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HomeMy WebLinkAboutUnion 21-03-10 IN THE MATTER OF AN ARBITRATION BETWEEN: EASTERN ONTARIO HEALTH UNIT (The “EOHU” or the “Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 490 (“OPSEU” or the “Union”) AND IN THE MATTER OF A GRIEVANCE PERTAINING TO THE PLACEMENT OF THE POSITION OF FOUNDATIONAL STANDARDS SPECIALIST JANICE JOHNSTON - SOLE ARBITRATOR APPEARANCES: For the Employer: Aaron Rubinoff Counsel Phillip Guiton Counsel Crystal White Manager, Human Resources Thérèse Bourgeois Director, Corporate Services For the Union: Gabriel Hoogers Counsel Jessica Lefebvre Local 490 President Chantal Lalonde Local 490 Vice-President Hearings in this matter were held via video conference on October 21, 2020 and January 14, 2021. Final submissions were completed in writing. AWARD The Background 1. The Eastern Ontario Heath Unit (the “EOHU”) created a new position, the Foundational Standards Specialist (the “FSS”) in March 2019. The issue in this case is whether it belongs in the OPSEU bargaining unit or a Canadian Union of Public Employees (“CUPE”) bargaining unit which also represents a group of employees at the EOHU. There is also an Ontario Nurses Association (“ONA”) bargaining unit but there was no challenge that the position should be placed in the ONA unit. 2. The parties in this case elected to proceed in what I would call a “hybrid” fashion. I heard from one witness from each side and we had two days of viva voce evidence. Ms. Thérèse Bourgeois, Director, Corporate Services testified on behalf of the Employer and Ms. Lynne Giroux, Health Promotion Specialist, Healthy Foods in Hospitals Program Co-Coordinator, testified for the union. At the conclusion of the evidence, the parties determined that rather than set a date for final submissions, they would provide me with written submissions. Accordingly, we set a schedule for the submissions. I have carefully reviewed the submissions of the parties and the jurisprudence that they have provided me. I do not intend to refer to all of the submissions and case law but only that which I found the most helpful and relevant. 3. The recognition clauses for the OPSEU and the CUPE bargaining unit read as follows: CUPE Article III-Recognition and Coverage Article 3.01-Recognition Clause 2 The employer recognized the Canadian Union of Public Employees, Local 1997, as the sole and exclusive collective bargaining agent for all employees, save and except Program Directors/Coordinators, Supervisors and persons above these ranks, Physio and Occupational Therapists, Social Workers, Executive Assistants to the Chief Executive Officer and to the Directors, and persons covered by subsisting collective agreements. OPSEU Article 1 – Recognition 1.01 The Employer recognizes the Union as being the sole and exclusive bargaining agent for all paramedical employees of the Eastern Ontario Health Unit save and except supervisors, persons above the rank of supervisor and persons for whom any trade union held bargaining rights as of June 22, 1990. 4. As can be seen, each union represents a particular set of employees. The CUPE unit is an all-employee unit “save and except” specific positions and those employees covered by other collective agreements. OPSEU represents all paramedical employees. The Ontario Labour Relations Board (“OLRB”) in a 1990 decision (Association of Allied Professionals v. EOHO, 1990 O.L.R.B., 0890-90- R, August 2, 1990), provided a comprehensive, non-exhaustive list of what comprised paramedical employees at the time, as that term is used in the recognition clause of the OPSEU collective agreement. 5. Historically, paramedical employees included in the OPSEU bargaining unit have included health promoters and health educators. More specifically, individuals occupying the positions of Health Promotion Specialist (Nutrition), Health Promotion Specialist (Physical Activity) and Health Promotion Specialist (Tobacco), employed at the EOHU are members of OPSEU and are involved in the implementation of Foundational Standards at a higher level than other employees are. 6. The EOHU is one of 34 public health units in the province of Ontario. Every region in Ontario has a health unit, and the EOHU covers the Eastern-most 3 region of the province. The main goal of the EOHU is to maintain the health and well-being of its community by implementing programs that deal with health protection and health promotion and prevention. 7. The mandate of Ontario Health Units, in this case the EOHU, is to promote health in Ontario. I was provided with a lengthy document entitled Protecting and Promoting the Health of Ontarians - Ontario Public Health Standards; Requirements for Programs, Services, and Accountability. This document dictates ninety percent of the work done by the EOHU. 8. The EOHU receives its mandate from the Ontario Public Health Standards (the “OPHS”), which are published by the Ministry of Health and Long-Term Care (the “Ministry”) pursuant to the Health Protection and Promotion Act, RSO 1990, c. H.7 (“HPPA”). The OPHS sets out what are called the Foundational Standards and the Program Standards that health units in Ontario are required to achieve. 9. Foundational Standards are requirements that underlie and support all program standards implemented by health units across Ontario. They are comprised of four requirements: (a) population health assessment; (b) health equity; (c) effective public health practice, which includes; program planning, evaluation and evidence-informed decision-making; research, knowledge exchange and communications; quality and transparency; and (d) emergency management. 10. The OPHS have been in place since 2008. In 2018, the Ministry published a revised set of OPHS in which it significantly increased the reporting and accountability obligations of Ontario Health Units. Prior to 2018, the EOHU did its 4 best to meet its Foundational Standards obligations set out in the OPHS by having various Foundational Standards related responsibilities performed by employees across all programs and across all bargaining units. Since Foundational Standards underlie all of the Employer’s programs and services, any employee of the Employer who is involved in health programs and services plays a role in the implementation of foundational standards. However, different positions at the EOHU implement foundational standards at different levels of complexity. 11. Prior to 2018, the EOHU had established a Foundational Standards team which was, and continues to be, led by a manager, Ms. Louise Simmons. In addition, employees from programs across the EOHU would work with Ms. Simmons and her team in respect of Foundational Standards work to assist in fulfilling the EOHU’s OPHS mandate. However, it became clear to the EOHU that it needed to change its approach to Foundational Standards in order to satisfy the new 2018 OPHS requirements. The Events That Led To The Dispute 12. The implementation of the new OPHS mandate in 2018 presented challenges for some of the programs and services within the EOHU. Accordingly, the Employer approached the Health Promotion Specialists (the “HPSs”) in or around October 2018 and asked them to take on some additional duties around the implementation of Foundational Standards across the health units. The HPS (Tobacco), Nikolas Hotte, agreed to take on additional Foundational Standards work around that time. Lynne Giroux, and Chantal Lalonde, HPS (Physical Activity), in response to the Employer’s request, sent an email to Ms. Bourgeois and Patti Gauley, Manager He3alth Promotions, dated December 20, 2018. In that email, they sought clarification with regard to this work assignment, which 5 they characterized as a “secondment.” In particular, they were concerned that the work involved in the “secondment” would displace the work that they had identified within their respective HPS roles. 13. After sending that email, Ms. Giroux and Ms. Lalonde participated in a meeting with Ms. Bourgeois and Ms. Gauley. Ms. Giroux indicated in her testimony that as the meeting did not resolve the issues set out in the email of December 20, neither Ms. Giroux nor Ms. Lalonde undertook the assignment. Eventually the EOHU decided to create a permanent position to address these requirements, the Foundational Standards Specialist (“FSS”). 14. The decision was made in February 2019 to create the FSS position in order to ensure that the EOHU was in a position to properly and fully fulfill its OPHS mandate, as per the 2018 OPHS revisions. Ms. Thérèse Bourgeois, in her role as Director of Corporate Services, is responsible for Human Resources. A such, she is responsible for taking the lead management role in respect to establishing and classifying new positions within the EOHU. 15. It was the job of Ms. Bourgeois to oversee the establishment and classification of the FSS position. Ms. Bourgeois in conjunction with other senior managers, created a draft job description for the FSS position but then it was necessary to determine which bargaining unit to place it in prior to posting the job. The decision as to where to assign the FSS position was not straightforward. Employees from all three unions were regularly performing Foundational Standards work. For example, the following have a formalized responsibility for Foundational Standards work as part of their job descriptions: Epidemiologist (CUPE); Lead Health Hazard and Emergency Management Programs (CUPE);SDOH Public Health Nurse (ONA); Lead Nurse – Vaccine Preventable 6 Diseases Program (ONA); Health Promotion Specialist – Nutrition, Physical Activity, Tobacco (OPSEU). 16. Ms. Bourgeois testified as to the process she undertook to determine which bargaining unit to place the new FSS position in. She was asked if she had a predisposition or thoughts as to which union it belonged. She responded that initially in the process when she met with the HPSs, Ms. Giroux and Ms. Lalonde who were OPSEU members, she “had some assumptions” that it would be an OPSEU position. But when she reviewed the recognition language in the collective agreements and the OLRB definition of paramedic, she began to doubt if the position belonged in OPSEU and thought it maybe it should be a CUPE position. When asked, she clarified that she was referring to the list of paramedics set out in the 1990 OLRB decision referred to earlier. She concluded based on her research, that the FSS was not a paramedical position. It was a position which required a health related background, but it did not meet the definition of a paramedic. 17. Ms. Bourgeois testified that because she was uncertain as to which bargaining unit was the appropriate one, she decided to meet with the president of OPSEU, France Brunet and the president of CUPE, Wayne Quenneville. Ms. Bourgeois met with Ms. Brunet and Mr. Quenneville on March 5, 2019. Ms. Bourgeois provided them with the FSS job description prior to the meeting. At the meeting Ms. Bourgeois shared with Ms. Brunet and Mr. Quenneville that she was facing a dilemma and questioning which bargaining unit the FSS position should be allocated to. During the meeting there was a discussion as to why ONA was not present and Ms. Bourgeois indicated that she would have a conversation with the ONA president and after that there would be another conversation with all three presidents in attendance. 7 18. Neither president asked for further information at that point and both were given time to reflect before providing feedback on the issue of union affiliation for the position. Ms. Bourgeois intended for it to be an open dialogue with questions, comments and input. After the meeting on March 5, she sent the following email: Hi, Thanks for meeting with us today to discuss this new position and our dilemma with its union affiliation. We realize that you need time to reflect on our discussion prior to providing any feedback. As discussed, we have identified March 22nd as the date by which we would need your feedback. If you have challenges with this date, please let us know prior to March 22nd. Based on our discussion, I will also be reaching ONA. Let me know if you have any questions. Thanks Thérèse 19. On the same day, Ms. Bourgeois sent an email to the ONA president as follows: Corinne When you get a chance, can you contact me? I met with Wayne and France today to discuss a new job description and as we were talking, they asked why ONA wasn’t invited. Upon further reflection, you should have been. I’m attaching a copy of the draft job description for your review. I would rather explain the rest verbally that try to write everything down. Thanks, 8 Thérèse 20. On March 19, 2019 Ms. Bourgeois sent a follow-up email to Ms. Brunet and Mr. Quenneville which read: Hi, Just a reminder that we would need your feedback on this new position by Friday March 22nd. Please let me know if you have any questions. Your collaboration on this matter is greatly appreciated. Thanks Thérèse 21. On March 21, 2019 Ms. Bourgeois received an email from Mr. Quenneville indicating that he felt that the position should fall under CUPE and an email from the president of ONA indicating that after speaking to a labour relations officer ONA had no comment. 22. Ms. Brunet responded to Ms. Bourgeois on March 21 as follows: Hi, OPSEU has no comment to share regarding the union assignment of the new position. The employer may proceed as planned. Sincerely, France OPSEU 9 23. Ms. Bourgeois testified that she was a little confused by the response “proceed as planned” as she did not have a plan and was looking for feedback from the unions. She felt that further discussion was warranted, so on March 22 she went to talk to Ms. Brunet to clarify what she meant by her comment “proceed as planned.” When she spoke to Ms. Brunet, she asked her what she meant and Ms. Brunet responded that “the Employer can do as it sees fit.” Ms. Bourgeois testified that to the best of her recollection those were Ms. Brunet’s exact words. Just to be certain that Ms. Brunet was serious she wrote a follow-up email to her to confirm the conversation. She wrote: France, Just to summarized our discussion a few minutes ago: I requested clarification on what you meant by “The employer may proceed as planned”. You clarified that you had no comments on this process and that the employer can proceed as they see fit. Please let me know ASAP if this is not an appropriate reflection of our conversation. If I don’t hear back from you by the end of day on March 25th, it will be assumed that this is accurate. Let me know if you have any questions Thanks Thérèse 24. In cross-examination it was suggested by counsel for the union to Ms. Bourgeois, that in the meeting with the two union presidents, Ms. Bourgeois stated that whichever union wanted the position would get it. Ms. Bourgeois denied saying this in the meeting. Counsel again suggested that in the face-to-face conversation between the two, that she said to Ms. Brunet, that whichever union wanted the position would get it. Ms. Bourgeois again indicated that she had no 10 recollection of making that comment. When she was asked if she said that the Employer may proceed as planned meant that the position would be assigned to CUPE, as CUPE had indicated that it wanted the position, Ms. Bourgeois again responded that it was Ms. Brunet who said “proceed as planned” not her. She was trying to get an understanding of what Ms. Brunet meant by that comment. That was the reason why she was meeting with Ms. Brunet. When Ms. Brunet said that the Employer could do as it saw fit, she took it to mean that she had no objection to the Employer assigning the position to whichever union it saw fit. 25. On March 25 at 8:12 am, in response to Ms. Bourgeois’ email of March 22nd (set out above), Ms. Brunet sent an email to Ms. Bourgeois simply responding “yes.” Between March 22 and March 25, Ms. Bourgeois did not have any conversations with Ms. Brunet about the issue concerning which bargaining unit to assign the FSS position to. Therefore, Ms. Bourgeois sent an email to the three presidents thanking them for getting back to her and indicating that she would respect CUPE’s claim and post the position as a CUPE position. She heard nothing more from Ms. Brunet on the issue. 26. The FSS position was posted on April 11, 2019. The issue was raised briefly at an OPSEU Labour Management meeting on April 17 when OPSEU questioned the placement of the FSS position in the CUPE bargaining unit. On April 25, 2019 OPSEU filed the grievance which is before me claiming that the FSS position should be in the OPSEU bargaining unit. After receiving the grievance, Ms. Bourgeois met with CUPE to see if they would be willing to let go of the position but they were not interested in doing so. Accordingly, the grievance was denied and ultimately referred to arbitration. 11 Submissions of the Employer on Estoppel 27. Counsel for the Employer took the position that OPSEU is estopped from bringing forth the Grievance based on the representations it made to the EOHU, which were relied upon by the EOHU to its clear detriment. Counsel submitted that the principle of estoppel is addressed in Brown and Beatty, citing Lord Denning in Combe v. Combe, as follows: 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 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 has 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. 28. Counsel for the Employer argued that there are three essential elements of an estoppel: a representation; reliance on the representation by the party to whom it was made; and a detriment to that party resulting from its reliance on the representation. He suggested that Arbitrators will not give relief to a union, where the union changes its mind and grieves an action taken by an employer after having given its blessing to the employer’s action in the first place. To do so would clearly be unfair. 29. Where a union is made aware of an employer’s intended course of action, and there is any question as to the conformance of such action with the terms of a relevant collective agreement, the union’s failure to make an objection and to expressly voice a “lack of agreement” will be considered to be a “representation” for the purposes of establishing estoppel as against the union. Where the employer proceeds to follow its intended course of action based, in whole or in 12 part, on the union’s failure to object to same, resulting in a grievance, the union will be estopped from attempting to enforce its rights under the collective agreement, or otherwise. Just as silence can amount to a representation in appropriate circumstances, a union will not be entitled to rely on a feigned or disingenuous lack of knowledge to avoid a finding of a representation by acquiescence. 30. Where a union expressly agrees that an employer can take whatever action it deems appropriate in a particular situation and, thereafter, is silent when advised of the exact action that the employer intends to take, the union should, without a doubt, be estopped from complaining about the action so taken by the employer. 31. It cannot be seriously disputed that Ms. Bourgeois clearly asked all three of the unions for their feedback and input regarding the proper classification of the FSS position. Once having received unequivocal feedback from all three unions, Ms. Bourgeois told the unions precisely what she intended to do. ONA and CUPE were silent after receiving written notification as to the EOHU’s intention with respect to classifying the FSS position. OPSEU, through Ms. Brunet, confirmed that Ms. Bourgeois had accurately captured the substance of their conversation earlier in the day, whereby Ms. Brunet communicated that the EOHU should feel free to proceed “as it sees fit.” Ms. Brunet and OPSEU were otherwise silent in the face of Ms. Bourgeois’ clear and unequivocal expression of the EOHU’s intentions to assign the position to CUPE. 32. Counsel reviewed the events of February and March, 2019 again in his final submissions. Having already set them out earlier in this award I am not going to repeat them. 13 33. Employer counsel suggested that without a doubt, the EOHU relied in a material way on Ms. Brunet and OPSEU’s representations when it made the decision to assign the FSS position to CUPE. As of March 22, 2019 at 11:53 a.m., OPSEU knew exactly what the EOHU planned to do and, other than indicating that she agreed with Ms. Bourgeois’ characterization of their March 22 meeting, Ms. Brunet and OPSEU were entirely silent and raised no objection to the classification of the FSS position to CUPE. OPSEU’s first objection came long after the position was posted, on April 11, 2019, and the “die had been cast.” 34. OPSEU should not be permitted to resile from its clear and unequivocal representations to the EOHU in respect of the classification of the FSS position. There is no question but that OPSEU’s stated indifference to the classification of the position was relied upon by the EOHU in its decision to classify the FSS position as a CUPE position. In the circumstances, the case law is clear that OPSEU should not be allowed to resile from its representations, both express and implied. Rather, OPSEU must be estopped from now raising an objection to the proper classification of the FSS position as belonging to CUPE. 35. For all the foregoing reasons, the EOHU respectfully submits that it has met the test for establishing estoppel and that, as such, OPSEU should be estopped from advancing this Grievance, and the Grievance should thereby be dismissed in its entirety. 36. In support of his submissions on estoppel counsel referred to: A-1/Eastway Taxi v. USWA, Local 1688, 1995 CarswellOnt 5946, Ontario Arbitration; Canadian Standards Assn. v. CUPE, Local 967 (Babic), 2012 CarswellOnt 10807 Ontario Arbitration; Compass Group Canada (Beaver) Ltd.v. H.E.R.E.I.U, Local 47 (Hamid), 2004 CarswellAlta 1939; Alberta Labour Relations Board; Fort Erie (Town) v. C.U.P.E., Local 714, 2002 CarswellOnt 4699 Ontario Arbitration. Donald Brown etc. Brown and Beatty, Canadian Labour Arbitration, 4th ed. (Aurora, Ont.: Canada Law Book, Inc.). 14 37. In the alternative, the EOHU argued that it properly classified the FSS position as a CUPE position, having regard to the factors traditionally considered by arbitrators and by the OLRB. Submissions of the Union on Estoppel 38. Counsel for the Union took the position that the elements required to establish an estoppel are not made out. The Union did not make a clear and unequivocal representation upon which the Employer could rely, and the Employer did not suffer detriment. The Employer in fact seeks to rely upon statements that it itself determined were confusing and not unequivocal. Absent a clear and unequivocal representation, no estoppel can be established. 39. Counsel pointed out that the party that seeks to rely on an estoppel bears the onus. The Employer seeks to establish that the Union in effect acquiesced or agreed to its decision to assign the FSS position to the CUPE bargaining unit. However, the evidence discloses that the Union never expressed agreement with any specific course of action and raised its opposition to that decision shortly upon the posting of the position within the CUPE bargaining unit. 40. To the extent that the Employer relies on a statement by the former Union President, France Brunet, that the “employer can proceed as they see fit” it must be recalled that the Employer had not stated up to that time that it intended to assign the position to CUPE, nor had it even stated that it intended to assign the position to whichever bargaining unit expressed interest. Ms. Brunet did not at any point state or imply that she would accept any decision of the Employer without resorting to a grievance. 15 41. Ms. Bourgeois called a meeting of the Presidents of CUPE and OPSEU on March 5, 2019 to provide information about the FSS position and to discuss its bargaining unit assignment. Ms. Bourgeois’ notes state that she said at that meeting, “We want a health-related background which points towards OPSEU, however, certain CUPE members (ex: PHI [Public Health Inspector]) could also qualify.” 42. At no point in the meeting or thereafter did Ms. Bourgeois tell Ms. Brunet that the position would be assigned to whichever bargaining agent expressed interest in the position. Rather, Ms. Brunet could have reasonably understood on the basis of the Employer’s representations in the March 5, 2019 meeting that OPSEU was the preferred choice in respect of classification of the FSS position. 43. It was in this context that Ms. Brunet, the OPSEU Local President at the time, was asked by Ms. Bourgeois to provide “feedback on this new position by Friday March 22nd.” Ms. Brunet replied, “The employer may proceed as planned.” When Ms. Bourgeois followed up with Ms. Brunet in person, Ms. Brunet said that “the employer can proceed as they see fit.” Up until this point, the Employer had not informed Ms. Brunet that absent comment from OPSEU, the position would be classified within CUPE. 44. Ms. Brunet did not at any point make a representation nor imply that the Union would not grieve the decision of the Employer. Ms. Brunet’s representation cannot be inferred to be a carte blanche. The Employer cannot have reasonably inferred on the basis of her representation that it could make any decision it pleased and would be immune from a grievance if that decision violated the Collective Agreement. It was only after Ms. Brunet told Ms. Bourgeois that, “The employer can proceed as they see fit,” that the Employer informed her that the position would be classified with CUPE. 16 45. Counsel suggested that it was ironic that the Employer took the position that Ms. Brunet’s statement was not unequivocal. In its submissions, it states that the ‘feedback’ of CUPE and ONA was unequivocal, but it was not clear what Ms. Brunet meant when she said that the Employer “may proceed as planned.” Because the Employer was uncertain about the meaning of Ms. Brunet’s statement by email, Ms. Bourgeois had an in-person conversation with Ms. Brunet at which point Ms. Brunet stated that the Employer “can proceed as they see fit.” That statement was no more ‘clear and unequivocal’ than the earlier statement that caused the Employer confusion. It cannot now state that the statement was clear and unequivocal. 46. The Employer also relies on Ms. Brunet’s reply of ‘yes’ to an email thread to suggest that Ms. Brunet’s acquiescence to the Employer’s decision extended after the Employer announced that it would assign the position to CUPE. However, it is clear that in this thread Ms. Brunet was asked whether Ms. Bourgeois’ account of their conversation on March 22, 2019 was accurate and that Ms. Brunet responded ‘yes’ to indicate that the account was indeed accurate. Ms. Brunet was not asked whether OPSEU was agreeable to the assignment of the FSS position to CUPE. 47. The Employer’s submissions try to suggest that Ms. Brunet was responding ‘yes’ to a question that was never asked of her. Contrary to the Employer’s submissions, it was only a few days following the Employer’s posting of the FSS as a CUPE position, on April 11, 2019, that Ms. Brunet raised her concern with that decision in an OPSEU Labour Management meeting on April 17, 2019. Shortly thereafter, the Union filed the current grievance. The Employer relies on an award of Arbitrator Saltman for the proposition that silence can amount to a representation for the purposes of estoppel. However, that decision provides 17 that, “silence or inaction…in the face of a long-standing practice which is contrary to the provisions of the agreement, can constitute a representation.” This is clearly not a case of a ‘long-standing practice.’ 48. Even if it was determined that the vague statements outlined above amounted to a ‘clear and unequivocal’ representation, the Employer has not established on a balance of probabilities that it faces detriment in having relied upon them. It is clear from the evidence that CUPE took the position that the FSS position should be assigned within its own bargaining unit. Even if OPSEU had also stated prior to or on March 22, 2019 that it believed that the position should fall within its bargaining unit, the Employer would have been faced with a situation where a dispute between two bargaining agents existed. Regardless of which bargaining unit the position was ultimately assigned to, the Employer faced a very real risk that a grievance would be filed. 49. Given that the only “detriment” that the Employer has identified is this grievance and the threat of another grievance/complaint, it cannot be established that but for the so-called representation of the Union, the Employer would not have faced the same or a similar set of circumstances, or would have conducted itself in a way as to avoid the alleged detriment. The Employer has not adduced any evidence to this effect. 50. All considered, the Employer has not met its onus of establishing that the elements of estoppel have been satisfied. 51. In support of his submissions on estoppel counsel referred to: Bowater Canadian Forest Products Inc. v. U.S.W., Local 1-2693, 2008 CarswellOnt 11276, 175 L.A.C. (4th) 168 at para 86; Fort Erie (Town) v. C.U.P.E., Local 714, 2002 CarswellOnt 4699 Ontario Arbitration. 18 Employer Reply Submissions 52. Employer counsel argued that to support its position that the Employer has not met the test for estoppel, counsel for the Union makes three main points: the former Union president, Ms. Brunet, did not make “a clear and unequivocal” representation; for silence to result in estoppel there must be silence or inaction “in the face of a long-standing practice”; and this grievance, and the exposure to CUPE’s inevitable complaints if the grievance is allowed, do not amount to the detriment necessary for estoppel. The Employer submits that the union is wrong on all three counts. 53. In Employer counsel’s view, the evidence overwhelmingly supports it’s claim of estoppel. On March 21, 2019, Ms. Brunet communicated in writing that: “Employer may proceed as planned.” At the same time, she knew that the issue in question was to which union the FSS position should be assigned. Immediately thereafter she knew that CUPE was taking the position that the FSS position should belong to it. On March 22, 2019, Ms Brunet confirmed to Ms. Bourgeois that when she had said that the “Employer may proceed as planned”, she meant that the Employer could act as “it saw fit”, knowing that CUPE felt that it should be assigned the FSS position. In other words, the Employer could do whatever it felt was appropriate in the circumstances without fear of a complaint or grievance from OPSEU. 54. Immediately after Ms. Brunet advised Ms. Bourgeois that the Employer could assign the FSS position as it saw fit, Ms. Bourgeois advised Ms. Brunet, together with the other union presidents, that the EOHU had taken the decision to assign the FSS position to CUPE. Knowing full well that the Employer was going to assign the FSS position to CUPE, Ms. Brunet made absolutely no objection to 19 the Employer’s decision. Thereafter, fully in the belief that OPSEU was content that the position be assigned to CUPE and that OPSEU would not grieve the assignment, the position was posted on April 11, 2019 as a CUPE position. 55. Twenty-seven days after Ms. Brunet advised that the Employer could “proceed as planned,” twenty-six days after Ms. Brunet confirmed that the Employer could proceed “as [it saw] fit,” and twenty-six days after Ms. Brunet was advised of the Employer’s decision to assign the FSS position to CUPE, the Union filed the Grievance. This was the first time that OPSEU voiced any objection whatsoever to the Employer’s assignment of the position to CUPE. With respect, it was simply too late. 56. Both by her actions (“the employer can proceed as [it sees] fit” - knowing that CUPE was advocating for the position) and by her silence (voicing no objection to the Employer’s decision to assign the position to CUPE), Ms. Brunet made a clear and unequivocal representation to the Employer that the Union accepted the decision and that the Union would not take issue with it. In order for silence or inaction to found a claim of estoppel, it is not the case that there must be “a long- standing practice.” Rather, the issue is whether or not the context of the silence, or inaction in question, was such as to amount to a representation of fact upon which the other party ought to be entitled to rely. This is clearly such a case. 57. In TRW Canada Ltd. V. T.P.E.A, 2001 CarswellOnt 1501, an arbitration was held regarding a dispute over a new article in a collective agreement that the union thought clarified and enshrined past practices. While they were discussing the adoption of the new article, the employer did not clarify how it planned on interpreting the new language. The arbitrator found that the employer’s silence constituted, “a representation to the Association that the latter’s stated goals were being met,” and as such the employer was, “prohibited from enforcing its 20 interpretation of the newly negotiated language.” In reviewing the principles of estoppel, the arbitrator found, at paragraph 56, that: It followed, in Hallmark Containers, that company silence at the bargaining table, after a full explanation of the union’s understanding of the language constituted a representation to the effect that the company agreed with the union, both in language and interpretation. Company silence was followed by written acceptance of the union’s language, and there was no doubt that a representation existed. Although the company may not have accepted the union’s interpretation, it acted in a manner which caused the union to believe that it had. The union acted upon that representation, by foregoing an opportunity to push for any further language revision. 58. Finally, being subjected to both the subject grievance and the prospect of a follow-on grievance or complaint by CUPE is exactly the kind of detriment contemplated by the jurisprudence. In the instant case, the Employer lost the opportunity to continue to investigate, negotiate and otherwise identify a potentially acceptable labour relations solution to the question as to where the FSS position should be assigned. The fact that the outcome may be unknown as to what may have happened, if it had not lost this opportunity, does not diminish the reality that the Employer has suffered precisely the kind of detriment that founds a claim of estoppel. This uncertainty is no different than that which accompanies a loss of opportunity to bargain at the negotiating table, which loss is routinely treated as a detriment sufficient to found a claim of estoppel. 59. Once again, the Employer asserts that it has made out a case for estoppel and, accordingly, that the Grievance should be dismissed. Submissions of the Parties on the Merits 21 60. Both parties called evidence, made submissions and provided me with jurisprudence on the merits of the grievance. At issue was whether the FSS position was more appropriately included in the OPSEU bargaining unit as opposed to the CUPE bargaining unit where the EOHU had assigned it. Given my decision on the issue of estoppel as provided below it is not necessary for me to deal with this issue and I decline to do so. DECISION 61. There does not appear to be any dispute between the parties with regard to the elements of an estoppel, as set out in the arbitral jurisprudence in Ontario, which are applicable to this case. Putting it at its highest as the union did in its final submissions, to establish an estoppel the employer bears the onus of proving that: 1. a clear and unequivocal representation was made by the Union; 2. reliance on this representation by the Employer occurred; and 3. a detriment to the Employer resulting from its reliance on the representation occurred. 62. Union counsel in his submissions provided a very skilful characterization of the conversations between Ms. Brunet and Ms. Bourgeois. However, his version of the events that occurred in March, 2019 and the conversations between Ms. Brunet and Ms. Bourgeois both via email and in-person, are not entirely accurate. For example, counsel suggests that when Ms. Brunet said that “the employer can proceed as they see fit,” the Employer had, “not informed Ms. Brunet that absent comment from OPSEU, the position would be classified within CUPE nor had it even stated that it intended to assign the position to whichever bargaining unit expressed interest.” 22 63. But Ms. Bourgeois could not have told Ms Brunet that absent comment from OPSEU that the position would be classified within CUPE because that decision had not been made. Nor would she have told Ms. Brunet that the Employer intended to assign the position to whichever bargaining unit expressed interest, because that was not the case. At the time Ms. Bourgeois spoke to Ms. Brunet the Employer had not decided that absent comment from OPSEU, the position would be classified within CUPE. When Ms. Bourgeois initially spoke to the two Presidents and later to Ms. Brunet, no decision had been reached with regard to the placement of the FSS position. Ms. Bourgeois was merely seeking input and clarification from Ms. Brunet on OPSEU’s position with regard to the bargaining unit placement of the FSS position when she spoke to her in person. 64. Union counsel goes on to assert that Ms. Brunet did not at any point make a representation nor imply that the Union would not grieve the decision of the Employer and that Ms. Brunet’s representation cannot be inferred to be a carte blanche. He suggests that the Employer cannot have reasonably inferred on the basis of her representation that it could make any decision it pleased and would be immune from a grievance if that decision violated the Collective Agreement. 65. When it is put that way, it is true. But I think it is certainly also true to say that based on her conversation with Ms. Brunet as I have set out earlier in this award, when Ms. Brunet on behalf of OPSEU said that “the employer can do as it sees fit,” when they were discussing the bargaining unit placement of the FSS position, it was quite logical for Ms. Bourgeois to conclude that OPSEU would not object if the FSS position was placed in the CUPE or ONA bargaining unit as opposed to the OPSEU unit. 66. I have carefully reviewed my notes of the testimony of Ms. Bourgeois. She was a very credible and thoughtful witness. It was very clear that based on the email 23 exchange and her conversations with Ms. Brunet she clearly understood Ms. Brunet to be taking the position on behalf of OPSEU, that “the employer can do as it sees fit,” in terms of the bargaining unit placement of the FSS position. 67. In my view it was entirely reasonable for Ms. Bourgeois to have interpreted the comments of Ms. Brunet the way she did. Ms. Brunet’s statement that “the employer can do as it sees fit” in the context of a discussion of the bargaining unit placement of the FSS position, is a clear and unequivocal representation on the part of the Local President of OPSEU, who is someone with the authority to make it, that OPSEU was not pursuing a claim for the newly created FSS position. Any reasonable person would have understood it to mean that. Based on this representation, Ms. Bourgeois concluded that OPSEU was not taking a position on which bargaining unit was the appropriate one in which to place the FSS position. ONA had indicated that it too had no comment. CUPE was the only union of the three that had expressed an interested in having the position assigned to it. 68. On March 25, 2019 Ms. Brunet confirmed that the employer could proceed as they saw fit with regard to the assignment of the FSS position by sending the email responding “Yes.” Again, while Ms. Brunet was not being as clear as she could have been, the email does follow in the chain directly after Ms. Bourgeois’ email summarizing their conversation on March 22 and I would have interpreted it as a confirmation as Ms. Bourgeois did. Particularly since Ms. Brunet was silent on the issue after that for almost a month. 69. Ms. Bourgeois sent an email to the three presidents indicating that she would respect CUPE’s claim and post the position as a CUPE position. As far as she was concerned that was the end of the issue. The position was posted on April 11, 2019. The issue was raised briefly at an OPSEU Labour Management 24 meeting on April 17 when OPSEU questioned the placement of the FSS position in the CUPE bargaining unit. On April 25, 2019 OPSEU filed the grievance which is before me claiming that the FSS position should be in the OPSEU bargaining unit. 70. In this case, based on the facts, it is clear that the local President of OPSEU at the time indicated to the Employer that it could do as it saw fit in terms of the placement of the FSS position. Therefore, when a Union expressly agrees that an Employer can take whatever action it deems appropriate in a particular situation and then remains silent when advised as to what the Employer intends to do, the Union cannot then turn around and later file a grievance complaining about the very matter that it indicated to the Employer that it could proceed as they saw fit on. It is not appropriate to allow the Union to resile from its clear and unequivocal representation, which was relied upon by the Employer in this case. 71. In terms of the detriment suffered by the Employer, I agree with Employer counsel that having to respond to this grievance and take this case to arbitration, plus the possibility of having to deal with a follow-up grievance or complaint by CUPE, is exactly the kind of detriment contemplated by the jurisprudence. 72. Also, as pointed out by the Employer, the loss of the opportunity to continue to investigate, negotiate and otherwise identify a potentially acceptable labour relations solution to the question as to where the FSS position should be assigned is also a significant detriment. The fact that the outcome may be unknown because of this lost opportunity does not diminish the reality that the Employer has suffered precisely the kind of detriment that founds a claim of estoppel. I agree that this uncertainty is no different than that which accompanies a loss of opportunity to bargain at the negotiating table, which loss is routinely treated as a detriment sufficient to found a claim of estoppel. 25 73. Accordingly, I conclude that the Employer has met it’s onus and has proven the three elements of an estoppel as set out, namely: 1. a clear and unequivocal representation was made by the union; 2. reliance on this representation by the employer occurred; and 3. a detriment to the employer resulting from its reliance on the representation occurred. 74. Therefore, the grievance is dismissed. 75. I would like to thank Counsel for their work on this case. Their submissions were thorough and very helpful. 76. In the event that there is any issue with regard to the implementation or interpretation of this award, I shall remain seized. Dated at Toronto this 10th day of March, 2021 Janice Johnston Arbitrator