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HomeMy WebLinkAbout1978-0112.Union.82-01-19IN THE MATTER OF AM ARBITRATION Under THE CROWN EMPLOYEES.COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Ontario Public Service Employees Union Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman L. Robinson Member W. Evans Member For the Griever: R. Wells, Counsel C?llE!JZOll , Brewin & Scott For the Employer: J. Zarudny, counsel Ministry of the Attorney general January 13, 1982 This matter, initiated in April, 1978, did not come on for hearing until January 13, 198'2. At that time, argument was heard only on the Employer's prelim- inary objection that the Union's "policy grievance" is not arbitrable. It was agreed that the Board should determine the issue of arbitrability before any further step is taken. The issue turns on pertain documents on record which were received and filed by consent as Exhibits. These constitute the only evidence in respect of arbitra- bility. On March 15, 1978, Mr. D. E. Taylor, Director, Probation and Parole Services, issued a memorandum, Exhibit 4, on $he subject of "Overtime Meals", addressed to "All Probation and Parole Staff." It was as follows: "Since the signing of the collective agreement, there has been considerable tisundesstanding in Probation and Parole around overtime meal allowance for bargaining unit employees. This allowance has been detxmine6 by Article 17.1.1. of the Collective Agreement (Working Conditions). This Article states - "An employee who Continues to work more than two (2) hours of overtime immediately following his scheduled hours of work without notification of the requirement to work such overtime, prior to the end of his previously scheduled shift, shall be reimbursed for the cost of One (1) meal to two dollars and fifty cents ($2.50) except where free meals are provided or where the employee is being com- pensated for meals on some other basis." .’ -3- the operative provision 'for bargaining u+it employees is for the payment of one meal to $2.50 after two hours of overtime innnediately following the scheduled hours of work, and provided that no prior,notification had been given of the requirement to. work such overtime. This Article is only applicable to employees who, in tire course of overtime duty, are within 15 miles of their home office." The collective agreement effective in 1978, Exhibit 1, included "Article 17 - Meal ~llowance~~, as follows: :_., ./ .:_ ,:i . . ., /.~ ,.,, .( -4- In brief, it should be stated at this point that the respective positions of the parties are as follows: (1) The Employer argues that ins substance the grievance. raises a groundless claim under 17.1.1 or that it claims meal allowances not specifically listed or authorized anywhere in the collective agreement. (2) The Union argues that its claim is based not on 17.1.1 but on 17.2.5, and if there is a hearing on the merits, it will seek to prove there had been an established and authorized practice under that subsection of paying meal allowances to officersregularly scheduled to~work one night a week. On April 18, 1978, Mr. Charles Darrow, then President of O.P.S.E.U., lodged a grievance by way of the following document, Exhibit 2, addressed.to the Deputy Minister of Correctional SerViCes: “The union hereby grieves the violation of Article 17 in that a directive dated March 15th, 1978, from Mr. Dixon Taylor, unilaterally alters the established practice of providing full compensation for an evening meal to.probation and parole offioers on their regularly scheduled week&y evening reporting .assignments. The union contends that Article 17 clearly, contemplates the existence of local arrangements for the payment of meal atlowanties in excess of those described in Article 17, and we further contend that such local arrangements cannot be modified unilaterally by one party during the COUTS~ of the collective agreement. ,._,;,, :. I,.,/ ~ ..~~ -5- / The bunion therefore requests that. you direct Mr. Taylor to rescind his memo of March 15th, and to return to the original practice established under this collective agreement of providing full compensation to probation parole officers, for actual meal espenses. Further, on June.6, 1978, Mr. George Richards of O.P.S.E.U. addressed a letter, Exhibit.3, to the Registrar of this Board, as follows: The union hereby requests a hearing of the grievance dated April 18th, concern- ing the application of cl. 17 of the working conditions collective agreement dealing with meal allowances. The primary issue in dispute raised,by this grievance is whether OT not the provisions of Article 17 recogtiize and incorporate methods of compensation not specifically listed in the collective agreement, and whether OP not any such existing arrangements not expressly provided in the ,agreement can be enforced through the grievance and arbitration procedure. A copy of the original griev- ance is enclosed for your information. There is another document of some importance on record: This is a letter dated January 6, 1982, from the Employer's Counsel, Mr. J. Zarudny, to the Union!s Solicitors, Messrs. Cameron, Brewin and Scott (for the attention of Mr. Anand) giving notice of the Employer's intention to challenge the arbitrability of the grievance. Most of the letter embodies the argument--- or the principal points of the argument--- made by Mr. Zarudny on January 13. The relevant paragraphs are the following: .-. .,.~._ :,,,: ,... i . -6- IX view of the fact that this matter is scheduled to be heard on Januaru 13th, 1982, I am writing to advise you, as a - matter of courtesy, as to what position the employer will be taking. The employer in this matter has and will. continue to maintain the position that this policy grievance is inarbitrable and that the Grievance Settlement~Board has no latiful jurisdiction to arbitrate the com- plaint. The .employer takes the position that the complaint 2n this matter involves no difference between the parties to the Collective Agreement “arising from the interpretation, application, administration OP alleged contravention of the agreement” as re~quired by the former section 18(l) (now R.S.O. 1980, c. 108, section 19(l)). par your convenience, I enclose a copy of a letter dated June 6, 1976 from George Richards to the Registrar of the Board (Attachment #II: The employer takes the position that the June 6th, 1976 letter by Mr. Richards makes it clear that the com- plaint is premised upon an acceptance of the fact that the alleged meal compensation arrangement involving probation officers in respect of “late night reporting” is. “not specifically listed in the Collective Agreement”. The employer takes the posi- tion that the June 6th, 1978 letter by Mr. Richards is nothing more no* less than an attempt to use the grievance procedure in the executed Collective Agreement to enforce some alleged arrangement or grlrtuitoue privilege provided by manage- ment which is clearly and totally outside the Collective Agreement. The employer’s position is that this complaint involves no claim that any provision of the Collective Agreement has been breached. The employer takes the position that this policy grievance is nothing more,noz’ less than an attempt to use the arbitration procedure under the Collective Agreement to’create rights which do not exist under the Collective Agreement and is.thereby an attempt to create a system of “management by arbitration”, contrary to the former section 17(l) of The Crown Employees Col~lective Bargaining Act (now ” section 18(11 of the R.S.O. 1980 c. 108 revision). -l- The employer takes the position that this policy gritivance recognizes and: is premised upon an acceptance of the fact that Article 17.1 does not apply to probation officers inasmuch as they are “Schedule 6” employees within the meaning of Article 7.3 of the Collective Agreement arid thereby do not work any “overtime” within the meaning of Article 17.1:1. This, it seems to me,. would have left it open to then parties zn the past to enter into some arrangement whereby probation officers might re~ceive certain meal com- pensation for excessive hours work whcch would have been roughly equivalent to the benefit provided for by Article 17.1.1 to all other Crown employees. However, if 0.P.S;E.U. is taking the position in this matter that Article 17.1 does in fact apply to probation officers, then it seems to me to be equally obvious that probation, officera could merely be accorded their rights under Article 17.1.1 and not be treated any differently than any other Crown Employees. There seems to be no question between the parties that Articles 17.2 through 17.6 apply to the probation officers in question and that therefore they could derive no greater benefit than any other Crown Employees. The employer takes the position that this policy griev- ance involves no allegation of a breach of Article, 17.2 for if that were the case, the grievance would really amount to an individual OF group of individual griev- atices which would require a determination in respect of each and every.alleged con- travention of Article 17.2. The employer takes the position that probation officers may derive ‘no greater benefit from Articles 17.2 thro,ugh to Article 17.6 than any other Crown employee. In summary, the employer’s first position ~$11 be that any payments which have been made to probation officers in the past in respect of partial compensa- tion for meals taken following the work- ing of excessive hours have been provided by the employer a8 a gratuitous privilege. in recognition of the fact that Article 17.1 was not applicable to probation officers . . _’ - 8 - and were not related to any term ok condi- tion of employment enforceable by the Collective Agreement procedure. In short, any such alleged payments had absolutely nothing to do' with any "administration" of any Article of the Collective Agreement which would have been applicable to the probation officers in question, thereby rendering the complaint inarbitrable. . . , . . In conclusion, the employer takes the position that the Grievance Settlement Board has no lawful jurisdiction to arbitrate this complaint OP to grant any relief where it is clear upon the materials before it that there is either no allega- tion of any breach of any clear and an unambiguous term of the Collective Agree- ment (such a8 Article 17) nor any evidence of any actual breach of any clear and an unambigous terms of the Collective Agree- ment (such as Article 171. I have provided this letter to you at this time in order that you might have sufficient time to govern yourself accord- ingly and attend the hearing on January 13th, 1982 fully prepared to respond to preliminary objections running to the Board’s jurisdic- tion which will be raised by the employer prior to the commencement ~of any hearing. Mr. Zarudny in argument also emphasized the following points. There had always been an understanding that the grievance related to 17.1.1 of the agreement, since both Mr. Darrow and Mr. Richards had taken issue with Mr. Taylor's directive , which simply implemented the correct meaning of 17.1.1. The grievance was really an&tempt to.obtain benefits completely outside the scope of the collective agreement, as was acknowledged'in Mr. Richards' letters. Evidence relating to an alleged ..~. . -9- "practive" was not admissible unless Article 17 was found to be ambiguous, and no, claim of ambiguity had been suggested. The parties well knew how to provide for exceptional or local arragements and had not done so in Article 17, although they did expressly cover such matters in 7.6, 8.1, 10.3, 13.4, 13.5, 13.6, 19.5, 23.6, 29.1, 30.1,~31.1.1, 33.1 and 35.1. Similarly, the parties had demonstrated their capacity to provide expressly for the continuation of "current practices" when appropriate, e.g. in 10.5, 12.1, 18.1 and 18.3. The parties'had not. agreed to give the Board jurisdiction in what was really an interest arbitration rather than a grievance arbitra- tion. There are of course countless precedents confirm- ing the principle that the function of an arbitration board is to interpret and apply the meaning of an agreement, not to write in or imply rights or benefits never expressly agreed to by the parties. In particular, Mr. Zarudny drew attention to the important decision of this Board in O.P.S.E.U. and Ministry of l'ransportation and Communi- cations 455/80, commonly known as the "Parking Fees Case." In a unanimous decision authored by Prof. Palmer, the written arguments of the parties were set out in full, including reviews of many authorities. In upholding the objection to arbitrability, the Board made an observation emphasized by Counsel for the Employer in this case: - 10 - Here the evidence is clear that the Employer has formu1ate.d a policy by which certain benefits are extended to members of the bar- gaining unit. . . There is no obligation placed upon the Emp{oyer to provide these benefits by the collective agreement,‘nor are these mentioned explicitly or” by implication. Nothing prevents the Employer from with- drawing them completely or giving them completely.. . In his argument Mr. Wells, Counsel for the Union, made clear that he was not relying on 17.1.1 or 17.1.2 He pointed out that although the Taylor directive pin- pointed 17.1.1, both the grievance signed by Mr. Darrow and the letter by Mr. ~Richards referred to "Article 17." What he relied on in Article 17 was 17.2, and in parti- cular 17.2.1 and 17..2.5. Parole officers were required to attend one night a week to interview parolees who had day-time jobs. These being assignments of a "special nature", 17.2.5 contemplated that,meal allowances could be authorized, and the Union proposed to show (in any hearing on the merits) that in fact this had become an established practice until revoked by the Taylor directive, which relied on an irrelevant clause, namely 17.1.1. In reply, Mr. Zarudny protested that he was taken by surprise, having always understood that the case revolved around the interpretation of 17.1.1. He continued to,insist that the Union's complaintis really about matters completely outside Article 17. - 11 - This Board's view is that the objection to arbitrability fails. If the grievance were based on the provisions of 17.1.1, it would be obvious that the com- plaint on its face lacked merit and there would be no question of administration or interpretation to determine. It was the Employer, not,the Union, which sought to limit the scope of the matter to 17.1.1. ,There are other provi- sions in Article 17, notably 17.2.1 and 17.2.5, and it is on these that the Union has raised an arbitrable issue. Indeed, there may be more than one arbitrable issue. Even if the Union establishes that there were payments made as authorized by the Management Board prior to March 15, 1978, a second question might arise: i.e. whether such authority could be revoked during the life of the collective agreement. It is obvious that all contingencies could not be listed "specifically" in Article 17. True, 17.1.1 is specific. However, 17.2.5 clearly contemplates payments "in any recurring situation" by reason of "special nature of the assignments" -- but only if authorized by the Management Board. This, of course, is by no means the end of the matter. It remains to be seen whethe: the Union will be able to prove the existence of the conditions referred to in 17.2.5, which it can attempt to do at a hearincon the merits. ,., .~.~ - 12 - It must also be said that the Employer has given notice of a further objtiction to arbitrability, based on the doctrine of estoppel. AS agreed, it was not argued on January 13, but it will be open to the Employer to raise the matter, if desired, at the outset of the next hearing. For the reasons given, the objection argued on January 13 cannot be upheld. A further hearing must therefore be held on February 18, 1982, and the Registrar is requested to issue notices accordingly. DATED at Toronto this 19th .day of January, 1982. E. B. Jolliffe, Q.C. Vice Chainran "I concur" .' L. Robinson Member "I concur" W. Evans Member