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HomeMy WebLinkAbout1989-1731.Group.91-07-12 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L "ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS "180 OUNDAS STREt~-I' WEST, SUITE 2100, TORONTO, ONTARfO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326- ;388 ;80, RUE DUNDAS OUEST, BUREAU ;2~00, TORONTO (ONTARIO). fVISG ;Z8 FACSIMILE/7'~L~'COPtE : (416] 326-1396 1731/89 ZN THE ~,TTER OF ~BZTi~tTION. CRO~N EHPLOYEEB COLLECTIVE B~GAZNING ACT Before ~ GRZ~CE ~E~~~ BO~ OLBEU (Group Grievance) Grlevor - a~14 - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: A. Barrett ~ice-Chairperson M. Vorster Member F. Reeve Member FOR THE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE A. Burke EMPLOYER Counsel ~ Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HE]%RING December 5, 1990 May 9, 1991 - ! - This is a group grievance brought on behalf of'all casual employees of the employer who ~erformed work in retail establishments, except for duty ~ree.stores~ on November 11, 1989. In this collective a~reement there are three distinct groups of employees: full-~ime, permanent Dart-time, and casuals. Each group has a different set of wages, benefits, and workino conditions. Some provisions of the collective agreement apply to all ~rouDs, but many apply to only one or two of the groups. An example, which gave rise to this grievance, is the treatment of people who work on a statutory or paid holiday. Pursuant to Article 7.1, Remembrance Day, November llth is a paid holiday. If a full-time employee works on Remembrance Day, he or she is entitled to three times his regular rate pursuant to Article 7.4. If a permanent part-tim~ employee works on Remembrance Day~ he or she is entitled to two times the regular rate pursuant to Article 38.3. If a casual employee works on Remembrance Day, that employee is entitled to one and one-half times the regular rate pursuant to Article 31.2(a). Basically, casual employees do not enjoy paid benefits under the collective agreement, but are entitled to 8 percent additional pay in lieu of benefits, such as vacation, pension and insurance. The current collective a~reement covers the period from January 1, 1989 to December 31, 1990. Bargaining for it started - 2 - in October i988 and continued until March 22. 1989, when aqreement was reached. When bargaining commenced, the employer was aware that Remembrance Day in 1989 would'fail on a Saturday. It was anxious to open its retail stores that day, but not.if it had to pay the premiums set out above. Accordingly~ the first employer proposal was to delete Remembrance Day and Easter Monday from the' list of paid holidays set out in Article 7.1. Both oC those days then would have become regular working days. The union refused to seriously consider the proposal, and replied, "If you want to open the stores, you will have to pay the premium." Management wanted to open the stores, but not pay a premium. Bargaining continued and the employer dropped its reques't to eliminate Easter Monday. Still the union demurred. Finally, the employer proposed a compromise: The stores would open and employees who voluntar±!Y agreed to work that day would be given a lieu day to be attached to their vacation credits. This proposal was set out in a letter from Mr. Sandy Rae, the manager of staff relations, to Mr. John Miles, the president of the union, and is set out below. "March 20, 1989 Mr. John Miles 'President OLBEU 737 Kipling Avenue .Toronto, Ontario MSZ 5G6 - 3 - Dear Mr. Miles: Re: Remembrance Dav It is agreed that should the Employer, during the course of this agreement, open for business on November II and the employee elects to work, a floating holiday will be added to the employee's vacation credits. However, it is understood that where an employee elects to observe November ~" ~ as a paid holiday under Article 7.1 he/she will be allowed to do so. , It is further understood that where an employee works on November~,~ Article 7.1 and 7.4 shall not apply. As such the employee shall be entitled to payment at straight time for normal hours of work. This letter shall only apply to the Retail Division~ except for Duty Free Stores. Yours =ruiy, A.R. Rae, Manager Staff Relations/Occupational Health & Safety" Two days later, on March 22nd the union put forward its final proposal, which formed the basis of the agreement which was reached that day. With respect to the Remembrance Day issue, the union wrote; "Union agrees with letter dated March 20, 1989." It was decided to incorporate this letter of March 20th into the collective agreement as a letter of agreement. There was. one change made to the letter, however, before it was incorporated into the collective agreement. As the letter stood on March 20th it referred only to full-time employees, as evidenced by the reference to Article 7 only. About'one month after agreement was reached, and when the parties were drawing up their formal - 4 - a~reement, someone mentioned to Mr. Rae that the ieuter, of agreement did not cover permanent pDrt-time emoloyees. Mr. Rae spoke to Mr. Miles about it, and it was agreed that permanent part- time employees were to be covered. Thus, the third. Daracraph of ~he letter o~ understanding was amended to include the articles in the collective agreement that pertained to Der:,~:~=~t part-time emp$oyees as follows: "It is further understood that where an employee works on Novembmr 11,. Articles 7.t, 7.4~ 38.1 and 38.3 shall not apply. As such the employee shall be entitled to payment at straight time for normal hours of work." On its face then, the letter of understanding clearly relates to full-time and part-time employees, but not to casuals. Mr. Rae says this omission of casuals was simply another oversight, and that it was the intention of the parties ali along 5o include all three groups of employees in the Remembrance Day agreement. Mr. Rae testified that he was chief spokesperson for management in negotiatin~ this collective agreement, and that the usual process is to negotiate terms first for the full-time employees, then to consider which of those terms shall apply to the permanent part-time and to the casual groups, with or without modifications. It is Mr. Rae's contention that he intended the letter of understanding to apply to casuals as well, but simply - 5 - · over-looked the matter when he was correcting the ietser of understanding to include par~-timers.~ Mr. Rae concedes that at no time during the bargaining or any s~bsequent discussions, was the issue of casuals mentioned by -~--- ~ party. The employer nevertheless asserts that the union should be estopped from asserting a claim, for time-and-a-half Day for Remembrance Day on behalf of casuals because there was a common assumption made that casuals would Ibe included in the letter of understanding. The employer points to a heading On the wri%sen union proposal of March 22nd, which stated, "Unless otherwise specified all provisions also apply to PPT's and Casuals, as appropriate." That is the representation, says the employer, that it relied upon in assuming the Remembrance Day article would cover casuals. The union responds that there is no clear and unambiguous representation flowing from that preamble to its final proposal. Its scope and the qualifiers are not discussed. The words "as appropriate" must be interpreted in connection with each proposal. Full-time and permanent part-time employees get vacation credits, and thus could benefit from the lieu day provision. Casuals do not get vacation credits or guaranteed hours of work, and thus could not benefit from a lieu day. While it is appropriate to group full-time and PPT's in the letter of understanding because they - 6 - acquire the same benefit, it is not appropriate to so casuals who do not obtain the benefit. Also in its ~roposal the union did no more than agree to the letter of specific-~=mmy and direc~iy related only to fui~-~ime emDiovees,~ _ and thus is "otherwise specified" as set out,~- the ~r ...... ule. Even more signi[icant to the union in asser~in~ there was no meeting of the minds on casuals, is the evidence that when the fact of the omission of PPT's was brought to the attention of Mr. Rae one month later, he still made no mention of casuals, nor attempted to include them in the letter of understanding. The employer, relying on Re: Hallmark Containers Ltd~ and Canadian PaDerworkers Union, Local 303 (1983) 8 L.A.C. (3d) 117 asserts that representations made at the bargaining table, may found a promissory estoppel, and further that the silence of One party in response to the other party's clear explanation of what its proposed wording would mean, and acceptance of the 'wording, constituted a representation to the proposing party that it accepted its meaning. This is not what happened .in this case though. The preamble to the union's final proposal is far too vague and unspecific .to amount to a representation about any particular clause and its application to casuals. - 7 - We would need very cog~nn and compellina evidence tha~ there was a real meetina of the minds and understanding abeut casuals before we would find an estomDel. The evidence here fails far short of establishino t~hat everyone knew the clause would aoolv to casuals too. This is particularly so where casuals do net obtain a benefit from the ........~e~=~ of understanding,_ when the full- time and part-time people do. The employer asserts that the "opportunity to work" is a benefit to casuals, but that is a pretty ephemeral benefit. Mr. Rae's stated intention to obtain for management a premium-free Remembrance Day openinq, and the union's acceptance of a compromise proposal ~iving it the benefit of lieu days, does not amount to a ~epresentation by the union that no premium would be paid to anyone. Each party to collective agreement neqotiations has a different set of hopes and aspirations and a different agenda as to how those hopes and aspirations can be achieved, at least in part. Once the a~reement isl 'reduced to writing, it should take very clear and compelling evidence for a board of arbitration to infer a different meanin~ from that which is clearly stated and unambiguous. That evidence would have to show a common understanding and intention that the meaning of the written words was to be ignored in favour of another meaning. We do not have that kind of evidence here. Accordingly, the ~rievance succeeds, and the casual workers who worked on Remembrance Day in 1989 shall be reimbursed for their work pursuant to Article 31.2 of the collective agreement "~'~ ' , ..... . ,= will remain seized of ~ur~s~ic~ion in the event there is any.. difficu~-~v implementing, the award. DATED at Toronto, this %Zth day of ~u[~ , 1991. A. 'person M. Vors~er. Member .... · " " ! Dissent " (~ithouc ~ri~_re.n F. Reeve, Member reason)