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HomeMy WebLinkAbout1978-0112.Union.83-08-04.: , : ONTdRIO CROWN EWLCJYEES GRIEVANCE SETTLEMENT BOARD~~“~ Between: Before: 112178 FINAL DECISION IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING BCT Before THE GRIEVANCE SETTLEMENT BOARD 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 Crown Law Office Civil Ministry of the Attorney General First Interim Decision: January 19, 1982 Second Interim Decision: March 17, 1982 Final Decision: February 11, 1983 Hearings: January 13, 1982 April 6, 21&23,1982 February 18, 1982 May 7, 1982 March 23, 1982 .-2- DECISION This dispute originated early in 1978 and a policy grievance was presented on April 18 of that‘year. In June, 1978, it was referred to arbitration in a letter ~to be quoted hereafter. For various reasons the matter was repeatedly adjourned at the request of the parties and did not come on for hearing until January 13, 1982. One week prior to that date, counsel for the Employer gave notice that the juris- diction of this Board would be challenged at the outset. Arguments on the initial objection to arbitrability were heard on January 13, and an interim decision was issued January 19, dismissing that objection. The second hearing was held on February 18, at which a second objection to arbitrability (based on the doctrine of estoppel) was fully'argued. On March 17, this Board rendered a second interim decision, dismissing the objection and ruling that a hearing on the merits should proceed.. - 3 - Throughout the morning of March 23, further argu- ments on purely legal questions were raised by both counsel, but the Board declined to issue a third interim decision and proceeded to hear evidence on the.merits. In the afternoon of March 23, the Union counsel, Mr. Wells, called two wit- nesses, Messrs. James Arnett and James Hanwell, both Probation and Parole Officers for some years past. At a continued hearing on April 6, Mr. Wells called two other Probation and Parole Officers, Messrs. Peter D. Park and Abdul Bhatti. The employer's counsel, Mr. Zarudny, then called Mr. John A.R. Gardner , an officer with the Management Policy Division of the Secretariat, Management Board of Cabinet. At a further hearing held on April 21, the Board heard the testimony of Mr. Dickson Taylor, Director of Probation and Parole in the Ministry of Correctional Services, whose directive of March 15, 1978, had given rise to the dispute. On April 23, Mr. Zarudny called two other witnesses: Mr. John Spriggs, now a Regional Director based at Burlington, - 4- and Mr. Walter Gorchinsky, Chief Staff Relations Officer with the Civil Service Commission for the past three years. On the seventh day of hearings, May 7, arguments of counsel on the merits of the case were heard, with numerous references to the testimony and many exhibits. It may be added that all of the eight witnesses were exhaustively examined and cross-examined and further that the Board has been confronted by voluminous documentary evidence as well as lengthy written briefs prepared by learned counsel and presented at various stages of the hearing. Notwithstanding the bulk of the evidence and the representations put forward by the parties, this Board is of the opinion that the problem which arose in 1978 (continuing in various forms since that time) was factually clear and un- complicated. Further, we are of the opinion that the issue to be determined, i.e. the correct interpretation of Article 17 in the collective agreement between the parties, is a clear- cut issue which need not be refined or elaborated at great , - 5 - length. The factual background and the issue to be decided may now be explained as seen by this Board. First, the factual background is that there are peculiar require.ments for the satisfactory performance of the duties of Parole Officers;. Their principal function is to keep in touch with individuals who are on parole or on probation by order of a court. Normally, such a person is obliged to report to an officer and be interviewed at regu.lar intervals. Not being shift workers, Parole Officers ordinarily would be on duty throughout the day, ending at some time between 4 p.m. and 6 p.m. The problem was that many of the parolees and probationers to be interviewed have day-time jobs. Since it is not desirable to interfere with their, rehabilitation in gainful employment, a practice arose some years ago (in 1969 or earlier) of arranging for each officer to be on duty during the evening, once each week. This was so of the witness James Arnett, who served in 1978 at the Ottawa off.ice, working on Tuesdays.from 8.30 a.m. to 7 p.m. or 8 p.m., or (he states) "sometimes to 9 or 10," although his "regular" hours were supposed to be from 8.30 a.m. to 4.45 p.m. He "sometimes" broke for supper at about 5 p.m., returning an hour later. Similarly, I -6- the witness James Hanwell at the Rexdale office received certain "clients" on Wednesday evenings, and states that such arrangements were in effect for all officers at Rexdale. The witness Abdul Bhatti, at the Hamilton' office since 1974, also did night duty on Wednesdays. It must be made clear that this dispute is not - concerned with overtime: it relates to meal allowances. From time to time there were doubts about the authority to pay such allowances, but those doubts were not analysed in depth or firmly resolved. The question became confused with that of overtime. Thus, parole officers were offered five additional vacation days to compensate for long hours on one day of the week. Another option was to take the afternoon off and work in the evening. Apparently the options were accepted by some officers, not by others. However, meal cost constituted a separate problem. From the parole officers' point of view, if a meal had to be taken in a restaurant, it would be no different from a meal purchased while on travel status. The . Ministry, up to a point, shared that view and attempted to meet the need in various ways, but the evidence is clear that no appropriate steps were taken to regularize the practice. By reason of night duty, many officers claimed and received "meal allowances" in varying amounts from time to time. This is the matter upon which a dispute arose. It must be decided of course by reference to the applicable language in Article 17 of the collective agreement, as it read in 1978, which must now be quoted in full: 17.1.1 in employee who continues to work xore than two (2) hours of overtime immediately follow- ing his scheduled hours of work without noti- fication of the requirement to work such OVC?I- time, prior to the end of his previously scheduled shift, shall be reimbursed for the cast ofone(l)ntzalto two dollars and fifty cents '($2.50) exrnpt where free meals are provided or where the employee is btiing compensated for meals on some other basis. 17.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his work place. 17.2.1 Cost of meals may be allowed only: 17.2.2 if during a normal meal period the employee is travelling on government business other than: (a) on patrol duties, except as provided 17.2.3 17.2.4 17.2.5 17.3 17.4 under subsection 17.2.3, or (b) within twenty-four (24) kilometres of his assigned headquarters, oz (b) within the metropolitan area he is normally working; if an employee on patrol duties is reimbursed for overnight accommodation required for the? trip; if, in an unusual non-recurring situation, the department head authorizes such payment; if, in any recurring situation, the Managc?ment Board has authorized such payments because of the special nature of the assignments. Gratuities and taxes are to be included in the actual cost of meals clajmed. The total cost of meals for each day is to be shown. -0- 17.5 Eefore approving claims for meals, the branch head should be satisfied that the charges are reasonable for the locality. 17.6 When an employee is authorized to pay meal expenses for guests and the group also includes other Crown employees, he may pay for the meals of the employees and claim the cost. These employees should, if they are submitting a claim for the same trip, indicate any meals covered in another employee's claim. Tney must not claim the cost again. In the 1980-81 version of the collective agreement, the language of Article 17 is the same as above, with two exceptions: (1) In 17.1 the figure ';two dollars' and fifty cents ($2.50)" now appears as "three dollars ($3.00)" and (2) in 17.2.2 (a) the word "subsection" has been inserted before the figure "17.2.3." Throughout a long 'period of time --- from 1978 to early in 1982 --- the dispute appears to have revolved in a confused way around the meaning of 17.1 above. This was due inpart to the form of Director Dickson Taylor's memorandum of March 15, 1978, addressed to "All Probation and Parole Staff" and headed "Overtime Meals." It was as follows: Since the signing of the collective agreement, there has been considerable misunderstanding in Probation and Parole around overtime meal allowance for bargaining unit employees. ” 'Ihis allowance has been determined 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 mrk without notification of the requirement to work such over- time, prior to the end of his previously scheduled shift, shall be reimbursed for the cost of tie (1) meal ~to ~KJ dollars and fifty cents ($2.50) except where free meals are provided or where the employee is being compensated for meals on scme other basis." The operative provision for bargaining unit employees is for the payment 'of one meal to $2.50 after two hours of overtime inmediately following the scheduled tours 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 the course of overtime duty, are within 15 miles of their home office. It will have been noted that the only passage in the agreement quoted by Mr. Taylor was 17.1.1 , which he seems to have believed was applicable. That clause, however, relates to cases in which an employee works "more than two (2! hours of overtime following his scheduled hours of work without notifi- cation of the requirement to work such overtime, prior to the end of his previously scheduled shift....." It is clear that the affected Parole Officers did not fall within such language, because their overtime one night a week was in accordance with ,a pre-arranged and continuing arrangemen~t of which they had been well aware for some time. For this reason, the Board said - 10 - in its first interim decision, January 19. at page 11: "If the grievance were based on the provisions of 17.1.1 , it would be obvious that the complaint on its face lacked merit and there would be no question of administration or interpretation to determine." However, Mr. Wells had said at the outset of the first hearing that the grievance was based on 17.2.5 , not 17.1.1 , while Mr. Zarudny protested that the dispute had always revolved around 17.1.1 , this being one of his grounds for objecting to arbitrability. Mr. Dickson Taylor's memorandum of March 15, 19,78, had not clarified the real issue, and indeed relied on a.wholly irrelevant clause. Nor was the matter clarified by the language of the grievance itself, since it referred only to "Article 17." In his letter to the Deputy Minister of Correctional Services, dated April 18, 1978, Mr. Charles Darrow, then the President of OPSEU, wrote as follows: 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 officers on their regularly sche&led weekly evening reporting assignments. l'he union contends that Article 17 clearly contemplates the existence of lccal arrangements for the payment of meal -.ll - allowances in excess of those described in Article 17, and wa further contend that such lccal arrangements cannot be modified unilaterally by one party during the course of the collective agreement. 'Ihe union 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 expanses. Further, in his letter of June 6, 1978,to the Registrar of the Grievence Settlement Board (a copy of which went to the Ministry) Mr. George Richards referred to Article 17, and not to either 17.1.1 or 17.2.5. In his letter he said: 'Ihe union hereby requests a hearing of the grievance dated April lEth, concerning the application of cl. 17 of the working conditions collective agreement,dealing with meal allowances. 'ihe pimary issue in dispute raised by this grievance is tiether or not the,provisions of Article 17 recognize and incorporate methods of compensation not specifically listed in the collective agreement, and whether or 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 grievance is enclosed for your information. Since both the Darrow letter and Mr. Richards referred to Article 17 generally and not to any particular clause therein, this Board in its interim decisions took the view that the Union was not restricted to putting its case - 12 - on the basis of 17.1.1 , as Mr. Dickson Taylor had done in his memorandum of March 15, 1978. In other words, the Union could not be bound by an error of the other party. Some con- fusion might have been avoided if the Union had specified 17.2.1 and 17.2.5 as the language on which it relied, but the employer had no right to assume that 17.1.1' was the only clause at issue. At the same time, this Board cannot accept the implication in the second paragraph, of Mr. Richards' letter (if we understand him correctly) thatthere is jurisdiction to enforce "existing arrangements not expressly provided in'the agreement." Our only jurisdiction is in relation to rights and obligations set out in the collective agreement or in The Crown Employees Collective Bargaining Act. Apart from 17.1.1., several other clauses in Article 17 can be shortly disposed of: Clause 17.1.2.~ is not in issue; nor is 17.2.2 (travel) nor 17.2.3 (patrol). It will be seen that 17.2.4. relates to "an unusual non-recurring situation" --- not the case here. The only relevant language is in 17.2.1 and 17.2.5 , both of which. are worth repeating, one being connected with the other. - 13 - 17.2.1 Cost of meals may be allowed only: . . . . . 17.2.5 If, in any recurring situation,~the Management Poard has authorized such payments because of the special natire of the assignments. The first clause'.just quoted seems to make clear that meal costs = be allowed --- but only upon one or more of the conditions which follow. 'The condition stated in 17.2.5 has three elements: (1) "any recurring situation;" (2) "the special nature of the assignment;" (3) authorization by the Management Board. Two of the elements identified above present no difficulty whatever. The night work required of many parole officers undoubtedly constituted "recurring situations," and we so find. In fact it was usually required one ,night a week, week after week. The night assignments were of a "special nature." - 14 - For most professionals and clerical workers in the public service, night duties are not required, at least not on a recurring basis. It was the special responsibility of parole officers for clients who could not attend during the day which made weekly night~duty essential. It is the third element in 17.2.5 which posed the real issue in this case. Simply put, the question is: was it a duly authorized practice to pay parole officers meal allowances 'in respect of night duties? Before'seeking the answer to that question I comment must be made on certain matters as to which a great deal of evidence was tendered by the parties. In our view, such evidence has little or no bearing on the issues to be determined and for that reason it will not be reviewed in detail. (11 Evidence relating to practice. It was established by testimony and many documents that over a period of several years, meal allowances at varying (and gradually rising) rates were actually paid to a number of parole officers required to work at night. y 15 - For example, exhibits identified by Messrs. Arnett, Hanwell .I or J.D. Park do indicate that claims were I filed (and approved by supervisors) in amounts for "D" (dinner) such as $4.75 and $5.50 in May, 1977: $6.10 and $6.20 in October, 1976, .$6.22 in December, 1976; $6.24 in January,'l977; similar figures in February,'March and April, 1977; $7.60 and $7.65 in June, 1977; similar figures in each of the next six months; slightly higher figures in the first three months of 1978. Thereafter, several claims in evidence were for only $2.50, this being the.figure specified in Director Taylor's memorandum. A series of claims made at Ottawa rose from $3.50 on April 6, 1975, to amounts varying between $3.90 and $5.50 in September and October, 1975. Such variations continued in 1976 until March, after which Mr. Arnett consistently claimed $6.00; except that on .and after November 9 it became $6~.25 and remained at that level until October, 1977, when it rose to either $6.50 or $8.60, falling occasionally to lower figures, the lowest being S5.90. Mr. Arnett's claims for dinner in February and March, 1978, were only $2.50. The examples cited above suggest that both parole officers and supervisors were confused as to whether actual expense was payable or a flat figure: they 'wavered between one - 16 - and the other. In any event, having regard to the cost of restaurant meals in such places as Toronto, Hamilton and Ottawa between 1975 and 1978, the amounts claimed were ,not out of line with those often allowed in both private and public sectors. The officers' ~testimony also indicated that in making such claims (and in getting them abproved by supervisors) they were relying on what-they understood to be the instructions or guidelines given by those at higher levels in the Ministry. It was natural that there should be some misunderstandings and. confusion. This will become apparent from what follows. (2) Evidence relating to the Ministry's policy. It now seems necessary to summarize the history of policy directives relating to meal allowances for "night reporting," subject to two qualifications. First, there is no proof that such directives were communicated fully and clearly to all parole officers and their supervisors, although it became known from time to time that there had been certain changes. The second and more important qualification is that the relevance of Ministerial directives to the interpretation and application of Article 17 in the collective agreement is doubtful, to say the least, because not one of the directives emanated directly from the Management Board of Cabinet. - 17 - In July, 1966;the Department of Reform Institutions issued a memorandum to senior officials enclosing Treasury Board "Rules re.Travelling Expenses" approved on June 22, 1966. The only relevant passages are at page 9, omitting those paragraphs which are clearly inapplicable: Rules re: Meals (1) Cost of meals may bs allowed only . . . . . - in an unusual non-recurring situation, if the department head authorizes such payment. - in recurring situations if, because of the special nature of the assignments, Treasury Board has authorized such payments..... (2) All claims for meals shall be at' actual cost, not including gratuities..... (4) Before approving claims for meals, the branch head should be satisfied that the charges are reasonable for the locality..... Two of the paragraphs quoted above resemble~the language of 17.2.1, 17.2.4 and 17.2.5 of Article 17 in the collective agreement subsequently made. None of the directives which follow came from the Treasury Board, the Civil Service Commission or the Management Board of Cabinet. All were issued by the Ministry of Correct- ional Services at one level or another. Apparently the signif- icance of that fact was not fully appreciated until midway - 18 - through the hearings in this case. On July 31, 1972, the Executive Director of the Ministry's Administrative and Financial Services Division issued a memorandum to~all Superintendents, Office Managers, After-care offices, Probation'Offices and Branch Heads, entitled "Ministerial Rules.....," which were said to be effective July 1, 1972, and to be incorporated in the Ministry's Manual of Admin- istration. Section 6 was headed "Rules re: Meals" and includes "Overtime Meals," paragraph (11) as follows: (11) Claims for Meals - Overtime: Overtime Meals - Payment for a msal shall be made when an employee, +.ho is not otherwise entitled to compensation, either by way of pay or leave in lieu, performs three or more continuous hours of overtime in tiich is included a usual meal time, unless the meal is otherwise provided. On July 16, 1973, Mr. J.E. Spriggs, then Regional Director, Central (also a witness at the hearings in this case) issued a memorandum to all supervising probation officers in Central Region #30. It related to the authority of super- vising probation officers to approve expense accounts and submit them to the Accounts Branch at the Main Office. In January, 1975, the Ministry issued a revised - 19 - Probation and Parole,Manual. It referred to a wide variety of subjects, but the following passage appeared at page 20 (Exhibit 9A): (viii) Overtime Probation Parole Officerb.are exempt from signing the daily attendance register due to the nature of their work, and the need to work beyond normal working hours, in recognition of which Officers may be granted up to five days compensating leave in addition to their annual vacation entitlement which must be taken in the orrrent calendar year. Actual meal expenses may be claimed where a Probation Parole Officer's duties necessitate three or more continuous hours of overtime work. On May 14, 1975, Mr. W.E. Bunton, supervising in Area 56, issued a memorandum to his staff in which he quoted Section F.(a) in Management Board's "revised~rules on metal expenses." The maximum rate for "Dinner" was said to be $6.25 (including Ontario Retail Sales Tax). Nothing he quoted referred specifically to either travel or night reporting. However, Mr. Bunton added the following paragraph in his own words. 'Ihe only meal charge which usually applies for Area.#56 personnel is the Reporting Day overtime dinner charge for Officers. Please note that (a) the overtime must comprise .- three or more hours, immediately consecutive to the regular - 20 - termination hour of the 7& hour work-day; and (b) the meal charge must be for the actual out-of-pocket costs, within the guidelines, since no actual allowance pertains for such reals. It is not clear from the evidence whether the same or similar information was sent to the staff. in other areas. On August 5, 1976,'Mr. Bunton sent another memorandum to supervisors within his area inwhich he said: 4. Overtime should be recorded to the nearest half-hour, e.g. 1944 hours is recorded as 1930 hours; 1945 hours is recorded as 2000 hours. No authorization need be shown for regular reportiq day overtime. On March 31, 1977, Mr. W.J. Algar, Assistant Deputy : Minister, Planning and Support Services, issued the following memorandum to the Deputy Minister and all senior and super- visory personnel in the Ministry of Correctional Services: RE: MEAL ALLOWAmES The Ministry's Senior Management Committee has reviewed the current level of maximum meal allowances and has decided that they should be increased. Ihe new maximum meal allowances will be as follows, effective April 1. 1977: - 21 - Breakfast . . s 3.00 Lunch . . $ 4.00 Dinner . . $ 8.00 TGTAL . . $15.00 The Administrative and Financial Division Manual will be amended accordingly. No reference was made in the above memorandum to either travel expense or n ,ight reporting expense. On April 13, 1977, Mr. Bunton sent a memorandum to supervisors in his area, enclosing a copy of Mr. Algar's "announcement" but stressing that t,he figures used were maxima., He said: As you are aware, it is a matter of ongoing concern to me that some staff seem to be consistently claiming up to or close to the former maximum guideline amount for suppers related to reprting night over-time pricks, as actual amounts @d out. The guide- line seems to be construed as simi,lar to the old flat-rate overtime meal allowance which the C.S.C. used to set. It has seemed very incongruous that receipts are required for even the smallest parking charges, tiile multiple charges of $6.25 per reporting nights supper can be routinely claimed month after month without receipt validation.. I muld like to discuss the subject at our next Area S.S.M. Apil 21st, and shall be grateful if you will give the subject prior consideration. (E.G., should we maintain the status quo; or should receipts for all n-eal expenditures be necessary?) - 22 - All of the documents quoted above were tendered in evidence by the Union's Counsel, Mr. Wells, and their authen- ticity has not been challenged. Also tendered as part of:the Union's case were seven other documents, beginning with memoranda issued to parole officers in 1963. It cannot be said however, that they add anything significant to the Minis- terial directives which have been summarized above. They simply show that from time to time parole officers were advised of increases in the maxima allowed for meals when on travel status, with occasional references to night reporting. None of the advice came from the Management Board of Cabinet; all of it came from within the Ministry. It was made clear in this Board's two interim decisions that the onus of proof in a case of this kind is on the Union, which had to establish the existence of the conditions referred to in 17.2.5 of the 1978 agreement. When Mr. Wells closed his case on April 6, Mr. Zarudny moved for dismissal; arguing there was no evidence that the Management Board of Cabinet had ever authorized meal allowances in respect of night reporting. There seemed to be some substance in that argument. - 23 - Nevertheless, it had been said by the same counsel at hearings on January 13 and February 18 (as mentioned at page 11 of the first interim decision) that "the employer wishes to adduce evidence." Further, the Board found it very difficult to understand how any Ministry could make payments over a period of years for a certai,n purpose unless duly authorized by law or by those charged with responsibility for the lawful expenditure of public funds. This Board had no duty or jurisdiction to pass judgment on the legality of payments made between 1975 and 1978. Our only concern was to ascertain whether in fact they had been authorized or approved by the Management Board of Cabinet, the question which arises from the' '< language of 17.2.5 in the collective agreement. Obviously, most of the relevant facts were known to the employer's officials rather than officials of the Union. The Board therefore ruled that the case for the employer should be heard before 'a decision on the merits could be made. As already mentioned, Mr. Zarudny called four wit- nesses. Through them 30 documentary exhibits were introduced. Of these, five related to events after 1978, and do,not assist in ascertaining what the facts were during the life of the,, - 24 - 1978 collective agreement. Many of the others were obviously outdated long before 1978. More important evidence emerges from the testimony of Mr. Gardner and .Mr. Gorchinsky. Mr. Gardner Chad served a decade With the Management Board, the last eight years in. the management policy division. As such he was of course familiar with relations between his Board and various Ministries. Some of his duties relate to policy in respect of employees' expense claims. The witness referred to the Manual of Administration issued by his Board and amended from time to time. However, he said, a Ministry may adopt its own Manual so far as it is not inconsistent with the master manual --- i.e. the Management Board Manual of Administration, parts of which are in evidence. Broadly speaking, Mr. Gardner said, a Ministry may establish its own 4'ratesns for allowable expenses. Thus, rates may vary be.tween Ministries. His Board does not have Ministry Yanuals.on file; a "Review Branch" no longer exists. - 25 - There were and are references in the Manual to meal expense other than when an employee is on travel status. The language used (by Management Board in 1975 as well as by Treasury Board in earlier days) was the same as in 17.2.5 of the collective agreement: "if, in any recurring situation, the Management Board has authorized such payments because of the special nature of the assignments.' Mr. Gardner categorically denied that the Management Board has ever received a request for such authorization. Not having been requested, it has never been granted. Requests of a nature involving an "exemption" are made on a form known as M.B.-20. Such requests by a Ministry are evaluated together with the supporting material. If approved, a Management Board minute is made. Scattered through the documents (with various dates) produced by Mr. Gardner and other witnesses were many references, both in the Manual and elsewhere, to allowable expenses. Most relate specifically to travel expense. We cannot accept the specious argument that all were framed in the context of travel --- i.e. travel on government business away from home and head- quarters. The argument is fallacious, because there are also - 26 - references to "hospitality" expense, allowable in certain circumstances, not necessarily while on travel status. Further, as we have seen, it was expressly contemplated as early as the Treasury Board Rules of June, 1966, that (a) in an unusual non- . recurring situation, meal costs could be allowed by authority of a "department head," and (b') in recurring situations meal costs could be allowed by authority of Treasury Board. Neither condition is necessarily identifiable with travel status.. Similar rules were in effect after the enactment of the Manage- ment Board of Cabinet'Act of 1971 and 1972. One provision of that Act i in connection with this case. It is s worthy of special note to be found inSection 6. We take the liberty of omitting the irrelevant words and underlining those which seem significant: 6. Subject to the approval of the Lieutenant Governor in Council, the Board may make regulations, . . . . . . . . . . . (c) fixing the scale of allowances for travelling and living expenses to be allowed to any prson employe33 or in connection with any part of the Public, Service, except those allowances which have been determined by bargaining under the Crown Employees collective Bargaining Act. - 27 - In other words, the parties to the 1978 agreement could have bargained and agreed upon a formula for meal allow- ances in recurring situations without Management Board author- ization --- but perhaps subject to approval by the Deputy Minister. What was agreed upon, however, was the same formula which had been in effect (in the Manual and elsewhere) since 1975 or earlier, and that formula expressly required Management Board authorization. An ironic feature of the problem is that the parties to the agreement of 1976 (and subsequent agreements) were the Management Board of Cabinet and the Ontario Public Service Employees Union. The nearest approach to official 'approval may be found in Exhibit 20, one of those produced .by Mr. Gardner. It is an extract from the Manual of Administration under the generals heading of "PROCEDURE iI1 Finance." Dated "30 April .74" and "Approved by Treasury Board, April 2, 1969" it read exactly as follows: Payment for Meals - may b-s made where a +lic servant who is not otherwise entitled to compensation either by way of pay or leave in lieu, performs three or more continuous hours of overtime in which is included a usual meal time, unless the meal is otherwise provided. - is approved by the branch head. - 28 - The extract quoted above seems to suggest that as and from April 2, .1969, Treasury Board contemplated payment for overtime meals (if approved by the branch head) in certain situations (with exceptions) and it can be argued that it covered parole officers required to perform night duty on a recurring basis ---"unless otherwise en'titled to compensation". There are, however, three reasons forholding that the 1969 Treasury Board rule did not apply to parole officers in 1978. The first reason is that the Management Board of Cabinet Act of 1971 and 1972, Section 6 (quoted earlier in this decision) expressly made "allowances" subject to "bargaining under the Crown Employees Collective Bargaining Act" (enacted about the same time) so that although Management Board could make regulations in respect of "allowances for travelling and living expenses" it could not do so in respect of allowances governed by a provision in a collective agreement. The second reason is of course that the matter was expressly covered by Article 17.2.1'and 17.2.5 in the 1978 agreement between Management Board and the Union, when the parties agreed that in "any recurring situation," overtime meal costs would be allowed or& if Management Board - 29 - authorized such payments. It was further agreed that this would be done "because of the special nature of the 'assignments" which clearly required a judgment by Management Board that in a particular situation the assignment given had a "special nature." There is a total lack of evidence that the night assignments given parole officers were ever brought to the attention of Management Board, or that the Board was ever called upon to "authorize such payments" as contemplated by 17.2.5. As previously stated, the parties could have agreed on such payments without Management Board authorization, but the parties did not so agree. The third and'perhaps most compelling reason is that the 1969 Treasury Board rule set out in Exhibit 20 (and confirmed' in 1974) was clearly revoked or negatived as of March 21, 1975, as appears in Exhibit 21. Previously mentioned in this decision, it was a later and amended extract from the Manual of Adminis- tration's "DIRECTIVE III Finance ,'I being part of Section 6(4) headed "Rules re: Meal Costs and Hospitality Expenses." The page was designated "III-M-1Oa 21 March 75," and the relevant language was as follows: - 30 - (4) Cost of meals may be allohed: . . . . . Cc) if, in anunusual non-recurring situation the agency head authorizes such payment; (d) if, in any recurring situation, the Management Board has authorized sud-~ payments because of the special nature of tba assignments. Thus, whatever may have been the effect of the language used in Exhibit 20 (which apparently remained in force until early in 1975) the rule prevailing in 1978 was'as stated in Exhibit 21 above --- which is for all practical purposes the.same rule as what was recognized by 17.2.5 in the 1978 collective agreement. Mr. Dickson Taylor and tir. John Spriggs, now Regional Director at Burlington, gave interesting and helpful information about the history and problems of Parole and Probation Services, and sought to explain the meal payments made prior to.1978 as well as the $2.50 and $3.00 allowances thereafter. Such evidence casts no light on whethe'r Management Board authorization had been given, it merely shows why the Ministry acted as it did. Apparently there was a general impression that allowances could be paid by reason of certain Public Service Act Regulations, Exhibit 288 (which had ceased to be effective in March, 1963) or under the Ministry's own Manual, or under 17.1.1 of the collective agreement. However, one of the documents.produced was a letter, Exhibit 32, dated February 27, 1978, in which Mr. R.J. Gibson, Manager, Personnel Services in the Metro Region, suggested to Mr. A. Johnston, Senior Personnel Admin- istrator, Standards and Audit,' .that no authority existed under either the Manual of Administration or Article 17.1.1 to pay meal allowances in respect of night reporting. In the opinion of this Board, he was right, although he failed to state the real reason, which was that no such payments had been author- ized by the Management Board. Mr. Walter Gorchinsky, Chief Staff Relations Officer with the Civil Service Commission, had been senior negotiator : in 1974-1976 negotiations for the first collective agreement between the parties in this case. His evidence seemed, to indicate that considerable confusion has arisen and continued for years because of Management Board's practice (previously explained) of delegating certain powers to Ministries, partic- ularly in fixing rates. That delegation, however, did not extend to matters expressly reserved for Management Board approval, as in 1'7.2.5 of the collective agreement. It was - 32 - a restriction not generally understood, although very plainly stated in 17.2.5 of the collective agreement as well as in other documents. We venture to express an opinion (apart from this decision) that in the circumstances the payment of meal allow- ances was appropriate, whether or not other options were of,fered to or accepted by employees. There is no expense account in evidence revealing that excessive or unreasonable claims were sought or paid. We suggest also that it was hardly fair on the part of the Ministry to ask (as sometimes occurred) that time served in the evening follow immediately after work in the day. That notion was probably derived from the inapplicable and irrelevant reference in 17.1.1 to "overtime immediately following his scheduled hours of work." ' Nevertheless, the Union's policy grievance necessarily rests on the provisions of the 1978 collective agreement. Considerations of what may be fair or reasonable cannot be allowed to determine the result. The Union alleged in effect a contravention of the 1978 agreement, which was grievable and arbitrable under the Crown Employees Collective Bargainings Act - 33 - as wel.1 as Article 27 of the agreement. It was provided in 27.12 that "the Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any pro- vision of the Collective Agreement." Thus, even if we thought it proper, we have no power to remove the refer- ence to Management Board from 17.2.5. .Before summarizing'the Board's conclusions in this case, it may be useful to mention the curious history of relevant language, after'the making of the 1978 agreement as well as before. The language ,of 17.2.5 first appeared in the collective agreement made on January 28, 1976. It was then numbered 14.2.5 but the words are exactly the same as in 17.,2.5 in later years. More interesting are certain changes in the Management Manual issued after the 1978 agreement was made. These were not argued at the hearings held by this Board, but have, since come to our attention. An amending page dated "11 Aug 78" and numbered "60-2-7" contained a paragraph numbered 7.2 under the headings "60 Employee's Expenses 2. Travel, Meal and Hospitality Expenses," as follows: Overtime Meals. An,employee who is not entitled to compensation either by way of overtime pay or leave in lieu thereof and who works two or more continuous hours overtime which includes a normal meal period, may, at the discretion of the agency head, be reimbursed for the cost of a meal which is not otherwise provided. Another amendment is on page 7, Exhibit 26, and appeared two years later. It is dated "1 Sep 80", and the page bears the same number "60-2-7". This time paragraph 7.2 was as follows: Overtime Meals. Provided that meals are not otherwise made available, the cost of a meal may be reimbursed, at the discretion of the deputy head, 'for employees who are required to work more than two hours con- tinuous overtime, in the following cases: (a) when the employee is not entitled to compensation either b=ay of overtime pay or time off in lieu.thereof; or (b) when an employee who is entitled to compensation either by way of overtime pay or leave in lieu thereof has not been given reasonable prior notice of the need to work overtime. It is obvious that were it not for the require- ment in 17.2.5 of the collective agreement, the deputy head would have been free to;authorize the payment of meal allowances to parole officers doing night duty. This would have been so at least after August 11, 1978. The allowances actually paid were authorized by the Management Manual, but contrary to 17.2.5 of the collective agreement. - 35 - We find it difficult to understand why all those concerned seem to have been unaware of what actually appeared in the Management bIanua1 in 1978 and subsequent years or why 17.2.5 was not consistent therewith. The Board's conclusions may now be summarized as follows: (I) Meal allowances in respect of night reporting were paid by the Ministry of Correctional Services to parole officers in varying amounts during the life of the 1978 agreement, but such payments were neither required nor authorized under Article 17.1.1 of the agreement. (2) Although there was ample justification for the payment of such allowances to parole officers in recurring situations by reason of the special nature of their assignments, it had never been authorized by the Management Board, and therefore the employer had no obligation to pay and the employees had no right to receive such payments under Article 17.2.5 of the agree- ment. (3) Payments in respect of meal allowances should be considered to have been claimed in good faith by parole officers and in accordance with what they had - 36 - reason-to understand was the policy of the Ministry, and the resulting payments made to them by the Ministry should be considered in the same light, notwithstanding the lack,of formal authorization by the Management Board, which was a party to the applicable collective agreement. In the result, the policy grievance fails and must be dismissed. DATED at Toronto this 11th day of February, 1983. "I dissent" (Dissent to follow) L; Robinson Member W. Evans Member 812100 813700 4:1500 DISSENT This must be one of the longest cases in the records~ of the Grievance Settlement Board. The practice which gave rise to the grievance goes back to the 1960's. The grievance itself arose from a memorandum dated March 15, 1978. Following the steps prescribed by the grievance procedure, the matter was referred to arbitration in June 1978. Hearings before the Board were held in January to May of 1982. The Board rendered two interim decisions in January and March of 1982, and the Majority Award was issued in February 1983. My dissent now comes six months later. The grievance concerns the payment of a meal allowance to Probation and Parole Officers who work overtime in the reg- ular course of their duties. Although these officers norm- ally work on day shift, many of the,parolees whom they must see at regular intervals also have day-time jobs, and must accordingly be interviewed in the evening. Parole Officers with evening "clients" thus developed the habit of working overtime regularly once a week. They claimed and for many years were paid a meal allowance for these evenings. Parole Officers from Hamilton, Ottawa and Toronto testified that they had received payment of an overtime meal allowance as an established practice during 1975, '76, '77 and into '78. Their evidence was supported by their expense accounts tender- ed as exhibits. -2- However, the Ministry of Correctional Services sought to put a stop to this practice by issuing a memorandum signed by Mr. Dickson Taylor, Director of Probation and Parole Services, and, as noted, dated March 15, 1978. The memo- randum read as follows: Subject - Overtime Meals Since the signing of the collective agreement, there has been considerable misunderstanding in Probation and Parole around overtime meal allowance for bargain- ing unit employees. This allowance has been determined 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 prev- iously scheduled shift, shall be reimbursed for the cost on One (1) meal to two dollars and fifty cents ($2.50) except where free meals are provided or where the employee is being compensated for meals on some other basis." The operative provision for bargaining unit employees is for the payment of one meal to $2.50 after two hours of overtime immediately 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 the course of overtime duty, are within 15 miles of their home office. Besides initiating the grievance, Mr. Taylor's memorandum was also the source of a confusion which plagued the parties througloutits course and was the subject of prolonged argument before the Board. It will be noted that the memorandum refers to Article 17.1.1 of the Collective Agreement, whereas a brief ‘3 -. ci -3- examination of this article is sufficient to show that it has no application to the facts of the case. In the griev- ance procedure leading up to arbitration, as well as in written communications to the Deputy Minister of Correctional Services and to the Registrar of the Grievance Settlement Board, the Union relied on Article 17 as a whole, whereas in its argument to the Board, the Union referred specifically to Article 17.2.5. It will be useful, in order to clarify the issue, to quote Article 17 in full. ARTICLE 17 - MEAL ALLOWANCE 17.1.1 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 prev- iously scheduled shift, shall be reimbursed for the cost of one (1) meal to three dollars ($3.00) except where free meals are provided or where the employee is being compensated for meals on some other basis. 17.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his work place. 17.2.1 Cost of meals may be allowed only; 17.2.2 If during a normal meal period the employee is travelling on government business other than: (a) on patrol duties, except as provided under subsection 17.2.3, or (b) within twenty-four (24) kilometres of his assigned headquarters, or (cl within the metropolitan area in which he is normally' working; 17.2.3 If an employee on patrol duties is reimbursed for overnight accommodation required for the trip; 17.2.4 If, in an unusual non-recurring situation, the department head authorizes such payment: -4- 17.2.5 If, in any recurring situation, the Management Board has authorized such payments because of the special nature of the assignments. 17.3 Gratuities and taxes are to be included in the actual cost of meals claimed. 17.4 The total cost of meals for each day is to be shown. 17.5 Before approving claims for meals, the branch head should be satisfied that the charges are reasonable for the locality. 17.6 When an employee is authorized to pay meal ex- penses for guests and the group also includes other Crown employees, he may pay for the meals of the employees and claim the cost. These employees should, if they are submitting a claim for the same trip, indicate any meals covered in another employee's claim. They must not claim the cost again. Article 17.1.1 deals with employees who continue to work more than two hours of overtime immediately following their scheduled hours of work "without notification of the requirement to work such overtime" prior to the end of their previously scheduled shifts. But the Probation Officers who claimed and were paid a meal allowance worked overtime in accordance with a pre-arranged and regular schedule known to them well in ad- Vance. Article 17.1.1 was thus clearly irrelevant. Bad the Union followed Mr. Taylor in his error, the grievance would have failed. Indeed, Mr. Zarudny, as Counsel for the Employer, argued vehemently and at some length not only that the Union had followed Mr. Taylor, but that it was also obliged to do - so! The articles relevant to this grievance are 17.2.1 and 17.2.5. These state that cost of meals may be allowed subject to.three -5- conditions: (a) there is a recurring situation: (b) the special nature of the assignment, and Cc) Management Board has authorized such payments. With respect to the first two conditions, the Majority Award concludes that they "present no difficulty whatever". "The night work required of many parole officers undoubtedly constituted "recurring situations", and we so find. In fact it was usually required one night a week, week after week. "The night assignments were of a 'special nature'. For most professional and clerical workers in the public service, night duties are not required, at least not on a recurring basis. It was the special responsibility of parole officers for clients who could not attend during the day which made weekly night duty essential. "It is the third element in 17.2.5 which posed the real issue in this case. Simply put, the question is: was it a duly authorized practice to pay parole officers meal allowances in respect of night duties?" (pages 13-14) The Majority Award answered this question in the negative. With respect, I do not agree. 3 -6- Counsel for the Employer called four witnesses in support of his case. Among these was Mr. John Gardner, a Management Board officer with the Management Policy Division of the Management Board Secretariat, which in turn reports to the Management Board of Cabinet. Mr. Gardner has worked for. eight years in the Management Policy Division. As part of his evidence, Mr. Gardner submitted eight ex- hibits (Exhibits 19 to 26), of which seven were extracts from the Board's Ontario Manual of Administration. There is a date in the bottom right hand corner of each page of these extracts: from the variety of these dates and the number of the pages, it is evident that the Manual is subject to frequent and on occasion major amendment. The second of Mr. Gardner's exhibits (Exhibit 20) is headed: MANUAL OF ADMINISTRATION -------------------- PROCEDURE III. Finance L. PAYROLL SYSTEM and is dated 30 April 1974. Section 5 of the Payroll System is headed: 5. PAYMENTS FOR OVERTIME AND STAND-BY TIME and at page III-L-11 contains the following: ~Authorization for - is by the deputy minister or his Payment of Overtime designee Payment for Meals -7- - may be made where a public servant who is not otherwise entitled to compensation either by way of pay or leave in lieu, performs three or more continuous hours of overtime in which is included a usual meal time, unless the meal is otherwise provided. - is approved by the branch head. (Approved by Treasury Board, April 2, 1969. (Exhibit 20) Here then is a directive from Nanagement Board authorizing the payment for meals to public servants who perform three (later reduced to two) or more continuous hours of overtime in which is inciuded a usual meal time. This would appear to cover the Probation and Parole Officers with whom we are concerned. The language is more general, containing as it does no reference either to a recurring situation or the special nature of the assignments, but the essence of the problem, namely, that the Officers work overtime in which is included a usual meal time is clearly stated. The Majority Award gives "three reasons for holding that the 1969 Treasury Board rule did not apply to parole officers in 1978. "The first reason is that the Management Board of Cabinet Act of 1971 and 1972; Section 6 (quoted earlier in this - decision) expressly made 'allowances' subject to 'bargaining under the Crown Employees Collective Bargaining Act' (enacted about the same time) so that although Management ‘i ,a - 8- Board could make regulations in respect of 'allowances for travelling and living expenses', it could not do so in respect of allowances governed by a provision in a collective agreement. "The second reason is of course that the matter was expressly covered by Article 17.2.1 and 17.2.5 in the 1978 agreement between Management Board and the Union, when the parties agreed that in 'any recurring situation', overtime meal costs would be allowed & if Management Board authorized such payments. It was further agreed that this would be done 'because of the special nature of the assignments' which clearly required a judgmentby Management Board that in a particular situation the assignment given had a 'special nature'. There is a I total lack of evidence that the night assignments given parole officers were ever brought to the attention of Management Board, or that the Board was ever called upon to 'authorize such payments' as contemplated by 17.2.5. As previously stated, the parties could have agreed on such payments without Management Board authorization, but the parties did not so agree. "The third and perhaps most compelling reason is that the 1969 Treasury Board rule set out in Exhibit 20 (and con- firmed in 1974) was clearly revoked or negatived as of March 21, 1975, as appears in Exhibit 21. Previously men- tioned in this decision, it was a later and amended extract -9- from the Manual of Administration's "DIRECTIVE III Finance", being part of Section 6(4) headed "Rules re: Meal Costs and Hospitality Expenses". The page was designated "III-M-1Qa 21 March 75", and the relevant language was as follows: (4) Cost of meals may be allowed: . . . . . (c) if, in an unusual non-recurring situation the agency head authorizes such payment; (d) if, in any recurring situation, the Man- agement Board has authorized such pay- ments because of the special nature of the assignments. "Thus, whatever may have been the effect of the language used in Exhibit 20 (which apparently remained in force until early in 1975) the rule prevailing in 1978 was as stated in Exhibit 21 above -- which is for all practical purposes the same rule as what was recognized by 17.2.5 in the 1978 collective agreement." (pages 28-30) In assessing these three reasons, it is first necessary to give the text of Section 6 of the Management Board of Cabinet Act. It is cited in part at page 26 of the Majority Award, and is as follows: "6 . Subject to the approval of the Lieutenant Governor in Council, the Board may make regulations, . . . . . . . - 10 - (c) fixing the scale of allowances for travelling and living expenses to be allowed to any person em- ployed in or in connection with any part of the Public Service, except those allowances which have been determined by bargaining under the Crown Employees Collective Bargaining Act." The section speaks of the scale of the allowances; it says nothing about the conditions under which the allowances are to be paid. It is therefore when the scale of allowances is governed by a provision of the Collective Agreement that Section 6 precludes Management Board from making regulations -. which fix their scale. Article 17.2.5 on the other hand sets out the three conditions under which meal allowances may be paid, but says nothing about the scale of these allowances. It seems to me therefore that Section 6 is inapplicable to the issue with which we are concerned. Nor is the reference in Section 6 to the scale of allowances surprising. One of Management Board's functions is to negotiate on behalf of the Government with the Unions who act as bargaining agents for organized public servants. It would be illogical for Management Board to be given the power to fix unilaterally the scale of allowances which has been determined by collective bargaining; it could not have the power to fix a scale which is below that agreed to in bar- gaining, and there would be little point in allowing it to fix a scale above that which had been agreed to. Be that as it - 11 - may, the language of Section 6 is clear; it limits Management Board's power to fix the scale of allowances, without any reference to the conditions under which these allowances are to be paid. These may be governed either by the Collective Agreement, or by the Manual of Administration, or by specific Management Board decisions, or by a combination of all three , provided they are not in conflict with each other. Exhibit 20 is not in conflict with Article 17.2.5 - of the Agreement, nor is it in conflict with Section 6 of the Management Board of Cabinet A&t. Turning to the second reason given in the Majority Award, this implies that Article 17.2.5 specifies the precise manner in which and the particularity with which Management Board must authorize the payment of meals. In other words, Article 17.2.5 is held to bind Management Board in its decision-making process with respect to the way in which the Board chooses to implement the Collective Agreement. However, if Management Board chooses instead to take a more general decision and to issue a directive which is more general in its terms than the specific language contained in the Agreement but which is not in conflict with it, must we conclude that the Agreement prohibits Management Board from doing so? Can it be said that the Agreement dic- tates and limits Management Board's modus operandi, beyond the limitations expressly provided by statute and the obvious fact that Management Board, having signed the Agreement, cannot make decisions which are contrary to and would thereby derogate from the Agreement? If Exhibit 20 nullified Article - 12 - 17.2.5, the conclusion would be clear. But it does not. In my view, the second reason stated in the Majority Award constitutes an exceedingly narrow and restrictive inter- pretation of Article 17.2.5 which is unnecessary and un- warranted. Moreover, as will be shown in-mediately below, the format and instructions of the Manual of Administration, if they did not altogether preclude at least strongly mili- tated against an application to Management Board for authority to pay overtime meal allowances to Parole Officers in the terms which the interpretation given by the Majority Award to Article 17.2.5 is held to require. The third "and perhaps most compelling" reason given in the Majority Award states that Exhibit 20 "was clearly revoked or negatived as of March 21, 1975, as appears in Exhibit 21". Three considerations argue against this conclusion. The first arises from the fact that Exhibits 20 and 21 are two sections of the Administrative Manual which are complementary, rather than in conflict. There is nothing either in their format or their language to suggest that the pages of Exhibit 21 which are dated March 21, 1975, replaced or superseded Exhibit 20, which is dated April 30, 1974; on the contrary, there is, as will be shown in the second consideration, much to the contrary. Nor was any evidence offered by any of the witnesses to suggest that Exhibit 21 was intended to replace or supersede Exhibit 20; again, as will be shown below, there was much to the con- trary. Accordingly, Exhibit 21 neither revoked or negatived Exhibit 20, and was not intended to do so. - 13 - The dates of the two exhibits point in the same direction. The date of the first page of Exhibit 21 is August 4, 1971, from which we may infer that other pages of this exhibit were.also issued in earlier versions at various dates before March 21, 1976. Similarly, the crucial text of Exhibit 20, quoted at pp. 6-7 above, includes the notation "Approved by Treasury Board, April 2, 1969", from which we may infer that this text was likewise to be found in earlierversions of Section III - L PAYROLL SYSTEM of the Manual before April 30, 1974. Exhibits 20 and 21 may therefore be assumed to have dwelt amicably alongside each other as two parallel sections of the Manual for several years before 1974-75, without either of them taking precedence over or overriding the other: reference to file copies of the Manual would confirm whether this was in fact so. The history of the two exhibits thus supports the conclusion of the previous paragraph. The second consideration arises from the terms of Exhibit 21 itself. The full title of the exhibit, similar to the title of Exhibit 20, is: MANUAL OF ADMINISTRATION -----------------:- DIRECTIVE ~,III. -Finance M. TRAVELLING EXPENSES and the first sentence of'which reads: "The following Rules on Travelling Expenses have been approved by Treasury Board" (my emphasis). Exhibit 21 is thus unmistakably distinguished from Exhibit 20, which is - 14 - the preceding section of the Manual and whose full title was given at page 6 above. The heading and reference to travelling expenses led to endless confusion. Paragraph 6, subparagraph (1) of Exhibit 21 is as follows: "6 . Rules re: Meal Costs and Hospitality Expenses General (1) This policy prescribes the broad circumstances in which meal and hospitality costs may be allowed and sets out the minimum basic rules to,be observed in reporting and approving them. It is designed to provide the ministries with sufficient flexibility to meet their own part- icular needs. Its effective application, therefore, is dependent on each ministry de- veloping and publishing its own standards and guidelines to regulate meals and hospitality expenditure in accordance with the policy items and general principles which follow." Here is a clear and altogether sensible statement of the principle of the delegation of authority for Ministries to develop and implement their own standards and guidelines to meet their own particular needs in accordance with general Management Board policy. Finally, under the heading General Principles for the Guidance of Ministries, subparagraph (18) contains a cross-reference to Exhibit 20 as follows: - 15 - (18) "In the formulation of standards and guidelines, the following should be considered: (a) Cost of Meals (vii) The prescription of rules for special meals, (i.e. early and late meals, overtime meals, holiday meals, etc. For overtime meals see page. III-M-1Oe 21 March 75 (Exhibit 21) (my emphasis) Exhibit 21 contains, under the heading Meals at page .III-M-lOa, what later became the text of Article 17.2.1 to 17.2.5 of the Collective Agreement. It was perhaps because this text first appeared in the Manual of Administration in the section headed Travellinq Expenses that Counsel for the Employer argued that in the Collective Agreement also it referred solely to travel. The Majority Award rejected this argument, which it described (at page 25) as "specious" and "fallacious". The argument sought to give to these para- graphs of Article 17 a restricted interpretation which, taken in their context of the Collective Agreement rather than in the context of the Manual of Administration as it was in 1975, they will not bear. But the practical effect within the government administration of placing this text in Exhibit 21, together with the cross-reference near the end of Exhibit 21 to an earlier section of the Manual, was that recurring ': situations and assignments of a special nature were taken to refer to travel. By contrast, when payment for overtime meals was involved, a different section of the Manual, namely Exhibit 20, was the applicable guide. - 16 - It is therefore not surprising, given the Manual as it stood as of March 1975 and insofar as it was known to officials of the Ministry of Correctional Services, that, .as the Majority Award observed, "Management Board was never called upon to 'authorize such payment' as contemplated by 17.2.5” (page 29). The Employer cannot have it both ways. It cannot issue a Manual of Administration which places the text of what are now paragraphs 17.2.1 to 17.2.5 of Article 17 under 'I'ravelling Expenses and instructs the Ministries to look elsewhere for the rules which apply to the payment of overtime meals, and then turn around and claim that the payment of overtime meals to Probation Officers was never authorized because the Ministry never applied for such authorization under a section which the Manual says is not intended for that purpose. To return to the thread of the argument and a brief summary. Exhibit 20, from which the key paragraph is quoted at page 7 above, provides in my submission the necessary authority from Management Board for the payment of overtime meals to Probation Officers under Article 17.2.5. The Majority Award gives three reasons for holding that Exhibit 20 did not apply to Parole Officers in 1978, when the grievance arose; these reasons are set out at pages 28 to 30 of the Majority Award and are quoted above. The third of these reasons is that Exhibit 20 was "clearly revoked or negatived" by Exhibit 21, both these exhibits being extracts from the - 17 - Ontario Manual of Administration. Three considerations argue against this conclusion, of which the sewnd derives from the respective titles of the two exhibits and a chess-reference in Exhibit 21 to Exhibit 20 for Management Board rules concerning overtime meals. Now to the third consideration. It is that Exhibit 21 was in turn revoked or negatived by later changes to the Manual of Administration. There has been a continual stream of these changes, as shown by the dates of the exhibits tendered by Mr. Gardner. Indeed, it is evident that some time not later than April 30, 1976 (see Exhibit 24), the former Sections L and M of the - - Manual were recast as part of what apparently became a new structure of the Manual as a whole. Sections L and M were - merged under a new heading: 60. Employee's Expenses 2. Travel, Meal and Hospitality Expenses Exhibit 26, tendered by Mr. Gardner, constitutes this section as it stood at the time of the hearing, the latest page date being January 4, 1982. No trace can be found in Exhibit 26 of the critical text in Exhibit 21 on which the Majority Award relies (and from which, as noted, Article 17.2.1 to 17.2.5 of the Collective Agreement is derived). More than revoked or negatived, it has - 18 - simply vanished. Instead, paragraph I of Exhibit 26 (page 60-2-7) is headed Meals and contains paragraph 7.2 as follows: "7.2 Overtime Meals. Provided thae meals are not other- wise made available, the cost of a meal may be re- imbursed, at the discretion of the deputy head, for employees who are required to work more than two hours continuous overtime, in the following cases: (a) when the employee is not entitled to compen- sation either by way ofovertime pay or time off in lieu thereof; or (b) when an employee who is entitled to compen- sation either by way of overtime pay or leave in lieu thereof has not been given reasonable prior notice of the need to work overtime." Here, Management Board's authority referred to in Article 17.2.5 is delegated to "the discretion of the deputy head", while the rest of the paragraph and in particular sub- paragraph (a) covers employees such as Probation Officers who are not entitled to compensation either by way of overtime or time off in lieu thereof. The Majority Award cites Paragraph 7.2 and comments: "It is obvious that were it not for the requirement of 17.2.5 of the collective agreement, the deputy head would have been free to authorize the payment of meal al- lowances to parole officers doing night duty. . . . The - allowances actually paid were authorized by the Management Manual, but contrary to 17.2.5 of the collective agreement." (page 34--my emphasis) - 19 - With respect, this seems to me quite wrong. The Collective Agreement is a contract between the Ontario Public Service Employees Union on the one hand and Management Board of Cabinet on the other. The way in which Management Board and more generally the Government as a whole choose to give effect to the obligations assumed in the Agreement is for them to decide. The Union requires and will of course demand that full and faithful effect be given to these obligations, but it is no part of the Union's business to tell Management Board how from the point of view of internal government ad- ministration it must do so; that is a Management right - and duty. That is to say, the Collective Agreement cannot bind the Government and in particular Management Board as to the manner in which it implements the Agreement, provided only that the rights and privileges which the Agreement gives to employees are fully and fairly observed. From the Union's and the employees' point of view, the manner in which Elanagement Board chooses to operate is immaterial. There is nothing in the Collective Agreement which says that Man- agement Board may not delegate the authority given to it by Article 17.2.5 to senior (or for that matter junior) of- ficials in other Ministries. Such delegation was explicitly set out in Exhibit 21 quoted above and was repeated in slightly altered language,in Exhibit 26. It is entirely ap- propriate and in accordance with sound management practice. Officials at the administrative and financial nerve centre of government should not be burdened with petty details in- - 20 - volving a small number of public servants in one part of one Ministry and costing at most a few thousand dollars a year. Consequently, to read,such a prohibition into Article 17.2.5, and thereby to deny this grievance, is to give the Article an additional meaning which it neither has nor was intended to have. Exhibit 20 formerly and now Exhibit 26 constitutes the authorization from Management Board which Article 17.2.5 requires. For the reasons given, I believe the grievance should succeed. II. I turn now to the equity of the case. Of course, a grievance cannot succeed on the basis of equity if adequate legal grounds are lacking. Equity was, however, unambiguously on the side of the grievers,, and accordingly merits discussion. There are three aspects: 1) The Ministry's practice in the payment of overtime meals. The practice was in effect for a number of years and naturally gave rise in the minds of Probation Officers who were paid both to a presumption that the payment was legal and to an expectation that it would continue. 2) The implication of the Employer's legal argument. In denying that the Collective Agreement was violated when ‘1 - 21 - the payment of overtime meals was stopped, Counsel for the Employer was constrained to admit that all the pre- ceding payments were without proper authorization, and consequently unlawful. In endeavouring to clear his client of one illegal act, Mr. Zarudny argued that the Employer had been guilty of an uncounted series of prior illegal acts. This was certainly a novel defence. 31 The difference in the interpretation given to the relevant documents by the senior government officials involved, both in the Ministry of Correctional Services and in Management Board. These differences made it virtually impossible for an application for authorization to pay overtime meals in the terms which the Majority Award stated were required by Article 17.2.5. Ignorance or confusion of what the law is deemed to require thus leads to the failure of the grievance. As indicated earlier, such a conclusion appears to me patently inequitable. The Majority Award states the equity of the case as follows: "There was ample justification for the payment of (overtime,meal) allowances to parole officers in re- curring situations by reason of the special nature of their assignments." (page 35) Wholly apart from the legal rights and wrongs, which may be debated;the decision to stop paying these allowances was inequitable and was not in accordance with the standards I----*-- .- i , - 22 - by which an enlightened employer should be guided in dealing with his employees. The evidence as to practice was impressive. Exhibit 5, tendered by the Union, contains 43 expense account claims for overtime meals and other expenses from Mr. J. P. Annett, a Probation and Parole Officer who works in Ottawa and was a witness before the Board. These claims cover the period from April 1975 to September 1978. The first twenty-one of these claims were submitted on the Ontario Government's prescribed Statement Of Travelling Expenses form (7540-1041); later claims were submi,tted on a Ministry form, as were similar claims by Mr. Hanwell. All of these claims were authorized by Mr. Annett's Senior Probation and Parole Officer, approved by his Supervisory Probation and Parole Officer, and duly paid. Exhibit 8 contains 24 similar claims submitted by Mr. J. G. Hanwell, a Probation and Parole Officer working in Toronto who also appeared before the Board. These claims were likewise authorized by Mr. Hanwell's Senior Probation and Parole Officer and approved by his Supervisory Probation and Parole Officer, in this case Mr. W. E. Bunton, whom we shall meet later. Mr. Peter David Park gave evidence that, as Office Manager of one of the Ministry's Toronto offices, he routinely reviewed and authorized expense claims of the probation and parole staff there, and he confirmed the evidence of the two previous witnesses. Finally, Mr. Abdul Bhatti, - 23 - a Probation and Parole Officer working in Hamilton, testified that he had submitted and received payment for numerous claims similar to those of Messrs. Annett and Hanwell. Indeed, in August 1978, five months after Mr. Taylor's memorandum, he was allowed to claim $2.50 towards the cost of his overtime meal, paying the balance from his own-pocket. In support of this practice, a stream of memoranda,.instructions, rules and scales of allowable costs of meals emanating from the Ministry gave what appeared to be clear and ample authority for these payments. The first of these (Exhibit 6) is the Introductory page to the Consolidation of All Memo- randa issued by the Director to Probation Officers from January 1956 to the end of March 1963. It is dated May 1, 1963, and issigned by' D. Coughlan, Director of Probation Services. The last of these (Exhibit 16) is a memorandum dated March 31, 1977, issued by Mr. M. J. Algar, Assistant Deputy Minister, setting out a new scale of meal allowances effective April 1, 1977. This memorandum was addressed to the Deputy Minister and all senior officials of the Ministry. Pertinent extracts from some of these memoranda are given here. i) From the Director's Consolidated Memoranda, page 14, as revised on May 25, .1971, under the heading OVERTIME: "Supper money may be claimed where a Probation Officer's duties necessitate his working for 3 or more continuous hours, after 5:00 p.m., excluding time taken for the supper . - 24 - period provided that the officer is unable to go home for supper by reason of distance and that the Area Supervisor supports the claim. "(Excerpt quoted is found in the Regulations under the Public Service Act 1961/62, and previously supplied to all Supervising Probation Officers by our Personnel office) (This includes all Civil Servants in Schedules 3, 4 and 7 as supplied to all Supervisors and offices by Mr. A. R. Dick, Deputy Attorney-General under date of April lst, 1971.)" (Exhibit 27) This was revised on August 24, 1973 to read: "A meal allowance up to $3.50 may be charged where an officer works 3 hours overtime and is unable to go home for his meal." (Exhibit 7) ii) A memorandum dated July 31, 1972, from Mr. T. F. 3. West, Executive Director, Administrative and Financial Services Division of the Ministry of Correctional Services, sends them attached copies of Ministerial "Rules on Travelling Expenses, Expenses of Moving On Transfer, and Expenses of Candidates and Appointees to positions in the Ministry" (Exhibit 12). The rules form part of the Ministry's Manual of Administration. Under Section F. Rules Re Meals, Rule 9 headed Overtime Meal Claim and dated May, 1973, provides that: "Payment for a meal shall be made when an employee, who is not otherwise entitled to compensation, either by way of pay or leave in lieu, performs three or more continuous hours of overtime in which is in- cluded a usual m&al time, unless the meal is other- wise provided.." (Exhibit 12A) The similarity of this text to the language of Exhibit 20, 'taken from Management Board's Manual of Administration and . - 25 - quoted on page I above, is striking. The text was repeated in subsequent amendments to the Ministry's Manual dated September 1974 (Exhibit 12) and August 1976 (Exhibit 12A). iii) In a memorandum headed "Probation Staff Expense Accounts" and dated October 18, 1972, Mr. D. C. Mason, then Director of Probation and Parole Services, wrote: "I am authorizing the four regional directors to approve expense accounts of probation staff, and you will find attached sample signatures." (Exhibit 13A) In a later memorandum headed "Staff Travelling Expense Accounts" and dated July 12, 1973, Mr. Mason informed his Regional Directors that: "The Accounts Branch hasagreed to accept the Supervising Probation Officer's signature for Probation Officers and Senior Officers in their respective areas, and, therefore, it will be in order for the Supervisor to sign both in the "authorized" and "approved" sections, and these accounts may be submitted directly to the Accounts Branch at Main Office for reimbursement. "Where a Senior Officer has been delegated responsibility for an office, he may authorize Expense Accounts and forward them to the Supervisor for approval." (Exhibit 13A) Four days later, Mr. John E. Spriggs, Regional Director of the Central Region, transmitted this information to all Supervising Probation Officers in his region.(Exhibit 13). To repeat, overtime meal claims were made on Travelling Expenses account forms. i , - 26 - iv) In January 1975, a new Probation and Parole Service Manual replaced the Director's previous Consolidated Memoranda as well as the Probation Officers Handbook (19651, "both of which have been rendered obsolete by organizational changes within the Ministry, legislative revisions, and expanded job functions". (Exhibit 9). At page 20, under the heading Overtime, the new Manual stated: "Actual meal expenses may be claimed where a probation ,.; parole officer's duties necessitate three or more con- tinuous hours of overtime." v) Finally, on May 14, 1975, Mr. W. B. Bunton, a Super- visory Parole and Probation Officer in Area 56, issued a memorandum to his staff on the subject of Rules on Travelling, in which "attention is drawn to the Management Board of Cabinet's revised rules on meal expenses" (Exhibit 14). (Mr. Spriggs suggested in his evidence that the reference to Management Board was in error, that the reference should have been to the Ministry's Rules. The text of these Rules, at page 4 of Exhibit 12, indicates that Mr. Spriggs was correct.) Mr. Bunton's memorandum set out the maximum guidelines for "reasonable meal costs under normal circumstances", and added the following: - 27 - "The only meal charge which applies for Area #56 per- sonnel is the Reporting Day overtime dinner charge for Officers. Please note,that (a) the overtime must com- prise three or more hours, immediately consecutive to the regular termination hour of the 7-k hour work-day; and (b) the meal charge must be for the actual out-of- pocket costs, within the guidelines, since no actual allowance pertains for such meals." (Exhibit 14) Mr. Bunton sent a copy of this memorandum to his Regional Director, namely, Mr. Spriggs, who, as noted, was a witness before the Board. As the Majority Award notes, these rules and memoranda all came from within the Ministry. The extent to which the officials who issued them had knowledge of Management Board's Manual of Administration and/or other directives remained, on the evidence before us, an open question, although the notable similarity of the text quoted from Exhibit 12A and text of Exhibit 20 suggests at least some familiarity. What- ever the answer may be, senior Ministry officials stated and were on the record for many years in no doubt that claims for overtime meals were properly authorized and lawful, and so instructed their staff. Thus, practice plus repeated as- sertions of legality gave unquestioned support to equity. Consequently, when following Mr. Dickson Taylor's memorandum of March 15, 1978, the payment of meals was stopped, the Union grieved. It had every reason to believe that its griev- ance was well founded. i - 28 - The Union alleged a violation of the collective Agreement, specifically of Article 17. That is normal. The Employer replied that there was no violation, which is also normal. But the reply was to the effect that stopping the payment of overtime meals was not in violation of the Agreement; rather it was the payments themselves. Notwithstanding the weight of evidence to the contrary, these payments had from the first never been properly authorized, were contrary to the terms of Article 17 and were in consequence unlawful. All the Parole and Probation Officers who had claimed overtime meals, all their superiors and other officials who had authorized and approved the claims, who had issued the cheques and who had subsequently audited both the claims and the cheques without finding any fault in them, as well as all the senior Ministry officials who had written the many exhibits quoted above, were in error. They had acted without proper authority and in effect unlawfully. This was an unusual, indeed a remarkable reply. By way of analogy, it is as if a lawyer, defending his client on a charge of speeding, were to argue that his client could not possibly have been speeding because he had in his car $100,000 which he had stolen from the bank the day before and consequently the last thing he would want to do was to draw the attention of the police to himself on the highway. In- stead of one alleged violation of the Collective Agreement, Mr. Zarudny in reply argued innumerable previous violations . -29- stretching back over many years. He did so with energy and zeal. He represented his client with a malignant fidelity. There may be cases in which no other argument is possible, in which the facts and/or the law are so clear as to allow no alternative. In such cases, better plead guilty to the lesser offence and be done with it. But this was definitely not so in the present case. This brings me to the third aspect on which I wish to comment, namely, the diversity of understanding and interpretation, and in some cases misin- terpretation, of the texts discussed above on the part of some of the officials concerned. Nor were all of the texts models of clarity. Wholly apart from any difference in the conclusions eventually arrived at, the Board spent a good many hours working its way through this tangle. TO begin with, there is Mr. Dickson Taylor's memorandum which gave rise to the grievance. As will be recalled, the memo- randum begins by stating, "Since the signing of the Collective Agreement, there has been considerable misunderstanding in Probation and Parole around overtime meal allowance for bargaining unit employees," and proceeds to discuss the issues in terms of Article 17.1.1 of the Collective Agreement. Un- fortunately, since this article was irrelevant to the issue, Mr. Taylor's memorandum did nothing to clear up the misunder- standing to which it referred in its first paragraph. . - 30 - Even before issuing his memorandum, Mr. Taylor had sought the assistance of Mr. J. F. Benedict, Manager, Staff Relations for the Ministry. Mr. Benedict in reply (Exhibit 16) sug- gested some changes in the draft submitted to him, but did not question the reference to Article 17.1.1. On the other hand, two weeks earlier, Mr. R. J. Gibson, Manager of Personnel Services, Metro Region, had expressed his opinion that Article 17.1.1 "is not applicable in the case of Probation Officers", precisely for the reason that their overtime hours "are usually scheduled hours, usually the same ones each week and as such are not 'without notification of the requirement to work such overtime, prior to the end of (their) previously scheduled shift."' (Exhibit 32) Mr. Gibson's memorandum is dated February 27, 1978, and Mr. Taylor testified that it was brought to his attention around that time. After Mr. Taylor's memorandum had been issued, Mr. W. E. Bunton, wrote to him to say: "With respect, it is my opinion that the memo will only further muddy waters that are already notably opaque. In assuming that it is Mr. Benedict's interpretation which you are relating to the field, I must say that I do not think that the cited Article 17.1.1 applies to our Officers." (Exhibit 33) As recorded in the Minutes of a meeting of the Central Region Area Supervisors held on March 30, 1978 (Exhibit 34), the matter of overtime meal allowances "was again brought forward because of the concern as expressed over the most recent memo from the Director which did not clarify the issue in terms of the circum- stances under which overtime meal expenditures were to to allowed. . . . It was expected that the OPSEU Union would grieve this meal disallowance and in so doing would force a Management position on Probation and Parole Officers overtime meal allowances." Nevertheless, during the next four years and throughout the Board's hearings, in spite of the doubts and concern which had been expressed, Management clung tenaciously to Article 17.1.1. Mr. Taylor told the Board that in 1976 he thought the payment of $3.50 for an overtime meal was quite legal. When the ques- tion of the increasing cost of overtime meals arose, he said he believed the Regional Director understood that $3.50 was the limit, not the $6.00,(later raised to $8.00) which staff members were entitled to claim when travelling. But he ad- mitted that not all the Regional Directors were clear about this. Mr. Taylor also said that he thought, and his advisors told him, that only Article 17.1.1 was involved insofar as the pay- ment of overtime meals was concerned. Finally, Mr. Taylor told the Board that it was decided in July 1979 to re-institute the payment of $2.50 for overtime meals. This followed a meeting in May 1979 of the Ministry's Employee Relations Committee for Probation and Parole Services, -’ i - 32 - attended by Mr. Taylor, Mr. Benedict and others. The min- utes of the meeting record the following: ” 1 . Meal Allowances The discussion on meal allowances for "reporting nights' continued from the August 8, 1978 meeting. Management agreed to allow a meal allowance of $2.50 when exces- sive hours are worked on a 'reporting night'. However, the allowance will not be paid if such hours are not worked in excess ofthe normal number of daily working hours." (Grievance Documents, page 5) In retrospect, Mr. Taylor wondered whether there was any authority to make these payments. At the time, however, he felt that the authority might derive from previous practice and this, he said, was the advice of staff members in per- sonnel who took part in discussions of the matter. Mr. John Gardner, in his evidence, explained that Management Board's policies are published in the Government of Ontario's Manual of Administration. Ministry manuals, although they may be more detailed, must conform to the Ontario Manual: thus, each Ministry prepares its own Manual, using relevant parts of the Ontario one. Mr. Gardner described the Ontario Manual as large, indeed "monstrous", and.expensive. He also said that Management Board did not examine Ministry manuals to ensure that they conformed with the Ontario Manual. In other words, Ministries were responsible for interpreting the Ontario Manual as it applied to them, while Management Board made no effort to ensure that they had done so correctly. I : i - 33 - Mr. Gardner interpreted the paragraph of Exhibit 20 relating to, payment for overtime meals as stating that when an em- ployee is authorized to work overtime and he was not pro- vided with a meal, he could be paid for the meal. He thought this paragraph was similar to Article 17.1.1, even though the key words "without notification of the requirement to work such overtime" are absent from Exhibit 20, as they are also from Exhibit 26 (see pages 7 and18 above). Mr. Gardner made no comment on this latter exhibit. With respect to Exhibit 21, Mr. Gardner emphasized that it dealt with travelling expenses and was in a section of the Manual designated accordingly. Consequently, in his view, this exhibit authorized the payment of meals only to public servants on travel status, whereas Exhibit 20 was concerned with the payment of meals for overtime. Insofar as recurring situations were concerned, Management Board had never received a request to authorize the payment of meals under the para- graph which states: "Meals (4) Cost of meals may be allowed: l'(d) if, in any recurring situation, the Management Board has authorized such payments because of the special nature of the assignments." (Exhibit 21) It follows that, Mr. Gardner emphasized, since the language of this paragraph is the same as that of Article 17.2.5, ; i - 34 - Management Board had never been asked to authorize the pay- ment of meals under this Article, and had never done so. Mr. Walter Gorchinsky was the final witness for the Employer. He is the Chief Staff Relations Officer of the Civil Service Commission, and was the Government's senior negotiator for the first Collective Agreement. He was also the Government's principal negotiator of the current Agreement and his name appears as one of its signatories. Mr. Gorchinsky made the same distinction between Exhibits 20 and 21 as Mr. Gardner: they were two sections of the Manual dealing with two different subjects. Exhibit 20 dealt with the payment of meals to public servants working overtime, whereas Exhibit 21 dealt with the payment of meals to public servants when travelling. He emphasized this point by reference to public servants in the classifications set out in Section 6 of Regulation 881 under the Public Service Act (Exhibit 42); Section 6 includes Probation Officers. These public servants are not entitled to payment for overtime but, Mr. Gorchinsky said, insofar as the payment of overtime meals was concerned, reference should be made to Exhibit 20. Mr. Gorchinsky did not comment on Article 17.1.1 and Article 17.2.5, nor on the confusion which arose following Mr. Taylor's memorandum of March 1978. To summarize, although Mr. Taylor was not clear what the authority was for the payment of overtime meals up to $3.50 * i - 35 - but believed that the issue came under the purview of Article 17.1.1, he was certain that any amount above $3.50 should be allowed only in the case of travel, thus excluding probation officers on night reporting overtime for anything above $3.50. For his part, Mr. Gardner thought that the paragraph in Exhibit 20 dealing with overtime meals authorized payment only under Article 17.1.1, thus excluding probation officers altogether, whereas any request for the payment of meals pursuant to Exhibit 21 and Article 17.2.5 would be concerned only with meals taken while travelling. With this interpretation in mind, Mr. Gardner would no doubt have been surprised,if a request had been made for permission to pay meals to Probation Officers for their night reporting overtime hours, while Mr. Taylor's understanding of the issue made such a request unlikely, to say the least. The Majority Award comments as follows: "The Board found it very difficult to understand how any Mlnistry could make payments over a period of years for a certain purpose unless duly authorized by.law or by those charged with responsibility for the lawful expendi- ture of public funds. This Board had no duty or juris- I diction to pass judgment on the legality of payments made between 1975 and 1978 (which however, if not properly authorized, were not legal - HLR). Our only concern was - to ascertain whether in fact they had been authorized or approved by the Management Board of Cabinet, the i - 36 - question which arises from the language of 17.2.5 in the collective agreement." (page 23) In my opinion, the proper authority for these payments was - there, and senior officials of the Ministry involved con- fidently and repeatedly asserted that it was there. How- ever, when early in 1978 doubts began to be felt and con- fusion ensued, no one seems to have bothered to ask the people in Management Board from whom the authority ultimately had to come. Not being called upon to clarify the issue, they remained silent. Nor, as their evidence disclosed, were they themselves clear about it. As I have said, the Employer was having it both ways. Management Board negotiates and signs the Collective Agreement on behalf of the Employer. The Union is thus entitled to assume that Management.Board will take such steps as are necessary to implement the Agreement - in this case, to authorize the payment of overtime meals to Probation and Parole Officers who qualify under Article 17.2.5. Even more, the Union was entitled to assume, in view of the Ministry's practice and the stream of memoranda, instructions and rules which gave effect to this practice, that Management Board had - authorized the payment of overtime meals. The Union would have been in an awkward position, both from the point of view of the interests of its members and from the point of view of employer-employee relations, if it had expressed doubts on this score and had thus seemed to question the good faith of d i - 37 - Management Board in implementing the Agreement which it had negotiated and signed. More importantly however, given all the circumstances, the Union had no reason to have doubts. But the Union's confidence that it can count on Management Board to implement the Agreement will not remain unaffected by the position which the Employer took in this case and by the evidence, discussed above, of Messrs. Gardner and Gor- chinsky as to what had been done or rather, as they under- stood it, what'had not been done with respect to Article - 17.2.5. In judging the meaning of administrative rules and directives which are reasonably open to different interpretations, one should hesitate about being categorical. However, the in- terpretation I.have put forward in the first part of this dissent, to the effect that there was proper authority for - the payment of overtime meals, has several advantages: (1) it is in harmony with equity and thereby with good em- ployer-employee relations, rather than in conflict with them; (2) it endorses a long-standing practice of the Ministry, rather than repudiating it: ti b - 38 - (3) it confirms the validity of the memoranda, instructions and rules which established and sustained the practice, rather than denying their validity: (41 it upholds the senior officials of the Ministry who issued these rules and directives in the belief that there was proper authority for doing so, rather than disavowing them, and (5) it finds the government in violation of the Collective Agreement only once, when it stopped the payment of overtime meals, rather than in violation of legality innumerable times over a period of some ten years. The former is not uncommon, and occasionally perhaps pardonable. The latter is not, nor should be. These are no small advantages. An interpretation of the relevant documents which does not have these advantages must be rock solid and unassailable. It is surely desirable that it should, if at all possible, be avoided. By contrast, an interpretation which does have these advantages is greatly preferable even if, taken by itself, it might perhaps be thought to be less cogent and compelling. However, I do not believe that my interpretation is at all wanting in this respect. 1’ I ‘Fd - 39 - For all these reasons, I would have upheld the grievance. Toronto, Ontario Toronto, Ontario August 4, 1983 August 4, 1983 ,y -- . H. I,,-.RobiXSonC~'Member H. I,,_.RobiXSon;'Member /ch