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HomeMy WebLinkAbout1989-1193.Kampman & Skelding.90-07-04"~'~*~ ONTA RIO EMPL 0 Y~'$ DE ~A COURONNE ~., ,. CROWN EMPLOYEE$ DE L 'ONTA RIO GRIEVANCE C,OMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STRE~ WEST SUITE 21~, TORONT~ ONTAR~. MSG ~Z8 TELEPHONE/T~L~PHONE: 180, RUE OUNOAS OUEST, ~UREAU 21~, TORONTO [ONTARIO]. MSG 1Z8 FACSIMILE/~L£COPJE ~ (416~ 326-~396 i193/89,1194/89 1195/89,1154/89 1210/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU {Kampman/Skelding) Grievor - and - The Crown in Right of Ontario (Liquor Licence Board of Ontario) Employer - and - BEFORE: R.J. Roberts Vice-Chairperson F. Taylor Member F. Collict Member FOR THE L. Steinberg GRIEVOR: Counsel Koskie & Minsky ~ Barristers & Solicitors FOR THE M. Fleishman EMPLOYER: Law Officer Crown Law Office Civil Ministry of the Attorney General REARING: February 15, 1990 INTERIM AWARD At the outset of the hearing in this mas~er counsel for the Employer made a preliminary objection to jurisdiction'and requested that the Board issue an interim award upon this objection before entertaining the merits of the grievance. We granted This requess. Thereafter, only documentary evidence was entered. The parties agreed that the Board would be able to rule upon the preliminary objection without hearing any testimony'from witnesses. According to the submissions of the Union, for a considerable number of years the Employer made a practice of paying Liquor · Licensing Inspectors who worked on the 4:00 p.m. to midnight shift a meal allowance at the dinner rate, i.e., $17.00 per meal. At some point in time, however, the Employer unilateraily'decid~d ~ha~ - the meal allowance for these inspectors should only be at the lunch rate, i.e., $9.00 per meal. When they became aware of Employer's decision, the five grievors herein filed the 'grievances leading to the present proceeding. The Union submitted that 5his long-standing past practice of the Employer estopped it from unilaterally making the change until the Union had an opportunity to resile reliance upon this past Practice and this would not occ~ ~n~il next round of collective bargaining. In its submissions, the Employer contested the allegations cf the Union that there was a consistent past practice of paying the dinner rate for the meals of i'nspectors on the 4:00 p.m. to midnight shift. Then, turning to the substance of its preliminary objection, the Employer submitted that, in any event, this Board did not have jurisdiction to entertain the claim in the foregoing Grievances. The reason for this, it was submitted, was that the payment of any meal allowance at all was completely voluntary with the Employer. There was nothing in the Collective Agreement nor the Crown Employees Collective Bargaining Act, it was submitted~ to empower this Board to take jurisdiction over a naked claim of estoppel such as that advanced in the present case. In connection with this submission, the Employe[ directed attention to Articles 27.1 (b) and 27.10 (a) of the Collective Agreement, which read as foilow~: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 Definitions: ... {b) "Grievance" means a difference arisiag from the interpretation, application, administration alleged contravention of the provisions of Agreement. 27.10(a) The Crown Employees Grievance Settlement Board shall not be authorized to alter, modify or amend any part of this AGreement nor shall the Crown Employees Grievance Settlement Board Give any decision inconsistent with the provisioas of this Agreement. 3 These provisions of the C611ective Agreement, it was submitted, reinforced the point of the Employer's argument, that the Crown Employees Grievance Settlement Board was not like a court of general jurisdiction. It solely derived its jurisdiction from the Act and the Collective Agreement. In the absence of a disagre~ement between the parties involving individual or collective rights created by the Act or Collective Agreement, it was sdbmitted, the Board did~not possess jurisdiction to entertain the merits of a claim. This, it was emphasized was the case with the present claim, which derived f~om voluntary action on the part of the Employer. In response to these assertions on behalf of the Employer, the Union suggested that the General management rights clause, sec~ion 18 (1) of the Crown Employees Collective Bargaining Act, provided the necessary jurisdictional "anchor" to permit the Board to review the merits of the claim in the present case. It was ~he exercise of management rights, it was submitted, in a consisten% way over 20 years which created the estoppel against the abrupt change which management attempted to make in the present case. Subsequent to the hearing in this matter the Employer directed the attention to the Board to Re OPSEU and Ministry of Transportation and Communications (1981), G.S.B. ~455/80 (Paimer]. A copy of this award also was sent by the Employer to the Union, and thereafter, counsel for the Union furnished us with wri~te~ comments concerning the applicability of this authority to the case at hand. In the Ministry of Transportation-and Communications case, some 127 individual grievances were filed when the Ministry decided to charge employees for parking in its lot after having permftted them to park for free over a considerable period of time. It see~s that the decision to charge for parking was made when some of tke operations of the Ministry were moved to a different site. There was nothing in the Collective AGreement touching upoa tke question of Parking. In light of this., the Ministry made a similar objection to that in the present case. The Union clai~aed in response that jurisdiction was conferred by the management rights clause of the Crown Employees Collective ,Bargaining Act. It was submitted that in the exercise of its discretion under the management rights clause, "An employer has a duty to act fairly a~d reasonably and ...a breach of that duty is a breach 0r the administration of the Collective Agreement by ~he employer." Id~ at p. 5. As in the present case, the Employer based its submissions upon the limited jurisdiction of the Grievance settlemen~ Board. The Board was referred to Re Halad¥ and Ministry of Tourism and Industry (1979), G.S.B. ~94/78 (Swan), emphasizing Professor Swan's statement that "We do not have any inheren~ jurfsdiction 5o do justice -- or what we may conceive to be justice -- or to provide remedies, no matter how desperately a part.icular 'case may cry out for relief", OPSEU, supra, at p. 11. The Board declined jurisdiction, stat%ng, in pertinent part: The doctrine of "fairness" is a novel' one of recent vintage and obviously must be used with care for, as the Employer here has noted, taken at its broadest, it would apply to any decision made' by it touching on the employment relationship .... In looking at the cases where this doctrine has been applied certain features are noticeable. First, it would seem that the challenged exercises of discretion relate to points specifically mentioned in the relevant collective agreements. In our view, however, this doctrine does not exEend to the problem with which we are faced by the instant grievance. Here the evidence is clear that the Employer has formulated a policy by which certain benefits are extended to members of the bargaining unit according so a policy they have evolved. There is no obligation placed upon the Employer to provide these benefits by -the collective agreement, nor are these mentioned explicitly or by implication. Nothing prevents ti~e Employer from withdrawing them completely or giving them completely. They merely have stated that they will ~ive such benefits at certain locations and have done so. There is no allegation that their own policy has been contravened detriment of a~y individuals. Rather, the policy itself is attacked. In our view this, if arbitrable, would really a case of "management by arbitration", the often discredited bug-bear of early arbitral jurisprudence .... Id. at pp. 22- 23 In the view of the Board, the "fairness" doctrine was primarily applicable to the administration ok specific provisions of' the Collective Agreement and was not available essentially to transform a voluntary act of management into an Obligation which could be enforced against management in a grievance proceeding. We recognize that here, the Union does not rely upon the "fairness" doctrine but instead upon the doctrine of promissory estoppel. In the present case, it is said that the EmployeE's voluntary act of paying the dinner rate for meals over an allegedly lengthy period time estopped it from unilaterally reducing the zate to the lower "lunch" rate. And we acknowledge that, as the Union pointed out in its argument, few, if any, estoppels last beyond the next round of collective bargaining. In this s~se, the claim here is time-limited whereas the claim in the case before Pcofessor Palmer was not. Even so, however, we are persuaded by the reas.oaJ, ng of Professor Palmer in that case and the reasoning of Professor Swap in Halady that to entertain the merits of the grievances herein would be to engage in a forbidden extension of our jurisdiction. As Professor Palmer so aptly pointed out, if a policy volantar[iy adopted by management "can be attacked a~d replaced b~ the views of arbitrators, what facet of management would be immune?" Id. a~ p. 23. Moreover, it seems to us that it would hardly be conducive to good industrial relations to adopt a position which would allow voluntary benefits freely given by the Employer to be turned into binding obligations, even for the limited duration of an es~oppe!. Apprehension of such a result might well "~hili" the adoption of policies affording such benefits or even lead to review of curre~¢ policies with a view to curtailing such voluntary indulgence~ before they mature into practices capable of raising estoppels~ Where neither the Collective Agreement nor the Crown Employees Collective Bargaining Act obligates the Employer to provide benefits, "nothing prevents the Employer from withdrawing them completely or giving them completely." Palmer, at p. 23. For the foregoing reasons, we are persuaded that we must decline jurisdiction of the Grievances in the present case. DATED at London, Ontario this 4th day of July 1990. R. J. Robe~. Vice-Chairperson F. Taylor, ~' Member F. Collict, Member .