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HomeMy WebLinkAbout1991-2411.Parkinson.93-01-08_~ . ~""~v~ ONTARIO EMPLOYES D'E LA COURONNE '~ ' CROWN EMPL 0 YEES DE L'ON TA RIO ' GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR[O, MSG ZZ8 . TELEPHONE/TEL~-PHONE: (4 16I 326-~388 2411/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Parkinson) Grlevor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: J. Robert's Vice-Chairperson E. Seymour Member D. Clark Member FOR THE I. Roland GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE E. Reddie EMPLOYER Staff Relations Advisor Ministry of Transportation BOARD ORDER Attached is the Memorandum of Settlement which the parties agreed would be made an Order of the Board. DATED at Toronto, this 20th day of August, 1992. J. Ro~9~ts, vice-chairperson ./ E. Seymour, Member .. D. Clark', Member MEMORANDUM OF SETTLEMENT IN'THE MATTER OF A GRIEVANCE BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND THE CROWN IN RIGHT OF ONTARIO' MINISTRY OF TRANSPORTATION (THE MINISTRY) RE:EDWARD PARKINSON GSB FILE # 2241/91 OPSEU # 92B072 In full and final settlement of the above captioned grievance, dated April 22, 1991, the parties agree without prejudice or precedent to resolve the matter on the following terms: 1. The Ministry agrees'to pay the griever (Edward'Parkinson) $1,000.00; less all statutory and other deductions. 2. The Ministry shall'implement these Minutes of Settlement within 60 days of the date of receipt of the signed agreement. 3. Either party may make these Minutes 'of Settlement an order of the Grievance Settlement Board. 4. The grievance is withdrawn. Dated~s //~ day of /~7~, 1992 at Toronto. FOR THE UNION ~/7~-~--~ EDWARD PARKINSON FOR THE~INISTRY Dated this 7th day of May, 1992 at Toronto. ONTARIO EMPLOY'~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE £[00, TORONTO, ONTARIO, M5G 1Z8 TELEPHONE/TELEPHO&'E. f4 15~ 325- 1338 150, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG IZ8 FAC$1Mi£EIT~L~COPIE , [4 iSI 328-r396 2451/91, 2469/91, 2511/91, 2657/91, 2658/91, 389/92, 390/92 IN THE MATTER OF AN ARBITP~TION Under THE CROWN EMFLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE 'SETTLEMENT BOARD BETWENN OPSEU (cowie et al) Grlevor - and - The Crown in Right of Ontario (Ministry of the Environment) ~mployer BEFOR~ M. Gor~ky .~ice-Chairperson J.C. Laniel Member M. O'Toole Member FOR THE G. Leeb GRIEVOR' Grievance Officer Ontario Public Service Employees Union FOR THE C. Zabek EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING June 23, 1992 1 ISSUE There were seven grievances filed in this matter, all of them raising the same issue. By agreement, we heard evidence with respect to the grievance of Ed Sennema (390/92) which was to be the representative grievance binding on all of the other cases. Mr. Sennema's grievance, dated October 23, 1991, is as follows: As of Oct. 1, 1991 I was dismissed from active duty in the Emergency Response Program. I have participated in this Program since 1987 and I continued to offer my services at the time of my dismissal. Service in this program represents a separate job and wages Qutside of my .regular working hours and wages.~ I am therefore of the opinion that I have been wrongfully dismissed coHtrary to article 27.8.2 of the collective agreement. In addition I have served in this Program for a longer period of time than some members presently on the Duty Roster contrary to article 24.6.1 regarding seniority. Finally I was not given sufficient warning with respect to my dismissal also contrary to article 24 regarding job security. The settlement desired states: Reinstatement to the Emergency Response Program and including lost wages and accrued benefits. BACKGROUND In a document dated April 1991, prepared by the Emergency Response Program Working Group for the Assistant Directors Committee of the Ministry of the Environment, entitled Emergency Response Program - Review of Options fo~ Cost-effective Delivery - (Exhibit 4), there is contained in the Introduction, at p.3, 2 certain background information about the Emergency Response Program {the "Program"): The Ministry of the Environment initiated a. comprehensive Emergency Response Program throughout Ontario in June of 1986. An integrated field response program was estab- lished to compliment the Spills Action Centre (S.A.C). S.A.C. operates a province-wide toll-free telephone number for receiving reports of spills and other urgent environmental matters on a twenty-four hour per day basis. Field response was provided by Environmental Officers, on a rotating duty roster, which provided one Environmental Officer available to respond to emergencies in each of twenty-four Emergency Response areas, generally correlat- ing to District Offices. An April 1989 report entitled "Cost ~nequities of the Emergency Response Program" reviewed a number of options for more cost-effective delivery of the Emergency Response Program, which included: a) consolidation of emergency response areas, where spill activity was low; b) various shift~work arrangements. Based on this report, some Districts were combined for emergency response coverage and the number of Environ- mental Officers on duty at one time was reduced to twenty~two persons. A further review of the implementation of shift work was conducted by the Operations Division Assistant Directors Committee. · A December 1990 report, addressing human resource, budgetary and administrative matters related to a week-day evening shift, was accepted by the Direc- tors Committee. · The proposal was tabled with the Employee Relations Committee in December 1990, and affected staff were subsequently requested to comment and provide suggestions. - As a result of staff input, the Directors Committee temporarily set aside the April 1, 1991 proposed implementation date and requested that a Working Group be established to review the options sug- gested by staff. 3 The mandate of this Working Group was "To review and analyze emergency response options and to make a recommendationls) to the Assistant Director's Committee". The Grievors were Environmental Officers staffing the Progra~ after it was initiated in June of 1986 and they continued to do so until it was terminated in October of 1991. Some of the Grievors had staffed the program on a continuous basis from 1986 and others from 1987. From the date of implementation of the Program in 1986, Environmental Officers were permitted to volunteer to serve on the duty roster, and this system remained in place until October of 1991 when the system was changed.. Approximately eight people were on a duty roster, with one of them being scheduled as on-call to respond to field emergencies at any one time. Those Environmental Officers comprising a duty roster were expected to ensure that another member would be available to fill in for them if they were unavailable for any reason, and this was said to be a fairly frequent occurrence. When an Environmental Officer was scheduled to be on-call, as pa~t of the rotating duty roster, he was entitled to receive standby and on-call premium payments under the collective agreement, and in the case of a response to a field emergency, was entitled to receive payment for overtime. The Grievor testified that his average payment for being the available Environmental Officer on the rotating duty roster would average $1300 for each period when he served in that capacity, and that in 1990 his payments for serving in the Program was equal to approximately 20 per cent~of hi~ regular salary of $55,000 per annum. EVIDENCE ON BEHALF OF THE GRIEVORS Evidence of Ed Sennema Mr. Sennema testified that: 1. He was employed in the Abatement Section of the Toronto West District in 1973. In May of 1989 he assumed a position with the Investigation and Enforcement Branch. 2. He volunteered for and was placed on the duty roster of the Program in .the summer of 1986, and continued in that capacity when he transferred to the Investigation and Enforcement Branch. He was officially removed from the Program in October of 1991. 3. On October 2,. 1991, he sent a memorandum (Exhibit 2A) to Jim Richardson, District Officer, Toronto West, as follows: It has come to my attention that my name is no longer on .- the EmergenCy Response Duty Roster. It would appear that I have been dismissed from the Emergency Response Unit. I would like to know if this is true and if so, I would like to know-the reason behind my dismissal. I am requesting a written response to this inquiry on or before October 11, 1991. 4. ~e had no official notice of the change effected prio~ to October 1991, although he was aware that changes were being discussed. In August of 1991 he became aware of the intention of the Ministry to alter the Program, but he had no accurate knowl- edge of what. those changes would .be, although it was his understanding that they were expected to result in lesser payments if the Program remained voluntary. 6. He would pe.riodically hear of proposed changes through discussions with other persons participating in the Program, and he was aware of ongoing discussions relating to changes as ea-rly as April 1991. He had also heard that certain recommen- dations that had been made to change the Program (the nature of which changes he was unfamiliar with), had not been implemented. 7. As a result of his hearing from participants in the Program about changes that were being planned, he sent a memorandum (Exhibit 1)~ dated August 19, 1991 to Ken Waldie, the Area Superintendent, Toronto West Abatement Office, as follows: This memo is to advise you that I am volunteering my~ services for the Revised E.R. Program of August 8, 1991. 6 8. At the time he sent the. memorandum {Exhibit 1), he was unaware that he would be removed from the roster, and he reiterated that prior to October 1, 1991 no management person had informed him that he would be removed from the list of participants. It was his impression that the Program would continue to function on a voluntary basis and that he would remain on it as he had since its inception. 9. The response of Mr. Waldie to Mr. Sennema's memorandum of August 19, 1991, is as' follows: As you are aware the new E.R.P. Program places I & EB staff in.the third priority of eligible staff. If you still wi.sh to volunteer please provide a letter from your Director giving his concurrence. 10. Mr. Sennema said that "in a way" he was surprised when he discovered that his name had been taken off the list of participants in the Program, and he did not understand why this had happened. He also "found it strange" that he was required to obtain the concurrence of his Director in the investigation and Enforcement Branch in order to be considered for selection to participate in the revised Program. 11. When he was first appointed to the .Program in 1986, any Environmental Officer could volunteer to serve in it, and it did not matter whether he was with the Abatement, Technical Support or Investigation and.Enforcement Branches, When he was in Abatement, there were a number of Investigation and 7 Enforcement Branch Environmental Officers who applied for and were appointed to the Program. In his view, as the Program was constituted in 1986, it was only necessary that an applicant be a member of the bargaining unit, and it did not matter which branch he was with. 12. He denied having seen Exhibit 4 as he claimed that it had never been sent to the members of the Program in the Investi- gation and Enforcement Branch. 13. He also denied ever having seen Exhibit 5A, being a memorandum dated August 7, 1991, to District Officers from Ron Clark, Director, Human Resources Branch, 'Re: "Emergency Response Program": The Emergency Response Program Working Group met August 6 and 7 and the attached 'proposal was developed. The Regional Directors have agreed that the Bargaining Unit representative for your Region will visit each district office during the week of August 12 to discuss this proposal. Your regional representative will be contact- ing you within the next few days to arrange a meeting date. Your participation, and as many of your staff as possible, is requested. Please distribute the attached memo to all Emergency Response staff, and those who may be eligible for this Program. 14. He also denied having seen the memorandum, dated August 7, ~9~1, from Ron Clark, Brian Howden, Co-Chairs, Employee Relations Committee RE: "Emergency Response Program" (Exhibit 5B): We are please to advise you that a proposal has been developed as an alternative to shiftwork being imple- mented for Emergency Response coverage~ Attached is an outline of this proposal and background of its development. During the week of August 12, a Bargaining Unit member of the Emergency Response Working Group will attend your district office to address any questions you may have and refer them to the working Group if-~ecessary. It.is intended that the new Emergency Response roster be finalized by September 3 and implementation commence October 1, 1991. We would like to thank the Working Group for their co- operative effort during the review of the Emergency Response Program. 15. The outline of the proposal is contained in the "Report on a Revised Emergency Response Program" prepared by the Emergency Response Program Working Group.datEd August 8, 1991, for the Ministry of the Environment (Exhibit 5C): REVISED.EMERGENCY RESPONSE PROGRAM PARTICIPATION AND COMPENSATION Effective October 1, 1991 the Emergency Response Program will be revised to meet financial constraints. a) The program is intended to operate on a voluntary basis if the number of participants ensure program viability. Not withstanding the above, participa- tion will be mandatory. b) ELIGIBILITY TO PARTICIPATE Recognizing that emergency response is an abatement program, the Duty Roster will be constituted in the following order: i) Qualified Abatement Environmental officers 3 and Environmental Officers 4 who normally respond to spills as part of their duties.. ii) Other qualified Abatement Environmental Officers 3 and Environmental Officers 4. iii) Other qualified staff as necessary to make the prog r~m viable. Compensation for the Standby/On-call periods will be as per the conditions of the Collective Agreement. The new program will be comprised of six Standby periods of 7.5 hours in duration with the balance of the remain- ing hours to be On-call. The fol. lowing will make up the ~evised schedule-for the ERP areas. Monday - Friday 00:00 - 08:15 On-call 16:30 - 24:00 Standby Saturday 00:00 - 08:30 On-call 08:30 - 16:00 S~andby 16:00 - 24:00 On-call Sunday 00:00 - 24:00 On-call Statutory Holiday 00:00 - 08:30 On-call 08:30 - 24:00 Standby 16. He did not feel that.he .needed to get the approval of his $ Director as he had already obtained that approval when he initially joined the Program in 1986. 17. In cross-examination, Exhibit 2, being a memorandum dated November 17, 1991, to himself from Jim Richardson "Re: Participation in Toronto West's ERP Program" was shown to him, which memorandum is as follows: Thank you for your memo dated 91 10 02. As you are aware, your name does not appear on the ERP roster commencing October 1st, 1991. During previous dis- cussions with Ken Waldie and myself, we advised you that the ministry was changing the ERP program significantly on Oct. 1, and that this was going to be the likely outcome. In accordance with~ the program, if the 'district is pursuing a voluntary program as Toronto West wishes to, the ERP roster is to be filled by district staff at the EO 3 or 4 level. If, in the mind of the District Officer, a viable roster cannot be struck with district staff, he can, with the Abatement Manager's permission draw on other non-district abatement staff. Only if the roster cannot be struck with abatement staff can other MOE staff be considered. This is the standard for the entiPe province. I have attached a copy of Mrs. Reid's announc- ement to staff for your information. With respect to IEB staff participation, I feel that you fit into Category III - Other Ministry staff. Further, I feel that since the program is intended for EO 3's and 4's that you would only be eligible after considering any Category III EO 3 or 4 applicants. You were also advised by Ken Waldie on August 19, 1991 that you would not be eligible to participate without the written permission or your Director. Neither Ken nor I have received copies of any permission. In light of the above, you are not at this time, eligible for the Toronto West ERP roster. I would like to point to you that your absence from the roster does not in any way ~reflect upon your conduct as an ERP; it is merely the result of program changes. Thank you for your participation and support these last few years~ 18. He denied that he had ever had any discussions With Mr. Waldie and Mr. Richardson as set out in the second sentence of the first paragraph of Exhibit 2. 19. In re-examination, he acknowledged that he was aware, prior to August 23, 1991, that there were three different categories of participants contemplated under the revised Program and that he fell into the third category. 20. He stated that no special qualifications were required of volunteers when the Program was implemented in 1986, although, over time, it became necessary to have completed a St. John's Ambulance course and an environmental law course. These requirements were already in effect when he transferred to the Investigation and Enforcement Branch, although he could not remember exactly when they came into effect. EVIDENCE ON BEHALF OF THE EMPLOYER Evidence of Kenneth Waldie Mr. Waldie testified that: 1. As Area Supervisor in ~he Toronto West Abatement Office, he reports to the District officer, and as part of his' duties supervised Environmental Officers who ensure compliance with the Environmental Protection Act throughout the District. He is also responsible for supervising the Program in the Toronto West District, and had this responsibility during the period ~h~n Mr. Sennema was in the Program. 2. The Program was under review in 1990 and 1991 because it was deemed not to be cost-effective. 3. He referred to Exhibit 3, being Review o$ ERP Weekday Evenin9 Shift Option - Impacts and Implementation, prepared by the Operations Division - Assistant Directors Committee, dated November 1990 .and December 1990. This document was circulated 12 throughout the Toronto West'District Office and was posted on the bulletin board and'in the lobby of the office on Overlea Boulevard. 4. He took steps to ensure that all persons being part of the Program were aware that it was being reviewed in anticipation of its being revised. 5. The response to EXhibit 3 was negative because the staff did not like the shift work option contained in it. 6. Management then established the working group ~esponsible for the preparation of Exhibit 4, Those participating in the Program were requested ~o comment oa the report. Mr. Waldie referred to page 4 of the Exhibit 4 which sets out the members of the Working Group which was made up of 13 members, seven of whom were bargaining unit members and one of whom, Barry King, was a member of the Union staff. 7. The Working Group continued to meet after Exhibit 4 was released, and the Report on a Revised Emergency Response Program, prepared by the Emergency Response Program Working Group, dated August 8, 1991, (Exhibit 5C) was issued. 13 8. Exhibit 5C was circulated throughout the Toronto West Office and posted on 'the bulletin board which was said to be easily accessible. 9. Among the changes effected by the revised Program were reductions based on changing Sunday from standby to on-call and by reducing the payment to one dollar per hour for on-call time. 10. In addition, the eligibility for participation in .the Program was changed as set out in the above-quoted portions of Exhibit 5Co i1. In Toronto West~ the duty roster was intended to be-made up °of between five and six people, with the possibilty that this might be raised to eight. The rationale for the change was that fewer than five people on the duty roster would result in too much stress for those taking part, and that more than six people would be too many to keep up the general level of competence. Subsequently, five persons were chosen to serve in the Program from the Toronto West District Office, all of them being from category 1. 12. The final decision with respect to the changes in the Program was not made'until December of 1991,:~ and ongoing discussions took place until that time. The final changes to the Program 14 were developed with the participation of the Union members of the Working Group during the ongoing series of negotiations. 13. Reference was made to Exhibit 6, being a statement of minimum requirements for participation on the Emergency Response Program (ERP) duty roster, which Was said to have come into existence after the initiation of the ~program in 1986: *Minimum Requirements for Participation on the Emergency Response Program (ERP) Duty Roster 1. Have successfully completed the Ministry's Environ- mental Responders Course or equivalent. 2. Be designated as a Provincial Officer. 3. Hold a valid'St. John Ambulance Emergency First Aid Certificate or equivalent. 4. Have attended a minimum of three simulated or actual spill incidents, 5. ~Have successfully completed the Environmental Law Course, 6, Be recommended by his Section Manager. 7. Be recommended by the appropriate District Officer and approved by the Abatement Manager taking into account the Factors to be Considered in Evaluating Emergency Response Duty Roster Candidates. 14. Reference was made to the Environmental Officers in the Investigation Enforcement Branch and the Abatement Branch. These officers were said to have different functions: the Abatement Branch responds to spills and c~mplaints and performs administrative inspections under the .Environmental Protection Ac~. The Investigation and Enforcement Branch is 15 responsible for conducting investigations that may lead to prosecutions under that Act. 15. Management in the District Office was concerned about the continued use of Investigation and Enforcement Branch Environ- mental officers in the Program because there was a concern that their regular work might be compromised if charges had to be laid arising out of situations.where they had served in carrying out the Program, This was said to be one of the reasons for placing Environmental Officers in the Investiga- tion and Enforcement Branch in category 3. ARGUMENT OF THE DNION · Counsel for the Union argued: 1. That the Employer had behaved unreasonably and unfairly in failing to give adequate notice of the intention to revise the .Program. 2. As a result, the change implemented on October 1, 1991 came as a "complete surprise" to Mr. Sennema. It was submitted that nothing had been conveyed rd' him prior to that date that would indicate, with any clarity, that there was an October 1, 1991 deadline for implementing the projected changes or what those changes were going to be. In particular, there was no 16 indication to him that he would require permission from anyone in supervision in order to be able to participate in the Program. 3. The Grievor had served on the duty roster of,the Program since 1986, and as a result of his service had come to rely on the additional income received by him. In these circumstances, the Employer was said to have behaved unreasonably and unfairly. 4. The Employer was said to have been unreasonable in failing tQ consider the impact of the changes in the' Program on Mr. Sennema, whic~ visited upon him a disproportion'ate share of the financial burden re~ulting from the implementation of the changes. 5. Relying on the "unique circumstances" involved in this case, counsel argued that the Board had jurisdiction to intervene to furnish a remedy for the allegedly unfair and unreasonable conduct of the Employer and to direct that the parties meet to negotiate a settlement that was fair and reasonabler consider- ing the length of time that Mr. Sennema had been a'participant in the Program and the financial loss suffered by him as a result of his abrupt removal. 6. In the alternative, the Union argued that the Employer, by its conduct, was estopped from unilaterally altering the way in which the Program had been administered. 7. Referrence was made to the Canadian Union of Public Employees, Metropolitan Toronto civic Employees' Union, Local 43 and the Municipality of Metropolitan Toronto, being a decision of the Ontario Court of Appeal released April 10, i990, where Tarnopolsky J.A., stated at pp.37~39: There is~ therefore, a place for some creativity, some recourse to arbitral principles, and some overall notion or reasonableness. See, for example, David Beatty, ~The Role of the Arbitrator: A Liberal Version" (1984), 34 U.ToL.J. ~36. The presence o~ an implied principle or ~erm of reasonable contract administration was also acknowledged by Craig J. in Ward~ir, ~uu~r_~, at pp. 476- 77. Since I have concluded that the Board did not interpret the collective agreement in a patently unreasonabl~ manner, there is no need to examine the Board's findings on the merits. Suffice it to say that, as set out above, the Board heard a number of witnesses on both sides of the question and concluded that the June 10, 1982 directive was unreasonable. The major grounds for this finding were: 1. the absence of any Consultation with those whose health and safety were likely to be affected by the directive; .2. the absence of any employer interest suffi- cient to justify the change in policy; and 3. the testimony of several drivers/attendants to the effect that they felt the policy would be both counterproductive and dangerous. There is nothing in the Board's findings of fact which could be depicted as patently unreasonable; they were scarcely challenged by the dissenting Board member. Moreover, in imposing a duty on the Employer to exercise its discretion to make rules with disciplinary conse- quences in a reasonable fashion, the Board gave the collective agreement an interpretation that it reasonably and logically could bear. 8. Counsel for the Union also referred to Oaklands Regional Centre and OPSEU Local 249 (Haefling), dated March 24, 1992 (unreported), where the b~ard stated,at p.12: There is a strong judicial and arbitral support for the Union's position that an employer, in exercising its discretion, or in the exercise of its ~anagement's rights, .must act fairly and reasonably, having regard to the interests of employees under the terms of a collec- tive agreement. In at least two recent decisions, the courts in Ontario have accepted and endorsed the view that a "standard or reasonableness," or what is also referred to as a principle of "reasonable contract administration," ought to apply in the labour-relations context specifically when an issue arises relating to the exercise of management discretion: see, for instance, The Municipality of Metropolitan Toronto and Canadian Union of Public EmployeesL Metropolitan Toronto Civi~ Employees' Union, Local 4~ (1991), 74 O.R. (2d) 239 (CoAo), and Re WardAir Inc. and Canadian Air LiDe Fli~ Attendants Ass'n et al. (1988), 63 O.R. (2d) 471. In other words, the principles relied upon and the basis upon which the decision was reached by the arbitrator in the Government of Nova Scotia case, to which the Union referred in argument, are legally binding principles which an arbitrator is compelled to consider and apply in the grievance-arbitration process in this province. 9. Referrence was made to Anderson 3005/90 (Watters), at p.7, where, in following the Metropolitan Toronto Civic Employees' ~ case, cited above, the Board stated: The central issue before us is whether 'the right to assign and schedule work is furthe~ fettered by an -- implied duty on the employer to administer the collective agreement in a reasonable manner. In our judgement, our question must be answered in the affirmative 10. At p.8 of the Anderson case, the Board stated further: Indeed, an analogous approach was taken in Baylis [1762/89 (Samuels)]. The Board there determined that "even in the absence of any specific language in th~ agreement, it is implicit in the collective agreement that management will administer the collective agreement in good faith" {page 3). While the Employer's good faith was not challenged in these proceedings, we think that the same inference should be made in respect of the hotion of reasonableness. The Board has been persuaded that the Union has demon- strated a prima facie case of unreasonableness on the part of the Employer. We find that the facts relied on by the Union support this conclusion. In this case, as noted above, the Employer elected a~ainst the calling of evidence. We were, as a consequence, not given any reason for the change in the long standing practice which has adversely affected this grievor. In the absence Of an explanation as to why there was a change in the status quo, we are prepared to hold that the Employer acted unreasonably. The Board orders, therefore, that the grievor be returned to the day-time hours as worked prior to January, 1991. 11. Reference was made to Baytis, also referred to in Anderson, where the Board stated at p.3: In our view, even in the absence of any specific language in the agreement, it is implicit in the collective agreement that management will administer the collective agreement in good faith. For example, management cannot engage in fraudulent misrepresentation with impunity. If, in order to lure a prospective employee away from some other job, management promised an employee a certaiD salary level on the grid, and then, after the employee left the previous position and came to work for the Ministry, the employee was paid at a lower level, in our view the employee would have recourse before this Board. This would be an example of bad faith in the administra- tion of the salary provisions of %he collective agree- ment, and this Board has the:authority to provide a remedy. 12. Counsel for the Union also referred to OPSEU (Cri~ps) and the Crown in Right of Ontario (Ministry of Correctional Services3 and the Grievance Settlement Board, a decision of the Supreme 2O Court of Ontario, Divisional Court, dated November 29, 1988, where Southey, J., stated: We do not consider this is a case in which we should deal with the question of whether there is a requirement that matters within the exclusive right of management must be dealt with by management reasonably. In this case, the Board relied on a decision of Reid, J., giving the Judgment. of this Court in Lavigne on March 22, 1983, in which he dismissed an application to' set aside a decision of the Board. The short passage quoted in the award in this case included the following: "We interpret the Board's decision to mean that the employer's right reasonably to limit the area of search rested on s.18 of the Act (Management Rights) and not on Art. 4.3 of the Collec.tive Agreement". The right recognized by Reid J. was an employer's right, reasonably, to limit the area of search, and he found that right to be derived from the management'rights provision in s.18. we are not persuade~ in this case that the Board, after quoting from the Levigne decision, then abandoned consideration of whether the"restrictiom in this case was' reasonable. The Board said later in the award: "In our opinion, the employer has an obliga- tion to operate in a reasonably efficient manner. Restricting the a~ea of search accom- modates that objective. "Similarly, the Board cannot agree that the employer's policy and practice in placing geographical limitations on the area of search is unreasonable...". The Board then referred to the particular competition in thfs case and said in these particular circumstances, the employer was justified in declining to process the grievor's application. On the strength of these statements in the award, it appears to uS that the Board did consider the reasonable- ness of the policy in question. As to whether management rights must be exercised reasonably, we say only that, if there is such a limitation on management's rights, it cannot be implied by anything contained in article 4 of the Collective Agreement. ~or these reasons the application is dismissed with costs. 13. Counsel for the Union also relied on the doctrine of estoppel. It was submitted that the Program represented a well-estab- lished method of the Employer's distributing overtime which the Grievors had come to rely upon, The practice was an outgrowth of a policy in writing which was set out in Exhibit 3, and in that sense was in the nature of a public document. This document was well known to Environmental Officers .throughout the province and amounted to an undertaking from senior management to employees and to the 'Union that the practice would remain in effect. 'In the circumstances, %t was argued that all non-abatement staff, including the Enforcement and Investigation staff who were part of the Program, should be allowed to continue to remain on the duty roster estab- lished by the Program.until the~ chose to leave it. In support of the estoppel argument, counsel for the Union relied on Re Eurocan Pulp & Paper Co. and Canadian Paper Workers Union. Local 298 (1990),. 14 LoA.C, (4d) 103 (Hicklin- g), where the arbitrator stated, at pp.121-2: 2. Detrimental reliance The employer further submitted that there was no detri- mental reliance. There was no debate as to whether detriment was required or as to the date at which that detriment is measured. In the 1983 article on promissory estoppel, and again in the paper entitled "Estoppel Revisited", the opinion was expressed that the proper time to determine whether or not it would be unconscion- able for a person to gO back upon its word is the time the promisor resiled from the promise: see 17 U.B.C.L. Rev. at pp.209-10, and Labour Arbitration 1987 C.L.E. at 5.1.12, citing the opinion of Dixon J. in Grundt v. Great Boulder Proprietary Ltd. (1938), 59 C.L.R. 641. It might be noted that Dixon J.'s opinion has now been cited with approval by the B.C. Court of Appeal and must now be deemed to be part of the law of this province: see Litwin Construction (1973) Ltd. v. Pan (19881, 1988, 52 D.L.R. (4th) 459 at p.470, 29 B.C.L.R. (2d) 88. Detrimental reliance in the collective bargaining context may consist of loss of the opportunity to bargain a position into the collective agreement: see, for example, the Canadian National Railway case, su_~p~r_~, and Re Cassair Mining CQrp. and U.S.W., Locals 6536 & 8449, ~upra, at p.281. Had the employer wished to change the policy to which it had committed itself by the settlement of the grievance in 1985, it~ could have raised the matter in negotiations in 1986. It would have been the party seeking the change · and in my view the onus was.upon the company to raise the matter. By not doing.so, the company led the union to believe that the policy would continue, as indeed it did. Had the company raised the matter the union would have had the opportunity of seeking to persuade the employer to make the issuance of meal tickets a term of the bull session agreement, if not of the B.C.S.L.A. The compan- y's inaction led the union to believe that the entitle- ment would continue. In fact it did so. In these circumstances, I find the company estopped from denying the entitlement of the tour workers to meal tickets on designated days off for the duration of the 1986-88 agreement. As indicated earlier, the agreement expired on June 30, 1988. Thus until then the employees were, prima facie, entitled to the benefit that the employer had agreed to provide. Hence, even if one assumes that there was no contractual basis for the union's claim, the company was estopped from denying the workers' entitlement. ARGUMENT FOR THE EMPLOYER RESPONSE TO THE ARGUMENT-THAT THE EMPLOYER HAD BEHAVED IN AN ~NFAIR AND UNREASONABLE MANNER: 1. In the Canadian Union of Public Employees case, Tarnopolsky, J.A., referred (at p.36) to: "The final union argument ... based on a notion of reasonable contract administration," and went on to note the union's reliance of the decision on the Court of Appeal in Greenberg v. Meffer~ (1985), 18 DoL.R. (4d) 548. It was argued that the Greenbe~g and Meffert case concerned the imposition of an implied principle or term of reas6nable contract administration to a clause in an agreement that gave an employer "sole discretion" to disburse commis- sions to the agent in the event that her employment was terminated. It was further submitted that we were not dealing with a case where a provision in the collective agreement was made subject to some form of discretion. Rather, it was the position of counsel for the Employer that the Program was outside of the boundaries of the collective agreement and the Employer's right to amend or discontinue the Program was unfettered. 2. Referring to the Oaklands Regional Centre case, it was noted that there the question of discretion arose in the context of the application of an article in the collective agreement, and that, at p.12, it was suggested that the employer was in violation of the collective agreement by failing to consult "The Employer-Employee Relations Committee" over the decision to continue the 6:00 a.m. to 2:00 p.m. shift arrangement. The clause in question stated: Changes in scheduling policy will be discussed prior to implementation at the Employer-Employee Relations Committee meeting and may be discussed subsequent to implementation by either party at such meetings. 3. Reference was made to the Anderson case, at p.7, where the Board noted that the employer's rights under 18 of the Crown Employees Collective ~argaining Act dealing with the right to assign and schedule employees' hours of work had been fettered by articles 7, 8, and 10 of the collective agreement. It was submitted that there was no such limitation in the case before us. We were also asked to note that, in following the Metropolitan Toronto Civic Employees' Union case, the Board stated that the Court of Appeal had considered Greenberg v. Meffert, and counsel for the Employer repeated the argument made in paragraph one above. 4. Referrence was made to the document attached to Exhibit being the review of ERP - Weekday Eveninq Shift Option - Impacts and Implementation, prepared by the Operations Division, Assistant Director's Committee, November, 1990, December, 1990,which attachement is entitled Staff Participa- tion on the Emergency Response Program (ERP) Duty Roster, date~ June 22, 1987, revised September 22, 1987, October 26, 1987, October 30, 1987 and January 11, 1988. At p.2 of the attachment, in paragraph 5, there is a statement: That all non-Abatement staff currently involved in the program by virtue of inclusion on the Duty Roster be allowed to continue involvement until such time as they leave the Duty Roster. At p07 of the attachment, there is the following statement: Although the committee feels that the Emergency Response Program is an Abatement function, it is the committee's recommendation that all non-Abatement staff currently involved in the program be allowed to continue participa- tion until such time as they leave or are withdrawn from the Duty Roster. Counsel for the Employer submitted that the Grievor must be held to have know that he could be withdrawn from the Duty Roster at any time. RESPONSE TO THE ESTOPPEL ARGUMENT RAISED BY THE UNION 1. Reference was made to the case of Re Metropolitan TorontQ C-.~vic Employees' Union, Local 43, Canadian Union of Publi~ Employees and Municipality of Metropolitan Toronto et al~ (1985) 18 D.L.R~ (4d) 409 (Div.Ct.) where Reid at pp.416-7 stated: There is much to be said in favour of the application of the doctrine in arbitration proceedings of this type. It preserves arbitration as a forum for dealing with issues that could otherwise only be dealt with in the law courts. Enough has been said on the subject of furnish- ing a more convenient, expedient and less expensive forum than the courts for the resolution of labour problems to justify my not repeating it here. There are, however, some problems. It is paradoxical for statutory arbitra- tors to be applying equitable .doctrines and there are serious problems with the proper application of the doctrine. Promissory estoppel ihad proven to be one of the more elusive and difficult recent creations of the common law, notwithstanding its repeated redefinition by the courts, principally by its modern proponent, Lord Denning. If bar and bench find it difficult to under- stand and apply, laymen who sit in arbitration proceed- ings of the type before us can hardly be expected to find it easy. My experience in the Divisional Court has revealed that difficulty is commonly experienced by arbitrators in wrestling with the true meaning of the doctrine and in applying it. The question before us is whether it was properly applied here. I think not. To the extent that arbitrator's use of the doctrine has come before this court its applica- tion has been confined to one type of case only. That is where a course of conduct has been followed by an employer which is at odds with the agreement but has led the union not to seek to have the agreement amended to accord with the conduct. Thus, in Canadian National R. Co. et al. v. Beatty et al. the predecessor employer had habitually paid sickness benefits from the first day of absence rather than from the fourth day as provided by the agreement. The successor employer gave notice, that it intended to rely on the agreement and pay only from the fourth day. In grievance proceedings the arbitrator held that the employer was estopped from relying on the agreement. Osler J. said (at p.390 O.R., p. 241D.L~R.): The a~bitrator found as a fact,vas he was bound to do in view of the agreed statement, that the employer adhered to a course' of conduct ~hich reasonably induced the union' to believe that the entitlement of the employees in question to sick- nes~ benefits would not be go3erned by the strict legal rights set out in art. 30 but rather would conform to the long-standing practice of paying wages during a waiting period. He found also that it would be inequitable to allow the employer to insist on the terms of art. 30 as the limit of its obligation to the employees. As submitted to the arbitrator by the union, if there had been any indication given by the employer that it had intended to commence applying the terms of art. 30 strictl~ despite the opposite practice of so many years, the union would have had the opportunity of seeking to negotiate a clause in the agreement to preclude the employer from so doing. At the foot of p.10 of his award (Record, po14) the arbitrator finds: "The detrimental reliance then of assuming the practice would continue, lies in the union's inability to require the employer to negotiate its change in its practice during the l~fe of this agreement. After a practice of this duration, if the employer anticipated changing it, it has an 'affirmative duty' to alert the union of its intention in order to give it an opportunity to negotiate a note of the kind the parties fashioned for their vacation package." These words reflected the view he expressed in the extract from the judgment that I have set out earlier, which, for convenience, I shall repeat here (it is from p.392 O.R., p.242 D.L.R): By its conduct in persistently paying many classi- fications of employees from the first day of ill- ness in the face of a clause providing for a wait- ing period, the company gave the union an assurance which was intended to affect the legal relations between them. The union took the company at its word and refrained from requesting a ~ormal chan~e in the agreement. The company should not now be allowed to revert to the previous relations as if no such assurance had been given, (Emphasis added by Reid J.) At p.419 of the Me~mopolitan Toronto Civic Employees'_ # Union case, Reid J. stated further: 'The effect of the application of.the doctrine was not to amend the agreement: see Os]er J.'s words (beginning at . p. 391 O.R., p. 242 D.L,R. of the report in Canadian National R. Co. et ~1. v. Beatty): At this point I stress first that there is a funda- mental difference between the role of a court granting rectification and that of a tribunal applying the doctrine of estoppel by conduct. In the case of rectification the court is asked to find that the document purporting to contain the agreement between the parties does not in fact do so, and was executed by both parties under a common mistake. The court must determine what in fact was the actual agreement between the parties, and rectify the documents acco!rdingly. Such a process goes far beyond the interpretation, application or administration df the agreement, which is the usual jurisdiction of an arbitrator in a labour case, and was the jurisdiction of the arbitrator in the case at bar. In estoppel by conduct, on the other hand, there is no question before the court or tribunal as to what in fact was the agreement between the parties. The qQest%on is whet'her the agreement, or part thereof~ should be applied, havfng regard to the conduct of the parties. Questions of the amplication of collective agreements are squarely within the Jurisdiction of arbitrators in labour dispute_~s (Emphasis added by Reid J.) And at p. 392 O.R., p. 243 D.L.R., he concluded: What the arbitrator did here, however, was not to interpret the agreement but to make a finding as to its proper application and to give consequential relief. In Ben Ginter, ~upra, Macdonald J. said, at p. 493: With respect, I think the arbitrators have miscon- ceived the nature of equitable estoppel. Applica- tion of the doctrine does not involve modification of the agreement. Also referring to the Metropolitan Toronto Civic Employees' Union ~ase, counsel ~or the Employer referred to the state- ments of Reid J. at pp. 419-420: The situation before the arbitrators in this case is diffePent from the foregoing cases in a way I think significant. Here the representations are not shown to have induced the union to act to its detriment. There is no suggestion that, because of repPesentations made to these employees, the negotiators for the union were led to assume that benefits would be paid to those employees on a one for one basis, notwithstanding this agreement, and there is no evidence of a course of conduct on Metro's part that led the union to believe that. So far as I am aware, the doctrine of promissory estoppel has been applied only on the basis of the conduct of one party to a contract to another party. Employees repre- sented by a union are bound by but are not themselves paPties to a collective agreement. If representations to employees leads a union to forgo an opportunity to attempt to negotiate the substance of the negotiations into the agreement the doctrine could apply. But that is not this case. There is no evidence of that. I therefore agree with the board that the doctrine does not apply in this case. I do not agree with the chairma- n's view that the application of the doctrine of estoppel 29 is at odds with the statutory requirement that a collec- tive agreement be 'in writing, i accept Osler J.'s analysis to the effect that to consider whether the doctrine applies or to apply it, in a proper case, is to consider or decide a dispute relating to "the application of the agreement", something well within the jurisdiction of most arbitrators. It is certainly within the juris- diction of this board which is constituted to decide differences arising between the parties "relating to the interpretation, application or administration" of the agreement: art. 21.01(a) of the collective agreement. 3. Counsel for the Employer also referred to Carter et al., 2291/86, 2292/86 ~Knopf), where the Board, after referring to Metropolitan Toronto Civic Employees' Union case, above cited, stated at p.9: Thus, for the doctrine of estoppel to apply, detrimental reliance by the Union as a party to the contract, not just an individual employee must be es%ablished. In the grievanges at hand we do not see any evidence that convinces us that there has been an element of detrimen- tal reliance by the grievors or the union which would make it inequitable to allow management the unfettered right to allocate overtime as it chooses. Detrimental reliance connotes lost opportunity and lost potential. The classic example of this is a union relying upon a practice or promise and thus being induced into a position of losing or passing over the opportunity to negotiate its desires into the collective agreement formally. 4. It was also submitted that choosing the Grievor for the Program could not be construed as demonstrating an intention on the part of the Employer to forego its management rights. Reference was made to K~ren Brown, 0513/86 (Barrett) at p.7: The promise must be one 'which was intended, or was reasonably construed as being intended, to affect the legal relations between'the parties. A person may well grant an indulgence.without ever intending to forego his strict legal rights .... 5. Reference was also made to the statement of the Board in Dymond 377/82 (Roberts) at p.12: Such an equitable es[oppel, however,, does not last forever. It can be ended upon a showing that (1) reasonable notice was given by one party that it was resiling.from the acquiescence raising the estoppel; and (2) that the party relying upon the estoppel was given a reasonable opportunity to adjust ta this change in position. As was stated by Lord Hodson in Ajayi v. Briscoe, 1964 3 All E.R. 556 (P.C.): The principle which has been described as quasi estoppel and perhaps more aptly as promissory estoppel, is that when one party to a contract in the absence of fresh consideration agrees' not to enforce 'his rights an equity will be raised in favour of the other party. This equity, is how- ever, subject to the qualification (a) that the other parity has altered his position,-(b) that. the promisor can resile from his promise on giving reasonable notice, which need not be formal notice, giving the promisee a reasonable opportunity of resuming his position, (c) the promise only become final and irrevocable if the promisee cannot resume his position .... In the light of these considerations, the question here becomes one of determining when the grievor and the Union Local gave the requisite notice and how long a period of time the Employer reasonably required to adjust to this change in the Union Local's position regarding its strict 'contractual rights under Article 23 of the collective agreement. (Emphasis added in DymQnd.) It was submitted that the Grievor was aware in August of 1991 that he was in category 3 and of the number of employees who were in the Abatement Section. Being aware of the situation~ and of-the fact that he was in category 3, the Grievor had ample notice of the fact that he was not likely to 31 be on the roster in October. Reference was made to Mr. Waldie's evidence to the effect that he kept the Grievor advised as to the development of the new program and of the categories within that program. It was also submit%ed that the~Union was aware of the impending revisions and it is a reasonable conclusion that its representatives would have kept bargaining unit members informed. In addition it was submitted that the Grievor was not' eligible for the revised Program as he had not obtained the approval of his Director to participate in it, although he had been informed in writing on two occasions of this requirement. 'DISCUSSION CONCERNING THE ALLEGATION THAT THE EMPLOYER HAD BEHAVED UNFAIRLY AND UNREASONABLY 1. On the assumption that a duty of fairness and reasonableness was imposed on the Employer on the facts of this case, as was argued by counsel for the Union, the evidence disclosed that, .unlike the finding of the Court of Appeal, at p. 38 of the Canadian Union of Public Employees, Metropolitan Toronto Civic Employees' Union Local 43 case, cited above: There was no "absence of any consultation with those whose" interests would likely be affected by the change in the program. The evidence demonstrated that representatives of the bargaining unit and a representative of the Union were involved in the examination 32 of the Program, along with representatives of the Employer, and there could be no doubt that an examination was being conducted with a view to effecting changes.- The evidence further disclosed that considerations affecting the Employer and the employees were examined at considerable legthe over a considerable period of time, and that reasonable steps were taken by the Employer to ensure ~hat those affected would be aware of the contemplated changes so that they could make their concerns known to the Union members of the reviewing body. 2. Unlike the case in Anderson, there' was evidence, to be derived from Exhibits 3 and 4 which amply demonstrated the business reason for the changes in the Program. The introduction to Exhibit 4 states: 'The Ministry of the Environment initiated a comprehensive Emergency Response Program throughout Ontario in June of 1986. An integrated field response program was estab- lished to compliment the Spills Action Centre (S.A.C). S.A.C. operates a Province-wide toll-free telephone number for receiving reports of spills and other urgent environmental .matters on a twenty-four hour per day basis. Field response was provided by Environmental Officers, on a rotating duty roster, which provided one Environmental Officer available to respond to emergencies in each of twenty-four Emergency Response areas, generally correlat- ing to District Offices. An April 1989 report entitled "Cost Inequities of the Emergency Response Program" 'reviewed a number of options for more cost-effective delivery of the Emergency Response Program, which included: 33 a) consolidation of emergency response areas, where spill activity was iow; b~ various shift work arrangements. Based on this report, some Districts were combined for emergency response coverage and the number'of Environ- mental Officers on duty at one time was reduced to twenty-two persons. A further review of the implementation of shift work was conducted by the Operations Division Assistant Directors Committee. A December 1990 report, addressing human resource, budgetary and administrative matters related to a week-day evening shift, was accepted by the Direc- tors Committee. The proposal was tabled with the Employee Relations Committee in December 1990, and affected staff were subsequently requested to comment and provide suggestions. As a result of staff input, the Directors Committee temporarily set aside the April 1, 1991 proposed implementation date and requested that a working Group be established to review the options sug- gested by staff. The mandate of this Working Group was "TQ review and ~naly~e emergency response optio~ and to make a recommendation(s) to the Assistant Director's Com~ittee". (Emphasis in original.) 3. The working group thereupon held meetings on March 18 and 19, 1991, which continued on March 25 and 26, 1991, where "a list of options .o. developed, primarily ~rom the bargaining unit and management staff input received in response to a request for suggestions sent out from the Employee Relations Commit- tee" resulted in 18 options being reviewed. 34 4. As in the Oaklands Regional Centre case, at p.14, we are unable to find that the Employer's' decision to amend the Program was an unreasonable one or that its decision was made "arbitrarily" or "capriciously." The evidence indicated that the changes were effected in response to efficiency related concerns and, while the result may have disappointed the Grievor, this does not make the decision unfair or unreason- able. Considerable effort was made to ensure that employee concerns would be received and reviewed, and we cannot regard the Employer as having acted either unfairly or unreasonably, as alleged by the Union. 5. In none of the cases relied upon by the Union was an employer required to forego ~aking changes which it, for business reasons, and acting in good faith considered necessary in order to make a program more efficient merely because some employees might be adversely affected financially. What the Employer was required to do was, while acting in good faith: (1) consider relevant evidence reasonably available to it, (2) discount irrelevant evidence, (3) arrive at a resolution that a reasonable.employer,~ acting on such information, might have arrived at. There was no evidence' to indicate that the Employer had failed to carry out any of these obligations. THE ESTOPPEL ARGUMENT 35 1. We have concluded that the estoppel argument must also fail. If the implementation of the program in 1986 can be regarded as a representation, it amounted to one made to employees and not to ~he Union. Employees were given an opportunity to apply to be placed on the duty roster as part of the Program. ~here was no indication that a volunteer, admitted to the Program and placed on the Duty RoSter would, thereby, remain on it subject to an amended program being negotiated by the Union and the Employer. 'The excerpt quoted from p.7 of the Staff Participation on the Emergency Response PrQ~ram (ERP) Duty Roster, above quoted, indicates that non-Abatement staff may be withdrawn from the Duty Roster. 2. In any event, in the circumstances, we conclude that, if the request for applicants for the Program in 1986, was a promise, it could not reasonably be construed as "one which was intended, or was reasonably construed as being intended, to affect the legal relations between the parties. A person may well 9rant an indulgence without ever intending to forego his strict legal rights." See Karen Brown, above, at p.7. 3. Also, given the number of revisions to the original 1986 Program, apparently without a requirement that such changes be agree~ to by the Union, we cannot find that the Union ever regarded the Program as imposing an obligation on the Employer to maintain it until such time as there was an opportunity to 36 negotiate a change in the collective agreement. This is not a situation.as was envisaged in the case- relied upon by the Union: Re Eurocan Pulp & Paper Company, cited above, where the arbitrator stated at p.123: Similarly, estoppel may be terminated by .reasonable notice. What constitutes reasonable notice depends upon the circumstances of the case. Where the reliance took the form of loss of opportunity to negotiate a change in the collective agreement, the estoppel will ordinarily endure for so long as the ability to bargain is in abeyance. Thus notice terminating on expiry of the existing collective agreement will often be required, thus giving the other party the opportunity to negotiate and thus recapture its position .... DECISION For all of the above reasons the grievance is dismissed. Because of our decision on the merits, it was unnecessary to render a decision on the preliminary objection to arbitrability raised by counsel for the Employer, who argued that the Board lacked jurisdiction because: 1. We were only vested with jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective agreement, arising under s.19 of the Crown Employees Collective Bargaining Act. 2. That we had no jurisdiction to interfere with the Employer's discretion to determine matters of "organization" and "assign- 37 ment". The position of the Employer was that our jurisdiction was. o~ly broadened to the extent that the parties may have provided for certain matters in a collective agreement, which was said not to be the case in the matter before us. In addition, our decision was based on there being an obligation on the Employer to act reasonably on the facts before us. It was unnecessary to comment on the cases relied upon by the' Union establishing such an obligation as imposing such an obliga- tion in the light of the facts before us. Dated at Toronto this 8th day of 'January, 1993. M. Gor~ky~- Vice Chairperson J ~ani~i = Member ' 'Toole - Member