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HomeMy WebLinkAboutUnion 01-10-09 IN THE MATTER OF AN ARBITRATION BETWEEN: ROYAL ONTARIO MUSEUM (the Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 543 (the Union) Policy Grievances of Ruth 8asa -- Interim Order Arbitrator: Dr. D.J. Baum Appeara nces: Employer R Dan J. Shields, Counsel Chris Koester, Executive Director, Human Relations Trevor Ellis, Business Manager, Public Programs Union - Irit Kelman, Counsel Ruth 8asa, Steward Bob Walsh, Chief Steward Hearings: August 28, September 28, 2001 at Toronto, Ontario -1 , This is an Interim Award to deal with an objection going to Union proffered evidence raised by the Employer during opening statements by the parties. Ordinarily, the ruling on the objection would have been deferred until the submission of evidence. However, the Union agreed that to expedite these proceedings, and bearing in mind the sweep of the objection relative to what the Union suggested would be proved, it would be better to hear and rule up::ln the matter by way of an Interim Order. The policy grievances in this arbitration centre on the use of volunteers and students by the Employer in its Discovery Gallery and Bio-Diversity Gallery during what has been called the Christmas and March breaks, the specific times of which need not be detailed for purposes of this Interim Order. Specifically, the Union argued that the Employer is bound to use a model that it contends has been in place for ten to fifteen years. This model, according to the Union, limits the specific number of volunteers and students during such breaks and gives the remaining work to part-time employees, members of the bargaining unit. The grievances both refer to Art. 28.03 of the Collective Agreement as the provision which has been breached. Art.. 28.03 provides: The Museum agrees not to use, or increase the use of, volunteers and students to the detriment of the bargaining unit. The Museum may, on an interim basis, use them to back-fill part-time vacancies and to carry out all or some of the duties of part-time staff provided this does not result in the layoff of part-time staff. Union Counsel said in her opening statement that Art. 28.01 provides the substantive basis in the Collective Agreement for evidence of past practice ante-dating the coming into force of the Collective Agreement. Art. 28.01 provides: The Union acknowledges the practice of the Museum making use of volunteers and students. The Union seeks to prove the details of that practice which it argues, on the face of the term practice, refers to the past. Union Counsel specifically stated that evidence of the practice was not put before the Employer during bargaining for this Collective Agreement. That is, there is no bargaining histoty incident to the claimed practice. Nor, in that regard, does the Union contend that, in some way, the practice, as a model, formed the basis for an estoppel against the Employer. Rather, evidence of past practice is intended to clarity the term used in Art, 28.01. ') f:, The Employer objects to such extrinsic evidence on three grounds: (a) Insofar as the "practice" ante-dates the Collective Agreement, it cannot be considered. This is the first collective agreement between the parties. The Memorandum of Agreement was signed on August 1, 1998, and the term of agreement extended to June 30, 2001. The Employer notes that the Arbitrator's jurisdiction is specifically limited to the interpretation of the Collective Agreement. There is no power to alter or change any of the Agreement's provisions. Art. 7.10(e) provides: An arbitrator, or board of arbitration as the case may be, shall not have any power to alter or change any of the provisions of this Agreement or to substitute any new provisions nor to give any decision inconsistent with the terms and provisions of the Agreement. In this regard, generally, extrinsic evidence must be drawn for the purpose of interpreting the Collective Agreement, and authority for doing so must be found within the Collective Agreement itself. Put somewhat differently, the words of the Collective Agreement, themselves, are deemed to reflect the intent of the parties. My first obligation as arbitrator is to take the relevant words in question and give them their plain and ordinary meaning. (See, Brown and Beatty, Canadian Labour Arbitration, at 114,2000.) As I understand the Union's response, it is that Art 28.03, upon which the grievance is founded, specifically places limits on the use of volunteers and and students if they would otherwise function to the detriment of the bargaining unit. And, the only way to determine if such volunteers have been so used is to look to the practice involving their use within the meaning of Art. 28.01. (b) The burden is on the Union, the Employer stated, to demonstrate ambiguity in the term about which extrinsic evidence would be submitted. Here, that term is the word, practice. The Union has not demonstrated, the Employer argued, that there is any ambiguity in the use of that term, or, if there is, that such ambiguity is not otherwise clarified by other provisions of the Agreement, that is, contextually. The past practice is not, in itself, incorporated, into the collective agreement. If this were an issue of promissory estoppel, which seemingly involves more rigorous criteria of proof, it is clear that the Union even calling the Employer's attention to the claimed practice in private meetings with some of the Employer's representatives during bargaining would not be enough to establish the detriment element for a promissory estoppel. (Re Bay Mills Ltd. (Baylite/Door Seal Division) and U.S. WA. (2000), 88 L.AC. (4th) 101 (Knopf)). The arbItrator dealt with the question of past practice for the payment of sick benefits, as it n " related to a first collective agreement. She stated: To put it simply, the Union's evidence falls far short of showing that there was a representation made at the bargaining table that the sick benefits would be continued. Further, there is no evidence that the Union based any reliance on the Employer's statement or conduct. There is no evidence of any detriment arising from the circumstances. There is no evidence that the Union intended to rely upon the conduct. It may be easy to infer reliance and detriment, or the essential elements of estoppel in this case. But due process requires that the Union prove its case by evidence, not inference. (c) The "practice" within the meaning of Art. 28.01, the Employer argued, is nothing more than an acknowledgment by the Union as to the use of volunteers and students. The provision does not set out any rights or duties. The Employer takes this position on a plain reading of the provision. In sum, the determination as to what is prohibited and what is allowed in relation to the "practice" must be found in other more specific provisions of the Collective Agreement. It matters not that the Employer, assuming the contention to be true, changed its practice from before the Collective Agreement came into effect. In my view, the primary case submitted by the Union in support of receiving evidence of past practice ante-dating the first collective agreement is Re Canadian Broadcasting Corp. and Canadian W;re Service Guild, Local 213 (1976), 11 L.A C. (2d) 419 (Stewart). There the question centred on a policy grievance concerning the right of the employer to assign certain broadcasting duties to individuals outside the bargaining unit. The arbitration board agreed to hear evidence of the employer's practice ante-dating the collective agreement. The relevant collective agreement provisions in question stated: 27.1 The Corporation agrees that in programs produced by CBC News Service, the gathering, writing and editing of news, and associated duties, and the scripting of news film and associated duties, shall be assigned only to employees within the bargaining unit. In such programs, the Corporation agrees to continue the assignment of employees in the bargaining unit to the voice reporting of news events and the interviewing of newsworthy subjects, particularly where they have personally covered the news events involved or where they the required special qualifications or experience. . . . 27,2 - It is further agreed that the Corporation shall not be required to alter existing practice in the News Service; by way of illustration, but not of limitation, basic news and news film may continue to be; a) contracted for; b) received on exchange from other broadcasting organizations; c) obtained from other sources. 4 27.3 - The present jurisdiction of the Guild over work performed within the Bargaining Unit shall be extended to any additional work in the News Service which is the same as that performed in the Bargaining Unit as defined in article 27.1 and 27.2 above. The arbitration board found a difference between the duties described in the first sentence of art. 27.1 and those contained in the second sentence of that article. It was in that context that the union sought to elicit evidence of past practice. The employer's response was that such evidence was inappropriate because the provision on its face was clear; there was no ambiguity. The arbitration board ruled that the evidence of past practice should nonetheless be received. It stated at p. 422: The fact remains that neither party could have made any meaningful contribution to the issue without resort to evidence of past practice. More than that, as clear as it might seem the language of the second sentence of art. 27.1 and of art. 27.3 virtually invites an almost necessary resort to such kind of evidence. The word continue (second sentence), for example, is obviously referrable to something that preceded the signing of the present agreement, and thereby calls for some sort of inquiry. In similar vein is some of the language of art. 27.3. In these circumstances, evidence of past practice must be admitted as being desirable for purposes of clarity at least, if not otherwise. In the matter before me, the Employer would distinguish the cac case on the ground that at issue was the question going to the duties involved by those within and without the bargaining unit. And, in that regard, the CBC collective agreement was quite precise as to the scope of duties, In the matter before me, there is no question as to the duties of volunteers and students. The issue raised in the policy grievances goes to the number of such volunteers and students who may be used during Christmas and March breaks. Argument on the Employer's objection took place at the hearing on September 28, 2001. At that time, the Union raised an alternative to the proof of practice should the Employer's objection to evidence ante-dating the Collective Agreement be sustained. The Union would offer proof of a "practice" concerning the use of volunteers during the Christmas and March breaks from the time the Collective Agreement was entered at the signing of the Memorandum of Understanding on August 1, 1998 until the grievances were filed in this matter on March 9 and 25, 2001. The Employer's response was that such evidence could not be received (i) on the basis of (b), set out above, that is, there was no proof of ambiguity of language in the Collective Agreement; and (ii) on (c), supra: Art. 28.01, on its face, is nothing more than an acknowledgment by the Union of the practice of the Employer in "making use of volunteers and students." As such, the frequency of that practice at least as it relates to the times in question "" Christmas and March breaks -- simply has no relevance, r ~.J II Under this head of the Interim Order, I will deal first with the Employer objection to evidence of past practice ante~dating the Collective Agreement. Next, I will rule upon the Union's alternative position, namely, its proffer as to practice in the use of volunteers and students from the coming into effect of the Collective Agreement to the time the grievances in this matter were submitted. A My jurisdiction is limited to interpreting and applying the Collective Agreement to the grievances properly placed before me on the facts proved. I have no plenary authority. The Union's proffered evidence, as it relates to art. 28.01, goes beyond proof of a claimed practice. Rather, such evidence would go to quantify that practice at certain times over a period of ten to fifteen years. However, art. 28.01, on its face, does no more than reflect the Union acknowledgment that a practice exists whereby the Employer utilizes volunteers and students, Such is the sum total of the clear words of the provision on which the Union relies. In its opening statement and in its argument on the Employer's motion, the Union made no claim that the language of art, 28.01 was in any way ambiguous. And, though I have stated this before, perhaps it deserves to be restated: It is my understanding that the Union intends to make no claim of promissory estoppel or ambiguity of bargaining history. Yet, how does this relate to the term, practice? Doesn't the term, in itself, infer something that happened in the past? The Employer argues that the meaning of the term must, in the first instance, derived from the words of the Collective Agreement. , agree, at least insofar as an answer to the question as to the meaning of practice can be found. Bear in mind, again, that art. 28.01 simply states that the "Union acknowledges the practice of the Museum making use of volunteers and students." The answer, I believe, comes from the dictionary definition of practice. Merriam Webster's Collegiate Dictionary defines practice as '10 do or perform often, customarily, or habitually. . . ." Black's Law Dictionary defines practice as "repeated or customary action; habitual performance; a succession of acts of similar kind; habit; custom. . . ." (Its derivation is Greek and generally means doing. See, John Ayto, Dictionary of Word Origins, Arcade Publishing, Little, Brown and Company, 1990, at p. 408.) There ;s nothing in the word practice that attaches any particular number to the individual acts. What the term does require is that there be some regularity and frequency to the practice, (' ,) And, certainly, as applied to the use of volunteers and students, the parties are agreed, and art. 28.01 so states that the practice of using volunteers and students is acknowledged. Accordingly, for the reasons stated, there is no basis in art. 28.01 for delving into the quantified use of volunteers and students prior to the coming into effect of the Collective Agreement. B. What, however, is to be said of the Union's alternative position, that is, of the offer of proof as to a claimed practice from the time the Collective Agreement came into effect until the grievances in the present matter were filed? As stated, the Union argued that the term in art. 28.03 "to the detriment of the bargaining unit" necessarily requires reference to the nature of the practice involving the use of volunteers and students as stated in art. 28.01. Implicit in this argument, it seems to me, is the Union contention that any adverse effect on hours of work in derogation from the claimed model as to the use of volunteers and students during the Christmas and March breaks, referred to above, must have a detrimental effect on the bargaining unit within the meaning of art. 28.03. However, I fail to see that necessary connection between diminished hours of work during two holiday periods and a detrimental effect on the bargaining unit. It simply does not follow that the diminution of hours of work impacts adversely on the bargaining unit. Thus, at this point, and on the facts set out in opening statements and in argument on the Employer motion, the Union alternative request is denied. ;; INTERIM ORDER 1. The Employer motion to exclude Union extrinsic evidence going to the "model" for the use of volunteers and students during the Christmas and March breaks is allowed. 2. The Union request, in the alternative, to present evidence concerning a "model" or pattern of volunteer and student use during the Christmas and March breaks from the time the Collective Agreement was entered until the filing of the grievances now before me is denied. 3. This Interim Order is based on the understanding that the Union does not intend to introduce bargaining history or claim promissory estoppel as to the "model" it alleges has existed. 4. Nothing in this Interim Order is intended to comment on interpretations of the Collective Agreement which the Union and/or the Employer might argue, nor upon other evidence which they might introduce. IT IS SO ORDERED. DATED THIS 9TH DAY OF OCTOBER, 2001 AT TORONTO, ONTARIO. QJ6~ Dr. D.J. Baum, Arbitrator 8