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HomeMy WebLinkAbout1990-0452.Burton et al.93-05-26 .' :"¡-}~.: .' ,....,,; 4 ,·~'·JI, ( . EMPLOyts DE LA COURONNE ( ... f~!;H"~'~';_ "';' ONTARIO ,: - "'0".' .,; >;:: " . '. ,:.' CROWN EMP~výEES DEL 'ONTARIO .- .~ t:jA",Y;.'__ ",:',,'<." ", GRIEVANCE COMMISSION DE .. 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS r80 DUNDAS STf~EET WEST, SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELÉPHONE: (416) 326-J388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G 178 FACSIMILE/TELÈCOPIE: (416) 326-1396 452/90, 602/90, 615/90, 617/90 IN THB MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Burton et all Grievor - and - The Crown in Right of Ontario (Ministry of Tourism & Recreation) Employer BEFORE: S. stewart Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE C. Dassios UNION Counsel Gowl Ú19 , Strathy & Henderson Barristers & Solicitors FOR THE c. Riggs EMPLOYER Counsel Hicks, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING January 26, 1992 ,- , DECISION In a decision dated March 17. 1992 the Board dealt with a dispute between the parties relating to the issue of ~hether certain provisions of the Co11E!ctive Agreement between the Management Board of Cabinet and OPSEU ("the OPS agreement1l) form part of the Collective Agreement between the Niagara Parks commission and OPSEU ("the NPC agreement"). As noted in that i decision, the-grievance before us is a policy grievance, dated April 5, 1990, which alleges that: liThe Niagara Parks Commission does not recognize and will not comply with the Collective· Agreement between the Ontario Public Service union and the ontario Government". The grievance arose under the 1989 NPC agreement and relates primari~y to the effect to be given to the fOllowing provision of that agreement: ARTICLE 20 - RELATIONSHIP 20.01 The parties agree that the working conditions and terms of employment for Commission personnel not excluded from the Bargaining unit shall be similar to those provided for civil and Public Servants for the Province of ontario, except as modified by this Agreement. At pp. 9-10 of its decision the Board expressed the following conclusions about the meaning of Article 20.01: It is our conclusion that Article 20.01 is a substantive provision which compels the.application of conditions and terms of employment which are "similar" to those contained in the OPS agreement unless there has been agreement to the contrary. In our view, the reference to "similar" contained in Article 20.01 contemplates the parties engaging in a process of applying provisions of the OPS in accordance with the circumstances of their .particular work environment during the term of the Collective ~ --- ----- .:. ¡. 2 Agreement. More" precisely, it is our view that Article 20.01 requires the parties to enter into discussions with respect to determining the terms of "similar" provisions. . If. the parties are unable to reach agreement on this matter they are entitled . to a determination by this Board as to what constitutes J a similar provision. - This conclusion is subject to certain caveats. If the substance of provisions of the OPS agreement have been raised at negotiations and the parties have agreed to modify those provisions then the matter is addressed by the concluding phrase of Article 20.01. If the parties have agreed that a matter will not be included in the NPC agreemênt, the operation of the doctrine of estoppel would preclude reliance on this (sic] Article 20.01 to enforce the adoption of a similar provision. As well, it is our view that it is'clear that Article 20.01 addresses only those terms and conditions in the OPS agreement that ,were in existence at the time the NPC agreement was entered into. .... I The decision concluded as follows at PP". 11-12.. In summary, it is our conclusion that Article 20.01 of the NPC agreement requires the application of t1similar" working conditions and terms of employment to those contained in the OPS agreement in existence at the time the NPC agreernentwas entered into and we so declare. The process of determining the substance of those similar provisions has not yet been undertaken by the parties. ~e direct them' to do so and we will remain seized with the matter of what the substance of those provisions ought to be in the event that the parties are unable to reach agreement. There was an issue between the parties as to whether . certain provisions in the OPS agreement that ~he Union claimed ought to be deemed to be part of the Collective Agreement have, in fact, "been modified'" by the NPC agreement within the meaning of the concluding phrase of Article '20.01. We think it appropriate that this matter be revisited by the parties in light of the Board's conclusion with respect to the appropriate interpretation to be given to Article 20.01 and the process that we have directed to take place. We retain jurisdiction to determine this matter or any other matter that .the parties are unable to resolve in connection with the implementation 'of this decision. ., ..) ,. By letter dated June 16, 1992, Mr. Dassios, on behalf of the Union, advised the Board that the parties had been unable to resolve the matter and requested that the Board reconvene. By: letter dated.June.22, 1992 Mr. Riggs, on behalf of the Employer, noted that an interest arbitration between the parties had been scheduled for August 4, 1992 and requested that the Board. await the decision of the interest board prior to reconvening a hearing in this matter. A hearing was scheduled for january 26, 1993 and convened on that date. At the outset of the hearing the Board was advised that a decision in the interest arbitration had not yet been issued. Mr. Riggs requested that the Board adjourn the hearing in this matter pending the issuance of the interest award. This request was opposed by the Union. After hearing submissions on this matter the Board ruled that the hearing would proceed. Following the hearing the Board received a letter from Mr. Riggs dated April 13, 1993, enclosing a copy of the interest award, dated April 2, 1993. In that letter Mr. Riggs noted that the interest board had-determined that the "tie-in" language that was the subject of the dispute at hand would- continue in a collective agreement to expire on December 31, ·1993 but that at that point the ~ie-in language 'would be removed. Mr. Riggs submitted that in light of this' decision, "no useful purpose would be served by a further extension at this juncture of the tie-in language currently in the expired collective agreement". He argued further that such a direction would be "inconsistent" , 4 with the thrust of tþe interest award. : Mr. Dassios responded by - letter dated April 13,. 1993 in which he noted that the provision of the collective agreemen~ in issue before the Board is one that remains in the collective agreement that continues in force and submitted that the Board should proceed to render a decision. If we were persuaded that our 'decisio~ would have no practical ~alue we would have found Mr. Riggs' sUbmission to have merit. However, given the continuity of the tie-in provisions we are 'not persuaded that our decision is ~ithout practical implications, at least for the term of the current agreement. Accordingly, we reject Mr. Riggs' submission that we ought not to proceed to render our-decision in this matter. We will now turn to the'particulars of the dispute between the parties. . There are nine provisions of the OPS agreement that the Union claimed should be part of' the NP~ Collective Agreement. The references are to the 1986-88 OPS agreement except in the one instance indicated. Those articles are the following: (1) Temporary Assignments - Artic¡e 6.6.1 (2) Article 7.7 - Compressed Workweek (3) Article 9~1 - Scheduled Tour of Duty or Shift (4) Article 16 - On Call Duty : (5) Article 23 - Time Credits while travelling (6) Article 26 -[1989-91] Closure/Divestment/Relocation (7) Article 27.10.1 - Sexual Harrassment . (8) Article 38 - Headquarters (9) Article 36.1 ~ Information to,New Employees Mr. R. McIlveen, Assistant to the General Manager, was the Employer spokesperson at the negotiations that .led to the 1989 o' f 5 Collective Agreement and he gave evidence both with .respect to negotiating history and subsequent relevant events. We will 'deal with his evidencè with respect to each of the items in issue in turn. Temporary Assignments Mr. McIlveen referred the Board to Article 21 of the 1989 Collective Agreement between the parties which contains provisions relating to compensation for temporary assignments. Mr. McIlveen testified that these provisions arose from negotiations w~ich took place in 1987 for the 1987/88 collective agreement. At that time the Union proposed a provision that would require the posting of the position after one month of an acting assignment. This proposal was withdrawn, however some changes were made to Article 21. . No proposals were made at the 1989 negotiations with respect to this matter. Article 6.6.1 of the 1986-88 OPS agreement provided for the posting of temporary positions for positions greater than six months' duratlon and where the dates of the assignment are established at least two months in advance of the commencement of the assignment. The NPC agreement does not contain provisions relating to the posting of temporary,positions. Compressed Workweek Mr. McIlveen stated that he did not recall this issue being / the subject of discussion in the 1989 negotiations. However, he 6 testified that the matter was raised in 1990 negotiations and a provision relating to a compressed work week was agreed to by the parties at that time. This provision does not include .the model work week arrangement which is included in the OPS agreement. In cross-examination Mr. McIlveen acknowledged that in negotiations for the 1990 Collective Agreement the Union took the position that it was entitled to the OPS provision by virtue of Article 20 of the 'Collective Agreement. He further acknowledged that the Union continued tò assert that it was entitled to the provisions of the OPS agreement by virtue of Artícle 20, however he stated ~, that in his mind they had reached a specific agreement with respect to the issue of compressed work week. Mr. R. Atkin, local president of the Union, testified on behalf of the Union. Mr. Atkins was a member. of the Union's 1990 negotiating team. He stated that at the 1990 negotiations the union clearly expressed the position that it was entitled to the provisions of the OPS agreement by virtue of Article 20.01. He. stated that the discussions with respect to the model work' week took place in the context of this discussion. He stated that the parties "agreed to disagree on this matter". In cross-examination Mr. Atkins maintained that the issue of the' model work week was not considered to be resolved at the conclusion of the 1990 negotiations. SchedUled Tour of Duty or Shift Mr. McIlveen refèrred the Board to Article 8.5 of Appendix 7 IV of the 1989 Collective Agreement which he viewed as addressing the substance of the OPS provision. Article 8.5 provides as follows: For the purpose of determining designated holiday entitlements, 'a shift that does not commence and end on the designatedhòliday shall be considered as falling wholly within the calendar day in which the shift starts. Mr. McIlveen noted that this provision has been in the Collective Agreement since prior to 1982. ,The OPS provision is one of general application, not limited to the determination of designated holiday entitlements. On Call Duty Mr. McIlveen noted that the OPS agreement contains separate provisions relating to' on call and standby while the NPC agreement addresses both standby and on call in the same provision. In 1987 the Union proposed that the OPS provision relating to standby be included in the NPC agreement however this proposal was withdrawn and the ,original clause remained in the . agreement. This matter was not raised in 1989. Mr. McIlveen described the provision as more generous than the OPS provision. Mr. R. Atkin testified that there were situations in which employees were asked to be available for ~ork, however the request was not made in writing. In those situations the NPC clause would not apply to provide a benefit to an employe~ while the OPS on call provision would. The NPC provision also refers to availability to Itimmediatelylt return to work, while the' OPS 8 ./ . agreement does not. Time Credits While Travelling Mr. McIlveen testified that he was unable to locate any reference to this' matter having been raised in negotiations~ ~ However, he stated that in his view the substance of this provision would.not generally have application to the Employer's operations as there are only "rare situations" where employees travel in the course of their employment. aeacknowledged, however, that· there were situations in which employees could be required to travel outside regular working hours. ClosureLDivestment/Relocation Mr. McIlveen referred to Article 22.01 of the 1989 NPC I , Collective Agreement which provides as follows: I In -the event that it becomes necessary to permanently i shut down any facilities or operation, the Union shall I receive as much advance.notice as· possible, but in any I case shall be notified of the closure no less than ninety I I I (90) days in advance of the proposed date of commencement , of the closure. I Mr. McIlveen testified that the Union proposed different language relating to this matter at the 1989 negotiations. However, in response to the Employer's position that this matter was addressed by the ArtiCle reproduced above which was already in the agreement the Union withdrew this proposal. Sexual Harrassment I Mr. MCIlveen testified .thathe was unable to recall whether '. I I 9 there was a specific proposal put forward by the Union with respect to sexual harassment in the 1989 negotiations, however he stated that modifications. were made to the grievance procedur~ at that time. He noted that the Employer has promulgated a policy to deal with sexual harassment. Headquarters Mr. McIlveen stated that in his view Article 38 has no application to this Employer's work situation since it applies,to persons working out of their residences, a circumstance that does not arise here. Information to New Employees Mr. McIlveen testified that he recalled this matter being discussed in negotiations at 'some point however he was unable to find any reference to this matter in his. records. He stated that the Employer has handed out Union cards to new employees, something that is beyond what is required in the OPS provision. Prior to addressing each of these items we wish to make some general comments regarding our consideration of this matter. The general expectation at the conclusion of negotiating a collective agreeme~t is that the terms and conditions of the relationship have been explicitly defined and have been finalized. That principle is the essence of the submissions made by Mr. Riggs with respect to each of the items referred to. The principle is 10 :a fundamental one, with which there could generally be no dispute. However, we have concluded in our prior decision that . Article 20.01 provides for a specific exception to this general expectation and is a substantive provision which allows for a change in the terms of the collective agreement. specifically, Article 20.01 contemplates the adoption of "similar" provisions in the OPS agreement except lias modified" by the NPC agreement. The issues raised with respect to the incorporation of Article 27.10.1 of the 1986-88 OPS agreement, Sexual Harassment, and Article 36, . Information to New Employees, are the same. There is nothing in the NPC agreement with respect to these " matters and these matters were not addressed by the.parties at negotiations. The existence of a policy or practice is not the I same as a "term of employment" as referred to in Article 20~01. By virtue of Article 20.01 similar terms of employment to those' in.Article 27.10.1 and Article 36 of the OPS ~greement properly form part of the NPC agreement unless they are modified by the . NPC agreement. Where a matter has not been addressed the NPC agreement cannot be considered to have modified it. In our view, the effect of Article 20.01 operates to incorporate similar terms and conditions of employment to those contained in the OPS agreement unless an estoppel has been established in the context of the negotiations for that agreement. The fact that these matters were not raised and thus were not addressed by the parties does not establish an estoppel. The continuation of the · 11 "tie-in" provision in the 1989 NPC agreement constituted an agreement that· similar terms and coi1di'tions of the OPS agreement· would apply, were not addressed. We have concluded that the matter of Time Credits While Travelling, Article 23 of the OPS agreement, is to be disposed' of on the same basis as the matters referred to in the preceding paragraph. Again, this issue is not addressed in the NPC agreement. While there may be infrequent instances in which this clause may have application, this is not a situation where this clause can be .said to be totally without application to this work environment. By virtue of Article 20.01 a similar provision forms part of the NPC agreement and we so dêclare. The matter of Compressed Work Week, Article 7.7 of the OPS agreement, is not addressed in the 1989 NPC agreement. On the same basis that we have concluded that the foregoing provisions of the OPS agreement ought to be incorporated into the NPC agreement, it is our conclusion that a similar provision ought to be made part of the NPC agreement by virtue of Article 20.01 of the NPC agreement. We are unable to agree with the position of the Employer that the subsequent agreement of the parties, in 19901 to a provision in the 1990 NPC agreement which addresses the matter of a compressed work week.should act to estop the , Union from asserting the incorporation of a provision similar to the OPS agreement. There is a substantive difference in the · 12 provision in the 1990 NPC agreement and the OPS provis~on sought by the Union. There was a conflict in the evidence of Mr. McIlveen and Mr. Atkins a~ to whether the agreement with respect to this provision was made subject to the Union's position that 'it was entitled to the OPS provision. Mr. McIlveen's evidence on this point was more tentative than the evidence of Mr. Atkins. Moreover, we note that the 1990 Memorandum of Settlement specifically provides on its face that the agreement is: "...without prejuqice to any action either party may have initiated, either at the Grievance Settlement Board or Public Service Labour Relations Tribunal." In these circumstances we are unable to conclude'that the Union is estopped in this ~, instance. It is our conclusion that a similar provision'to the OPS provision forms part of the NPC agreement and we so declare. \ The matter of Scheduled Tour of Duty was previously addressed by the parties in negotiations, prior to 1989. It is our conclusion that in this instance the concluding phrase of Article 20.01, "except as modified by this agreement II has application. At p. 10 of the Board's March 17, 1992 decision we noted that while we concluded that Article 20.01 is'a substantive provision which compe+s the application of terms and conditions similar to those.contained in the OPS agreement, we "also noted that this conclusion was subject to certain caveats and made some general statements about those caveats. We contemplated the ~ possibility of an estoppel arising against the Union by virtue of 13 a representation in the course of negotiations that the matter was .not being pursued. We also referred to the concluding portion of Article 20.01 ~hich qualifies ·the substantive entitlement provided for by that provision with the words "except as modified by this agreementll. At p.10 we noted that the qualification in Article 20.01 would apply where "the substance of provisions of the OPS agreement have been raised at negotiations and the parties have agreed to modify those provisions", however we are unable to agree with Mr. Goudge's submission that there must have been specific .reference to the particular oPs'provision and a specific agreement to modify that particular provision .in the course of the 1989 negotiations if this qualification is to apply. This is too narrow a reading of Article 20.01 and one·that would undermine the integrity of the collective bargaining process beyond that contemplated py this unusual provision. In our view, if the' specific subject matter i I . . of the OPS provision that the Union wishes to invoke pursuant to Article 20.01 was raised and addressed by the parties in negotiations prior to the 1989 agreemen~, and the Union agreed that its past agreement with respect to that provision would continue, in. that the clause would continue in the renewed agreement, without qualification, it is our conclusion that· this is a situation where the terms and conditions of the OPS agreement are, in the words of Article 20.01, "modified by this Agreement It . While, as Mr. Goudge pointed out, the provision in the NPC agreement is one of more specific application while the . \ . _14 provision in the OPS agreement .is of general application, it is our view that in the context of Article 20.01, which refers to I Itsimilarlt provisions, the distinction that he urges upon us is I , too fine. In our view, the ,substance of the provisions of the QPS agreement that the union wishes to invoke in this instance have been addressed in the NPC agreement and have been "modified I by this Agreement". Accordingly, we reject the Union's position I that it is entitled to the incorporation of a similar provision to' that contained in the QPS agreement in connection with this matter. . For similar reasons, it is our conclusion that the matter of the On Call Duty provision is also an instance where the latter phrase '. of Article 20.01 is applicable. While there is some difference in the NPC provision the substance of the matter has been specifically addressed in theNPC agreement and, accordingly,. it is our conclusion that the Union is not entitled to the incorporation of a similar provision to that contained in the OPS agreement in connection with this matter. . With respect to the matter of Temporary Assignments, it is our view that the provisions in the 1989 NPC agreement relating to compensation for temporary assignments are of a sufficiently different nature from the provision in Article 6.6.1 relating to the p~sting of temporary assignments such that the provisions in the NPC agreement cannot fall within the exception contained in · 15 the latter phrase of Article 20.01. In our view, this matter ,is properly characterized as a dist'Ìnct,lIterm of employment" within the meaning of Article 20.01. The issue with respect to this matter is whether the Union's proposal of a provision relating to the posting of temporary positions and withdrawal of that proposal in negotiati~ns prior to the negotiations for the 1989 agreement constitutes an estoppel. It is our view that it cannot. This is unlike the issue of the application of the qualification contained ih the latter phrase of Article 20.01, where the issue is what is provided for in the NPC agreement, whether by virtue of previous negotiations or the negotiations immediately resulting in the agreement. If the Union is to be deprived of its strict legal rights in relation to a provision in the current agreement by virtue of an estoppel, the representation must be one made in the context of the existence of the provisions that it is relinquishing. Accordingly, any proposal and withdrawal of that proposal which may be relied on to establish an estoppel must be made in the context of negotiations in which the terms of the OPS agreement that Article 20.01 refers to are known. This is not the case at hand. Given our conclusion that this matter is 'not covered by the latter phrase of Article 20.01 and our conclusion that a representation in negotiations prior to 1989 could not give rise to an estoppel it is our conclusion that a similar provision to Article 6.6.1 of the OPS agreement properly forms part of the NPC agreement and we so declare. , . 16 With respect to the matter of Headquarters, we note Mr. McIlveen's evidence that this provision would have no application to the operations of the »iagara Parks Commission. His evidence ¡ in 'this regard was not challenged and no evidence was adduced by the Union as to any anticipated or possible application of this provision in this employment situation. In our view, a common- sense interpretation of Article 20.01, providing for similar terms and conditions of employment for NPC employees in relation to OPS employees, does not extend to the adoption of provisions that have no current application and no likelihood of future . application to the NPC work environment. Accordingly, we reject the Union's submission that a similar provision ought properly to , be included in the NPC agreement. The Union is seeking the Closure/Divestment/Relocation provision, Article 26 from the 1989-91 OPS agreement. ,This matter was addressed by the parties at negotiations in 1989. In terms of the grievance before us, claiming the implementation of the provisions of the OPS agreement, we have previously concluded that Article 20.01 has application only to the prior OPS agreement, in this instance the 1986-88 agreement. As previously noted, the continuation of the tie-in provision in the subsequent NPC agreement ,would have the effect of importing similar working conditions'and terms of employment from the OPS agreement in existence at the time of that subsequent agreement. Mr. Riggs submitted that to make an order that this provision is properly . . . 17 incorporated into the NPC agreement where it was negotiated , subsequent' to the Collective Agreement under which this grievance arises would be to exceed our jurisdiction.· Mr. Goudge urged us to make such an order, however he did not provide us with any authority in support of the proposition that it is within our juriSdiction to do so. We have reached the conclusion that such an order would be beyond the scope of the grievance before us and, accordingly, we reject the Union's request with respect to this provision. ~ Pursuant to a request of the Board at the hearing Mr. , Dassios forwarded to us the precise language that the Union proposed be incorporated into the NPC agreement. The amendments to the OPS language are of a "housekeeping" nature, essentially reflecting the references to 'other provisions of the NPC agreement and the differences in the structures of the two organizations. It is the position of the Union that the Board should direct the inclusion of the language that it has proposed. Mr. Riggs submitted that if the Board were to accept the Union's position with respect to the.inclusion of similar language it ought to direct. that the matter be addressed by the parties and the Board should remain seized to deal with the matter' in the event that the parties were unable to resolve the matter. - In the event that the precise language of the 1989 agreement remains an issue of any practical significance, we retain ¡¡. , - . ~ 18 jurisdiction to deal with this matter. Any further dispute between the parties would appear to be appropriately <dealt with on the basis of written s~bmissions. In the event that any issues remain unresolved between the parties and there is any dispute about the process for making submissions, the matter can be addressed to this p~nel through the Registrar. Dated at Toronto,' this 26th day of May , 1993. . ')trYç~;r ... . S.L. stewart - vice-Chairperson ..~ 4~/~ E. Seymour - Member m1 Û~Ä~·-- M. O'Toole - Member