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HomeMy WebLinkAbout1982-0377.Dymond.83-04-19I \ IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE:BARCAININC ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employet: HearinR: OPSEU (K. Dymond) and The Crown in Right of Ontario (Ministry of Correctional Services) R.J. Roberts Vice Chairman 5 Kaufman Member P. Coupey Member M. Mercer-DeSantiS Grievance ‘Officer Ontario Public Service Employees Union . . Mr. P. Van Horne Staff Relations Officer Ministry of Correctional Services March IS, 1983 Grievor Employer -2- ,. . ” .4 W A R‘D” .a:., ... : r -.t This ,arbitration-,involves interpretatibn oi A&h? 23, of the / collective agreement, and in particular, the’iolldwing brovisions thereof: . ,.:,, ,Y 0 _ ARTCLIZ 23 - TIME CREDITS WHILE TRAVELLING _L. 23.1 Employees shall be qedited with all time spent in iravelling outside of working hours when authorized by the ministry. . ,.*.. 23.3 When travelis by’automobile and the employee travels directly from his home or place of” employment; time will be cr@ed,from the ,. assig@hourofdepartureuniihe~~ ,’ hIi destination and from ~the assigned hour of departurefromthedestinationuntilk ’ ” reaches hi h6me or place .qf e.?ployment. The parties requested,a ruling from the &ard.as to whether the grievor . was entitled to time credits for travel under the foregoing and related provisions of Article’23. it was agreed.at theputset of the hearing that if the ruling of the Board was in favour of the grievor, we would .retain jurisdiction pend&g’implementation. by the parties of the Award. Because ‘the ‘parties placed before the Board a general question of interpretatiki the precise’facts relating to the griever’s entitlement . need not be set forth in’ detail. It suffices to say that from time-to-time . . the grievor, who is a. Correctional ,Officer at the Toronto Don Jail, was assigned by his supervisor to what is known, as,.hospi,tal duty. This duty involved (1) escorting an inmate to the hospital and returning to the institution with the inmate before the end of the griever’s shift; (2) escorting an inmate who was admitted to the hospital and remaining -3- with him until relieved at the end of his shift by another officer; or (3) travelling from his home to a hospital before the beginning of his shift, relieving a colleague who w?s guarding an inmate-patient, remaining with the inmate-patient for the griever’s entire shift, and when relieved, travelling from the hospital to his home. The issue with which we are concerned solely involves the third type of hospital duty, described above. The Union submitted that when the grievor was assigned to thii type of hospital duty he was “authorized by the Ministry” (within the meaning of ~23.1 of the collective agreement) to travel “outside of working hours” from his home to a Westination” other than his “place of employment” (within the meaning of ~~23.1 and 23.3 of the collective agreement), and as such, he was entitled to be credited with the time spent in so doing. The Employer agreed that when the griever was assigned to the third type of hospital duty, above, he was required to travel “outside of working hours.” to a “destination” which was other than his “place of employment” within the meaning of ~5.23.1 and 23.3. Accordingly, the legal meaning of these expressions is not before us. The submission of the Employer primarily focused upon whether the grievor was Vravelling...wben authorized by the ,Ministry” (within the meaning of s.23.1 of the collective agreement) when travelling from or to his home in connection with this duty. -4- The Union submitted that such travel has’~to’be considered to . have been “authorized” by the Ministry. The Union stressed that it is the . /.. ,Shift Supervisor who assigns hospital duty. 1; ‘order to underline this ; ..,. ., point, the Union cited s. 86~) of Standing Order hlo. 2s of the Employer, which reads as follows: - ..I - In ti.cases where hospital dub ii kequired, the Shift Supenii will determine that the offifqzrs detailed for hospital duty are suitable for .the a&nment, bearing in mind.suchconsi@erations as the physique of the inmate, the charges against him or the sentence be is serving and other rele- vant issues. The Shit Supervisor should he deem it mzeSary may assign two officers to an inmate/ patient if his charges and behaviour warrant this action. , . ., The Union submitted that because the Correctional Offider’must appear at the hospital at his regular starting time, that necessarily contemplates travel outside of working hours! which travel must necessarily have been authaized by the Employer. The Union stressed that the Employer in this ,. case was aware that the grievor travelled to hospital duty by’automobile. It was undisputed that in the past, the Employer ‘paid the griever’s parking fees at the various hospitals to which he wasassighed. ‘As a result, the Union submitted, the Employer “authorized” .travel by, automobile outside of working hours within the meaning of ss.23.1~and 23.3 of the collective ‘.,’ ..- agreement. ,. ‘. ~’ The Employer contended that because Article 23 of. the .’ collective agreement is a general article which must. apply to many different types of Cave1 engaged in frmnministry to li;‘inistry, reasonable - - >- limitations upon its broad language must be applied. In this regard, counsel for the Employer essentially submitted that for “authorization” to occur within the meaning of ss.23.1 and 23.3 the Employer must have pecifically authorized the griever to travel by automobile outside of working hours on the Employer’s business. The ‘griever’s travel, counsel suggested, failed this test on at least two counts: first, there wasn’t any specific authorization because, to the knowledge of the griever and the Union, the Employer’s longstanding practice--as reflected in the Employer’s Administrative Manual--expressly precluded authorizing claims for such travel; and, secondly, the griever’s travel was not “on the Employer’s bus.inesP because the travel was not YntegraP or “directly related” to the griever’s w0rk.l Our own review of pertinent authorities, along with application of certain canons of construction of contract, tends to substantiate the first branch of the Employer’s submission, i.e., that for Quthoritation” to have occurred within the meaning of ~23.1 and 23.3 of 5% ere was a brief allusion by counsel for the Employe; to an alternative argument which focused solely upon the requirement of s.23.2 that “time...be credited from the assigned hour of departure until &he employeejreaches his’destination.” CounseI cobtended that this language must be interpreted as limiting the application of 5.23.3 to travel by automobile from the employee’s place of employment. This was so, counsel submitted, because there never could be an assigned hour of departure from an employee’s home. We rejected this argument out of hand. It seemed to us that the argument flew in the face of the express wording of s.23.3. Moreover, it seemed that, given the necessity for ~~23.3 to apply to a multiplicity of different types of travel, the expression “assigned hour of departure” Ini:ht well encompass within its scope departure within a reasonable time before the assigned commencement of an employee’s shift at a destination other than his usual place of employment. -6- ,“;; _, :. ‘. ,’ the collective agreement,Jhe Employer musr have specific&i iuthorized ._ the grievor to travel by automobile outside of working hours on the Employer’s business. We do not, hqyever, accept the second branch of the Employer’s argument.. ,I?. O~II opiniq_?t%the grievor’s travel did not fail to ,.. meet this test. More will be said of this later. /~ Ordina;ily,‘.the most relevant evidence to interpreting broad contractual language such as thai’at hand in evidence of what the parties indicated .to each other, through words and actions, at the time of . . . . negotiation of. the language as to their intention regarding meaning or ,:’ ,~ application. No such evidence was made. available at the hearing. We were remitted to- application of precedent and certain canons of construction of contracts as our only -aids toward determining mutual intent. :. ~ Available precedent does @dicate that for authorization to &cur within the meaning of s.23.1 the .Employer must have specifically _. .. airthorized the travel in question. The only case that 4% brought to our attention on this point was the Grievance Settlement Award of OPSEU (Haddock and Campbell) and Ministry if- Transportation and Communications, C&B. 104/80 ,(Linden), In &at case, the grievors were required to .work on two, statutory holidays. Their Employer instructed them to travel to and from their, headquarters to their job site within thdir 8 hours shift on each of these days. There was no dispute that the grievers were entitled to be paid premium pay for their entire shiits on - . - -?- these holidays; however, contrary to instructions, one of the grievors travelled between headquarters and the job site outside of his 8 hour shift, For this, it was claimed that he was entitled to be credited with a minimum of’ 4 hours of additional time credit under s.23.5 of Article 23. This provision reads as follows: 23.5 When an employee is require to travel on his his regular day off (x a holiday listed in Article V. Holidays, he shall be credited with a minimum of four (4) hours. The Board rejected this claim stating, “Employees are directed to take this brave3 time during their shift, and it is clear to us that the parties intended that they would be paid for this time in the normal way, i.e., in their normal pay schedule. Employees are paid additionally for travetling only when it occurs outside of ordinary working hours and then only when it 1s specifically authorized by the Ministry. (Article 23.11.” E at p. 4 (Emphasis supplied.) What is significant for our purposes is that the Board in thii case required that there must be specific authorization by the Ministry to travel outside of working hours before ~23.1 can be invoked. With this, we agree. Travel outside of working hours cannot be left to the option of the employee. . We also agree that to b$ compensable under Article 23, the travel which is authorized must be on the Employer’s business. Looking at the contract as a whole, it would seem that Articles 22 and 23 of the -a- : ; . . collective agreement are intended to provide ~a comprehensive scheme for ,.. compensation of employees who must.travel on the Employer% business in ‘, . their.own automobile andior,on .their. own time. Article 22 deals with the ,-. : “rate. at whichemploye.es will be compensated~ for mileage accumulated while engaged in the Employer’s business. Article 23 deals with the separate issue of how employees shall be compensated for time spent trsveliing outside of working hours. When we read Article 23 in the context of Article 22, it seems. reasonable to conclude that to be compensable under Article 23 this travel must be on the Employer% business. This conclusion appears to be consistent with prior awards. See , : e.g., Marcotte and The Mfnis$ry of Catectional Servlces,~,G.S.B. 54178; TomaslnLand The Ml&try of Transportation and Communicatlcms, C.S.B. 71178. : ‘, :_, So far; ,then, we have established- that in order’ to invoke _ “~ ‘s.23.1;‘the Embloyer must have specifically authorized travel outside of . ‘working hours on the Employer’s business. It also seems from the context in which! s.23.1 appears in Article 23 that rhe Employer must also have ’ authori& the specific mode of travel used by the employee, i.e., whether by public carrier or automobile. These two types of travel are dealt with . separately in the Article and could lead to differing computations of time credit. It would be unreasonable to conclude that the parties intended to leave to the employee the option of determining which mode of travel to select. . . -9- Putting together the foregoing analysis, the question to be determined reduces to that originally put by the Employer, i.e., when the grievor was assigned tn hospital duty of the type at issue, was he specifically authaized to travel by automobile on the Employer’s business outside of working hours?’ On the facts of the present’case, we must conclude that he was. Specific authorization to travel outside of working hours existed because (1) thc’grievor was assigned to hospital duty by his Shift Supervisory and (2) the duty as assigned necessitated travel outside of working hours. The unilaterally-imposed past practice of this particular Ministry, as reflected in its ,Manual, does not seem directly relevant to this issue. There was no indication in the evidence that this past practice was known to those who negotiated the collective agreement. While it is true that acquiescense by the Union in the past practice might raise the question of estoppel, that issue exists separately and apart from the matter of determining what constitutes a specific authorization. We agree with the view apparently expressed in Haddock and Campklf, supa, that specific authorization exists if (1) travel is required to carry out an assignment from supervision and (2) travel outside of working hours is not left to the option of the employee. On the facts, that is the case here. The facts also support the conclusion fhat travel by automobile was specifically authorized by the Employer. When the .- 10 - .grievor was assigned to hospital duty ,th:e, Employer ,was aware that his usual mode of transportation in .travellipg .to, and from hospital duty was his personal automobile. The thenSuperintendent of ~thq,Toronto Don Jail, Mr..I.D. Starkey, .confirmed in his testjmony that this Gas so,, There also was evidence that the Employ.er regularly paid the griever’s parking fees at the various hospitals to which he was assigned. . . ‘: :. Finally, there is no doubt. that the grievor’s..travel was on the Employ&s- business. It was conceded that in travelling JO and from, a hospital the griever was travelling to a~destination other than h/s place of employment. It seemed clear from the evidence that this travel was not responsibility-free. The grievot was required by the ,Employer to be in T uniform during the course of this travel. He was forbidden for security reasons from changing into and out of his uniform at the hospital to which he was assigned. The wearing of t~heHmployer5 uniform: entailed certain responsibilities toward the Employer as to decorum, etc., that the griever could not ignore. It also involved taking certain risks that might result from being identified ins the community as a Correctional Officer. It seems to us that’in. the light of these considerations, the travel of the grievor properly is characterized as being ,on the Employer’s business, at least for the purposes of Article 23. See generally, Marcotte and Ministry of Correctional Services, G&B. No. 54/78 BuchaMn and Ministry of Correctional Services, C.S.B. No. 34/78. 1. / - II - This brings US to the final matter to be dealt with in this Award--that of estopped by conduct. The evidence indicated that over a considerable period of time the griever and the Union Local: acquiesced in the unilaterally-imposed practice of the Employer regarding travel to and from hospital duty. ,Mr. Starkey testified that the issue of the applicability of Article 23 of the collective agreement-was not raised by the Union Local until lb years ago. For about three months from that point onward, the issue became a primary topic of consultation between the parties, but no mutually satisfactory resolution was ~achieved. .Matters lapsed into a stalemate. Finally, on April 18, 1982, the grievor and the Union local decided to bring the ‘matter to this Board. The following questions thereupon arise: (1) are the grievor and the Union Local estopped by their prior acquiescence from pressing in this forum their strict contractual rights; and (2).if not, from what point can the griever and Unicn Local claim to be free from any estoppel created by their prior acquiescence? There seems to be little doubt that for a considerabIe period of time the acquiescence of the grievor and the Union Local in the practice of the Employer estopped them from asserting their strict contractual rights. ‘I T he written terms of a collective agreement, like any other contractual undertaking, are impressed with...implicit understandings...such as the doctrine of equitable estoppel and a Board of Arbitration has the authority to give effect ot the,n in rendering a reasonable interpretation... .‘I Re Westclox Cam& Limited and .1 - 12 - .‘I : .: fnternational Union of Efectrid, Radio and Machine Workers (ISI), 3 ., L.A.C. (3d) 68 at 72 (beatty) (citing CN/CP:Telecommunication$, Ontario : Divisional Court, November’~26, 1981 unreported .I. Here, an equirable estoppel undoubtedly was raised against the Union Local and ,the grievor I ., when by their acquiescence in the Employer’s’ practice they- !ed the Empibyer to believe t&t’ they’- would not’. insist .upon their strict contractual rights. “. ., ;~, 3 ,_i Such ah equitable estoppel, however, does not last forever. It I _~ can be ended upon .a ~showihg that (1) reasonable notice was giv,+by one party that it was resilihg from the acquiescence.raising the estoppel; and (2) that the party’ relying upon-the estoppel &as given a reasonable : opportunity to adJust to this change.,in position. As was,stated by Lord Hodson in*Aiayi v. Brisc~e, 1964 ‘3 All E.R. 556 (PC.): _-. Theprinciiie-lihichtibaendescriiasquasi .’ estoppel and perhaps mare aptly as promhay e5topp&tthatwhenonepartytoacontract in the absence of fresh rxwr9ideration agrees not toenforcehisrightsanequltywlllberaisadln . favour of the 00x5 party. Ilk3 equity, is however, ‘subject to the qualification (a) that the other partyhasalteredhisposition,b)that~ I’;, .- promiser can resile from his promise on giving tmsonable notice, which need not be formal notice, giving the prom&e a reasonable opport- unity of resuming his position, (c) the promise only become final and irrevocable if the prom&e : dnnot mume his position. . . . In the light of !hese considerations, the question here becomes one of ‘- determining when the grievor and the Union Local gave the requisite notice and how long a period of time the Employer reasonably required to adjust to this change in’ the Union Local’s position regard&g its strict contractual rights under Article 23 of the collective agreement. - 13- We think that notice sufficient to terminate tile estopped was given by the Union Local and the griever when the issue of the applicability of Article ,23 of the collective agreement was first raised with Mr. Starkey. It also seems reasonable to conclude that a reasonable opportunity for the Employer to rearrange its affairs subsequent to this notice would have ended about halfway between the date of notice and the date of filing of the grievance herein, April 18, 1982. Since no precise information as to date was furnished to the Board, the determination of thii halfway point will be remitted to the parties. Accordingly, our Award is as follows: The grievance is allowed to the following extent: For the period of time in which the wmppel did not operate against him and the Union Local, the grievor was entitled to time credits under. s.23.1, s.23.3 and related provisions of Article 23 of the collective agreement for travel outside of working hours to and from the type of hospital duty dealt with herein. We will retain jurisdiction of the matter pending implementation by the parties of the terms of this Award. DATED at London, Ontario this 19th day of A “I dissent” (see attached) P. Coupey Member 2:2220 /lb :, .: . - 14. DISSENT, 1 have considered the award in this matter, and 1 must dissent. While 1 concur with the Chairman’s view that “there seems to ‘be.little doubt that for a considerable period of time the acquiescence of ,the grievor ahd the Union it-t the practice of the employer estopped them I from asserting their ~strict contractual rights,” I cannot agree with the Chairman’s award that the estoppel did not operate against the grievor and then Union “half-way between the date of notice ‘and the date of filing the grievance.” ._ “With each of the constituent elements .of the ‘doctrine so obviously established, and given ~clear direction from our courts that arbitrators are empowered to apply thii doctrine in such circumstances, we would conclude and declare that the employer is estopped at least for the ‘life of this agreement...” ‘I... that seems to be the natural duration of such an estoppel...” (emphasis mine). Re: Westclox~ Canada Limited and lnternc@rtaJ Union of Electrical, Radio ad Machine Workers (1981) 3 L.A.C., (3rd) 68 at 75 (Beatty). This practice, in Labour Relations, is further supported by the Award of Cowge Adams, Q.C. in the Matter of Stienberg Inc. (Miracfe Food Mart Division) and The .feamsters Union ‘Local 419. On page’ 39 of the award he states that “Because the grievance was not filed until after - I5- the execution of the (1980 - 1982) Agreement, The Union remains estopped until the expiry of this agreement. After that point of time the company has been properly put on notice of the Union’s position” (emphasis mine). Having accepted that the principal of estoppel applied in this matter, 1 would have found that the grievor and the Union remain estopped until the expiry of the current collective agreement. --------Member -_-- P.H. Coupey , . .