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HomeMy WebLinkAbout1982-0564.OPSEU.86-11-19 ' � r ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNOAS STREET WEST, TORONTO. ONTARIO. M5G iZ8-SUITE 2100 TELEPHONE: 4161598-0688 564/82 IN THE MATTER OF AN ARBITRATION — Under — THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between • OPSEU (Clerk b General) Gri-evor and — The Crown in Right of Ontario (Manag?ment Board of Cabinet) Employer Before: P. Draper Vice—Chairman S.R. Hennessy Member K.W. Preston Member For the Crievor: R. Anand Counsel Cavalluzzo, Hayes & Lennon Barristers &Solicitors For the Employer: Ms. L. McIntosh Crown Law Office, Civil Ministry of the Attorney General Hearings: October 11, 1984 February 11 & 12, 1985 ,Tune 3, 4, & 5, 1985 September 16, 1985 February 20, 1986 May 8, 1986 D E C I S I O N This matter concerns the status of certain language of the 1982-1983 Clerical Services Category Agreement (the Agreement) between the parties dated March 22, 1982, a copy of which is attached. The result of the negotiations for the Agreement were recorded in a Memorandum of Settlement (the Memorandum) dated January 29, 1982 (copy attached) the relevant provisions of which for present purposes are: 2. Salaries (a) Effective January 1, 1982, an increase of 9.5% to all classifications in the category, based on the salary rates in effect on December 31, 1981 . (c) Effective 'January 1, 1983, a further increase of 9% to all classifications in the .category, based on the salary rates in effect on December 31 , 1982. The Words "based on the salary-rates in effect on' (date)" are identical to those which appeared. in the corresponding provision of the two preceding (1980 and 1981) agreements. The relevant provisions of the Agreement read: 2. Sa-U ies (a) Effective January 1 , 1982, an increase of 9.5% to all classifications in the category based on the salary rates set out. in Appendix A to the Clerical Services Category Agreement expiring on December 31, 1981 and in effect on that date. 7 y 2 ' (c) Effective January 1 , 1983, a further increase of 9% to all classifications in the category based on the salary rates set out in Appendix A to this Agreement and in effect on December 31 , 1982.. As may be seen from an examination of the two documents attached, the Agreement contained other changes from the Memorandum, the purposes of which are clear. For example, the reference in the preamble of the Memorandum to recommending acceptance of the settlement does not appear in the Agreement. Paragraph 2 (e) was added to the Agreement because no appendix had been attached to the Memorandum. Paragraph 4 of the Agreement was copied from the 1981 Agreement, as was paragraph 5 (with the necessary updates) . It is to be noted that paragraph 2 (a) of the Agreement contains the only reference to the appendix of the preceding (1981) agreement. The references in paragraphs 2 (c) and 2 (e) are to the appendix to the subject Agreement. In the negotiations between the. parties no. proposals 'were made and no negotiations took place regarding changes to the operative language of the preceding (1981) agreement and the appendix to that agreement was not discussed. When the terms of the Agreement and the dates of rate increases had been settled, the Memorandum was handwritten by the chief negotiator of the Employer and was signed by the members of the respective bargaining committees. In accordance with standard practice, the Employer prepared a typewritten version of the Memorandum for execution by the authorized signatories of the parties. In so doing the Employer made the changes in language to paragraphs 2 (a) and-. 2 (c) noted above . . - 3 - In duc course the settlement as contained in the Memorandum was ratified by the Union membership dnd the typed Agreement was formally executed by the parties. In August or;September of 1982 the Employer took the position that the difference between the language of paragraphs 2 (a) and 2 (c) of the Agreement and that of the correspondin provision of the preceding ( 1981) agreement led to a different result in their application. The issue of the correct rates under the Agreement came before the Board in early 1984 and the Board found (Weatherill decision, March 12, 1984) that "there are differences in the operative language of the category agreements"; that "the differences in wording are significant"; and that "a different conclusion results ." In other words , the changes in language from that of the 1980 and 1981 agreements to that- of the subject Axeement gave a different meaning and effect to the provisions in question and the issue as to rates which arose under the two preceding agreements and was dealt with - in two earlier Board decisions (the Mcl.aren decision, 443/80, June 23 , 1981 , and the Prichard decision, 526/81 , August 4, 1982) both of which upheld the Union position, no longer existed. Specifically, the rate on which a percentage increase is to be based is now identified as that set out in the appendix to the "preceding agreement as of its expiry date rather than the rate found in the McLaren and Prichard decisions to be the "correct" rate. The Weatherill panel "heard the arguments of counsel with respect to the interpretation of the agreement" and found in favour of the Employer, but noted that there remained "a question as to the existence or substance of the agreement itself", the Union having argued that "the wording on which we have relied in the Foregoing is not in fact the .wording of the agreement negotiated between the parties." The Board ruled that the Union was entitled to pursue that issue and the present continuation ensued. — 4 — The evidence of the Employer is that it adopted the language concerned solely for the purpose of clarifying the language used in earlier clerical services category agreements and that the need for clarification arose from the McLaren decision. This was a rash decision at best and it is one which the Union argues must be suspect.. First , the McLaren decision was issued in June, 1981. negotiations : for the. _ 1982-1983 agreement commenced in late 1981 and continued into early 1982. Yet no mention was made by the Employer of a need for clarification, no proposal was made to change the language of the preceding ( 1981) agreement, no negotiations took place about language and no change of language from that used a year earlier was made in the Memorandum. There is nothing in the evidence to suggest that the McLaren decision or any tie between it and the language of the Agreement was ever raised in the negotiations . Second, the grievance eventually heard by the Prichard panel was filed in August , . 1981 . As the Employer knew, the McLaren decision and the wording of the corresponding provision of the 1980 and 1981 agreements were central to the resolution of that grievance. Third, the Employer was aware, through an exchange of letters between counsel to the Union and its own chief negotiator for clerical services category agreements shortly after the McLaren decision was issued, that the Union did not share its opinion of the meaning and effect of that decision. That being so, the Employer could have no reasonable belief that a clarification proposed by is" and related to the McLaren decision would be regarded by the Union as being in its interest . I _ 5' _ The Memorandum is not a collective agreement; by definition it is a note of the particulars of the settlement. But it has crucial significance because it sets out in the language in which they chose to express it, the bargain struck by the parties.. All that remained once the Memorandum was signed was to secure ratification of the settlement. Only if ratification was not obtained would further negotiations take place and another, presumably different, bargain be reached. What was put before the Union membership, as the Employer knew, was a negotiation bulletin which reproduced the language of the Memorandum. To this point , then, nothing had been said or done about language on either side. Informed that the settlement had been ratified, the Employer prepared and signed typewritten copies of {chat was to be the formal Agreement and sent them tb the Union for execution. Into that document the Employer, on its own initiative and without notice to or negotiation with-the Union, introduced the language at issue. The evidence of the Employer is that it was confident that the Union would see 'and consider the changes made to the language of the 'Memorandum and that if nothing was heard from. the Union and the Agreement was signed and returned, the intention of the Union to accept the change for inclusion in the Agreement could be assumed. This strikes us as a rather facile view of the responsibility of the Employer and of the onus that could be ascribed to the Union at that late stage of events, when the parties had before them the settled language of a settled provision. The Employer had the right and the duty to present to the Union for execution nothing other than a document replicating the substantive language of the Memorandum. That is what good faith and goad sense dictated in the 4 circumstances and, 'indeed, what appears -to be contemplated by Section 13(1) of the Crown Employees Collective Bargaining Act which provides in part that: "Where, during the bargaining under this Act. . . . . the parties agree on all the matters to be included in a collective agreement, they shall put them in writing and shall execute the document. , . . . ." over the course of nine days of hearings a considerable volume of evidence was adduced and extensive argument on a number of alternative grounds was pre- sented by counsel for both parties. Given the nature of the dealings between the parties, and having reviewed all of the evidence and considered all of the submissions of counsel , we have concluded that the elements of an estop- pel are present. Estoppel is.generally described as a_ doctrine of law which, as applied in a collective bargaining context, prevents one party from en- forcing its strict rights under a collective agreement against the other party. Alternatively, it has been described as a rule of evidence preventing the unfair assertion of what would otherwise be a valid claim under a collective agreement. See Re Dunham—Bush, 9 L.A.C. (2d) 401 (Weatherill, 1975) . In Re Hallmark Containers , 8 L.A..C. (3d) 117 (Burkett, 1983) the purpose of estoppel is described as being to prevent the unfair or inequitable consequences which occur when one party relies to its detriment on the representations of the other with respect to the legal relations between them. In Re Canada Bread, 22 L.A.C. 98 (Christie, 1970) the view is expressed that : "In holding that one party to a collective agreement is estopped from- asserting his rights under it an arbitrator should not be regarded as holding, that the collective agreement has been modi- fied. He is simply saying that it would be unjust in the- circum- stances to allow the estopped party to rely, on the letter .of his rights." "In the Dunham—Bush case it is said that: "The application of the doctrine of estoppel does not involve the amending of any contract terms , but merely prevents a party from relying anthose terms in a particular set of circumstances ." r 7 In Re Board of Commissioners of Police for the Township of Innisfil, 19 L.A.C. (3d) 263 (Hinne an, 1985) it is stated that: "Where the representation relied upon is made so as to operate for a future period of time , as in the case of a representation made during negotiations as to the application of a particular clause in the Agreement, then the estoppel applies for the duration of the Agreement or as otherwise represented, which may extend beyond the expiry of the Agreement." The conduct of the Employer during negotiations and the process of concluding the Agreement amounted to a representation that the operative provisions of the Agreement would be those derived from the preceding (1981) agreement and set out in the Memorandum. That was a representation upon which the Union was entitled to, and did, rely. . The Union was not given notice of any concern of the Employer regarding the language or of the change in language itself. The Employer's silence effectively ,denied the Union the opportunity to consider the putative purpose of the change and to defend its interest; this to the Union` s detriment. That the Employer may initially have wished only a clarification of the existing language, and that the Union might have been more vigilant before executing the Agreement cannot alter that fact or justify the Employer's conduct . The Union's reliance on the Employer's representation, of course, had as its ultimate consequence the adverse decision of the Weatherill panel which upheld the Employer's position with respect to the meaning and effect of the language at issue, and the resulting impossibility of further reliance on the favourable Prichard decision based on the language of the 1980 and 1981 agreements. 8 - I ' The construction we are disposed to put upon the conduct of the Employer is that I ' it was an unfortunate departure from the fair and open negotiating relationship that has existed between the parties. We believe it to be both right and reasonable that the status of the legal relations between them be restored to what it was before the events recounted here occurred. Accordingly, -the Employer is estopped from exercising its contractual rights arising from the language of the operative provisions of the 1982 — 1983 Clerical Services Category Agreement contained in paragraphs 2 (a) and- 2 (c) of that Agreement as interpreted by the Weatherill decision of March 12, 1984. We retain jurisdiction in order to consider the matter of the application of this decision t-o the''approximately 180 grievances alleging the breach of the 1982 — 1983 Clerical Services Category Agreement should that issue require resolution by the Boar Dated at Toronto, Ontario this 19th day of November 1986. P.M. Draper Vice-Chairman S.R. Hennessy Member "I dissent" (see attached) K.W. Preston Member vul Cris'Leo PI L o.ncL, r.wac,"cn :t, b Li - �an 1 cjuz kzYe,fa rm, urlar+'r�rnntisl r�Qmmered.._.._._�_ al i o u�M u�� esxr� a,� Bch L oj Lk t-u LA aN tJ� vi� fitt, co �C CChu 2. Jon{,or ► ' rqg 3 r ,cL , tt w cnU�.tvc..P� q °(o -110 cLLL.IC1s=t-.-,a *41 w. 0 n3 DI �.0 ch i r n 31� EG3 a • —..._. 'IoOdO-r� LtlattL X, c LL� L4 (a-) C-6 q Q�. a r pro -rata, �a is , 4-o clL srn (n 0.•p c�.�.l. ovv�� kou-r5 wo;.!� ai TO rimTz Zvi l � I _ „ D y _ y {r..lt .Yj l,%3 t - 7:ate ti . L•w?Hd 1' l�r yy}31 j A',4 ..�,•Yli� .�'.; '!i V110., COLLECTIVE '�.r�..iilw� r � �'(r- � }X� � �..t �,! !' t,.i:-� }V t�!?l J�fhiY�-ar:. ! �'P�• �+.. ,' 1�. .r 5 1~'�F". COLLECTIVE AGREEMENT between THE CROWN IN RIGHT OF ONTARIO and represented by the MANAGEMENT BOARD OF CABINET and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION The parties hereto have agreed to all matters in dispute and to the following terms in respect of the Clerical Services Category: I. Term Two (2)' years effective from January 1 , 198,2 to December 31 , 1983. 2. Salaries 5 (a) Effective January 1 , 3.982 ,. an increase of 9. 5% to all classifications' in the category based on the salary rates set out in Appendix A to the Clerical Services 3y: Category Agreement expiring on December 31 , 1981 and in effect on that date. { (b) Effective July 1 , 1982, a further increase of $9 . 25 per week to all classifications �J in the category. (c) Effective January 1, 1983► a further incr-ease of 9% to all classifications in the category based on the salary rates set out in Appendix A to this Agreement and in effect. on December 31 , E {d) Effective July 1 , 1983 ; a further increase of $7 . 00 per week to all classifications in the category- Rates of pay for all classifications, resulting from the application of the increases set out X1-,5 (r) and (d) above, are attached as 2 - i 3. Retroactivity The salary increase set out in Z (a) above shall be retroactive and payable. from January 1, 1982 , on a fall or pro-rata basis , to all employees who are or were in this category and shall apply to all overtime worked. 4 . Im lementation The employer will make every reasonable effort to implement the salary increases as expeditiously as possible. 5. The Agreement shall be in effect until December 31, 1983 , and from year to year thereafter unless written notice of intention to amend or terminate the Agreement is given by either party to the other in accordance with Section 22 of the Crown.,Employees Collective Bargaining Act, 1980. Signed by the parties hereto on the nc� day of March, 1982, in the City of Toronto. FOR: MANAGEMENT BOARD FOR: ONTARIO PUBLIC SERVICE 'OF CABINET EMPLOYEES UNION I - j i DISSENT I have read the decision in the above-noted matter and am unable to agree. Basically I am unable to find that the failure of the Union to read and understand the agreement-signed by them on March 22, 1982 was the'fault or as a result of any covert actions by the Employer. It therefore follows that the subsequent Weatherill decision which confirmed in its application the practice as stated and implemented in past Collective Agreements by the Employer did not establish a situation in which the principle of estoppel was thus invoked. On page four of the award it is stated that' the Union did not share its opinion of the meaning and effect of that decision (McLaren). The "its" referred to is the Employer's view. Historically in the Agreements prior to 1980 as well as the agreement of 1981 the Employer relied upon one interpretation of the salaries clause which came- into question with the awards of McLaren and subsequently Prichard. The Employer's understanding and interpretation of this article was changed by these awards. Similarily the wording of the 1982 agreement was interpreted by the Weatherill decision to be different in its application from the interpretation given to this section by McLaren. It is important to note that the Employer's position in the application of salary increases during the periods prior to 1980 and subsequent to 1980 did not change. It was uniformally the same during the entire period. I - 2 - The Union was fully aware of the Employer's interpretation and the lack of clarity that could arise since they filed grievances which resulted not only in the McLaren and Prichard decisions but also in the subsequent Weatherill arbitration. This particular clause was of vital interest and concern to both parties to the Agreement. Each with a vested interest in its interpretation. y The Employer's clarification in the 1982 negotiations was it appears an attempt to remove some of the uncertainty as to its interpretation not only for the Clerical Group but for other categories as well, since identical language was placed in other agreements signed by the Union subsequent to the 1982 Clerical Agreement. It would have been-possible for the Weatherill Board to have ruled either way even with the clarification in 1982. In fact the dissenting decision makes a very good case in suggesting a result consistent with the McLaren and Prichard decisions. I find it difficult to accept the principal of estoppel as suggested by the. Majority decision. The Employer's position regarding the application of the negotiated salary increases was consistent and well known to the Union prior to and subsequent to the 1982 negotiations. It was applied uniformally for all categories not just the Clerical Group. It had been widely discussed in relation to the grievances filed by the Union. - 3 - To suggest that the Union signed the 1982-1983 Collective Agreement covering salaries on March 22, 1982 without knowing or noticing the wording of 2 (a) and 2 (c) seems hard to accept in view of the attention given to their difference over the preceeding two years. The key to the Majority decisions is based on the principle of estoppel. It "is held that the Union's reliance on the Employer's representation, of course, had as its ultimate consequence the adverse decision of the Weatherill panel." The Employer's representations on the subject had been highlighed in two arbitration hearings prior to the signing of the 1982 Agreement. Also an exchange of letters between the parties followed the McLaren decision. At no time prior to the signing of the 1982 Agreement did the Employer suggest in any manner or form that there had been a change in their understanding of the application of salary increase resulting from a negotiated settlement. There was no attempt to lull the Union into a reliance on the MCLaren decision as to the practice to be followed. My understanding of estoppel is that where by past practice or persuasion one partly assumes or relies on a position, which at. some future point in time the other parties denies or refutes to the detriment of the first party that initially relied on such practice or persuasion would precipitate the principal of estoppel. I 14 i - 4 - The Employer in this case at no time made representations which would have lead the Union to believe that it (the Employer) agreed with the interpretation given to the Collective Agreement by the McLaren decision. The clarification in the Collective Agreement signed on March 22, 1982 was consistent with their position and their representation on the' matter in arbitration to that point in time. There is no evidence that the Employer endeavoured to mislead the Union as to its position. The clarification which was included in the Collective Agreement signed by the parties on March 22, 1982 was an addition to the Memorandum, but item 2 (e) was also added, referring to the attached Appendix A. If there were any questions as to the appropriateness of adding the reference to Appendix A in item 2 (a) 2 (c) or 2 (e) the Union had ample opportunity to inquire if it felt that by the additions such words were inconsistent with the Agreement reached as outlined in the Memorandum. Based on the evidence presented at the hearing I do not believe that the Employer at any time made representations or implied by actions that it intended other, than to clarif y the Agreement. A prudent course by any party to an agreement. To suggest that the Union was misled or induced to rely on other representations seems to suggest a naivety not in keeping with the highly skilled, professional Union representing the Clerical Group. Accordingly there is no reason to set aside the Weatherhill decision as it was an arbiters decision on the meaning of contract lanuage agreed to by the j. • r 5 parties in the same manner as the decisions of McLaren and Prichard. The interpretation given to the language happened to be consistent with the Employers views expressed before and after 1980. It could be argued that the language in the 1982 Agreement still did not cover adequately the equability of rate adjustments during the term of an agreement. Appendix A would still have to be amended to reflect such changes. However, this is a matter for further amendments to the Agreement and/or subsequent interpretations in arbitrations. z K. W. Preston _ t f k.