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Home My WebLink About1993-0027.Union.94-04-05 ~, "- { / ONTARIO EMPLOYES DE LA COURONNE I CROWN EMPLOYEES DE L 'ONTARIO I GRIEVANCE COMMISSION DE 1111 SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITEUtCOPl1f (416) 326- 1396 27/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Management Board of Cabinet) Employer BEFORE: H. Waisglass Vice-Chairperson J. Carruthers Member G. Zubyk .Member FOR THE A Lokan UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. strang EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING January 19, 1994 ~~. 2 AWARD "fhe panel's de{.\:310n <:In thlS Omon gnevance was glVtl:P orally ot the umcl~sic!1 uf the hp,or.in95" w th assurance:; to th:' partles that this Av'/(lrd wltl follow as ~con as possIble The parties were told that In our Judgment the eVIdence presented falls to prove the Union's claIms "That thE' Ernp lOier \ . has vlolated the coll~cti.ve agreement by arranging tor a policy for dental l.n.5u"'anCE: whlch depri. yes employee::. of baner ts pr'ovlded i r. Artlcle~ 57 and 84 " . The settlement desired by the Unio~'$ grIevance is "That the Huitlcln Resources SecTetJrtot comply wi th the collecti.ve C1g1"eement QVlrl amend the Insurance poli,cy to ensure equiVai.-ence with the Blue Cross pOLan 7 and Rider's 1,2, 3, and 4 forthwith" " /l.rticles 57 and 84 require the Employer to provi.de the employees wi.th 0 dental insut'ance plan eg.ulYQlent to the Blue (r'oss Dentol Core Plan 7, w th i.ts Riders 1 through 4 This Un\on grievance <:entre-s on thlS one issue whether Q particulol' procedure, "pit c:na fissure sealant", should be covered by the Employer's insurance plan, even although the parties agree that this procedure 15 not covered by Blue Cross Plan 7 and Rlders 1 through 4 ThlS \ssue arises out of some comlllunt.cohon Tal lures and misundet'stanolngs whtch had occurred either about the ttme when the current collectlve agreement was being negotiated [for the t~rm commenclng Jcnuory 1, 1992J, or perhaps 1ater, In the course of discl.ssio"ls between representatives of the par.ties on the issue in the Joint Insuranc€: Benehts Revi.ew Committee A Memorandum of Settlement of the collective Ggreement was s\gned on January 9t 1.992 and shortly after the signi.ng of that cc\1ecti.ve <1greernent on Mar:h 4, 1992, trle Umcn filed thlS grIevance whi.ch is dated March 9, 1992 It i.s common ground that [lJ 0 proposed crv:mge to the dental plan to provlde cr\lerage fer' "pit a"d fissu e sealqnt" W(.lS among th~ origlnal Umon ~roposol s at the commencement of thE: negotioti.ons fot, the two->,eOI" collective agreement -- - - - -- - -- -----.--- -.---- i, 3 {E)I,hi.blt 15- letter doted October 30, 1991 ft'om Andy To(~d) Union CoordInator of Collect\ve Bar9Qinln~, to James R Thomas, Ass1stant Deputy Mlnlster, Management Board of Cab'i net}, and [2J, that du" 1.. ng the course of the "gi VE. and take" of those negotlOttonS the Umon had dr'opped thi.s partlculor proposa l {Exhi.bl. t 15- Uman Proposal U-3 Dated December' 4, 1991} In November', 1991, the Uni.on had mist,:)kenly corne to bel teve that the Blue Cross Plcn 7, wIth its Rlders, no longer' extsted, and that It had been 1"€placed by an eqLllVal€nt one, the Blue Cross Deh.xe Plan, whi.ch however d~d provIde "Plt and fIssure sealant" cov~rage \ The Urn on had teen i. nformed by .:1 1 et te t' dated Novernbe r 13, 1991 from its independent insurjnce advisor addressed to Ms McVi.ttie that ~currently Slue Cross are only offering t!'iree Dental Plans from th~ previoLls many options they pro'vlded"1 [a Preventative Plan, on Enhanced Plan and a Deluxe Plan) and that "the new Deluxe Plan i.s the equlvalent to the Qld Blue Cross #7 plus Rlder:; 1, 2, 3, and 4 ~ [Exhibit 2J On the bosi.s of thi's informotton the Um.on assumed i.ncorrectlJ that Plan 7 no longer existed I~ did not learn until very much later tnat while Blue Cross wds no longer issuing Pion 7 to new clients, Plan 7 continued to exist for those cli.ents who had been enrolled in It preViously Thus, on the mistaken tmpress.on that Plan 7 was replaced by the Blue Cress Deluxe Plan, Ms tvtcYittie corrrounicatea th~ information she had recei.ved from ( the lnsurance advisor to the Employer [Exhiblt 5-1etter dated February 4, 1992 to Ms Joon Dlmn, Senior Benefits Advi.sor, Management BOQtd of Cobtnet] and continued with her representatIons to the Joint Insurance Benefits Review Committee foY' an amendment to the Great West Life dental plan i.n order to provide coverage for "pit and fissure se~lQnt" S~ne confusion arose fran Ms McVittie's representQtiors which sne hod made in good fClth but which hed Iln~qed management to b~l i.eve that Plan 7 no longer ensted, and that i.t had been replac.ed by the Blue Cross Deluxe Plan Thus, management coomenced disc:us51ons with the insUt'er for p revtew of the dpntal pl.:1t'i 1n order to make It equlvalent to the Deluxe Plan, on the basis of the representatlons made to it by Ms MCVlttif.:, done lngood faith, that Plan 7 has been replaced, and that .- i 4 ) Plqn 7 no larger eyts~s Th'ts led to a mvdiflccJtl0ti wf the Er!'Iployer~s Dental Pion ((to t'~move dl.sCrepanCles w1.tl, the Blue (I'OSS R1ders spec!.fi.ed In the Collectl \it: Agt'eement" {Ex:hlbit 7- letter dated Api'll 29, 1992~ ft'om Nell Campbell~ Sr Benef1.ts Advisor, Management Boord of Cabinet, to Ms McVittie} Since the "plt and f S3Ure seolant" issue had still not been dealt'with n that A.~)t'1.l 29th letter, Ms McVi. ttie: testi. fled that she took the matter to tht: next meet tng of tl1e Joint Insurance Benefits Review Cgrl1'n1 ttee to ask. why The mi.tiutes of the Comnn. ttee {E.x.hi.b1. t 13} repor.ts - ~PIT AND FISSURE SEALANT " May 26/92 OP~EU (Sh\rley McVtttie) raised the quest\on of'Pi.t and F\ssure Sealants bewg covered under the PrOvu1ce's Contract with Great West Llte She stated this was one of the Hems under Plan 7 of the Blue Cross Plan Employer to look lnto this , << JULY 14/92 Th~s -has been referred to Great West L'L fe ANaltlng theH' /"€ply .., SEPT 14/92 Employer had dl.scussions with Great West L 1. fe about the provisions of PIt and Fissure AWQltl.ng a written reply " Oct 19/92 Employe~ to follow up before next meeti.ng OPSEU (Shirley McVittte) to notify Employer of Gny ~utstandin9 claims to date >> ..., On July 15, 1992 Shirley McVittie wrote Nell Campbell sendlng him ~a copy of the Blue Cross Preventive, Enhanced and Deluxe plans ull of which include p't and ftssure sealant for children" and asklng for its IncluSion "In the Great ) West polle,)' retroactive to March 9, 1992, the date of the uni.on grievance on the dental plan" [Exhibit 9J Appcwently, she was still not IJ\<',;are, at that ) ti.me, that it, fact Plan? remains 1n effect Ms McVittie testlft.ed that her impreSSlOtlS of mon()gemeYlt~s poslhon on the t:nt and flssure issue C1t the JOint Committee meettng of Oct 19/92 was !-hat r}ionr.:lge:ment was not contest 1 ng it "In my mind we had I.t " Her testuwny 15 she believed "we had an agreement on the idea~ but n6t on how Clnd when lt is to be I I ---- - I ( 5 l.tnplementea " She was a.;ked at that meehng to r::wovtde mar 1ge1'le::t !.n th lnforrnc.tion en the outstandmg claims because, she testlfled, m.~maget1'lent "wonts to know whClt the COsts ore Because rnClnagernent wants Gt~eat West Life to give the coverage for free, it needs to know the costs ~ Ms McVlttte belIeves that "we always talked about pit and ftss~re sealant" [1n the JOint Comm"..ttee] i.n a manner which gave her the lInpreSSlOn that mc:mogE:irlent lS not opposed to the coveroge, "that It is not to be ccntestea" and that tne problem ont) was that "the claims admlnlstratlon was .not 1n place" She test1fted that her notes on the Oct 19/92 meetirrg show that management "V/os hoping to have [the (overage] HI pl.::K€ shortlv" \ (1 iff Woodrow testified thclt he has been a member of the JOlnt Insurance Benef\ts Review Committee [JIBRC} since about 1989 and that he WQS on the OPSEU negotlating team for the current collective agreement for the per10d cat~ncing January 1, 1992 He confirmed thot the Union negotlatol's had removed the pit and fissure tssue from the bargcnmng table in the course of the negotiations It is his view that the "Union rotional ~as to take it back to the J01 nt Irl~JrClnce Benefits Revi.ew Commi ttE:~", and that was 'tdcne on the toble there in May, 1992" [The grievance was flIed after the bargaining on the collect'i ve agreement concluded wi. th a settlement memo] He testi fi.ed "'We believed wecou ld get it 1. n JIBRC w'lthoLlt a cost to the package " Cliff Woodrow testifled also that at. the Oct, 1992 JI8RIC meetIng "Ne~l Cambell led us to beheve that at the next meeting we would have pit and fissures tn wnttng. We believed we had en agreemeht to have lt covered undel' the plan But fl rst he had to fi.nd out how many c10lms there would be and somethi.ng on the costs for the coverage He coulr.:ln.'t tell YOll i.t was agreed on It was the last part of the meeting He couldn~t cOme right out and soy we had i. t, but at the next meetlng he would tt'Y to have sanething for us " *******~**~$********* Counse 1 for the two p(~rhes pre~E:l1ted uS with follclVHng agreerl facts 1 Blue Cross Deluxe 15 the successor to Plan 7 with riders 1 through 4 2 Since September, 1989, Plan 7 has no lenger been marketed to new clIents bU1: It has been moi.ntained fo!' €x1.Sbng cllents. ( , I - '! 6 3 Appr.o.xi.mately 15% of Blue Cross cl iE'nt base 1S stl11 on P1an 7, whIle 30% are on varlOUS successors to Plan 7 4 Pian 7 15 updated each year wIth new dental codes, but not by addtng new p(o..:edures 5 Plt and flssure came out eight to nIne years ago as a new procedure 6 If on Plan 7, it is posslble to purchase pit and flssure coverage as a nder *..*.~.~**.*..*.*.*** The eVldence does not peNnlt us to agree wlth the submisslons of Un~on's (ounse1 thQt thet'e WCis a common unde'"'stoiid "9 reached !:x~tl:ieen th,<> partIes that Blue Ct'oss Plan 7 means Blue Cross Delux.e, and to t'eplace the -Former .-nth the lattel' It ~s very clear that to t'eploce Blue Cross Dental C(JI~e Plan ? Wl th the De luxe Plan "elluues an amendment to the collecti.ve agt'eement Such an amfOndment can be achieved only by representatives of the pat.tles who are properly authonzed to do so by the two t'especti ve parties The eVldence before us tS that the reprt:sentatives of the L1nion and the Employer on the JIBRC ore not authorized to amend the colledlve agreement They nre I authorized, t1owever, in respect to insural),:e plqn benefl.ts, to I'esolole comphhhts and to negoti.ate the settlem~nt of gde\~c:nces Their discusslons on the pt t and fiss..n"e issue were pursuant to complatnts and gnevances on t'e levant beneh t clo'tms It 15 very clear, on the evidence, that after the Unlon had withdrawn tts proposals on thE; 1'1 t and fl.ssure issue 1n the course or the bargalrnngo', the current collective agreement, and soon after the new agreement was slgned, the Um on submi. tted a grievance on the issue It pursued thlS grlevahcE on the basls of 1nformahon which was subsequently proven to be 1n error On the basts of th1.S \/'lr'or.Q informo~1on, w~icn cdm\ttealy was gi.v~n by the Union to the Employer 1n good faith_ the Employer undertook tn explore with i.ts lr'ls.urer t~le posslbi 1 Utes of adding pit Gnd fissure to the beneflts covered by its dentaL plan The Employer too '.ACted '1.(', good fai th on th LS nns leadlng lnformatlon in explorlng the matter thorol"ghly w1.th the .nSllrer lJnt11 lt d1scovered that whl\e Plan 7 is no \~ngEr marketed to new cLlents, It stlll eYlsts and has been malntained by Blue Cross for ltS e.nstlng cl'.E'nts. ~- -- ~\. 7 I There lS no proof of the Union's c.1m.m that. c.m agreen\ent W')'5 reached between I the parties In the JIBRIC to add pit and fis:.'iure to the benef1ts covered by its insured dental plan The eV1dence 15 that Employer o~weed to notl11 ng '11o('e than to seriously ex.plore i.ts p05s1bi.lltles, and lt .had dc-ne so only on the bdslsof nformat1on 'it was 91ven by the Union WhlCl1 WClS subs~quently ):)to.;en to be InlS leadi.ng Thel'e certainly was no meetlilg of the minds on this lssue There ts no evidence before us to support the Union's claim thClt the Employer had oroorised the benefH of "pit and flssure sealant" coverage under the D~ntal Plan It is an agreed fact that <<Plt and flssure sealant" 15 not a teneflt cove rea by Blue Cross Dental Care Plan 7 and Ri.ders 1) 2) 3~ and 4 We find therefore tF:at 'the employees represented by the Umon are not entitled to thlS dental benefit ,Jlider the prcvlslons of the collecttve agreement For the reasons g1ven herei.n the gl'levance \s deni.ed DATED AT HAMILTONt ONTARIO, THIS 5thOA.Y OF April 1994 J . _ . ~ss~-~-;::::person ~ ------------------------ -- CARRUTHERS, MEM8EP -L.!lJ_-f/:~'--- G ZUBYK, 6ER ~