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HomeMy WebLinkAbout1996-1735.Carter.98-03-13EMPLOY& DE LA iXURONNE DEL’oNlARKl COMMISSION RCGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 128 1 &.I, RUE DUNDAS OUESr; BUREAU 800, TORONTO (ON) M5G lZ.9 DE TELEPHONE/TkLrfPHONE: (416) 326-7388 FACSIMILE/TiL~COPIE : (410) 326-1396 GSB# 173 5196 OLB#245/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Carter) m and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE N. Dissanayake Vice-Chair FOR THE UNION J. Noble Legal Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER M. G. S herrard Counsel Ogilvy Renault Barristers & Solicitors Grievor Employer HEARTNG March 4, 1998 2 INTERIM DECISION The grievor Ms. Colleen Carter has grieved that the employer violated article 20 of the collective agreement in that she has not received long term income protection benefits notwithstanding that she has been totally disabled within the meaning of article 20. The employer took the position at the commencement of the hearing that it wished to raise a preliminary objection that a grievance claiming LTIP benefits from the employer was inarbitrable because the only obligation the employer had under the collective agreement was to pay premiums for an insurance policy. The union contended that the employer should not be allowed to argue that the grievance was inarbitrable because it was estopped from doing so, and because the employer had waived its right to object to the arbitrability. Union counsel further argued that the employer had in any event, expressly and in writing come to an understanding with the union that it would not argue against the arbitrability of any LTIP grievance. It was submitted that an understanding reached between the union and the employer "must mean something" and that if the Board allows a party to ignore such understandings with impunity, the Board will be condoning and promoting very bad labour relations. This issue of the employer's entitlement to raise inarbitrability was argued solely on the basis of documentary evidence and an Agreed Statement of Fact filed before the Board. I have concluded that this issue can be disposed of on very narrow grounds. Therefore only the facts pertinent to that grounds need be set out here. The agreed facts indicate that in February 1996, the respective counsel for the union and the employer corresponded about a LTIP grievance of grievor Chowdhury (GSB File 0357/95), as to whether the employer would or would not raise a preliminary objection to the arbitrability of that grievance. This series of correspondence culminated with employer counsel writing the following letter dated May 8, 1996 to union counsel: This will confirm our understanding of the position of LCBO in the above-noted case, and in other LTIP arbitrations. The LCBO will not be raising a preliminary objection in any LTIP cases that: . The matter is inarbitrable because the employer is not bound to pay benefits under the collective agreement, but rather is simply required to pay premiums; or . The union is estopped from relying on the strict terms in the collective agreement as a result of having not exercised its right to do so in the past. The employer may wish to raise other preliminary objections in any particular case, depending on the specific facts in those proceedings. I trust this clarifies our position in this regard. The parties have agreed that subsequently the following took place: 8. The matter of the LTIP grievance of Jean Paul Cardinal, filed on January 31, 1996, was scheduled for hearing at the GSB on July 10, 1996. The LCBO did not raise a preliminary objection with respect to arbitrability in that case, and a settlement was achieved as between the OLBEU, the LCBO, and the grievor, which was executed by the parties in July of 1996. 10. The parties appeared before the GSB on July 25, 1996, in the matter of the LTIP grievance of Giddings. At that hearing, the issue was a preliminary matter concerning the disclosure of the grievor‘s claim file from the insurer or the employer, to the Union. In his award dated August 4 1, 1996, (Exhibit 3) arbitrator Kaplan ordered disclosure of the complete file. The employer did not raise a preliminary objection with respect to arbitrability in the Giddings case. The grievor did subsequently receive LTIP benefits from the insurer, as a result of the insurer having been provided with further medical documents. The Board concludes that the fact that the employer did not raise a preliminary objection to the arbitrability in the Cardinal and Giddings grievances is consistent with the understanding set out in employer counsel's letter dated May 8, 1996. It is clear that in the letter of May 8, 1996 employer counsel confirms that an "understanding" was reached between herself and union counsel. Thus she commences by stating "This will confirm our understanding". It is also clear that the understanding reached applied to ("the above-noted") Chowdhury case, as well as "other LTIP arbitrations". The understanding included the following - that in "any LTIP cases", the LCBO will not be raising a preliminary objection "that the matter is inarbitrable because the employer is not bound to pay benefits under the collective agreement, but rather is simply required to pay premiumsN. There is no dispute that the present grievance is a LTIP grievance. Therefore, the understanding set out in the letter was clearly intended to encompass grievances such as this. The employer does not argue to the contrary. Nor is there any dispute that what the employer is attempting to do is exactly what it undertook not to do - that is to argue that a LTIP grievance is inarbitrable on the grounds that the employer is not bound to pay benefits but only to pay premiums on an insurance policy. The "understanding" reached is in effect an agreement reached between the parties. It was not an understanding reached lightly or casually. It was reached between legal counsel following considerable debate and deliberation. The understanding was formalised by incorporation in a written document, which was copied to an official in the Human Resources Dept. Other than claiming that it is entitled to reconsider its position, and arguing that the legal requirements for estoppel and waiver have not been established by the union, the employer has not offered any valid reason as to why it should be entitled to unilaterally elect to ignore an agreement it entered into with the union. The evidence is to the effect that the objection to the arbitrability of this grievance was raised for the first time on February 13, 1998, just two days prior to the scheduled arbitration hearing. Essentially, the employer has conducted itself as if the understanding did not exist. The Board has concluded that the employer is not entitled to raise the arbitrability issue in this case. This was not a unilateral representation made by the employer. It was an understanding which is equivalent to an agreement, reached deliberately by the parties, whereby they set out the ground rules that would govern their future conduct with regard to LTIP arbitrations. If sound labour relations are to prevail, a fundamental prerequisite must be that parties are able to rely on agreements reached between them. To allow a party who has come to such an agreement to then turn around and ignore the very agreement it made, is to make a mockery of everything that sound labour relations stands for. That is exactly what the employer is attempting to do here. 6 The Board finds therefore that as a result of the understanding it reached with the union on May 8, 1998, the employer is precluded from raising an objection to the arbitrability of the present grievance. This Vice-Chair is only seized with the present grievance. I am not clothed with authority to make any findings or orders that bind any other grievance, as requested by the union. Whether the employer is precluded from raising an objection to the arbitrability of any other LTIP grievance and under what circumstances the understanding reached between the parties may be brought to an end, are matters that will have to be determined in light of the specific facts of a given case. As a result of all of the foregoing, the present grievance will proceed on its merits on the next scheduled hearing date. Dated this 13th day of March 1998 at Hamilton, Ontario. Nimalmissanayake Vice-Chairperson