HomeMy WebLinkAbout1986-2499.Union.90-07-301
ONT.4RIO EMPLOY~S OEU COURONNE
C*OWNEMPLO”EES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RkGLEMENT
BOARD DES GRIEFS
rea RUE O”NO/\S OUEST. TORONTO. ,oN~*mo, hi50 728. B”R.EA”ZlW ,.rs, sss-0688
~.:‘.;T ; 2499/86
;. ,I.: .!, {: 3;) :
IN.THE MATTER OF AN ARBITRATION
: Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
BETWEEN
THE GRIEVANCE SETTLEMENT BOARD
w-n=---
GLBEU (Union zance)
Grievor
- and - .
The 'crown in Right of Ontario
(Liquor Licence Board of Ontario)
- and -
Employer
J. Samuels Vice-Chairperson
J. Solberg Member
F. Collict Member
FOR THE
GRIEVOR
FOR TEE
EMPLOYER
A. !I. Heisey
Counsel
Eerzner, Papazian, MacDermid & Tremayne-Lloyd
Barristers & SoliCitOrS
L. McIntosh
Law Officer
Crown Law Office Civil
Ministry of the Attorney
General
'December 4, 1989
February 28, 1990
June 27, 1990
2
In 1975, the parties included a Letter of Agreement concerning
“Kilometer Rates” in their collective agreement. This Letter still forms part
of the collective agreement booklet. Its legal significance and meaning is in
dispute between the parties. It reads:
This will contirm the Boards’agrccmenc with r&r 10 kilomc
OCR rater and alternate mmsponadon as follows:.
The folloG~g provisions shall be applicable 10 employees who
use [heir own automobiles in the conduct of Board business:
The Boards agree 10 furnish alwmative means of transpor-
tation to emplo#ees who are required LO rravel 10 conduct
Boards’ business. should any of the employees not wish to
use their privately-owned auromobiles foi such purposes.
An employee auhorizcd to use his car on approved Board bui-
ness. include travelling to assigned duties away from his arms-
tomed work location, shall be paid kilometer allowance in ac-
cordance with the following:
(a) for the first four thousand (4,wO) kilomcrers driven-at the
ra~eof17Sccmsper kilomewrforthepanthermfinNonh-
ernOniarioand I’lcenrs per kilometer forthepan thereofin
Southern Ontario:
(b) for over four thousand (4.001) kilomaers and up to twelve
lhousand (l?.CCO) kilometer~ driven-ar the rate of 14.5
cems per kilometer forthepan thereofin NorlhernOmario
and 14 cemspcr kilomctcr for rhc pan thereof in Southern
Onrario:
(c) for over twelve thousand (12.Wl+) kilomners driven-at
the rate of 12 cents per’kilomewr for the pan thereof in
Northern On&o and a! the rate of I I .5 cepls pa kilometer
for the pan thereof in Southern Onrario;
(d) the boundary between NonhemandSourhemOntariorhall .
be- Healy Lake fhtunicipal) Road from Hcaly Lake aster-
lyto iu juncrion with Hiphway612: 10 Highway 103; H&
way 103 eas~e!ly 10 its juncdon wilh Highway 69: Highway
69 easterly to 11s juncrion with Highway 118; Highway I18
through Bracebridge 10 its junction with Highway 11: High--
way I I northerly 10 its junction with Highwa) 60 at Hums-
ville: Highway60e~terly~oi~sjunc!ionuith Highway62nr
Killaloe StaCon: Highway 62 IO Pembroke. the above
named Highways 10 be included in Southern Ontario:
(e) for the purpose of this section all kilomam outside of
Omario will be al the rates for Southern Omario.
In August 1985, the Liquor Licence Board promulgated new policy
statements concerning transportation for employees. Concerning
transportation generally, the Board said:
The Board will determine the most cost-efficient
means of providing transportation to employees
who must travel in the conduct of Board business.
3
And then, concerning assignment of Board vehicles, the Board said:
Employees who are required to travel in the
discharge of their duties may be assigned a Board
vehicle. Employees who wish to use their own
vehicles in the conduct of Board business may do
so, only with the prior authorization of the Board.
The Union’s grievance made two claims concerning the Letter of
Agreement and its impact on these new policies of the Board. Firstly, we
were asked to declare that, pursuant to the Letter, an employee is entitled to
use his or her own vehicle for travel related to Board business, if the
employee so chooses. Therefore, ~the Board may not direct an employee to
use a Boa&vehicle. Secondly, the Union said that, at their negotiations, the
parties agreed on the kilometer’rates for use of personal vehicles, and these
agreed rates had been paid by the Employer for use of personal vehicles, but
the rates agreed are not recorded in the Letter, and the Union asked us to
rectify the Letter to reflect the agreed rates. This latter claim has now been
resolved, and it has been agreed that the current rates would be in the Letter.
Our hearings began in September 1988. At that time, the Employer
raised.three preliminary objections with were dealt with in a preliminary
award issued on November 4,1988. The three preliminary objections were:
(a) Assuming that the Letter of Agreement is part of the collective
agreement, the Letter deals with a matter which is within the
exclusive jurisdiction of management under the Crown
Employees Collective Bargaining Act and cannot be
implemented.
(b) Even if the Letter can be the subject of a grievance under the
collective agreement, the Union cannot bring this grievance.
4
(c) Even if the Letter can be the subject of a grievance under the
collective agreement and the Union can bring this grievance, the
grievance is out of time.
It was agreed that, if these preliminary objections were dismissed, at a
later time this Board would go on to determine three further issues raised by
the parties---Is’the Letter of Agreement a part of the collective agreement?
If it is a part of the collective agreement, do the employees have the rights
which the Union claims? And; if the Letter does give the rights claimed; is
the Union estopped from making this claim?
In our preliminary award, we dismissed the three preliminary
objections. We are now asked to determine the three further issues.
i L
*,s the Letter of A@reement jWt of the collective aereement?
When the letter was first introduced into the 1975-76 collective
agreement, and for many years thereafter, it was placed in the collective
agreement booklet before the signature page. In 1977, in their Memorandum.
of Agreement for the new collective agreement, the parties said expressly
that this letter would “form part of the Collective Agreement”.
For the period July 1, 1985 to December 31, 1986, the parties did~not
agree on their collective agreement until June 13, 19a! In the unsigned
“working agreement”, which was used during the actual period of the
collective agreement (consisting of the terms of the old agreement in a new
booklet with the words “effective July 1, 1985” on the front), the Letter of
Agreement was placed before the signature page. After the agreement was
signed in June 1988, the document prepared as the collective agreement for
the already-expired~period had the Letter of Agreement after the signature
page. It appears ‘mat this change of location was made by Mr. G. Harmer, at
the time the Personnel .Manager of the Board, without any discussion with
the Union concerning the change of location and without the Union even
being aware of the change of location.
5
Several months later, in September 1988, the parties executed their
collective agreement for the period January 1, 1987 to December 31, 1988.
John Miles, at the time the President of the Union and a member of the
negotiating team, testified that the signature page for this document was
circulated as a single page. When the collective agreement booklet was put
together, again Mr. Harmer pIaced the Letter of Agreement after the
signature page, and again this was done witb.omany discussion with the
Union and without the Union knowing that this ordering would be used.
What was going on~ here? It appears that, for several years, the
Employer’s representatives had developed the view that. the Letter of
Agreement was not a part of the collective agreement. How they came to
this viev..is not clear at all. When the Letter was introduced in the mid-
197Os, there is no doubt that the parties intended that it would be part of the
collective agreement. And nothing changed over the years. Year after year,
the Letter was carried forward into the succeeding collective agreements.
Now, .whenever the Employer mentioned to the Union that, in the
Employer’s view, the Letter was not a part of the collective agreement, the
Union would make clear its view that the Employer was incorrect. The
matter was always left on the basis that nothing would be changed and
ultimately the issue of the legal significance of the Letter of Agreement, and
its meaning, would have to be settled through the grievance procedure.
In order, in his view, to assist the Employer’s position, Mr. Harmer put
together the last two collective agreements with the Letter of Agreement
after the Signature page.
In our view, this change of location is of no significance whatsoever.
This placement was not discussed with the Union and the Union was not
aware before it signed the agreement that Mr. Harmer would print up the
collective agreement booklet with the Letter of Agreement after the
signature page. The parties had not agreed on any change in the legal
significance of the Letter of Agreement. They had differing views
6
concerning its legal ~significance, but they agreed on no changes and
intended ultimately to submit the issue to the grievance procedure (as was
done eventually, and here we are).
Counsel for the Employer urged us to fmd that the Letter was not part
of the collective agreement because the appropriate formahties were not
met-the Letter’is not incorporated by reference in the numbered articles of
the collective agreement; the Letter is not called an “appendix”; in the last
two collective agreement booklets, the Letter appears after the signature
page; and the Letter itself is not executed by both parties, but rather is signed
only by representatives of the’Employer.
1I.n our view&dwever. the critical points are these: it is clear that the
parties jointly always intended that the terms of the Letter of Agreement
should govern the question of means of transportation and kilometer rates
(though they had differing views concerning the meaning of the Letter); and
it his clear that the parties always intended that the Letter would be physically
part of the documeut labelled “collective agreement”; and, most importantly,
as we have said, the parties never intended to change the legal significance
of the Letter of Agreement (they had differing views about its legal
significance, but they were agreed that no change would be made and that
someday the issue may go to the grievance procedure and arbitration). In
our view, the Letter of Agreement began life’ as part of the collective
agreement. This was confirmed expressly in 1977. And the Letter has
remained a physical and legal part of the collective agreement ever since.
The Letter itself did not have to be executed by the parties, just as
each and every numbered article is not individually executed. By their
signatures to the collective agreement, the parties manifested their agreement
to all the contents of the document labelled “Collective Agreement”.
The Letter did not have to be called an “appendix”. Its label was
irrelevant: Whether labelled “appendix” or “letter of agreement”, it was part
of the collective agreement’document.
The Letter did not have to be mentioned in the numbered articles. It
was sufficient that it was always intended to be and was made part of the
collective agreement document. If a bystander had asked the parties what
was their collective agreement, the parties would have surely pointed to the
document and replied “That is our collective agreement”. They would not
have said “Part of that document is our collective agreement”. The whole
document was what they considered to be their colIective agreement.
What is the meaning of the Letter of Aweement?
The Union argues that the Letter of Agreement permits an emnloyes
-choose to use a nersonal vehicle or a vehicle providm
Board. The Employer argues that the employee does not have this choice,
and that the Board can decide what means of transportation the employee
will use.
The a&nent concerns the indented third paragraph of the Letter:
‘The Boards agree to furnish alternative means of
transportation to employees who are required to
travel to conduct Boards’ business, should any of
the employees not wish to use their privately-
owned automobiles for such purposes.
The Union argues that, when the provision says that an employee can
have a Board vehicle if the employee does not wish to use a privately-owned
automobile, this means implicitly that the employee can and will use his or
her own vehicle unless the employee does not wish to do-so.
The Employer argues that the indented paragraph does not grant ~to an
employee a right to use ones own vehicle, but rather grants a right not to use
one’s own vehicle, if one does not wish to do so., The employee is not
compelled to use his or her own vehicle. And this is reinforced by the
opening of the next paragraph-“An employee authorized to use his car.....“.
An employee may use his own car only if authorized to do so.
I
8
With respect to this matter of authorization, the Union argues that the
Letter authorizes an employee to use his or her own vehicle, because the
Letter gives the employee the choice of means of transportation. In effect, if
an employee chooses to use his or her own car, the employee is authorized to
use this vehicle.
A cursory glance at the indented paragraph supports the Employer’s
view. Indeed, after just such a consideration, in our preliminary award we
suggested, in ‘an effort to be helpful, that “the Letter of Agreement did not * give employees a right to use their personal vehicles if they chose to do so.
Rather, on its face, this Letter does two things---it obligates the Board to
provide transportation for an employee who doesn’t want to use his or.her
own vehicle; and, it sets out the mileage rates to be paid when an employee
is authorized to use his or her own car”.
However, there is some merit in the Union’s argument, sufficient merit
for us to conclude that, on its-face, there is some ambiguity in the language.
of the Letter of Agreement. It would be possible for the language to support
either the Union’s meaning, or the Employer’s meaning:
In these circumstances, we permitted extrinsic evidence concerning
the meaning of the Letter.
We had the benefit of the testimony of the chief negotiators for both .
asides in the original negotiation of the Letter of Agreement and its
introduction into the 1975 collective agreement. Mr. A. Edmunds had
represented the Union, and Mr. W. Evans had represented the Employer
(actually there were two Boards on the management side-the Liquor
Control Board of Ontario, and the Liquor Licence Board of Ontario).’ These
gentlemen had no disagreement about what they were doing back then.
For years, a liquor licence inspector had to use his or her own vehicle.
Then the Board decided to provide vehicles for some of the inspectors. The
Union was concerned that some employees would have just made
commitments for purchase or lease of a personal vehicle and these
9
employees would be stuck with two automobiles if the Board insisted that
the employee use a Board-provided vehicle for work. As well, some
employees preferred the comfort and safety of their own vehicles, and some
employees had only one parking spot and would have problems if a second . vehicle was thrust upon them. In these circumstances, the Letter of
Agreement was negotiated and it was intended to give employees a choice
of vehicle, either a personally-owned vehicle or.a Board-provided vehicle.
There ivas no doubt about this intention in either party’s ,mind.
In the mid$Os, when the Letter was discussed at negotiations. It
became clear that, by then, the parties had a differing understanding about
the meaning of the Letter. By then, the Employer was of the view that the
Letter did not confer any choice on the employees. The Union continued to
be of the view that the employees had a choice of means of transportation.
In the negotiations for the 1985 collective agreement, both parties introduced
proposals to change the Letter in order to clarify its meaning in the sense that
each one understood it. But there was no agreement and all these proposals
were withdrawn. It ought to have been clear to both parties that their
differences were not resolved.
In our view, given the ambiguity in the Letter of Agreement, we ought
‘I\ to respect the clear understanding of the original
they were doing. r Though they -were not
they were giving employees a choice of means of transportation. And the
\ language, by implication, can support this meaning.
1s the Union estonned from claiming this meaning?
The Employer argues that the Union is estopped from claiming this
meaning because, by withdrawing its proposals at the negotiations for the
1985 collective agreement (which took place in 1987, and the agreement was
not executed until June 1988), the Union represented to the Employer that
10
the Union accepted the Employer’s interpretation that the employees did not
have a choice of means of transportation.
But this view of what took place at the negotiations is simply not
correct. There was no representation by the.Union. As we have already
said, both parties introduced proposals to change the Letter in order to clarify
its meaning in the sense that each one understood it. But there was no
agreement and all these proposals were withdrawn. It ought to have been
clear to both parties that their differences were not resolved:
Somehow, Mr. Harmer was left with the view at these negotiations
that the Union had accepted the Employer’s point of view. But this was not
the impression which would have been left with a reasonable man. The
Union had repeatedly made its point known. At no time did the Union ever
acknowledge that it accepted the Employer’s interpretation. It was just not
possible in these circumstances. for a reasonable person to perceive a
representation by the Union that it accepted the Employer’s interpretation.
In these circumstances, there is no estoppel operating against the
Union.
11
In conclusion, we declare that the Letter of Agreement concerning
kilometer rates is part of the Collective Agreement. And we declare that the
Letter gives employees a choice of means of transportation. The employee
can use his or her own vehicle. Or, if the employee does not wish to use a
personally-owned vehicle, the Board is obligated to provide alternative
means of transportation.
Done at London, Ontario, this 30th day of July 1 1990.
J. Solberg, Member
(Dissent attached) ” I’DISSENT ”
F. Collict, Member
UISSENT
G.S.B. #2499/86 (OLBEU - UNION)
-- ---------
Vice-Chairman J. Samuels has reviewed in some detail, the various matters associated
with this case. Hence, this dissent will not review the details, differences of opinion,
apparent confusion and legal arguments advanced in the case.
However, this Member does dissent with this award, on two grounds, as follows:
1. The parties erred in law, in 1976D7 by
engaging in negotiations associated with a
matter which shall not be the subject of
co$?c$ve bargaining; [CECBA, Section 18 (l)],
2. This panel of the. Grievance Settlement Board
has erred in law in dealing with a matter that
is not within the jurisdiction of a Board
[CECBA, Section 18 (I)].
In view of the above, therefore, the parties imorooerfv engaged in collective bargaining
associated with the means of travel thai would be used by an inspector to perform his
job: - a matter that is exclusively a function of management to determine; and, the
original Letter of Agreement agreed to in 1976/77 should never have been included in
the Collective ,Agreement.
In the result, there is no issue for this Board to decide. That is, the following are
non-issues:
1. Is the subject Letter of Agreement a part of
the Collective Agreement?;
2. What is the meaning of the subject Letter of
Agreement?
2
Additionally, the Board has erred in law in considering a matter that is beyond its
jurisdiction.
The Union has advanced the position that the subject Letter of Agreement can be
negotiated relative to the “terms and conditions of employment”, as set out in Section
7 of CECBA. However, this Section must be read in its entirety to determine its full
meaning. It is as follows:
7. Upon being granted representation rights, the
employee organization is authorized to bargain
with the employer on terms and.‘conditions of
employment, except as to matters that are
exclusively the function of the employer under
.subsection 18 (l), and, without .limiting the
generality of the foregoing, including rates of .
remuneration, hours of work, ‘overtime and
other premium allowance for work performed,
the mileage rate payable to an employee for
miles travelled when he is required to use his
own automobile on the employers business,
benefits pertaining .to time not worked by
employees Y including paid holidays, paid
vacations, group life insurance, health insurance
and long-term income protection insurance,
promotions, demotions, transfers, lay-offs or
reappointments of employe+ the procedures
applicable to the processing of grievances, the
classification and job evaluation system; and
the conditions applicable to leaves of absence.
for other than any elective public office or
political activities or training and development.
[CECBA, Section 7]
The specific matter of,
..a the mileage rate payable to an employee for miles
travelled when he is required to use his own
automobile on the employers business..., [CECBA,
Section 71
3
Must not be confused with,
who will determine whether the employee will use his
own vehicle or whether some other mode of
transportation will be used? [CECBA, Section 18 (1)
.
The rate to be paid is one matter. The question of the mode of transport is an
entirely different issue.
Surely the Employer has the right to determine the “method or procedure” (see
CECBA, Section 18 (1) (a) through which an employee shall travel on government
business - whether by bus, aircraft, personal car, subway, foot, etc.; and CECBA,
Section 18 (1) (a) provides the statutory basis for this position?
Section 7 of CECBA states that bargaining with the Employer relative to terms and
conditions of employment shall take place
. . .
except or to matters that are exclusively the
function of,the employer unders subsection 18 (1) . . .
Section 18 (1) of CECBA reserves to Management, the right to make the decisions
concerning its work methods and procedures and the kinds of equipment to be used.
Either Management runs the operation or it does not1 Who shall decide whether work
shall be perfomted by typewriter or word processor, by quill pen or ballpoint, by
subway transportation or on foot, by personal car or government vehicle? This is
Management’s function and responsibility.
When one cuts through the rhetoric confusion and argument associated withy this
matter, it comes down to the simple fact that there is a break-even point whereby it
is more economically advantageous for the employee to use his own vehicle’ as
4
opposed to a government car, with matters of comfort, style, prestige, etc. becoming
considerations.
What happens, however, if an employee wishes to use his own car - (a Porche
perhaps, or a SAAB)?; but, the Employer is of the opinion that the government should
reflect a reasonably conservative appearance to its electorate and clients?
What if? - the Employer wishes to put “signing” on its vehicles? - and so onl
Counsel for the Union stated that in his situation he has the opportunity to discuss
with his Employer the type of vehicle he will have and the arrangement for
reimbursement of its operation. This Member supports this proposition in the private
sector and, indeed, it is open’to negotiation. In the public sector in Ontario, however,
the matter is not open for negotiation. The parties are constrained by the provision
of Section 18 (1) (a) of CECBA.
Section 18 (1) (a) of CECBA states, in part, that it is the exclusive function of the
Employer to manage -
18 (1) (a) . . . work methods and procedures . . . kinds
. . . of equipment . . .
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction.of a Board.
,
A vehicle is a piece ououipm a “work method”. “procedure”, through w_hich
the work of the Ministry is to be performed. It is a wdrk method that management
will decide - which is outside of the scope of,
1) collective bargaining between the parties, and
2) the jurisdiction of this Board
5
Counsel for the Union has argued that the use of a car, as determined by the
employee, is a matter of dollars; and hence, the matter is negotiable as a term and
condition of employment.
From the viewpoint of the Employer, the issue is the question of the mode of transport
that it will or will not authonze; and it is this function and authority that is reserved to
management as provided for in Section 18 (1) (a) of CECBA.
In summary, therefore,
1) The Employer has the right to determine the
mode of transportation for employees to
pursue government business:
2) . The making of such a decision is not open to
negotiation:
3) This type of decision is a mangement right as
provided for, under Section 18 (1) of CECBA;
and
4) This matter is not negotiable.
The parties therefore engaged in an error in law in negotiating the matter and in
incorporating it into the Collective Agreement; and this Board has erred in law in
deciding a matter which is beyond its jurisdiction.
This Member would have dismissed the grievance on the grounds cited above.
F.T. COLLICT
MEMBER