HomeMy WebLinkAbout1999-1995.Union Grievance.00-11-09 DecisionONTARIO(03/2<e6'(/$&285211(
CROWN EMPLOYEES'(/¶217$5,2
GRIEVANCECOMMISSION DE
SETTLEMENT5Ê*/(0(17
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z87(/(3+21(7e/(3+21((416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB #1995/99
OPSEU #99U089
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE
Richard Brown Vice Chair
FOR THE
Alick Ryder Q.C.,Counsel
GRIEVOR
Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE
Lucy Siraco, Counsel
EMPLOYER
Legal Services Branch
Management Board Secretariat
HEARING
October 26, 2000.
This union grievance contends the merit increases being awarded to
unclassified correctional officers do not comply with the collective
DJUHHPHQW:KHUHDQHPSOR\HH¶VSHUIRUPDQFHKDVEHHQVDWLVIDFWRU\WKH
applicable hourly rate has moved from one level on the wage grid to the next
after the individual has worked 2080 hours. This progression is commonly
FDOOHGD³PHULWLQFUHDVH´7KHJULHYDQFHFODLPVDQHPSOR\HHLVHQWLWOHGWR
such an increase after working 1912 hours.
7KHXQLRQFRQWHQGVWKHHPSOR\HU¶VSUDFWLFHYLRODWHVDUWLFOHVDQG
31.2.2 of the collective agreement which address wage rates for unclassified
employees. The relevant portions of these articles state:
31.2.1 The rate of the equivalent civil service classification shall apply.
....
31.2.2 A full-time classified employee covered by Article 31 shall be
entitled to the same provisions regarding progression through the
salary range ... as those agreed upon for the Bargaining Unit to which
they correspond.
According to the employer, the collective agreement does not create an
entitlement to merit increases after the completion of 1912 hours. In the
alternative, if such an entitlement exists, the employer submits the union is
estopped from enforcing it during the term of the current collective
agreement.
I
2
7KHUHLVQRGLVSXWHDERXWWKHFKURQRORJ\RIWKHPLQLVWU\¶VSUDFWLFH
concerning wage progression for unclassified correctional officers. Such
employees were not permitted to progress on the wage grid at all prior to the
decision in OPSEU and Ministry of Correctional Services
(Williams/Barber), File No. 1448/90, dated February 5, 1991 (Samuels). The
JULHYRUVLQWKDWFDVHFRQWHQGHGPDQDJHPHQW¶VSUDFWLFHFRQWUDYHQHGWKHILUVW
sentence of article 3.3.1 of the 1989-91 collective agreement which is identical
WRWKHRSHQLQJVHQWHQFHRIDUWLFOHRIWKHFXUUHQWDJUHHPHQW ³7KHUDWH
RIWKHHTXLYDOHQWFLYLOVHUYLFHFODVVLILFDWLRQVKDOODSSO\´ 7KHHDUOLHU
agreement had no equivalent of now article 32.2.2 which explicitly entitles
full-time employees to wage progression.) Contracts signed by the grievors
described them as part-time employees, but Mr. Samuels concluded they
DFWXDOO\³ZRUNHGWKHKRXUVRIDIXOOWLPHHPSOR\HH´ SDJH
+HZURWH
If an employee has done a job for one year, this employee ought to be
able to do the job better, to be more productive, than an employee
who is new to the job. In recognition of this, the parties negotiate a
higher rate of pay for the more experienced employee. Given this
point, it does not seem right that an unclassified employee, hired
repeatedly in an unbroken string of service, who is in fact doing a full-
time job, should continue to receive the same level of pay no matter
how experienced the employee becomes. ...
Therefore we order that, for each of the six grievors, he ought to
have been paid at the CO1 second level rate as of the commencement
of the first contract which began after he had worked full-time for the
equivalent of one full year. (page 11; emphasis added)
By virtue of this decision, an unclassified correctional officer working full-
WLPHZDVHQWLWOHGWRSURJUHVVRQWKHZDJHVFDOHDIWHUZRUNLQJ³WKHHTXLYDOHQW
RIRQHIXOO\HDU´7KHGHFLVLRQGLGQRWDGGUHVVWKHVLWXDWLRQRIDQHPSOR\HH
with part-time hours.
3
On August 4, 1992, the ministry promulgated a policy on wage
progression for unclassified staff, with an effective date of July 1, 1992. This
policy does not purport to exclude those working part-time. It states, in part:
An unclassified employee will be eligible for merit increases providing
their work is satisfactory. Merit increases must be annual or semi-
annual ...
An unclassified employee must work the same number of regular hours
(non-overtime) hours as a classified staff member in the same
classification to be eligible for a merit increase.
Regular (non-overtime hours) include all hours whether regularly
scheduled, irregularly scheduled, or call-in.
The following chart converts annual/semi-annual to hours of work:
....
AnnualSemi-Annual
Schedule 42080 hours1040 hours
Since August of 1992, the figure of 2080 hours has been used in
JUDQWLQJPHULWLQFUHDVHV7KHHPSOR\HU¶VORQJVWDQGLQJSUDFWLFHRIWUHDWLQJ
this number of hours worked by an unclassified employee as the equivalent
RIRQH\HDU¶VVHUYLFHE\DFODVVLILHGHPSOR\HHZDVNQRZQWRWKHXQLRQQR
later than September 23, 1994, when the number of 2080 hours was
mentioned by then union counsel in correspondence with the employer
concerning the retroactive application of the Williams/Barber decision. The
practice was not challenged until this grievance was filed on December 9,
1999.
Two settlements relating to unclassified correctional officers were
produced at the hearing, both dealing with the number of hours which equate
4
to a year of employment. The employer produced a settlement relating to the
retroactive application of the Williams/Barber decision, dated September 25,
1995, saying merit increases would be awarded after the completion of 2080
hours. The union produced a settlement, dated August 26, 1998, stating an
unclassified officer would move from the CO1 level to the CO2 level after the
FRPSOHWLRQRI KRXUV$VWKHVHVHWWOHPHQWVZHUHPDGH³ZLWKRXW
SUHMXGLFHRUSUHFHGHQW´,UXOHGWKH\FRXOGQRWEHDGPLWWHGLQHYLGHQFH
II
It is common ground between the parties that unclassified employees who
work full-time have a contractual entitlement to merit increases. The union
claims part-time emloyees also have a contractual entitlement to merit
increases. As article 31.2.2 speaks only to full-time employees, union counsel
relies upon article 31.2.1 with respect to part-time employees. According to
counsel for the employer, the only entitlement to merit increases found in the
collective agreement is contained in article 31.2.2 which applies exclusively to
HPSOR\HHVZLWKIXOOWLPHKRXUV7KHPLQLVWU\¶VSUDFWLFHRIDZDUGLQJPHULW
increases to part-time employees is said to be gratuitous.
Employer counsel also takes the position that all unclassified
correctional officers are part-time employees. The parties agreed to leave for
argument on another day the issues of what test should be applied in
distinguishing between full-time and part-time employees and of how this test
applies to unclassified correctional officers.
Are unclassified employees who work part-time entitled to merit
increases? The union concedes no such entitlement arises under article
31.2.2, the only provision in the contact which mentions wage progression,
5
because the application of this article is expressly restricted to full-time
employees. In my view, the absence of any reference to part-time employees
in article 31.2.2 is very significant. By expressly conferring a right to merit
increases upon unclassified employees with full-time hours, while not doing
the same for those with part-time hours, the parties to the collective
agreement indicated an intention not to extend this entitlement to part-time
employees.
This implication is not over-ridden by article 31.2.1 which merely entitles an
XQFODVVLILHGHPSOR\HHWR³WKHUDWHIRUWKHHTXLYDOHQWFLYLOVHUYLFH
FODVVLILFDWLRQ´7KHIRUHJRLQJDQDO\VLVOHDGVPHWRFRQFOXGHSDUWWLPH
unclassified employees have no contractual right to wage progression by
virtue of article 31.2.1.
In coming to this conclusion, I have not overlooked the ruling in
Williams/Barber that a provision identical to article 31.2.1 entitled full-time
employees to wage progression. As that case dealt only with full-time
employees and it arose in the absence of any article dealing expressly with
merit increases, the decision does not assist the union in claiming such
increases for those working part-time under the current agreement which
does address wage progression for full-time employees.
,GLJUHVVWRQRWHWKHHPSOR\HU¶VSUDFWLFHKDVEHHQWRDZDUGPHULW
increases to unclassified, part-time employees after the completion of 2080
hours. Management may be estopped from altering this practice during the
term of the current collective agreement. Even if such an estoppel exists, it
ZRXOGQRWVXSSRUWWKHXQLRQ¶VFODLPWRSURJUHVVLRQEDVHGXSRQ KRXUV
III
6
For unclassified employees working full-time, the threshold dispute is
whether the collective agreement requires merit increases to be awarded on
the basis of 2080 hours or 1912 hours.
Noting 2080 appears nowhere in the collective agreement, counsel for
the union contends 1912 is the number of hours equivalent to a year of
employment for the purpose of wage progression, because this number does
appear in the agreement, albeit in article 31.15 dealing with conversion from
unclassified to classified status rather than merit increases. According to
article 31.15.1, where work has been performed for two years by an
unclassified employee who is not replacing a classified employee, and where
WKHUHLVDFRQWLQXLQJQHHGIRUWKHZRUNWREHSHUIRUPHGRQD³IXOOWLPH´
EDVLVWKHHPSOR\HUPXVWHVWDEOLVKDFODVVLILHGSRVLWLRQ³)XOOWLPHLVGHILQHG
in article 31.15.2:
)RUWKHSXUSRVHRI$UWLFOH³IXOOWLPH´VKDOOPHDQDPLQLPXPRI
... one thousand nine hundred and twelve (1,912) straight time hours in
each year ... including authorized leaves of absence. However, all
hours worked by an unclassified employee while he or she is replacing
a classified employee who is on an authorized leave of absence shall
not be included in computing the annual hours worked by the
unclassified employee.
Counsel for the union suggests the figure of 1912 hours is the appropriate
basis for awarding merit increases because it makes allowance for statutory
holidays and annual vacation. No such allowance is made by the figure of
2080 hours which is the product of 40 hours per week multiplied by 52
weeks per year. Union counsel suggests that 1912 is derived by subtracting
from 2080 a figure of 88, representing eleven statutory holidays of eight
hours each, and a figure of 80, representing two weeks of holiday.
7
Employer counsel reminded me that the vacation entitlement for
classified employees under article 46.1 is not two weeks but rather ranges
from three to six weeks. As to article 31.15.2 dealing with conversion,
HPSOR\HUFRXQVHOQRWHVWKDWWKLVSURYLVLRQH[FOXGHV³EDFNILOO´KRXUV LH
hours spent replacing an absent classified employee) and that a substantively
identical provision was contained in article 3.15.2 of the 1992-93 collective
agreement in force when the employer issued its policy in August of 1992.
Counsel contends any ambiguity in the collective agreement as to the
appropriate time-frame for awarding merit increases to unclassified
HPSOR\HHVVKRXOGEHUHVROYHGE\UHIHUHQFHWRPDQDJHPHQW¶VORQJVWDQGLQJ
practice of paying such increases after the completion of 2080 hours.
As article 31.2.2 does not specify how many hours are to be treated as
the equivalent of one year for the purpose of merit increases, I conclude the
agreement is ambiguous on this point.
In attempting to resolve an ambiguity in any provision in a collective
agreement, an arbitrator should look first to the rest of the agreement. To
ensure the contract as whole is read in a sensible and logically consistent
manner, each article should be interpreted with an eye to others dealing with
related matters. Past practice should be not considered unless a wholistic
reading of the contract does not resolve the ambiguity, because the
agreement itself offers the best evidence of the parties intentions concerning
contractual obligations. This point was made in the leading case on past
practice as an aid to interpretation, John Bertram & Sons Co. and
International Assoc. of Machinists (1967), 18 L.A.C. 158 (Weiler). In that
case, Professor Weiler stated past practice should be considered only where
WKHUHLV³QRFOHDUSUHSRQGHUDQFHLQIDYRXURIRQHPHDQLQJVWHPPLQJIURP
8
thewords andstructure of the agreement viewed in the labour relations
FRQWH[W´ SDJH
UHDVRQWRH[FOXGH³EDFNILOO´KRXUV$FFRUGLQJO\UHDVRQLQJE\DQDORJ\IURP
article 31.15.2, I conclude an unclassified employee is entitled to a merit
increase under article 31.2.2 after completing 1912 hours, even if some of
that time was spent replacing a classified employee.
As the ambiguity in article in article 31.2.2 is resolved by article
31.15.2, evidence of past practice does not assist in interpreting the collective
agreement. Unclassified employees working full-time are entitled by the
collective agreement to merit increases after completing 1912 hours.
IV
Employer counsel contends the union is estopped from enforcing any
contractual entitlement to merit increases for unclassified employees based
upon working 1912 hours. This estoppel is said to last until the expiration of
the collective agreement now in force. The union submits no such estoppel
exists. This disagreement mirrors a division among arbitrators as to the
appropriate application of the equitable doctrine of estoppel by conduct.
Employer counsel relies upon three decisions: (1) Molson Brewery
(Ontario) Ltd. and United Brewery Workers (1984), 15 L.A.C. (3d) 128
(Beck); (2) Freshfield Inc. and Milk and Bread Drivers, Dairy Employees,
Caterers and Allied Employees (1997), 61 L.A.C. (4th) 182 (Goodfellow);
and (3) &DQDGLDQ8QLRQRI3XEOLF(PSOR\HHVDQG:RUNHUV¶&RPSHQVDWLRQ
Board, GSB File No. 0448/96, dated February 5, 1998 (Abramsky). I note
the arbitrator in each of these cases applied the doctrine of estoppel in the
same way as it was previously utilized in Canadian National Railway and
Beatty (1981), 128 D.L.R. (3d) 236 (Ont. Div. Ct.). Professor Beck and Mr.
10
Goodfellow expressly relied upon the decision in Canadian National
RailwayDQG0V$EUDPVN\FLWHG0U*RRGIHOORZ¶VDZDUGLQFreshfield.
InCanadian National Railway, the collective agreement entitled
employees to receive sick pay from the fourth day of absence, but there was
a thirty-year practice of management paying employees during the three-day
waiting period. Professor Beatty ruled the employer was estopped from
altering this practice during the life of the collective agreement, because the
HPSOR\HU¶VFRQGXFWDPRXQWHGWRDUHSUHVHQWDWLRQWKDWWKHDJUHHPHQWZRXOG
not be strictly applied and the union had relied upon this representation by
not seeking to amend the agreement during several rounds of bargaining.
Upholding this award, the Divisional Court said:
7KHUHOLDQFHE\WKHXQLRQRQWKHFRPSDQ\¶VORQJHVWDEOLVKHGSUDFWLFH
DQGWKHFRPSDQ\¶VIDLOXUHWRLQGLFDWHRUUHTXHVWDQ\FKDQJHLQWKDW
practice led the union not to make any proposal on its part [at the
bargaining table] regarding the maintenance or the alteration of that
practice and represented an action by the union to its detriment. That
act justified the invocation of the doctrine [of estoppel by conduct].
(page 245)
By invoking this doctrine, the union succeeded in enforcing an entitlement to
sick pay greater than the one found in the written agreement.
7KH'LYLVLRQDO&RXUW¶VYLHZRIHVWRSSHODVHQXQFLDWHGLQCanadian
National Railway is reflected in the three awards cited by the employer.
These decisions take the same approach in two respects: first in finding the
conduct of one party amounted to a representation that contractual rights
would not be enforced; and second in holding the other party relied to its
detriment upon this representation by foregoing an opportunity to amend the
contract during negotiations for its renewal. In Molson Brewery, as in
Canadian National Railway, the representation was found in a long-
11
standing practice of the employer which was more favourable to employees
than was the language of the agreement. The shoe was on the other foot in
Freshfield and :RUNHUV¶&RPSHQVDWLRQ%RDUG where the representation was
IRXQGLQWKHXQLRQ¶VIDLOXUHWRREMHFWWRDORQJVWDQGLQJSUDFWLFHNQRZQWR
WKHXQLRQZKLFKEHQWWKHDJUHHPHQWLQPDQDJHPHQW¶VIDYRXU,QDOOWKUHH
cases, the party to whom the representation had been made was found to
have relied upon it detrimentally by not seeking to amend the collective
agreement during one or more rounds of negotiations when the practice had
been in effect.
Union counsel relies upon two awards setting out a different
understanding of estoppel by conduct: (1)/DEDWW¶V2QWDULR%UHZHULHVDQG
International Union of Operating Engineers (1983), 10 L.A.C. (3d) 29
(Weatherill); and (2) Georgian College of Applied Arts and Technology and
Ontario Public Service Employees Union (1997), 59 L.A.C. (4th) 129
(Schiff). In each of these cases, there was a long-standing employer practice
which was more favourable to management than was the language of the
collective agreement, the practice was known to the union, and the union
acquiesced in it for years before grieving.
0U:HDWKHULOODQG3URIHVVRU6FKLIIERWKKHOGWKHEDUJDLQLQJDJHQW¶V
acquiescence did not amount to a representation that it would not seek to
HQIRUFHWKHDJUHHPHQW'LVDJUHHLQJZLWK³UHIRUPHUV´OLNH3URIHVVRU%HDWW\
Professor Schiff wrote:
6RHYHQLIDXQLRQ¶VOHDGHUVKLSNQRZVWKDWDQHPSOR\HUDFWVLQD
certain way--and has so acted for a long time--the union may have no
idea whether or not the action violates some provision of the
agreement. Usually the silence is not an implied message that the union
is content the agreement is being honoured or that the union does not
care about a violation. Silence is often simply a message that no one
12
has yet complained to the union. It is a message that those in authority
have not yet compared the specifics of what the employer is doing to
what the agreement demands. ... Sometimes unions can be faulted for
not realizing sooner the legal significance of what is happening on the
HPSOR\HU¶VVLGH
An amendment should be made to what the reformers have said
is sufficient. ... [T]here should be no estoppel against the union unless
WKHXQLRQNQHZWKDWWKHHPSOR\HU¶VDFWLRQYLRODWHGWKHFROOHFWLYH
agreement. (page 8)
Mr. Weatherill and Professor Schiff also declined to find detrimental
reliance in a foregone opportunity to amend a collective agreement at the
bargaining table. Mr. Weatherill wrote:
Further, we do not consider there has been the sort of detrimental
reliance on which an estoppel could be properly based. To assume, as
VRPHDUELWUDWRUVKDYHEHHQSUHSDUHGWRGRWKDWWKH³ORVVRIDQ
RSSRUWXQLW\WRQHJRWLDWH´FRQVWLWXWHVGHWULPHQWDOUHOLDQFHLVLQRXU
view, to sound the unfathomable. (page 32)
In my view, the proper understanding of estoppel by conduct is the
one applied by Professor Beatty in Canadian National Railway, endorsed
by the Divisional Court in that case and adopted by Ms. Abramsky speaking
for this board in :RUNHUV¶&RPSHQVDWLRQ%RDUGAs well as being mandated
by the decision of the Divisional Court in Canadian National Railway, this
approach accords with basic notions of fairness by preventing either party to
a collective agreement from unilaterally changing a long-standing practice,
where the change is attempted without allowing the party opposite an
opportunity to negotiate an amendment which would make the contract
conform with the practice. Until a collective agreement comes open for
renewal, an employer may not repudiate a practice favouring employees, and
13
a union cannot compel an employer to alter a practice which benefits
management.
This broad understanding of estoppel by conduct leads me to
conclude the union, during the term of the current collective agreement, may
not enforce the contractual entitlement of unclassified, full-time employees to
merit increases based upon 1912 hours.
In closing, I note this broad view of estoppel works against the interest
of full-time employees in this case, but the same understanding would assist
part-time employees in the event the employer ended its practice of granting
them merits increases based upon 2080 hours for which there is no
contractual foundation.
V
In summary, I have concluded that:
1.unclassified employees working part-time have no contractual
entitlement to merit increases;
2.the collective agreement entitles unclassified employees working
full-time to merit increases at intervals of 1912 hours; and
3.the union is estopped from enforcing this entitlement during the
term of the current collective agreement.
14
th
Dated at Toronto, this 9 day of November, 2000.
Richard Brown, Vice-Chair.
15