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HomeMy WebLinkAbout1978-0112.Union.82-03-17,‘._ ..C c. .~ - GRIEVANCE ;ki;bEMENT Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Befo're : 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 Grievor: R. Wells, Counsel Cameron, Brewin & Scott For the Employer: J. Zarudny, Counsel Ministry of the Attorney General Hearing: February 18, 1982 SECOND INTERIM DECISION Although the nature of this grievance was explained in the Board's Interim Decision of January 19, it may be well to review herein the history of the matter. From February 1, 1978, a col-lective agreement between the parties was in effect. In its Article 17 were certain provisions in respect of "Meal Allowance." On April 18, 1973, the President of the Ontario Public Service Employees Union lodged a grievance on behalf of "the union" complaining that a memorandum issued on March 15 to "All Probation and Parole Staff" constituted a violation of "Article 17." It tjas not until January 13, 1982, that the grievance came on for hearing, after having been adjourned once by request on July 16, 1981. At the January hearing, counsel for the, employer, Mr. J. Zarudny (having given notice in advance that he would do so) raised certain objections to arbitrability. The first,of these, namely that the grievance on its face asserted rights not provided by the collective agreement, was on that day fully argued. The Board on January 19 issued its first interim decision, holding that there did not appear to be an arbitrable issue arising under paragraph 1.1 of Article 17~ (as Mr. Zarudny had argued) but that the union had raised at least one arbitrable -3- issue under paragraphs 2.1 and 2.5 of Article 17. The grievance had referred, not to 17.1.1, but to "Article 17."' A further hearing was held on February la for the purpose of receiving argument on the objection that the Union is estopped from pursuing the grievance by reason of having negotiated and signed the collective agreements of February 1, 1979, and January 1, 1980, in which no reference appeared to the issue raised by the grievance of April, 1978. During the course of a lengthy argument, Mr. Zarudny was invited to submit precedents in support of his assertions, and he agreed to do so by March 1. It was also agreed that Mr. R. Wells, counsel for the Union, would have until March 8 to comment and Mr. Zarudny would reply, if desired, by March 15. It was further agreed that if the Board decided it must proceed further, a hearing on the merits would be held on March 23. The Board has received in due time all the submissions of counsel and must now determine whether the second objection to arbitrability is well-founded. It was not anticipated that the submissions would include elaborate argument. What the Board had suggested was that citations of significant reported cases 'might be helpful. However the "written arguments" (as they are titled) have been, read with , s .?. -4- interest and the Board appreciates having the benefit oft research done by both counsel. It emerges that the issue upon which authority was invited, and upon which a decision must be made, has been correctly stated by Mr. Wells as follows: Is the Union estopped from proceeding with th'is grievance because it has negotiated two collective agreements since the filing of the griev.ance? In support of his submission that the doctrine of estoppel is applicable, Mr. Zarudny has cited and filed copies of awards and judgments in several cases, together with .a lengthy written argument in which he discusses both "the equitable doctrine of estoppel" (1) and "the common law rule of waiver." Re United Electrical, Radio and Machine Workers, Local 537, and Canadian General Electric Co. Ltd (1971) 22 L.A.C. 149 (Johnston): In this award, the doctrine of estoppel by conduct or estoppel .&I paid was explained. After quoting from Jowitt's Dictionary of English Law and an 1877 judgment in the House of Lords, the Board of Arbitration said: It is apparent that there are two aspects of the doctrine as thus stated. There must be a course of conduct in which both parties act or both consent and fn which the party who later seeks to set up the estoppel is led to suppose that the strict rights will not be enforced. It follows that the party against whom the ,si - 5- estoppd is set up will not be allowed to enforce hits strict rights if it would be inequitable to do so. The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up rhe estoppel has relied to his detriment. The Board also cited several reported awards by Canadian arbitrators in which they have applied or refused to apply the doctrine, and then observed: : However, it is equally clear that the doctrinal of estoppel by conduct is one which should be carefully limited ard one that can only be used to prevent inequitable consequences to a party who has relied to its detriment on the conduct of another party and no further. On the facts of this case, it was found that the company ,had for a long period failed to implement an incentive system in the manner required by a series of collective agreements. As the Union had acquiesced for many years, it was estopped from pursuing its grievance. It was pointed out, however, that if, from the date of the award, there was,a further violation "the Union would be entitled to grieve without being met by a defence of estopped by conduct." It is obvious that the issue in that case was not the same as the issue here, where the grievance arose for the first time prior to the making of the two agreements relied on as a basis for estoppel. -6 - (2) Re Trustees of Ottawa Civic Hospital and C.U.P.Z. Local 576 (1975) 10 L.A.C. (2d) 314 (H.D. Drown). For various reasons, it was decided in this case that the hospital had a right to retire an employee at the age of 65, this being contem- plated by the Master Hospitals of Ontario Pension Plan. In negotiations the hospital had requested language making clear that retirement at 65 was compulsory, but withdrew that amend- ment on being assured by the Union that "management has the option." The doctrine of estoppel received only passing mention in that case. (3) Price, McKenzie and the International Woodworkers of America, Local l-85 v. MacMillan Bloedel (Alberni) Limited (1977) 4 W.W.R. 311 (Dryer J.) The importance of this case is emphasized by Mr. Zarudny, although its factual background is very different. The Union and the members thereof brought an action in the B.C. Supreme Court claiming the entitlement of a certain classification to special rates negotiated in a 1972-73 agreement. The problem was known to the Union before it began to negotiate the 1974 agreement, but the negotiators decided to "keep it off the table." The Court held that since the Union had witheld notice of its intention to grieve when negotiating and signing a new agreement, it was estopped from grieving thereafter. As put by Dryer J.: "Here the Union, by its silence, misled the defendant ithrough it bargaining representatives) as to the wages they were going to be asked to pay under the 1974 agreement and as to their liabilities - 7- under the 1972-73 agreement. " The distiiction between that case and this case is clear. In this case the grievance had been lodged in advance 06 the 1979 agreement, and not later. (4) Larson et al v. MacMillan Bloedel (ALberni) Limited (1978) 1 W.W.R. 749 (Hutcheon J.) The Court held that "the evidence in this case will not support a plea of estoppel." However, the claim was limited as to time. The result is adequately summarized in a.head-note, as follows: The common law of contract applicable between two parties must be modified when applied to parties to a collective agreement to take account of the nature of the relationship imposed on the parties by statute. hus, where partfes to a collective agreement have had in- terpreted certain language of the collective agreement and it emerges from the interpretation that wages should have been calculated on a different basis, one party cannoi compe1 the ocher party to re- open the wage payments over a several-year period, even though the doctrines of estoppelhave been. found not to apply. In such circumstances the additional compensation ought to be paid from a date shortly before the right to such additional compensation was first asserted. The Court cited with approval an observatidn by Arbitrator Laskin (as he then was) in Re Can. General Electric Co. (1951) 3 L.A.C. at p. 982: Absent bad faith on the part of the employer, a Union which misconceives its rights or those of employees and thereby fails to - 8- press them, should not be permitted to make a retroactive clai.3 to re- open, after the lapse of a reasonable time, transactions which have been completed,~as;for example, cases of piece-work jobs for which payment has been made and accepted without expression of dissatisfaction. In the instant case, however, there was no great lapse of time between the disputed directive of March 15, 1978, and the grievance of April 18, 1978. Thereafter the employer had full knowledge that the Union's interpretation of Article 17 was different from the employer's, although the matter may have been ignored or overlooked during the negotiation of two succeeding agreements. (51 Re Metropolitan.Transit Operating Co. and Amalgamated Transit Union, Divisions 101-134 and 139 (1981) 30 L.A.C. (2d) 242 (Fraser). In this B.C. arbitration, the Board defined the issues as follows: (a) Is the Company bound by the terms of the collective agreement to continue a service to its employees that it began voluntarily and not as a result of a contractual obligation? and (b) Is the Company estopped from exercising what it contends are proper "management rights ” because of its conduct in the course of negotiating a collective agreement? In the result, it was held at p. 247 that "no form of estoppel operates to prevent the company from unilaterally with- drawing the A-cars." -a -9- The award would be of interest in an argument respectin the merits of this case, although the facts are very different. (6) Re School District No. 24 (Kamloops) and C.U.P.Z. Local 960 (1986) 29 L.A.C., (2dl 93 (J.M. Weilerl. This award contains a lengthy review of the authorities on estoppel, including Price, McKenzie (4uprrrr) and Larson (4upkU). The Board concluded: Turning to the facts in this case, we are of the view that the employer by its conduct in negotiations has deprived the Union of the opportunity to exercise its choice of whether it would agree to the renewal of this agreement knowing that Sun Life was to be the new group life insurance.carrier..... We conclude that the employer is estopped from exercising its right under art. 28(c) to unilater- aLLy change from Mutual Life to Sun Life as group Life insurance carrier . The board's findings in the Kamloops case, based on evidence of what occurred during negotiations, are self-explanatory. In the same case, Arbitrator J.M. Weiler (not.to be confused with P. Weiler) distilled the following principles from his review of the jur~isprudence : The doctrine of estoppel thus requires the presence of three elements : (1) a representation from one party to another; (2) the representation must affect the legal relationship of the parties, and (3) the second party must rely~on that representation. - 10 - If the above represent the essential elements of estoppel, we cannot find that the instant case satisfies the requirements. Far from suggesting that a representation was made by one party to the other, Mr. Zarudny seems to rely on the .assertion that the union remained silent --- i.e. that no - representation was made. As to the second element, Mr. Zarudny has emphasized that when the parties negotiated their 1980-1981 agreement Article 17 (unchanged in the 1979 agreement) was amended by increasing the meal: allowance figure in 17.1.1 from $2.50 to $3.00. He infers that this'was a concession in response to a demand by the Union, but there is no evidence to that effect, a point on which more will be said below. The. cases cited by Mr. Zarudny were advanced in support of a proposition appearing at page 8 of his written argument: It is submitted that in circumstances where a party which is engaged in collective agreement renegotiations has, prior to the commencement of those negotiations, formed a difference of opinion in respect of the interpretation or application of some pert of the existing Collective Agreement and has formed an intention to act upon that difference of opinion (such as by pursuing the matter to arbitration), that ,party has an obligation to declare the “truth” to. the other party and to make its intentions known during the course of those negotiations - especially when the particular article or subject matter in question has been placed upon the bargaining table by virtue of a new demand from the party with the difference of opinion. -b - ll- As stated above, the proposition is fallacious --- for one very simple reason. ' On every occasion when these parties negotiate a new agree- ment, with or without amendments, there are outstanding scores of gri evances. probably hundreds. Some may not have completed th>ir course through the grievance procedure. Others may be awaiti ng mediation. A few are destined to reach the Grievance Settlement Board. If there were any validity in the proposition quoted above, it ,would mean --- carried to a logical but extra- ordinary conclusion --- that ever'y grievance relating to inter- pretation initiated before negotiations would fall by the wayside unless the Union expressly notified the employer of its intention to continue. NO such rule has ever existed. Of course there have been cases where the employer has acted "to its detriment" on the strength of representations or mis- representations made during negotiations, particularly when the issue has not been raised previously by way of a grievance. Those are ca:.ses in which the doctrine of estoppel may be applicable. As yet, there is nothing to suggest that this is such a case. Moreover, it would be wholly impractical to bring into negotiations all outstanding grievances and attempt to negotiate their settlement when negotiators must address larger long-range b - 12 - issues. Further, to make such an attempt would be inconsistent with what is contemplated by the law, i.e. that the parties should resolve differences arising during the life of an agree- ment by resorting to the grievance procedure and, if necessary, to arbitration. What happened here is that the parties had a difference about the interpretation of the 1978 agreement, and --- during the life of that agreement --- the Union lodged a grievance. The conclusion of a new agreement in 1979 and another for 1980-81 did nothing to resolve the issue. This Board was not called on to decide‘ it until January, 1982. We have no knowledge of the reasons for delay, a point Mr. Zarudny may wish to address, in further argument. It was said at the hearings of January 13 and February 18 that counsel for the employer wishes to adduce evidence. He will be at liberty to do so at a hearing on the merits. It would be futile, however, to lead evidence that the grievance was not. mentioned in the course of negotiations for the 1979 and 1980-81 agreements. There may be other and more relevant evidence. For the reasons given, the Board's view is that the doctrineof estoppel has no application in this case. The result would be different, of course, if it were proved that the Union - 13- at some point agreed to abandon the grievance in return for a concession by the employer, but it has not been suggested that such was the case. The objection to arbitrability is not well-founded and a hearing on the merits must proceed on March 23. As stated in our first interim decision, dated January 19, it remains to be seen whether the Union will be able to prove the existence of the conditions referred to in 17.2.5 of the 1978 agreement. The onus of proof will be on the Unibn Dated at Toronto, March 17, 1982 Member EBJ:jce