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HomeMy WebLinkAbout1990-0452.Burton et al.91-10-17 " , , r; ONTARIO £MPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE ('ONTARiO 1111 GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAFlIO, M5G IZ8 TELEPHONE ITtLÉPHONE.' (416) 326-) 388 180, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMfLEITÉlÉCOPIE: (416) 326- 1396 452/90, 602/90 615/90, 617/90 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLElŒ1rr BOAPJ) BETWEE~ OPSEU (Burton et al) Grievor ... and - The Crown in Right of ontario (Ministry of Tourism-& Recreation) Employer BEFORE: S. stewart Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE s. Goudge, c. Dassios GR:ç:EVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THE c. Riggs EMPLOYER Counsel HiCks, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING December 19, 1990 April 24, 1991 May 3, 15, 1991 ~ , DECISION There are a large number of grievances before the Board in this proceeding. On the agreement of counsel the Board heard evidence and argument with respect to one category of grievances, those grievances filed on behalf of seasonal employees of the Niagara Parks Commission relating to entitlement to retroactive wages. Arrangements were made for further hearings with respect to the remaining grievances. The dispute between the parties with respect to seasonal employees relates to the level of compensation to which certain classifications of seasonal employees are entitled for the period between January 1, 1989 and December 31, 1989. The parties entered into a Memorandum of Settlement dated April 21, 1989, following negotiations in the spring of 1989. Article 13.01 of the Memorandum of Settlement provides that all bargaining unit classifications will receive a 6% salary increase, with certain classifications receiving an additional .05 cents per hour, non-compounded. This Memorandum of Settlem~nt provides for the revision of the previous Collective Agreement in accordance with the terms that had been newly agreed upon. The concluding paragraph of the Memorandum of Settlement states that: All other items remain as in the Collective Agreement '. I r} 2 subject to renumbering to reflect changes heretofore described~ . There was no dispute that the seasonal employees were paid in accordance with Article 13.01 of the Memorandum of Settlement. The issue is their entitlement to additional compensation, either by virtue of Article 22.01 of the preceeding Collective Agreement or by virtue of an estoppel. The preceeding Collective Agreement, which covers the term January 1, 1987 to December 31, 1988, is unsigned. It was prepared by Mr. McIlveen, the Employer spokesperson at negotiations. Mr. McIlveen indicated that the document has yet to be finalized, however there was no dispute as to the accuracy of the provisions that were referred to the Board. Article 22~01 of the Collective Agreement provides for rates of pay for seasonal and part- time employees by classification (referred to as "classes" in the Collective Agreement). It provides that certain classifications~ Janitors, Office Help, Retail Sales Clerks, Cashiers, Distribution Centre Workers and Shift Supervisors, will receive specific rates of pay. Specific rates of pay are also set out for the Labourer and Accounting Clerk classifications, however Article 22.01 further provides that these classifications will receive salary increases equivalent to the average increases for, respectively, the Maintenance Sevices category and the - Office Administration Category (of the Ontario PUblic Service). This provision of the Collective Agreement , ~ , 3 further provides that Trades employees will be paid at the first step of the applicable salary range (of the Ontario Public Service comparator). Article 22.01 of the Collective Agreement goes on to state: All other bargaining unit classes will receive a salary increase equivalent to the applicable wage category in the Ontario Public Service. Where there is not an applicable category tie-in, the position will receive a salary increase equivalent to the General Operational Services Category . Members of the public service in the General Operational Services category were awarded a $1.30 across the board increase for 1989 by virtue of an interest award of a board chaired by D. Fraser, dated January 15, 1990 . The Employer paid employees an increase of 5.4%, the difference between the 6% salary increase it had already paid by virtue of Article 13.01 of the April 26, 1989 Memorandum of Settlement, and 11.4%. The basis for this latter figure is the average increase in the General Operational Services category resulting from the Fraser award, a matter that will be discussed further in this decision. The Employer's position is that this payment , fulfills its obligation to these employees. The Union's position is that the Employer is obliged to pay the employees the difference between the increase previously paid and $1.30 per hour. Evidence was adduced by both parties with respect to -' (f . , '4 what transpired in the negotiations which resulted in the April 26, 1989 Memorandum of Settlement. To a large extent, this evidence was not in dispute. Mr. J. Barron was the Union's staff representative assigned to the negotiations. This was Mr. Barron's first set of negotiations with this Employer., Employee members of the Union's negotating team were A. Giajnorio, D. Wojnovitch, A. Caru so, F. Massi, and M. Morocco. The Employer's negotiating team consisted of Mr. R. McIlveen, whose title is Assistant to the General Manager, and D. Whitehouse, Director of Human Resources. . The first meeting between the parties with respect to negotiations took place on April 4, 1989, at which time proposals were exchanged. Mr. Barron testified that at the next meeting, April 7, 1989, there was a detailed discussion of the positions of the parties. He testified that at that time Mr. McIlveen stated that the Employer wished to have a quick settlement with respect to seasonal employees, as it was about to commence hiring for the season. The Employer made an offer of 6%. Mr. Barron stated that at this meeting he asked Mr. McIlveen what would happen if the comparator category in the Ontario Public Service came in higher and that Mr. McIlveen replied that "they would be given the difference". Mr. Barron stated that he referred in this discussion to the ,- S Maintenance Services, and OAG as well as General Operational Service Category as these were the relevant comparators. Mr. Barron stated that a member of the Union's bargaining committee asked what would happen if the comparator in the OPS came in lower and that Mr. McIlveen replied that there would be no downward adjustment to the rates. Mr. Barron noted that Mr. McIlveen made no reference to calculating any increase on the basis of an averaging formula. However, he agreed in cross-examination that there was no detailed discussion with respect to how a settlement in excess of the payments agreed to would be implemented. No agreement was reached at that meeting. . At the next meeting, on April 19, 1989, the Union put forward a counter proposal with respect to wages which was rejected by the Employer. This counter proposal was for 6% plus 20 cents per hour for some classifications. The parties met again on April 20, 1989, at which time the parties agreed to a 6% increase with .05 cents in certain lower paid categories and signed a draft memorandum of settlement. Mr. Barron stated that based on Mr. McIlveen's statements at the April 7, 1989 meeting, it was his understanding at the time of the settlement that seasonal employees would also receive additional compensation if the settlement in the General Operational Services category of the OPS exceeded this amount. A draft Memorandum of · . ,. (~ , 6 Settlement was signed that day and a typed version was prepared, which was also signed by all members of the negotiating commdttee and which, as previously noted, is dated April 26, 1989. The Memorandum of Settlement was ratified by both the Union and the ComITÙssion. There was no specific reference to the "tie-ins" for seasonal employees in the Union's proposals. There was also no reference to tie-ins in the Memorandum of Settlement except for a reference to a tie-in for the Tradesmen, which provides that they will be paid at the first step of their classification, as Article 22.01 had previously provided, with the added condition that a journeyman's certificate must be filed. There was a further provision that uncertified tradesmen would be classified as Labourers. Mr. Barron explained that it was his view that there was no ~ need for language preserving the tie-ins for the seasonal employees as the parties had not changed their previous agreement with respect to tie-ins. The Board also heard evidence from F. Massi, who, as previously noted, was a member of the Union1s negotiating team. Mr. Massi's evidence was similar to the evidence of Mr. Barron with respect to what transpired in negotiations. Mr. Massi described the Employer's monetary offer as an lIinterim offer", which resulted in an interim settlement for seasonal employees. Mr. Massi also referred to Mr. . 1 7 McIlveen's statement that he would "pay the difference" between the wages agreed upon and the ultimate settlement in the OPS for the seasonal employees. Mr. Massi was uncertain as to the precise manner in which the general operational tie-ins had been calculated in the past. Mr. A. Giajnorio, another member of the Union1s negotiating comßdttee, was called by the Employer to give evidence. Mr. Giajnorio was the president of the Local Union between 1978 and March, 1990. He had been involved in negotiations for a number of years. Mr. Giajnorio was asked in examination-in-chief how the Employer calculated the tie-ins in the past and his response was: "probably on the average that came down". He also stated that there was nothing said at negotiations in 1989 with respect to tie- . . ins, except for the trades. However, in cross-examination, he aCKnowledged that the exchange referred to above with respect to the effect of settlements in the OPS did take place. He stated that after the Fraser award it was his expectation that those classifications that were tied in to the General Operational Services Category would obtain an increase based on the average because that was the basis on which they had been paid in the past. Howeve r, in cross- examination, Mr. Giajnorio acknowledged that he did not have actual knowledge as to how the Employer calculated the tie-ins in the past. · " f, '\ ','-' . 8 Mr. Giajnorio initially stated that he felt that the Ernployer1s payment of 11.4% fulfilled its obligation to seasonal employees based on its agreement to "p,ay the difference". Howeve r , in cross-examination, he· stated that he did not know whether this payment fulfilled the Employer's obligation. There was a meeting between the Union and Employer negotiating teams on March 6, 1990 to discuss the issue of compensation for seasonal employees. Also present was Mr. J. Tai t, the Union staff representative who had succeeded Mr. Barron in regard to this Employer. Mr. Tait candidly stated at the hearing that the increase of $1.30 across' the board for the general operational services category "shocked everyone", as "no one contemplated that it would be that high". From discussions at the meeting on March. 6, 1990, Mr. Tait understood that the Employer1s objection to the payment of the $1.30 increase was the amount of the increase. Mr. Massi and Mr. Tait gave evidence about a private discussion between the two of them and Mr. McIlveen at the March 6, 1990 meeting, at which time Mr. Massi asked Mr. McIlveen if he would have agreed to the increase provided for in the award if it were 30 cents rather than $1. 30 an hour. Mr. Massi stated that Mr. McIlveen replied that he would have. Mr. McIlveen did not contradict this I . , 9 evidence. There were no significant contradictions in the evidence as to what transpired at the March 6, 1990 meeting. The position advanced on behalf of the Union was that employees were entitled to the difference between the compensation they had already received and the $1.30 per hour awarded by Mr. Fraser. The Employer's initial position was that it had only agreed to 6% and that was the extent of its obligation. Mr. McIlveen subsequently stated that he was prepared to recommend the payment of an additonal 5.4% to the Commission but that he was not prepared to pay the difference between 6% and $1.30. The 5.4% was based on the average increase in the General Operations category. It was not disputed that Mr. McIlveen stated at that meeting that an increase on an average percentage basis was the basis upon which tie-ins had been calculated in the past. There were some discussions with respect to which employees would fall in the General Operational Services category. It was'the Union's position that the Employer should make the initial determination with respect to that matter. The payment of an additional 5.4% was approved by the Commission and paid to the employees. The QPS settlement for the Maintenance Category was 6.02%. The employees entitled to the Maintenance category tie-in were paid the difference between the . '., ... .{~ I 10 I average increase of that settlement and the 6% agreed upon previously. The Office and Administration group settlement in the OPS came in at less than 6% and, as a result, there was no adjustment made. Mr. McIlveen. has been involved in negotiations with the Union since he commenced his employment with the Niagra Parks Commdssion in 1981. He stated that since 1977 the parties have agreed that certain classifications will . obtain the tie-in for the equivalent. classification in the ops. For example, for the 1987-88 Collective Agreement, as previously noted, the parties agreed to specific rates of pay in addition to a tie-in for accounting clerks, to "salary increases equivalent to the average increases for the Office Administration Category". A similar provision for specified rates and an average .increase equivalent to the average increase for Labourers 3 and 4 was agreed to. With respect to the Trades Classifications it was agreed . that these employees were to be paid on the basis of the "first step of the applicable salary rangen. Mr. McIlveen testified that this latter tie-in required him to go directly to the OPS rates to determine the appropriate rate of pay. As previously noted, Article 22.01 of the 1987-88 Collective Agreement contains the following provision relating to tie-ins for all other bargaining unit classifications not specifically addressed: ~ \ 11 All other bargaining unit classes will receive a salary increase equivalent to the applicable wage category in the Ontario Public Service. Where there is not an applicable category tie-in, the position will receive a salary increase equivalent to the General Operational Services Category. Mr. McIlveen stated that the last sentence of the paragraph obliged the Employer to pay a tie-in to employees for whom there was no comparable position in the ops. As will be further described below, Mr. McIlveen testified that he based the tie-in for those classifications entitled to a General Operational Services category tie-in on the basis of the average increase in that category. Mr. McIlveen testified that it was his view that the Employer did not have an obligation to pay anything in addition to the increase provided for in the April 26, 1989, Memorandum of Settlement. However, as there was a dispute between the parties that he wished to resolve, he recommended payment of the average increase in the hope that this would resolve the dispute. Mr. McIlveen did not dispute that he agreed at negotiations that employees tied in to the General Operational Services category would "be paid the difference" based on the ultimate settlement reached for that category in the OPS and that he never indicated that he was withdrawing this agreement. Mr. McIlveen stated that he anticipated that the increase would be a percentage increase, and not a dollar figure. .~ if '-~ . 12 , Howeve r, he made no statement to that effect and did not seek agreement on the part of the Union to this effect. He made no reference to making the payment on the basis of the average cost of the settlement in the manner that he had previously. In cross-examination, Mr. McIlveen was asked if the recommendation that he made to the Commission was an attempt to fulfill the commitment that he made in negotiations. Mr. McIlveen's response was: "I guess you could say that. I felt I had to do something". Mr. McIlveen testified that he obtained the figure of 11. 4% from the Ontario government1s pay research department. He stated that this figure represents the average cost of the settlement in relation to the previous year. The figure of 11.4% is also referred to in correspondence from the Union in relation to the Fraser award as the percentage increase in the average rate for the General Operational Services category. Mr. McIlveen stated that in 1987 the settlement for the General Operationa'l Services category was a combination of a percentage and a dollar amount on a weekly basis. This figure was converted to a percentage figure obtained from the pay research department which was applied to the applicable classifications of the Employer. There was no objection taken by the Union with respect to the payments made by the Employer at that time. In 1988 the settlement · \~ 13 in the General Operational Services category was a percentage increase. Mr. McIlveen stated that he obtained the average cost of this settlement expressed on a percentage basis from a document issued by the pay research department and paid increases to those employees entitled to the tie-in on that basis. Again, there was no objection from the Union to the payments made. Mr. McIlveen also referred in his evidence to a settlement in an OPS Maintenance category in the early 1980s, in which the settlement was a dollar amount. Mr. McIlveen stated that he calculated the increase based on a conversion to a percentage figure reflecting the average cost of the settlement that he received from the pay research department~ As in this instance, he understood the basis of the percentage figure to be the average cost of the settlement to the OPS. Mr~ McIlveen stated that he did not recollect this particular situation at the time the implementation of the Fraser award became an issue. It was the Union's submission that the provision for the salary increase equivalent to the General Operational Services category in the Ontario Public Service for those employees without an applicable tie-in contained in Article 22.01 of the 1987 Collective Agreement was preserved by Article 14 of the Memorandum of Settlement which, as , . ,.1: ~) 14 previously noted, provides that: "All other items will - remain as in the Collective Agreement...". Mr. Riggs I submission was that the parties have specifically addressed the issue of wages in the April 26, 1989 Memorandum of Settlement, amending the provisions that were in the previous Collective Agreement. Accordingly, in Mr. Riggs' submission, Article 14 cannot operate to preserve the tie- in provision contained in Article 22.01 of the previous Collective Agreement. We accept Mr. Riggs· submission in this regard. Article 22.01 of the Collective Agreement is a comprehensive provision dealing with wages. It refers to specific wage increases for certain classifications, for specific increases and tie-ins for other classifications and further provides for the tie-in for lIall other bargaining unit classifications". The wage increases referred to in Article 13.01 of the Memorandum of Settlement are in no way qualified as interim increases. I Similarly, the 1989 rates of pay which are set. out in the Appendix to the Memorandum of Settlement make no reference to those rates as interim rates. Tie-ins for Tradesmen are addressed in the Appendix but other tie-ins are not. While- it could be argued that this provision reinforces the Union's position on the basis that it is a reference to a tie-in in the instance of a change in the provision, the language of the Tradesmen tie-in in the Memorandum of Settlement provides for entitlement on its own terms. On · ,- 15 its face, the Memorandum of Settlement indicates that the matter of tie-ins has been addressed. We cannot accept Mr. Dassios· submission that a reading of these two documents should lead us to conclude that the tie-ins contained in Article 22.01 of the previous Collective Agreement were preserved. The specific reference to the Tradesmen tie-in in the Memorandum of Settlement suggests the contrary conclusion. In our view, the logical inference from a reading of both documents, absent a consideration of the extrinsic evidence, is that the rates of pay contained in Article 22.01 of the expired 1987-88 COllective Agreement were replaced by a comprehensive new provision for wages contained in the Memorandum of Settlement. Accordingly, we accept Mr~ Riggs' submission that, as a matter of strict legal interpretation, the "tie-in" provisions of Article 22.01 are not incorporated in the April 26, 1989 Memorandum of Settlement. As we have accepted Mr. Riggs' argument on this basis we will not address the other arguments he raised with respect to this issue. There remains the issue of estoppel. The essence of the doctrine of estoppel is concisely set out in the often quoted decison of Denning, L.J. in Combe v Combe, [1951] 1 All E. R. 767 at p. 770 ; The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal ·... ~:' ': ~~. - ... ., ~, .. " 16 . , relations between them and to be acted on accordingly, then, once the other party has taKen him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by:any consideration, but only by his word. It is clear that a representation was made by Mr. McIlveen to the Union that seasonal employees would receive Uthe differencell between the increase to be agreed upon between the parties and the ultimate settlement in the oPS. We note, parenthetically, that an expectation on the part of the Union that the tie-ins to the OPS would be preserved is reinforced by virtue of the Employer preserving tie-in language for accounting clerks and labourers from the 1985/86 Collective Agreement in the 1987/88 Collective Agreement notwithstanding the fact that the Memorandum of Settlement for 1987/88 did not specifically provide for the preservation of this language. It is also clear, in our vi ew , that the Union relied on that assurance to its detriment. The Union proceeded to sign the Memorandum of Settlement and had it ratified on the understanding that the wages agreed to would be adjusted upwards based on the IIdifferencell between the wages agreed to and the ultimate OPS settlement. If the Employer had not provided the assurance that it did, the Union could have pursued the ! . 17 matter further. The loss of the opportunity to do so and the entering into of the Memorandum of Settlement following the Employer's assurance clearly establishes detrimental reliance. Mr. McIlveen questioned whether the Union would have broken off negotiations if he had not provided this assurance. However, he did agree that this was an important matter for the Union. Given the evidence regarding the manner in which the matter was raised, the assurance that was given and the Union's subsequent actions in obtaining ratification of the settlement from its members, we are satisfied that the detrimental reliance necessary for a finding of an estoppel has been established. It was Mr. Riggs' submission that the Union is attempting to enforce an independent oral understanding that is not really an estoppel. Mr. Riggs referred the Board to number of decisions in support of his position that the Board should reject the Union" s position that an estopppel has been established. Those decisions are; Atomic Energy of Canada Ltd. (1986), 22 L.A.C. (3d) 225 (Swan) , Elan Tool and Die Ltd. (l98S), 18 L.A.C. (3d) 17 (Weatherill), Hallmark Containers Ltd. (l983) , 8 L.A.C. (3d) (Burkett) , Ontario Paper (1983), 10 L.A.C. (3d) (Rayner) , City of Lethbrid~e ( 1986) , 26 LAC (3d) (England) and Sudbury District Roman Catholic Separate School Board .' , } ,:,. . ',r '. . .... "'4 18 '<j¡ .. (1984) , 15 L.A.C. 284 (Adams). In support of its position, the Union referred the Board to two decisions of the Grievance Settlement Board, Ministry of Correctional Services and OPSEU (Hanwell), 509/82, (Swan) , and Ministry of Correctional Services and OPSEU (Hopkins), 373/86, (Springate). Mr. Riggs emphasized the comments of the board in Atomic Energy, supra, at p. 229, where it is noted that: ilit is entirely possible that the doctrine of estoppel may, in an appropriate case, result in one party to a collective agreement being bound by a provision which does not appear in the collective agreement itself and is not a . modification or suspension of a provision which does so appearll . The award goes on to state that this theoretical situation could exist lIin the rarest possible set of circumstances II , and it is this latter point that Mr. Riggs emphasized. In Elan Tool, supra, the estoppel argument that was advanced by the Union was rejected, inter alia, because the Board considered the enforcement of the conduct by the employer to be the creation of a substantive right that was not conferred by the collective agreement. While there is an apparent contradiction in these decisions, this is not a contradiction which need be resolved in order to decide the case at hand. Even if we were to accept that the analysis in the Elan Tool decision is correct, the case ~ 0- ~ ' 19 at hand is clearly distinguishable. There is a specific provision in the Memorandum of Settlement which forms the basis for the Employer's strict legal obligations with respect to wage increases. The issue is the application of this provision. The Employer is not entitled to rely on its strict wording if it provided an assurance which qualified its strict legal rights. In Ministry of Correctional Services & OPSEU (Hanwell), supra, this Board applied the doctrine of estoppel to enforce the terms of the promise of the party against whom an estoppel was established, notwithstanding the fact that the contractual agreement of the parties did not contemplate such terms. The other cases referred to us by Mr. Riggs deal with the care which arbitrators must use in assessing evidence regarding understandings of the parties arising from discussions in the course of bargaining. The considerations are perhaps best expressed in Sudbury Roman Catholic School Board, supra, at pp. 286-7 as follows: I emphasize that evidence establishing an estoppel in the form of a representation made during negotiations and inconsistent with the clear wording of a collective agreement must be in the form of clear and cogent evidence. Labour relations statutes in all Canadian jurisdictions require that a collective agreement be in writing and it is simply too easy for parties in difficult negotiations, on the conclusion of a collective agreement, to allege that the representations were made contrary to the document signed. Much is said in collective bargaining negotiations and because of the nature of that process, parties tend to hear what they want to hear. Tactic and strategy underlie the communications between the parties as .~ -'1 '. , :¡ , 20 they attempt to persuade and cajole each other into agreement. We agree with the foregoing comments. In the case at hand, however, there is no dispute in the evidence as to the representation made by Mr_ McIlveen- Indeed, the witnesses called by both parties provided a common description of his representation. That is, that Mr. McIlveen stated that the Employer would pay tithe differencell between the agreed up::>n increase and the ultimate settlement in the OPS for the seasonal employees Utied-inll to the General Operational Services category. The evidence is clear and cogent. The Employer is bound by that representation. The more troublesome question is the interpretation to be given to the representation. Absent the evidence of the past practice of the Employer, we would have been inclined to agree with Mr. Dassios' submission that the appropriate, objective interpretation to be given to such a representation is that the Employer is obliged to pay the difference between the increases agreed upon and $1.30 per hour. An objective interpretation of a representation may be appropriate in some circumstances, as in the Hopkins decision referred to us by Mr_ Dassios. Howeve r, in the particular circumstances of this case, where we are called upon to determine the precise nature of a representation made in . . 21 the course of collective bargaining, and its implications with respect to a future event over which the parties in negotiations had no direct control, it is clearly necessary to consider the context of the representation in order to determine the true nature of the representation. It was common ground that the discussion at negotiations with respect to this matter was not extensive. The parties simply did not address the issue of how the tie-ins would be calculated or, in particular, how the t ie- ins would be calculated in the event of a dollar increase rather than a percentage increase in an OPS category. As Mr. Dassios noted, Article 22.01 of the 1987/88 Collective Agreement refers to tie-ins based on average increases for certain classifications, while the provision for the General Operational Services category tie-in is not qualified by a reference to average. We agree with Mr. Dassios that this difference in language would seem to indicate a distinction made by the parties. Howeve r , the matter to be determined is not the correct legal interpretation of this language, given our conclusion as set out above that the Memorandum of Settlement did not preserve the tie-ins. Notwithstanding the apparent distinction made by the parties in the previous Collective Agreement, the payment of the General Operational Services tie-ins on the basis of an average in the manner in which -- ,~ ~ i. r. 22 it was paid in this instance is clearly consistent with the Employer's past practice. In particular. this was the manner in which the General Operational Services category tie-ins had been calculated where there was a dollar increase as well as a percentage increase in the OPS - settlement for this category. The evidence with respect to this practice was uncontradicted. It is apparent from the evidence of both Mr. Massi and Mr. Giajnorio that they were not aware that the Employer calculated the General Operational Services category "tie- ins II on the basis of the average increase in the past. Mr. Giajnorio initially indicated that he understood Mr. McIlveen to be referring to the average increase when he stated that the Employer would pay lithe difference". However, as previously noted. Mr. Giajnorio acknowledged in cross-examination that he was not aware of the manner in which the Employer calculated these increases in the past. Notwithstanding the fact that these two members of the Union's bargaining committee were not aware of the Employer's practice, it is apparent that the Employer1s practice was engaged in openly. Indeed, as previously noted, there is one occasion in the recent history of this collective bargainin~ relationship in which a dollar figure was a component of a settlement in the General Operational -. . 23 Services category in the OPS which was applied on the same basis upon which the Employer ultimately provided an 11.4% increase in this instance. Given the context in which Mr. McIlveen's representation that the Employer would "pay the differencell was made, it is our conclusion that the proper interpretation to be given to that representation is that the Employer is obliged to pay the difference between the rates that were initially agreed upon and the average cost of the General Operational Services category increase, calculated on the basis that it was paid by the Employer in the past. As this payment has already been made by the Employer, it is our conclusion that the Employer has fulfilled its obligation in this regard. The evidence regarding Mr. McIlveen's statement at the March 6, 1990 meeting that he would have been prepared to pay a lesser dollar amount than that referred to in the Fraser award does not cause us to doubt the foregoing interpretation of the representation that was made. The statement was made at a meeting at which the parties were attempting to resolve the matter. It does not lead us to conclude that he accepted the Union1s position that the Employer was obliged to pay the $1.30 increase awarded by the Fraser board. Indeed, Mr. McIlveen's position at that I -L' .~> ':.. . -' .; , J. . 24 meeting was to the contrary. For the foregoing reasons, the grievances are dismissed. The remaining categories of grievances are to be beard in accordance with the arrangements made at the . hearing. Dated at Toronto, this 1 7 day of October, 1991 _ ~Q }jS(L:F- S.L. Stewart - Vice-Chairperson ¡II Díssent" (díssent to follow) - E. Seymour - Member ;lfl, ~ Oì;/~ M. OIToole - Member I ! I I I ~ , -,.' ·_·-·:::.::·~·::<L . . _ ~c_ . .-./.1 :¡ - . -.'i RE: GSB File 452/90, 602/90, 615/90 and 617/90 OPSEU vs Ministry of Tourism and Recreation :J (Burton et all I l -; DISSENT - EDWARD E. SEYMOUR, Employee Nominee :/ , .i - - -~ ~ I have - read the majority award and find I must with respect j: . dissent. I agree with the union's contention that the employer is obliged to pay employees the difference between the six per cent increase and the $1.30 per hour. Both- union and management were surprised that a $1.30 increase per hour increase was granted in the Fraser Award and it is important to review the initial reaction of the parties when that information became known to them. The union remembering the promise and commitment made to it by Mr. McIlveen, sought to have the full $1.30 per hour implemented. It never strayed from that goal. Barron, Tait and Massie all testified that Mr. McIlveen's initial response was that he had no obligation to pay anything except the initial six per cent. Barron emphatically stated that it was his belief that Mr. McIlveen did not want to pay anything above six per cent. It was only after Messrs Tait and Barron showed him the 1986 memo of settlement signed by both parties and the 1987 rates, that Mr. McIlVeen attempted to come up with any solution to the problem. I contend it was at this point that Mr. McIlveen recognized that he was obliged to pay something over the six per cent and began to 'look for the least expensive way Qut of his dilemma. Exhibit 7 clearly defines the union's understanding of the Fraser Award which is that a $1.30 per hour increase was provided to all rates. This union memo from the union's negotiating team expressly states that this represents an average 11.4 per cent increase for ... I , , "',.. '^ ~ ·f all categories. It goes further by giving examples of increases to , other categories. For example: the $1.30 per hour increase translates into 13.1 per cent for Usher Messengers and to 6.35 per cent for Area Supply Supervisor. Clearly, the $1.30 per hour was " given to all classifications and translated into percentage amounts. This is not what Mr. McIlveen did in his calculations. Mr. McIlveen came up with an 11.4 percent first, then applied it to all the rates. The majority finds that this was acceptable and .- contends this because of what was done on one occasion in the past. For the purposes of this situation, it is irrelevant to look at what occurred in the past. We do not know enough about earlier negotiations to determine what commitments might have been made. What is relevant for this situation is that a commitment was made. That commitment was to pay the difference. It is not appropriate for management to amend the offer to its own advantage, which is exactly what occurred in this instance. I agree with the union's contention that the provision for a salary increase equivalent to the General Operational Service Category in the OPS was preserved by .l>.rt i c 1 e 14 of the 1989 Memorandum of Settlement. Article 22.01 of the Collective Agreement does, as the majority contends, deal with wages and is comprehensive. However, just because one section of the Article is amended, it does not necessarily follow that all sections of the Article change. Therefore, I cannot concur with the majority that the reference to the tie-in for tradesmen in the Memorandum of Settlement nullifies the impact of Article 14 on the remaining sectio.ns of Article 22.0l. The Memorandum of Settlement is clear in it's language on this issue. There is absolutely no ambiguity. It reads: "All other items remain as in the Collective Agreement subject to renumbering to reflect changes heretofore described. " Were it not for these tie-in provisions, Mr. McIlveen would have dismissed the union's demand for additional money. That, as previously stated was his initial response when the Fraser Award ~as released. In granting the additional 5.4 per cent inere~se, Mr. Me II veen . . ./ . ". ;-::~~~: :.. :.-:-.-~;~ ,.;~- I , .- ?/ I . .t""' ", > t recog~ized the existence of the tie-in and realized tha~ he waS required to do something. It wasn't his sense of generosity which, , ¡ motivated him to grant the additional increase. / , , / Turning to the estoppel argument, the majority accepts there was a i representation made to the union and that the union relied on that assurance to it's detriment. To that extent I agree with the majority. I cannot however agree with the majority when it concludes that the difference to be paid is the difference between six percent and the 11.4 per cent average. To the extent that Mr. Mcllvl3'en made a representation it was clear: "I will pay the difference." It is when that difference came in s~ high that Mr. - McIlveen at first rejected the idea that he had any obligation and at~empted to retract on his commitment~ His second line of defence was to find the cheapest way out and he struck ~pon an average as the solution. I firmly believe that the evidence presented at the hearing strongly supports the union's percepti.on of events as they occurred. I believe this decision is wrong and it could haVe a -~ negative impact on future negotiations between the parties. In Collective Bargaining, the word of the parties is a crucial element in ensuring harmonious relationships. We need only to observe the relations between the Canadian Union of Postal Workers (CUPW) and Canada Post to see the level to which relationships can deteriorate when the two sides in the collective bargaining process distrust one another. The union leadership, in this instance the Negotiating Committee, has an obligation to take to it's membership the settlement offered by 'management. Management made a commitment to pay the difference between six per cent and what the OPS received. OPS came in with an across-the-board increase of $1.30 per hour for all categories. It is perfectly reasonable that the union1s negotiating committee and the members they represent would . expect $1.30 per hour. Thè _actions of management, now concurred with by the majority of this i ...... .~ <, ,- , ." , f . ~ . panel, will require that the union bargaining committee demand all managerial commitments to be produced in writing to ensure compliance. This is unfortunate because there must be room for fl exibi 1 i ty between the parties. For these reasons I would have ruled that management had an obligation to pay the full $1.30 per hour, both because the tie-in provisions were maintained as a result of the 1989 negotiations and secondly, because management through it·s agent made the commitment to pay the full $1.30 per hour. ','