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HomeMy WebLinkAbout1990-0457.Baara et al.91-03-01 ~.~ ( ONTARIO EMPLOYÉS DE LA COURONNE :). CROWN EMPLOYEES DEL'ONTARIO , . 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS IBO DUNDAS SrR~rr WEST, SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONE/TELÉPHONE: 1416} 326-1388 T80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO!. M50 lZ8 FACSIMILE /TÉLÉCOPfE' (416) 326- 1396 457/90 - IN THE MATTER OF AHARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Baars et all Grievor - and - The Crown in Right of ontario (Ministry .of culture & Communication) Employer BEFORE: s. stewart Vice-Chairperson J. Carruthers Member D. Daugharty Member FOR THE D. Wright GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE I. Werker EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING: September 13, 1990 ¡ C[) .~ty J~.-"., (.o'; , r ~:-1',~" . if}·) " ,ç DECISlbN ~ There are seventeen grievances before us which are identical in all essential respects. The grievors are all employed at the Ontario Science Centre. Fifteen of the grievors are woodworkers and two are painters. The grievances have various dates between March 17, 1990 and April 10, 1990 and allege: ...that by contracting out the work on the Jason Project the employer is in violation of the Collective Agreement by failing to provide me with overtime on a rotational basis, in accordance with the Local Minutes of Understanding. The relief sought by the grievors is compensation for lost overtime. The Union claimed that the parties had previously reached an agreement with respect to how the Employer would contract out work after earlier grievances had been filed in connection with another project. It was the Union's position that the Employer's actions in contracting out work on the IIJason project" were not in accordance with that earlier agreement. The Employer denied that it had entered into a binding agreement with respect to contracting out. In the alternative it was the Employer's position that any agreement would only apply to the two original grievors. Mr. Werker also argued that the matter should have been brought forward as a Union grievance rather than individual grievances. It was the Employer's ¡;:';,~~'~f~ r:~b0 . . t.\' \f.1!,'\ ...:"....} - .. ì 'ì, 2 position that in any event these grievances raise a matter that is beyond this Board's jurisdiction. At the hearing ~ I the parties led evidence and made submissions only with respect to these preliminary matters. The Union's claim that the parties reached an agreement with respect to contracting out is based on events which took place in 1985 and 1986. To a large extent, the evidence dealing with these events was not in dispute. In 1985 a home building display was set up at the Ontario Science Centre. The outside organization setting up the display set up some temporary panelling which led woodworkers employed at the Centre to file grievances. At the second stage of the grievance procedure, in August, 1985, the Deputy Minister's designee, T. Berry, suggested to the representatives of the parties that they might be able to resolve the grievances. Some discussion took place and all' grievances except two, those of M. Brien and B. Verburgh, were wi thdra\Vn. The Board was not provided with copies of the grievances that were withdrawn at that time nor was evidence adduced with respect to the nature of the discussion that took place at that time. However, Ms. Powell, Manager of Human Resources at the Centre, testified that following the discussion she commenced working on guidelines for contracting out. "'2) .?; ...~_:~-.'¡ CL,~' )__"', . \-2) f-<" . \ \~ i.-"~ 3 The Board was provided with copies of the grievances of Mr. Brien and Mr. Verburgh which are respectively dated - I February 4 and February 6, 1985. Both grievances claim entitlement to overtime pay for all hours worked in connection with the erection of panelling on January 25, 1985. . On April 25, 1986 there was a meeting at which D. Powell, manager of human resources, A. Petti I local vice- president of the Union, the two grievors and the shop steward were present. According to the evidence of Mr. Petti the May 12, 1986 letter and the enclosed guidelines which are reproduced below were the IIfollow through" of that meeting. The May 12, 1986 letter is addressed to Mr. Petti and is signed by Ms. Powell. The letter indicates that it is in reference to the grievances of Mr. Brien and Mr. Verburgh. The text of the letter states as follows: Attached are guidelines regarding contracting work for the Ontario Science Centre. At our meeting on April 2.5, 1986 it was agreed that the attached guidelines would be discussed with the grievors. As well Dr. Parr will assign G. McLennan to be the management contact for contractors working at the Centre. This will ensure contractors are aware of our guidelines and also our health and safety standards. It was also agreed that where appropriate, work that is to be contracted out will be discussed at a meeting of our local E.E.R.C. ~;';~~ 159 ~ . \~§) ~_'t;:;~,·- ./ \ \ 4 I , . I ! It is my understanding that the issue of overtime is still outstanding and that you will apprise me of what ~ action'Q.P.S.E.U. intends on this matter. The guidelines referred to in the letter state as follows: GUIDELINES RE: CONTRACTING OUT WORK FOR O.S.C. Generally, the Science Centre desires to produce internally all items needed to present its programs - this is the guiding principle. We do this be'cause: · The exhibit building process is a difficult one involving trial and error. Much feedback and ongoing guiding and adjusting is required. · We have much staff expertise in areas of researching, developing, designing and producing. · When we build the exhibits we can do a much better jOb of maintaining and modifying them. Items may be contracted out in the following situations: · Where we don't have the staff expertise or equipment to produce the item: (chrome plating~ fibreglass moulding; large size printing) · Where we don't have the staff time available to do the work; (several exhibit housings for the Wood Show; printing 300,000 o.s.c. brochures) · Where an existing product or material is more economically produced outside: (exhibit system for Seeing Brain; stool seats for Computer Show) · Where we are trying out (prototyping) a new program which involves outside expertise: (sets for a play; Horne Building Workshop) and therefore want to keep our cost to a minimum. May 1986 Mr. Petti testified that SUbsequent to the receipt of this letter the Employer agreed to pay a sum of money to (j (;/.:~ \.,'.) . \ Þ. 'h; 5 " one of the grievors in settlement of his grievance. Neither of the two grievances were pursued further by the ~ Union. Mr. Petti's understanding was that the representations contained in the May 12, 1986 letter and the attached guidelines would be complied with by the Employer. Ms. Powell testified that the statements regarding management's intentions as set out in her May 12, I I 1986 letter and the attached guidelines were intended to be a "communications tool" but that they were in no way . intended to restrict the Employer in any way in exercising its right to contract out work. Section 18(1) of the Crown Employ~_~~" COllective Bargaining Act provides for broad management rights which clearly include the right to contract out work and to determine whether overtime will be assigned. Section 18(1) further provides that such matters will not be the subject of collective bargaining or come within the jurisdiction a board. There is no provision in the applicable master Collective Agreement that limits the Employer's right to contract out work or determine whether entitlement to overtime exists. The Local Memorandum of Agreement, in Article 1 of a Minute of Understanding dated January 18, 1988, provides that overtime will be rotated on the basis of seniority but does not purport to limit the Employer's right to contract out work or determine whether overtime ;""~:'Î) .c.l~-~:~~i [î¡' t;",";' ' '0 ";j>1 . Iti-~;h, , '- 6 '~ . work will be assigned. We will first address Mr. Werker's submission that this Board has no jurisdiction to deal with this grievance. Mr. Werker referred the Board to Carter 2291/86-(Knopf) and Mills 112/89 (Low) and the cases cited therein which concluded that in the absence of a provision in the Collective Agreement limiting the employer. in the exercise of its discretion in determining whether overtime will be assigned, no question of interpreting, applying or determining any alleged contravention of the Collective Agreement arises and accordingly, by virtue of the provisions of section 18(1) of the Crown Employees COllective Bargainin9 Act, the Board had no jurisdiction to deal with a grievance alleging that the Em~loyer should have assigned overtime work. The grievances at hand are clearly properly characterized as contracting out grievances. The claim for overtime pay is the relief which may be appropriate in the event that it is established that the work claimed by the grievors should not have been contracted out. The Board will deal with the issue of the appropriate remedy if and when it is necessary to do so. However the cases dealing with overtime which we were referred to are clearly analagolls to the situation at hand and the conclusions in those cases are also clearly applicable. We agree with Mr. Werker that these cases 1 I <'1) ",~;) c>: ". ...-\... . ., . c.,· ,.' . ~....... 7 , . support the conclusion that, in general, the matter raised in ·the grievances at hand is a matter which falls within - the exclusive discretion of the Employer. There is one important exception to this general proposition however. That exception is where the Union is able to establish that the doctrine of estoppel should apply so as to restrict the Employer in the exercise of its rights. In both the Carter and Mills decisions, supra, the Board accepted that ~t would have jurisdiction to deal with a grievance alleging that overtime should have been assigned if the evidence established that an estoppel had been created. We agree with this conclusion and are of the view that it is applicable to this case. Howeve r , it was asserted by the Union that it is unnecessary for the Union to establish an estoppel for this grievance to succeed. Mr. Wright submitted that this Board has jurisdiction to enforce settlements reached by the parties and that settlements are properly characterized as appendices to the Collective Agreement and can be enforced as such. In support of his position Mr. Wright referred to the order of the Divisional Court (unreported, dated June 8, 1990) quashing the decision of the Grievance Settlement Board in Ministry of Correctional Services and OPSEU (Sim and Bain) 1387/86 and 1388/86 (Draper) . The order of the - Divisional Court is brief. It simply notes that all - ~\\~~Ì\ !¡~ ~'J'''', ". f · <~. _..~, -, "';';-1 -:".":'.~c. r- ~.t;.;; ., 8· I , . parties to the application for judicial review, including I I the Grievance Settlement Board, consented to the quashing -- of the decision and indicates that the decision was quashed and the matter remitted back to the Board. In that case , the Union and the Employer had entered into minutes of settlement in relation to two grievances in which entitlement to a shift premium was claimed. The minutes qf settlement provided for the payment of money to the grievors and the withdrawal of the grievances. Subsequent to the execution of those minutes of settlement there arose an issue as to how the minutes of settlement were to be interpreted. The grievors filed new grievances alleging I I i that the minutes of settlement had not been complied with. There was no objection to the Board's jurisdiction to determine the matter. However, the majority of the Board decided that it did not have jurisdiction to determine the grievances on the basis that the issue before it was the interpretation of the minutes of settlement rather than a matter described in section 19(1) or 18(2) of the Crown Employees Collective Bargaining Act. The Union member dissented and the basis of the dissent is that the matter I before the Board involved a question of the administration I . I or interpretation of the Collective Agreement (wi thin the meaning of section 19(1) of the Crown Employees Collective Bargaining Act) and that th~ settlement gave rise to an estoppel with respect to the administration or 1 ~J1 '. ;". ~ c-';"~ . ',.-/ ' . 9 . interpretation of the Collective Agreement. - The order of the Divisional Court quashing the decision of the GSB does not contain any reasons and thus does not provide the Board with any guidance as ~o the precise I nature of the Board's jurisdiction in circumstances where a grievance raises the question of the effect to be given to minutes of settlement'. However, it is our view that the fact that this decision was wrongly decided does not necessarily support Mr. Wright's contention that a settlement between parties to a Collective Agreement has the status of a term of the Collective Agreement and can be enforced.as such. The consent of the parties and thus the . order of the Court with respect to the quashing of the decision may well have had another basis, i.e. that the decision wrongly failed to apply the doctrine of estoppel. Mr. Wright did not refer to any other authority in support of the proposition that this Board has authority to enforce minutes of settlement on the basis that minutes of settlement have the same effect as a term of a Collective Agreement. We are not persuaded that the order of the Divisional Court supports this proposition. In this instance, howeve r , it is unnecessary for the Board to decide whether it has authority to enforce the terms of a settlement in the absence of an estoppel as, for ì I '~"fj ,':åg0 \t ¡ . , ~'ù~ - .} : 10 the reasons set out below, it is our conclusion that the ~ doctrine should apply. It is important to note that this case does not raise an issue of an estoppel. in connection with an agreement that would be inconsistent with the preservation of the statutory powers. The agreement which is alleged as the basis of the estoppel in this instance is not a complete ban on contracting out. The basis and thrust of this agreement is the enhancement of jOb security and thus it is not a matter which would negate the Employer's statutory rights under 5. 18(1) of the Crown Employees Collective Bargaining~ct. (See the decision of the Ontario Public Service Labour Relations Tribunal, July 21, 1989, T/37/88, (Picher) ) . In order for the doctrine of estoppel to apply it must be established that there was a representation made by one party with respect to the manner in which it intended to exercise its rights and that the other party relied on that representation to its detriment. The Board's conclusion is that the only reasonable interpretation that can be given to the evidence is that the Employer represented to the Union that it would exercise its right to contract out work in accordance with the terms of the letter and the . guidelines that it presented to the Union. These documents clearly indicate that contracting out óf work will only take place in certain prescribed circumstances. While Ms. () "8) I.: ' '-- ~ '.',~ .~ ~ . . - 0" 11 - t Powell stated that the Employer did not intend these guidelines to be binding the evidence does not suggest that - any such limitation was conveyed to the Union. While we note that the issue of payment of overtime hours was not resolved at the time that the guidelines were forwarded to the Union it is clear from the evidence that the establishment of these guidelines and the payment of certain monies to one of the grievors satisfied the Union with respect to this matter and thus the Union did not proceed further with the grievances. We cannot accept Mr. Werker's submission that there was no detrimental reliance on the part of the Union in this instance and that any estoppel would only apply to the two employees involved. An estoppel must apply to the parties to "a contract. It is the Union which had carriage of the grievances and it was a Union representative who'was involved in the discussions which resulted in the Employer establishing guidelines setting out the circumstances in which contracting out would take place. If the Union were not satisfied with these guidelines it could have pursued the matter further. The Union did not do so and we have no hesitation in concluding that the reason that it did not do so was that it felt that a satisfactory resolution of the problem had been reached. Whether or not the Union would have been successful at arbitration is of no consequence. There are many ,reasons why parties wish to settle grievances and it - .it .~'t~~ . ;:Ùt19 \:1,"'¡;.:f I ~J~'-" \ ~ 12 is not unusual that an arrangement reached between the parties effecting the settlement of a grievance would have ~ been the result if the matter had proceeded to arbitration. For these reasons it is our conclusion that the guidelines contained in Ms. Powell's May 12, 1986 letter and the statements contained in the text of that letter constitute representations made to the Union upon which the Union relied in resolving the grievances of Mr. Verbergh and Mr. Brien and, therefore, the Employer is estopped from exercising its right to contract out employment except in accordance with its representations. It is our view that this Board has jurisdiction to deal with the Union's .. allegation that the Employer's actions have not been in accordance w·i th those representations. There are two further matters which must be addressed. The first is Mr. Werker's submission that the matter should have been the the subject matter of a Union grievance rather than individual grievances. Given the language of the Collective Agreement and considering the nature of the relief claimed we are not convinced that the grievances were improperly put forward as individual grievances. The second matter arises from the fact that all seventeen grievors were in attendance at the hearing. Mr. A ~ . J . ~.~ .~ ~~~ !l ~/ 13 ; Werker advised the Board that the effect of the absence of so many persons from work was that the Employer's - operations were being curtailed. Mr. Werker submitted that it would be appropriate for the Board to hear and determine one of the grievances. Mr. Wright subm~tted that all of the grievors should be entitled to be present noting that the disposition of one of the grievances would have the practical effect of resolving all of the grievances. It was his submission that if all grievors could not be present they would be deprived of their right to attend at a hearing of their grievance pursuant to Article 27.6.1 of the Collective Agreement. A It is certainly not an unusual event for the disposition of one grievance to have the practical effect of disposing of other grievances and this is as it should be. Given the concern raised by Mr. Werker with respect to the effect of the absence of so many persons from the workplace we think it appropriate to proceed with one grievance of the Union's choosing. The Union is to advise the Employer prior to the reconvened hearing as to which grievance that is. This Board will remain seized with all of the other grievances. If they are not resolved on the basis of the disposition of the first grievance then any outstanding grievances will be dealt with as the Board may direct. The Board will ensure that any grievor will be , .. (fjj~ /":19 ¡I .,.,~ :::., ~... ~.- .~\): . ~;:~. ::~:- '. . \ . 14 entitled to attend at à hearing of his or her grievance in accordance with the provisions of the Collective Agreement. ~ Accordingly, the hearing in this matter is to be reconvened on a date to be determined by the Registrar in consulta~ion with the parties. Dated at Toronto thisll$tday of "'~:::'ch - ' 1991 <~5\ - 6 ?t>.. -~~" '. ' ...-/ s. L. ~tewart - Vice-Chairperson ~~ F;;/· -:/' ,VJarruthers - Member II I DISSENT" (Dissent without written reason) D. Daugharty - Member ~ .