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HomeMy WebLinkAbout2016-1301.Campbell et al.21-04-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2016-1301; 2016-1568 UNION# 2016-0108-0016; 2016-0999-0059 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Campbell et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 15, 2021 -2- DECISION [1] A group grievance and a union grievance dated August 20, 2016, and September 19, 2016, respectively came before the Board. The dispute in both grievances was about when fixed-term employees employed in corrections progress through the salary grid under article 31A.2.3. of the collective agreement, which reads: 31A.2.3 For the purposes of Article 31A.2.2, an employee shall progress through the salary range upon the completion of a minimum of one thousand seven hundred and twenty-five and a half (1,725.50) straight-time hours or one thousand nine hundred and four (1,904) straight-time hours, as applicable, including authorized leaves of absences. [2] In applying this provision to fixed-term employees, the employer followed the following policy, (hereinafter referred to as “the policy”). Those reaching the applicable threshold of hours (1,725.50 or 1,904) on the 15th or later in a month progressed through the salary grid and received the merit increase only on the first day of the following month. This policy had been followed over a long period. The instant grievances claimed that all employees are entitled to the merit increase as soon as they reach the required threshold of hours. [3] When the hearing commenced the parties agreed that the Board should initially interpret article 31A.2.3 and determine whether the employer’s application of the policy is compliant with the article. The employer reserved the right to argue estoppel in the event the Board concludes that the policy violated the collective agreement. The Board issued its decision dated August 11, 2020 finding in favour of the union on the interpretation issue. [4] This decision relates to a motion by the employer for a declaration that the union is estopped from asserting its rights under article 31A.2.3. as interpreted by the Board. The Board received documentary evidence and submissions on the motion. The parties also agreed that evidence led in relation to the interpretation issue may be relied on to the extent it is relevant. -3- Employer Submissions [5] Article 31A.2.3 was first included in the 2009-2012 collective agreement, and has continued in the subsequent 2013-2014 and 2015-2017 collective agreements. However, the employer submitted that the evidence is clear that the policy had been consistently applied to corrections fixed-term employees at least from 1992. A memorandum dated August 4, 1992 from then Director of Human Resources, Mr. R.G. Dawson, addressed to corrections senior management including assistant deputy ministers, branch directors and area managers, with copy to the Deputy Minister, (“Dawson Memo”) was filed in evidence. The subject of the memorandum was “Merit Increase Policy – Unclassified staff”. The policy is stated to be “… effective July 1, 1992, and applies to any staff member in the unclassified service effective that day”. (Note: “unclassified” employees are now known as “fixed-term” employees). The memorandum also states that “The Personnel Policy and Procedures Manual will be updated to reflect this new policy”. The policy was attached to the memorandum. [6] The policy itself sets out its purpose as, “To provide for merit increases for unclassified employees”. It then sets out the eligibility requirements for merit increases, including the required threshold of hours of work for employees in the schedules. The policy then sets out the following: “Merit increases are to be applied the first of the month following completion of the required number of hours”. [7] Also filed in evidence is a memorandum dated October 13, 2006 from Director of Human Resources, Mr. David Walker, addressed to “All Ministry Managers”. (“Walker Memo”). Although the focus of the memorandum appears to be clarification of the practice of awarding of merit increases to irregularly scheduled and on-call unclassified staff, it includes the general statement, “The merit anniversary date will be the 1st of the month after the date that the required number of hours has been worked.” [8] A further memorandum dated May 28, 1997 from Senior HR Consultant, Mr. Barry Thomas, addressed to numerous management staff under the subject “Merit -4- Increase Policy -Unclassified Staff” (“Thomas Memorandum”) was filed. It notes that in recent weeks there had been inquiries about the application of merit increases of unclassified staff, attached the Dawson Memo of 1992, and quoted the first of the month policy in it. [9] Employer counsel also referred to minutes of three meetings of the Central Employee Relations Committee (CERC) after article 31A.2.3 was included in the collective agreement. The minutes of the meeting on November 3, 2010, indicates that there was discussion about article 31A.2.3 and that an agreement was signed by the union and the employer on the minimum work hours required for eligibility for merit increases for unclassified employees. The minutes of the CERC meeting on January 5, 2011 records that the union informed that ministries were not consistent in applying merit increases for fixed-term employees. The “action” to be taken was that the employer would send out a memorandum clarifying the application of fixed- term merit increases. The minutes of the CERC meeting of February 15, 2011 show that the employer advised the union that a memorandum has been drafted to remind management staff on the application of merit increases to fixed-term employees based on hours worked. A meeting was scheduled for February 25, 2011 to further discuss this. [10] The employer introduced a letter dated February 8, 2011, from the Deputy Minister to the CERC union co-chair, confirming the meeting held on January 28, 2011 to discuss “fixed-term merit increases and seniority for purposes of competitions” and implementing a system for “calculation of merit dates for fixed-term employees based on hours worked”. [11] Counsel also filed in evidence screen shots of payroll records for several fixed-term employees, as examples showing that for pay rate increases resulting from merit increases the “effective date” was a first day of a month. [12] Employer counsel conceded that the Dawson, Walker and Thomas Memoranda were addressed only to management staff and that there is no evidence that copies -5- of any of them were provided to the union by the employer. However, he relied on them to establish that since 1992 the employer continuously applied the policy. [13] Counsel agreed that the minutes of the CERC meetings, while establishing that article 31A.2.3 was discussed, do not indicate that the first of the month policy itself was discussed. However, he submitted that in light of this evidence that there had been on-going discussions between the parties about that provision, it is not plausible that the union was not aware until 2016 that fixed-term employees were given merit increases on the first day of the following month. [14] Counsel noted that the union did not call any evidence whatsoever to indicate that the union was unaware that the employer was applying the policy despite the inclusion of article 31A.2.3 in the collective agreement. He argued that even if the union had no actual knowledge, it is no defence because it reasonably ought to have been aware. The employer had not kept secret the fact that it was applying the first of the month policy. It was applied to a large number of fixed-term employees. Their WIN records clearly would have shown the pattern of merit increases being applied on the first of a month. Had the union made some inquiry, it would have quickly found out that the employer had been applying the policy continuously and consistently. Counsel also referred to two decisions determining grievances relating to the application of article 31A.2.3. Union Submissions [15] Union counsel pointed out that while the evidence indicates that the employer had applied the first of the month policy since 1992, it does not establish that the policy was clear or that it was applied consistently. There was no evidence led to establish that the union was aware before 2016 that the employer was applying the policy. [16] Citing case law, counsel submitted that for estoppel to apply, the employer policy and how it was applied must have been clear. In the instant case the employer’s policy of applying merit increases, on the first of the following month was not clear nor consistent. Even employer witness Ms. Casey Daley could not clearly explain -6- how the first of the month policy was applied. Union counsel agreed that to establish estoppel against the union, it is not necessary to prove that it had actual knowledge that the collective agreement was not being adhered to by the employer. Constructive knowledge may be imputed in appropriate circumstances. However, in this case that cannot be done since the practice itself was not clear. The evidence the employer adduced to show that a number of fixed-term employees were given their merit increases on the basis of the first of the month policy, the memoranda circulated by management in 1992 and 1994, and the deliberations at CERC, is not sufficient to establish that the union would or should have known that the employer was applying the first of the month policy consistently. It was submitted that while employees had access to their WIN sheets which set out when their merit increases were applied, that is not sufficient to impute constructive knowledge to the union. Counsel submitted that the two GSB decisions the employer relied on, only establish that they involved other issues arising out of article 31A.3.2. However, there is nothing in those decisions to indicate that the parties or the Board turned their to the issue of when exactly merit increases are being applied by the employer. [17] Counsel submitted also that the minutes of CERC meetings only show that the parties discussed and clarified other issues relating to article 31A.2.3. That does not establish that the union became aware that the employer was applying merit increases on fixed-term employees improperly. Even if it did, it was reasonable for the union to assume that the delayed implementation of merit increases was due to administrative lags. She also argued that the words “are to be applied” in the policy are not clear. [18] Union counsel submitted that in 2009 the parties included clear language in the collective agreement that merit increases are due upon completion of a specified number of hours of work. There is no evidence that since then the union had knowledge of how the employer was misinterpreting or misapplying that clear language. Therefore, its failure to challenge the practice cannot be seen as acquiescence on its part. It was submitted that to allow the employer to get away -7- with its violation of clear collective agreement language in these circumstances would be unconscionable. Employer Reply [19] Employer counsel conceded that Ms. Casey Daley, Compensation Policy Advisor in the Compensation Strategy Branch of the Treasury Board Secretariat was unclear about how the employer applied merit increases under article 31A.2.3. He pointed out that the policy applied to corrections only. Ms. Daley’s role as a TBS staff member required her to advice managers in all ministries on all types of compensation related issues. She testified that she was often unable to provide adequate answers when managers from ministries made inquiries, and that she had to refer them to Ontario Shared Services or Human Resources. Several times during testimony, when asked about how merit increases worked under article 31A.2.3 she replied that she did not know. In cross-examination, she actually stated that she was guessing. Counsel submitted that Ms. Daley’s evidence shows that she had no role in implementing merit increases. She had no knowledge as to how the ministry operationalized merit increases. Counsel contrasted this with the evidence of Ms. Theresa Bramwell, the other employer witness. She was a Corrections Manager and since 2009 was the Deputy Superintendent of Finance at CNCC, the institution where the instant grievances originated. Therefore, at that institution she had direct knowledge of how article 31A.2.3 was applied. She was very clear that merit increases were consistently applied to fixed-term employees in accordance with the first of the month policy since 2009. Counsel submitted that Ms. Bramwell’s clear evidence should be preferred over Ms. Daley’s. Counsel referred to the union’s assertion that it was reasonable for the union to assume that the employer’s delay in documenting merit increases until the first of the following month was due to administrative difficulties, and that it misunderstood the words “are to be applied” in the 1992 policy were not clear. Counsel submitted that while counsel made these assertions no union witness was called to testify that such assumption or misunderstanding actually occurred. -8- [20] Counsel submitted that for some fifteen years the union induced the employer to continue the policy, believing that the union acquiesced. Given the wide-spread and consistent application of that policy and the evidence of the many ways the union would have gained knowledge of the policy, it is implausible that it had no knowledge at all of how merit increases were applied. Counsel submitted that even if the Board finds that there was no actual knowledge, the union would have easily seen a pattern of merit increases being applied on the first day of a month, had it made any inquiry. If it was not clear to the union, it should have sought clarification from the employer. Counsel submitted that the Board should conclude that the union had constructive knowledge, and that it is therefore estopped. DECISION [21] The parties are in agreed that the Board has jurisdiction to apply the doctrine of estoppel. The dispute is whether or not all requirements for application of the doctrine are met. In applying estoppel in grievance arbitration, arbitrators have described the requirements in different words. However, the requirements are well established. In Brown & Beatty, Canadian Labour Arbitration, at 2:2211, the requirements, as relevant in this case, are set out as follows: The essentials of estoppel are: a clear and unequivocal representation, … which may be made by words or conduct, or in some circumstances it may result from silence or acquiescence, intended to be relied on by the party to who it was directed; although that intention may be inferred from what reasonably should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom. However, it has been held that as long as it is apparent that the arbitrator understood and applied the doctrine, it is not necessary that each element be analyzed separately. (Foot-notes omitted). [22] The Board was provided with numerous arbitration and court decisions on estoppel. Since the legal principles are well established, and their application depends on the evidence in each case. I need not review all of the authorities submitted by the parties. [23] Estoppel does not create or extinguish rights. It merely prevents one of the parties – union or employer – from asserting a right it has. Also, the doctrine is reciprocal. Where the requirements are met, estoppel applies whether it is an employer -9- asserting it to confirm a practice not in compliance with a collective agreement provision (as in this case) or it is a union is relying on estoppel to maintain a practice or policy which is more generous than a right under the collective agreement or not provided in the collective agreement. [24] As noted in the Board’s decision dated August 11, 2020 the employer’s practice of applying the first of the month policy to flex-time employees had continued since 1992, and the language of the article has remained unchanged in subsequent renewal collective agreements including the 2015-2017 collective agreement. The primary position of the union in response to the estoppel motion is to the effect that the evidence does not establish that the policy was clear or that it was consistently applied, and that therefore, there is no reasonable basis to conclude that the union was aware of how the employer was applying the policy. It was submitted that the union’s failure to challenge or grieve the policy should not be viewed as acquiescence in the circumstances. [25] An oft- cited case dealing with an employer asserting estoppel on the grounds of union inaction in the face of a long-standing practice of the employer is Board of Commissioners of Policy for the City of Owen Sound, (1984) 14 L.A.C. (3d) 46 (M.G. Picher). (“Owen Sound”) There the grievance challenged the employer’s interpretation of the sick leave credit provision of the collective agreement which had been consistently applied by the employer for some 25 years. At arbitration the employer maintained that its interpretation should be upheld. In the alternative, it submitted that the union’s failure to grieve for some 25 years estopped the union from asserting the claim in the grievance. The arbitrator concluded that the employer had misapplied the provision over the years and that the union’s’ interpretation was correct. [26] Turning to the employer’s alternate position, at para 22 he reviewed the elements of estoppel: I turn now to consider the question of estoppel. The doctrine of estoppel applies when a number of essential elements are established. Firstly, there must be a course of conduct or a statement by one party to a collective agreement to the other which -10- amounts to a representation that it will not insist upon the strict application of its rights under the agreement. The representation must be made and be received as intended to alter the legal relations of the parties. Secondly, the party to whom the representation is made must rely on it, and so change its position in reliance upon the representation that it would suffer prejudice if the representation were withdrawn, with a return to the enforcement of the strict rights of the parties under the agreement. When the foregoing conditions are established a board of arbitration may view either a grieving party or a responding party as estopped from advancing a condition inconsistent with that which it has previously adopted: see Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 4 L.A.C. (3d) 205 (Beatty), affirmed 128 D.L.R. (3d) 236, 82 C.L.L.C. para. 14,163, 34 O.R. (2d) 385, sub nom. Re C.N.R. Co. et al. and Beatty et al. (Ont. Div. Ct.). [27] On the issue of the union’s knowledge of the employer’s long-standing practice, he wrote at para. 31: While there is no evidence before me either way on whether the association knew of the board of commissioners' practice with respect to computing sick-leave credits over many years, I am satisfied, given the figures which were at all times available to the association that it reasonably should have known how art. 14 was being applied. To put it differently, for many years the association had constructive notice of the employer's calculation of sick-leave credits. It would be inequitable to let it now assert the rights of an ignorant party which has just discovered a violation of its rights. The board of commissioners has relied on the acquiescence of the association, and has accordingly geared its financial planning and expectations for the life of the current collective agreement. [28] In National Paper Goods, (2001) 102 L.A.C (4th) 32 (Abramsky) the arbitrator concluded that there had been a long-standing and consistent employer practice of scheduling part-time employees only during regular shifts Monday to Friday to fill in for bargaining unit employees or in emergencies. The union asserted estoppel when the employer sought to discontinue the practice. At para. 35, arbitrator Abramsky wrote: The Employer asserts that because management was unaware of any limitation on the scheduling of part time employees except for the 24 hour limitation, there was no intent that the practice should affect the legal relations of the parties. In Re Dominion Controls Company Division of Babcock Industries Canada Inc. and I.A.M.A.W., Loc. Lodge 1927, supra, Arbitrator Levinson dealt with the argument that a practice cannot be considered to have been intended to affect legal relations unless there is an actual or subjective intention by upper- level management to do so. The arbitrator rejected that contention stating at p. 31: While subjective intention is one factor to be considered, it is not the only factor and consideration must be given to all the circumstances. In my view the issue of intention to affect legal relations must be determined on an objective basis having regard to all the circumstances when considering whether the practice reasonably led the Union to believe that [the -11- collective agreement] would not be applied. An inference reasonably drawn from the practice is that the Company has manifested an intention to affect legal relations. It was held that that the union’s assumption that the practice would continue was reasonable in light of the duration and consistency of the practice, and that the union had relied on it. [29] In Toronto Transit Commission, (1992) 26 LA.C. (4th) 196, the Board stated that “The critical issue here is the union’s knowledge of and acquiescence in the past practice”. The union had asserted that it was not aware of the policy. At para. 17, the Board wrote: However, in Re Board of Com'rs of Police for City of Owen Sound and Owen Sound Police Assn. (1984), 14 L.A.C. (3d) 46, arbitrator M.G. Picher imputed knowledge to the union of a longstanding past practice where the formula by which the employer calculated sick-leave credits was at all times readily accessible to the members of the association. Arbitrator Picher found that there was no reason why a diligent employee or representative of the union could not by the application of a reasonable degree of care have scrutinized and fully understood the interpretation of the article in question which was at all times reflected in the records of the employer which were openly available to employees. The arbitrator concluded at p. 58: While there is no evidence before me either way on whether the association knew of the board of commissioners' practice with respect to computing sick-leave credits over many years, I am satisfied, given the figures which were at all times available to the association that it reasonably should have known how art. 14 was being applied. To put it differently, for many years the association had constructive notice of the employer's calculation of sick-leave credits. It would be inequitable to let it now assert the rights of an ignorant party which has just discovered a violation of its rights. In Re TRW Canada, Carr Division and C.A.W., Loc. 397 (1989), 4 L.A.C. (4th) 310, arbitrator Palmer in a case factually similar to this one found that it was not open to the union to argue that they were not aware of the practice in question. The length over which it had occurred and the number of times when the company had denied payment placed the union in a position where such knowledge must be imputed to them. The issue was whether or not someone on lay-off was entitled to vacation pay, which was clearly called for in the collective agreement. Over many years, however, the employer had paid it only to people who were on active employment on July 1st of the relevant vacation year. One of the people so treated was a union steward who had not complained. On the evidence in that case the Board imputed knowledge of the practice to the union. [30] In Re. Cartwright et al, GSB 2002-1457 (Abramsky), the Board, having held that the employer had not violated the collective agreement, wrote: -12- Further, in the alternative, even if I am wrong regarding this interpretation of the collective agreement, I would find that the Union is estopped from asserting its rights under the collective agreement. In this regard, I find all of the required elements of equitable estoppel to be present. There has been a very lengthy past practice to tie an acting employee’s salary, including any increases, to their acting position, not their home position. Throughout this time, the relevant collective agreement language has remained unchanged. The Union has never challenged management’s actions in this regard, until these grievances, and consequently, the parties have not dealt with this issue in collective bargaining. In these circumstances, it would be inequitable for the Union to now assert that that the Employer is violating the collective agreement in the manner alleged. [31 Union counsel’s assertion that the evidence does not establish that the employer’s first of the month policy was clear or that it was consistently applied, is based on Ms. Daley’s testimony. I agree, and the employer acknowledged, that Ms. Daley was not clear on how fixed-term employees were given merit increases. In cross- examination she even contradicted her own testimony in chief. However, the evidence is that Ms. Daley was a Treasury Board Secretariat staff member, providing advice and consultation to managers in all ministries on compensation related policies. She was not responsible for making decisions and not involved in implementing merit increases under article 31A.2.3 to flex-time employees in corrections. It was apparent that Ms. Daley was not certain about how the policy was operationalized in corrections. Both during her direct testimony and in cross- examination, when counsel posed questions, she replied that she did not know. She also stated that she often referred inquiries from ministry managers which she could not answer to human resources or to Ontario Shared Services. I do not find the lack of knowledge on Ms. Daley’s part to be evidence that the policy itself was unclear or not consistently applied. The Dawson Memorandum of 1992 was widely circulated. Its subject was “Merit Increase Policy – unclassified staff”, and is stated to be effective July 1, 1992. The attached policy itself also repeats the effective date, and states, inter alia, “Merit increases are to be applied the first of the month following completion of the required number of hours of work”. The same statement was reproduced in the subsequent Walker and Thomas memoranda. I do not find any lack of clarity in this language. The testimony by Ms. Bramwell, who as Deputy Superintendent of Finance at the CNCC had hands-on knowledge of how merit -13- increases were applied, was very clear that it was done consistently in compliance with the first of the month policy. [32] Union counsel argued that the employer had produced documentary evidence only to the effect that some of the flex-time employees in corrections had received their merit increases on the first of the month. She pointed out that this is only a small sample of the much larger complement of flex-time employees in corrections. While this is true, the union did not assert, and there is no evidence, that the employer had selectively picked these sample employees in order to support its position. It is not reasonable to expect the employer to establish that every flex-time employee in the ministry was treated in compliance with the policy. Moreover, the union did not adduce evidence of any flex-time employees not subjected to the policy. [33] Similarly, union counsel correctly asserted that while article 31A.2.3 itself was discussed at joint employer- union meetings, none of those discussions were about when merit increases are applied. Similarly, none of the grievances arbitrated before the GSB were about when merit increases are applied. There is no evidence in this case whether or not the union ever became aware of the policy itself or the Dawson, Walker or Thomas memoranda. To that extent, the facts are analogous to the facts in Owen Sound supra, and the reasoning at para 31 equally applies here. As in Owen Sound there is no reason why a diligent union representative engaged in discussions with the employer and even litigating article 31A.2.3, could not by the application of a reasonable degree of care understood how the employer was interpreting and applying the article, since the records of the employer available to it, if not directly, through its members, would have readily disclosed that. In the circumstances, it is not open to the union to plead ignorance. [34] I am satisfied, given all of the evidence before me, that even if the union did not have actual knowledge, it reasonably should have known how article 31A.2.3 was being applied. In other words, for many years the union had constructive knowledge of how the employer was interpreting and applying the article, and therefore, to -14- borrow language from Owen Sound, “it would be inequitable to let it now assert the rights of an ignorant party which has just discovered a violation of its rights”. [35] This conclusion appears also to be supported by the judgement of the Supreme Court of Canada in Nor-Man Regional Health Authority Inc, [2011] 3 S.C.J. No. 59. The arbitrator had held that while the collective agreement entitled the grievor to the right asserted in the grievance, for many years the union had acquiesced in the employer’s practice of denying that right, and that the union was therefore estopped from claiming the right. The arbitrator had concluded that the only representation by the union was its silent acquiescence, and that there was no evidence that it had firsthand knowledge of the employer’s practice or had ever discussed it with the employer. It was held that “if the union was not aware, it certainly ought to have been aware” of the employer’s application of the articles in question. The court upheld the arbitrator’s award. [36] I agree with the following observation by arbitrator Bendel in Corporation of the County of Peterborough, (2015) Canlii 38270, about the Supreme Court of Canada judgement in Re Nor-Man: The Supreme Court, it would appear, did not therefore endorse the view that, for the purposes of estoppel, a union must be held to have known of every employer practice that might have affected bargaining unit employees. Rather, I read its decision as affirming that the union will be estopped if, in view of dealings between itself, the employer and the employee, it is reasonable to conclude, even where there is no evidence of actual knowledge of the practice, that the union in fact knew of the practice. [37] In other words, whether a party “ought to have known”, and whether knowledge should be imputed even in the absence of evidence of actual knowledge, depends on the facts of each case. [38] In that case arbitrator Bendel wrote as follows in concluding that there was no rational basis to conclude that the union should be deemed to have known of the employer practice: -15- The most that can be said, in support of the employer’s plea of estoppel, is that individual employees working the shift in question had information provided on their pay-cheques from which they could have calculated the rate being paid. However, to place even that fact in context, it is pertinent to note that the union’s claim is that the 14 employees who worked that shift were underpaid, on average, the modest sum of about $15.00 each, and that this was a situation that could not arise more than once a year for any employee. There was thus no evidence whatsoever to suggest that the union actually knew of the practice before January 2015. There was also, in my view, no rational basis to conclude that the union, even in the absence of evidence showing actual knowledge of the practice, should be deemed to have known of the practice. In the absence of any representation by the union, the employer’s estoppel argument must be dismissed. [39] In the instant case, I conclude, as arbitrator Picher did in Owen Sound, and employer counsel submitted in this case, that there is no reason why a diligent employee or union representative could not by the application of a reasonable degree of care have understood how the employer was interpreting and applying article 31A.2.3, which was clearly set out in the policy and employee records which were available to employees and the union for review. The article itself in plain language states that progression takes place “upon the completion of” the specified hours of work. The union dealt with this article in discussion with the employer and in litigation. It should have caused the union to at least question how the employer was applying that language. Therefore, knowledge must be imputed to the union. [40] Union counsel further argued that here was no evidence to establish that the employer suffered any detriment as a result of reliance on the union’s failure to challenge or grieve the employer’s practice. In National Paper Goods, (supra) it was the union claiming that the employer was estopped from discontinuing a longstanding practice. In concluding that there was detrimental reliance, at para. 37-39, the arbitrator wrote: 37. The Union asserts that it relied on the Company's consistent past practice in terms of scheduling part time employees when it negotiated the collective agreement and the Letter of Understanding concerning weekend shifts. It submits that had it known that the Company planned to change its practice it would have sought to bargain the issue. The Company in response asserts that there is no evidence from any of the Union's witnesses that the Union would have sought to bargain the issue. -16- 38. The Employer is correct that there was no specific testimony that had the Union known about this change, it would have sought to bargain the issue. But there is testimony that the Union relied on the long-standing existence of the practice in collective bargaining. Chapel Chairman Tom McCarthy testified on cross-examination that he assumed that the Company's practice regarding the scheduling of part time employees would continue even though nothing specific was stated during collective bargaining. He stated that in my mind it was going to continue the same way. This testimony clearly demonstrates the Union's reliance on the Company's practice during negotiations. This testimony plus the fact that McCarthy immediately filed a policy grievance upon learning about the Company's change in practice leads to the conclusion that the Union would have taken issue with the change had it been advised at the time. 39. In Re Commemorative Services of Ontario and Service Employees International Union Local 204, supra, there was no specific testimonial evidence cited that the Union would have negotiated the issue had it known of the Employer's plans Instead the Union argued that the detriment it experienced was the loss of the opportunity to negotiate the issue in dispute. The arbitrator concluded at p. 181 that having regard to the timing of the employer's change in its practice of providing workers compensation coverage, there can be no doubt that there has been a detriment to the union. [41] The issue of “loss of opportunity to bargain” as detrimental reliance has also been addressed by this Board. In Re Sin, GSB 2005-3601 (Dissanayake) the employer argued that the union had not adduced sufficient evidence to establish that but for the reliance on the employer’s practice, it would have sought to negotiate and include the practice as part of the collective agreement. In support, reliance was placed on OPSEU and Ministry of Health and Long-Term Care, 2005-3289 (Gray). The Board in Re Sin wrote at page 26: Counsel drew my attention to para. 30 of the Gray decision (supra) which states: Many reported awards have arisen out of an employer’s discontinuing a practice more favourable to its employees than the applicable collective agreement required. In such cases the union generally asserts that if it had known during negotiations for that collective agreement that the employer would thereafter discontinue the practice, it would have bargained to add the practice to the employer’s obligations under the collective agreement. That is not enough to support a finding that estoppel prevents the employer from altering the practice for the life of the agreement, however. Before it can achieve that, the union must establish that before or during that bargaining the employer represented by its words or conduct that it would continue the practice for the life of the ensuing collective agreement, and that it was that representation that induced it not to raise the matter in bargaining. While I do not disagree with the principle set out in that award, I do not agree that there is an obligation on the party asserting estoppel, to affirmatively lead evidence to prove that it would have acted in a certain way, had -17- the other party conducted itself differently. That would be an impossible onus to meet. To give an extreme illustration, how would one lead evidence to “prove” that instead of wearing shorts and a tee shirt, he would have worn warm clothing had he known that the outside temperature would decrease from 25 Celsius to 10 Celsius in a matter of a few hours. That would be impossible to do apart from stating that that how is he would have responded. It is up to the trier of fact to determine in light of all of the circumstances and evidence, whether that assertion is reasonable and believable. [42] I agree with arbitrator Gray that a mere assertion by a party that it would have sought to bargain may not always be enough. In each case, the arbitrator must determine based on all of the evidence whether the assertion is plausible and believable. In National Paper Goods (supra), and Re Sin (supra) the arbitrators did that and concluded that detrimental reliance had been established. [43] It is now well established that loss of bargaining opportunity may be the basis for an assertion of detrimental reliance, provided the assertion is plausible and believable. Thus in Re Beatrice Foods Inc., (1994) 44 L.A.C. (4th) 59 (MacDowell) at para. 43, the arbitrator wrote: It is now fairly well established that an arbitrator can apply the principle of estoppel in determining how a collective agreement should be administered; moreover, there is nothing particularly novel about the assertion that a pattern of action (or inaction) can amount to a "representation" about how one's rights will be interpreted. (See, for example, Re Consolidated-Bathurst Packaging Ltd. and I.W.A., Loc. 2-242 (1982), 6 L.A.C. (3d) 30 (MacDowell), and cases referred to therein, where it was the union's behaviour that amounted to a representation that it would not rely on its strict legal rights.) Nor is it novel to suggest that the loss of a bargaining opportunity may amount to an unfairness precluding one party or the other from initiating change prior to the next round of bargaining. Thus, in Re Kemptville District Hospital and O.N.A. (1988), 1 L.A.C. (4th) 360 (Burkett), the employer had routinely extended paid holidays to part-time employees who were not entitled to them under the terms of the collective agreement, and upon discovering the error, sought to return to its strict legal rights. But the arbitrator held that the employer was estopped from doing so until the next round of bargaining [at pp. 369-70]: The failure of the employer to advise the local union in advance of bargaining, as it is required to do under the ratio of CN/CP, gives rise to a lost opportunity that cannot be realized until the next round of bargaining. This "lost opportunity" constitutes the necessary detrimental reliance. Having regard to all of the foregoing we hereby declare that the hospital is estopped from altering the long-standing practice of paying part-time nurses for paid holidays not worked for the life of the 1986-1988 collective agreement and to compensate those affected in an amount equal to what they would have received during the life of the 1986-1988 collective agreement had the practice not been discontinued. -18- [44] In summary, I find that all elements of estoppel have been established. The union is therefore estopped from asserting its rights under article 31A.2.3. [45] The employer raised the issue of the duration of the estoppel if its position is upheld. Generally where loss of opportunity to bargain was the basis for finding detrimental reliance, arbitrators impose estoppel for the duration of the collective agreement in effect at the time of the award. This seems to be sensible. Where the detriment was the inability to bargain, that detriment ceases only when the impacted party gets the opportunity to recoup the opportunity it lost. This is at the next negotiations for a collective agreement. When the current collective agreement ends, and a new collective agreement takes effect, the estoppel ends. [46] The parties requested that the Board remain seized to receive submissions on the issue of the duration of the estoppel, should estoppel be applied. If the employer intends to assert a duration other than the duration of the current collective agreement in the circumstances of this case, and the parties are not able to resolve the issue, the Board expects the parties to make complete and full submissions in writing, commencing with the employer. The parties are directed to attempt to agree upon a schedule for submissions. [47] The Board remains seized with jurisdiction to deal with any and all outstanding issues. Dated at Toronto, Ontario this 9th day of April, 2021. “Nimal Dissanayake” ______________________ Nimal Dissanayake, Arbitrator