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HomeMy WebLinkAbout1992-0329.Morrow et al.93-05-31 ONTARIO !;'j"~h. .? EMPL~gY~-S DE LA COURONNE CROWN EMP£~'/~ES DE L'ONTARIO '* *' ' - . · ' 180 DUNDAS STREET wEST, SUITE'2100. TORONTO, ONTARRg, M5G IZ8 TELEPHONE/T~L~PHONE (416) .t26-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G 1Z8 FACSIMILE/T~L~COPIE :. (4;6) 326-I.?,96 329/92 iN THE MATTER OF AN ARBITRATION Un'er THE CROWN EMPLOYEES cOLLECTIVE B~R~AININ~ &CT / Before THE gRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Morrow et al) ~rievor - and - .The Crown in Right of Ontario ' (Ministry of Health) -- Employer BEFORE:_ O. Gray Vice-Chairperson H. O'Regan Member R. Scott Member FOR THE J. Paul .UNION Grievance officer ' "' Ontario Public Service Employees Union FOR THE M. Quick EMPLOYE~ Counsel Legal services Branch Ministry of Health HEARING November 17, 1992 December 15, 17, 1992 A W A~R D The-grieVors are.attendants at the Oak Ridge. Division of the Mental Health Centre at PenetanguiShene. They each grieve that-"! am not receiving a .meal on night shift." The remedy they seek is that the employer provide .them with a meal on the night shift in future, and that it compensate them for. the meals they have 'not received from and after'October 16,.. 1991. We were originally scheduled to hear four · Such grievances: those of Kenneth Morrow, Jack Hamelin, Brenda Robillard and Jim Simpson. When the hearing began, .the par~ies agreed that. we should also deal with - T. Robataille's grievance to the same effect. At the outset, CounSel for the employer said she had preliminary objection. The objection .was that the grievances did .not allege anything which could be characterized as a-breach of the parties' collective agreement. By way of'background, she explained that food for breakfast, lunch and supper meals is prepared in another part of the Centre and sent in bulk to the wards at Oak Ridge, where, it is served to residents. The employer has lOrlg l~ad a practice, she acknowledged, of providing day and afternoon-shift workers with one meal per shift, taken when residents of the facility are fed. She said the employer does not have' and never has had a practice of a providing a meal to those employees ~wh0 work on a night shift, when meals are'not. served to residents and cooking-facilities are .not open or staffed~ Counsel for-the employer alleged 'that nothing in the parties' collective agreement requires the employer to ProVide meals to any of the employees-at .the Oak Ridge facility. It followed, she said, that we had no jurisdiction to entertain this grievance. -The first question' we considered was whether this objection was something which should be dealt with as a "preliminary" .matter -- that is, before hearing the parties' evidence and.arg~,ment with respect to any other issue. Arbitration has as its object the fair and expeditious settlement of disputes. To the extent' they are not addressed bY. Statute"or the parties' agreement, questions .about procedure 'must be resolved bY. reference, to t.h~se two-sometimes conflicting objects: fairness and .expedition. Oneparty's having characterized anissue as "preliminarY-" does not. settle the question whether:it should be dealt with that way. Without prejudging the issue which it is being asked to address in a separate and preliminary wayi an arbitration board must' balance the possibility 'that dOing so may make the process more expeditious .against the possibility that it Will' do the opposite. The judgment involved is informed as 'much by experience, as by logic. To make' that jUdgment, it i's generally necessarY to' know more about both the-issue in question and the other .iSsues raised by the grievance than~will generally be apparent by reading the grievance originally. filed. 'In order to assess whether tO address the employer's objection in a preliminary way, we asked the union's .representative to tel! us how it claimed that~we 'have jurisdiction to grant the relief claimedl In the course of' his response he made' the allegations of fact which appear·in the next two paragraphs. Twelve hour shifts were' introduced at the .Oak Ridge facility by agreement in 1983. Day shift workers work from 7 a.m. to 7 p.m., afternoon shift workers-work from 11 a.m. to 11 p.m. and night shift workers work from 7 p.m. 'to 7 a.m. Each '12 hour shift, includes 'a paid meal break. - EmPloyees are. paid for their meal.break because their responsibility continues 'during the break and throughout their shift. B~fore October 16, 1991, workers who'were at work when the evening meal was served would assemble meal trays 'of food-for the night shift workers Who Would be arriving later. They put the trays in refrigerators provided for the use of staff. The night shift Workers ate 'those .meals later, during the course of their Shift. This practice was regular· and consistent, and management had'been aware of and condoned it for a cOnsiderable time before October 16, 1991. By memOrandum dated October 16, 1991, management' announced that day shift and afternoon shift workers cOuld only take one meal per shift and would be disciplined if they took more. The result of this threat Of disci~pline and a reduction in the volume of food sent to the wards'was that night shift workers .were not provided with meals thereafter. This led to meetings dUring which the practice prior, to' October 16, 1991 was discUssed by the parties. Management was 'asked t° agree to provide' meals to the night shift workers. It did not do so: The collective agreement then in effect was due to expire on December 31, 1991. As of October 16, 1991, a neTM collective agreement was being discussed but had not ';been Concluded. A new collective agreement was made in early 1992, and came into' effect as of January 1, 1992. The union's representative referred to Article 17 of the collective agreement in effect before 1992: ARTICLE 17 - MEAL AI,I,OWANCE 17.1.1 An.emPloyee-who continues to work more than two (2) hours of -.~ overtime immediately following his scheduled hoUrs of work without no~ification~ of the requirement to work such overtime,, prior to the end of his previously scheduled shift, shall be reimbursed for the cost of one (1) meal to five dollars ($5.00) except where ~ee meals are · . provided or where the employee is being compensated for meals on some other basis. 17.1.2 A reasonable .time with pay shall be allowed the employee for the meal break either at or adjacent to his work place. 17.2.i CoSt of meals may be allowed only: 17.2.2 If during a normal meal period .the employee is travelling on government business other than: (a) on patrol duties, except as provided under sub-section 17.2.3, or (b) within twenty-four (24)~ kilometres of his assigned headquar- ters, or (c) within'the metropolitan area in which he is normally working; 17.2.3 If an employee on patrol.duties~ is reimbursed for overnight accommo- dation required for the trip; 17.2.4 If, in an unusual non-recurring situation, the department head authorizes such payment; 17.2.5 If, in any recurring situation, the Management Board has authorized such payments because of the special nature Of the assignments. 17.3 Gratuities and taxes are to be included in the actual Co~t of meals claimed. ~17.4 -' The ~total cost of meals for each day iSto be shown. 17.5 Before 'approving claims for meals, the branch head should be satisfied that the charges are reasonable for the locality. I7.6 When an employee is aUthorized to pay meal expenses fOr guests and the group also includes other Crown employees, he may pay 'for' the' meals of the employees and claim the cost~ These employees should, if they are submitting a claim for the same triP, indicate any meals covered in another employee's claim. They mUst-not.claim the'cost again. 17.7 Costs of meals will not be allowed in cases where meals are made available by the Employer at no cost to the employee, except in circumstances where an employee is required to follow a part_icular diet which has been medically 'prescribed or is mandated by the employee's religion and the Employer does not provide meals which · meet therequirements of that diet. It is commOn ground i~hat the language of-the new cOllective agreement does not differ from the previous ·.one in any respect other than the amount' payable when'· the employer is obli-ged to pay a meal alloWance. The union's representative noted that' Article 17 refers to the· employer's making meals~available at no cost. He acknowledged that it imposed no duty to do so. He said the union's argument is that this article contemplates the' employer's having a discretio~i'whether to supply meals or not, and that the employer is obliged to exercise such a discretion in a manner which is not arbitrary, discriminatory or in bad faith. The union's' position is that the employer'S decision to provide meals, to day and -afternOon Shift workers but notlto .night shift workers was discriminatory. It was also made-in bad faith, he alleged, because it was a "ploy" to prevent disclosure of the practice of providing night shift workers with food. He argued that the employer's improper exercise of its discretion under Article 17 was thus imProper, and constituted a breach which this Board has the jurisdiction to .remedy, The union's representatiVe also alleged that the employer's~ long-standing practice 'of providing night shift Workers' with meals estopped it from denying the night shift' employees' entitlement to such meals. He said the~effect of the estoppel was not brought to an end by the notice of. October 16, 1991'. The estopPel did not come to an end when the new collective agreement came into effect either, he said, because negotiations for that-agreement had already begun when the memorandum of October 16, 1991 was issued. The employer's counsel stated that it denied knowing of any practice of day or afternoon shift workers providing mealS'.to night shift workers as was described b~'the union's representative. It said the existence of such a practice was first alleged to it in meetings heldafter October 16, 1991. It denied.there was any basis for an estoppel. - It denied that its decision to give meals to some workers and not to others was or is constrained 'in .any way by the terms of either the Current or the former collect-ive agreement. ~From the estimates provided by the union's representative and employer counsel, it was apparent that the hearing of evidence with respect"to the parties' factual disputes would occupy considerably more.than the balance of that first hearing day: We asked the union's representative whether it would be necessary for him to cal.l any witnesses 'if the emPloyer agreed with all the allegations of fact he had recited up to that point ' that is~ whet/her the facts he had alleged were 'all the facts on whiCh the union, relied. The union's representative confirmed that it would not be necessary for us'to hear from his witnesses if the emplOyer agreed with the facts he had alleged. In those circ~]mstances,' we conclUded that i't would, be helpful to hear the parties' argument on the question whether we could or should grant 'any relief even if the facts alleged by the union were true. We so advised the parties. The union's representative expressed some difficulty with this. In answer to the chair's questions, he reconfirmed that if the employer had agreed wifh the facts he had alleged up to that .point,. he woUld not have to lead .any evidence. The Chair ~xplained that he was to present the final argument he would have presented in those circumstances.' The Union's representative expressed concern .about being asked'to argue the case on the basis of.the allegations of fact he had recited. Before and-after commencing the requested argument, he commented more than once that he should be permitted to have his witnesses testify. He began introducing .into his' argument factual -allegati'ons he had not made earlier: In particular, he alleged that there had been an express agreementor agreements between local management and the local union that meals would be.provided to night shift workers. He had difficulty pa .rticUlarizing this new allegation. In the face of this, we concluded that it would, be best to have the evidence of the Union's witnesses define the bounds of the-union's factual allegationS, and defer to a later stage' of the proceedings the question whether those allegations raise an arbitrable issue. In the end, that issue was not revisited until final argument. Gary Lenehan was the president of the local union which includes attendants at Oak Ridge fr0m~ 1979 to 1989. 'He testified that in 1982 the local Union and local management participated' in a Quality of Workfng Life ("QWL') committee. The committee and its subcommittees discussed a number of matters, he said, including shift schedules and "duty meals." These discussions led to-agreement to the introdUction in 1982 of 12 hour-shift schedules. They als0 led~ he Said, to .agreement on the provision of duty meals. This was to be for all attendants at Oak Ridge; he says he would ' "~ not .have agreed that some would get meals-and others .would not. In cross- examination, .he acknowledged that the hours of work Were the subject of a written compressed workweek agreement which was renewed annually. He also acknowledged that .the agreement currently in effect, which was first-made in 1984, makes'no reference to the provision of meals. He said that there was a separate written agreement about meals that he and the union have been unable to locate. He also insisted that the .employer had not provided meals to attendants on a regular basis before 1982. · Mr. Lenehan and four of the five.grievors all testified.from personal experience about the practiee alleged by the union. 'They said that afternoon shift Workers on each ward take some of the bulk food.delivered for the evening meal~ assemble meals and set them aside on trays in 'the refrigerator in the Staff lounge. 'Some. of them had done this or seen it done when they worked on the day. or afternoon shift: Jim Simpson testified that each tray would be covered with a paper plate, marked "n~ght shift, or "night man." All five had enjoyed such meals On a regular basis while working the' night shift. They said that management mUst have known about this practice, because head nurses would have seen the meals in the refrigerators and night .shift supervisors would have seen and had'seen these meals being-eaten. Their experience covereda period 'of several years prior to 1991. Mr. Lenehan testified that at the time of "the agreement" there were 18 attendants and One' shift suPervisor working on the night Shift. At the time of the grievance there were 14 attendants - two on each of 6 wards and two, in the front office -- plus a shift supervisor on the night shift. He said attendants are asked for a meal count and they include night shift staff in that count. Craig Sturrock is. food production manage~ for the Mental Health Centre. at Penetanguishene. ~He was food supervisor at Oak Ridge from 1981 to 1988. Tk~.e union summonsed him as a ~Witness.. While he was food-supervisor, it was his function 'to determine how much food to send to Oak Ridge. He said' it was always his understand- ing that day and afternoon shift attendants each got a meal,.but night sl~ift attendants didn0t.-He said he had calculated the. amount °f food based on the number of patients and day and afternoon shift' staff. Hd added 20% so that those who so Wished coUld have seconds. He was aware that there was left over food. He knew that Some of that leftover food was being put away in refrigerators. He did not know it was being put away for the night shift. He thought it was beingput away "as 'extra' for use on the ward" by staff or patients. Pat Burns has been the Nursing Coordinator since early 1992. Piior to that he was-the Assistant Director. of Nursing.~ He was the au{hor of the memorandum of October 16, 1991, the bodY of which .read as follows: The dietary department will be reducing the overall, amount of food sent -to Oak -Ridge. There will be enough food for '-the patient population and the nursing Staff who are entitled to a meal. NURSING STAFF ~MEAL .ENTITLEMENT' - ~ 0700 .-01900 ~-LUNCH'ONLY 1100 - 2300 - SUPPER ONLY This directive will be strictly .enforced. Any staff member found in violation of this 'directive may be subject to discipline. Mr. Burns testified that the Concern this memo addressed was that employees on. the day and afternoon.shifts were taking both a lunch and a supper, when they are only supposed to have one or the Other; He said this was not the first memo of this kind. He sent it on this occasion after noticing that the meal count nUmbers sent in by the wards were higher than .they should be,. and learning, from nurse managers that some attendants on afternoon shift were taking a lunch. ' Prior to-this he had been aware,' from observations of the.refrigerators and dirty dishes in stafflounges.when he arrived at work in the morning, that food sent over for meals was finding its waY into the refrigerators and being eaten by someone. The observations he made did not suggest to him that entire meals were ~being set aside-f~r or consUmed by night, shift attendants. He thought afternoon shift workers were setting aside portions of their own meals and eating those portions themselves later in their shift. This was not something he investigated. Mr: Burns stated that there was not mUch concern .about food volume "at one time." Mr. Burns was an attendant in the bargaining unit until 1978 Or 1979, when he became a supervisor. He testified, that the employer began providing meals to attendants in 1978, when attendants were working 8 hour shifts. Day shift workers were given a meal when residents had lunch. Afternoon shift'wOrkers .were given a meal when residents were given their supper. No meal was provided to the night shift workers at'that time nor, so far as Mr. Burns understood, at' any time since'.-When he was an a~tendant on the night shift, he ate meals he. br°ught with 'him to Work: Mr.- Burns Was a member of the QWL committee. His recollection is that Whe~ meals were - · discussed, it was only in relation. to the day and afternoon shifts. The issue that arose Was whether attendants on thoSe'shifts would get both a lunch, and a dinner once'their shifts expanded to 12 hours and overlapped both meals. He says the outcome at. that time was tha~ attendants on those shifts were only to take.one, meal per shift, just as' his memorandum of October16, 1991 indicates. Cathy Finney has.been the Associate Admi~istrator at Oak Ridges since 1986. From 1980 to' 1986 She was the Director of NUrsing. It is her understanding that meals have been and are provided only for attendants working day and afternoon' Shifts,' and. not for attendants working a night shift. She confirmed the accuracy of minutes of an EmployeefEmployer Relations COmmittee ("EERC") meeting-of September 26~ 1991, which record that .... .MRS,' Firmey reminded that nursing staff are allowed one meal per shift (Le. 7 to. 7:shift - one lunctf, 11 to 11 Shift - one supper meaD, Minutes of an EERC .meeting of October 23, 199'1 record that I~. Bradley wfllbe speaking with the Head Nurses in terms 0fthe amount off°ed coming to Oak Ridge and a reminder to' staff.that 0nly one meal is allowed per shift. A discussion arose about the amount of food coming to Oak Ridge for patients and the wastage. Uneaten food left in.the containers should' b'e sent back to the kitchen so food-wastage can be rr/onitored. EERC minutes for November21, 1'991 state that · W:. c°rosky inquired'if the night staff are allowed a meal and he was advised there was no provision for this. It was agreed this issue would be put on the January Agenda for discussion. Minutes of the EERC meeting on January 16, 1992 note that Following a discussion regarding the provision of a meal (i.e. luncheon) four night staff at Oak Ridge, Mrs..Finney advised she~ will discuss the issUe with Mr. Kytayko~ EERc minutes for FebrUary 20, 1992 record that Mr. Kytayko Will discuss the possible provision of extra sandwiches, etc. for the night staff'with Mrs: Miller. ' DiScussions of this issue at EERC meetings ended when these grievances were filed. Wayne McKerrow. was the Administrator of the Mental Health Centre at Penetanguishene from ~1978 ~to" about 1985. Minutes 'of a meeting of the Employee/EmploYer Relations Committee held on October 25, 1978, recor, d his having announced ."a pro.gram of providing-~dutY meals for Oak-Ridge attendant staff.~ Minutes of a meeting of the Quality 0f Working. Life. Steering ~ Committee held on November. 2, 1982 record that: Mr. McKerrow informed the committee that there was one factor that had been overlooked during shift'schedule discussions' and that Was the additional costs involved for duty. meals .... this is:due to the double 'shifts on the wards during the lunch and dinner periods.- ... He went on to say that ... the possibility did exist 'that duty meals would not be served. It-was'also pointed out'that there is no written agreement to supply duty meals to the staff and that they are served under a "gentlemens agreemenL' This' note appears in minutes of a meeting of that committee' held on-April 27, 1983! Mr..McKerrow .agreed to talk to Ms. Gilbert regarding the increased food costs due to.the two duty. meals now being served on the new schedule and report back to the next meeting.. Minutes of.a meeting of that committee held on May 17, 1983 record that A decision has been made to implement the 12 hours shifts and appropriate schedules are being developed. Mr. McKerrow expressed some concern over the increased meal costs. If two meals are provided to each Oak Ridge attendant on the 12 hour shifts, the anticipated increase in.meal costs is in the neighbourhood of $28,000.00. With this in mind',' he asked the executive to give Consideration to.settling for one -meal in each 12 hour Shift, thus reducing,th~ increase in meal cost:. Mr. Lenehan said he would discuss the matter With his executive and, report bac~k at the'next meeting. Mr.. McKerrow was ~Called as a Witness by the employer. He remembered -introducing duty meals.. He could not remember whether the duty'meal program involved supplying meals to-attendants on the night shift. He could not remember how the issue referred, to in the minutes of May 17, 1983 was resolved. He did not recall any written agreement to supply meals to night Shift attendants. He did not remember whether there was' a practice of-afternoon Shift Workers setting aside meals for night Shift workers.` He Clid remember making the comment that duty meals were Provided under a "gentlemen!s agreement." He said the rationale for providing the attendants with meals, was that they could-not be relieved of duty during meal times. , The members of current local management who testified ' Mr. Burns and Ms. Finney -- were asked why the employer would 'not provide meals to night shift workers. They referred to the'fact- that food preparation facilities :are not Staffed at night, Mr. Burns mentioned problems.he thought they might have With~ the "health department" over giving workers leftover food prepared/several hours earlier. He acknoWledged that these were not difficulties.which could not be overcome. Ms. Finney also mentioned concerns aboutl meeting publichealth standards. She'added that there was a difficulty in providing Oak Ridge attendants With this benefit when 'it is not provided to workers in other parts of the 'Centre. Both parties had witnesses address the differences between the work done by attendar~ts during the day and afternoon Shifts and the work they do 'on the night shift. The major difference as-it relates to meal times is that the residents are out of their rooms and loose in the ward-when day and' afternoon shift workers eat their, meals, but are locked in their rooms when the night shift attendants eat theirs. While the residents must be monitored at-all times, man.agement is of the view that eating a meal in .peace is more easily accommodated dUr~ing the night 'shift's meal time than during the others' meal times. On the evidence before us, we find that the employer began providing meals' to attendants in 1978, long before the QWL committee was establiShed~ Attendants'then worked 8 hour'shifts. Meals were provided to attendants on day and afternoon shifts, but not to those on night shifts. Mr. Lenehan is mistaken in-hi~ recollection that .provision of staff meals only began when 12 hour shifts did, We find he is equally mistaken in his recollection that management entered into a written agreement to provide meals to ail three shifts was.made when 12'hour shifts were implemented. 'While 'it may-be that Mr/Lenehan would never have agreed that some attendants -woUld get meals'and others would not, it does not appear that the employer-asked him to agree to its continuing that aspect of its existing practice. It is apparent that the amount of food.deliVered in'bulk for the evening .meal was always well in excess of the requirements of the residents and staff entitled to meals. Management' was-aware that leftover food was going into staff refrigeratOrs. They did not Particularly care who was eating it. Mr~ Burns iobserved ~that there was not much. concern abot~t~ food volume '"at One time." We take it that there was no concern about this until some time in 1991. We believe the .testimony of the emPlOyer's Witnesses that they di~ not personally know that attendants present at the evening, meal were regularly'setting aside food for night shift attendants. Given their jobs~and work schedules, none of the emPloyer's witnesses had any reason to be present in the workplace either when the night shift meals were setlaside or when they were eaten. In all'thecircumstanCes, it is not surprisinglthat 'those members of management had not become aware by personal observation of the attendants' practice of setting aside food for their night shift colleagues to eat. It is difficult to imagine, th°ugh, that none of the head nurses on duty when the evening meal is served was aware that complete meals were being set aside. They would not have been aware who was eating them,because their shift ends before night .shift-attendants eat their meal. The shift supervisor.is present throughout the shift, howeVer. It is equally difficult to believe that none of those who served as shift supervisor on night shifts was aware that meals were set aside and that night shift attendants were e. ating them. In-a context in which there was no concern about excess food or wl~at became of it, we are not surprised that .none of thOse first line supervisors who observed these things'would have thought it worth reporti~ng to their superiors. _ We do no~ agree with counsel' for the emploYer that it was incumbent on the union to call: shift Supervisors and head nurses to corroborate 'its witnesses' evidence that bargaining unit employees, regularly set aside some of.the food delivered for the evening meal so that attendants on the night shift could have a meal in the early morning. Those witnesses were available to the employer. The fact that it did not call -them suggests that they were not in a pOsition to contradict the union's evidence on this point. Accordingly, we 'find that' for several years prior to the memorandum of October 16,~ 1991, bargaining unit employees had a practice whereby those on the .day. or afternoon shift would set aside some of the food delivered for the evening meal so that attendants on the night shift could have a meal in the early morning. We also find that a~ least some first line members of management must'have known of this.~ We are not persuaded, however, that the employer undertook, instigated or encouraged the provision of meals to night shift attendants. There is no evidence that any ~hember of management ever instructed any attendant on the day or afternoon shift.that.he o~.she was to set aside-a-meal for the night shift. There is no evidence that any member of management took the night shift workers'into.acCount in deciding how much food should be sent to Oak Ridge. Bargaining unit employees had the Opportunity to develop the practice of supplying their colleagues with meals only. because management made overly generous provision for the others whom it felt obliged to feed and, until some time in 1991, was. indifferent about what became of any excess food. To establish an estoppel, the union must show that the employer made some representation intended to affect the legal relations of the parties, that~the union acted in reliance on that rePresentation, and that as a~ result of so. acting,, the .uniOn-or the employees itrepresents.would suffer detriment if the empl°yer's~rights and obligatiOns were now assessed as though they were Unqualified by its earlier representation: see, generally, Brown & Beatty, Canadian LabOur Arbitration (3d) at paragraphs 2:2210 .and 2:2220. In some'.circumstances,~ Silence may constitute a representation for purposes of this ·d0ctri'ne. The union says .the employer's silence in face of the practice ~of setting aside meals for'night shift workers supports an estoppel which requires that~ the employer continue to facilitate that practice. ~- The union's representative referred to the decision in Beaulne et al., 0606/86 (Forbes-Roberts). For a number of years the local management of the employer in that case had supplied_day shift' personnel at a correctional institution with free meals, presUmably when inmates were fed.' It was not required to do this by either the Collective agreement or any internal policy. When a superintendent of the institution put an end to that practice,·the affected.employees grieved. At arbitration, the union proVed that .the emPloyer's practice -of providing duty. meals' had been discussed' with previous superintendents. One of those previous superintendents had "assured the'~ then local president that vis a vis the provision of duty meals things would be left 'as is~.~' That assurance was given some time before the parties entered into the collective agreement Which was in effect when the subsequent Superin. tendent announced his intention to discontinue the practice. In those circumstances, the BOard concludedthat In the face of a clear longstanding practice which had endured undisturbed .through at least three (3) sets of negotiations and the assured continuance of which had been offered by a· top ranking Employer official the Employer is estopped from in mid contract unilaterally withdrawing from that position. In a subsequent .decision in the same matter, the Board (somewhat difibrently constituted) made it clear that the estoppel continued only to the end of the term of the collective agreement which had been in 'effect when the then superintendent announced his intention to discontinue the practice. The facts here are distingUishable from those, in 'Beaulne in two important respects. In Beaulne, the employer had actively and conscioUsly providedmealS. Here, the employer has merely .tolerated .the .taking of leftover food, With the-resUit'' that employees whom t'he employer had not undertaken to feed were able to.get meals with the help of other employees; In BeaUlne, the employer had expreSsl~Y_represented that it would continue to pi~ovide meals. Here, there has been no express representation by the employer that it will suPply meals, nor that it will either sustain the quantity of leftover food or cOntinue to tolerate the taking ~f it. Managemen~'s inaction in the face of emPloyees' taking leftover food might well · have e~topped it from disciplining emPloyees for doing so.without having first making it clear that such taking would no longer be tolerated. That is-not what-is at issue here. The union argues .that the emploYer is estopped by its silence from ending the supply of its food to night shift workers. It says an estoppel prevents the employer from acting i.n a. prospective way ~after giving .the notice it says it gave October 16, 1991. We are.not satisfied that the emp]0yer's silence here constituted a representa- tion that the employer~ supply or ensure the supply of meals or that it ~yould sustain the quantity of leftover food or even continue to tolerate the taking of it.~ In othe~ words, the employer made no representation by words or'conduct capable of estopping it from putting an end to-the employee, practice which its past conduct enabled. As we have already noted, the union's rePresentative says t~hat ~by referring to the possibility that the ~m'ployer may supply meals to employees, article 17 impliedly requires that the employer's discretion Whether to supply meals or not be exercised in a manner which is. not arbitrary, discriminatory or in. bad faith. He:'cites Baylis, 1762/89 (Samuels) and Anderson, 3005/90 (Watters) in support of that ~propositior~. Articles 17.1.1 and 17.7 do mention the possibility that the employer may provide a meal to an employee, but only in relation to circumstances'in which the employer Would otherwise be obliged to pay for a meal (article 17.7) or pay a meal allowance (article 17.1.1). It/strains the language 0f article 17' unduly, to read it as speaking in any Way.. about the gratuitous provision of'meals to an employee in circumstances in which the emploYer has no obligation concerning the employee's meal. We can understand the grievors' disappointment at having their food' supply interrupted by the 'emplOyer while.it continued'to give other attendants in the same institution freeJmeals. We are not 'able to say that the employer has acted, in bad faith in deciding-to do that. Its reasons for drawing the line where it has and refu~ing either to supply meals or facilitate the continuation of .the prior practice for the night shift attendants may not be overwhelming,', but they cannot.'be said to be arbitrary. We do not need to decide whether it would have been a breach of the Collective agreement for .the.employer to act in an arbitrary, discriminatory o~ bad faith manner in deciding whether:to gi've the. grievors something it was.not obliged' to give. The employer did not act' in an arbitrary, discriminatory or bad faith manner in doing what itdid here: For the foregoing, reasons, this grievance is dismissed. Dated at Toronto this 3 lday of May, 1993. Owen V. Gray, Vice-Chair,/ "I Dissent:" (dissent attached) H. O'Regan, Member - R; Scott, . Member Re: 392/92 - O.P.S.E.U.. Morrow (et al) '- ' and ...... The Crown in Right of Ontario (Ministry of Health) ...... I have read the decision-of the' Vice-Chair, Mr. Owen Gray~ and with respect, I .must disSent. In 1982, a cOmmittee consisting of representatives from management and the. local union formed a Quality of Working Life (Q.W.L.) Committee. From the evidence of Mt. Lenehan, who was the President of the local union at that 'time, we learned that one of the number of matters that were discussed 'at the Q.W.L. Committee meetings was the issue of shift schedules which eventually lead to an agreement of implementing 12 hour shifts commonly known as compressed work week. The evidence given to the pan~l of the Board by .Mr. Lenehan was that during these Q.W.L. Committee meetings, the .subject of duty meals was also discussed although representatives for management or the union-were .unable to introduce to us any written document indicating what was agreed to regarding the provision of meals. Mr..Lenehan 'clearly 'Stated that he, as president of the local union, woUld never agreq to some.members being supplied, meals and other members not being supplied meals. ' -- While Mr.. Lenehan acknowledged that the current collective agreement makes no reference to the provision of meals, he claims the agreement was first reached in 1984. Therefore, .in my opiniOn, it has been a long standing-practice.which was well known to -members of the management team that meals were being .set. aside from the bulk food left Over to be used by employees .of the' night shift staff~ The issuance of a memoby management in October 1991 was..the first attempt made by -management to-stop this long standing, well known practice;' In my-opinion,, this amounts to an act of discrimination whereby' employees on two shifts get a' special benefit that the employees on the night Shift-'ar¢ being stopped from enjoying. One final comment I must add-I find the practice now engaged 'in by management to discard left over food rather than allow the night shift staff to use it, morally wrong. I ' would have found fOr the griev0rs and allowed the grievance on the basis of long standing practice.' LEN O REG/~ DATE fid opeiu 491 FILE:CROWN.DEC