandum of Agreement is Exhibit 3 in these proceedings. 4. The Union's bargaining team was made up of Mr. Robert Field, who is employed by OPSEU as a negotiator, and five members of the bargaining unit who are employees of the Casino. 5. The February 9, 2003, Memorandum of Agreement resulted in a first collective agreement for the bargaining unit covering the period from August 1, 2001 to March 31, 2006. A copy of the Collective Agreement is Exhibit 2 to these proceedings. . 2 6. Prior to certification of the bargaining unit, security officers, and other employees of the Employer, received annual performance bonuses. While other employees continued to receive such bonuses after the certification of the Union, the security officers did not. 7. The Union filed a complaint to the OLRB respecting this issue and the complaint was resolved by an agreement of the parties dated January 22, 2002, on the basis that a bonus for the year 2001 would be paid to security officers and that the matter of bonuses for the 2002 and later years would be dealt with in collective bargaining. 8. From the outset of the collective bargaining, the Union tabled a proposed Arhcle 20.06 which provided that: "The Employer will maintain the existing 'annual performance bonus program' which is offered Casino-wide, and this program will continue to apply to all employees in the bargaining unit." 9. The Union also tabled a proposal for an Article 29.14, which would provide a bursary for members of the bargaining unit. 10. During a bargaining session on or about January 27, 2003, the parties engaged in a discussion about the Union's proposed Article 29.14 and related matters of community service payments and the performance bonus. 11. During this discussion, the Chief Negotiator for the Employer, Bruce Caughill, stated that the Employer did not want to put language in the collective agreement (respecting these matters) as the Emp~oyer might do away with the programs. He indicated that in the light of reduced revenues post 9/11, the Employer was not certain that anyone Would be paid a performance bonus. When the Union's Chief Negotiator, Mr. Field, suggested that language could be drafted to deal with this possibility, Mr. Caughill stated that "if we give it to others, you will get it". 12. The notes of bargaining team member Joanne Sheehan for this session, [regarding] . . .. the Union's proposed Article 29.14. . . read: "Talked about other things of this nature - community service . . ' 3 - bonus Don't want in [sic] just in case they do away with but will still let us access Bruce said" 13. The parties did not reach any agreement on the. matter of performance bonuses at this time. 14. The parties met in a number of bargaining sessions between the date of this session and February 6,2003. 15. During these sessions, the matter of performance bonuses remained outstanding, and the Union's proposed Article 20.06 remained on the table. 16. At the bargaining session of February 6,2006, the Employer tabled a proposal for wages and pension, which included a proposal for the payment of a bonus for the year ending March 31,2002, and for a one-time lump sum bonus on date of ratification. While this proposal provided for the payment of bonuses, no numbers were set out in the proposal. The Employer referred to its proposed bonus asa "signing bonus" not a "performance bonus". A copy of this proposal is attached as Appendix 1. 17. The Union rejected this proposal. 18. After the bargaining session between the full bargaining teams on February 6, 2003, a meeting was held between Mr. Field and Ms. Sheehan for the Union, and Mr. Caughill and Simon Mortimer, counsel to the Employer. At that meeting, the Union tabled a new proposal for performance bonuses. Instead of language which simply. provided for the continuation of the annual. performance bonus plan, the Union tabled a proposal that performance bonuses would be paid as follows: $1060 - retroactive $1000 - 2003 $2000 - 2004 $2000 - 2005 19. Mr. Caughill responded by saying that the parties were so far apart that he could not respond. In further discussion at that meeting, he then reiterated, with respect to a performance bonus, that "if we give it to them (other employees), we will give it to you". . . 4 20. The next day there was a discussion between the employee members of the bargaining team, at which Mr. Field was not present. Ms. ,Sheehan advised the other employee members of the team of the comment made by Mr. Caughìfl with respect to performance bonuses the night before (as set out in paragraph 17). 21. The employee members of the bargaining team, including Ms. Sheehan, interpreted and understood this comment to mean that they could reach an agreement on signing bonuses to be paid retroactively and at the date of ratification, as proposed by the Employer in Appendix 1, and that members of the bargaining unit would still be eligible for and be. paid annual performance bonuses if such bonuses were paid to other employees in the future. 22. in reliance on Mr. Caughm's comment, which confirmed his comment made in discussions respecting the proposed Article 29.14 regarding bursaries (as set out in paragraph 11 above), the employee members of the team agreed that they could accept language respecting bonus on the model proposed by the Employer on February 6, providing agreement could be reached as to the amount of the signing bonus. 23. Negotiations continued between the parties and all further discussions about bonuses related to the amount of the signing bonuses that would be paid under the model proposed by the Employer on February 6. 24. Ultimately, on February 9, a full agreement was reached, as set out in Exhibit 3, which included payment ofa bonus of $1060 retroactively, a lump sum payment on ratification of $750 and an additional lump sum payment for benefit adjustment of $150. 25. The employee members of the bargaining team would not have agreed to these amounts if they had not accepted the representations of Mr. Caughill that they would be eligible for future performance bonuses if such performance bonuses were paid to other employees. 26. After the Union learned that in fact other employees had been paid a performance bonus in May 2003, this grievance was filed. The Union asserts that the facts set out above establish a prima facie case of estoppel. In support of this, the Union relies on the authorities of Re Hallmark Containers Ltd. and Canadian Paperworkers Union, Local 303 (1983) 8 . 5 LA C. (3d) 117 (Burkett), at p. 124; Re The Sf. Catharines Standard and St. Catharines Typographical Union,. Communications Workers of America, Local 416 (1998) 72 LAC. (4h) 332 (Rose), at 341-2; and Consumers Glass v. United Steelworkers of America, Local 260G (July 7, 1998) unreported (Briggs), at pp. 13-14. Counsel for the Union asserts that representations were made to the Union on two occasions to the effect that if performance bonuses were paid to employees outside the bargaining unit in the future, this bargaining unit would receive the same bonuses. It is also alleged that the Union relied on those representations as the basis for their agreement to the language on bonuses initially tabled. by the Employer on February 9, 2003. It is asserted that this reliance was to the detriment of the Union, as performance bonuses were in fact paid to other employees after February 9, 2003, but were not paid to members of thi~ bargaining unit. Accordingly, the Union submitted that the evidence it intends to rely upon establish a prima facie case of estoppel. Accordingly, it was said that the Board of Arbitration should proceed to a hearing of the merits of the case. In response to the Union's submissions, the Employer asserts that the alleged facts are not evidence of an independent promise to continue the performance bonus plan. Further, it is asserted that the Union's facts do not assert that it treated these discussions as representations that were relied upon to its detriment. It was stressed that the Union made different and subsequent proposals in relation to performance bonuses on and after February 6, 2003. Further, it is alleged that the discussions on February 6, 2003, and thereafter focused on the Employer's proposal for wage increases and a payment of fixed bonuses in lieu of the performance bonuses. It is asserted that to interpret the proposal otherwise would lead to the conclusion that the Employer was offering economic items not. requested by the Union and voluntarily proposing terms and conditions which exceeded that which was provided to the larger non-Union group. It is asserted that the facts alleged by the Union indicate simply that the Employer was offering a fixed bonus instead of annual performance bonuses. It is also asserted that the facts indicate that the Union's counterproposal as of . . 6 February 6, 2003, shows that the parties began to discuss fixed amounts in lieu of the continuation of performance bonuses. It was submitted that the facts which the Union relies upon are more consistent with the conclusion that the Company intended to provide either a fixed bonus or a performance bonus continuation, but not both. It is asserted that such evidence is not clear.and cogent evidence of a representation that the Company was agreeing to provide the performance bonus outside of whatever else the Union was able to negotiate by way of a fixed bonus. The Employer recognizes that the chief negotiator for the Union may have understood or believed that the performance bonuses may continue outside the Collective Agreement. However, it was asserted that the facts the Union intends to rely upon do not give rise to a clear and cogent representation that the Employer would continue to perform its bonus plan outside of the Collective Agreement. Further, it was said thatthe chronology and context of the proposals and counterproposals, even as alleged by. the Union, are as consistent, if not more consistent, with the Employer negotiating on the. basis of either performance bonus or fixed bonus, but not both. The Employer also stressed that the Union does not assert that the Employer stated that the Union would r~ceive both the fixed bonus it proposed plus the performance bonus continuation. In support of its submissions, the Employer relies upon Re Strait Crossing Joint Venture and International Union of Operating Engineers/Iron Workers (1997) 64 LAC. (4th) 229 (Christie); and Re Sudbury District Roman Catholic Separate School Board and. Ontario English Catholic Teachers' Association (1984) 15 LAC. (3d) 284 (Adams). THE DECISION This is a claim based on estoppel. The Employer has asked that the grievance be dismissed at the preliminary stage without a consideration of the merits of the case on the basis that the facts that the Union intends to rely upon do not establish a prima facie case. Therefore, the issue at this stage is not whether clear and cogent evidence exists to found the claim. The question is ( , . , . . " 7 simply whether the Union's alleged facts raise a prima facie case that could support the claim. Estoppel is established where one party to a collective agreement makes a representation to the other as to how it will administer the collective agreement, and where the second party relies on that representation to its detriment. Representations made at the bargaining table can support an estoppel. See Hallmark Containers Ltd., supra; and St. Catharines Standard, supra. However, what the Union is seeking here is a significant monetary benefit which one usually expects to see within the wording of the collective agreement itself. In order for the Union to succeed in this case, at this stage, it must show alleged facts that would form the basis for a conclusion that a significant monetary benefit was being promised to the bargaining unit outside of the Collective Agreement. The facts the Union wishes to rely upon do indicate that in the early stages of negotiations there may have been discussions about the continuance of the performance bonus outside of the contract. However, the facts also indicate that the question of bonuses remained unresolved up to February 6, 2003. At that time, the Union tabled a proposal regarding performance bonuses which the Employer clearly did not accept. The following day, the Union engaged in discussions regarding the Employer's proposal respecting a "bonus model" that did not include a performance bonus. Indeed, the facts the Union relies upon reveal no discussions between the parties regarding the "performance bonus" once the parties focused on the Employer's different "bonus" model. Thereafter, there is no allegation that the Company promised to provide a performance bonus in addition to the fixed bonus that the parties were then discussing. Hearings that reopen the history of negotiations and that pit peoples' understandings and assumptions during bargaining can be very complex and divisive. Counsel and the parties are to be commended for the ( c . . . . . .' ~ 8 decision to expedite what could have been a very difficult and costly case by choosing to make written submissions and set forth the facts they intend to rely upon in order to seek directions from this Board of Arbitration. The Board has considered the outline of the factual basis of the Union's case. The facts reveal that the Union was able to secure significant monetary benefits for the members of this bargaining unit. Even if all the facts set forth by the Union are proven, it must be said that those facts do not establish the legal basis that is necessary for the claim for additional benefits to succeed. The Union has the legal and the evidentiary onus in a case of estoppel. The facts the Union is relying upon cannot meet that onus. Accordingly, no purpose can be served by conducting any further hearing into this matter. Therefore, on the basis of the written submissions received, the grievance is dismissed. DATED at TORONTO this 11th day of May, 2006. "Clay Appleton" - I concur Clay Appleton, Employer Nominee "Edward E. Seymour" - I concur Edward E. Seymour, Union Nominee I