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HomeMy WebLinkAbout1986-2291.Carter et al.88-07-25I ..- TE. i ! ~I. ‘i ( OidTARIO EMPLOY& DELA COVRONNE CROWNEMPLOYEES DE “ONTARIO .. GRIEVANCE CQMMISSION DE ;ET&;MENT REGLEMENT DES GRIEFS .I Between : OPSEU (Carter et al) Grievors - and - The Crown in Right of Ontario (Ministry of~Cnrrectiona1 Services) 2291/86 2292/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT (I Before: P.Kndpf : Vice-Chairperson Before THE GRIEVANCE SETTLEMENT BOARD For the Grievoq: For the Emplover: ( He&incrs: I. Freedman Member H. Roberts Member A. Ryder Counsel Fowling & Henderson Barristers & Solicitors J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services January 29, 1988 DECISION " This grievance invol’vas.claims that the Cmoloyer has not allxated overtime .fairly at the Metro East De tention Can tre. The first grievor,’ Donald Carter, is a Correctional Officer III’(hereinaftet called CO III) and alleges that management is--allocating ov’ertime in such a way that .Correctional Officer II’s (hereinafter callad CO II) receive more ogportunities for such’wjrk~. The second gri~avor, Michael Dunting , claims that overtime has ,not been fairly allocated to CO II’s: The Union concndcs that the allocation ., of over time’ is a managomen t’ func’tion. Dut the iJnion assert.s that the grievance should succeed on the grounds of ~estopgel, or alternatively, that the collective’ agreement contains an .impliad terms that overtime must.be allocated one the basis of fairness. The Employer raised a orsliminary objection to jurisdiction claiming that.there.:is nothi’ng in the collective agre’ement upon which the.Union can found its case. But the Employer agreed to allow the evidence to ,be’ presented and so we proceeded to a hearing on its, merits. There is little dispute over the relevant facts of Mr. Carter’s case; Overtime oc$ortunities are created when a vacancy in the schedule ‘occ’urs due to a scheduled employee’s sickness~, vacation or other .cause of absence. ,Yos t enrgloyees welcome the opportunity. f,or overtime because of the extra compensation in’volved. - CO III’s are complaining becausb management is ,making co II’S .“acting supervisor~s” when a CO III is absent. Thus CO 11’s have more chdnces at the overtime created by the absence of a CO III. Howeve r, CO III’s are not offered o*rartime available to CO .11’s and i’r. is claimed that the CO III’s’tharaiore receive propor tiona tcly less oger time than should fairly be theirs.) This practice clearly means a -2- , . cost-saving to the Employer Secausc cl? acting su~ervlsors are not paid at the ca III rate. The Board was given evidence regarding the differen:? in functions between the CO II and the CO 1~11. Basically the CO III is "on-line supervisor of the CO,II's". He is responsible for doing whatever a CO 11 cannot do anli is responsible for a larger inmate gopulation;than the CO II. The problem of overtime allocationhas been a long-standing one. In November 1986, it was discussed with the Superintendent in the CO III'smonthly meeting. The C3 III's were assured by the Superintendent, Mr. Simpson, that CO III's would be hired.thereafter in'the event of the absence of another CO III when overtime wa$ requested. The substdnce of this assurance was recorded in a memo from the Senior Assistant Superintendent dated January 14, 1987. That memo set out a formula for allocating overtime to CO III's and also provided when a C3 II could Se assigned as an acting CO 11X as a "developmental option”. The Union finds ths formula in the memo quite agreaable, but complains that th2 Employer has not followed the promises contained in the memo. For his particular case, Mr. Carter had records to indicate that he had advised management that he was available for overtime on a number of snifts but neither he nor any other CO III was offered the aggointmant. .In particular, Mr. Carter could point to January 12 (2 shifts), January 16 and 19 as instances when he was available for overtime but that neither he nor any other CO III was called in. Instead, a CO 11 was given the overtime opgortunity~and elevated to an acting CO III position for purposes of the overtime shift. The other aspect of this case involves the grievance of Michael Bunting who is a CO II. The Union asserts that the ovartime has been allocated unfairly to CO II's on two i. f’ /.- ( ‘: ; .: (. - 3 - grounds. First, the Union asserts that manageman t is not abiding with the long-time, understanding’ that no casuals would be use~d to fill overtime opportunities when CO.II’s had ind’icated their availabiliiym by signing ,an Overtime Availability Board. Secondly, management had also not ,- adhered to a poli~cy~ of main,taini~n’g..a. .quota of. not exceeding five opportuni~ties per month for each CO’II. It was MC. Bunting’s contention that’.he- had not ‘been givan ~’ ogportyni,tfes for overtime-when’.oth,er CO ~11’s had exceeded their quota of five and/or when ~casuals had been hired in his stead. Specifically, Mr. Bunting testified that on two occasions, .January 24 and’25, casuals were hired when he ha,5 indicated his willingness and availability to take overtime _a L. shifts on those days. In response, the Employor pointed out the short time periods that are available to ge.t someone in I :. on a shift when~ little or almost no, notice is given for an . absence. Ho,wever, the ,Employer did not call any evidence and did not explain to the ‘Board the c.ircumstances of why casuals were hired on those days. In cross-examination the Employer was able to e1icit.a concession from Mr. Bunting that ,even though one may sign the overtime board and indicate a willingness for, an overtime shift, *actually getting overtime is “like a lot.tery”. ,’ The. Overtime Availability Board ‘was created to set out clearly the shifts that CO II’s would let themselves be available for overtime duty. Management issued a directive as to the use of this board. The directive was i~ssued to “all Correctional Officers” and reads as follows: ,. ,, Many officers have not taken advantage of the Overtime Availaoility Board in the Corgoral!s Off ice. It is important to do two things if you are interestsd in obtaining overtime shifts. These two things are : I , I I I , I 1. Underline work an overt .i 2. Place you r . -4- each date which vou are availaolc to me shift. talephone numbar at the’ r ignt hand side of the appropriate page. The above two i terns are very important: i f you are interested in obtaining any .overtimc~ shi fts. Management is very concerned about distributin- -- available overtime fairly, however, if:you don’t list yourself as being availabie you may be missing the opportunity of oeing’ hired. [Emph+sis added! Mr. Bunting testified that he folloked management’s directives for indicating the times he was avaliable for overtime and keat himself available on all tne shifts he had indicated. However, on at least two occasions, casuals were used on those shifts even though he had never been called in. Also, other CO II’s got more overtime than he, even in excess of the understood quota of five per month. The Union claims that the allocat’ion of o’?ertine at ‘be Metro East De tention Centre is unfair and therefore contrary to the collective agreement. In the alternative, it is suggested that the Employer is estopped yfrom conducting ,itself as it does. On behalf of Mr. CarL?r., it was claimed t!?at management has breached its promise to ensure that CO III’s would oe given overtime opportunities and thus they have less qportunity for overtime than the’ CO 11’s. 03 behalf of Nr. Bunting it was claimed that management has breached its promise to act fairly and allocate overtime to .20 II’s on a quota basis and before any casuals are given the :hance. 5 -,. i ./ , -5 - . For both grievors, theUnion claims that the ,grievances should succeed on the ground of estoppel because management made a commitment to administer the collecti agreement in a cer.tain fashion. that Was relied upon by grievors to their detriment-when' they kept themselves available at the times they had indicated to management Union asserts that the evidence shows that management promised to administer overtime fairly, and in certain ve these . 'The i specific ways and yet to~tally ignored their own promises by hiring casuals, hiring other CO II's and not using CO III's . . on the overtime basis. The Union argued that it is important to collective agreement administration to require the Employer to.honour a local or' individual agreement that has been relied upon. In support of its proposition, the Union relies' on the following cases: Canadian National Railway Co. -- ex al. v. Beatty et al- (19Sl,, 34 ,O.R. (2d) 385 (OHC) (CNCP); Meadow Park Nursing Home and Service Ernplovees .International Union, Local 220,-:9 L.A.C. (3d) 137 (Swan); - OPSEU (Kuyntjes) and Crown in Right of Ontario (Ministry 0-1 Transportation and Communication), GSB File 5~13/d4 (Verity), - (y, unreported decision dated April 3, 1985. The Union also argued that where management has a discretionary power with respect to.an item covered in the collective agreement, such as overtime, there is an'implied obligation to exercise that right fairly. But this can be contrastad with management's unfettered discretion over matters not covered by the collective agreement. The Union relies on this distinction as explained in the Meadow Park case, w. C,ounsel fu,rther pointed out that this Board consistently requires that articles such as Article 4 (promotion) and particle 54 (compassionate leave) be applied fairly, so that the allocation of overtime should also imply the same responsibility. Counsel also stressed that while Section 13 of the Crown Employees Collective Barqa,in.ingAcr -- ,., : ! I I I , -6 - lists management’s "exclusive functions”, the assignment oE overtime iS not mentioned, therein. Thus, i.t was said that it should be subject to the obligation of Eairness. The Union was seeking a declaration that the Employer' is boun.3 to allocate overtime Eairly, either on the basis of estoppel or on the doctrine of fairness itself. The Employer argues that this Board' has no jurisdiction to deal with overtime because there is nothing in the collective agreement to apply to then issue. The Board was reminded that its jurisdiction comes only from the Crown IJmployees Collective Bargaining Act and the collective agreement. It was said that on the basis of the collective agreement, overtime is defined so as to only exist once it is both "authorized" and'"performed". Until that occurs, no employee can make any claim for overtime or claim to be entitled to it. The Employer referred us to cases dealing with our jurisdiction in.t.he matter and the fact that oral promises are not enforceable& Haladay v. Ministry, of - Industry and Tourism, GSB File 94/78 (Swan):; Changoor and Ministry of Transportation and Communication, GSB File 526/82 (Verity) and Pehlke v. Ministry of. the Solicitor General, GSB File 791/85 et al. (Roberts). We were also referred to the many Board decisions which have dealt with the question of whether there is an implied obligation to allocate overtime fairly and which have concluded that no such obligation exists. Aubin v. Ministry of Correctional Services, GSB File 1044/75 (Gandz). It was further stressed that since there is no reference in the collective agreement to the assignment of overtime, no implied doctrine of fairness can be applied. See Municipality of Metropolitan Toronto an'd Toronto Civic Employees Union, Local 43, 10 O.R. (2dl 37,: and Metropolitan Toronto Board of Commissioners oE Police and Metropolitan Toronto Police Association et al., 33 O.R. ,(2dl 476. _ :, ~. The Dec.ision .,. We shall deal first with the argument iascd on estoppel. For purposes 6f this argument, we start with the assumption- tha,t nothing,.-in' the collective agreement deals on how overtime should be allocated. Since the CNCP case, .Sup, there is np question as,to our jurisdiction to deal wit? the.question of estoppel and tp apply it to the collective agreement Secausa it arises out oE the administration of the collective agreement and is recognized as within the scope oE this Board's powers. 30th the Carter and the Bunting grievances base the.ir arguments upon promises made by managemdnt to ailocate overtime in certain way's. FOK Mr. Carter arid the CO IIX"s, tie promise was made. in a meetifig and later set out in writing, see Exhibi.t 4. For Mr. Bunting and the CO II's,' the "promise" was-an .n understanding" -which was e,stablished for some .time and 'codified~ to the extent of a memo se-tting out how management was concerned about distributing overtime fairly. BSth grievances claim that the grievors relied to t!!air detriment upon these promises by keeping themselves available to be . call&d in on the-overtime shifts for which they had indicated their availability. It is conceded by management that an estoppel can be crea%&d to cover only specffic portions of a bargaining unit, such as the CO II's or CO III's, at a particular facility. Indeed, the CNCP case itself dealt with an estoppel applying -- to one local. but the question here ,tis whe,ther the facts create an estoppel. The uncontradicted evi,dence before this Board is that the Employer did make promises orally and confirmed them in writing JS to the ,way it would.allocate overtime to CO 11~'s and CO III's in the Metro East Detention Centre. But, Ear a 0 -8- promise to form the basis of a claim of estoppel, it must be shown that there was a detrimental reliance upon the promise. The concept of detiimental reliance was explained in the CNR v. Beatty case, sLlpra, a: page 390: . . . when there exists some conduct or promise which induces the other party :to believe that the strict legal rights under the contract will not be enforced or will be kept in suspense and that “having regard to the dealings which have taken place between the partie,s” it will be inequitable to allow that party to enforce their strict legal rights. The question of detrimental reliance in a similar context was .also raised in Metropolitan Toronto Civic Employees Union, Local 43, Canadian Union of Public Employees and the Municipality oE Metropolitan Toronto et al., 50 O.R. !2d) 618 (OHC). In that case, the Union brought a claim based on estoppel. The Eat ts of the case were that representations had been .made to individual grievors by’ the respondent prior to their joining its staff, that they would receive a retirement benefit equal to that under the agreement with their former employer which has not available under the collective agreement .wi th the respondent. The Divisional Court dealt with the issue and concluded that the doctrine of estoppel was applicable to labour arbitration. The fact that the respresentation was oral was not an impediment to the claim. However, the Court concluded that the facts did not support a finding of detrimental reliance because there was no indication that the union, as a party to rhe contract, had acted to its detriment. To quote the decision at page 628: . . . Here the representations ara not shown to have induced the Union to act, to its detriment. There is no suggestion that, because 0E representations made to these employees, the negotiators for the Union were led to assume that benefits would be paid to those employees on a one for one basis, - 9 - no&ithstanding this-.agreement,' and there is no evidence of- a course of conduct.on Metro's.part that led the Union to be'lieve that. So far as I am aware, the doctrine of promissory estoppel has been applied only on the basis offthe conduct of one party to a contract to another party. Employees. ~represeented by a union are. bound by butare not themselves parties to a collective agreement. If representation to employees leads a union to forego an oiportunity to attempt to negotiate the substance..of the negotiations into, the agreement the doctrine could apply. But that is not this case. There is no evidence of that. Thus, for the doctrine of estoppel to apply, detrimental reliance by the Union as $"party to the c~ontract, not just an individual employee, must be established. In the grievances at hand we do not see any 'e'vidence'that convinces us that there has been an element of detrimental reliance by the grievors or the Union which would make it inequitable to allow management the unfettered right to allocate overtime as it chooses. Detrimental reliance connotes lost opportunity and‘lost potential. The classic examDie of this is a union relying upon a practice or promise and thus being induced in&o a position of losing or passing over the:opportunity to negotiate its desires into the collective'agreement formally. We have no such suggestion.here 'and no evidence of what effect, if any, this conduct had on negotiations. Individually, the grievors claim they kep't themselves available, but the.evidence is also that there is never any guarantee of-overtime and indeed, actually receiving a call to overtime is.like winning a lottery because large numbers of other employees may be~available for the same opportunity. Taken at its best, the evidence estabishes the grievors were slightly inconvenienced. But it cannot be said that they were proven to have been denied an opportunity that should have been theirs or that the Union'was induced to negotiate as it did because of the prbmises. There is no evidence that ~the Union acted to itsdetriment or indeed relied'upon the course of conduct. Thus, there is no ev‘idence that.the - 10 - . . 2 I I I : Union, as a party to the coll,ective agreement, was induced to act to its detriment. Since detrimental reliance is a fundamental element in the doctrine of esto’ppel, the absence ‘of the underlying facts to support the detrimental reliance is fatal to a claim based upon estoppel. : However, we cannot fa,il to make d note in passing that the Board is astounded by the Employer taking a position <with its employees by way of oral promises :hnd written memorandums and then reneging on those promises as was done here. This type of conduct is disruptive to labour relations, indicates a poor level of direction and Cs simply unfair to the employees who are entitled to look to management for consistent and intelligent direction. .I Having cri ticized management’s conduct, we now address the question of whether there is an implied duty to allocate overtime fairly in this collective agreement. The Union relies on the Meadow Park Nursing Home case,~ supra, and - its analysis for this aspect of the case. ‘The Board in the fleadow Park case reviewed the cases on the ,issue dealing with the implied duty to apply a collec’tive agreement provision fairly. After identifying the concept of an "expressly conferred discretion”, the Meadow Park case concludes that where the parties agree to confer a discretion upon the Employer, an arbitration board should look :to the whole collective agreement to determine what, if any, limits have been put upon the exercise of discretion. In the collective agreement before ,us, no mention of discretion exists for purposes of overtime. Article 13 deals only with overtime once it has been awarded and provides a definition of over time. The other articles referred to by the Union, i.e. compassionate leave and promotions, do incorporate concepts of fairness because no promotion could larly, in reasonably be held without a .fair competition. Simi the other articles there is mention of discretion, whereas there is no such mention in Article 13. So there is no expressly conferred di.scretion~ as. there was., in the Meadow Park case. All this is consistent with the Board’s well established jurisprudence on Article 13 that was cited by the Employer and which has clearly established that there is no duty in the collective agreement to allocate overtime on the basis of fairness. See Changoor and Aubin, supra. ‘For example, in A*, at page 4 the Board concludes: The collective agreement is completely silent on the question of the allocation of overtime and to suggest that there is an implied commitment to distribute it fairly and equitably would be, to substantially amend the agreement and this is clearly beyond the juribdiction of this Board. In this, we follow the Board’s established jurisprudence as reflected. in Changoor. *Thus,- we conclude that. there is no con trad tual~ obl’igation to ~distribute overtime fairly and equitably. . We emphasise, while the jurisprudence and our jurisdiction do not allow us to declare that there is an obligation to-allocate overtime fairly or equitably, it is only a matter of common sense and decency to a.ttempt to do so. Where an employer promises a group of employees that they can expect to be treated fairly and then, without any explanation, reneges upon that promise, nothing but bad relations can result. If the Employer has legitimate operational reasons for being unable to fulfil its promises, at the very least the employees are entitled to an ~. explanations of this. Even though the grievance fails, we strongly urge ,the Employer to clarify its situation with employees such as these grievors land to act in accordance with its promises in the future. -1 - 12 - However, for all the reasons mentioned aDove, the grievances are dismissed. . . i. DATED at Totonta, Ontario this 25ch day of July, 1988 . paula.Knopf - Vice-Chairman H. Roberts - Merber I : ! !