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HomeMy WebLinkAbout1990-0452.Burton et al.92-03-17 ---.-. L. -.. -. "1 .- ~ ONTARIO fMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 1111 G.RIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2roo, TORONTO, ONTARIO. M50 IZ8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILEITÈLÈCOPIE: (4 '6) 326- 1396 452/90, 602/90, 615/90, 617/90 IN THE· MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Burton et al) Grievor - and - The Crown in Right of Ontario (Ministry of Tourism and Recreation) Employer BEFORE: S. stewart Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE S. Goudge, C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE c. Riggs EMPLOYER Counsel HiCkS, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING November 5, 1991 " ; DECISION In a decision dated October 17, 1991, the Board dealt with one of the three areas of dispute between the parties. At the outset of the continuation of the hearing on Novembe r 5, 1991, the Union withdrew the grievances of full-time employees relating to a second area of dispute. Accordingly, there remains one area of dispute between the parties, which relates to the issue of whether certain provisions of the collective agreement between the Management Board of Cabinet and OPSEU for the term January 1, 1989 to December 31, 1991 (lithe OPS agreement") form part of the collective agreement between OPSEU and the Niagara Parks Commission (lithe NPC agreement"). The grievance is a policy grievance, dated April 5, 1990, and alleges: "The 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 Union's position is that certain provisions of the OPS agreement, referred to below, form part of the NPC agreement. The Employer's position is that these provisions do not form part of the NPC agreement. The Union bases its position on Article 20.01 of the NPC Collective Agreement which provides as follows: ARTICLE 20 - RELATIONSHIP 20.01 The parties agree that working conditions and terms of employment for ",I ;J " \ çt~ 2 Commission personnel not excluded from the Bargaining Unit shall be similar to those provided for Civil and Public Servants of the Province of Ontario, except as modified by this Agreement. Reference was also made to Article 14 of the COllective Agreement, which provides as follows: ARTICLE 14 - EMPLOYEE BENEFITS 14.01 The Commission agrees to implement the employee benefits negotiated between representatives of The Ontario Public Service Employees Union and the Government of Ontario on a similar basis subject to its own requirements and procedures and effective on the same dates as the Ontario Public Service. Basic Life Insurance Supplementary and Dependent Life Insurance Long Term Income Protection Ontario Health Insurance Plan Supplementary Health and Hospital Insurance Vacation and Vacation Credits Holidays Bereavement Leave Materni ty L'eave Adoption Leave Short Term Sickness Plan Termination Payments tvorkers I Compensation Special and Compassionate Leave Entitlement on Death Dental Plan The Commission agrees to pay.its share of tne premium as negotiated between the representatives of The Ontario Public Service Employees Union and The Government of Ontario subject to the payment of the balance of the premium by an employee through payroll deduction and subject to the eligibility requirements provided under such Plans. (Appendix V1) \ 3 l In particular, the Union alleged that the following provisions of the OPS Collective Agreement should be deemed to be part of the NPC Collective Agreement: ( 1 ) Article 6.6.1 - Temporary Assignments (2 ) Article 7.7 - Compressed Workweek ( 3 ) Article 9.1 - Scheduled Tour of Duty or Shift (4) Article 16 - On Call Duty (5 ) Article 17 - Meal Allowance (6 ) Article 19 - Holiday Pay (7) Article 23 - Time Credits while travelling (8) Article 26 - Closure/Divestment/Relocation (9 ) Article 27.10.1 - Sexual Harrassment (10) Article 38 - Headquarters (11 ) Article 22 - Kilometric Rate (12 ) Article 36.1 - Information to New Employees (13 ) Article 37 - Joint Consultation Committee In the course of the hearing the Union amended its position with respect to which Articles of the OPS agreement ought to be deemed to be included in the NPC agreement. The Union withdrew its position that the Articles relating to Heal Allowance, Holiday Pay and Kilometric Rate ought to be deemed to be part of the NPC agreement. The Union did not adduce any viva voce evidence. The Employer adduced evidence of past practice on the basis that Article 20.01 is ambiguou s. Mr. R. McIlveen, who is "'j A "">.' } 4 ~k~ presently General Manager of the Niagara Parks Commission, testified on behalf of the Employer. prior to holding the position of General Manager, Mr. McIlveen was director of Human Resources. He has been employed by the Niagara Parks Commission since June, 1981 and has been involved in negotiations from 1982 to the present. Mr. role I 1 veen testified that Article 20.01 in its present form was part of the Collective Agreement at the time he commenced his employment with NPC. It was his understanding that this provision had been in existence since approximately 1974. Mr. McIlveen testified that the manner ~n which the OPS Collective Agreement affected negotiations was that the Union would bring matters to the table, some of which were based on the OPS COllective Agreement. In cross- I examination, Mr. McIlveen acknowledged that he was "not sure" whether the proposals made by the Union at I negotiations made spe~ific reference to the OPS agreement. Howeve r, he referred to matters contained in the OPS I agreement that wer,e raised by the Union in bargaining. Mr. I McIlveen testified that those issues would be discussed and that the COllective Agreement between OPSEU and NPC would be amended to include provisions contained in the OPS Collective Agreement if the parties agreed to do so. In cross-examination, Mr. McIlveen acknowledged that the Employer agreed, outside of collective bargaining, to , 5 , implement a practice with respect to granting of leave of absence for the local president for purposes of negotiations. He acknowledged that this practice was in accordance with the leave provisions of the OPS agreement bu~ stated that he did not consider the Employer's agreement to be an application of the provisions of Article 20.01 of the NPC agreement. There was no suggestion that the provisions of Article 20.01 were referred to in the context of this discussion. Mr. McIlveen referred to the predecessor of Article 20.01 which states as follows: ARTICLE 2 - RELATIONSHIP The parties agree that working conditions and terms of employment for Commission personel not excluded from the Bargaining Unit shall be equivalent to those provided for Civil and Public Servants of the Province of Ontario, except as modified by this Agreement. The Niagara Parks Commission will apply all Orders-in Council, Regulations and Directives affecting employment in the Ontario Civil and Public Service to employees of the Niagara Parks Commission. Wherever there is ambiguity or where any title or rank is inapplicable within the Niagara Parks Commission, such Order-in-Council, Regulation or Directive will be applied in a manner consistent with the intent of the Order-in Council, Regulation or Directive. In addition, where applicable, the Commission agrees to implement all agreements negotiated from time to time between the representatives of the Civil Service Association of Ontario (Inc.) and the Government of Ontario in the same manner and effective on the same dates ~ ~, \ ~ 6 as in thepOptario Public Service. I It was Mr. Goudge's submission that the interpretation of Article 20.01 advanced ~y the Union is an interpretation which gives meaning to its terms. He argued that ,Article 20.01 requires that the terms of the OPS agreement be implemented unless there is a specific written provision to the effect that the terms of the OPS Agreement would not have application, with the exception that if the parties did agree at negotiations that a particular provision would not be included, the Union would be estopped from arguing that it had application. In Mr. Riggs' submission, Article 20.01 does not have th~ effect of importing all of the provisions of the OPS Collective Agreement to the NPC Collective Agreement. Mr. Riggs argued that Article 20.01 , reflects an acknowledgment of a relationship between the OPS bargaining relationship and the NPC bargaining relationship. Mr. Riggs argued that the parties are unlikely to have intended to agree to the adoption of provisions of the OPS agreement in this manner. He referred to Article 14 and 20 of the NPC agreement where the parties have specifically agreed to the implementation of certain provisions of the OPS agreement. Mr. Riggs submitted that the choice of language contained in Article 20.01, particularly when contrasted with the language of the relationship clause as it previously existed, supports the conclusion that this provision does not have the effect I 7 . of deeming all provisions of the OPS Collective Agreement to be part of the NPC Collective Agreement. The essence of the dispute between the parties is the interpretation to be given to Article 20.01 of the Collective Agreement. In our view, this provision is ambiguou s. A reading of this provision, particularly in the context of the phrase "except as modified by this Agreement" suggests that Article 20.1 provides for the adoption of all of the provisions of the OPS agreement in their entirety, and in an unrestricted way, unless a specific agreement is reached to the contrary. Howeve r , the fact that the heading of this provision is "Relationship", the prior reference to "similar" in Article 20.01 and the more precise language respecting the implementation of the terms of the OPS agreement contained in Articles 14 and 22 of the NPC agreement suggests that Article 20.01 does not contemplate the unqualified adoption of the provisions in the OPS agreement. The evidence with respect to the manner in which provisions of the OPS agreement have been incorporated into the NPC agreement by virtue of collective bargaining is really of no assistance in resolving the ambiguity inherent in the provisions of Article 20.01, as the evidence did not establish a relationship between these proposals and , I , ,. '1 ) 8 ') Article 20.01 of the Collective Agreement. Similarly, the evidence with respect to the adoption of a practice of granting leaves of absence which is similar to that provided for in the OPS agreement is of little assistance. ~1e evidence in this regard does not establish that the adoption of this practice was carried out in accordance with a mutual understanding of the parties that Article 20.01 required such action. In contrast to the language of Article 20.01 in its current form, the language of its predecessor clearly provides for the implementation of the OPS agreement in the Niagara Parks Commission employment relationship. The change in the language of the NPC agreement and the deletion of the specific language providing clearly for the implementation of those terms in their entirety does not support the Union's contention that Article 20.1 requires the Employer to automatically implement all provisions of the OPS agreement. In our view, the language of the Collective Agreement as a whole supports the conclusion that Article 20.01 does not mandate the immediate implementation of the provisions of the OPS agreement. In contrast to Article 20.01, in Article 14.01 the parties have chosen precise and unambiguous language, specifically requiring the Employer '" 9 { to "implement" the employee benefits negotiated in the OPS. Although we agree with Mr. Riggs' submission that Article 20.01 of the Collective Agreement does not require the immediate implementation of the provisions of the OPS agreement we do not accept his position that Article 20.01 has only the effect of confirming a relationship between OPS collective bargaining and NPC collective bargaining. We agree with Mr. Goudge's submission that this interpretation fails to give any real meaning to the provisions of Article 20.0l of the Collective Agreement during the term of the agreement and renders its effect a "pious hope". The provisions of Article 20.01 must and can be given force and effect. 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 liS imilar" contained in Article 20.01 contemplates the parti~s engaging in a process of applying provisions of the OPS agreement in accordance with the circumstances of.their particular work environment during the term of the Collective Agreement. More precisely, it is our view that Article 20.01 requires the parties to enter into -\ , ( ~ 10 ' 1 discussions with respect to determining the terms of the "similar" provisions. If the parties are unable to reach agreernenton this matter they are entitled to a determination by this Board as to what constitutes a similar provision. L 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 , agreement, the operation of the doctrine of estoppel would preclude reliance ,on this 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. The language of the predecessor to Article 20.01 specif~cally provided for the implementation of agreements in the OPS that may be made in the future. The language of that provision refers to such implementation "in addition" to the matters previously referred to. When these two provisions are read together there is a clear implication that Article 20.01 in its ,- .- 11 T current form would not encompass changes in the OPS agreement reached subsequent to the parties entering into their own agreement. Article 14.01 of the NPC agreement reinforces our view in this regard as it is specific in contemplating the implementation of future changes while Article 20.01, in its current form, is not. The grievance in this instance was filed when the parties were operating under the 1989 agreement, which was entered into on April 26, 1989. The OPS agreement was entered into subsequently, on September 5, 1990. Accordingly, at the time of the grievance the Union was not entitled to require the Employer to implement the provisions of the 1989/91 OPS agreement. Howeve r , when the parties subsequently entered into a memorandum of agreement, on November 30, 1990, for the term January 1, 1990 to December 31, 1990, the effect of Article 20.01 was to mandate working conditions and terms of employment similar to those contained in the OPS agreement in effect at the time the November 30, 1990 memorandum was entered into. In summary, it is our conclusion that Article 20.01 of the NPC agreement requires the application of "similar" working conditions and terms of employm~nt to those contained in the OPS agreement in existence at the time the NPC agreement was entered into and we so declare. The process of determining the substance of those similar ß'1 " -, \ "\ 12 . provisions has not yèt been undertaken by the parties. We direct them to do so and ~e 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 petween the parties as to whether certain provisions in the OPS agreement that the Union claimed ought to be deemed to þe 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 parti~s 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 ,.. , 13 , decision. ! Dated at Toronto, this 17 day of Ma rc h , 1992 ~ . Q)Jsr¡~~- S. L. Stewart - Vice-Chairperson / //L ~~~ 'r---------- E. Seymour - Member 11l ~ () ì7~ M. O'Toole - Member