HomeMy WebLinkAbout1978-0112.Union.82-03-17,‘._ ..C
c.
.~ - GRIEVANCE
;ki;bEMENT
Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Befo're :
Ontario Public Service Employees
Union Grievor
- And -
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
E. B: Jolliffe, Q.C. Vice Chairman L. Robinson Member
W. Evans Member
For the Grievor: R. Wells, Counsel Cameron, Brewin & Scott
For the Employer: J. Zarudny, Counsel
Ministry of the Attorney General
Hearing: February 18, 1982
SECOND INTERIM DECISION
Although the nature of this grievance was explained in
the Board's Interim Decision of January 19, it may be well to
review herein the history of the matter.
From February 1, 1978, a col-lective agreement between
the parties was in effect. In its Article 17 were certain
provisions in respect of "Meal Allowance." On April 18, 1973,
the President of the Ontario Public Service Employees Union lodged
a grievance on behalf of "the union" complaining that a memorandum
issued on March 15 to "All Probation and Parole Staff" constituted
a violation of "Article 17."
It tjas not until January 13, 1982, that the grievance
came on for hearing, after having been adjourned once by request
on July 16, 1981. At the January hearing, counsel for the,
employer, Mr. J. Zarudny (having given notice in advance that he
would do so) raised certain objections to arbitrability. The
first,of these, namely that the grievance on its face asserted
rights not provided by the collective agreement, was on that day
fully argued. The Board on January 19 issued its first interim
decision, holding that there did not appear to be an arbitrable
issue arising under paragraph 1.1 of Article 17~ (as Mr. Zarudny
had argued) but that the union had raised at least one arbitrable
-3-
issue under paragraphs 2.1 and 2.5 of Article 17. The grievance
had referred, not to 17.1.1, but to "Article 17."'
A further hearing was held on February la for the
purpose of receiving argument on the objection that the Union is
estopped from pursuing the grievance by reason of having negotiated
and signed the collective agreements of February 1, 1979, and
January 1, 1980, in which no reference appeared to the issue raised
by the grievance of April, 1978. During the course of a lengthy
argument, Mr.
Zarudny was invited to submit precedents in support
of his assertions, and he agreed to do so by March 1. It was
also agreed that Mr.
R. Wells, counsel for the Union, would have
until March 8 to comment and Mr. Zarudny would reply, if desired,
by March 15. It was further agreed that if the Board decided it
must proceed further, a hearing on the merits would be held on
March 23.
The Board has received in due time all the submissions
of counsel and must now determine whether the second objection to
arbitrability is well-founded.
It was not anticipated that the submissions would include
elaborate argument. What the Board had suggested was that citations
of significant reported cases 'might be helpful. However the
"written arguments" (as they are titled) have been, read with
,
s .?.
-4-
interest and the Board appreciates having the benefit oft research
done by both counsel. It emerges that the issue upon which
authority was invited, and upon which a decision must be made, has
been correctly stated by Mr. Wells as follows:
Is the Union estopped from proceeding
with th'is grievance because it has negotiated two collective agreements since the filing of
the griev.ance?
In support of his submission that the doctrine of
estoppel is applicable, Mr. Zarudny has cited and filed copies
of awards and judgments in several cases, together with .a lengthy
written argument in which he discusses both "the equitable doctrine
of estoppel"
(1)
and "the common law rule of waiver."
Re United Electrical, Radio and Machine Workers,
Local 537, and Canadian General Electric Co. Ltd (1971) 22 L.A.C.
149 (Johnston): In this award, the doctrine of estoppel by
conduct or estoppel .&I paid was explained. After quoting from
Jowitt's Dictionary of English Law and an 1877 judgment in the
House of Lords, the Board of Arbitration said:
It is apparent that there are two aspects of the doctrine as thus stated. There must be a course of conduct in which both
parties act or both consent and fn which the party who later seeks to set up the estoppel is led to suppose that the strict rights will not be enforced. It follows that the party against whom the
,si
- 5-
estoppd is set up will not be allowed to enforce hits strict
rights if it would be inequitable to do so. The main situation
where it would be inequitable for strict rights to be upheld
would be where the party now setting up rhe estoppel has relied to
his detriment.
The Board also cited several reported awards by Canadian
arbitrators in which they have applied or refused to apply the
doctrine, and then observed:
:
However,
it is equally clear that the doctrinal of estoppel
by conduct is one which should be carefully limited ard one that can
only be used to prevent inequitable consequences to a party who has
relied to its detriment on the conduct of another party and no further.
On the facts of this case, it was found that the company
,had for a long period failed to implement an incentive system in
the manner required by a series of collective agreements. As the
Union had acquiesced for many years, it was estopped from pursuing
its grievance. It was pointed out, however, that if, from the
date of the award, there was,a further violation "the Union would
be entitled to grieve without being met by a defence of estopped
by conduct."
It is obvious that the issue in that case was not the
same as the issue here, where the grievance arose for the first
time prior to the making of the two agreements relied on as a
basis for estoppel.
-6 -
(2) Re Trustees of Ottawa Civic Hospital and C.U.P.Z.
Local 576 (1975) 10 L.A.C. (2d) 314 (H.D. Drown). For various
reasons, it was decided in this case that the hospital had a
right to retire an employee at the age of 65, this being contem-
plated by the Master Hospitals of Ontario Pension Plan. In
negotiations the hospital had requested language making clear
that retirement at 65 was compulsory, but withdrew that amend-
ment on being assured by the Union that "management has the option."
The doctrine of estoppel received only passing mention in that case.
(3) Price, McKenzie and the International Woodworkers
of America, Local l-85 v. MacMillan Bloedel (Alberni) Limited (1977)
4 W.W.R. 311 (Dryer J.) The importance of this case is emphasized
by Mr. Zarudny, although its factual background is very different.
The Union and the members thereof brought an action in the B.C.
Supreme Court claiming the entitlement of a certain classification
to special rates negotiated in a 1972-73 agreement. The problem
was known to the Union before it began to negotiate the 1974
agreement, but the negotiators decided to "keep it off the table."
The Court held that since the Union had witheld notice of its
intention to grieve when negotiating and signing a new agreement,
it was estopped from grieving thereafter. As put by Dryer J.:
"Here the Union, by its silence, misled the defendant ithrough
it bargaining representatives) as to the wages they were going to
be asked to pay under the 1974 agreement and as to their liabilities
- 7-
under the 1972-73 agreement. "
The distiiction between that case and this case is clear.
In this case the grievance had been lodged in advance 06 the 1979
agreement, and not later.
(4) Larson et al v. MacMillan Bloedel (ALberni) Limited
(1978) 1 W.W.R. 749 (Hutcheon J.) The Court held that "the evidence
in this case will not support a plea of estoppel." However, the
claim was limited as to time. The result is adequately summarized
in a.head-note, as follows:
The common law of contract applicable between two parties must be
modified when applied to parties to a collective agreement to take
account of the nature of the relationship imposed on the parties by
statute. hus, where partfes to a collective agreement have had in- terpreted certain language of the collective agreement and it emerges
from the interpretation that wages should have been calculated
on a different basis, one party cannoi compe1 the ocher party to re-
open the wage payments over a several-year period, even though the
doctrines of estoppelhave been. found not to apply. In such circumstances
the additional compensation ought to be paid from a date shortly before
the right to such additional compensation was first asserted.
The Court cited with approval an observatidn by Arbitrator
Laskin (as he then was) in Re Can. General Electric Co. (1951)
3 L.A.C. at p. 982:
Absent bad faith on the part of the employer, a Union which
misconceives its rights or those of employees and thereby fails to
- 8-
press them, should not be permitted to make a retroactive clai.3 to re-
open, after the lapse of a reasonable time, transactions which have been
completed,~as;for example, cases of piece-work jobs for which payment
has been made and accepted without expression of dissatisfaction.
In the instant case, however, there was no great lapse
of time between the disputed directive of March 15, 1978, and the
grievance of April 18, 1978. Thereafter the employer had full
knowledge that the Union's interpretation of Article 17 was
different from the employer's, although the matter may have been
ignored or overlooked during the negotiation of two succeeding
agreements.
(51 Re Metropolitan.Transit Operating Co. and Amalgamated
Transit Union, Divisions 101-134 and 139 (1981) 30 L.A.C. (2d) 242
(Fraser). In this B.C. arbitration, the Board defined the issues
as follows:
(a) Is the Company bound by the terms of the collective
agreement to continue a service to its employees that it began
voluntarily and not as a result of a contractual obligation? and
(b) Is the Company estopped from exercising what it contends
are proper "management rights ” because of its conduct in the course
of negotiating a collective agreement?
In the result, it was held at p. 247 that "no form of
estoppel operates to prevent the company from unilaterally with-
drawing the A-cars."
-a
-9-
The award would be of interest in an argument respectin
the merits of this case, although the facts are very different.
(6) Re School District No. 24 (Kamloops) and C.U.P.Z.
Local 960 (1986) 29 L.A.C., (2dl 93 (J.M. Weilerl. This award
contains a lengthy review of the authorities on estoppel, including
Price, McKenzie (4uprrrr) and Larson (4upkU). The Board concluded:
Turning to the facts in this case, we are of the view that
the employer by its conduct in negotiations has deprived the Union of the opportunity to exercise its choice of whether it would agree to
the renewal of this agreement knowing that Sun Life was to be the
new group life insurance.carrier..... We conclude that the employer
is estopped from exercising its right under art. 28(c) to unilater-
aLLy change from Mutual Life to Sun Life as group Life insurance
carrier .
The board's findings in the Kamloops case, based on
evidence of what occurred during negotiations, are self-explanatory.
In the same case, Arbitrator J.M. Weiler (not.to be
confused with P. Weiler) distilled the following principles from
his review of the jur~isprudence :
The doctrine of estoppel thus requires the presence of three elements :
(1) a representation from one party to another;
(2) the representation must affect the legal relationship of the parties, and (3) the second party must rely~on that representation.
- 10 -
If the above represent the essential elements of
estoppel, we cannot find that the instant case satisfies the
requirements. Far from suggesting that a representation was
made by one party to the other, Mr. Zarudny seems to rely on the
.assertion that the union remained silent --- i.e. that no -
representation was made.
As to the second element, Mr. Zarudny has emphasized
that when the parties negotiated their 1980-1981 agreement
Article 17 (unchanged in the 1979 agreement) was amended by
increasing the meal: allowance figure in 17.1.1 from $2.50 to $3.00.
He infers that this'was a concession in response to a demand by
the Union, but there is no evidence to that effect, a point on
which more will be said below.
The. cases cited by Mr.
Zarudny were advanced in support
of a proposition appearing at page 8 of his written argument:
It is submitted that in circumstances where a party which is
engaged in collective agreement renegotiations has, prior to the
commencement of those negotiations, formed a difference of opinion
in respect of the interpretation or application of some pert of
the existing Collective Agreement and has formed an intention to act upon that difference of opinion (such as by pursuing the matter to
arbitration), that ,party has an obligation to declare the “truth”
to. the other party and to make its intentions known during the course
of those negotiations - especially when the particular article or
subject matter in question has been placed upon the bargaining table
by virtue of a new demand from the party with the difference of
opinion.
-b
- ll-
As stated above, the proposition is fallacious --- for one
very simple reason. '
On every occasion when these parties negotiate a new agree-
ment, with or without amendments, there are outstanding scores
of gri evances. probably hundreds. Some may not have completed
th>ir course through the grievance procedure. Others may be
awaiti ng mediation. A few are destined to reach the Grievance
Settlement Board. If there were any validity in the proposition
quoted above, it ,would mean --- carried to a logical but extra-
ordinary conclusion --- that ever'y grievance relating to inter-
pretation initiated before negotiations would fall by the wayside
unless the Union expressly notified the employer of its intention
to continue. NO such rule has ever existed.
Of course there have been cases where the employer has acted
"to its detriment" on the strength of representations or mis-
representations made during negotiations, particularly when the
issue has not been raised previously by way of a grievance. Those
are ca:.ses in which the doctrine of estoppel may be applicable. As
yet, there is nothing to suggest that this is such a case.
Moreover, it would be wholly impractical to bring into
negotiations all outstanding grievances and attempt to negotiate
their settlement when negotiators must address larger long-range
b
- 12 -
issues. Further, to make such an attempt would be inconsistent
with what is contemplated by the law, i.e. that the parties
should resolve differences arising during the life of an agree-
ment by resorting to the grievance procedure and, if necessary,
to arbitration.
What happened here is that the parties had a difference
about the interpretation of the 1978 agreement, and --- during
the life of that agreement --- the Union lodged a grievance.
The conclusion of a new agreement in 1979 and another for 1980-81
did nothing to resolve the issue. This Board was not called on
to decide‘ it until January, 1982. We have no knowledge of the
reasons for delay, a point Mr. Zarudny may wish to address, in
further argument.
It was said at the hearings of January 13 and February
18 that counsel for the employer wishes to adduce evidence. He
will be at liberty to do so at a hearing on the merits. It would
be futile, however, to lead evidence that the grievance was not.
mentioned in the course of negotiations for the 1979 and 1980-81
agreements. There may be other and more relevant evidence.
For the reasons given, the Board's view is that the
doctrineof estoppel has no application in this case. The result
would be different, of course, if it were proved that the Union
- 13-
at some point agreed to abandon the grievance in return for a
concession by the employer, but it has not been suggested that
such was the case.
The objection to arbitrability is not well-founded and
a hearing on the merits must proceed on March 23. As stated in
our first interim decision, dated January 19, it remains to be
seen whether the Union will be able to prove the existence of the
conditions referred to in 17.2.5 of the 1978 agreement. The onus
of proof will be on the Unibn
Dated at Toronto,
March 17, 1982
Member
EBJ:jce