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HomeMy WebLinkAbout1986-0606.Beaulne et al.90-09-27EMPLOY~SOEU COURONNE DE “OONT.wO CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under TEE CROWN EAPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN FOR TEE ElWLOYER HEARING: ORSEU (Beaulne et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctiona Services) - and - Employer G. Simmons Vice-Chairperson J. McManus 'Member w. Lobraico Member C. Dasssios Counsel Gowling, Strathy & Henderson Barristers & Solicitors J. F. Benedict Manager Staff Relations & Compensation Human Resources Management Ministry of Correctional Services October 27, 1987 July.23, 1990 I - r 2 The Board consisting of Ms. J. Forbes-Roberts, vice- chairperson; Mr. Jon Mcmanus, and Mr. W. Lobraico; members heard the matter in issue between the parties on Octobei 27, 1987. It released its decision on November 3, 1989. The issue before the Board involved entitlement to a duty meal without charge at the L'Orignal Jail for Correctional Officers on the .day shift. A 'practice had been in effect of providing such meals free of charge ,since approximately 1979. In July 1986 the Employer gave notice that effective immediately meals would be charged'at the rate of $2.00 per meal to employees. The Union grieved this decision and the matter came before the Board. On page 6 of 'the Award, the following appears: In the face of a clear longstanding practice which had endured undisturbed through at least three (3) sets of negotiations and the assured continuance of which had been offered by a top ranking Employer official the Employer is estopped from in mid contract unilaterally withdrawing from that position. The grievances are hereby allowed. The Employer is ordered to make the grievors whole for meals which under the prior long standing practice would have been provided to them fee [sic] of charge since the date of the filing of the grievances. The Employer is also hereby ordered to continue in keeping withy its practice of pre-Uay 1986 of providing free duty meal(s) to day shift employees. The Board remains seized in the event of difficulty in the implementation of,this award. 3 The Collective Agreement then in effect had a term from January 1, 1986 to December 31, 1988. As a result of the Board's decision the Employer continued to provide free meals or alternatively reimbursed the employees for the meals up to and including December 31, 1988. The current Collective Agreement 'between the parties runs from January 1, 1989 to December 31, 1991. However, the current Collective Agreement was not ratified until May 4, 1990 and, it is agreed, -its effective date was June 15, 1990. The Union disagrees'that the Employer could terminate the free meals on December 31, 1988. The letter to the Grievance Settlement Board on behalf of the Union states in part as follows: The outstanding issues are: 1. The date from which the grievor9 are to be compensated. The dispute is whether it should be from the date oft the grievance, or 20 days prior to the date of the filing of the grievances. 2. What interest, if any, should be added to the monies to be paid to the grievors. 3. For how long is the employer required to provide free duty meals to. day shift employees. At the hearing Item #l was dropped by the Union, but Items #2 and #3 .remain in issue. In our view, the third item should be considered first. The Union argues that the free meal provision ought to have continued to either May 4, 1990 when the current collective agreement was signed or June 15, 1990 which is when it became 4 effective and not December 31, 1988. It bases its argument on 'Article 23(Z) of the Crown Emalovees Collective Baraainina Act or 'alternatively on the equitable principles of estoppel. Article 23(Z) of the &$ reads: (2) Where notice has been given by either party to a collective agreement under section 22, except as altered by an agreement in writing of the parties, the terms' and provisions of the agreement then in operation shall continue to operate until a new agreement entered into pursuant to the provisions of this Act is in operation. R.S.O. 1980, c.108, s-23. Basically, it is the position of the Union that Article 23(Z) continues the terms and provisions of the agreement until a new agreement is entered into. The employer ~counters that approximately two and one-half years continuation from mid-1986 (when the practice was abruptly stopped) to the end of 1988 is sufficient notice to the union. Mr. Benedict argued that the Forbes-Roberts Board applied the estoppel doctrine because inadequate notice had been given. It was his pokition that the employer ought not to be obligated to continue the practice beyond December 31, 1988. After having had an opportunity to consider the relative positions of the parties it is our conclusion that,the Employer's position is to be preferred. With respect, we are unable to accept the Union's position that the free meal provision is a term or ,provision of the Collective Agreement. Indeed, the Forbes-Roberts ,decision states on page 4: 5 'For his part Superintendent Lacombe had had no discussions with the Union regarding the day shift duty meal. While they continue to be provided for the first year to year and one- half of this tenure he did not perceive there as being any agreement between the parties. Both. oarties aaree that there was no formal aareement in writinq. [Emphasis 'ours] Instead, what arose was a practice that had developed over several years. The employer decided suddenly that it would revert to its strict legal rights when it gave its notice in July of 1986. However, Boards of Arbitration have incorporated the principles of estoppel into the arbitral jurisprudence which has been accepted, at least in Ontario, in CNR ComDanv et al. and Beattv et al. (1981) r 128 D.L.R. (3d) 236 (Ont. Div. Ct.) but the equitable doctrine of estoppel has its foundation in reasonable notice. That is, equity stepped in to prevent a party to + contract from reverting to his strict legal rightswithout giving the other party who had relied on a promise or certain conduct to his detriment an opportunity to alter his position. What constitutes reasonable notice will depend on the circumstances of each individual case. In certain instances arbitratrion boards have held that the estoppel ceases to exist when the term of the Collective Agreement expires. See Re M. Sheooard and Ministrv of Correctional.Services (1986) t G.S.B. No. 510/82 (Roberts). However, other arbitrators have found the defence of estoppel to be appropriate only in the short term or on the filing of a grievance. See Re Rahev's Suvermarket of North Svdnev and Retail, Wholesale & Devartment 6 on. Local 594 (1987) 30 L.A.C. (3d) 65 (MacDonald) and the cases c~ited therein. In the instant situation, the Employer'gave fiotice in July 1986 th~at effective immediately free meals would no longer be granted. The Board prevented the Employer from implementing this new policy based on estoppel and as a consequence ~the free meals were continued until the Collective Agreement expired on ,Decenber 31, 1988. This meant that the Union had approximately'two and one-half years notice of the Employer's intention of discontinuing the policy. In our respectful opinion, two and one- 'half years notice is reasonable notice and that the Employer had every right to discontinue the policy when the Collective Agreement Eexpired on December 31, 1988. The policy was not a term or provision of the Collective Agreement and was not therefore automatically continued until a new Collective Agreement was either signed or ratified. Accordingly, it is our opinion that the Employer correctly applied the reasoning of the Board's decision when it discontinued the practice of providing free meals as at December 31, 1988. Therefore, it follows that the issue relating to interest is likewise dismissed. 7 Dated at Kingston, Ontario this 27th day of September , 1990. . C. Gordon Simmons Vice Chairperson " I DISSENT " (Dissent attached) Mr. J. McManus Member Mr. W..Lobraico Member r gIsSENT To BEAULN’B - GSB NO.: 606/86 I disagree with the decision of the majority ,of the Board in these circumstances. There is no doubt that an estoppel runs up to the point where a reasonable notice period expires. However, what is reasonable depends on the effect that the employer's conduct had on the Union in this case. Simply put, the reason why the employer was estopped in this case was that, by rescinding its practice, the employer denied the Union its opportunity to negotiate a clause in the collective agreement to provide free meals to the employees. That denial continued up to the.point at which the Union had exhausted its opportunity to negotiate the clause. This did not occur until the new collective agreement came into force in June of 1990. Up until that point in time, it could not be said that the Union had been given its full opportunity to negotiate the clause, which opportunity had been denied by the employer's conduct giving rise to the estoppel. I would therefore have ordered that payments be made up until June 15, 1990. I would have also ordered that the grievors be paid interest pursuant to the Board's usual practice.