Loading...
HomeMy WebLinkAbout1992-2929.Mills et al.93-10-04 ? c~ (,' fi ':.f.":"i:';" EMPLOYES DE LA COURONNE ONTARIO ,:i,;;_1 "-:."" ~ , r CROWN EMPLOYEES DE L'ONTARIO (..~..,.- I 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 2929/92 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mills et al) Grievor - and - ,- The Crown in Right of ontario i (Ministry of Transportation) Employer BEFORE: G Simmons Vice-Chairperson J.e Laniel Member J. Miles Member - FOR THE K. Whitaker UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J B. Christen EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING July 29, 1993 , ) , -.. ( -> /' \. ,~ 2 - The four grievors are classified in the posItion of "Highway Equipment Operator 3" There has been a practice that during the winter season certain Highway Equipment OperatQrs have been offered temporary assignments as "Patrolmen" for the Wlnter season, and they have been considered to fall wIthin the "Highway General Foreman/Woman" classification in the collective agreement. The parties to the collective agreement entered mto a Memorandum of Agreement on December 21, 1990 wherein it was agreed that, The Employer agrees to pay employees working as Patrol Foreman/W oman, within the Highway General Foreman/W oman I Level, the top of the wage scale for the ( 1990-1991 winter season. \ ( The grievors' normal wage rate as Highway EquIpment Operator 3 was $15.37 per hour The top of the wage scale for Highway General Foreman,IW oman 1 was $16.62 per hour On September 27, 1991 the Employer wrote to the President of the Union stating that the Memorandum of Agreement of December 21, 1990 would be continued during the winter season of 1991-1992 but went on to say, The' Ministry wishes to serve notice to the Union that the terms of this Agreement will be discontinued effective at the conclusion of each affected employee's 1991..1992 winter season, but in any case not later than April 30, 1992. (The letter stated April 30, 1991 but the parties agreeq. that this was a misprint and should read April 30, 1992.) (. ~~, ~\"~~~ 01: . ." ll'i."'o- !:","'. .~..:;..~ , 3 The Employer also wrote to Regional Directors and District Engineers on September 27, 1991 attaching the letter of the same date that was forwarded to the Union President. The letter to the Regional Directors and District Engineers stated that it was extremely important that the staff be made aware of the arrangements. This letter was signed by Mr Carl Vervoort, Assistant Deputy Minister for the Ministry Between October 13 and October 15,1992, the grievors' immediate supervisor, Mr J.R. Bailie, gave to the grievors a document headed "memorandum" concerning the winter maintenance operations temporary assignment. In this memorandum, the wage rate was again stated to be $16 62 per hour This assignment was to begin on November 7, 1992 and terminate on April!, 1993. When these forms arrived on the d,esk of Mr George Thibeault, Human Resources Consultant with the Ministry, he immediately saw that there had been an error made in offering the wage rate of , $16.62 per hour Because of Mr Vervoort's memorandum to Regional Directors and District Engineers and his attached letter to Mr Upshaw, President of OPSEU, Mr Thibeault realized that the arrangement between the Union and the Employer was to revert to the terms and conditions of the collective agreement. Mr Thibeault contacted Ms. Su Lo, Assistant District Engineer of Maintenance, the supervisor, once removed, of the grievors and informed her that the rates contamed in the memorandum were mcorrect and not in accordance with the September 27, 1991 letter and memorandum. He requested that the memoranda be corrected. The article dealing with temporary assignments is to be found .at 6 1 1 ,t <, ~-\'.i,t , 0"1' i 4 I ARTICLE 6 - TEMPORARY ASSIGNMENTS Where an employee is assigned temporarily to perform the duties of a position in a classification with a -higher salary maximum for a period in excess of five (5) consecutive working days, he shan be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again. I It is agreed that if the collective agreement was followed the rate that ought to have been paid to the grievors was $16.26 per hour Mr Bruce Cardwell, one of the grievors, had signed the original memorandum addressed to him on October 15, 1992 wherein it stated that he would receive $16.62 per hour However, he refused to sign ) , any subsequent memoranda at the lower rate of $16.26 per hour and a third one at yet a lower rate. Accordingly, he was not assigned the temporary assIgnment but nevertheless grieves that he ought to have been so assigned, and to have been paid at $16.62 per hour Following Mr Thibeault's direction that the error be corrected and that the grievors be offered $16.26 per hour pursuant to Article 6 11 of the collective agreement, the grievors were offered a new memorandum stating that effective from November 7, 1992 to April 2, 1993 the grievors would be reclassified from Highway Equipment Operator 3 at $15.37 per hour to Highway General Foreman/Woman at $16.26 per hour Grievors Mills and Potts sIgned the revised memorandum on October 16 and October 26 respectively Nevertheless, they informed their supervisor that they would be grieving this change Mr Cray initlally refused to sign the - ~ -~ -, f~, (~~ - :: :Y 5 revised memorandum and filed his grievance on November 1 claiming that he was being dealt with unfairly and sought to be paid at the rate of $16 62 per hour for the duration of the temporary assignment. Messrs. Potts and Mills filed their grievances on November 4, whereas, Mr Cardwell filed his grievance on October 20, 1992. I The grievors claim that they were inconvenienced by this change. The Highway Equipment Operator works days, five days a week. The position of Highway General Foreman/Woman involves shift work and encroaches on their weekends. Moreover, the Highway General Foreman/W oman is not gIven the same opportunity to work overtime as is the Highway Equipment Operator 3 and therefore to accept the hIgher temporary posItion IS a cost factor to them. Furthermore, in the case of two of the grievors, new arrangements had to be 'made_ with respect to child care for their children. The Union bases its claim primarily on estoppel. The grievors were presented /' with agreements by their supervisor at $16.62 per hour which they signed in good faith. They were inconvenienced and had to make alternate arrangements in two cases with respect to day care. In the third cas~, Mr Potts testified that had he \ known that the rate of pay was to be $16.26 per hour he would not have accepted the positIon. He indicated that It was simply a matter of money that he was concerned With and had he known that $16.26 was all he would receive, he would not have accepted the position. The other two grievors, however, indic~ted that they would have accepted the position notwithstanding the drop in rate for various reasons. The Union relied on Re CN/CP Telecommunications and Canadian Telecommunications ) \. - - --- (:,;1 ( 0'",1 T 6 Union (1981), 4 L.A.C (3d) 205 (Beatty), upheld by the Divisional Court of the Supreme Court of Ontario in Re C.N.R. Co. et a1. and Beatty et a1 (1981), 128 D.L.R. (3d) 236, 81 C.L.L.e, para 14,163,34 a.R. (2d) 38, and an unreported decIsipn of Richard H. McLaren in the Grey Bruce Begiona1Hea1th Centre and Ontario Public Service Employees Union Paramedical Unit 235 dated 13 July 1993, and Be Thompson Products, Division of TRW Canada Ltd. and Thompson Products Employees AssocIation (1974), 6 L.A.C (2d) 56 (Brandt) in support of its position. The Employer takes the position that the agreement between the Union and the Employer came to an end after the 1991-1992 season when the UnIon was informed that such was to be the case and that matters were to revert to reliance on the collective agreement. The offers that had been made to the grievors in mid- October, 1992 had been made in error and before the assignment was to become effective on November 7, 1992 the Employer had notified the employees of the error and took steps to correct it. In these circumstances, the employees had sufficient time to alter any arrangements they had made and indeed, the two grievors Wlth the young children, accepted the shift assignments albeit at the lower rate and it cannot therefore be said that they were inconvenienced in any way It .is true that the money they received for perfornling the temporary assignment was less than what they had originally expected but they had ample opportunity to make a decision as to whether they wished to accept the temporary position at the lower rate. They could have remained in their Operator 3 positions and carried on as before. The Employer relied on Be Metropolitan Toronto Civic Employees' Union, Local 43 and --- (~, c, " ,,)' '....".,. ""::.';"'; l 7 Canadian Union of Public Employees and Municipality of Metropolitan Toronto et al. (1985), Onto Div Court 50 O.R. (2d) 618 and on an earlier unreported decision of the .. I Grievance Settlement Board involving C U.P.E. (Zonni/Hardy) and the Crown in I Right of Ontario (Workers' Compensation Board) B.A. Kirkwood, Vice Chairperson dated the 1st day of August 1991 and on Re Monarch Fine Foods Co. Ltd. and Milk I and Bread Drivers, Local 647 (1985), 18 L.A.C (3d) (Schift) in support of its position. In the CN/CPcase it is pointed 9ut that changes to a collective agreement may i raise an estoppel when you have three elements present. a representation from one of the parties, reliance on that representation, and acts on behalf of the party to whom the representation has been made to that party's detriment. In the CN/CP case the collective agreement had stipulated a certain waiting period for employees absent due to sickness before they were entitled to payment. A practice had developed, however, that the employees received their payments from the,fIrst day of absence due to sickness and the Employer then decided to give notice that It intended to cease making payments pursuant to such practice but that it would ,be \ revertmg to ~he terms of the collective agreement. The arbitrator ruled that the Employer could not unilaterally alter the practice that had been established and upheld the grievance. The arbitrator's decision was upheld by the Divisional Court. In the Grey Bruce situation there had been representations made to thegrievors that if they became employees of the Employer their positions would be secure and that there would be no lay-offs even if the grievors were reinstated from their discharge. The Employer later informed the grIevors that they would be laId off The grievances ( (~:;, ~~~" \.l;*~' 8 were successful in that situation. In Re Thompson Products the plant shutdown was from July 23, 1973 to July 27, 1973 The grievor had his vacation scheduled to ) , commence on the weeks of July 16 and July 23, 1973. Sometime later be requested that his vacation be changed commencing on July 9, 1973 and continuing during the week of July 16, 1973 The grievor's foreman indicated to him that if such a change were to occur he might lose a week's pay as a result because the plant would be shut down commencing July 23. Nevertheless, the grievor indicated that he wanted the change in order to acquire a cottage. During the week of shutdown commencing \ July 23, 1973 the Employer employed a junior employee for certain duties in the garden, cafeteria, and stockroom. The grievor claimed entitlement to that work and fued his grievance. The Employer argued that the grievor was estopped from making such a claim as he was aware of the possibility of losing a week's pay during the week of July 23 if he insisted upon such a change. When the grievor insisted on and made the change, the Employer's position was upheld and the grievance was dismissed. The Employer claims that there was no detrimental reliance in the instant sItuation and the doctrine of estoppel does not therefore apply In the Metropolitan Toronto Divisional Court decision representations were made to several employees concerning accumulated sick pay benefits who would receive such benefits on retirement as had been in effect between their Union and their former Employer under another collective agreement. The representations meant that the grievors would receive greater entitlements than they would have received otherwise. The ~,;",,"i ~ ~::;"J 9 arbitration board in that case dismissed the grievance and the matter went before the J Divisional Court. The court held that while arbitrators have a jurisdiction to apply the doctrine of estoppel the representations have to demonstrate that the Union was \ induced to act to its detriment. Employees repr~sented by a union are bound by but are not themselves party to a collective agreement and estoppel applies only on the basis of the conduct of one party to a contract towards another party Furthermore, the representations were not inwnting and the <;ourt found that the statutory '" requirement that a collective agreement be in writing was required. Finally, in Monarch Fine Foods there was a benefit that had been extended to employees who had good attendance at the work place Employees who had good attendance could cash out such benefits at year end, whereas, such benefits were not to apply to those employees whose attendance was not good. But a practice had developed that the cashout at year end had been extended to all employees, even those who had been off work on weekly indemnity This practice had existed for a lengthy period of time until a vice-president found the mistake and he ordered its rectification. The Union on the other hand claimed that the Employer was estopped from making such a change b~cause the nature of the representation had given rise to an estoppel. At page 264, arbitrator SchIff makes the following comments: Estoppel by conduct, as approved by the Supreme Court of Canada and, it may at least be argued, the Divisional Court itself in C.N.R., applies only when the party making the representation intended that the other party rely on it and intended that it affect the legal relations between them e.g, Town of Fort Frances v Boise Cascade Canada Ltd., supra, at p 217, Engineered \\ I . " \ 10 Homes Ltd. v Mason, supra, at pp 580-1, C.N.R. v Beatty, J supra, atpp 243..4 f Undoubtedly, the employer intended over the years that the union and employees rely on the deferral scheme and that it sho~ld affect the operation of s. 12.04 of the agreement. But no responsible official of the employer ever intended that the bonus of the extra day's pay should go to every employee whether or not he had received weekly mdemnity That it happened nevertheless was a gross mistake on the part of the pay-roll department not discovered by the vice-president until the fall of 1984 It follows that the employer could not possibly have ~ intended that union and employees rely on the pract~ce of paying the bonus and that the practice affect the operation of paras. (c) and (d) It may be, however, that the arbitral version of estoppel by conduct needs no showing of such intention. The arbitrator in CN/CP did not mention intention and the Divisional Court lightly touched it only once: 128 D.L.R. (3d) 236 at pp 243-4. \ I The Employer in the instant situation submits that what occurred was a mistake by the fll"stline supervisors and as soon as it was detected by Mr Thibeault steps were taken to correct the mistake. Therefore, according to the Employer, the grievances should be denied. The position advanced by the Employer is to be preferred over that rehed on by the Union. Clearly, there was an error (mistake) that had been made by the firstline supervisors when the grievors were offered the temporary assignments at $16.62 per hour sometime in mid-October, 1992. Within two or three days of signing the origmal memorandum, the error was detected and .revised memoranda were presented'to the employees for their signatures. It is true, as the evidence points out, that the frrstline supervisors were supportive of the grievors filing grievance and stated assurances that they would in fact receive the $16 62 per hour But, of course, - .\ ~ C 11 this was not the case. Mr Cray, one of the grievors, is the local-president but did not I go beyond the flrstline supervisor to ascertain -what the situation was with higher levels of management. Whether or not he ought to have done so is a matter of speculation. However, it is not denied that as soon as the grievors were presented with revised memoranda and rates of pay it was apparent to all that the hourly rate of $16.62 was no longer a defmite foregone conclusion. At most, it could be said that there was confusion and perhaps indecision. However, once having been presented ) \ with the revised rate of pay, the grievors were no longer in a position of having an assured $16.62 per hour Furthermore, .the temporary assignment was not to commence until November 7, 1992, approximately three weeks into the future. Any arrangements that may have been made by the grievors concerning child care, etc. could have been changed and one cannot see how they acted to their detriment. Furthermore, the arrangements between the Employer and the Union were defmltely set out in writing and it is conceivable that the Union ought to have also ~otified the grievors of the changed circumstances. In the cases relied on by the Union, particularly Grey Bruce and 'Thompson Products, the situation that prevailed was somewhat different than in the instant situation. In Grey Bruce the grievors were given an assurance that they would not be laid off should other grievors be reinstated notwithstanding the provisions in the collective agreement and th~y accepted the positions on that basis. \ Once having ( altered their situation in such a way, it is an excellent example of when estoppel , should be applied. They accepted employment on the understanding that they would (" ,', ).l,. (v ,,..5.>- ~~~;,:< ;-- j .. 12 not be laid off, and later the Employer attempted to lay them off The grievances succeeded. Similarly, in the Thompson Forest Products case the employee altered his vacation but was informed that by doing so he may lose a week's paybe~ause of the plant closure that was to occur the week following his amended vacation period. Nevertheless, he went ahead and altered his vacation plans but when a junior employee was hired during the plant shutdown period, the grievor sought compensation because 'he had been available for the work but he had not been asked to perform that work. In that situation, however, the grievor had altered his position knowing that by doing so he may lose a week's work or a week's pay and he was estopped from seeking compensation for the week of the plant shutdown and the grievance was dismissed. In the instant situation, the grievors did not find themselves in such situations. They were offered- the temporary assignment at $16 62 per hour in mid-October to .. l;>egin their assignments on November 7, 1992. However, within two or three days they were informed that the rate would be $16.26 per hour and if they accepted the position they would do so on that basis. The gnevors signed the revised memoranda but stated that they would be filing grievances and insisting on receiving the $16.62. However, at that point in time they had not commenced their assignment and as has been stated earlier they had approximately three weeks in which to go back to the status quo and change any arrangements that they may have made during that two or three day period. None of the grlevors indicated that they were locked into their arrangements and could not revert to the status quo. fO~' "~ "f'''--. 't. ,....,: ""';~; ;:(.. ~ '~ 13 In our respectful opinion, the doctrine of estoppel cannot apply to the instant sItuation for reasons that have been given above. MQreover, it is clear that what occurred here was an error by the frrstline supervisory people~ and once detected in the Human Resources Branch the mistake was corrected. Clearly, as the Monarch Fine Foods decision points out, errors, even over a lengthy period of time, which the instant case is not, can be corrected. It is for all of the foregoing reasons that the gnevances must be and are hereby dismissed. \ Dated at Kingston, Ontario, this 4th day of Oct.ober . 1993. M --0 \ C Gordon Simmons ! Vice-Chaiz]>erson J C Laniel Member C)tfl----rJn ~ I JoL Miles Member ,