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HomeMy WebLinkAbout1996-0488.GROUP.98_02_05 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEl'ONrARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS \ \ 180 DUNDAS STREET WEST, SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 325-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSJMJLE/TELI~COPJE (416) 326-139G GSB # 0488/96 CUPE 1750 # 95-27 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Group Gnevance) Grievor - and. The Crown In Right of Ontario (Workers' Compensation Board) Employer BEFORE R.H. Abramsky Vice-Chair FOR THE Ms. L Paddlson UNION National Representative Canadian Umon of Public Employees Local 1750 FOR THE Ms. P Hillen EMPLOYER Legal Counsel Legal ServIces DIVision Workers' Compensation Board HEARING December 8. 1997 - PRELIMINARY AWARD \\ At Issue IS what "expense policy" IS currently 10 effect between the parties -- whether It IS the July 1985 pohcy (Document 620601) as the Union contends, or the 1991 policy (Document 6801 08) as the Employer contends. A number of gnevances mvolve thIS Issue and the parties agreed to proceed first wIth the prelimmary Issue of whIch pohcy IS m effect. The parties agreed to a statement of facts whIch are mcorporated below Article 2404 (a) of the current collectIVe agreement, the January 1, 1993- December 31, 1993 agreement, provides, m pertment part, as follows 24 04 Meal Allowance (a) The current practIce concermng meal and expense polley will be contmued for the duration of this Agreement. The wordmg of this provIsIon has remam unchanged smce 1990, and first appeared m the parties' lrutial collective agreement in 1975 EffectIve July 1985, the Employer revised its expense pohcy (Document number 62 06 01) That poltey superseded an August 6, 1980 polley, and, aceordmg to the Union, it IS the expense pohcy which should be currently 10 effect. 2 -. I Accordmg to the stIpulated facts, the July 1985 policy was "replaced with the (1;ravel Meal and Accommodation Expense policy, adopted by the Employer on April 9, 1990 " (the "April 1990" polIcy), although It was not Immediately Implemented One of the provlSlons m this new policy was that the normal commuting costs between an employee's home and normal working office would be deducted from the employee's busmess travel expenses. On August 29, 1990, then Manager of Employee RelatIOns, Bnan Homer, wrote the President of CUP E , Local 1750, Frank MUCCI, advIsmg hIm of the policy change and providmg copIes of the new polIcy Mr Mucci objected to the changes, statmg that It was unacceptable that the Employer would approve a polIcy whIch affected its members WIthout meeting with the Urn on to discuss the policy Thereafter, the April 1990 policy was slightly revised and a new policy was adopted by the Employer on September 7, 1990 (the "1990 PolIcy"), and notice of the new policy was provided to all directors. The Urnon's response was to lodge a complaint concermng the Employer's recently announced travel expense policy On December 11, 1990, the Umon filed a complamt before the Ontano PublIc Service Labour RelatIons Tribunal allegmg that "[s]ubsequent to the commencement of negotIatIOns, the Employer introduced three (3) polICies which clearly COnflict With existmg provIsions of the collective agreement." One of those polICies mvolved the deductIOn of commutmg expenses as set forth in the 1990 pohcy 3 - \\ Subsequent to discussions WIth the UOlon regardmg the 1990 Policy, the Employer removed the provIsion regardmg deduction of commutmg expenses from the 1990 pohcy A revised pohcy, the" 1991 Pohcy", was formulated by the Employer The 1991 Policy resulted in changes to prevIous adnuOlstratlve practices m the reimbursement of travel expenses It was tabled for discussion with the Union m collectIve bargammg sessIOns on January 31, 1991 and February 1, 1991 NegotiatIOn notes of those meetmgs from both the Umon and Employer 10dlcate that the 1991 Policy was reviewed at those meetmgs. After those meetmgs, the 1991 Policy was formally adopted by the Employer on February 14, 1991 It had a general effective date of October 1, 1990 (the expiry date of the prior collective agreement), while the rates for kilometre allowance and meal allowance were effective as of January 1, 1991 and March 28, 1991 respectively On February 19, 1991, notice of the 1991 Pohcy was proVided to all staff On March 26, 1991, the Employer and the Union reached consensus on "all outstand1Og Issues With respect to a renewal of the CollectIve Agreement to be effectIve from October 1, 1990 to September 30, 1991 " The Memorandum of Settlement proVided as follows 10 regard to Article 24 04 Article 24 04 Meal Allowance Breakfast $ 6 15 4 ~. Lunch $10 20 Dmner $15 00 \ \ Effective the date of sigmng the collective agreement In a memorandum dated April 5, 1991, Bnan Homer, Manager, Employee RelatiOns advIsed G PIcken, ExecutIve Director, Human Resources and Development, that the Umon had wIthdrawn its Tribunal complaint in hght of the Employer's removal of the commutmg expenses deductions from the travel expense polIcy and the recently negotIated collectIve agreement. ConsIstent with that memo, on March 19, 1991, the Tribunal advIsed the parties that the complamt had been termmated The Umon dId not raIse any objectIon to the provIsIons of the 1991 PolIcy from the time It was tabled to the time the negotiated settlement was reached. Since 1991, there have been two negotIated collective agreements and subsequent extenSIOns to the current collectIve agreement but enforceabilIty of the 1991 Policy was not raIsed as an Issue dUrIng these bargaImng dIScussIons nor was the issue raIsed generally until 1995 Dunng thIS penod the 1991 PolIcy has remamed the same. The Umon has also relIed on the 1991 PolIcy and Its applIcatIOn mother gnevances, such as GrIevance 94-37 and 94- 21, where the enforceabilIty of the 1991 Polley was not in issue. In addItion, an agreement was sIgned on June 11, 1996, between Yvonne Carr, then PresIdent of CUPE Local 1750 and Lmda Jolley, then Vice PresIdent of Human Resources and Client Appeals, that the applicatIOn of the 1991 Pohcy would be lllmted to one work base (as opposed to more than one) on a WIthout prejudice baSIS until the next round of bargammg, The term "work base" does not eXIst m the July 1985 policy 5 / \ \ The parties are currently in the collective bargaining process, but as of the date of the heanng, had not yet tabled proposals for the new agreement. Arguments of the Parties The Union's posItion is that the 1991 Pohcy is not enforceable or m effect smce It never agreed to the new pohcy It asserts that the presentatIon of the 1991 Pohcy dunng negotIatlOns was for mformatlOn purposes only and all that the Umon agreed to, as reflected m the Memorandum of Settlement, was an increase m the meal allowance and the kilometre rate It mSlsts that the "current practice concemmg meal and expense policy" to whIch It agreed was the 1985 pohcy, document number 62-06-01 It pomts out that the negotiatIon notes show only that the new policy was discussed, not that the Umon agreed to the change m pohcy It submits that while It did not obJect to the new pohcy, It dId not agree to It and contends that to change the "current practIce", the Umon would have had to agree to It. Smce it did not agree, the 1985 policy was still in effect under the new collective agreement The Umon also rehes on two pnor GSB decIsions, CUPE (Zonni/Hardy) and Workers' Compensation Board, GSB Nos. 812/89; 1472/89 (KIrkwood, Vice Chair) and CUPE 1750 (Shaw) and Workers' Compensation Board, GSB No 1403/88 (KIrkwood, Vice Chair) The Umon contends that the Board held, m both of those cases, that Article 24 04 of the partIes' collecttve agreement incorporated the PolIcy and Procedure Manual pertammg to the condltlOns for payment of expenses Therefore, It argues that the_ 6 ~- Employer's adoptlon of the 1991 Policy contravenes the collectlve agreement, which, ~der the GSB case law, incorporates the 1985 Expense policy It argues that by mamtammg the eXisting language, It maintamed the 1985 pohcy and asserts that If the employer wanted to change thIS term of the collective agreement, It had to have had agreement from the uruon. It further argues that such a substantial change should be clearly documented, wluch was not done here. The Employer, in contrast, argues that Article 2404(a) reqUIres It to mamtam Its expense pohcy only durmg the term of the collective agreement, not beyond that. It submits that It was free to amend the polIcy upon the expiration of the parties' collectlve agreement, wluch it dId on February 14, 1991, and argues that the presentation It made to the Uruon concerrung the 1991 Pohcy during negotiations put the Uruon on notice of the change. The Employer argues that the Uruon was aware that the Employer adopted the 1991 Policy before negotiatIons were finalized yet raIsed no objections and signed off on Article 24 It states that it was incumbent on the Uruon, after the Employer tabled the 1991 policy, to negotlate the contmuatlOn of the old pohcy or seek changes to the new one. Instead, the Uruon was silent. Accordingly, 10 the Employer's View, the revised policy was not an "outstandmg Issue" between the parties and consequently was not specifically referred to 10 the Memorandum of Settlement. The Employer further submits that the Uruon's acquiescence to the change in policy was further eVidenced by Its Withdrawal of the Tribunal complamt and Its failure to 7 --. file any further grievances or complaints about the new pohcy from 1991 until 1995 It \~oints out that two subsequent collective agreements were negotiated during that period, as well as agreement extensions, without the new policy bemg challenged by the UOlon. In terms of the GSB cases cited by the UOlon, the Employer contends that they only mean that the Employer could not change the policy durmg the term of the collectIve agreement Accordmgly, the Employer argues that the "current pohcy" under Article 24 04(a) IS the 1991 Pohcy In the alternative, the Employer argues that If I conclude that the 1985 Policy is still 10 effect, the Union should be estopped from relying on that provIsion. The Employer subnnts that all of the elements of equitable estoppel are present and that after so many years of silent acqUIescence it would be highly meqUltable for the UOlon to now argue that the 1985 policy IS still in effect. In support of ItS argument regarding estoppel, the Employer cites to Re City of Penticton and C. u.P.E., Local 608 (1978), 18 L.AC (2d) 307 (Weiler), Re Fieldfresh Farms Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees Local 647 (1997), 61 L,AC (4th) 182 (Goodfellow), Dartmouth Ambulance Ltd. and C. u.P.E. Local 3264 (1993), 33 L.AC (4th) 78 (Sloane), and Re Domglas Inc. and Aluminum Brick & Glassworkers International Union, Local 2602 (1994), 40 L.AC (4th) 398 (Keller) 8 I .~ Decision Based on the stipulated facts and arguments of the partIes, as well as the cIted arbitral Junsprudence, I conclude that the "expense policy" currently In effect is the 1991 Pohcy Article 2404 (a) states that "[t]he current practice concerning meal and expense pohcy will be continued for the duration oftms Agreement." ThIS same language existed In pnor agreements and dId not preclude the Employer from amending Its pohcy What It does preclude IS amendment of the pohcy "for the duration" of the collectIve agreement. In other words, no change may be made to the policy dunng the term of the agreement. ThIS Interpretation IS conSIstent WIth the GSB cases CIted by the Union. In CUPE (Zonni/Hardy) and Workers' Compensation Board, supra, the arbitratiOn board concluded that "[b]y Including a reference 'expense policy' 10 artIcle 2404, the parties have agreed that the terms of the expense policy as set out 10 the Pohcy and Procedural Manual will not be changed during the course of the collective agreement" (DeCIsion p 8, emphaSIS added) Sm1ilarly, 10 CUPE 1750 (Shaw) and Workers' Compensation Board, supra, the board determ10ed that while management has broad nghts to manage the orgarnzatiOn, those nghts are subject to the nghts and oblIgatiOns negotIated 10 the collective agreement. It held that "in artIcles 24 04(a) and 25 05 of the collective agreement, the employer agreed to hrrut ItS management nghts, where those nghts relate 9 ----- to the reimbursement of certain expenses. It agreed that the current practice concerning ~eals and expenses is to be continued for the duration of the collective agreement" (DecIsIon p 9, emphasIs added.) These decisIons, therefore, do not stand for the proposItIon that the 1985 pohcy was mcorporated by reference into the collective agreement until a mutual agreement to change the polIcy was made Rather, they stand for the proposition that management has the nght to change the polIcy, but may not do so dunng the term of the collectIve agreement. In tills case, no change was made dunng the term of the collective agreement. The 1991 policy was adopted by the Employer on February 14, 1991, after the expIratIOn of the partIes' collectIve agreement and before the parties had reached a new agreement. Consequently, when the parties agreed to Article 2404(a) on March 26, 1991, the "current practIce concernmg expense polIcy" was the 1991 policy The Union's argument that the parties discussIon of the 1991 pohcy was for informatIonal purposes only cannot last beyond the Employer's formal adoptIon of the 1991 polIcy on February 14, 1991 and Its dIssemmatIOn to all employees on February 19, 1991 In light of those developments, at the tIme the parties' reached their Memorandum of Settlement, the expense policy had been revised. Further, the Uruon was made aware that there had been a change m the expense polIcy Consequently, as of March 26, 1991, the "current 10 - practice" whIch could not be changed during the term of the collective agreement, was QQW the 1991 policy But even If that was not fully understood 10 1991, (i.e, even If there was some mlsunderstandmg that the "current practice" remained the 1985 pohcy), that mlsunderstandmg could not have contmued for long. The 1991 policy was adopted by the Employer, notice was provided to all employees and the new polIcy was Implemented. Yet the same contractual language set forth 10 Article 24 04(a) was adopted by the parties 10 the next two collective agreements Clearly, when those subsequent agreements were negotIated there could have been no doubt that the 1991 pohcy was 10 effect and that the "current" expense policy was the 1991 policy, not the 1985 policy Thus, under Article 24 04(a) of the current collective agreement, the "expense policy" whIch is mcorporated mto the collective agreement IS the 1991 polIcy In addition, even if the Union is correct that the 1985 pohcy IS still incorporated mto ArtIcle 2404(a), it would be estopped from asserting that contractual nght. Accordmg to Brown and Beatty, Canadian Labour Arbitration, at 2,2210, three elements are needed to find an estoppel. 1 a finding that there was a representation by words or conduct, whIch may include silence, mtended to be relied upon by the party to which IS was directed. 2 some rehance 10 the form of some action or mactIon, and 3 detnment resultmg therefrom. 11 .....--- In this case, from 1991 to 1995, a penod of four years and three collective ~greements, the Union did not file a grievance or protest in any way the Employer's ImplementatIon of the 1991 expense pohcy ThiS lengthy penod of acqUIescence to the employer's ImplementatIOn of the 1991 expense polIcy may be held to constitute a "representation" that the "expense polIcy" 1Ocorporated 1Oto the parties' collective agreement under ArtIcle 24 04(a) was the 1991 polIcy, not the 1985 pohcy Re Fieldfresh Farms Inc, and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, supra at p 193, Re Domglas Inc. and Aluminum, Brick & Glassworkers International Union, Local 2602, supra at 404 As a result, the Employer had no need to barga10 over thiS Issue dunng the renegotIatIon of the parties' collective agreement. A lost opportunity to bargain has been held to be detnmental relIance. Re Fieldfresh Farms Inc., supra at 194 Further, there would undoubtedly be a substantial cost to the Employer If the 1985 expense pohcy was determined to be in effect s10ce it has been applY10g the 1991 policy for so many years now In these Circumstances, It would be 10eqUltable to enforce the 1985 polIcy As Arbitrator Michel PIcher stated 10 Re Board of Commissioners of Police for City of Owen Sound Police Association (1984), 14 L.AC (3d) 46, at pp 56-8, quoted 10 Re Domglas Inc., supra at 404-405 It IS reasonable for any employer 10 a collective barga1010g relatIOnshIp to expect that the apphcatlOn of any part of the collective agreement which does not meet With the approval of the OppOSIte party will eIther give nse to a gnevance or become a po1Ot of contention In the pen odic renegotIatIon of the collectIve agreement In thIs case the associatIOn had made no objectIOn to the way In which the board of commiSSIOners applIed art. 14 12 - over a great number of years. No gnevance was filed SInce the article was first Inserted Into the collective agreement, nor was any word of objection \ , raised in the many successive rounds of renegotiation of the parties' \ agreement. In my View, 10 these Circumstances, it would be most mequltable to allow the associatIOn to assert successfully an interpretatIOn that is mconslstent with Its many years of apparent acceptance of a contrary interpretation applied by the board of commiSSIoners, The same pnnclple IS applicable here For all the foregomg reasons, I conclude that the current "expense pohcy" under Article 24 04(a) of the parties' collectIve agreement IS the 1991 policy Dated 10 Toronto, tlus ~ day of February, 1998 air 13