HomeMy WebLinkAboutUnion 18-11-30In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
Arbitrator:
Appearances:
For the Union
For the Employer
CANADIAN BLOOD SERVICES
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 5103
Union Grievance
OPSEU File 2015-5103-0010
Randi Abramsky
Lesley Gilchrist
Sarah Eves
Grievance Officer
Counsel
Hearing: August 16, 2017 and November 22, 2018 in Toronto.
AWARD
1.The grievance, dated December 1, 2015, alleges a violation of Articles 4 (Management Rights),
25 (travel allowance) and 26 (meal allowance), on the following basis:
The Employer has violated Article 4, 25, 26 and any other applicable articles of the
Collective Agreement. After treating the Oshawa and Hillcrest locations as
Satellite Perm Clinics for approximately 10 years the Employer has violated the
Collective Agreement by now classifying Oshawa and Hillcrest as Permanent
Locations and by hiring Perm Temporary Phlebotomists in these locations. This
was never brought up at bargaining and the Employer has violated past practice
in an attempt to eliminate travel, kilometer and meal allowances by hiring these
positions as Perm positions and not classifying them as Regional (Mobile), as they
have always been in the past. Oshawa and Hillcrest have never been staffed with
Perm employees.
2. On January 21, 2016, the Employer denied the grievance, asserting that the Oshawa and
Hillcrest clinics met the definition of a "permanent clinic" and consequently, there was no
violation of the collective agreement.
3. At the arbitration hearing, the Union acknowledged that the Employer's action in reclassifying
the two clinics did not violate the collective agreement, but asserted that the Employer was
estopped, for the remaining duration of the collective agreement, from changing the status of
the clinics.
Facts
4. Canadian Blood Services provides blood and blood products to all provincial and territorial
governments, except Quebec. In Ontario, it is divided in to five major "Blood Centre" regions —
Toronto, Hamilton, London, Brampton and Ottawa. A "Centre employee" is defined, in the
collective agreement as follows, at Article 1.11: "A Centre employee is one who is hired to work
at or out of the Toronto, Hamilton, London, Brampton or Ottawa Blood Centre. Such employees
may be scheduled to work permanent clinic if they agree to such assignment."
5. Each region is further subdivided. Toronto, for example, is subdivided into MetroWest,
Toronto, Peterborough and Barrie. Each has a combination of "permanent" and "mobile" clinics,
and the numbers vary. MetroWest currently has two "permanent" sites: Heartland and Hillcrest;
Peterborough also has two: Peterborough and Oshawa; Barrie has one, and Toronto has three:
67 College Street, Yonge and Bloor and King Street).
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6. At issue in this case is the Employer's decision, in late 2015, to designate the Hillcrest and
Oshawa sites as "permanent" clinics. For a number of years prior to that, they were deemed
"mobile" sites. No physical changes took place in regard to the two clinics in 2015. There is no
dispute, however, that they both met the definition of "permanent clinic" under the collective
agreement.
7. The collective agreement defines a "permanent clinic site", as follows, at Article 1.10: "A
permanent clinic site is a location other than the Blood Centre where essential furniture and
equipment are maintained on site on an indefinite basis and requires no set up or tear -down of
essential furniture and equipment."
8. There is no definition of a "mobile clinic", but it is undisputed that mobile clinics are set up at
a location, with beds, supplies and equipment delivered in the morning, set-up, and removed at
the end of the day. There is no limit in the collective agreement regarding the number of mobile
clinics that the Employer may utilize, and there are many mobile clinics throughout the province.
Nor is there a limit on the number of permanent clinics that the Employer may utilize.
9. It is undisputed that for a number of years prior to 2015, the Hillcrest clinic and Oshawa clinics
were fixed, "bricks and mortar", sites that did not require daily set up or tear down. Hillcrest
opened in 2003, and underwent renovations in 2005. Oshawa opened in 2009.
10. Exactly why the Employer made this decision, in late 2015, is not entirely clear. Ms. Nancy
Banning, Donor Centre Manager, testified that originally, although the two sites met the
definition of "permanent", they had been staffed as "mobile" sites. She stated that it takes time
for a clinic to establish a donor base, and the Employer had not established a staff for the area.
Until the change, in Oshawa, staff were based out of Peterborough and travelled to Oshawa,
which is about one hour each way. This was confirmed by the current local union President Audry
Smith. Similarly, employees assigned to Hillcrest were based in Heartland, and travelled there,
which was also about an hour each way. The employees' travel time was included in their
scheduled hours. Ms. Banning testified that the Employer has moved to more permanent clinics
as they provide more stability, efficiency and safety. Originally, the Oshawa clinic was open four
days per week. For "the last few years", it has been open six days per week. She testified that
the Employer is moving to more permanent sites, and it was decided to treat Oshawa and
Hillcrest "like other permanent sites."
11. The collective agreement in force at the time of this change in clinic designation ran from
April 1, 2013 to March 31, 2017, and the agreement was reach in January 2015. The first day of
hearing in this case was August 16, 2017, and the parties were bargaining a successor agreement
at that time. One of the reasons for the delay regarding the second day of hearing was to allow
the parties an opportunity to negotiate this matter, if they chose to do so. There was no evidence
presented that this matter was addressed in collective bargaining. The new collective agreement,
which runs from 2017-2021, was signed off by a Memorandum of Agreement dated February 28,
2018. Ms. Smith was not on the Union's collective bargaining team during the negotiations.
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12. In late 2015, another Employer initiative was also happening. The Employer decided to phase
out the classification of phlebotomist and train employees to become Donor Care Associates
(DCAs). These two topics— Hillcrest and Oshawa, and the DCA training — were discussed between
Human Resources and the Union on November 5, 2015.
13. In an email dated November 11, 2015, Union Representative Andrew Ruszczak wrote to Mr.
Cyd Barley, Manager Talent Services, copied to Audry Smith, summarizing the Union's position.
In relevant part, it states:
Also as stated at the meeting, the Union's position is that the Oshawa and Hillcrest
locations have been treated as Satellite Perms for the last 10 years or so and the
Union's position is that past practice should be maintained where there are no
Perm employees and only regional (mobile) employees. Therefore these
employees should continue to receive the appropriate travel and meal allowances
as outlined in the Collective Agreement.
14. On November 17, 2015, Mr. Barley replied as follows, in relevant part:
With regards to the Oshawa and Hillcrest locations, please accept this email as
confirmation that the Employer intends to proceed with staffing those perm sites.
We understand that some employees are concerned about losing hours, travel
time and meal allowance as a result of this decision, so please know that it was a
business decision which was not undertaken lightly.
I would like to share the following information which might help to alleviate some
of the concerns that employees may have:
1) We are not creating separate Regions we are simply staffing employees at existing
perm clinic sites.
2) We are not hiring extra staff at these locations, we are simply recruiting to replace
employees who have chosen to terminate their employment with CBS rather than
train to DCA. The total number of employees based out of MetroWest and
Hillcrest combined will not increase, and the same would also apply to the total
number of employees in Oshawa and Peterborough combined.
3) Existing MetroWest employees who are based out of Heartland and who are
assigned to work at Hillcrest will continue to be paid travel time and receive meal
allowance as they do now. The same would also apply for existing Peterborough
employees based in Peterborough who assigned to work in Oshawa.
4) We are just finalizing the applicant lists but it does appear that most of the
temporary positions at these locations will be filled by existing phlebotomists.
Five phlebotomists (4 from Peterborough and 1 from Toronto) have applied for
the temporary Oshawa positions, while two Phlebotomists from Toronto (and
none from MetroWest) have applied for the temporary Hillcrest positions.
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I can appreciate that this is not necessarily the response that you were looking for.
Please let me know if you have any further questions.
15. The temporary Phlebotomist positions for Oshawa and Hillcrest were posted in October
2015. The postings state that "[tjhese positions will cover Oshawa perm clinic, mobile clinics in
Ajax, Pickering, Port Perry and surrounding areas. Occasional travelling to Peterborough clinics
may be required." Similar postings were made for Hillcrest, which state that the "position will be
based at the Hillcrest perm clinic with frequent traveling to Thornhill, Vaughan and Richmond Hill
area." It is the Union's position that these postings should have been for regional (mobile)
assignments to either Oshawa or Hillcrest, rather than for "permanent" clinic positions. It
appears that the existing employees who served Hillcrest and Oshawa, based on Mr. Barley's
email, would continue to be treated as regional (mobile) employees and receive travel and meal
allowances. No evidence to the contrary was provided.
16. The collective agreement defines a "regional employee", at Article 1.08: "A regional employee
is one who is hired to work at mobile and/or permanent clinics, in or out of specific regions
outside the boundaries of Toronto, London, Brampton, Hamilton or Ottawa Blood Centre, as
described in Article 26.-1 of the existing collective agreement."
17. A "permanent clinic employee", as set out in Article 1.09, is "one who is hired to work at a
specific permanent clinic site (as defined in Article 1.10) within the boundaries of Toronto,
London, Brampton, Hamilton and Ottawa Blood Centre as described in Article 26.01 of the
existing collective agreement. Such employees may be scheduled to mobile clinics if they agree
to such assignment."
18. Article 26.01 provides as follows:
Article 26 — Meal Allowance
26.01. All employees who are officially required to be away from their particular
Centre on mobile clinic assignments (in the case of employees operating in and
out of Toronto Centre, outside the boundaries of the City of Toronto; in the case
of employees operating in and out of Hamilton Centre, outside the boundaries of
the Regional Municipality of Hamilton -Wentworth; in the case of employees
operating in and out of London Centre, outside the boundaries of the City of
London; and in the case of employees operating in and out of Ottawa Centre,
outside the boundaries of the cities of Ottawa, Hull, Vanier and Nepean, and the
township of Gloucester; in the case of employees operating in and out of
Brampton Centre, outside of the boundaries of the City of Brampton shall receive
a meal allowance based on the following rates:
* Breakfast $7.45
* Lunch $ 11.00
* Dinner $ 16.00
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19. Also relevant is Article 25 — Transportation, as follows:
Article 25 —Transportation
25.01
a) Centre Employees
The Employer will provide transportation for all clinic staff from the Blood Centre
to each clinic where she is assigned and back to the Blood Centre at the conclusion
of her work....
b). Permanent Clinic Employees
i) Employees who are hired to work at specific permanent clinic sites shall not be
provided with transportation from their residences to the permanent site or
return.
ii). Employees who are required to proceed to a location other than their specific
permanent clinic site and who do not have their own transportation will be
provided transportation as per Article 25.01a), 25.02 and 25.04.
c. Regional Employees
i). Employees will be required to provide their own transportation to clinic
locations in circumstances when the Employer cannot provide such
transportation....
ii). Transportation allowance will be paid at the prevailing corporate rate per
kilometer to the driver(s) of the vehicle(s), from the permanent clinic cite or the
local city hall for clinic assignments, including permanent clinics sites outside the
city or town limits, when transportation Is not provided by the Employer.
20. Also of significance is Article 12.02, which states:
Article 12 — Hours of Work
12.02
a). in the case of those employees who have been authorized to proceed from
their place of residence to the clinic site, or from the clinic site direct to their place
of residence, they shall been deemed to have worked and shall be credited for the
period equivalent to the time required for the clinic team to travel from the Centre
to the clinic site and, in the case of return, from the clinic site to the Centre. This
Article shall not apply to Permanent Clinic employees.
b). Regional Employees shall be credited with the actual travel time from the
permanent clinic site in their city or, where there is no permanent clinic site, from
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the local city hall when attending any clinic, including permanent clinic sites
outside the city or town limits. Such travel time shall be credited to hours of work
based on a fixed time period, as reasonably established by the Employer. (As
measured from the time to travel from the permanent site to the various clinics
outside the city or town limits).
c). Permanent clinic employees who are hired to work at a specific permanent
clinic will not be paid for travelling time to and from their residence. Should such
an employee be scheduled to work at clinics other than their specific permanent
clinic location, they shall be compensated for travelling time calculated from their
permanent clinic location.
21. The management rights provision in the collective agreement is also relevant. It
provides:
Article 4 — Management Rights
4.01. The parties hereto agree that the operations of the Employer entail working
methods, hours and processes which are peculiar to it.
4.02. The parties further acknowledge that it is the exclusive function of the
Employer, subject to the provisions of this Agreement, to manage and control its
operations, and without limiting the generality of the foregoing, to:
a) Maintain order, discipline and efficiency;
b) Hire, transfer, promote, classify, demote, layoff, assign work, and suspend or
discharge employees for just cause, and introduce new or improved methods or
facilities;
c) Manage, control, continue, discontinue in whole or in part the Employer's
operations, and without restricting the generality of the foregoing, to determine
the number of employees, schedule of activities, kinds and locations of machines
and processes to be used and the scheduling and conducting of clinics and
deliveries and the determination of their locations, in accordance with the
function of the Employer.
4.03. These management rights shall not be exercised in a manner inconsistent
with the provisions of this Agreement.
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22. Ms. Audry Smith testified, at the first day of hearing, about a statement made by a local union
official in 2009 at a union meeting concerning a representation by the Employer about the
Hillcrest and Oshawa clinics. The Employer objected to that evidence, and the Union undertook
to have the former official testify and to provide minutes of the meeting at the next day of
hearing. The Union was unable to provide the witness or the minutes. Accordingly, I can give no
weight to this testimony or statement.
23. Ms. Smith also testified that mobile clinics were routinely attached to a permanent clinic. She
acknowledged that there was no requirement to that effect in the collective agreement, but
testified that was how it had always been done in the Peterborough area. She acknowledged,
however, that she was not familiar with other areas in the province.
24. In response, the Employer had Ms. Janet Piersma, Donor Care Manager in Hamilton, testify
regarding the clinics in her area. She testified that she manages five permanent clinics —
Kitchener, Guelph, Burlington, St. Catherines and Ancaster. Staff are hired for these permanent
clinics and they do not work at mobile clinics. She testified that the mobile clinics are staffed
separately.
25. Ms. Smith also noted that some of the Employer's documents, into 2017, continued to list
Oshawa and Hillcrest as mobile, as opposed to permanent, sites. According to Ms. Banning, this
was an "oversight" by the Employer.
Positions of the Parties
1. For the Union
26. The Union asserts that the doctrine of estoppel applies in this case. It submits that the
Employer is estopped from exercising its management right to make changes to the way work
sites are staffed at Oshawa and Hillcrest, and from changing the designation of a clinic from
"mobile" to "perm" during the term of the collective agreement. It submits that there was no
material change to the physical nature of the two clinics, and that the only affect was to reduce
staff travel hours and meal allowances. It argued that most of the employees work part-time, are
vulnerable; and this loss represents a significant loss in income.
27. The Union asserts that the Employer made no effort to inform the Union regarding this
change in 2013, 2014 or prior to the parties' signing the agreement in 2015. It submits that all of
the elements required for an estoppel are present in this case. There was a long and stable
practice, within the region, of treating Hillcrest and Oshawa as "mobile" clinics. This, in the
Union's view, constituted a "representation" by conduct, and the Union reasonably believed that
these clinic would continue to be treated as mobile clinics. Both parties were aware and accepted
this practice. The Union relied, to its detriment, on that past practice and was caught by surprise
by the change with no ability to negotiate about it.
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28. In support of its position, the Union cites to the following cases: Re Paramed Home Health
Care and Ontario Federation of Health Care Workers (LIUNA, Local 1110), 2014 CarswellOnt 4626
(Jesin); Re CN/CP Telecommunications and Canadian Telecommunications Union, 1981
CarswellOnt 3409 (Beatty); Re Natrel (Ontario) Inc. and Teamsters, Local 647, 1999 CarswellOnt
5417 (Newman); Re National Paper Goods and G.C.I.U, Local 100-M, 2001 CarswellOnt 5985
(Abramsky).
2. For the Employer
29. The Employer argues that there is no limitation in the collective agreement regarding clinic
status, or changing a clinic's status. It asserts that, consequently, there is no "hook" into the
collective agreement in this case and the Union can point to no violation of the agreement. Its
decision to treat Oshawa and Hillcrest as "mobile" clinics (which is not defined in the collective
agreement) was consistent with the collective agreement as was its decision to treat them as
"permanent" clinics. That decision, it submits, was consistent with its management rights to
organize the workplace and the definition of "permanent" clinic in the collective agreement. It
notes that there is no limit on the number of permanent clinics in a region, nor any contractual
requirement to attach a mobile clinic to a permanent one. It notes that under Article 1.08, a
"regional employee" is one who is hired to work at a "mobile and/or permanent clinic." As there
is no "hook" into the collective agreement, the Employer submits that I have no jurisdiction to
find for the Union. In support, it cites to Re OPSEU (Kolmann) and Ministry of Community Safety
and Correctional Services, 2018 CarswellOnt 16220 (Abramsky).
30. The Employer further contends that the Union's position would lead to the situation where
the employees at Hillcrest and Oshawa — which the Union recognizes meets the definition of a
permanent clinic - would be treated more favorably than employees who work at other
"permanent" clinics in terms of travel and meal allowances. The Employer submitted that it takes
offense of the Union's characterization of the employees as "vulnerable" employees —when one
considers their hourly wage rate and their guarantee of hours.
31. Finally, the Employer asserts that the elements of estoppel have not been established in this
case. It submits that there is no clear representation that the two clinics would always be treated
as mobile clinics, or that the Employer would not exercise its right to change that classification.
It submits that the Union knew that these two clinics met the definition of "permanent", but was
"hoping" they would continue to be a mobile sites. It asserts that there was no evidence of
detrimental reliance, as nothing was bargained. Nor was there evidence that the Union even
sought to bargain the issue.
32. The Employer further submits that even had the issue been raised, there is no reasonable
expectation that the Employer would have agreed to continue to pay travel and meal allowances
to employees at a permanent clinic. It also submits that there is no evidence of any actual loss
to any employee. It submits that a loss cannot be assumed.
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33. In support of its contentions, the Employer cites to Re Ontario Power Generation Inc. and The
Society of Energy Professionals, 2017 CarswellOnt 17689 (Stout); Re Bruce Power LP and Society
of Energy Professionals, 2017 CarswellOnt 20291 (Surdykowski); SGS Canada Inc. and Unifor,
Local 672, 2017 CarswellOnt 14460 (MacDowell).
Reasons for Decision
1. The "Hook" Argument
34. The decision in Re OPSEU (Kolmann), supra, is one of many at the Grievance Settlement Board
(GSB) concerning whether a union may challenge a decision by management on the basis of
reasonableness, when there is no alleged violation of any right under the collective agreement.
As stated at par. 19: "[A]s the Employer submits, the GSB has not recognized an independent
challenge to management's actions without a 'hook' into the collective agreement." I would note
that the GSB's approach is not generally recognized elsewhere in the province, but even if it were,
I would still find that the Union's argument regarding estoppel may properly be considered in
this case.
2. The Estoppel Argument
35. The "doctrine of estoppel" has been a recognized, equitable doctrine in the labour relations
world for many years. In Re Natrel (Ontario) Inc., supra at par. 57, the arbitrator referred to the
classic explanation of estoppel set out in Re Combe v. Combe [1951], 1 All E.R. 767 (C.A.) at p.
770:
[W]here 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 as taken him at his word and
acted on it, the one who gave the promise or assurance cannot afterwards be
allowed to revert to the previous legal relations as if no such promise or assurance
had been made by him, but he must accept their legal relations subject to the
qualification which he himself has so introduced, even though it is not supported
in point of law by any consideration, but only by his word.
36. Estoppel is an equitable principle based on fairness. As stated in Re SGS Canada Inc., supra at
par. 187: "It is a principle that was devised by the Courts in order to produce a 'fair' result, when
the application of 'strict legal rules' might not do so."
37. In Re National Paper Goods, supra at par. 33, 1 quoted the requirements for estoppel set out
in Re Metropolitan Toronto Civic Employees' Union, Local 43 and Canadian Union of Public
Employees [1985] 18 D.L.R. (4th) 409 (Ont. Div. Ct.):
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1. A representation by words or conduct
2. Which is intended to affect the legal relations of the parties
3. Some reliance in the form of some action or inaction, and
4. Detriment arising therefrom.
38. As stated by Arbitrator MacDowell in Re SGS Canada Inc., supra, at par. 206, "estoppel
requires clear evidence of a 'representation' about legal rights, together with clear evidence of
detrimental reliance." The requirement of "clear evidence" is based on the fact that a party to a
collective agreement is asserting that the actual words of the agreement and rights contained in
it should not be enforced — that a party be "estopped" from relying on rights set out in the
collective agreement. That idea, which is based on fairness and equity, is contrary to the usual
role of an arbitrator which is to interpret and enforce the written terms of the collective
agreement.
39. In this case, there was a long-standing practice of treating the Oshawa and Hillcrest facilities
as "mobile" clinics in relation to staffing, even though they met the requirements for a
"permanent" clinic — a "bricks and mortar" operation. The Union, in its initial email to Human
Resources, described the clinics as "Satellite Perms" which utilized staff assigned to another
location. This language was also used in the grievance, although it does not appear in the
collective agreement.
40. What is less clear is that the Employer, through that practice, "promised" that situation would
not change. According to Ms. Banning, when the two clinics opened, the donor base had to
become established, and the Employer had not established staff for the area. Consequently,
there were operational reasons that the two clinics, although "bricks and mortar", were not
initially treated as "permanent" clinics. Those two clinics, however, were in existence for many
years prior to 2015. Hillcrest was first opened in 2003 and renovated in 2005. Oshawa was
opened in 2009. There was no evidence concerning how many years it takes to establish a donor
base, but it seems unlikely that it would take until late 2015 to do so.
41. This leads to the question of whether the continuation of this practice into the 2013-2017
collective agreement constitutes a "promise" that the situation would not change? There is
certainly nothing in the collective agreement that limits the Employer's actions in relation to the
establishment and control of clinics. Article 4, Management Rights, in Article 4.02(c), gives the
Employer the right, subject to the provisions of the Agreement, to "manage and control its
operations", including the "scheduling and conducting of clinics...". As the Employer noted in its
closing argument, there is no limitation in the collective agreement on the number of clinics, or
types; there is no requirement to attach a mobile clinic to a permanent one. It is therefore
questionable that the Employer's decision to treat the two clinics as "mobile" ones in regard to
staffing amounted to a representation that the Employer would always continue to carry on
business that way. This is especially so given that these two clinics were anomalies. On the
evidence presented, they were the only "permanent" clinics that did not have permanent staff
assigned.
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42. But even if the Employer's practice may be viewed as establishing a "promise" that the
situation would not change, I am not persuaded that the Union has established detrimental
reliance. The Union claims that had it known about this change it could have bargained language
that protected the staff. The Union submits that it was surprised by the Employer's action and
had no opportunity to bargain about the change. Although there was testimony that the Union
was taken by surprise by the change, there was no evidence regarding the 2013 negotiations
(which continued into early 2015) that the Union relied on the continuation of this practice during
collective bargaining.
43. In Re National Grocers, supra, detrimental reliance was established by the testimony of the
Union Chairman that he relied on the Company's practice when the collective agreement was
negotiated and weekend work as well as part-time work was discussed. He testified that he
assumed, during collective bargaining, that based on the prior practice, the Employer's practice
in regard to part-time staff on weekends would continue. I concluded, at par. 38: "This testimony
clearly demonstrates the Union's reliance on the Company's practice during negotiations." Also,
at par. 40: "[The Union] clearly relied on the practice in negotiating the 1999 collective agreement
to its detriment."
44. There is no similar testimony here regarding the 2013 negotiations. There is also no evidence
that the issue was raised in the 2017 negotiations. In some cases, one may draw an inference
that the Union was detrimentally impacted. The evidence simply does not support that inference
here. In my view, detrimental reliance in the form of a "lost" opportunity to bargain cannot be
assumed; it must be proven.
45. 1 place no weight on the Employer's "oversight" of continuing to list Hillcrest and Oshawa as
mobile clinics. The evidence is undisputed that the designation of the two clinics changed in late
2015.
46. The situation in the other estoppel cases presented by the Union are distinguishable. In Re
CN/CP Telecommunications, supra, there was a 30 -year practice of paying a group of employees
for absences which took place during the waiting period for sick leave benefits. That practice
continued even when the eligibility provisions had been amended in collective bargaining. On
this basis, the arbitrator concluded at par. 12: "[The Union] has shown that the employer adhered
to a course of conduct which reasonably induced it to believe that the entitlement of the
employees in question to sickness benefits would not be governed by the strict legal rights set
out in art. 30 and the weekly indemnity plan but rather would conform to the long-standing
practice of paying their wages during the waiting period." There is no evidence of anything
comparable here.
47. In Re Notrel (Ontario) Inc., supra, the parties had a long-standing interpretation of the time
limits for the referral of grievances to arbitration as "directory" rather than "mandatory", with
the Employer routinely accepting late referral of grievances to arbitration. In the arbitrator's
view, at par. 59, through this practice, "the Company promised the Union that it would not rely
upon the directory time limits" contained in the collective agreement, which "induced [the
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Union] to consider the time limit of little or no consequence." The Union then acted "to its
detriment" because it did not refer the matter to arbitration within the contractual time limes.
Accordingly, the elements of estoppel had been established.
48. In Re Paramed Home Health Care, supra, the employer argued that the Union was estopped
from relying on its strict legal rights regarding overtime in relation to a statutory holiday. The
arbitrator found, on the evidence, that no estoppel applied because the Union was not aware of
the issue so the practice could not be viewed as a "representation" by the Union that the
collective agreement would not be enforced. In the instant case, both parties were aware of the
practice, but the other required elements of an estoppel were not established.
Conclusion:
49. For all of the above stated reasons, I am not persuaded that the Union established the
elements for estoppel. There is no violation of the collective agreement. Accordingly, the
grievance must be dismissed.
Issued this 30th day of November, 2018.
/s/. Randi H Abramsky
Randi H. Abramsky, Arbitrator
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